Linnane & Linnane
[2022] FedCFamC1F 461
Federal Circuit and Family Court of Australia
(DIVISION 1)
Linnane & Linnane [2022] FedCFamC1F 461
File number(s): PAC 5021 of 2020 Judgment of: HANNAM J Date of judgment: 1 July 2022 Catchwords: FAMILY LAW –PARENTING – Interim parenting – Where there is one child of the proceedings – Where the contest for parenting orders is between the maternal aunt and the interveners – Where the interveners are the adoptive parents of four of the child’s siblings – Where the mother and father are not participating –Where the mother and father have significant substance abuse and family violence issues – Where the child has been in the care of the maternal aunt since birth – Where there is a risk of harm in the maternal aunt’s home due to exposure to family violence – Where family violence is said to be perpetrated by a foster child in the maternal aunt’s care – Where there is risk of neglect in the maternal aunt’s care – Where the court child expert recommends an immediate change in residence – Where orders made that the child live with the interveners and that they hold parental responsibility Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65D Cases cited: Deiter & Deiter [2011] FamCAFC 82
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) 41 Fam LR 483; [2009] FamCAFC 92
Division: Division 1 First Instance Number of paragraphs: 176 Date of hearing: 10 June 2022 Place: Parramatta Solicitor for the Applicant: Aboriginal Legal Service Solicitor for the First Respondent: Litigant in person (did not participate) Solicitor for the Second Respondent: Litigant in person (did not participate) Solicitor for the Interveners: Care Legal Solicitor for the Independent Children's Lawyer: Mark MacDiarmid Family Law Specialist ORDERS
PAC 5021 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS B LINNANE
Applicant
AND: MS C LINNANE
First Respondent
MR WITOSKI
Second Respondent
MR WHYMAN
First Intervener
MS WHYMAN
Second Intervener
INDEPENDENT CHILDREN'S LAWYER
order made by:
HANNAM J
DATE OF ORDER:
10 June 2022
THE COURT ORDERS THAT PENDING FURTHER ORDER:
Prior inconsistent Orders
1.To the extent that any prior Order of the Court in this matter is inconsistent with the Orders below, these Orders shall prevail.
Discharge of the Orders of 19 August 2021
2.Orders 3 to 12 inclusive of the Orders of 19 August 2021 are discharged.
Sole Parental responsibility
3.The Interveners shall have sole parental responsibility for the child X born in 2020 (‘the child’), and:
3.1the Interveners shall keep the Applicant maternal aunt advised via email of the child’s progress including but not limited to matters of the child’s well being, health, education or extra curricular activities;
3.2The Applicant shall be entitled to communicate via email with the Interveners any concerns or any suggestions she wishes to make for the progress and well being of the child; and
3.3the Interveners shall give due regard to such matters as are raised by the Applicant but, in the event that no agreement is reached, then the Interveners shall be the people to make the final determination or decision.
Live with
4.The child shall live with the Interveners.
Spend time with
5.The child shall spend time with the 1st and 2nd Respondent as follows:
5.1On one occasion every three months for a period of three (3) hours from 10:30am to 1:30pm on a Sunday at Park E, Town M, supervised by the Interveners with such time to coincide with the visits provided for in the Adoption Plans for the child’s siblings, F, G, H and J.
5.2The 1st and 2nd Respondents are to confirm that they will exercise the time provided for in the previous sub-Order 48 hours beforehand via text message sent to the Interveners, and if no confirmation is received, then such time will not proceed. If either of the 1st and 2nd Respondent do not attend, the time may nevertheless still proceed if the other confirms attendance.
5.3If the 1st and 2nd Respondents appear substance affected, or engage in any violent or threatening conduct, the child’s time with them will immediately be terminated by the Interveners.
6.The child shall spend time with the Applicant as follows:
6.1On one occasion unsupervised each alternate Sunday for a period of three (3) hours from 11:00am until 2:00pm or such other day as is agreed by the Interveners and the Applicant and failing agreement as nominated by the Interveners having regard to the Applicant’s availability.
6.2Changeovers shall occur at City K train station.
6.3The Applicant is to confirm she will be spending time with the child 48 hours in advance of such time occurring via text message sent to the Interveners, and if no confirmation is received, then such time will not proceed.
6.41st and 2nd Respondents are not to spend time with the child, and are not to be present or within the vicinity, during the time provided for in this Order.
6.5The parties are to do all things to ensure that L does not spend time with the child, and is not to be present or within the vicinity, during the time provided for in this Order.
6.6Via Video/Facebook Messenger call once each week at 6pm on Wednesday, facilitated by the Interveners, or as agreed between the Interveners and the Applicant. L is permitted to participate in such Video/Facebook Messenger calls, provided that should L present as violent, aggressive or substance affected, then the call is to be terminated by the Interveners immediately.
Changeovers
7.The parties shall ensure that during all changeovers:
7.1Each party will behave in a civil and courteous manner to the other parties and any other person who may be present;
7.2Each party will conduct themselves in a child focussed manner;
7.3Each party will limit their conversation to matters that specifically pertain to immediate matters of the child passing from one party’s care to the other;
7.4The parties will not discuss issues of any controversy between them.
General orders
8.All parties shall keep the others advised at all times of their email address and contact telephone number and shall advise the other party within 48 hours of any change to either their residential address or telephone number.
Restraints
9.Without admissions, when the child is in their respective care, each party is restrained from:
9.1Consuming alcohol in quantities that would lead to them having a blood alcohol level exceeding the then current lawful limit from time to time for drivers holding Class C drivers licenses in the State of NSW when the child is in their respective care and for a period of 24 hours prior to such time taking place;
9.2Smoking cigarettes inside any home or enclosed space in which the child is present;
9.3Consuming any prescription medication other than as prescribed;
9.4Consuming any illicit substance;
9.5Physically disciplining the child;
9.6Denigrating any other party, another party’s extended family, or a person with whom another party has a relationship in the presence or hearing of the child, or permitting the child to remain in the presence or hearing of any other person denigrating another party, another party’s extended family, or person with whom another party is in a relationship with, with the party’s knowledge or in their presence.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Linnane & Linnane has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HANNAM J:
On 10 June 2022 I made orders for a change in the interim parenting arrangements for a little boy aged almost two (“the child”). I indicated that I would publish my Reasons in due course. These are those reasons.
Parenting proceedings for the child were commenced in September 2020 by way of an Application for Consent Orders filed by a maternal aunt, naming the mother and the father of the child (“the parents”) as first and second respondents respectively. In early 2021 the application was listed before me as a registrar declined to make the consent orders sought based on the limited information available. I also declined to make the orders sought on that basis but the parties wanted to press for parenting orders for the child.
Soon after the initial court event before me, the adoptive parents of four of the child’s biological siblings (“the child’s siblings”) made application to be added as parties to the proceedings and at the following court event on 18 January 2021 they were added as interveners to the proceedings.
At that last-mentioned court event I indicated to the parties that the proceedings raised complex issues of child welfare and required an assessment of risk in relation to all parties and on that basis I declined to make the orders sought by consent. The mother, who was legally represented on that date, then sought that the Application for Consent Orders be treated as an Initiating Application. This course was not opposed by the parties and the dispute has proceeded on this basis since this time. Various orders have been made in relation to the relevant applicable Rules to support this process.
The child’s parents have participated in a number court events, at all times supporting the orders sought by the maternal aunt, but neither parent has participated for some time. Consequently, the contest for proper parenting orders in respect of the child is now between the maternal aunt and the interveners. This dispute is now listed for final hearing in September 2022.
The proceedings came before me on 10 June 2022 for interim hearing following an Application being filed by the interveners. In that application the interveners sought orders that they hold parental responsibility for the child, that the child live with them and spend time with the parents on one occasion every three months and with the maternal aunt for a period of three hours each alternate weekend. They also sought various restraints including a restraint on the maternal aunt bringing the child into contact with another child who lives with her.
The application for a change in the interim arrangements was opposed by the maternal aunt who sought that the intervener’s application be dismissed, and that the current interim arrangements continue. The parents did not participate in the interim hearing.
At interim hearing, the independent children’s lawyer (“ICL”) supported the intervener’s position and sought orders in the same terms as well as some additional orders requiring the interveners to keep the maternal aunt advised of the child’s progress and providing that the maternal aunt be entitled to communicate with the interveners regarding any concerns or suggestions she wishes to make for the progress and wellbeing of the child. The ICL tendered a Minute of Proposed Order setting out the orders he sought which was adopted then by the interveners.
Following the interim hearing orders were made as sought by the ICL and adopted by the interveners, as for the following reasons it was found that these orders were both proper and in the best interest of the child.
Background
The parents in these proceedings who are both 45, live in a regional town and have a number of children between them including four children together. Limited information is provided by the participating parties (“the maternal aunt” and “the interveners”) in respect of the parents and their relationship, however it is not disputed that there are significant risk issues relating to the parents due to family violence and drug use and consequently they do not have care of any of their children.
The maternal aunt, who is 60, lives in the same regional town as the parents with a child who was placed in her care by the Department of Communities and Justice (“DCJ”) in 2008 and who is now aged 14 (“the maternal aunt’s foster grandchild”). He is the grandchild of the maternal aunt’s former de facto partner from whom the maternal aunt separated due to family violence. The maternal aunt, who is not currently partnered, has three adult children from a previous relationship.
The interveners who are 56 and 58 respectively, married in 2010 and have four adult children from prior relationships between them. In early 2017, four of the child’s siblings were removed from the parents by DCJ and placed into the care of the interveners. The child’s siblings were aged between one and eight at that time. In early 2020 adoption orders were made by the Supreme Court of NSW granting sole parental responsibility for each of the child’s siblings to the interveners.
The child was born in 2020 and was discharged from hospital into the maternal aunt’s care and has remained in her care since this time.
In mid-2020 the maternal aunt facilitated the child’s siblings and the interveners spending time with the child at her home on one occasion.
An Application for Consent Orders was filed by the maternal aunt on 22 September 2022 seeking that she hold sole parental responsibility for the child and that the child live with her. Orders were also sought that the child spend time with each parent as agreed between the maternal aunt and that parent and that such time be supervised by the maternal aunt or take place at a contact centre, as well as an order that the maternal aunt keep the parents informed of the child’s health and any health issues.
On 14 October 2020 a registrar declined to make the orders sought and listed the proceedings before me for judicial case management.
At the first court event before me on 16 November 2020, an order was made pending further order that the child live with the maternal aunt. Orders were also made for DCJ to provide to the Court a Personal History Summary relating to the child and that the parties attend upon a Family Consultant for the purposes of the Child Responsive Program.
Following the first court event, an Application in a Case was filed by the interveners on 23 December 2021 seeking to be joined to the proceedings and seeking interim orders that they hold parental responsibility for the child and that the child live with them. In the alternative, an order was sought on an interim basis that the child spend defined time with his siblings.
On 18 January 2021 I indicated to the parties that I was not prepared to make the orders sought in the Application for Consent Orders and the mother subsequently made application that the Application of Consent Orders be treated as an Initiating Application filed by her. That application was not opposed by any party and consequently an order was made that the mother be treated as the applicant for Final Orders, that the maternal aunt be treated as the first respondent and the father as the second respondent. The interveners were joined as interveners in the proceedings and an order was made that they also attend upon a Family Consultant for the purposes of the Child Responsive Program.
On 5 February 2021 orders were made for the appointment of an ICL and a Family Report was ordered. The maternal aunt was also ordered to complete a parenting program for infants and with the consent of the parties, the maternal aunt was to obtain a referral to a paediatrician for the child. A range of procedural orders were also made including that within 28 days the mother file an Initiating Application and within a further 14 days the maternal aunt, father and interveners file a Response.
On 11 June 2021 the Family Report dated 9 June 2021 was released to the parties.
On 2 August 2021 the intervener’s Application in a Proceeding (for interim parenting orders) was heard by a Senior Registrar. Following that hearing an order was made that during the period in which restrictions were in place associated with the Covid-19 pandemic (“the lockdown”) the child communicate with his siblings and the interveners via video call twice per week. The child was to continue to live with the maternal aunt and spend time with the parents twice per week for a period of three hours at the maternal aunt’s home and to be supervised by her. Pursuant to those orders in the event of any conflict between the parents or in the event the maternal aunt considered the parents to be drug or alcohol affected, the maternal aunt was to end the time immediately and notify the ICL and the interveners. The maternal aunt was also restrained from bringing the child into contact with the parents other than as provided in the orders without agreement between the ICL and the interveners.
Orders made at that time provided that upon the Covid-19 restrictions being lifted the child was to spend time with the interveners and his siblings for a period of four weeks each alternate Sunday for a period of three hours with the maternal present, then for a period of eight weeks each Sunday for three hour hours without the maternal aunt present and thereafter for a period of seven hours on one defined day each weekend. Subsequently the parties reached agreement for an increase in the child’s time with the interveners and his siblings to include overnight time.
The orders made in August 2021 also restrained the parents from attending the child’s time with his siblings as well as in relation to other matters such as the consumption of drugs, alcohol, smoking, physically disciplining the child and denigrating any other party. An order was also made with the consent of the parties pursuant s 91B of the Family Law Act 1975 (Cth) (“the Act”) requesting that DCJ intervene in the proceedings. DCJ subsequently declined the invitation to intervene.
On 26 August 2021 trial directions were made to prepare the proceedings for final hearing.
On 3 October 2021 the child spent time with the interveners and his siblings pursuant to orders made in August 2021 for the first time.
The child began spending face to face time with the interveners and his siblings without the maternal aunt being present on 17 October 2021
At a compliance check in December 2021 it was noted that the trial directions had only been complied with by those actively participating in the proceedings, being the maternal aunt and interveners. On that same day the maternal aunt’s solicitor advised the intervener’s solicitor that an Apprehended Domestic Violence Order (“ADVO”) had been issued against the father for the protection of the mother though no other details concerning the ADVO were given. According to documents produced on subpoena, in mid-2021 the father was served with an ADVO for the protection of the mother which includes a non-contact condition. That ADVO is due to expire in 2023.
At a case management event in February 2022 it was ordered that an Update Family Report be prepared in relation to observations of the child with the interveners and concerning the child’s relationship with the interveners having regard to the age of the child, the time the child has spent with the interveners since the family were first interviewed and the increase in time since the Family Report was prepared. At that court event leave was granted to the parties to approach the list clerk for the allocation of a three day final hearing.
The mother, maternal aunt and interveners attended a Court based Family Dispute Resolution Conference in March at which it was noted that all parties in attendance acknowledged that substantial issues remained in dispute and that the matter requires a final hearing.
On 28 April 2020 the interveners filed an urgent Application in a Proceeding seeking that they have parental responsibility for the child and that the child live with them and spend defined time with the parents and the maternal aunt. An order was also sought that the child who lives with the maternal aunt is not to be present during the child’s time with the maternal aunt.
The intervener’s Application in a Proceeding was heard on 10 June 2022 and at a court event earlier on that same day, the Update Family Report was made available to the parties.
The Court Child Expert’s opinion
The court child expert has carried out some form of assessment in relation to the family on three occasions.
Children’s’ and Parents Issues Assessment
First, the family consultant (as she was then known and hereinafter referred to as the court child expert), prepared a Children’s and Parents Issues Assessment (“CPIA”) contained within a Memorandum to Court dated 4 February 2021 in relation to meetings she had with the parties in the course of the Child Responsive Program on 2 February 2021.
At that stage the child was living with the maternal aunt and spending frequent time with the mother and the father under the maternal aunt’s supervision as agreed between those parties. Each of the parents was at that time actively engaged in the proceedings. The child had spent time with the interveners on five occasions for several hours in the presence of the maternal aunt and often with the mother and father also present.
At that stage, the maternal aunt, the mother and the father were all seeking that the maternal aunt hold parental responsibility for the child and that the child live with her and spend time with each of his parents under the maternal aunt’s supervision at times mutually agreed between the three of them. The maternal aunt also sought orders that the interveners and the child’s siblings spend time with the child as agreed between the maternal aunt and the interveners, supervised by the maternal aunt. The interveners were then seeking orders that they share parental responsibility for the child between them, for the child to live with them and spend unsupervised time with the maternal aunt so long as the mother and father were not present. If the Court were not minded to place the child in their primary care, the interveners were seeking that the child spend alternate weekends with them.
The key issues identified by the court child expert at the time included the most appropriate arrangements for parental responsibility for the child and the most appropriate arrangements for where he was to live and spend time with other significant people including his siblings and parents. It was also identified that the interveners had raised concerns about the maternal aunt’s capacity to supervise and regulate the parent’s contact with the child in an appropriate manner and allegations about the maternal aunt’s care which related to a risk of harm posed by her to him.
Under the heading of evaluation, the court child expert provided initial expert advice to the family and to the Court about the issues and the child’s needs. The court child expert assessed on the history of DCJ involvement with the parents and their admissions about their drug use and reported allegations about their family violence, it appeared entirely appropriate that they relinquish the child’s care permanently to an appropriate carer.
The court child expert opined that if the intervener’s claims about the maternal aunt’s day to day care of the child and home environment had veracity and could not be remedied in a timely manner this would raise concern and may be justification for placing the child in the intervener’s care. She also noted however that the child was very young and had entered a critical attachment phase and thus was likely to suffer significant trauma being removed from the care of the maternal aunt. The court child expert opined that the interveners either minimised or did not appear to grasp the degree of trauma that the child may experience if this were to occur.
The court child expert opined that it therefore appeared that the central issue that requires determination by the Court is whether the care the maternal aunt provides the child is likely to be so poor that the benefit he would obtain from being removed from this (and being provided with the alleged better care from the interveners) would outweigh the trauma the child would no doubt experience. The court child expert also opined that the Court may need to determine whether the opportunity for the child to grow up with his siblings which would undoubtedly provide a better bond than merely spending time with them, should be given priority even though the child will likely experience trauma from being removed from the maternal aunt’s care.
The court child expert also strongly recommended that as this is a complex matter and particularly as the child is so young that the proceedings be expedited and that if the Court holds concerns about the maternal aunt’s care of the child in the interim she be ordered to complete a parenting program appropriate for infants and engage with a family support service. The court child expert also recommended that an expedited Family Report be ordered and that orders be made for the child to spend time with the interveners and his siblings for three hours on a weekly or fortnightly basis to allow him to become familiar with them.
Family Report – 9 June 2021
Following the recommendation of the court child expert, an urgent Family Report was ordered in February 2021. This report (“The Family Report”) dated 9 June 2021 was released to the parties a short time later on 11 June 2021.
When the families were interviewed in March 2021 the child was observed alone, with the maternal aunt and her foster grandchild (who formed part of her household) and with the interveners and the child’s siblings. The child was aged 11 months at this time. At that stage the mother, father and maternal aunt all reported that they had agreed prior to the child’s birth that the maternal aunt would formally seek to take on the child’s care after the child was born and would supervise any time between the child and his parents. The maternal aunt said she was assessed by DCJ who deemed the placement suitable under these conditions and the child was released from hospital into her primary care where he remained.
The interveners have legally adopted four of the mother’s other children now aged 12, seven, six and five (including three of her relationship with the father) after having being their carers when they were taken into care by DCJ. The interveners had learnt that the mother was pregnant with the child when they were contacted by the maternal grandmother and claimed that the maternal grandmother was of the view that they should apply for the child to live with them. The interveners reported that they had been assessed by the agency that had been responsible for placing the child’s siblings in their care as a suitable placement for the child should he come into the care of DCJ.
When she was assessed by the court child expert for the Family Report, the maternal aunt provided more information about her foster grandchild aged 12 years and nine months at that time, who lives with her. The maternal aunt has been her foster grandchild’s primary carer since the age of three months for his entire life except for a six week period when that child was approximately five to six years of age, when he was placed into foster care due to a serious domestic violence incident towards the maternal aunt from the foster grandchild’s grandfather. The maternal aunt reported that she immediately separated from the foster grandchild’s grandfather and had the foster grandchild restored to her care while the Minister for Families and Communities holds parental responsibility for him.
For the purpose of her assessment, the court child expert met with the interveners and maternal aunt and observed them interacting with relevant members of each household as outlined above. Both parents initially agreed to participate in the Family Report assessment but did not attend on the scheduled assessment date. The maternal aunt advised the court child expert that despite her best efforts to convince them to participate they declined to do so.
At the time of the assessment for the Family Report, the child continued to live with the maternal aunt and her foster grandchild. The child was having almost daily contact with his parents under the maternal aunt’s supervision at that time. The child was spending time with the interveners and his siblings for a couple of hours every few weeks by agreement with the maternal aunt and the interveners. This time occurred in a public place near the maternal aunt’s home and was supervised by the maternal aunt. The maternal aunt did not have a driver’s license and the interveners travelled the two hours distance between their home and the maternal aunt’s home for time with the child to occur.
At the time of the Family Report assessment interviews the maternal aunt’s Response had changed a little. She was still seeking to hold sole parental responsibility for the child and for the child to live with her and at interview indicated that she was seeking orders that she facilitate the child’s contact with his siblings by his siblings coming to her home for a few hours each month. She also proposed that the child spend time with his parents supervised by her as agreed between herself and the parents.
The interveners’ position had also slightly changed in that they were seeking on a final basis to share parental responsibility between them for the child and that he live with them. They were also seeking orders in these terms on an interim basis as well as orders for the child to spend time with the maternal aunt as determined by the Court one day per month. Their proposal for the child’s time with the maternal aunt on a final basis would be dependent on the maternal aunt’s willingness to be responsible for half of the travel involved. They indicated that if the arrangements for the child’s time with the maternal aunt go well, they are agreeable to the child spending two to three days at a time with her during each school holiday period.
As there is no dispute in these proceedings that the parents pose an unacceptable risk of harm to the child on various basis, do not have capacity for the child to live with them and are no longer effectively participating in these proceedings, the focus of the court child expert’s evidence summarised in these Reasons are matters that relate to the maternal aunt and interveners only.
The interveners raised concerns with the court child expert about the maternal aunt’s ability to appropriately care for the child, including her ability to manage his routine and provide appropriate socialisation, to ensure that medical and other needs are met in a timely manner, to protect the child from witnessing violence and to maintain appropriate boundaries with each of the parents about their contact with the child. They further alleged that the maternal aunt’s home is dilapidated and unfit for the child to live in. The court child expert also identified that the maternal aunt is involved with DCJ in relation to her foster grandchild who is experiencing serious behavioural issues and may be using substances. The interveners also raised concerns that the maternal aunt may be misusing prescription medication, a claim which she denied.
The maternal aunt maintained that her proposal (which is apparently agreed to by each of the parents) is in the child’s best interests because she has been his primary carer since birth and this arrangement allows him to remain living with a family member and maintain contact with his parents. The maternal aunt declared that the interveners are “nothing” to the child and that the child does not actually need to spend any time with them as he does not have a relationship with them. She said that the purpose of the child spending time with the interveners would be to facilitate him spending time with his siblings, which she is able to do herself. She said that while she had welcomed the interveners into her home to facilitate relationships between the children in each home, she has come to believe that the interveners had been “plotting” to remove the child from her care. At the time of the assessment interview, the maternal aunt’s feelings in relation to the interveners had deteriorated to such an extent that she said she was “finding it hard to even associate with them”.
The maternal aunt indicated that she felt insulted by the allegations made by the interveners that she provided substandard care to the child. She denied the intervener’s claims that she avoids leaving the house and in relation to allegations about the state of the house she said that she is a long term public housing tenant and acknowledged that although her home was ready for redecoration she maintained that it is generally kept clean.
At the time of the assessment interviews, the maternal aunt said that she had allowed liberal supervised time between the child and his parents.
The maternal aunt said her father is Aboriginal and although he is listed on the mother’s birth certificate as her father, the family is unsure of whether he actually is the mother’s biological father. The maternal aunt stated that for this reason, the child was “put down as Aboriginal on the forms” at the hospital.
The maternal aunt admitted that her foster grandchild has very poor school attendance which she considered was the school’s fault because they had not made a placement in the “special class” available to this child despite promising to do so. She also admitted that the foster grandchild is regularly socialising with an 18 year old man as well as younger children “who do stupid things”.
The maternal aunt volunteered that there had been a recent violent incident at her home in relation to her temporarily taking in the 15 year old foster child of her neighbour. The maternal aunt claimed that when she became aware that this child was a foster child and was asked to return her to her foster carer and refused, this girl became involved in a neighbourhood dispute which culminated in a group of approximately 30 people surrounding the maternal aunt’s home demanding she send the girl out to them. The maternal aunt said when she refused to do so a rock was thrown through her dining room window but claimed that the child was not at any risk of harm during this incident and that she and the mother were able to successfully talk the crowd down. The maternal aunt said that approximately three days later the same group of people gathered back around her home and wanted to “run through my house” (which the court child expert understood was an expression referring to the act of breaking and entering or home invasion). The maternal aunt also reported having had an altercation with the girl’s foster mother who entered her home uninvited “barging through the house yelling and screaming…” She reported that this person refused to leave and she was required to contact police who put in place an ADVO to protect the girl from her foster mother. The maternal aunt claimed that all of this occurred when the child was asleep in his room and denied that she was often involved in neighbourhood disputes.
The maternal aunt maintained that she did not allow conflict or violence to occur around the child though she admitted that there had been an incident when she and her foster grandchild’s grandfather were fighting but then denied that he was present or that they were fighting. She agreed that at times the mother had attended upon her home to see the children at “odd” times of the day when the father had “bashed” the mother including one occasion when the mother was brought to her home by police to protect her from the father.
The interveners maintained that their proposal is in the child’s best interests as it will allow the child to be raised with his siblings and because they can provide him with a better upbringing and environment than the maternal aunt.
In particular, the interveners expressed concern about the child growing up around “toxic relationships” including the relationships between the maternal aunt and mother and the mother and the father. They raised concerns about the maternal aunt’s capacity to maintain appropriate boundaries between herself and the parents on a permanent basis and alleged that she did not possess the skills to deescalate the mother’s and father’s aggression. The interveners claimed that the parents attend upon the maternal aunt’s home at all hours of the day and night and on occasions the child is woken because they demand to see him and that the mother has been permitted to take the child out unsupervised for short periods. They raised concerns about the maternal aunt’s unwillingness to report the parents to police if they were physically violent and concerns in relation to the child being exposed to family violence between his parents while in the maternal aunt’s care.
The interveners also raised concerns about the lack of cleanliness and poor state of repair of the maternal aunt’s home and of the maternal aunt’s parenting of her foster grandchild, in particular her capacity to assist this child with his behaviour difficulties and whether these issues will become indicative of how she parents the child. They expressed concerns about the poor role modelling the child is being exposed to by the maternal aunt’s foster grandchild’s behaviour and about various young people who have lived with the maternal aunt during the period they have had contact with her. The interveners said they had strong concerns about the maternal aunt associating with people who are involved in neighbourhood conflicts and/or who are aggressive and fear for the child’s welfare by being exposed to this.
The interveners maintained that they could provide the child with greater opportunities to build social capital because they are a family that is actively engaged in a range of pro-social interactions with the community whereas the maternal aunt is a somewhat isolated person who does not like to leave her home and often cannot get to appointments and activities without the assistance of neighbours who she then criticises behind their back.
The interveners reported that they had never had the child on their own without the maternal aunt present and acknowledged that the child did not recognise them when spending time with them as the visits were “too far apart”.
The interveners responded to the concern that had been raised by the court child expert in the CPIA about their apparent lack of understanding about attachment. They were able to explain that they had a good understanding of attachment as one of their children had been diagnosed with “reactive attachment disorder”. They were able to describe the services they had accessed and strategies they had implemented to address this including attending upon a psychologist and implementing all of the strategies advised by the psychologist with good results for that child. They said that they would be able to assist the child to transition into their care by implementing similar strategies.
Given that the interveners had not been involved in the child’s care in any way the court child expert asked them questions about their care of their other children so as to gauge information about their general parenting practices.
In the section of the Family Report headed “Evaluation” the court child expert reiterated that it did not appear to be in dispute that DCJ would have removed the child from his parents’ care and placed him into non-kinship foster care if the maternal aunt had not sought to take him into her care.
The court child expert opined that as it is not in dispute that the maternal aunt has always been the child’s primary carer and based on this history of care she is likely the child’s primary attachment figure. The court child expert also opined that the child appeared to have an established relationship with the maternal aunt’s foster grandchild and that interactions between this child and the child were generally warm. At that stage it was assessed by the court child expert that the child did not appear to have established relationships with his siblings or with the interveners. She went on to opine that “sibling relationships are some of the most important relationships and children usually benefit from having the opportunity to grow up in the same household with their siblings”. The court child expert said this is particularly the case when children have an already established relationship with their siblings or are in a non-kinship placement where they do not have the opportunity to be reared by a biological member of their family as this assists in their identity development.
The court child expert opined that the maternal aunt presented as generally desirous to continue to provide primary care to the child and that nothing arose during the course of the assessment that indicated that the maternal aunt had anything other than the child’s best interests at heart, as she understands them.
The interveners presented to the court child expert as genuinely desiring to take on the child’s full time care and that nothing in the course of the assessment raised concerns that they had anything other than the child’s best interests at heart, as they understood them.
The court child expert provided the following opinion which summarises the central issue at the heart of this dispute between the parties:
If the Court was to remove [the child] from [the maternal aunt]’s care and place him in the [interveners]’s care this would likely cause attachment disruption and trauma for the child and may negatively impact on his psychological development. [The child] would likely experience insecurity and distress in the new placement for some time. Attuned, emotionally responsive care giving by the alternative primary carers can assist in healing but may not fully ameliorate the trauma experienced. For this reason it is not recommended that the Court remove the child from the [maternal aunt]’s primary care unless the Court finds that [the maternal aunt] is failing to provide what is known as “good enough” parenting to [the child] and if this is the case that [the interveners] are able to provide good enough care to the child. It is acknowledged that this recommendation would mean that [the child] would not have the opportunity to grow up with his brothers but is considered that preserving the already established attachment relationship with [the maternal aunt] be given priority over the sibling relationship as long as [the maternal aunt’s] parenting is not undermining the child’s development.
The court child expert considered that it was not possible at that stage to determine whether the maternal aunt’s parenting is below what would be considered “good enough” parenting because of the disputed claims and counterclaims of each party about her parenting which will require determination by the Court.
The court child expert then went on to provide information about the notion of “good enough” parenting to assist the Court in determining the most appropriate parenting arrangements for the child.
In summary the court child expert opined that if the Court found there is veracity to the description given by the interveners about the state of the maternal aunt’s home this would be concerning as it is health hazard for children to reside in such a home. If the Court were to find that the maternal aunt had failed to advocate on behalf of the children in her care for repair of the more serious issues in the home because she either did not identify the matters as issues of concern or did not have the wherewithal to approach Housing NSW to have these issues remedied then this may support the interveners’ claims that the maternal aunt is not proactive in meeting the child’s needs.
There were other claims made by the interveners about which the court child expert was unable to make assessment including exposing the child to passive smoking, the maternal aunt abusing prescription medicine and the maternal aunt’s alleged failure to afford the child opportunities to socialise in the community in age-appropriate ways and provide adequate stimulation for the child. There were also concerns about the maternal aunt’s ability to implement firm boundaries and provide adequate supervision to her foster grandchild which were heightened upon the court child expert viewing records obtained under subpoena from NSW police about the maternal aunt’s foster grandchild coming to the attention of police and on one occasion attending a location to find this child so intoxicated that when he tried to walk he fell over requiring that an ambulance be called. There was also a report from the foster grandchild’s school that he had sustained a number of cigarette burns on his stomach from another young person. The court child expert assessed on the basis of information available to her that there were serious concerns about the foster grandchild’s future developmental trajectory. He presented to the court child expert as particularly vulnerable to developing a substance abuse problem, engaging in criminal activity and/or being a victim of and/or being a perpetrator of violence. She opined if the Court finds that poor parenting of this child on the maternal aunt’s part had contributed to this child’s difficulties this may indicate that she will go on to have difficulties parenting the child.
The court child expert also documented that concerns had been raised during the course of the assessment that the child is regularly being exposed to the conflict between his parents in the maternal aunt’s care. The court child expert explained in her report the impact upon children of being exposed to aggression and danger in the environment and the impact that the trauma of being around such behaviour can have on the developing brain of a child.
The court child expert then summarised other potential risks to the child in the maternal aunt’s care about which she was unable to make findings including whether the maternal aunt had the capacity to implement any orders restricting the child’s exposure to his parents, the maternal aunt’s capacity to manage the conflict between herself and the mother and the harms to the child’s wellbeing if he was regularly exposed to that conflict, whether the maternal aunt’s contact with her former partner places the child at risk of harm, and whether the child may have been at risk of harm by being exposed to neighbourhood conflicts in the maternal aunt’s care.
The court child expert opined that none of the maternal aunt’s stated views regarding the interveners’ parenting capacity indicate poor parenting on their part and some of the examples raised by the maternal aunt appeared to indicate to the court child expert good practices in relation to parenting.
The court child expert’s final recommendations in the Family Report are clearly based upon findings that the Court may make at a final hearing. In summary, she recommended that unless the Court finds that the maternal aunt’s care of the child does not meet the requirements for “good enough” parenting that the child live with her and that she hold sole parental responsibility for him. She makes further recommendations for the child’s time with the interveners and the child’s parents and makes other recommendations if it is determined it is in the child’s best interests to live with the interveners.
Update Family Report
On 23 February 2022 I ordered that the court child expert prepare an update Family Report in relation to the child who was, when assessed by the court child expert, almost two. The court child expert again attempted to contact the mother and the father about their current proposals and views but they did not respond and therefore did not participate in the assessment. It is also noted that the parents had not been participating in the proceedings for a lengthy period of time by this stage.
When assessed by the court child expert on 7 April 2022 the child continued to live with the maternal aunt and her foster grandchild and had progressed in spending time with his siblings who are in the care of their adoptive parents (the interveners) to each alternate weekend from Saturday morning to Sunday afternoon with changeovers occurring near the maternal aunt’s home. The child was also having contact with the interveners’ family by telephone (video-call) one day per week.
When assessed for the update Family Report the maternal aunt was seeking similar orders as previously, being that she have sole parental responsibility for the child and that the child live with her and spend time with his siblings in the interveners’ care one weekend per month from Saturday morning until Sunday afternoon. The interveners continued to seek orders which would see them share parental responsibility between them and that the child live with them and spend time with the maternal aunt once per month for a block period of six hours without the mother or father present. They proposed seeking orders that the child spend time with the mother and the father in the same regime as for their adopted children.
In addition to the risk factors identified in the Family Report there were now additional allegations made in relation to the conduct of the maternal aunt’s foster grandchild which raise further risk factors for the child in the maternal aunt’s care. These are that the maternal aunt’s foster grandchild is perpetrating family violence towards to maternal aunt including in the child’s presence and that this conduct and other behaviour that the maternal aunt’s foster grandchild is alleged to have engaged in raise risks of physical and psychological harm to the child. There were also allegations raised that the child may be at risk of physical and psychological harm from the mother and/or father’s behaviour. It is also alleged that the child’s diet and hygiene continued to be neglected and he also continued to be exposed to passive smoking in the maternal aunt’s care and that the maternal aunt’s foster grandchild has been using alcohol and cannabis in the home and that the maternal aunt has organised and paid for that cannabis.
The court child expert herself identified in the course of the assessment that the child had also been diagnosed as at high risk of global developmental delay and needs early intervention and that the deterioration in the maternal aunt’s foster grandchild’s behaviour raises concerns about the impact of these matters on the child’s safety, mental health and wellbeing. The court child expert also identified the question of whether or not it is now in the child’s best interest to move to live with the interveners until a final decision can be made in the proceedings.
The interveners maintained that the child would be able to tolerate being moved into their primary care because his time with them and his siblings including time on three recent weekends including overnights had all gone well. In particular, they said he shows no distress at separating from the maternal aunt and settles well with them. They also reported that a bond between the child and his brothers is developing. The interveners reported that they were very concerned about the child’s physical state when he comes to them claiming that he regularly attends in a smelly, unkempt state with dirty feet and toenails, dried faeces on his bottom and that he smells strongly of cigarette smoke. The interveners also claimed that on some occasions the child arrives in clothes that are too small for him.
The interveners also expressed some concern about the child’s behaviour, head-butting or pinching other children in the playground if they are on play equipment he wants and having “tantrums” if they say no to him. They also expressed concern that the child presents as developmentally delayed, reporting that while he makes sounds he does not make clear words and that a recent paediatric report suggested that he suffers from developmental delay in speech and fine motor skills and requires occupational and speech therapy which has not been addressed in a meaningful way in the maternal aunt’s care. The interveners also reported that the child appears to have had undescended testes and was underweight and neither of these was identified by the maternal aunt. They reported that the paediatrician suggested that the child also attend upon a dietician but questioned whether the maternal aunt had done this as regularly as recommended. They also maintained that the maternal aunt lives a chaotic life and cannot manage the child’s routine, including getting him to his medical and allied health appointments which they claim she frequently cancels.
The interveners raised concerns that the child may not always be properly supervised for his age and stage of development and may not be properly attended to after he has had an accident.
The interveners raised particular concerns about the maternal aunt’s foster grandchild’s serious behavioural difficulties which they believe significantly negatively impacts the child. Concern was raised that this foster grandchild “controls the money in the house” because he has developed a serious cannabis habit, for which the maternal aunt has admitted providing him with money.
The interveners reported various occasions when they see the circumstances in the maternal aunt’s home through remote court appearances and video assisted telephone calls. They advised the court child expert of a court event when the maternal aunt’s foster grandchild was present, stood over her and threatened her. On another occasion the foster grandchild was present during the child’s time with the interveners and was reported by the maternal aunt as being “all in a state” and when he became angry, punched a hole in the maternal aunt’s home. They expressed concern that the child is witnessing physical and verbal abuse towards the maternal aunt from her foster grandchild. They also and described an occasion when the foster grandchild came to collect the child from the interveners and the child threw himself back and resisted going and that the foster grandchild said in an annoyed tone to the child “don’t be a little prick”.
The interveners reiterated their concerns about the maternal aunt continuing to be socially isolated and not leaving the house much, which will impact on her willingness to ensure the child attends for early intervention services and to provide him with opportunities for socialisation.
The interveners also reported to the court child expert some recent conflict in the extended maternal family and the significant volatility from which the child requires protection as well as concerns that the maternal aunt continues to struggle to contain the amount of contact that the mother and possibly the father have with the child.
The court child expert described the maternal aunt’s presentation at the interview as “of concern”. Her personal clothing is recorded as emitting a strong unpleasant odour which lingered for several hours after she left the registry and she also smelt strongly of cigarette smoke.
The maternal aunt reported on having taken the child to various appointments including for a paediatric assessment approximately three months prior to interview and reported that the paediatrician had diagnosed the child with global developmental delay and identified that he had speech delay and recommended that he undergo speech therapy. The maternal aunt said that the child had attended one speech therapy appointment and she also said that she intended to take the child to an appointment for his hearing to be tested.
When asked about her foster grandchild’s behaviour, the maternal aunt admitted that he was standing over her last year and raised his hand to her but denied he had hit her. She explained that this child was spending time with a counsellor/mentor for young people who are experiencing emotional or behaviour difficulties and that she and this child are participating in a program known as Functional Family Therapy (“FFT”) once per week and, as a result of the interventions the foster grandchild “has stopped standing over me”.
The maternal aunt admitted that she had bought cannabis for her foster grandchild as she thought that was preferable to him stealing to obtain money for the cannabis. She told the court child expert that she gave the money to someone else who bought the cannabis for her which she passed on to her foster grandchild and admitted that both the mother and the father had purchased cannabis for him also. She reported that this child had been smoking cannabis “constantly” but claimed that he had been cutting back.
The maternal aunt reported that the mother and the father had separated and each re-partnered. She said that the mother is in a relationship with a man who is a “junkie” and that the mother herself continues to use the methamphetamine known as ice. She maintained that the mother comes to visit the child twice per week and that she does not allow the mother to visit the child outside of the hours outlined in the interim orders and does not allow her to come inside and see the child if she presents as under the influence of substances. The maternal aunt reported that the father is now regularly using heroin and no longer comes around to see the child or contacts her about him.
The maternal aunt also reported that there had been conflict between herself, the mother and the maternal grandmother but denies that this conflict negatively impacts the child, maintaining that she shields him from it.
The court child expert devoted significant attention in the update Family Report to records obtained under subpoena from various agencies including medical practices, a family support service, the foster grandchild’s school, DCJ and police.
Medical records from one medical practice contained a letter to the GP from a paediatrician which indicates that the paediatrician assessed the child as being at high risk of global development delay and that the child requires early intervention and an application for NDIS funding. It is recorded that the paediatrician raised concerns about the child’s low weight and recommended that as the mother had Hepatitis C that the child be tested for this disease at the age of 18 months.
Documents produced in answer to subpoena from a community services agency reported on the engagement of the maternal aunt and her foster grandchild in FFT. The records appear to indicate that the foster grandchild had not participated in a full session of counselling but rather would speak with a worker for a few minutes on some occasions but not on other occasions. The records indicate serious concerns about this child displaying aggression and violence in the home which in the view of the counsellor is consistent with coercive controlling violence notwithstanding this child’s age. This includes smashing or breaking objects in anger which has resulted in the maternal aunt incurring debts in relation to his destruction of property, standing over the maternal aunt, threatening to stab her with a knife and repeatedly engaging in severe verbal abuse. The records also indicate that the maternal aunt has disclosed on several occasions that she is fearful of this child, but has said that she will not contact police because she does not want this child to get in trouble with the law.
The child court expert reports that the FFT records indicate that it was assessed that the maternal aunt’s foster grandchild lacks the capacity to regulate his affect and displays an inability to wait for a reasonable period for assistance from others, particularly the maternal aunt, such as when he wants food or cigarettes. The notes describe this child as being very controlling in the household and in relation to the power dynamics that the maternal aunt often feels like she is the child and the child the adult. The counsellor raised concerns that this child is perpetrating economic abuse as the maternal aunt had given him up to $700 per fortnight to fund his purchases of clothing, food for him and his friends, cigarettes and cannabis. A notation in the records on 22 November 2021 stated this leaves the maternal aunt and child with nothing to eat as well as indicating the counsellor’s general concerns for the maternal aunt and child’s physical and psychological safety. The notes indicate the counsellor’s views were that at the time the maternal aunt’s living arrangements were “a completely volatile and abusive situation”.
Further records produced on subpoena from the same service indicate that the maternal aunt remains fearful of her foster grandchild’s grandfather with whom she previously had a relationship and to whom she still lends money and provides groceries to placate him which may further stretch resources for her and the child. Other family members have also been seen to attend upon the home which appeared intimidating for the maternal aunt who disclosed that a particular family member also requests food and money at times.
The records from the same agency identify that the maternal aunt has a tendency to allow her foster grandchild to “do what he wants to keep the peace” and when this child escalates she displays a reactive parenting style which escalates rather than de-escalates this child’s aggression. Records also identify that the maternal aunt provides her foster grandchild with too much information which overwhelms him and that a family member had suggested to this child that this child would be responsible if the child is placed into the interveners’ care which has increased the foster grandchild’s dysregulation and aggression.
The court child expert also records that the notes of the agency providing FFT appear to indicate that notwithstanding the serious and entrenched difficulties in the family dynamics the maternal aunt is making progress in implementing strategies suggested by the counsellor and the counsellor observed some positive interactions between the maternal aunt and her foster grandchild.
Records produced on subpoena from the DCJ note that over the years the maternal aunt’s foster grandchild has been diagnosed with two mental health conditions and that he has a past history of significant emotional trauma, separation anxiety and attachment disruption.
The court child expert records that it is acknowledged in the records of DCJ that the maternal aunt’s foster grandchild refuses to take his prescribed medication and that his paediatrician has now declined to see him as a patient as he has missed so many appointments. The records also appeared to the court child expert to indicate that at a collaborative planning meeting on 14 December 2021 there was acknowledgment that this child is displaying a “classic presentation” of a domestic violence perpetrator in his behaviour towards the maternal aunt. The records make reference to this child in anger damaging property at the maternal aunt’s home and that the maternal aunt supplies cannabis to her foster grandchild who has a dependency on the substance and that she does so in an effort to manage risk by avoiding this child purchasing cannabis from potentially dangerous sources.
The DCJ records appeared to the court child expert to indicate that the maternal aunt’s foster grandchild’s school attendance in 2022 had improved after this child barely attending at all over the previous 12 to 18 months but that he does not necessarily attend classes and also leaves school by lunchtime. DCJ considered that the goals of the FFT could only be “modest” due to the “complexity” of this child’s psychological and behavioural difficulties.
Overall, the records produced on subpoena from the maternal aunt’s foster grandchild’s high school indicate he has had longstanding problems with school attendance and poor behaviour. Records obtained from police indicate that this child has been a person of interest in relation to various incidents.
The court child expert noted that other records from DCJ indicate that the maternal aunt has expressed difficulty coping with her foster grandchild’s behaviour but does ask for and is open to receiving help including self-referring to parenting programs. However, the records indicate that the maternal aunt had only completed one session of one program. Other records indicate that DCJ had provided funding for the maternal aunt to remove clutter from her home and that carpets were to be replaced by Housing NSW.
Other records produced on subpoena examined by the court child expert included police records which indicate that in July 2021 when the child was spending time with his parents at the maternal aunt’s home, an unidentified person attended upon the property and got into a fight with the father which resulted in the father being injured. It appears the child was present when the fight broke out although it was reported that he was promptly taken inside by the maternal aunt.
The court child expert records her own observations of the child’s presentation when he was made available by the maternal aunt to be seen with the interveners and their family. She records that when the child was handed over by the maternal aunt the child’s head gave off a strong unpleasant odour and he smelt of cigarette smoke. When the child’s socks and shoes were removed, his feet were seen to be caked with dirt and there was dirt under most of his toenails.
Under the section headed “Evaluation” in the update Family Report, the court child expert first recorded that the evaluation and recommendations in the Family Report remained current. Of significance, the court child expert then wrote the following:
Whilst acknowledging that the information obtained under subpoena is yet to be tested by the Court serious concerns arose regarding the content contained in the records which would suggest that [the child]’s physical safety, mental health, development and general well-being are at risk in [the maternal aunt]’s care. It is noted that these serious concerns are identified by multiple agencies involved with the family which appears to support the claims of [the interveners] that [the maternal aunt]’s care of [the child] is significantly compromised.
Although the child was not formally observed with the maternal aunt, it was noted by the court child expert that he was clearly pleased to see her upon his return to her care and showed the most affection to her of any of the adults during the assessment. Given this, and as the maternal aunt has always been the child’s primary carer, it was assessed that she remains his primary attachment figure. On observation, the child appeared comfortable with the interveners and his siblings which the court child expert observed would be consistent with the increase of the frequency and length of time he spends with them. The interveners impressed the court child expert when assessed for the purposes of the Family Report and the update Family Report as being attentive carers and opined that the quality of their parenting would likely support an increase in the child’s comfortability in their care over time.
The court child expert made further extensive referral to the notion of “good enough” parenting that she had referred to in the Family Report, reiterating that this concept refers to “the minimum levels of care required to be provided to a child in a routine and consistent manner over time to allow the child to develop into a functioning adult”. The court child expert explained that this includes a child’s physical care needs, developmental and educational needs, emotional and psychological needs and social needs. After providing significant detail concerning each of these domains, the court child expert concluded in summary the following:
Based on the presentation of the parties, [the child]’s presentation, the admissions made by [the maternal aunt] and the information obtained under subpoena serious concerns are held that the quality of the care provided by [the maternal aunt] to [the child] at this time is not consistent with good enough parenting. [The child]’s physical presentation at the observation gives cause for concern that [the maternal aunt] may not be bathing [the child] as regularly as she claims. If this is the case this may be contributing to [the child]’s ongoing problems with nappy rash. This may also negatively impact on opportunities for socialisation and may lead to him being ostracised by his peers. An unkempt appearance can also be an indicator of ongoing general neglect.
In the context of raising concerns about the maternal aunt not meeting the standard of “good enough” parenting, the court child expert devoted significant attention to the presence of the maternal aunt’s foster grandchild, that child’s behaviour and the likely impact upon the child. The court child expert opined that it is “of extreme concern that it appears his FFT counsellor and DCJ case worker have formed the view that [the maternal aunt’s foster grandchild]’s behaviour in the household now constitutes coercive controlling family violence and it appears likely that this poses an unacceptable risk of harm to the child”.
The court child expert sets out the details of the reported behaviour that the maternal aunt’s foster grandchild has engaged in and to which it is likely the child has been exposed and opines that “children who are exposed to coercive controlling family violence (even if it comes from a sibling-like figure rather than an adult) can experience ongoing anxiety and depression that negatively impacts their cognitive development, ability to regulate their own emotions, disturb their eating and sleeping patterns and negatively impact their feelings of safety and self-esteem”. The court child expert opined that the foster grandchild’s behaviour may be a significant contributing factor to some of the child’s reported difficulties. She also opines that the child’s mental health and wellbeing would be impacted by any deterioration in the maternal aunt’s care of him due to her own feelings of anxiety and helplessness in the face of her foster grandchild’s behaviour towards her.
The court child expert also opines that the foster grandchild’s family violence has extended to economic abuse, left the maternal aunt with mounting debt and lack of resources to provide for the child’s basic needs. She opined that it would be “extremely concerning” if this was a contributing factor to the child being underweight and would indicate an inability on the maternal aunt’s part to balance the needs of both children and prioritise the child as the most vulnerable member of the household.
A further area described as “of serious concern” particularly given the child’s young age is the foster grandchild’s cannabis use and the fact that the maternal aunt pays for and organises the purchase of it which the court child expert assesses as a poor parenting choice on the maternal aunt’s part as it provides very poor role modelling for this child.
In general, the court child expert identified concerns that the maternal aunt does not have the capacity to implement appropriate boundaries with her foster grandchild and it appears that this has come to the point where she has lost all parental control over him which the court child expert considers is detrimental for the foster grandchild, the child and the maternal aunt.
While the court child expert opines that it is positive that the maternal aunt seems to be engaging with the strategies advised in FFT, she notes that DCJ and the service provider expect only modest outcomes given the severity of the foster grandchild’s behaviour and opines “it may be the case that even with these changes this may be insufficient to be protective of [the child]”.
Returning to the issue of the confirmation by the paediatrician that the child is at risk of global developmental delay, the court child expert opines that this places the child at an even greater risk of poor development outcomes from the risks posed by the behaviour of the maternal aunt’s foster grandchild and any neglect on the part of the maternal aunt. The court child expert identifies that it appears the child will likely require ongoing early intervention which raises the possibility of whether the maternal aunt is capable of accurately identifying the child’s needs, seeking appropriate assessment in a timely manner and providing follow up.
In terms of a recommendation for final parenting orders, the court child expert opines that while records obtained under subpoena are yet to be tested, the information contained in those documents suggest such serious risks for the child that this coupled with admissions made by the maternal aunt, the apparent minimisation by the maternal aunt of her foster grandchild’s behaviour and the child’s physical appearance at observation strongly suggest to the court child expert that the maternal aunt is “unwilling or unable to provide adequate care to [the child] at this time”. The court child expert strongly recommends that the child be placed into the interveners’ primary care and that they share parental responsibility between them. While acknowledging that a removal of the child from the maternal aunt’s primary care will likely cause attachment disruption that may be experienced by the child as traumatic, the court child expert reports that interveners impressed as likely to be able to provide the child with a calm, safe, nurturing care arrangement that meets his needs. The court child expert also assesses that the benefits to the child of safe, responsive and predictable caregiving outweigh the risks associate with the attachment disruption he would likely experience.
The court child expert opined that as the child has an attachment to the maternal aunt he would likely benefit from regular contact with her as long as this contact is safe. She recommends that so long as the foster grandchild and the mother and/or the father are not present that the child’s time with the maternal aunt may not require supervision but that it should occur away from the maternal aunt’s home and should not include overnights.
Of great significance to this application, the court child expert recommends that given the seriousness of concerns raised from the documents produced on subpoena and the child’s vulnerability due to his young age and special needs, the matter should be expedited. For the same reasons, the court child expert strongly recommends that the Court change the child’s residence to the interveners’ home until final determination of the dispute.
The application
The orders made by the Court as sought by the ICL and adopted by the interveners are that the interveners hold parental responsibility for the child, that the child live with them and spend time with the parents on one occasion every three months and with the maternal aunt for a period of three hours once every alternate weekend. The maternal aunt was also restrained by injunction from allowing her foster grandchild from being present at that face to face time. Orders were made providing that the child have telephone time with the maternal aunt once per week and that her foster grandchild may be present for that time. Further orders were made requiring the interveners to keep the maternal aunt advised of the child’s progress and providing that the maternal aunt be entitled to communicate with the interveners regarding any concerns or suggestions she wishes to make for the progress and wellbeing of the child.
The application for a change in the interim arrangements was opposed by the maternal aunt who sought that the intervener’s application be dismissed. The parents did not participate in the interim hearing.
At the hearing, the interveners relied upon an affidavit of one of them in which he deposes to the events following the interim hearing before a Senior Registrar in August 2021 in which orders were made for the child to live with the maternal aunt and spend time with he and his wife in a graduated regime reaching the end point of each alternate weekend from Saturday morning to Sunday afternoon (which had occurred on three occasions) along with weekly video calls. The intervener deposes to the progress of this regime of the child’s time and the maternal aunt’s compliance with parenting courses, attendance at a playgroup, engagement with a support service and a requirement to follow directions of DCJ in relation to both the child and her foster grandchild and to actively liaise with the Department of Housing in relation to application for a housing transfer.
In summary, the intervener’s affidavit sets out his evidence of alleged non-compliance by the maternal aunt with those orders and ongoing concerns about the child being exposed to physical and psychological harm and developmental impairment due to exposure to abuse, neglect and family violence while in the care of the maternal aunt.
While the deponent did not have access to the update Family Report at the time his affidavit was sworn, the update report had not then been finalised or released, he raised concerns about the circumstances prevailing in the maternal aunt’s home along very similar lines to the concerns raised with the court child expert.
According to the intervener’s affidavit, some of his knowledge about matters of concern, such as the presence of the mother at the maternal aunt’s home contrary to the interim orders had come about by observations during video calls with the interveners and the child.
The matters of concern raised by the interveners with the court child expert which are repeated in the intervener’s affidavit include knowledge of the ADVO made for the protection of the mother from the father which raises concern about potential conflict between the parents to which the child may be exposed and in respect of which the maternal aunt may have little control. The intervener also deposes to various difficulties that he encountered initially in having the maternal aunt comply with the orders for the child’s face to face time with the child’s siblings and the interference of the mother in this process.
According to the intervener’s affidavit, when the child’s face to face time with the interveners and his siblings did commence in late 2021, the maternal aunt often informed him of difficulties she was experiencing due to the mother’s ongoing intervention and attempts at spending time with the child other than in accordance with the orders.
After the child’s time with the interveners and his siblings was no longer supervised by the maternal aunt, the intervener deposes to numerous concerns about the child’s presentation on virtually every occasion the child spent time with them. These include bruising and some bleeding on the child’s face the day after the maternal aunt reported that he had had a fall and observations that the child did not verbalise a range of words and did not appear to be progressing in relation to other developmental matters such as walking without assistance. He also deposes to the child having a strong smell of cigarette smoke on his clothes and in his hair and having very dirty hands and fingernails and caked dirt being present around his ears on virtually every occasion when provided to he and his wife. He also deposes to observations of dried faecal matter on the child when his nappy was changed and the presence of nappy rash and a strong odour around the child’s genitals on and that the child’s clothing on occasions was the wrong size which appeared to cause the child some discomfort. He also deposes to the maternal aunt reporting to him ongoing difficulties with the mother and issues relating to conflict and volatility with the extended maternal family.
According to the intervener’s affidavit many of the handovers were conducted by a neighbour of the maternal aunt rather than the maternal aunt herself. He also deposes to concerning behaviour in the child such as aggressive behaviour (such as attempting to head-butt another child in a playground). He also details the occasion (as reported to the court child expert) when the maternal aunt’s foster grandchild was present at changeover and when the intervener went to hand the child over to the foster grandchild the child squealed and screamed with a firm shake of his head and the foster grandchild then impatiently said “don’t be a little prick” and reached for the child who struggled at the handover.
The intervener’s affidavit repeats the same concerns about the basic care of the child such as his physical presentation and concerns about his delayed development including in his gross motor and fine motor skills and speech. He expressed concern about the maternal aunt’s failure to ensure that the child received the early intervention and therapy as strongly recommended by the paediatrician in December 2021 such as enrolling in day care to increase appropriate stimulation, improve his communication and social skills in the context of mild indiscriminate attachment to strangers as observed by the paediatrician.
The intervener also deposes to the child’s exposure to violence in the maternal aunt’s care and refers in this regard to documents produced on subpoena to DCJ and police. He deposes to an assault on the father in the presence of the child to which police were called in mid-2021, abusive behaviour demonstrated by the maternal aunt’s foster grandchild observed by a DCJ caseworker in mid-2021 and the reported conduct of the maternal aunt’s foster grandchild in the course of FFT reported in DCJ records as well as ongoing incidents involving each of the parents and the maternal aunt’s foster grandchild requiring police attention. It is noted in the intervener’s affidavit that although these last mentioned incidents occurred prior to the interim hearing in August 2021, the records in relation to these matters had not been produced at the time and the incidents were unknown to the interveners and the Court.
The intervener then refers to records of DCJ and police in relation to the ongoing conduct of the maternal aunt’s foster grandchild which were identified in the update Family Report. In particular, in relation to the foster grandchild perpetrating coercive and controlling violence towards the maternal aunt to which the child has been exposed and the foster grandchild’s cannabis use. He refers in a similar vein to the documents produced on subpoena which were also noted by the court child expert in relation to police interaction with the maternal aunt’s foster grandchild, the limited progress in FFT, the maternal aunt’s admissions to DCJ that she arranges for the purchase of cannabis for the foster grandchild and his use of it in the home and her concerns about this child’s threats and violence to her.
At the interim hearing, the interveners’ solicitor carefully took the Court to each of the records referred to in the intervener’s affidavit and the update Family Report from which I was satisfied that the source documents supported all of the contentions of the interveners about the matters of risk present for the child for so long as he remains living with the maternal aunt. These contentions and the source documents are also entirely consistent with the observations of the court child expert upon which her opinion is based.
The maternal aunt’s affidavit is to the effect that the maternal aunt has facilitated the child’s attendance at some of the support services identified by the paediatrician being some attendances on a dietician, three sessions with a physiotherapist (the last being 13 January 2022), reportedly “consistent” attendance on a speech therapist since 13 January 2022 and one attendance for a hearing test. She also deposes to not going ahead with an appointment with a paediatric surgeon in relation to the child’s undescended testes on the basis that this is no longer necessary and a future intention to make application for the child to access the NDIS scheme. In summary the maternal aunt the allegations that she has not provided adequate care to the child.
The maternal aunt also deposes to services she has accessed to support her foster grandchild. In her affidavit she claims that the FFT which has been ongoing and regular since August 2021 has been beneficial for herself and her foster grandchild. She deposes to having an awareness that this child was smoking cannabis and that this use and attempts to have it cease have caused difficulties for her including experiencing anger from her foster grandchild and deciding to arrange for the purchase of cannabis on his behalf. The maternal aunt deposes to this child having an intention to reduce his cannabis use and to speak to a doctor about this (in the future).
The maternal aunt deposes generally to each of the parents attempting to spend time with the child otherwise than in accordance with the interim orders and to giving in to each of the parents on occasions.
At the interim hearing, very limited submissions were made on behalf of the maternal aunt as at that stage the update Family Report had been released, which completely corroborated the intervener’s concerns about the maternal aunt’s compromised capacity to care for the child. The limited submissions that were made focussed on the trauma the child would experience given his primary attachment to the maternal aunt if he were moved to live with the interveners. For this reason the Court was urged to dismiss the intervener’s application.
The law and Discussion
The Objects of Part VII of the Act and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.
The Court is to make such parenting orders that are considered proper (s 65D). According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of a child as the paramount consideration.
In determining that the interim orders proposed by the ICL and supported by the interveners were proper having regard to the best interests of the children as the paramount consideration, I had regard to the following matters under s 60CC of the Act.
The primary considerations – s 60CC(2)
The primary considerations, which are contained in s 60CC(2), are:
(a)The benefit to the child of having a meaningful relationship with both of the child’s parents;
(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(2A) provides that in applying these considerations, I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents.
So far as the children’s meaningful relationships with both parents are concerned, although the meaning of “meaningful relationship” is not defined in the Act, it has been interpreted as meaning a relationship which is “important” or “significant”.[1]
[1] McCall & Clark (2009) FLC 93-405; Mazorski & Albright [2007] FamCA 520 at [26].
The interim orders sought by the interveners provide for the child’s relationship with both parents to be fostered though they do not claim that the relationships with the parents would be considered as meaningful in the sense that is understood by the law.
There is no doubt that under the current arrangement, the child’s relationships with both parents are fostered to a greater extent than under the proposal of the interveners but it is yet to be determined whether the child does receive a benefit from having a meaningful relationship with both his parents.
In any event, in the circumstances under consideration there is a great need to protect the child from harm arising from being subjected to neglect and exposed to family violence which outweighs the benefit to the child of having a meaningful relationship with both of his parents. This need articulated in the second of the primary considerations is the most salient feature in this application.
Although there are limits on making findings at this interim stage in the proceedings there is a long line of authority[2] to the effect that I am required to assess the competing contentions of the parties especially in relation to matters of risk. In assessing the risks of harm arising from neglect and exposure to family violence posed by the maternal aunt and the nature of the harm, I attach significant weight to the assessment of the court child expert.
[2] Deiter & Deiter [2011] FamCAFC 82, SS & AH [2010] FamCAFC 13 at [100], George & George [2013] FamCAFC 182, Cimorelli & Wenlack [2020] FamCAFC 58.
Although the court child expert’s evidence is yet to be tested, it is based not only on information given by the interveners (consistent with their affidavit) but to a significant extent on the court child expert’s own observations of the child’s physical state which is highly unlikely to change under cross-examination. These observations which are consistent with the evidence of the interveners, are consistent with the child having experienced neglect and are unlikely to be explained by any evidence to the contrary.
Further, the court child expert and interveners’ legal representative in submissions relied to a great extent on the records produced by a wide range of agencies and services engaged with the maternal aunt and her foster grandchild which provide significant corroboration for the contentions of the risk of harm in the maternal aunt’s care. I consider that these records are reliable having regard to the purpose for which they were created and that their content will not change at final hearing given that the makers of those records will not be cross-examined. I also note that even those service providers engaged with the maternal aunt, who it may be assumed have established some sort of therapeutic alliance with her and her foster grandchild raise significant concerns about potential risks associated with the maternal aunt’s care and risks in her household.
The nature of both the risk and the harm itself arising from these two matters (neglect and exposure to family violence) are set out in great detail in the Family Report and update Family Report. In particular, the court child expert provides an explanation of the expression “good enough” parenting which in effect provides a benchmark for parenting that does not result in harm to a child as well as an expert opinion about potential harms a child may experience across multiple domains if parenting of this standard is not provided by a primary caregiver. I attach particular weight to the court child expert’s opinion in this regard and especially in the somewhat unusual recommendation that the Court immediately make orders for the child to live with the interveners pending final hearing.
In Deiter (supra), the Full Court said when making an interim order a Court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the children under consideration.
In relation to the last mentioned matter (and this issue may also be considered another matter that I regard as relevant under s 60CC(3)(m)), I consider it noteworthy that these proceedings are not listed for final hearing until September 2022 and it is unlikely that a final judgment will be delivered for some months thereafter. The court child expert considered that the child’s circumstances as at May 2022 required an urgent change in order to protect the child from the harms identified.
Section 60CC(3) sets out additional considerations, a number of which are not able to be applied in this case, and I will refer to those which are relevant in this case.
Additional considerations
The child is too young to express any view about his future parenting arrangements.
It has been identified by the court child expert across each of her assessments that the child’s primary attachment relationship is with his maternal aunt. In one report the child court expert also assesses that it is likely that the child has a relationship with the maternal aunt’s foster grandchild.
When assessed at earlier stages in the proceedings for the purposes of the Child Responsive Program and Family Report, the child’s relationship with the interveners and even his siblings was not particularly developed as a result of the minimal time the child had spent with the interveners and their family at that stage. For this reason the court child expert initially did not consider that it was in the child’s best interests to experience the likely trauma she opined would arise from the disruption with his primary attachment relationship if he were moved to live with the interveners when their initial application for interim parenting orders was first made.
However, in her update Family Report of May 2022, while the court child expert again acknowledged that removal from the maternal aunt’s primary care and being placed in the interveners’ primary care will cause disruption that may be experienced by the child as traumatic, she opined that “the benefits to [the child] of safe, responsive and predictable caregiving outweigh the risks associated with the attachment disruption he would likely experience”.
The court child expert also identified in this more recent report that any trauma experienced by the child if his care arrangements were changed could be mitigated by the implementation of strategies that were well understood in the court child expert’s opinion by the interveners particularly based on their successful support of the child’s siblings when similar transitions were made into their care.
When considering both the nature of the child’s relationship with the interveners and in particular their capacity to meet the needs of the child, the court child expert was impressed by a number of features of the interveners’ presentation. The court child expert considered that the child’s siblings appear to be flourishing in the care of the interveners, and noted that the child’s siblings adopted mother had stated an intention to access parental leave to care for the child should he be transitioned into her care. The court child expert also considered that in the event the Court places the child with the interveners his socialisation needs could be met by interaction with his brothers and by regular participation in a playgroup targeted to his age and stage of development.
In relation to the matter of the child’s relationships it is also noted by the court child expert that if the Court places the child into the care of the interveners this provides him with an opportunity to grow up with his brothers. As opined by the court child expert in her Family Report, sibling relationships are some of our most important relationships and children usually benefit from having the opportunity to grow up in the same household as their siblings especially where there siblings are in a non-kinship foster care placement where they do not have the opportunity to be reared by a member of their biological family, as this assists in their identity development. Even though the child’s siblings have been legally adopted the interveners appear properly to recognise the importance of the sibling relationships. The proposal of the interveners provides a much greater opportunity for the child to develop these important relationships than if he were to remain living with his maternal aunt.
The court child expert also identified that as the child has an attachment to the maternal aunt he would likely benefit from regular contact with her as long as this contact is safe. The court child expert identified in particular that the maternal aunt’s foster grandchild should not be permitted to be present when the child is spending face to face time with the maternal aunt and expressed a similar view about the risks associated with the presence of the parents and recommended that they also not be present. The ICL’s proposal, adopted by the interveners, adopts each of these recommendations of the court child expert. Their proposal will ensure that the child receives the benefit of ongoing contact with his maternal aunt while providing a safeguard for his well-being through the exclusion of those people who may be considered to pose a risk of harm to him.
Another matter in this application which was acknowledged in the course of the interim hearing relates to the attitude to the child and the responsibilities of parenthood of the maternal aunt and interveners respectively. Although this child has had a difficult life to date including complex circumstances which present multiple domains of risk, the child is fortunate in the sense that he has a number of adults in his life who undoubtedly have his best interests at heart and are available to do their best to care for him.
Regrettably, little weight can be attached to the maternal aunt’s best intentions in this regard as it would appear on evidence that I consider reliable and unlikely to change, that she has been unable to provide the child with “good enough” parenting to ensure that he is kept safe from the harms present in her household. It is also in my view on the available evidence unlikely that she has the capacity to develop the necessary skills to assist the child to be kept safe and to ensure that all of his needs are met.
One other potentially relevant consideration is that, as noted in the Family Report, it is possible that the child is of Aboriginal descent. The court child expert opines that if the Court was to find that the child is of Aboriginal descent, then remaining living with the maternal aunt would allow him to learn about, be involved with and celebrate his culture more than could be provided by the interveners if the child were to live with them. However, there appears to be limited evidence upon which a finding concerning the child’s Aboriginal descent could be made and information obtained under subpoena from the DCJ appeared to indicate to the court child expert that the child’s siblings are not considered by DCJ to be of Aboriginal descent. The maternal aunt herself also cast doubt on the suggestion that the child is of Aboriginal descent. For this reason, this is not a weighty matter in this application.
There are some complex practical issues associated with the child spending time with either the material aunt or the interveners and child’s siblings respectively arising from both the interveners’ application and maintenance of the current arrangements. However, as these matters are present under either arrangement under consideration and arise from the maternal aunt not having a driver’s licence they are not particularly weighty in favouring one arrangement over the other.
As is apparent when setting out the evidence in relation to the risks present in the maternal aunt’s household and the opinion of the court child expert in the update Family Report, the issue of family violence looms large in these proceedings. It is also interconnected with the issue of the maternal aunt’s capacity to meet the child’s needs.
As noted, the court child expert’s opinion that the maternal aunt’s foster grandchild is a perpetrator of coercive and controlling violence rests upon matters reported by the maternal aunt and the observations of service providers including those delivering FFT and caseworkers from DCJ. I consider the opinions of those service providers and the court child expert as particularly weighty in this application. I consider it highly likely that a Court at final hearing will be satisfied that the maternal aunt’s foster grandchild is the perpetrator of coercive and controlling violence to which the child has been exposed in the maternal aunt’s household and that there is a real risk that the child will continue to be so exposed so long as he lives with the maternal aunt.
Further, I consider it likely that a court will accept the evidence in relation to impairments in the maternal aunt’s capacity to manage her foster grandchild and for this reason will find that it is unlikely she will adequately protect the child from the harms arising from exposure to (and possibly being subjected to) family violence in her household.
Conclusion
As explained in the foregoing Reasons, the concerns of the interveners arising from their observations of the maternal aunt’s care and the child’s presentation are the same as the matters of risk identified by the court child expert over the course of her three assessments of the family.
When the court child expert first carried out her first full assessment of the relevant parties in March 2021 for the Family Report dated June 2021 she identified many of the risks present in the maternal household but at that stage could not express an opinion about whether the care provided by the maternal aunt to the child was sufficient to protect him from harm and whether the maternal aunt had the capacity to provide for the child’s needs to an adequate standard. Further, at that stage, as the child had a primary attachment relationship with the maternal aunt and an undeveloped relationship with the interveners, the court child expert did not make any recommendations for any immediate change in the child’s parenting arrangements. Her recommendations in the Family Report related to final orders and depended upon the Court’s findings particularly in relation to risk and capacity of the parties to meet the child’s needs.
By the time the update Family Report was prepared, the court child expert was able to make recommendations as a result of her own observations and records of agencies produced on subpoena which, for the reasons explained, I consider reliable and weighty. The court child expert was concerned that the child’s needs were so great and likely risks present in the maternal aunt’s care of such a magnitude that she recommended an immediate change in the child’s circumstances along the lines that the interveners had also sought in their application to vary the interim orders.
Having regard to all of the foregoing matters and attaching particular weight to the need to protect the child from harm arising from neglect and exposure to family violence and to the capacity of the maternal aunt and interveners respectively, against the background of the unlikelihood of any final decision prior to the end of 2022, I was satisfied that that proposal of the ICL adopted by the interveners was both proper and in the child’s best interests.
I certify that the preceding one hundred and seventy-six (176) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam. Associate:
Dated: 1 July 2022
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