Layne and Headman

[2019] FamCA 853

FAMILY COURT OF AUSTRALIA

LAYNE & HEADMAN [2019] FamCA 853

FAMILY LAW – CHILDREN – Interim orders made inviting the Department of Child Safety, Youth & Women to intervene and Independent Children’s Lawyer to seek funding for a psychiatric assessment of the mother.

Family Law Act 1975 (Cth)

APPLICANT: Mr Layne

RESPONDENT: Ms Headman

FILE NUMBER: BRC 9787 of 2015

DATE DELIVERED: 31 October 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 31 October 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Steadfast Solicitors

SOLICITOR FOR THE RESPONDENT: Hodgson Lawyers

INDEPENDENT CHILDREN’S LAWYER: Mr J Blayney
Legal Aid Queensland

Orders

1. That pursuant to s.91B of the Family Law Act 1975, the Court requests the intervention of the Director-General of the Department of Child Safety, Youth and Women in the proceedings relating to the child, X born in 2012 (“the child”).

2. That the Registrar advise the said Director-General forthwith of this request.

3. That the said Director-General have liberty, upon application to the Registrar, to search and take copies of the documents on the Court file in relation to these proceedings.

4. That if the parents are unable to arrange and agree on interim time between the child and the mother within seven (7) days, then an Application for interim Orders filed by the mother and supported by Affidavit, if filed and served by 13 November 2019, shall be listed at 9.30am on 27 November 2019.

5. That if an Application is filed by the mother pursuant to Order 4 herein, the father is to file and serve a Response supported by an Affidavit by 20 November 2019.

6. That consistent with the Reasons delivered today, the Independent Children’s Lawyer is invited to seek funding for an independent psychiatric examination and assessment of the mother in these proceedings.

7. That these proceedings be adjourned for Case Management Hearing at 9.30am on 27 November 2019 in the Family Court of Australia at Brisbane.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Layne & Headman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9787 of 2015

Mr Layne

Applicant

And

Ms Headman

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

Introduction

1. Whilst the two cases which the parties seek to be heard together, essentially, only involve the dispute between the mother Ms Headman and the father Mr Reagon in respect of the child U born in 2009, and in respect of the mother and the father Mr Layne in respect of the child X born in 2012, as the discussion that took place before me today reflects, these two children, both of whom live with their biological fathers at this stage under Orders made by this Court or the Federal Circuit Court of Australia, are part of a sibship group of six children.  The other children in this case are W, who is now aged 13, X, who is aged three, Y, who is soon to turn two, and Z, who I was informed today, was born in 2019.  In effect, F, X and Y are in the care of the Department of Child Safety, Youth & Women (“the Department”) under Children’s Court Orders which seem likely to expire, unless extended, as also seems likely, until February 2020.  The child Z, born in 2019, the youngest of the sibship group of six children, by, it seems, five different fathers, was taken into the care of the Department on or about the time of the child’s birth.

2. I am told today by Mr Morrison, who has only just received Legal Aid to appear on behalf of the mother within the last week, that his understanding from the mother is that X, Y and Z will be placed by the Department, if not already there, in the care of the maternal grandparents, Mr A and Ms B Headman , who live at D Town.  As a result of those care arrangements, the mother spends regular time with X, Y and now Z in or around the home of her parents generally for Tuesday, Wednesday and Thursday.  The oldest child, W, who is in the care of a non-parent, having earlier been in the care of his biological father, under final Orders made by a Court going back many years, sees his mother on an unsupervised day basis each Saturday and Monday for approximately two hours.

3. Despite the highly dysfunctional and troubling history of these cases and others which have engaged the Family Courts since almost the children’s birth – noting for example that W first came to the attention of the Department in 2010, when he was about four years of age – and since then at different stages, it seems, all of the six children have been the subject of child welfare orders.  The only expert evidence that is now before the Court are family reports prepared by Family Consultant/Social Worker Mr C back in 2017.  In my view, it is premature at this stage to seek a further report.  I note Mr Morrison’s instructions on behalf of the mother that she objects to Mr C doing any updated report, but that is a matter for another day.

4. This matter has many difficulties. I have today made an order which, surprisingly, has not been made earlier by any other judicial officer, it seems, that the Department be given an invitation to intervene under section 91B of the Family Law Act 1975.  I do not necessarily require the Department to be a party, but I clearly need some evidence from the Department of a reliable nature as to their intentions.  For example:

   a)what is their intention when the current child welfare orders in relation to W, X, Y and, probably, Z expire in or about February 2020; and

   b)what is the Department’s position which, I am told, is shaped by criminal proceedings against Mr W, the father of X and Y, as a result of those proceedings.

   In that regard I was, at an earlier stage in another Court, as I recall it, required to deal with Mr F in a dispute with a mother of another child of that relationship with that mother at that stage raising concerns about Mr F associated with allegations made – of serious infant abuse of X in February 2017.

5. It is clear on the evidence that X suffered as a baby extremely serious physical injuries which were, as I recall it, opined by the Paediatrician at the G Hospital, to be consistent with significant physical abuse.  At least at one stage it was suggested, that the mother in this case, who was in a relationship with Mr F at the time, was either a party to or minimised the alleged actions of Mr F in relation to X.

6. I am now told that late last year Mr F has been charged with serious offences relating to X’s injuries.  I am told that the mother has not been so charged.  I can recall when I dealt with this matter in, I think, around about June last year being absolutely gobsmacked that, on the evidence that I saw from the Paediatrician about X’s injuries in February 2017, no prosecutorial action had been taken against somebody.  Nonetheless those matters are working through the Court.  I am told that the mother – from the solicitor for the mother today - that the charges are to be dealt with early in 2020.  I am unable to know at this stage whether that is by way of committal or on indictment to either the District Court – I assume – perhaps even the Supreme Court, considering the extent of the injuries to X at the time.  I have asked the Independent Children’s Lawyer to make further inquiries in respect of that issue.

7. Considering the number of children in care, there is one thread that runs through these cases before me, and that is the biological mother.  I have made it clear today that on one reading of this history this mother, who began her journey as a parent when she seems to have been barely 20 years of age, has had a nightmare of a life.  She would allege that almost every domestic partner she has had has been physically violent towards her.  She makes serious allegations against the fathers in the cases which I now have in my docket, which, I acknowledge, they deny and which has not been tested fully yet, but nonetheless on an interim basis has not prevented other Courts, or other judicial officers placing the children U and X, in their primary care.

8. There does not seem to be any evidence currently before the Court that the Department is concerned with the arrangements for U and X at this stage.  They are the only two children of the sibship of six who are not under care orders.  I floated the issue today that in the history of these matters, which have had more than one application before either this court or the Federal Circuit Court of Australia, there seems to be no independent assessment of the mother’s functioning.  I raised this with the solicitor for the mother.  The mother’s response was that, if she needs to be psychiatrically assessed, then the fathers do.  This is not a tit-for-tat case.  I do not see at this stage on the current evidence the foundation for requiring Legal Aid Queensland, at the public expense, to have the fathers examined.  I do not know whether the mother’s conduct in the past is a reliable predictor of the future.  At the very least it may show an inability to select wisely a partner with whom she has a child.

9. As I understand it, X was the result of a short – if that – relationship with Mr Layne.  The youngest child Z’s biological father, according to what Mr Morrison has been instructed to tell me, is unknown.  The mother’s capacity to live a settled, consistent and stable life into the future is critical to the Court’s assessment of what is in the best interests of at least the children who I am currently dealing with.  It is too easy, as seems to have been this case in some ways, to merely allow the parties to make serious allegations against the other on the basis of a very colourful and disappointing (in many ways) history, and contend that past behaviour is an appropriate predictor of future behaviour of the mother.  I am not, on the evidence before me now, prepared to do so in respect of this mother at this time.  However, I do need to have a better assessment of her life history and the prospect that that life history could reflect in her adult choices in the future which could affect her capacity for either unsupervised time or, as she desires, returning to the primary carer of the children before me.  I do accept that there is a cost involved.  At this stage, of the four parties before me, only one is privately funding their litigation, which means that Legal Aid Queensland for a four to five‑day trial, as was suggested before a Registrar recently when the matter was listed to the trial pool, are looking at a combined bill of probably not much less than a further $80,000 to $100,000 from what has already been spent.  I do not say that merely the psychiatric assessment of the mother would necessarily avoid those costs.  However, it will allow the Court to perhaps deal with some of the risk issues, which have taken up so much time in the preparatory matters of this case but cannot be tested except at a trial.

10. I accept that in making a direction to the Independent Children’s Lawyer to seek funding, that this is an unusual direction for me to make.  I do so because I am acutely aware of the limitations to Legal Aid funding in this state and other states, and that the cost of independent psychiatric assessment is not cheap.  I do so knowing that where Legal Aid funds a psychiatric assessment, it removes funding from other deserving people who may qualify for Legal Aid in this State.  I do so in the circumstances where currently advised on the material – which is voluminous, as one might imagine – there is no evidence that the mother has been previously diagnosed with a psychiatric condition or has been hospitalised voluntarily or involuntarily for a psychiatric disorder.

11. However, in my view, on the assessment of the evidence, I cannot easily discount the mother’s past history may not be the subject of some personality disorder or irregularity.  My view about that matter at least was cogitating with me last night when I tried to work through some of the material, but has only, in my view, been further exacerbated by the revelation today that the mother has had a sixth child to an apparently unknown father as recently as four months ago.

12. For these reasons, I think this is a critical case for the mother to be assessed by an independent psychiatrist, fully briefed as to the challenges, of which there have been many, and the issues that she has had to deal with, both as a young mother and, now, as an older mother. This is not about tagging her. This is about assessing her as a potential risk to the children which is, of course, the case of both the fathers in this case, and, it seems at times, the Department within the requirement to give that matter some significant weight under s 60CC(2)(b) of the Family Law Act 1975.

13. I publish these Reasons to support Mr Blayney’s, I am sure, vigorous attempts to have the mother the subject of a Legal Aid funded independent psychiatric assessment.  Before I finish these Reasons, I identify today a significant concern to the Court that as a result of a number of factors, many of which I cannot determine today, U, who is now aged 10, and X, who is soon to turn seven, whilst spending supervised time with their mother at a contact centre in City H up until October or December 2018, have not spent any time, supervised or otherwise, of a meaningful nature since then.

14. Having just become aware of the matter today, noting that there have been no applications brought to the Court;  there is no evidence before the Court of this effect (including the birth of Z, I should mention), I have listed this matter for further Case Management Hearing and interim determination before me on 27 November 2019.  I do so because I have a significant disquiet as to how the rights of these two children could have been left unattended in the process for nearly 12 months now.

15. I could not comfortably allow the year to finish without me trying to do something, if the parents cannot, to ensure that U and X start again spending at least some supervised time with the mother, including around the Christmas period.  I have given the parties, by the directions I make today, seven days to try and organise something.  I expect attention to be given to that.  If the parties cannot do so, the mother has leave to bring the Application in a Case, and it will be listed for 27 November 2019, and I have made directions in respect of that.  I will do whatever I can if the parents do not, to ensure that U and X have safe and regular time with their mother, likely to be supervised in some form.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 31 October 2019.

Associate: 

Date:  20 November 2019