Jordan and Callaghan and Ors

[2012] FamCA 147

FAMILY COURT OF AUSTRALIA

JORDAN & CALLAGHAN AND ORS [2012] FamCA 147

FAMILY LAW - CHILDREN – parental responsibility – with whom a child shall live and spend time – parenting application in relation to two young boys to different fathers – applications made by all three parents and paternal grandparents – children independently represented – Department of Family and Community Services intervened - history of family violence between fathers and mother - drug and alcohol abuse by fathers and mother – mother’s history of forming relationship with violent men – allegations of child neglect and exposure to family violence – children’s parents have been inconsistent in demonstrating responsibility as parents – application by paternal grandmother of eldest child for eldest child to live with paternal aunt during weekdays and paternal grandmother during weekends – paternal aunt in a relationship with a violent partner – conflict between paternal aunt and father of eldest child – the proposal of the eldest child’s paternal grandmother inconsistent with child’s best interests – paternal grandparents of youngest child are child focused and able to protect children from harm – evidence of children progressing in their care - orders for children to live with paternal grandparents of the youngest child – orders for paternal grandmother of youngest child to share parental responsibility for the children with the department – orders for the eldest child to spend time with father and paternal grandmother

FAMILY LAW - CHILDREN - children removed by Department from the care of the mother into the care of the parental grandparents of the youngest child – father of youngest child resided with paternal grandparents whilst children were in their care – the department failed to clearly inform the paternal grandparents of the youngest child of the risk the father posed to the children whilst residing in the grandparents home – children removed from care of paternal grandparents into care of community – children removed without proper notice by department – children removed prior to final consideration of parenting arrangements by court – children removed on basis of untested expert evidence – expert evidence found to be inconsistent – children removed on basis of beliefs of departmental officers that a mistake was made when the children were placed with the paternal grandparents and the difficulty in managing the behaviour and expectations of all of the family members involved – orders restoring care of children with the paternal grandparents of the youngest child

Family Law Act 1975 (Cth) s 60B, 60CC, 65C

Aldridge & Keaton (2009) FLC 93-421
In the marriage of R (Children’s Wishes) (2002) FLC 93-108
Malcom & Monroe & Anor (2011) FLC 93-460

APPLICANT: Ms Jordan

FIRST RESPONDENT: Mr Callaghan

SECOND RESPONDENT: Ms P

FIRST INTERVENER: Mr A

SECOND INTERVENER: Director General Department of Family and Community Services

THIRD INTERVENER: Ms S

FILE NUMBER: (P)NCC 102 of 2010

DATE DELIVERED: 21 March 2012

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATES: 19, 20. 24. 25. 26. 27. 28 and 31October, 1, 7, 10 and 11 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms McMahon

SOLICITOR FOR THE APPLICANT: Little & Associates

FIRST RESPONDENT: In person

SECOND RESPONDENT: In person

FIRST INTERVENER: In person

COUNSEL FOR SECOND INTERVENER: Mr Davies

SOLICITOR FOR SECOND INTERVENER: Crown Solicitor’s Office

THIRD INTERVENER: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Burns

INDEPENDENT CHILDREN’S LAWYER: Sharon Moore

Orders

1. That C born … October 2003 and T born … March 2008 together referred to as “the children” shall live with Ms P and Mr P, such change of residence to commence from a date no later than 42 days from the date of these Orders.

2. That all aspects of parental responsibility be allocated to Ms P, with the exception of contact between both children and their mother Ms Jordan and between T and his father Mr Callaghan.

3. That parental responsibility for the following matters is allocated to the Minister for the Department of Family and Community Services:

   (a)the time the children are to spend with their mother, the time T is to spend with his father and the time C is to spend with his father, if any, in addition to provision in these Orders;

   (b)the communication the children are to have with their parents.

4. That C shall spend time with his father on one Saturday each calendar month from 9.00 am until 5.00 pm being the third Saturday in each calendar month failing agreement otherwise as to the day between Ms P and Mr A.

5. That C shall spend time including overnight time with his paternal grandmother

6. , Ms S, in her home on one weekend each calendar month from 9.00 am Saturday to 5.00 pm Sunday, being the first weekend in each calendar month otherwise, commencing with the first weekend in May 2012 (failing agreement otherwise between Ms P and Ms S) AND IN THAT REGARD Mr A may spend time with C; but not overnight time, at the invitation of his mother Ms S, during any such weekend.

7. That Ms Jordan and Mr Callaghan be restrained from attending:

   (a)the home of Ms and Mr P;

   (b)any school, pre-school or day care facility which either or both of the children attend;

   (c)any other place frequented by either or both of the children;

   without the express authority of the Director General of the Department of Family and Community Services.

8. Other than in accordance with these Orders, that Ms P and Mr P are restrained from allowing the children to spend time or communicate with any of their parents unless authorised in advance by the Director General of the Department of Family and Community Services.

9. That each of the parties listed herein is restrained from criticising or making rude comments about any of the other parties to the proceedings AND other family members of the children AND the foster carers who have cared for the children since August 2011; in the hearing or presence of the children or either of them and shall each make every effort to restrain third parties from such conduct:

   ·   Ms Jordan

   ·   Mr A

   ·   Mr Callaghan

   ·   Ms S

   ·   Ms P

   ·   Mr P.

10. That Mr A is restrained from using marijuana at times when C is in his care and for 48 hours in advance of such time.

11. That Ms P; Mr P and Ms S shall each:

    (a)contact the Director of Child Dispute Services at the Family Court of Australia in Newcastle (telephone number … ) to obtain advice on a course of education/advice/counselling for carers of children who have been the subject of child abuse and domestic violence;  AND

    (b)enrol in and complete such recommended course at the earliest possible opportunity.

12. That all parties have leave to relist the proceedings on 7 days notice after the judgment of the Full Court is handed down.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jordan & Callaghan and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC102 of 2010

Ms Jordan

Applicant

And

Mr Callaghan

First Respondent
And

Ms P

Second Respondent

And

Mr A

First Intervener

And

Director-General, Department of Family and Community Services

Second Intervener

Ms S

Third Intervener

And

Independent Children’s Lawyer

Respondent

REASONS FOR JUDGMENT

Introduction

These are parenting applications in relation to two young boys.  C aged eight is the child of Ms Jordan and Mr A.  T aged four is the child of Ms Jordan and Mr Callaghan.

1. In these reasons I will refer to the parties and relevant family members as follows:

   ·C   (8)

   ·T  (4)

   ·The mother  Ms Jordan

   ·The maternal grandmother  Ms J

   ·C’s father  Mr A

   ·C’s paternal grandmother  Ms S

   ·C’s paternal aunt  Ms Z

   ·T’s father  Mr Callaghan

   ·Ms P   (Paternal Grandmother of   T and his half-sisters)

   ·

   Mr P  (Paternal Grandfather of

   
     

   T and his half-sisters)  

   ·T’s half-sisters / The girls   H (11) and E (10)

   ·The girls’ mother  Ms D

   ·

   Y  (14)

   
     

   (Older half-brother of C and T)

2. Both fathers and both paternal grandmothers represented themselves.  The orders sought at the commencement of the hearing are contained in documents as follows:

   ·   The Orders sought by C’s father were contained in Exhibits 1 and 4.

   ·   The Orders sought by C’s paternal grandmother were contained in Exhibit 2.

   ·   The Orders sought by T’s father were contained in Exhibit 3.

   ·   The orders sought by the Applicant Mother were contained in her (Amended) Amended Initiating Application filed 5 September 2011.

   ·   The Orders sought by the Director General were set out in a Minute of Order annexed to the Case Outline prepared by Counsel for the Second Intervener.

   The Second Respondent Paternal Grandmother, Ms P, was granted leave to be joined as a party on the first day of hearing

   
   

   19 October 2011.  Until then she had been a witness in her son’s case.  The Orders she sought were contained in an Application in a Case filed in Court on that day.

   ·    

   ·   The Independent Children’s Lawyer reserved her position.

History of proceedings

1. C and T lived with their mother until August 2010, when the children were ordered into the care of the Minister for Family & Community Services on an interim basis by a Federal Magistrate.  They were both placed with T’s paternal grandparents, Ms P and Mr P.  Most recently in August 2011, C and T were removed by the Department of Family & Community Services and placed into care in the community.  T’s sisters H and E were also members of that household.  They are T’s older half-sisters.  By arrangement between the girls’ mother and Mr and Ms P, they had been living in the home for four years.  They continue to live there.

2. The boys have an older brother Y, who has been living in Melbourne with his father since 2009.  Y’s father was not a party to the proceedings.

The evidence

The mother – Ms Jordan

1. The mother relied upon the following affidavits:

   1.        Ms Jordan                            filed FMC      18/01/2010.

   2.        Ms Jordan  filed FMC     04/08/2010.

   3.        Ms Jordan  filed FCoA     13/09/2011.

2. The mother is 38 years old.  She has three sons, each with a different father; Y (14), C (8) and T (4).

3. Y has apparently been living in Melbourne with his father since 2009.  There is no evidence about how this arrangement came into place, nor about time and communication, if any, between the mother and Y.

4. C is the child of a relationship between the mother and Mr A.  There is a dispute between them as to whether they lived together at all and if so, for how long.  On any version of events, by the time C was three years of age his parents were certainly not living together.

5. There was always conflict between them.  Each applied for an Apprehended Violence Order (AVO) against the other.

6. C lived with his mother and spent time with his father.

7. By 2007 C was spending at least one or two night per week with his father by arrangement between his parents.

8. In July 2008 the mother made an application for a recovery order in the Federal Magistrates Court.  There were several subsequent court events and interim orders.

9. By 9 October 2009[1] final orders were made in the Federal Magistrates Court for parenting arrangements for C.  In summary they were :

   (a)    Equal shared parental responsibility between the parents.

   (b)    Residence with mother.

   (c)    C to spend time over alternate weekends and on special occasions with father.

   (d)    Dismissal of application by mother to change C’s residence to Town F.

   (e)    Restraining orders on mother:

   -not to use illegal drugs or alcohol to excess;

   -not to bring C into contact with Mr Callaghan.

   [1]  MFI (2) Order 09/10/2009 Federal Magistrates Court

10. This arrangement continued until August 2010 when C was removed into the care of the Director General.  C has had limited periods of professionally supervised time with his mother since that date.

11. T is the child of a relationship between the mother and Mr Callaghan.  The parents agree that they lived together from 2006 to early 2009. 

12. T had contact with his father after separation.  T’s father asserts that he provided most of T’s care from about August 2009[2].

    [2]  Affidavit of Mr Callaghan filed 02/02/2010, par 10

13. In January 2010 the mother filed an application in the Federal Magistrates Court for orders in relation to T which, if granted, would have excluded T’s father from his life.

14. The conflict continued between the parents and the mother’s behaviour deteriorated.  In mid 2010 the mother moved, without notice, to the Town F area.

15. A family report was released on 24 June 2010 and the following day the Director General of the Department of Family and Community Services (the Department) was granted leave to intervene.

16. In August 2010 T was removed into care with his brother C and placed with his paternal grandparents in Newcastle.  As is for C, T has also had limited supervised time with his mother since that date.

17. Since the removal of the children, the mother has travelled to Sydney to spend time with them for supervised visits.  Her affidavit provides evidence of seeking assistance in a variety of ways; to deal with her dependence on alcohol, to understand the impact on her of violent relationships in the past (including with the fathers of both boys), to develop her skills as a parent and to begin the process of re-entering the paid workforce.  She also provides evidence of a place at school for C at L School in Town F or X School in Suburb G.  C has previously been enrolled at both of those schools. 

18. The evidence contained in her affidavit paints a picture of someone who has undertaken a review of her life and is making every effort to change the pattern of her adult lifetime, which has been drinking alcohol to excess and forming and remaining in relationships with violent abusive men, with drug and alcohol issues of their own.  However the oral evidence of the mother suggested to me that at this stage, she has not accepted responsibility for her own role for the circumstances in which the children have been raised.  She repeatedly gave answers similar to this answer:

    So much has happened in my life that I can’t remember everything because of the damage that has been done.

19. Answers such as “I can’t remember, I may have, I can’t say I didn’t, I don’t remember any of that” were common throughout the cross-examination, particularly on behalf of the Department.

20. Evidence given by the mother about her own conduct raises concern.  On more than one occasion when she was provoked by someone, she would go to the perceived offender’s premises, bang on the door and call out, sometimes yelling and screaming.  The mother was repeatedly drawn into the conflict of others.  Fights escalated and the mother herself was badly injured on occasions.  The underlying theme is of heavy steady drinking.  Ten plus alcoholic drinks a day on a typical day when drinking[3].  I accept that the mother arranged babysitters for the children when she went out to hotels, although it was Y looking after his younger brothers.  The children were at home when the mother was drinking to intoxication on many occasions.

    [3]  Exhibits 20, 21, 22 Western NSW Local Health Network

21. The evidence from the schools in particular suggests that the mother can be a devoted and attentive mother in terms of the children’s homework, their presentation at school, the food that they were provided with, but the inevitable consequence of her drinking is that the mother’s judgment and ability to provide adequate physical care of the children was diminished on a regular basis.

22. The mother was asked about an incident on 4 January 2009 when she was drinking with friends.  Notes in the police records paint a picture of intoxicated adults with “youngest child asleep on the floor with flies all over him”.  The mother’s response was, “I wouldn’t say that happened”.  I have the clear impression that the mother might not have had a clear recollection of that incident because of her own intoxication at the time, but was acknowledging the scene.

23. On 16 July 2009 the mother was pulled over and charged with drinking with a prescribed content of alcohol in her blood, namely 0.13.  Her explanation was that she had been at home at a barbeque she had organised.  T’s father came to the barbeque and told her to end it in order to take him “to get some speed.”  The mother said she did this.  Mr P was driving the car when they were stopped by detectives.  The mother then chose to take over the driving to drive home and collect the two boys from friends who were minding them.  She had taken alcoholic drinks in the car with her and was drinking as they drove around Newcastle, because she said “I was quite nervous.”  Had she not been pulled over, the mother would have been returning to collect the children in a state of serious intoxication.  When this point was raised with her the mother was defensive, focusing on her situation being unlucky, rather than how unlucky the children were going to be to be cared for by their mother in such a state.

24. As the incidents in the police records were analysed, it emerged that the mother had not been entirely frank.  For instance, in her affidavit[4] she said that

    
    

    Mr CA had helped her to move to Town F and that that was the last contact she had had with him.  The mother conceded that this was not true.  Significantly, Mr CA assaulted the mother in August 2010, when they had both been drinking.  Police record that the mother and Mr CA were accusing each other of having thrown a glass bottle.  The police simply withdrew from the scene.  There is evidence that Mr CA is a dangerous man.  A letter from Dr N, Consultant Psychologist to Mr CA’s general practitioner dated 1 April 2011 says this:

    He has a longstanding history of substance abuse with his main drug of choice being alcohol.  He has also used cannabis and amphetamines periodically since the age of 15.  He went to [a rehabilitation centre] on the orders of a Magistrate last year having been charged with the reckless wounding of his girlfriend whom he hit with a bottle.  He also has a long history of intense and inappropriate anger which has resulted in several assaults which has ruined a number of relationships and resulted in [Mr CA] not being able to sustain long periods of employment.  This occurs on the background of conduct problems at school and a long history of impulsive behaviour in several aspects of his life.  [Mr CA] has an 11 year old daughter with whom he has sporadic contact mainly over Facebook at present.  He has also had a series of difficult relationships with women which have often ended violently.  He is now in another relationship and although he appears particularly attached to this woman, I sense that there could be problems given that this partner also sees other people[5].  [It appears that this is a reference to the mother in these proceedings].

    Mr CA’s criminal records were also put into evidence[6].

    [4]   Affidavit of Mother filed 13/9/2011, par 6

    [5]  Exhibit 39 – Rehabilitation centre, yellow tag 19

    [6]  Exhibit 40 – Queensland Police Records

25. When the mother was asked whether she thought the reason the children had gone into the care of the Department related to her intoxication and relationship with Mr CA, she denied it and said the reason had been “for breaking Court orders and leaving the [Town F] area.”  She went on to say: 

    I don’t find the behaviour appropriate at all (referring to her own conduct), but I don’t know how to weigh it up with the violence.  It was a situation.

26. I infer that the mother is ambivalent about her own role in the removal of her children.  She has developed some insight into a pattern of violence, aggravated by her dependence on alcohol, but is still inclined to exonerate herself and blame others for such situations.  She was certainly inclined to be critical of the police, who she felt should have tried to assist her more and should have understood that women vacillate about leaving a domestically violent situation.  My overall impression was that the mother has made some progress in changing her life, prompted by losing care of her children.  The difficulty for the Court is whether this progress would continue in the event that the children were returned to her care.  The risk of returning the children to her care on a promise to change is an unacceptable one.

1. The mother has been particularly critical of T’s father, who she describes as not only violent and abusive, but vindictive.  There is evidence which supports her assertions.  In August 2007 when she was pregnant with T, the mother presented at a hospital with injuries to her face, in particular her nose, and she reported to police that she had been punched repeatedly around the head by her boyfriend (T’s father)[7].   In her affidavit she sets out a series of events involving damage to her motor vehicle by paint and break fluid, an injury to C’s dog, break-ins at the house[8].  It also seems likely that the mother shared with C, if not with T, that Mr Callaghan was responsible for those frightening and upsetting events in the life of his family.  

   [7]   Exhibit 17, purple tag. triage notes 5/8/2007

   [8]  Affidavit of Mother filed 13/9/2011, par 35 (a) to (j)

2. The mother conceded that she had in the past failed to protect her children, but asserts that especially now living away from past scenes of violence and threats, she would be able to do so.  Her relationship with Mr CA contradicts that assertion.  In July 2010 C was left by the mother in the care of an older man described by police as “a known alcoholic” whilst she was drinking with Mr CA[9].  The mother had denied that there was a relationship continuing past her removal to Town F.  Her denial was maintained until evidence of Mr CA’s criminal record was put into evidence.

   [9]  Exhibits 8 and 26, NSW Police Records

3. In the same way when the mother was questioned about C’s personality, she was defensive.  She conceded that Ms TT in 2009 had referred to C as a closed and withdrawn child and that Dr L, two years later, referred to him as a quiet introspective child.  The proposition was put that C had learnt to be quiet and to fly under the radar.  The mother’s response was, “No not at all, he is not quiet with me.”  I accept the proposition that C has learnt not to come to attention and that being quiet and withdrawn and watchful has been a way that he has learned to protect himself from being drawn into violent incidents in the mother’s home.

4. The mother agreed that both T and C had seen violence in her home, although she had denied that proposition to Dr L.  Her response to being challenged on the difference in the statements was:  “I didn’t know they saw violence, you’ve prompted my memory.”  I do not accept this explanation.

5. I conclude that the mother is an affectionate and attentive mother while sober, but loses child focus when she is affected by alcohol, or aroused by conflict.  At those times the whereabouts and wellbeing of her children has been secondary to the need to resolve a fight, even a physical fight.  The mother conceded that exposure to Mr CA had affected T because:  “[Mr CA] would come over and I’d be in a relationship with [Mr Callaghan] and he’d do things violent to me.  It affected [T]”.

6. There is certainly a strong suggestion through the mother’s evidence that her relationships with men “overlapped” and that the jealousy and violence this provoked between the men in question was something that the children were exposed to on more than one occasion.

7. The mother expressed the view that Mr and Ms P, were “doing it for the money.”  This is a reference to the placement by the Department with Mr and Ms P.  She asserted that they were not interested in T when he was born, or when he had an accident which she had notified them about.  She felt that Mr and Ms P had destroyed her.  She resented the placement of her children with Mr and Ms P.

8. On 1 July 2011 there was an incident at a Newcastle hotel.  The mother was heavily intoxicated and refused to move out of the bar when asked to do so. She became engaged in what she described as a “scuffle” with another woman, but which was apparently a physical fight.  Security escorted her out of the premises and police were subsequently called.  In the COPS notes the mother is said to have yelled in an abusive way at the police, who escorted her home. 

9. The mother was asked whether she was aware that the police had a list of addresses frequented by her, including a list of hotels.  She said she did not believe that such a list existed.  Having been shown the list she said that she did not believe it, but conceded that it was concerning.  As to her levels of intoxication and violence on that occasion, the mother asserted that this was a result of mistakes and/or fabrications by the police.  It is of considerable concern that this incident occurred two months after the mother had made the move to Town F, allegedly in order to distance herself from violence.

10. There was a further incident on 17 September 2011.  The police report stated that the mother and a man present at her home on that occasion had “recently broken up”.  The mother denied it.  This man returned to the mother’s address on two or three occasions.  She said this: 

    We’d been spending a lot … little bit of time with him but I said to him I don’t want to get into a relationship. 

    On balance it seems likely that there was a new relationship.

Relationship between mother and C’s paternal grandmother

1. The mother was asked questions by C’s paternal grandmother which related to assistance said to have been given to the mother.  The questions revealed a pattern of hostility, conflict, revenge and abuse on an intermittent basis between the mother and C’s father and his extended family for almost all of the period since C was born.

2. What was evident was a level of hostility and mistrust between the mother and C’s paternal grandmother, which would leave the children feeling unsafe if their mother and members of C’s extended family were present together.  This is evident in the mother’s confirmation that she would rather see the children in foster care than living with either of their fathers or their families.

3. I note that neither of the mother’s parents gave evidence, although they were both interviewed by Dr L.  The maternal grandmother was present in Court throughout the hearing, but did not provide an affidavit.  The mother was unsupported by any corroborative evidence.  There was no evidence of assistance which might be available to her in the future, if the children were in her care.

Relationship between the mother and C’s father

1. When the mother was questioned by C’s father, again, what was on show was a rehearsing of past incidents of violent and abusive conduct, foul language and a desire to revisit past grievances.  This was as true of C’s father as it was of the mother.  The mother expressed the same view about the motivation of C’s father and his family as she had about Mr and Ms P, that is, they were seeking to have the children with them for the money which might be provided.

2. On the morning of the fourth day of hearing, Ms P gave evidence that during the previous evening a telephone call had been received in her home from the mother of H and E.  Ms D had been distressed.  Ms P had spoken to H who then became upset and tearful. H repeated to her grandmother what her mother had said to her, that “poppy ([Mr P]) had broken her rib and that her father had molested her.”  Ms P said she reassured the child and gave evidence that her husband and son had also spoken to Ms D and reassured her that no risk to the children had emerged.

3. At the conclusion of Ms P’s evidence I directed that the mother give evidence about her conduct on this occasion.  Orders for the protection of all of the children were then made and orders restraining the conduct of the mother in the future.  Short reasons were given.  I consider that the mother’s conduct in seeking out members of Ms D’s family, who were strangers to her, to pass on misleading information about risk to the girls having emerged from this hearing, was an exercise in mischief and a compelling confirmation that Ms Jordan would prefer to see C and T stay in care rather than be cared for by Mr and Ms P.

4. Counsel for the mother in final submissions, put that the mother had acted impulsively and had not foreseen the consequences of her actions.  That was not my impression, but even if it is so, such conduct puts the mother’s capacity as a parent in doubt.

T’s father – Mr Callaghan

1. Mr Callaghan relied upon the following affidavits:

   1.Affidavit of Mr Callaghan         filed FMC                 02/02/2010

   2.Affidavit of Mr Callaghan         filed FCoA                16/09/2011

2. T’s father is aged 35 years.  He has two daughters, H (11) and E (10) from an earlier relationship with Ms D.  There is doubt about E’s paternity cast by T’s father himself[10].  T’s father had H in his care during 2005, she having been injured by her mother’s then boyfriend and exposed to domestic violence.  Thereafter both H and E went to live with Mr and Ms P, who have to all intents and purposes, treated both of them as their grand-daughters.

   [10]  Exhibit 16 Tag 3, Interview 5/10/2005 with Mr Callaghan natural father of H

3. Until shortly before the commencement of the hearing T’s father had lived in his parent’s home.  When giving evidence, he said that he had very recently moved into a one bedroom granny flat in the back garden of a friend’s home.  He was unable to remember the house number.  He said that this would be short term accommodation if T came to live with him and that he would move to somewhere more appropriate if that happened.

4. Mr Callaghan gave inconsistent evidence which reflected a deep ambivalence about his application and himself.  My strong impression is that he quickly gave whatever answer he thought would be most helpful to him.  For instance early in his evidence, when asked why he now thought T shouldn’t live with his parents, he said: 

   All the evidence suggests it shouldn’t be me.

   When asked why, he said: 

   If [T] lived with my parents he would be back close with his two sisters (daughters of an earlier relationship).  [T] would experience a loving family life and my work wouldn’t be able to accommodate caring for [T]. 

5. Later in his evidence Mr Callaghan was quite insistent that T should live with him and he would make arrangements around his work. 

6. On many occasions Mr Callaghan gave answers which were non-responsive and evasive such as: 

   Question:There are Apprehended Violence Orders between you and your father:

   Answer:         There may have been.

   Question:       [H] witnessed your father push you down the stairs.

   Answer:         No.

   Question:       Then you damaged his car.

   Answer:         I may have done.

7. On those occasions when Mr Callaghan was confident that there would be in the police records either a COPS note or a conviction, he answered truthfully.  When he was asked a question where only he would likely be able to supply the full response, he answered evasively.  The only variation to that when there was a written record was to say. “I don’t remember”.

8. One of the most significant areas of this last type of response was in relation to an interview the father gave on 5 October 2005.  He is reported to have acknowledged to the Department that H, his older daughter born in June 2000, had been exposed to violence in his parents’ home, but this was not the father’s fault.  Mr Callaghan said his own father was at fault.  He denied reporting that he and his father had never seen eye to eye.  He then went on to say that he may have told the Department that his father had thrown him down the stairs because he was angry and frustrated at that time with his father.  That is, he told a vindictive lie.

9. After some initial denials, he then went on to agree that he had thrown a rock at his father’s car and that the reason for that had been that he was angry with his father.  He denied that he had told the Department that his father had broken one of H’s ribs.  He said he could not remember telling the Department that his father and brother had attacked him in front of his two daughters.  His three word response is critical to understanding the answers given by T’s father:  “Everyone fabricates lies.” 

   Question:        So is that what you did (fabricate lies). 

   Answer:         I think I may have, I don’t recall. 
   ([Mr Callaghan])

10. I came to the conclusion that T’s father was an unreliable witness and that any statement of his would need to be corroborated before being accepted.  His reports to the Department, particularly the raft of criticisms and the allegations of assault by his own father on H may have contributed to the removal of C and T from his parent’s care.

11. In relation to violence, the father denied that he had been abusive to the mother, denied that he had punched her, but conceded that he wasn’t perfect and he may have been a bit rough.  He had never closed a fist to her but had fended her off.  This was again evasive evidence. 

12. T’s father was taken to a statement made by Y:  “[Mr Callaghan] hit a glass up into mum’s chin and made it bleed.  I saw it”, the father admitted the incident “probably did occur, probably did happen.”  Again, when a statement of Y’s was put to T’s father that he had witnessed his mother knocked unconscious, the father agreed that such an incident had occurred, “Yes”.

13. T’s father had been opposed to H having counselling for her exposure to domestic violence in the home with her mother and himself[11].  He thought it would stir things up for her.  That is consistent with his evidence that he tries not to think about the past and puts it behind him.  This may go some way to explaining the apparent inability of T’s father to accept responsibility for his own actions.   

    [11]  Exhibit 15 – Secondary Assessment Risk of Harm for H in the care of her father Mr Callaghan.

14. T’s father said that when he was living with the mother of his two daughters H and E, they never experienced violence in his care.  However on one occasion, a bottle was smashed above the girls’ heads.  When that happened he rang his parents and the police and his parents came to get the girls.  At that point his parents agreed the girls should not live with him anymore and that it would be better for him to visit them in his parents’ home.  This evidence is entirely inconsistent with the father’s reports to the Department of his parents’ home being a violent unsafe place.

15. During the course of the evidence of T’s father, it became clear that his parents had been involved in the care of his two daughters H and E, throughout their lives.  Some of the incidents raised with him in cross-examination related to fights between himself and the girls’ mother over the children.  Certainly, as early as 3 May 2001, there were what were described as “scuffles” between the two of them.  He denied throwing a rock at her car, although conceded he might have kicked the car.  There was damage to the rear passenger door.  Apparently there were violent arguments and unedifying scenes, almost from the time H was born in 2000.  T’s father agreed in his characteristic way to the proposition that his common responses to being thwarted were aggression and anger, “I won’t say no”.

16. It is impossible to know the cause of the behaviour of T’s father, particularly his impulsive damage to property.  Intoxication has played a part in the majority of incidents.  When he was asked whether he had taken steps to get his drinking under control he replied, “Yes, I was getting some guidance but then I got work.”  It does appear to me that the father does not take seriously the riskiness of his behaviour.  There are some indications that his behaviour has moderated very recently, but the evidence suggests a pattern of conduct through most of his adult life of drinking heavily, acting impulsively and being violent and aggressive on occasions. 

17. There is nothing to indicate that he has been the direct cause of injury to any of his children.  However there is evidence that his children have been exposed to his wild behaviour and that that has been damaging for them.  T’s father has imposed a considerable burden on his parents who have made every effort to maintain their relationship with him, whilst trying to create a place of safety in their home for his three children. 

18. I found him to be dismissive and lacking insight.  When asked about a particular AVO, T’s father said this: 

    I was not the instigator.  Then I was put through the rigmarole by the police.  I keep going back to the same Judge.  I think the Judge feels sorry for me. 

    I formed the impression that Mr Callaghan actually felt sorry for himself and continues not to blame himself for the incidents which have led to his reasonably extensive criminal record.  He agreed that his conduct over the years revealed “an absolute disregard for the Court’s orders”.

Ms P – paternal grandmother of T and his half-sisters

1. Ms P relied upon the following affidavits:

   1.        Affidavit of Ms P  filed FMC     30/7/2010

   2.        Affidavit of Ms P                    filed FCoA     16/09/2011

   3.        Affidavit of Ms P  filed FCoA     08/10/2011

2. Ms P is 57 years old.  She has been married for 36 years to Mr P.  They are T’s paternal grandparents.  Ms P has four adult children, of whom T’s father is the eldest.  Ms P has been involved in T’s life since he was born. 

3. In her first affidavit Ms P points to concerns that she had about T’s health and welfare in the mother’s care.  T’s father had most recently been living with his parents since January 2010, until shortly before the hearing.  Orders were made for him to spend time with T on 25 March 2010, which required his father’s assistance in collecting and returning T to his mother.  Ms P offered assistance on a daily basis to her son in looking after T when he was a member of the household.  She noted that he had at times been hungry and “floppy and dopey” as though he had been given some sort of sedative[12].  She stated that on several occasions the mother would be sitting on the front steps of her home appearing to be intoxicated.  Ms P made many calls to the Department about T’s welfare.  Ms P willingly looked after T at any time when the mother requested help.

   [12]  Affidavit of Ms P filed 30/07/2010, par 14

4. When the mother moved to Town F in June 2010 she had not advised T’s father or any member of the extended family and accordingly he did not see his father, grandparents and sisters for about two months.  It was Ms P who travelled to Town W in August 2010 to collect both T and C to bring them back to her home in accordance with her arrangement with the Department.

5. In her affidavit filed 16 September 2011[13], she makes this observation about T:

   They were very troubled little children, especially [T] who had gone backwards in the couple of months that he had spent away from us in [Town F].  Their eating habits, sleeping habits, mood swings were evident and it took me about a few weeks to settle down their eating and sleeping habits to the normal.  [T] would not sit down and eat at the table.  He would raid the food cupboard and be wanting to eat all the time.  He had mood swings but as time marched on, he with love and understanding started to talk and come out of his shell.  He and [C] had a structured eating and sleeping lifestyle and they were eating correctly and given all the love and care to help them through this uneasy time. 

   [13]   Affidavit of Ms P filed 16/09/2011, par 6

6. I am satisfied that Ms P together with her husband and other family members made every effort to assist T and C, and that she genuinely loves both of them.  I also accept that Ms P was shocked and grief stricken when the children were removed from her care without notice on 1 August 2011 and when they were then prevented from having any contact with C at all on the basis that he was not biologically related.

7. When C and T were placed in the care of Mr and Ms P in August 2010, T was united with his two older half-sisters.

8. Ms P gave evidence about C, a child without a direct biological link to her family, other than as her grandson’s brother:

   We were prepared to do anything for them to live normal healthy and happy lives.  [T] was our grandson and [C] was his brother.  I felt the need to nurture them and get them through it.

   Question:       They had been through a tough time?

   Answer:         Yes.

   I accept that Ms P felt a commitment to C.  Ms P was asked about any difference of feeling that she had about C and T.  I accept her answer which was as follows: 

   There’s none.  I treated them equal.  He felt he was welcomed and loved.  If he walked through the door now I would go and give him a kiss and just go on as we were before.

1. Further I accept that Mr and Ms P did everything they could to promote the relationship between C and his father and with his paternal grandmother.  C had been seeing his father pursuant to a Court order, on alternate weekends from Friday until Sunday, since 2008.  I note that when the Department decided in May 2011 that contact would no longer be supervised by Mr and Ms P but by an external service[14], Mr P commented that that would be hard on C’s father.  I consider that that is a true reflection on Mr and Ms P’s feelings.  What they wanted was to create as natural experience as they could for the children, given the complexity of the relationships between them.

   [14]  Exhibit 24 – Letter from Department to all parties

2. The children were placed with Ms and Mr P one day after the relevant order was made in August 2010.  They were relied on to supervise time between their son and the children and between C’s father and C.  The Department stayed in touch and despite raising concerns about Mr Callaghan continuing to live in the house, did not remove the children until 1 August 2011.  The removal was without notice to the children or Mr and Ms P.  I consider that Mr and Ms P behaved with admirable restraint in circumstances where they must have believed that they had had the Department’s confidence for a full year before that removal.

3. From the outset the mother spent time with the children through supervision by ‘Life Without Barriers’.  Ms P was asked to supervise C’s father at all times, including phone contact at 5.00 pm each Wednesday when she and her husband were to arrange a loud speaker and they were to listen to the conversation.  There was to be face–to-face contact once a week.

4. I accept the evidences of Ms P that she or her husband were present at all times when the children were with either C’s father or T’s father.  The evidence of Ms P about how she managed to supervise two periods of time when C sat with his father in the car out the front gives an insight into her sensitivity to C’s feelings.  On the first occasion C and his father sat in the car with the doors open with C listening to a CD of country music that his father had brought for him to listen to.  On the second occasion Ms P sat in the back seat of the car while C and his father sat in the front. 

5. C’s father came to watch C and Ms P remained in the vicinity.  I consider that Ms P made a total commitment, not only to the safety of the children, but to the promotion of their relationships with their parents.  I am also satisfied that whatever steps were necessary to ensure the children’s medical and dental health were taken. 

6. There is a complaint by the Department that a medical and dental treatment assessment was not undertaken.  There is no evidence of Mr and Ms P being advised that they were obliged to have such assessments.  However I accept the evidence of Ms P that C saw the doctor when he had Impetigo and was successfully treated for a bowel problem by prescribed medication.  There is no evidence to suggest that the children are not well-fed, well-nourished, well-grown and properly developed.

7. When the children first came into the care of Mr and Ms P, T apparently was behaving very strangely indeed.  One thing that he did was to lick the floor and table legs like a dog.  Ms P described how she would distract him from that behaviour engage him with something that he enjoyed each time that it happened until that behaviour fell away.  It is hard to imagine a better approach.

8. I accept that Ms P has had the management of the household and her own children throughout the married life of Mr and Ms P and that she has been responsible for their day-to-day care to good effect.  Her view that fully involving these children in an active, ordered life at school and at sporting activities and with friends, seems entirely appropriate.  Discipline fell more to Ms P and she has mostly managed the children by talking to them.

9. Ms P has made it clear to her son Mr Callaghan that he is to make his own independent life.  I consider that if the children are in the care of Mr and Ms P, they will comply with whatever orders are made and will do their best to protect relationships between the boys and their fathers.  I also accept that they are likely to cooperate with the Department, which is a credit to them.

10. Ms P gave evidence that she had begun attending a parenting course.  She was asked why she had taken up this program.  I accept her explanation which throws some light on the impact on Mr and Ms P’s household of the removal of the children.  She said that she thought she had been handling things okay until August 2011.  Implicitly the removal of the children caused her to think that at least of the eyes of Departmental officers she had not been handling things okay.  She was trying to understand what had gone wrong.  It must have been difficult for Ms P to understand why the children were removed so abruptly without prior notice or discussion, especially as T’s sisters remained living in the household without adverse comment by the Department. 

11. Ms P tendered a document into evidence which is the Departmental guide for foster relative and kinship carers[15].  In particular she referred to the section titled ‘Ending a Placement’ which sets out the guidelines as follows:

    To help you, the child and their family through a placement change, your case worker is responsible for

    ·ensuring that everyone is told the reasons for the change in placement;

    ·clarifying their role and your role in helping the child with the transition;

    ·involving you the child and their family in planning and decision making processes that involve them, wherever possible and appropriate;

    ·deciding when and how the child will leave the placement.

    These guidelines were not followed.

    [15]  Exhibit ‘33’

12. Ms P has clearly been reflecting on what happened and trying to understand what she could have done differently.  This is greatly to her credit.

Relationship between Ms P and the mother

1. Ms P was extensively cross-examined on behalf of the mother about the relationship between Mr Callaghan and his parents.  She was criticised for taking out an AVO against her son.  I was impressed by this response from

   
   

   Ms P: 

   I did it to prove to [Mr Callaghan] that if you want to come around and cause trouble for your father that will happen.

2. It is certainly difficult to imagine what else could have been done with an adult son misbehaving with the need to protect his own children from him.  I find that Mr and Ms P took the appropriate course by reporting the matter to the police and obtaining appropriate orders.  It certainly would not have been appropriate for physical restraint of the father, or some other direct action to have been taken.

3. In particular in September 2005, when Mr Callaghan came to the family home demanding the return of money he had left with his father, Mr P ushered him out of the house.  Mr Callaghan then damaged property in anger.  Between them Mr and Ms P protected H from exposure to this incident and Mr P contacted the police.

4. Ms P works two mornings a week in Newcastle from 5.00 am until 8.00 am on Wednesdays and Thursdays.  Together with her husband she goes to the local sport club, which is very much the focus of their family life.  She works four to five days per week to a total of 20 hours.  While she is working at the club, Mr P is doing voluntary work for the club.  At weekends the whole family, including all of the children, are usually present at the sport club.

5. A statement of C’s was repeated to Ms P that when she and her husband were away Mr Callaghan looked after them.  She rejected the proposition that C might tell lies.  She said he would not.  She said it was likely that C assumed that if she wasn’t there, Mr P was also not there and that only Mr Callaghan was present in the house.  I accept that explanation because I accept the evidence of Ms P that there was never a time when either she or her husband were not present with the children after they were placed into their care.

6. Ms P was also extensively cross-examined in the context of her parenting skills about the conduct of her son Mr Callaghan.  There is abundant evidence that Mr Callaghan has abused alcohol, been impulsively aggressive, damaged property and assaulted others.  However, I do not accept that this is a basis for finding that his parents lacked capacity as parents.  There is no suggestion that the other three adult children in their family have come to attention, but of much greater significance is that Mr and Ms P were assessed to be appropriate carers for the children on a preliminary basis after the interim parental responsibility order was made in August 2010.  They were strongly supported by the Kinship Care assessment which was undertaken by Ms M on behalf of the Department in a report dated 16 September 2010.  Ms M is a well-qualified Social Worker.

7. In her final evaluation in the context of a recommendation that Mr and Ms P care for T and C, Ms M said this[16]:

   [16]  Exhibit ‘35’ – Evaluation at page 8 of 11 of Assessment

   [Mr and Ms P] present as a committed couple who are genuinely concerned for the welfare of their grandchildren and [C].  They have demonstrated their commitment to their granddaughters [H] and [E], having cared for them every weekend since their birth and on a fulltime basis for the past two years without any case work services or financial services from Community Services.  The girls have become involved in social and sporting activities and according to [Mr and Ms P] have developed into confident and capable young people.  [Mr and Ms P] recognise that whilst [C] not biologically related to them, he has a significant connection as half brother to [T] and they therefore accept him as part of their family. 

   [Mr and Ms P] have demonstrated their capacity to care appropriately for children and to involve them in a healthy lifestyle.  They are conscious of the need to maintain [C’s] social connections by keeping him at the same school despite the inconvenience to themselves, and have actively worked to maintain [C’s] relationship with his father, inviting him to their family Father’s Day barbeque.

   [Mr and Ms P] are open to working collaboratively with Community Services and believe that their support in managing access for the boys and their mother is advisable.  They are open to a Shared Parental Responsibility Order, and are happy to work towards the restoration of either or both of the boys to their parents if this is seen to be in their best interests.

   While [Ms P] is fit and active and quite capable of caring for these active young boys, [Mr P] health is not as robust.  He experiences significant pain from time to time and is sometimes limited to his physical activities.  I believe however that [Ms P] is more than capable of caring for the boys, and that [Mr P’s] role is often one of support for

   
   

   [Ms P], or to engage the boys in less active pursuits while still interacting with them.  He presents as a firm and stable male role model.

   The placement of [T] and [C] with [Mr and Ms P] also facilitates regular contact with [Mr Callaghan], and with their extended family.  In the event of [Mr and Ms P] being unable to continue to care for the boys, [Mr and Ms P’s] adult children would be available to care for them.

   I believe this placement would be beneficial to [T] and [C] in terms of stability and identity. 

8. This assessment accords with my own view and assessment of Ms P and Mr P.  It takes into account the presence and significance of H and E.  There is even further significance in the fact that E may or may not be the biological child of Mr Callaghan.  They have treated her as their grand-daughter and drawn no distinctions.  There is a direct parallel with C’s situation in relation to T.

Mr P – paternal grandfather of T

1. Mr P relied on the following documents:

   1.        Affidavit of Mr P  filed FCoA     16/09/2011

   2.Undertaking given by Mr P             filed FMC     10/02/2010

   
   
   

2. Mr P is aged 61 years.  He has been married to T’s grandmother for 36 years.  I accept what Mr P asserts in his affidavit as follows:

   I have loved all my children and grandchildren and if anyone who knows me could tell you the compassion and care, including [C] who was made part of our family for 12 months.

3. The evidence suggests that Mr P was pushed to the limit emotionally and physically by his son Mr Callaghan in his teen years.  He has continued to assist him. Mr Callaghan’s two daughters live with the family.  He willingly accepted T and C into the household as well.  To my observation, Mr P was a strong person, capable of being forceful and authoritative, but not aggressive.  The kindergarten teacher where T attended when he lived with Mr and Ms P said this[17]:

   [T’s] grandparents [Mr and Ms P] convey a warm nurturing attitude towards [T] and his time in our care.  This has been observed frequently through their conversations with [T] about his day and their mannerisms at arrival and departure times.  [Mr and Ms P] have always ensured [T] felt safe and secure within his environment before they departed the Centre.  At pick-up times [T] is always happy to greet his grandparents with a big cuddle and kiss before showing them what activity he had previously been engaged in.  [Mr and Ms P] seem quite happy to follow [T’s] lead and eager to see what he had been doing.

   Those remarks were written approximately 10 months after T and C came into Mr and Ms P’s full-time care. 

   [17]  Affidavit of Mr P filed 16/09/2011, Annexure ‘A’

4. I accept that Mr P found it inexplicable that the boys were unilaterally removed[18]:

   I cannot for the life of me understand why [T] and [C] were taken from our care seeing their growth and the progress made in their health and happy lives they were leading.  They were taken to learn to swim, something that they had never done.  [C] was enrolled in [junior sport club] and loved and made many friends.  He played [football] this year and after starting off shy and uneasy, he became one of the very best players and his coach was so proud of his progress.  He was upset that DoCS did not allow him to play in the end of year [football] gala,even though he rang and spoke to DoCS.

   I consider that Mr P would be a strong loving fatherly presence in the lives of both boys.

   [18]  Affidavit Mr P filed 16/09/2011, par 7

5. Mr P is a retired government official.  He retired about 24 years ago.  He suffered from depression about 25 years ago and one year later he retired.  He is presently well other than suffering from reactive arthritis which causes swelling of his joints and pain.  He also suffers from claustrophobia.  He left the government employment as medically unfit after work-induced stress.  Mr P was unable to come into the Family Court building to give evidence, which related to his inability to easily travel in lifts and to be in confined spaces.  He provided relevant medical evidence.  He is somewhat claustrophobic, after years working in confined spaces.  The Court itself was a problem for him.  Arrangements were made for him to give evidence by video link from a neighbouring building. 

6. Despite the arthritis, Mr P leads a fairly active life.  He has taken C to school and T to pre-school, taken C to football and swimming and he engages as a volunteer at the local sport club seven days a week for up to

   
   

   20 hours a week.  I accept that he is actively engaged in the household and probably has been throughout the couple’s married life.  He makes breakfast, tea at nights, takes children to swimming and football training.  He is in charge of the children on Wednesday and Thursday mornings when Ms P works from 5.00 am to 8.00 am.  On Sunday he tends to work at the club all day.  He has managed his claustrophobia by not putting himself in situations where it will be a problem.  When asked whether he had sought counselling, he said, “No, through the love of my wife and family has bought my stress under control”.

7. There have been problems in the relationship between Mr P and his son.  By the time Mr Callaghan left home at 18 he and his father were clashing.  It is quite obvious that Mr P enforced house rules, so that when his son began taking drugs and drinking and as he said, hanging around with the wrong people, Mr P took a stand which his son did not appreciate. 

8. The incident in March 2002 when Mr Callaghan came to his parents’ house intoxicated and then damaged a motor vehicle by throwing rocks at it was a low point in their relationship.  I had the impression that Mr and Ms P never gave up on their son, but nor would they tolerate his violent, immature, aggressive and unhelpful behaviour.  They began to care for his two daughters H and E on a part-time basis from the time they were born, H in 2000 and E in 2001.  They protected H and E from their son’s misconduct.

9. Mr P was asked about the AVO he had taken out against his son.  He said he had feared an altercation that might affect the whole family so he had taken an order out.  He said this about his son:  “I love him dearly, I disagree with his lifestyle, I don’t agree with him taking drugs.”  This attitude is hard to criticise.  He said that when his children were young, up to about age eight, he had smacked them occasionally, although he had mostly left discipline to his wife.  He said he did not physically discipline, he did not believe in physical discipline in young people 12 years and up.   He denied any domestic violence directed at his son or his wife.  I accept those denials.

10. Mr and Ms P have had their granddaughters H and E in their care for four years and apparently for one other year at some stage before then.  However, they had had the children almost every weekend from the time they were babies.  There are orders made in December 2006 which provide for equal shared parental responsibility between Mr Callaghan and Ms D.  The children have lived with their paternal grandparents since those orders were made and the mother makes contact from time to time. 

11. This arrangement which has apparently worked well for the girls has been unsettled to some extent by the actions of the mother as set out elsewhere in these Reasons, in going unannounced to the home of Ms D’s mother/grandmother, to give a misleading idea of evidence that had been given in these proceedings.  I am not asked to make a determination about H and E.  However I take into account their relationship with their younger brother T and his brother C.  It seems likely that they also enjoyed some level of relationship with T and C’s brother Y before he moved to Melbourne with his father in 2009.

12. Mr P was very upset when the children were removed without notice from the care of him and his wife on 1 August 2011.  This seems to me to be a reasonable reaction in the circumstances.  Every confidence had been reposed in Mr and Ms P with the only real difficulty being the fact that Mr Callaghan continued to be resident in the family home.  Supervised contact was implemented for Mr A after May 2011, but from August 2010 to May 2011, Mr and Ms P had been relied on to supervise without any written instruction or constraint at all.  They did as they were asked which was to supervise time between C and his father and between T and his father.  It was a huge undertaking and I accept that they met it.

13. Mr P was asked about his feeling for C.  It was the only time throughout his evidence when he became emotionally upset.  He said, “I care about him and love him as much as my own children.” 

14. Mr P presents a strong authoritative demeanour.  Being a government official no doubt contributed to this air of authority.  I am satisfied that this presentation conceals a genuine loving and affectionate nature and a deep commitment to his family, which includes C.  I also accept that Mr P understands the obligation not to hurt a child by making negative comments about those they love.  I consider that he has an extremely negative view of Ms Jordan which he shares not only with his wife and family, but at least on one occasion with a third party, the supervisor from Life Without Barriers for the benefit of the children.  He will need to make every effort to conceal that view from the children. 

1. In relation to the Department’s ultimate position, I am satisfied that there was a breakdown of communication within the Department, and between the Department and Mr and Ms P.  In August 2010 when the children were taken into care, the case worker and case work manager were satisfied that

   
   

   Mr and Ms P were proper carers and were in a sense dependent on them to make the arrangements for supervision with the fathers.

2. I am satisfied that by January 2011, Ms MB and Ms FN both considered that an error of judgment had been made and that the children should not have been placed in the household of Mr and Ms P with Mr Calaghan as a resident.  There is some basis for their fears in that regard.  Current thinking certainly suggests that children should not be in a household with a person who has been the perpetrator of domestic violence.  However, the significance of that view was not communicated to Mr and Ms P.  I accept Ms MB felt she had communicated it, but as was properly conceded by her, it is clear that that view was not communicated.  Further, there is nothing to suggest that the risk was realised.  The boys did well in the care of Mr and Ms P. 

3. A resolve formed in the Department about the need to remove the children with no particular focus on how the children were in fact doing in the household.  There were only two interviews conducted by the Department with Mr and Ms P, one with Mr Callaghan and not much in the way of regular visits by the Department.  Ms FN had not met Mr and Ms P until the day of the children’s removal. 

4. I reject the submission that Mr and Ms P lack insight.  They may lack information on the impact on children of exposure to the perpetrators of domestic violence.  They may lack specific information about how children who have experienced such exposure can be assisted as they grow up and reach developmental stages which see their behaviour change.  However I also consider that they do not lack willingness to learn and to work with the Department, most particularly Ms P I find has that capacity.

5. There is no evidence of the children being frightened or wary of T’s father or Mr and Ms P.  I do not consider that Mr and Ms P have spoken to the children or behaved in their presence in a way which would suggest dislike or disrespect for the children’s mother.  I consider there is considerable benefit for the children in a placement within the family and that with the removal of T’s father from the household and supervision by the Department of the parent’s time, the orderly running of the household in a loving family context will be the appropriate environment for C and T to grow up in.

6. Ms P and Mr P are loving, hard working, capable people.  They have the capacity to meet the children’s needs, especially their need for respectful support for their relationship with parents.  Ms and Mr P have provided opportunity for sport (junior sport club, football, swimming), education and friendship in an appropriate way.  They have established rules and routines gently and altered poor behaviour kindly.

7. They boys are eight and four.  C may need professional assistance to express his emotions and fears.  Both of them have been hurt and exposed to danger through neglect and lack of parental focus. 

8. The children’s parents have been inconsistent in demonstrating responsibility as parents.  Drugs and alcohol have distracted all of them from the task at different times.  Each of them is working to reduce or eliminate dependence on drugs and alcohol.

9. There have been many family violence orders.  No parent has been deliberately violent to either of the children.

I certify that the preceding three hundred and thirty-two (332) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 21 March 2012.

Associate: 

Date:  21 March 2012