Lowry and Jeffery and Anor
[2016] FamCA 559
•11 July 2016
FAMILY COURT OF AUSTRALIA
| LOWRY & JEFFERY & ANOR | [2016] FamCA 559 |
| FAMILY LAW – CHILDREN – With whom a child lives – Where there are competing parenting applications for responsibility of the child – Where there is a history of family violence between the parties - Whether it is in the best interests of the child to be in the mother’s care – Where unsupervised time with the grandfather would present an unacceptable risk of harm to the child – Where the grandfather and intervenor concede a continuing drug use – Where there is a benefit to the child in maintaining relationships with all parties provided the child’s best interests are safeguarded. |
| Evidence Act 1995 (Cth) s 128 Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61DA, 65DAC Family Law Rules 2004 (Cth) Drugs Misuse Act1986 (Qld) s 68B |
| Baghti & Baghti [2015] FamCAFC 71 Maldera and Orbel (2014) FLC 93-602 N and S and the Separate Representative (1996) FLC 92-655 |
| APPLICANT: | Mr Lowry |
| RESPONDENT: | Ms Jeffery |
| INTERVENOR: | Ms Dodson |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Luke Smith |
| FILE NUMBER: | BRC | 8206 | of | 2011 |
| DATE DELIVERED: | 11 July 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 27 June - 1 July 2016 |
REPRESENTATION
| FOR THE APPLICANT: | Self represented |
| COUNSEL FOR THE RESPONDENT: | Mr Gates |
| SOLICITOR FOR THE RESPONDENT: | Spranklin McCartney Lawyers |
| FOR THE INTERVENOR: | Self represented |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Anderson |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Smith & Associates Solicitors |
Orders
That Ms Jeffery (“the mother”) have sole parental responsibility for the child B (“the child”) born … 2010.
That the child live with the mother.
That for a period of 12 months Mr Lowry (“the grandfather”) spend time with the child for up to two hours on one occasion per month with that time to occur at the C Contact Service at Suburb D (“the Contact Centre”) and it is requested that a member of staff of the Contact Centre supervise the said time.
That for a period of 12 months Ms Dodson (“the intervenor”) spend time with the child for up to two hours on each alternate weekend with that time to occur at the Contact Centre with one of those visits to occur on the same day as the time spent by the child with the grandfather and it is requested that a member of staff of the Contact Centre supervise the said time.
That for the purposes of paragraph (3) herein the mother and grandfather do all things necessary to ensure that the child spend time with the grandfather as soon as possible and on every fourth Saturday or Sunday thereafter depending upon the availability of the Contact Centre.
That for the purposes of paragraph (4) herein the mother and intervenor do all things necessary to ensure that the child spend time with the intervenor as soon as possible and on every alternate Saturday or Sunday thereafter depending upon the availability of the Contact Centre with one of the visits to coincide with the time the child spends with the grandfather.
That the intervenor be at liberty to bring her daughters, E and F, to the Contact Centre after the first two occasions subject to the Contact Centre providing its consent.
That the grandfather pay any costs levied by the Contact Centre in relation to any time he spends with the child.
That the intervenor pay any costs levied by the Contact Centre in relation to any time she spends with the child save if already paid by the grandfather.
That upon the expiration of 12 months and for a further six months the intervenor spend time with the child each alternate weekend from after school Friday until before school Monday with the intervenor to collect the child from his school on Friday and return him to school on Monday and in the event the child is not at school or the school is closed the mother shall nominate a public place for changeover within close proximity to the school and if she fails to nominate a place the changeover shall occur at McDonald’s Restaurant at G Street, Suburb H.
That upon the expiration of the further six months referred to in paragraph (10) herein the intervenor spend time with the child once per month from after school on the fourth Friday of each month until before school the following Monday with the intervenor to collect the child from his school on Friday and return him to school on Monday and in the event the child is not at school or the school is closed the mother shall nominate a public place for changeover within close proximity to the school and if she fails to nominate a place the changeover shall occur at McDonald’s Restaurant at G Street, Suburb H.
That upon the expiration of 12 months from the date of this Order the grandfather spend time with the child once per month for up to two hours supervised by the mother or a responsible adult appointed by her or supervised by the intervenor or a responsible adult appointed by her.
That the mother continue to attend upon the I Health Service (or such other service as recommended by that Service) for all medical matters associated with the child (other than in a case of emergency) and facilitate the child attending any referral to any other medical or health professional.
That within 28 days the mother enrol in a ‘Circle of Security’ Parenting Course or such other parenting course nominated by the Independent Children’s Lawyer and provide written confirmation and details of her enrolment to the Independent Children’s Lawyer and intervenor within seven days of enrolment.
That within three months of enrolment in the said Parenting Course the mother complete the course and provide a Certificate of Completion to the Independent Children’s Lawyer and intervenor within seven days of completion.
That the mother do all things necessary to facilitate the child continuing to attend appointments with Ms J, psychologist, at dates and times requested by Ms J.
That within 28 days the mother contact the Department of Communities, Child Safety and Disability Services and request a referral to a Family and Child Connect Service to assist her in avoiding her family re-entering the child protection system. Upon obtaining the said referral the mother shall co-operate in all respects with the suggested interventions and assistance offered by the said Service and the said Service is hereby authorised to provide information about the mother’s involvement with the Service to the Independent Children’s Lawyer.
That pursuant to section 68B of the Family Law Act 1975 (Cth) the mother is restrained and an injunction hereby issues restraining the mother from unlawfully consuming, inhaling or administering a dangerous drug within the meaning of the Drugs Misuse Act1986 (Qld) and from permitting any other person from unlawfully consuming, inhaling or administering a dangerous drug within the meaning of the Drugs Misuse Act1986 (Qld) in the presence or vicinity of the child.
That pursuant to section 68B of the Family Law Act 1975 (Cth) the mother is restrained and an injunction hereby issues restraining the mother from consuming alcohol in the presence or vicinity of the child and from permitting any other person from consuming alcohol in the presence or vicinity of the child.
That pursuant to section 68B of the Family Law Act 1975 (Cth) the intervenor is restrained and an injunction hereby issues restraining the intervenor from leaving the child with the grandfather unless another responsible adult is present at all times.
That pursuant to section 68B of the Family Law Act 1975 (Cth) the intervenor is restrained and an injunction hereby issues restraining the intervenor from unlawfully consuming, inhaling or administering a dangerous drug within the meaning of the Drugs Misuse Act1986 (Qld) and from permitting any other person from unlawfully consuming, inhaling or administering a dangerous drug within the meaning of the Drugs Misuse Act1986 (Qld) in the presence or vicinity of the child.
That pursuant to section 68B of the Family Law Act 1975 (Cth) the intervenor is restrained and an injunction hereby issues restraining the intervenor from filming the child, recording the child or questioning the child for the purpose of gathering evidence against the mother and from permitting any other person from so doing unless that person is authorised by Statute.
That pursuant to section 68B of the Family Law Act 1975 (Cth) the intervenor and grandfather are restrained and an injunction hereby issues restraining them from attending the mother’s residence or the child’s school unless invited by the mother to do so in writing.
That the intervenor be permitted to obtain from the child’s school a copy of his report cards with any cost incurred in relation thereto to be borne by the intervenor.
That the Independent Children’s Lawyer be at liberty to provide a copy of this Order and the Reasons for Judgment to The Department of Communities, Child Safety and Disability Services and Ms J.
Miscellaneous
All outstanding applications are dismissed and removed from the list of cases awaiting finalisation.
That the appointment of the Independent Children’s Lawyer be discharged on 30 November 2016.
Pursuant to section 65DA(2) and section 62B, the particulars of the obligations this Order creates and the particulars of the consequences that may follow if a person contravenes this Order, and details of who can assist parties adjust to and comply with this Order are set out in the fact sheet attached hereto. And these particulars are included in this Order.
Notation
Mr K has agreed to enrol in and complete the ‘Circle of Security’ Parenting Course (or other parenting course nominated by the Independent Children’s Lawyer) within a reasonable time and provide a copy of his Certificate of Completion to the Independent Children’s Lawyer and intervenor within 7 days of completion.
The reference to dangerous drugs in this Order includes but is not limited to cannabis (commonly referred to as ‘marijuana’) and methyl amphetamine (commonly referred to as ‘ice’).
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lowry & Jeffery & Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02, Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 8206 of 2011
| Mr Lowry |
Applicant
And
| Ms Jeffery |
Respondent
And
Ms Dodson
Intervenor
And
Mr Luke Smith
Independent Children’s Lawyer
REASONS FOR JUDGMENT
B was born in 2010. He is the subject of competing parenting applications. He is known by his family as ‘[the child]’ and I will refer to him as such in these reasons.
The applicant in the proceedings is the child’s maternal grandfather, Mr Lowry, (although he is also known by other names as noted in the heading above). His daughter, Ms Jeffery, is the respondent and Ms Dodson, his former de facto partner, is the intervenor.
In these reasons I will refer to Mr Lowry as ‘the grandfather’, Ms Jeffery as ‘the mother’ and Ms Dodson as ‘the intervenor’.
The grandfather has abandoned his application for the child to live with him and now supports the intervenor’s application that the child live with her and that he and the intervenor have equal shared parental responsibility. He proposes that he spend time with the child at times agreed between himself and the intervenor. The grandfather also seeks an order that Ms Jeffery spend no time with the child until she is psychiatrically assessed and thereafter supervised time.
The intervenor seeks an order for sole parental responsibility in addition to the child living with her and spending supervised time with the grandfather and mother at a Contact Centre.
Ms Jeffery lives with her de facto partner, Mr K (“Mr K”). She and Mr K have two daughters together, L born in 2012 (“L”) and M born in 2016 (“M”). The mother seeks an order for the child to continue to live with her and that she have sole parental responsibility. Ms Jeffery opposes the grandfather and intervenor spending any time with the child.
The child’s father
The child’s father was not served with any material in these proceedings. Despite proceedings being on foot at various times since 2011 it seems to have been overlooked that he was a necessary party pursuant to Rule 6.02(2)(a) of the Family Law Rules 2004 (Cth). At the direction of the Court the mother’s lawyer made contact with the father during this trial. I refer to the affidavit of Ms V, lawyer for the mother, in that regard. The father was offered the opportunity to attend at court or have a lawyer attend court to indicate whether he wished to be involved in the proceedings. An attempt was made by the Court staff to contact the father during the trial at a pre-arranged time but his phone went unanswered. There is evidence before me that the father has only seen the child on two occasions, the most recent being some time last year by accident. During her relationship with him the mother contends he was physically violent towards her and introduced her to drugs. In the circumstances I do not propose to adjourn the trial and pursuant to Rule 1.12 and I dispense compliance with Rule 6.02(2)(a).
Relevant background facts
All parties and children are well known to the Department of Communities, Child Safety and Disability Services (“the Department”) dating back to 1991 when a notification was made in relation to the grandfather.
The grandfather was born in 1977. He is unemployed and in receipt of a Centrelink benefit. He is of Aboriginal descent. He describes himself as having been an artist for twenty years and has undergone some tertiary studies. He is yet to complete his degree and is not currently undertaking any study. He currently resides with a cousin and her boyfriend and his cousin’s two children aged 14 and 10 months respectively. He has lived with them for about three months. He is currently on probation arising out of a conviction on 2 May 2016 for driving a motor vehicle while under the influence of a drug on 8 October 2015. Under the terms of his probation he is (among other things) prohibited from unlawfully consuming a dangerous drug within the meaning of the Drugs Misuse Act1986 (Qld). The grandfather admits having been a regular user of the drug commonly known as ‘ice’ until about ten weeks ago and continuing to use marijuana contrary to the terms of his probation Order (the admissions were made under the protection of a s 128 Evidence Act1995 (Cth) certificate).
The intervenor was born in 1968 in Africa. She is employed part-time and sells products online. She is also an artist but receives a partial parenting payment. She has two daughters, E born in 1999 and F born in 1997. Both children live with her. E is currently completing grade 12 and F has just completed a Certificate in Aged Care and is about to start a placement. E and F have different fathers and both fathers have a history of violence.
The mother was born in 1993 and is a full-time mother to her three children. She is of Aboriginal descent. She is in receipt of a parenting payment.
Mr K was born in 1988 and is unemployed. He and the mother commenced a relationship at the end of 2011 and have had an ‘on again off again’ relationship. Their most recent separation was for two to three months this year.
The child commenced to live primarily with the grandfather and intervenor in December 2010.
On 21 January 2013 a final parenting Order was made providing for the child to live with his grandfather until just after his third birthday when he was to live primarily with the mother. On 24 June 2014 all previous parenting Orders were discharged and the intervenor was granted leave to intervene and an interim Order was made that the child live with the intervenor. On 30 July 2014, another final Order was made (by consent) providing for the child to live with the intervenor until 24 April 2015 and thereafter with the mother. The Order further provided that the intervenor was to spend two nights per week with the child and the grandfather was to spend two nights a fortnight with the child.
While the child did commence to live with the mother permanently on 18 April 2015 the transition did not occur pursuant to the Order, in that, for the period from January 2015 to March 2015, the child spent very little time with the mother and for the period from April 2015 to June 2015 the child spent no time (other than a very short visit with police present) with the grandfather or intervenor. On 15 June 2015 an interim Order was made by consent providing for the child to spend specific times with the grandfather and intervenor but otherwise live with the mother.
When the child next spent time with the intervenor on 21 June 2015 she failed to return him to the mother alleging he had been harmed in the mother’s household. The child was examined at the N Hospital and the Department investigated the allegations made by the intervenor. No substantiated risk of harm was made and when the matter next came before the Court on 14 July 2015 an Order was made that the child be returned to the mother. When that Order was not complied with by the intervenor, a recovery Order was made on 23 July 2015. The child was returned to the mother with the assistance of the Police.
There has been very little time spent by the child with the intervenor and grandfather since April 2015. On 29 October 2015 an Order was made that the intervenor and grandfather spend up to two hours of supervised time with the child each fortnight.
Since that Order, the grandfather has spent time with the child only once at the Contact Centre on 21 May 2016 and once at the mother’s home at Christmas time in 2015 supervised by the mother and Mr K. The visit on 21 May 2016 is described in positive terms in the Contact Centre notes. The intervenor has only spent time with the child at the Contact Centre on 30 April, 14 May, 28 May, 11 June and 25 June 2016. The visits between the child and the intervenor are likewise described in positive terms.
This matter was transferred from the Federal Circuit Court to this Court on 29 October 2015.
How parenting applications are determined
Part VII of the Family Law Act 1975 (Cth) (as amended) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper, but such consideration will focus in particular on matters raised as significant issues by the parties and the Independent Children’s Lawyer (see Goode & Goode (2006) FLC 93-286; SCVG & KLD; Banks & Banks (2015) FLC 93-637).
However, the Court is not required to make findings of fact on every factual dispute raised by the parties (Baghti & Baghti [2015] FamCAFC 71).
Section 60B(1) provides that the objects of the Act are to ensure that the best interests of children are met by:
a)Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
b)Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c)Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
d)Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) provides that the principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
a)Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b)Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
d)Parents should agree about the future parenting of their children;
e)Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary and additional considerations that the Court must consider in determining what is in the best interests of the child. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
‘Abuse’ in relation to a child, is defined in s 4 of the Act and means:
(a)an assault, including a sexual assault, of the child; or
(b)a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d)serious neglect of the child.
Family violence is defined in s 4AB of the Act:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b)seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c)comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d)cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
(emphasis in original)
Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence, and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
Where the presumption does apply, the Court is required to consider s 65DAA as to whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.
Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation.
Although I may not specifically discuss in these reasons each subparagraph of each relevant section in the ‘legislative pathway’ I have considered all sections as required when making my determination (Banks & Banks (2015) FLC 93-637).
In considering the ‘unacceptable risk’ questions Fogarty J observed in N and S and the Separate Representative (1996) FLC 92-655, at 82,713-4:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of a particular case fall, and to explain adequately their findings in this regard.
While there is no presumption in favour of a parent it is a factor to be considered along with all other factors. As the Full Court held in Maldera and Orbel (2014) FLC 93-602:
81. Nor do we cavil with the well settled jurisprudence which establishes that in a parenting case undertaken between a parent and another person interested in the welfare of a child, the fact of parenthood requires careful consideration (Aldridge v Keaton). However, s 60B cannot be used to establish a hierarchy as to outcome in which parents sit at the apex. In our view, it is abundantly clear that the comparative significance for a particular child of the fact of parenthood (which may in an individual case be decisive) is to be considered and weighed along with the other matters identified in s 60CC (and if relevant s 65DAA). But not on the basis that the factors referred to in s 60B can be used in favour of a parent to deliver an outcome inconsistent with the proper application of s 60CC.
The grandfather
The grandfather is an admitted alcoholic and drug user. He admitted that he still drinks bourbon but “only when playing the pokies”. He admitted under the protection of a section 128 Certificate that he last used the drug known as ‘ice’ “about ten weeks ago” and prior to that had been “a regular user for the previous twelve months”. He also admitted that he is currently in breach of his probation conditions which prohibit his use of any illicit substances but he continues to use marijuana. He is on probation for a conviction for ‘drug driving’. On the fourth day of the trial he was late attending because he had been arrested the evening before for a breach of his probation conditions being a failure to present himself to the Police Station.
He has a long history of violence against family members and others including the intervenor. He was sentenced to five years imprisonment in 2004 for stabbing a male person unknown to him. He was initially charged with attempted murder but entered into a plea bargain and pleaded guilty and was sentenced for committing grievous bodily harm. He has other criminal convictions for violence. His violence against the intervenor includes punching her in the face, head-butting her, threatening to kill her, holding her against her will, smashing property and pulling her by the hair.
In or about June 2008 he was charged with indecent dealing in relation to one of the intervenor’s daughters, F, then aged twelve. He was acquitted on 5 November 2009. Despite his acquittal the Department made a substantiated finding of sexual abuse of F by the grandfather. F maintained her allegations despite the acquittal.
The circumstances of the alleged indecent dealing are described by F in interview with Departmental officers at her school on 1 June 2008:
Approximately one month previously she was off sick from school for the day, she was upset and the [grandfather] offered to cuddle her. They moved to her mother’s bedroom whereby the [grandfather] asked her to give him a kiss. He then asked for a longer kiss at which time he stuck his tongue in her mouth. The child further stated that on a date unknown between 1 May 2008 and 2 June 2008 she was in her mother’s bedroom using the computer when the [grandfather] entered the room and place his hand down the collar of her shirt and onto her chest area. She got up and left the room however returned once the [grandfather] had left. The [grandfather] once again returned and this time place his hand down the collar of her shirt down the front and placed his hand onto the victim child’s breast inside her bra. The victim child further disclosed another incident that occurred on 2 June 2008 on this occasion the [grandfather] as sitting on a bed downstairs and he called the victim to go over to him, at this time they cuddled face to face and he has reached down and placed his hand up the leg of her shorts.
During his submissions the grandfather expressed remorse for his behaviour generally but in particular stated: “… about the issue with F – I haven’t previously before that or after that harmed any child as such. That was nearly 9 years ago too.”
On 28 June 2008 the grandfather held the intervenor in a car against her will for over an hour. He threatened to kill her and other persons. He threatened to smash her face with a bottle he was holding at the time. He pulled her by the hair and held a pen to her throat threatening to kill her with it. Although the grandfather was charged in relation to his violence on that occasion, the intervenor withdrew her complaint and the charges were dropped.
His bail conditions were breached as a result of this incident and he was imprisoned for a number of months.
The de facto relationship ended in 2013 after an incident where the grandfather threatened the intervenor with a knife, pushed her and threw the telephone out the window when she attempted to call the police. He repeatedly stabbed the knife on the kitchen bench with such force it bent. F intervened and with the intervenor’s assistance they managed to push the grandfather out of the house. He was swearing loudly and tried to force his way back into the house. He threatened to kill the intervenor and F. The child and E were present throughout this frightening incident. A protection Order was taken out on behalf of the intervenor by Police.
His most recent relationship with Ms O[1] ended recently and she obtained a protection Order against him. That Order remains in force.
[1] The grandfather was unsure of the spelling of his former partner’s name.
Despite his history of extreme violence, his indecent dealing of F, his admitted recent regular use of the drug known as ‘ice’, his recent drug driving conviction and his breach of probation he nevertheless remains a frequent visitor to at the intervenor’s home and stays overnight from time to time.
During his submissions, the grandfather referred to his dreadful upbringing and of having been exposed to violence and alcohol abuse. He has indeed had a dreadful life. He expressed aspirations to change and pursue studies and a better life. Unfortunately, these aspirations have been expressed before and nothing much has changed. When he was interviewed by the family report writer in April 2014 he ‘displayed a high level of regret regarding his recent alcohol abuse and violence’. and I note most recently during his intake interview with the C Contact Centre (exhibit 25) on 7 May 2016 he is recorded as stating inter alia:
[Mr Lowry] said he would do anything for his grandson … He has little trust in the system …
…
He acknowledged that he turned to drugs to help him cope for a while, but has given that all up now. …
…
All [Mr Lowry] wants now is to be an “outstanding role model” for the child who is his first grandson. Once all this is settled, [Mr Lowry] will go back to University where he was studying a ... He has some projects currently underway and wants to leave a strong legacy for the child.
It may have assisted the grandfather’s case (and the intervernor’s) if I could have been satisfied that the grandfather had indeed changed and turned his life around. He has not managed to do so to date. I remain greatly troubled by his propensity to violence and recent continued drug use. Unsupervised time with him would present an unacceptable risk of harm to the child.
The intervenor
The intervenor was in a de facto relationship with the grandfather from about 2007 until 2013. It was a violent relationship and the intervenor was violently attacked many times by the grandfather.
In relation to the indecent dealing of F by the grandfather, the intervenor admits to accusing F of having been “obsessed with porn” and “instigating the acts” for which the grandfather was charged. She took the grandfather’s side and gave evidence in support of him at the criminal trial.
On 12 September 2008 the grandfather was released from prison. The intervenor collected F from school with the grandfather in the car and he returned home to live with them. The intervenor became extremely aggressive with F because she was not getting on with the grandfather. As a result of the intervenor maintaining her de facto relationship with the grandfather, F was removed from her care by the Department under a custody Order and placed with the child’s aunty and then her father.
There was a complete breakdown in the relationship between F and the intervenor for a number of years but F returned to live with the intervenor in or about 2012 after her father went to prison. In an interview with the Department on 13 August 2013 F stated - “Mum still denies what he did”, “I don’t really feel safe here but I had to move back”. “[Mr Lowry] will come home and ask for a hug, I look at mum and she looks at me like I have to, to keep the peace.” F also stated that her mother provided her with marijuana stating: “when I am stressed out she will give it to me.” “She gives it to me to stop me from getting worse.”
The intervenor now concedes that she failed to protect her daughter. The fact that the grandfather continues to frequent the intervenor’s home, including staying overnight, demonstrates a continuing lack of insight into the impact his visits are likely to have upon F. F was also exposed to the very violent incident in late December 2013 described in detail at paragraph 41 above.
The intervenor’s other daughter, E, curiously remained in the care of her mother despite F being removed by the Department. I note that when the family report writer, Dr P, interviewed E in 2012 she stated:
10.1 … [Mr Lowry] has been aggressive with mum but she has learned to go with it more. So we just kind of stay out of his way. I would rather he didn’t drink because it makes things harder when he does.
The intervenor has a significant history of putting her children at risk.
Despite her limited income, the intervenor remains a regular user of marijuana. She denied using it when the child has been in her care. She knows it is illegal but does not regard it as a drug, describing it as “a plant”. She admits she may have supplied marijuana to F when she was 16. I find that she did supply F as to do so would seem to be consistent with her views in relation to a drug that is nevertheless an illegal substance. It is also consistent with what F told the Department in 2013. I do not accept that the intervenor would have avoided using it when the child was in her care. The random drug tests the intervenor has undertaken confirm her recent and continued use of marijuana.
The intervenor assumed primary care of the child with the grandfather from the time he was a few months old in 2010. He remained in her full time care until 18 April 2015 when the mother withheld him for a period of nine weeks. He was then returned to her care for what was supposed to be a visit but she again retained him and a recovery Order was made in favour of the mother.
She maintains that the child is being physically and possibly sexually harmed in the mother’s household. She has taken the child to the hospital and to the Department and the Police but there is no reliable evidence to support her allegations. She relies primarily on the child’s presentation of not wanting to return to the mother and what he has said to her that she says indicates he has been subjected to abuse.
Exhibit 2 contains a number of voice recordings and video recordings either taken by or instigated by the intervenor. The recordings show B being questioned by the intervenor and others about his mother and what happens at her place. He is difficult to understand and much of the questioning is leading but it can be determined that he has said things such as -“They made me have beer”, “Mummy said drink it”, “Mummy puts fire in my hair”. In one of the video recordings he is sitting on the toilet with his pants down. He is being video recorded while the intervenor and at least one of her daughters question him. On another occasion he is videoed speaking to his mother on the telephone which is on speaker phone. The intervenor and mother engage in an argument about whether the child will be returned to the mother. He is held there by the intervenor while the argument continues despite his becoming quite distressed. In yet another video recording there is another child present (a little boy called Q who lives across the road). He, as well as the intervenor, engage in questioning the child about what his mother allegedly does to him.
In her oral evidence Dr P expressed the view that the video recordings did not constitute evidence of harm to the child in the mother’s care. She opined that they demonstrated a child who was very confused with divided loyalties and at times was avoidant to questions and at other times spoke about very abstract experiences. She stated that the manner in which the recordings were undertaken were very unhelpful to a small child and, in particular, the conversation video recorded between Ms Dodson and the mother (where the child was held by Ms Dodson to listen to the argument between the mother and her) constituted emotional abuse. I accept her opinion. This conduct also led to the Department making an assessment that the intervenor had engaged in emotionally abusive behaviour.
There is also a video recording of the intervenor and grandfather’s unannounced visit to the mother’s home in May 2015. It cannot have come as any surprise to the intervenor and grandfather that the visit resulted in conflict between all of the people in attendance and involved police attending. The child and other children were witnesses to this sorry saga.
While the intervenor and her daughters may have had the best of intentions in engaging in this ‘evidence gathering’ exercise it has been counterproductive. What it does indicate is that the child has been repeatedly questioned by various people and at times the questions themselves have suggested an answer which the child is then asked to agree with. When he does, this is relied upon as evidence that some form of abuse has occurred. The intervenor conceded as much during her oral evidence.
Neither the child’s demeanour nor what he says is evidence upon which I can find he has been abused in his mother’s household.
I accept, given the mother’s admitted history, that the intervenor had every reason to be concerned but she would have been far better off complying with the Order she agreed to in 2014 so that she could continue to monitor the child’s welfare. The unintended result of her interrogations of the child and of withholding him has been that she has largely disappeared from his life.
The mother
The mother admits to a long history of dysfunctional behaviour in her relatively short life. The mother commenced abusing alcohol from about age 14. She is only twenty-two yet has three children aged 5, 3 and 4 months. In addition she has had two abortions and one miscarriage since the child was born. None of the pregnancies were planned. By way of contraception she has at times relied upon what she describes as “the needle” which she describes as lasting for three months. Otherwise she has relied upon condoms. She described her source of income as -“I get paid for the children”. If she were to have further children it is likely to place further stress upon her and add to the vulnerabilities of her household.
While pregnant with the child she was using marijuana. After he was born she was using the drug known as ‘ice’ and also used heroin and cocaine. She was partying and getting drunk regularly. The Department became involved and the mother entered into an Intervention with Parental Agreement (IPA). This involved visits to her home and drug and alcohol testing. Despite her admission in these proceedings to continuing to use drugs and alcohol during that time, a positive test was never returned.
The child was removed from her care when he was about four months old but she says that it “could have been handled differently”. How, she does not say. I note that despite her admissions (relating to her drug and alcohol use) during this trial, the mother has previously contended that the child was unjustifiably removed from her care. For example in her intake interview with the C Contact Centre on 25 February 2016 she is recorded to have stated inter alia:
[Ms Jeffery] said that she used to stay with [Ms Dodson] and [Mr Lowry] up until her son was about 8 months old. She wanted to take her son with her to a birthday party in [R Town] but was persuaded to leave him with [Ms Dodson] and while she was away they ‘took off with him’; moved house etc. They ‘went to Welfare’ with ‘false allegations’ that she was ‘on drugs; an unfit mum, a child abuser, which [Ms Jeffery] denies. …
The mother contends that she sought help for her drug use through a number of agencies that provided some counselling and visits to her home. This occurred during the period 2011 and 2013. I have no evidence from any of the agencies. She contends that she continued to use illicit substances for some of the time until eventually staying off them.
The mother contends that she no longer drinks alcohol having last had any alcohol in about mid-2015. She contends that she no longer uses illicit substances.
She has submitted to random drug tests at the request of the Independent Children’s Lawyer and the tests have returned negative for drugs. I am not greatly comforted by this given the mother’s ability to avoid positive drug tests in the past when she admits to using drugs at the time.
Her relationship with the child’s father is described by her as one of violence and drug abuse. She was involved in drug manufacture by obtaining tablets from which the illegal substances were produced. She has no contact with him although her remains a friend of her brother, Mr S. She contends that she no longer sees her brother, Mr S.
The mother stated in her oral evidence that she had suffered post-natal depression after the child’s birth. I have no medical evidence in relation to that.
Her relationship with Mr K has been a violent one. The material produced from Queensland Police in exhibit 9 record the following incidents (which I summarise as follows):
31/08/13 police attended after an incident where the mother and Mr K had been drinking heavily. They had what appears to be a verbal argument as a result of issues of infidelity by Mr K. The argument involved yelling and swearing and the mother locked herself in her room. She damaged a television that belonged to Mr K. It was assessed that both parties were equally responsible.
24/11/13 police and ambulance attended. Mr K had attempted to hang himself using electrical cords off the front house verandah. The mother pushed his head out of the sling. Mr K admitted to lying on the road earlier in the night in the hope that a car would hit him. He went by ambulance to the T Town Hospital.
18/01/14 police attended after an incident where the mother returned home to find Mr K asleep. She was concerned as he was supposed to be looking after L. Upon attempting to wake him, Mr K aggressively told the mother to ‘fuck off. Get off me.’ They then argued about the welfare of the child. Mr K grabbed the mother by the face and threw her onto the bed and held her there for some time. He made threats that he was going to bash her. It was noted that the child was in the other room (yet the mother gave evidence L was in the same room during the altercation)
14/02/14 police were called to a disturbance to find Mr K sitting quietly outside the house with his belongings. Noted that the parties do not live together but Mr K comes to visit L. The mother made allegations of physical assault which were not supported by any evidence of injury. L was present.
14/03/14 police were called to a disturbance arising out of a fight between Mr K and the mother over what to watch on television. The mother told Mr K to ‘get fucked’ and told him to leave the house. He then threw the remote and damaged it. Mr K told the mother that he ‘should kill’ her. The mother stated that Mr K had a knife when they were fighting in the kitchen. Mr K denied this. L was present.
31/05/14 in breach of a Protection Order made on 18/03/14 Mr K repeatedly called the mother making threats to come to her house and smash up the house, smash the mother and smash anyone she may be involved with. Mr K also sent threatening text messages to the mother. Police attended the mother’s house as a result of her complaints. The mother had been staying at an aunt’s home because of her concerns about the threats.
31/08/14 in a further breach of the Protection Order, Mr K phoned the mother requesting that the children come to his home for a visit. When the mother declined his request Mr K said ‘I’m going to come around to your place and kick your head in.’
22/10/15 Mr K called the police after an argument with the mother when he was refusing to hand over his mobile phone to her. (The mother describes in her affidavit that she became more and more infuriated and that she was arrested.) The police made an application for a Protection Order on Mr K’s behalf which was granted.
12/12/15 the mother was driving erratically with L, the child and Mr K in the car and threatened to kill them all. Mr K alighted from the car at a set of traffic lights and went to the police station. The mother also attended at the station by which time she had calmed down.
06/01/2016 the mother and Mr K had an argument resulting in the mother hitting the windscreen of Mr K’s car with a garden rake with the intention of shattering it. L and the child were at the house during the argument although not present when the mother attacked the car. The mother was dealt with for a breach of the Protection Order and fined $300.
She announced during her oral evidence that the breach of her Protection Order on 6 January 2016 arose as a result of her “being off my meds”. She stated that she has been on prescription anti-depressant medication called Lexapro since 2014 although she did not take her medication during pregnancy. Her doctor is Dr U. I have no evidence from him. I note in exhibit 25 the mother is recorded as stating – “Used to have depression. … Now off medication”.
There is no evidence that Mr K has been violent to the mother since 2014. He deposes to having given up alcohol in September 2014 and there is no evidence that he has consumed alcohol since that time. The mother conceded during her oral evidence that she had lied to police on a number of occasions when alleging Mr K had assaulted her and that she did so in order to have him removed from the home.
The mother has most recently been violent to Mr K in January 2016. This led to their most recent separation from January to about March/April 2016. The fact of this recent separation only came out during Mr K’s oral evidence.
Mr K’s affidavit filed 13 June 2016 at paragraph 3 stated:
I have been in a relationship with the child’s mother, the Applicant in this matter (“[Ms Jeffery]”) since approximately the end of 2011 and whilst we have separated briefly at the beginning of our relationship, we are now in a stronger relationship and are focused on being the best parents and partners that we can be for our family.
This is at odds with the police records which indicate the mother and he were living at different homes on various occasions in 2014 and with his own evidence during cross-examination where he conceded the 2016 separation. The mother also conceded during cross-examination that her relationship with Mr K could best be described as ‘on again off again’. Mr K gave his mother’s address as his address in an affidavit filed in July 2015. He could not explain why that would be the case as he said he was living with the mother. It is more likely that he and the mother were living apart at that time.
In November 2015 the mother enrolled the child in school to commence in 2016. She did not include Mr K’s details on the enrolment form and the only emergency contact number provided was the maternal grandmother. I do not accept the mother’s explanation in relation to those omissions, namely, that she was rushed while completing the form and her mother’s number was the only one she could remember. I consider it more likely that her relationship with Mr K at the time she filled out the enrolment form in November 2015 was fractured and she intentionally left his name off the form.
The mother and Mr K have been having couples counselling to address relationship issues and in particular matters to do with their finances and domestic violence. The mother was granted leave to rely upon a further affidavit on the third day of trial. That affidavit annexed to it an email from Mr Ms V from W Group which is described as an “Aboriginal & Torres Strait Islander Corporation Counselling Services”. The email states that the mother has attended appointments for relationship support on the following dates in 2016: 10 March, 6 April, 13 April, 28 April, 3 May, 10 May, 26 May and 3 June. The email states that:
[Ms Jeffery] has been committed to her sessions since engaging with us and has made positive improvements in creating a stable living space with and for her family. During her sessions she has shown unconditional love and support for her family.
… [Mr K] has also engaged with W Group for relationship support with one of our male counsellors.
Unfortunately, the email provides no information about the qualifications of the person or persons providing the counselling or the details of any counselling provided. It does demonstrate, at least, that the mother and Mr K have the ability to seek out support and maintain a commitment to pursuing such connections. That is very important in this case.
The mother contends that she can no longer trust the intervenor because if the intervenor were to have unsupervised time with the child she would refuse to return him. She stated that she would not comply with an Order for unsupervised time. I accept it is unlikely that the child would be returned to her if he spent unsupervised time with the intervenor at this time.
The mother and Mr K deny abusing the child in any way. They can offer no explanation for the statements he has been alleged to have made e.g. mummy put fire in my hair. As to the statement about ‘mummy giving me a needle in my mouth’ she explains that she has used a syringe to give him liquid Panadol. She denies that she has ever given the child beer to drink. She describes similar frightened and distressed behaviour in her household as described by the intervenor in hers. He was frightened of loud noises and spoke of having bad dreams involving monsters. Given the violence and conflict he has been exposed to in each household it is, in my view, hardly surprising that he has presented in this way.
The mother became quite distressed when asked about the child’s behaviour in her household. When giving an account of seeing him push L over she cried and explained that she did not feel she was able to discipline the child as everything she does is used against her. It is certainly obvious from her demeanour that the focus on her parenting during these proceedings has taken its toll. On the positive side the mother does demonstrate an ability and willingness to seek out help and follow through with suggested interventions.
I remain concerned about her vulnerability as a mother of three small children dependent on social security with little emotional or financial support, particularly if her relationship with Mr K breaks down.
Mr K
Mr K impressed as someone who has matured over the last two years.
He certainly had a violent and troubled life as a teenager. He has convictions for violent behaviour when he was 16 and 17 years old but has never been in prison. Up until September 2014 he was a binge drinker and would consume a case of beer containing 24 cans in a session on each day of the weekend. He admits punching the mother on one occasion in or about November 2013 causing a black eye - (this is not an incident recorded in police records although the mother stated it was the same night Mr K attempted suicide). He cannot always remember things he did when intoxicated and stated this is the reason he decided to give up alcohol altogether. While he attends the pub and the RSL to play the pokies he says that he drinks soft drink. There is no evidence that he has consumed any alcohol since September 2014. There is no evidence of his being violent since 2014.
He has attended a parenting course and was able to articulate some strategies he learned. I was impressed with his insight in the description of the ‘time out’ mechanism where he noted that the strategy was used to give both the child and the parent time to calm down. He plays a significant role as a father figure to the child and assists with his homework and takes him to school. The child calls him ‘dad’.
He has been undertaking counselling separately and with the mother to address ongoing issues in their relationship and states that the arguments that they have a more of a discussion and are controlled. He is an imposing figure and I would be concerned were he to take up drinking alcohol again.
In relation to Mr K’s suicide attempt in November 2013, he states that he was very intoxicated at the time. He has had no psychiatric treatment. The mother describes him as suffering from anxiety and ‘Tourettes’. He did not present as someone suffering from Tourettes.
Mr K ceased his casual employment about eight weeks ago in order to assist the mother with the children. He contends that he has spoken to his boss and can return any time and intends to return after this trial.
F
F is the eldest daughter of the intervenor and she is yet another person in this trial who has suffered trauma as a result of poor parenting, exposure to violence and a failure by her parents to provide a safe environment in which to grow up. That said, she presented as an impressive young woman who spoke confidently and articulately. She broke down a couple of times during her evidence when talking about her affection for the child.
It is clear, though, from her evidence, that the child has been encouraged to speak about his mother. Indeed F said they were told “by the Department” to encourage him to “talk about the trauma”. She stressed that she did not ask leading questions but would ask him questions such as ‘what do you mean’, ‘Why’ etc. The video recordings in exhibit 2 do not corroborate the absence of leading questions. Such questions may not have been asked by F but they were asked by others including the intervenor.
I am satisfied that F has the child’s best interests at heart but that she and others have engaged in a process of constant chatter about alleged abuse in the mother’s household and have exposed the child to that chatter. She has also been directly involved in exposing the child to conflict e.g. when the mother attended at the intervenor’s home and F and the mother engaged in a physical altercation because of F trying to film the mother.
X
X is F’s boyfriend. He gave evidence about being concerned for the child being exposed to alcohol abuse and drugs in the mother’s household but conceded his sole source of information was the child.
B
At times he has been a very unhappy little boy in the mother’s care and has acted out by kicking her and being aggressive to L.
The mother’s affidavit evidence about how the child has been managing the transition into her household sought to portray a very different picture to what I regard as the reality. As the mother conceded in oral evidence he has been very troubled, distressed at times and missed the intervenor and grandfather. His sadness, anxiety and acting out behaviour continued into 2016.
The child commenced at the Suburb H State School in January 2016 and has regularly attended. He has had nine days absent and only one of those was unexplained. The school records note his statements of missing his ‘poppy’, presumably a reference to the grandfather. That sentiment is also recorded the Contact Centre notes.
He experienced high degrees of anxiety in the first few weeks of school and was noted to be easily upset. He cried and was anxious at daily drop offs and cried during class saying he was afraid of monsters. He was distraught during a fire drill. He was noted to be aggressive to other children and to have difficulty concentrating.
To her credit, the mother sought out help from the school. The child and the mother have been in contact with a school guidance officer and the school chaplain who has had regular contact with the child.
In a letter from the school dated 2 March 2016 the child’s prep teacher noted that the child always comes to school prepared for the day with all of his school requirements, including a well-packed lunch. He is dressed appropriately. The mother was noted to have approached the child’s teacher to discuss his social and emotional needs. The letter states that the child has settled into school well and appears to be enjoying school life. His needs were being met through a partnership between the mother and the school community.
By 29 March 2016, it was noted that he had really settled at school and was helping other children.
On 21 April 2016, the mother disclosed to the chaplain that the child was not happy at home and missed his grandfather and wanted to go home to his grandfather. She said he had not yet settled at home and she sought help in establishing a bond with him.
The child was referred by her general medical practitioner to Dr Y, paediatrician on 18 May 2016. The referral states:
Thank you for seeing this boy regarding his mental health issues. There are three domains of concern. Firstly he has been reporting suicidal thoughts and depressive thoughts which are worsening in the last couple of months, eg “I want to stab myself in the heart with scissors, life isn’t worth living”. He has also had issues with separation anxiety and fear of various things, he needs someone to go to the toilet with him each time. Additionally he has some features of ADHD with reported attention and hyperactivity.
It appears that the child saw Dr Y on 8 June 2016 and also possibly on 15 June 2016. Unfortunately there is no report from Dr Y and her notes are illegible but the mother stated that Dr Y had ruled out Attention Deficit Hyperactivity Disorder.
The child has attended upon a child psychologist, Ms J, on the following dates – 27 June 2015, 28 July 2015, 11 August 2015, 13 August 2015, 20 August 2015, 24 August 2015, 29 September 2015, 14 November 2015, 1 December 2015, 27 May 2015, 10 June 2016. Unfortunately, there is no report from Ms J who was overseas for the duration of the trial and not able to be contacted.
It appears the original referral arose as a result of the intervenor’s concerns that the child was being abused in the mother’s household. Her notes demonstrate that she has been providing ongoing assistance to the mother and Mr K on issues they have experienced with the child including parenting skill training. She has also engaged the child in therapy. Her notes do not reveal any basis for concluding that the child is being abused in his mother’s household. The break in therapy between December and May appears to be related to funding and obtaining a further mental health plan to enable the child’s continued access to Ms J.
Promisingly his end of semester 1 2016 report card describes the child as a:
… happy friendly student who appeared to enjoy school and the company of his peers. He was occasionally distracted by others and could be hasty in completing his work, but has responded well to gentle reminders to stay focused and on task. The child made satisfactory progress this semester.
Dr P, psychotherapist and accredited mental health social worker
Dr P prepared three reports in this matter dated 3 April 2012, 24 April 2014 and 14 June 2016. In her first report she opines:
12.1 This matter has a high level of complexity. Embedded within this are issues of historical trends generational interpersonal violence, neglect, emotional harm, substance abuse, insecure attachments and criminal activity. Early development takes place largely within the context of the caregiving relationship. The impact of trauma on infants and young children is unique because it occurs within a critical development period and is vastly influenced the nature and quality of the caregiving system. It is evident that the subject child has been exposed to a caregiving relationship characterised by uncertainty, unpredictability, violence and fear. This is a pattern that has a generational history to it… From reports it seems [Ms Jeffery] herself was a victim of arguably high levels of sustained child abuse and neglect extending from her primary caregiving relationship with [Mr Lowry] and her mother. This matter brings to the fore the long-term effects of such relationships where there are multiple levels of impairment in adulthood, including poor attachment patterns, poor affect regulation, disassociation, poor impulse control, substance abuse, unemployment, itinerancy and poor mental health.…
12.2 It is undeniable that the subject child identifies [Mr Lowry] and [Ms Dodson] as his primary caregivers. However, this alone does not serve to meet the subject child’s best interests. Indeed, as discussed above, there are significant issues of a child protection nature that place this child at risk of harm within this caregiving context. Similarly, it is observed that the relationship between the subject child and his mother, [Ms Jeffery] has been compromised as a result of her difficulties adapting to parenthood, substance abuse and being in a violent and abusive interpersonal relationship. This caregiving environment also poses a significant level of risk to the subject child. Having said this, it is my assessment that neither party at this point in time ought to have the subject child in their care without formal engagement of an authoritative body to supervise the caregiving environment.… The paternal and maternal families express a high level animosity towards each other and thus, what could have potentially functioned as a support for [Ms Jeffery] as a vulnerable young mother, is a source of tension and conflict.
12.3 …having made these comments and observations, it seems premature to be formalising parenting orders, this point in time, given it is my assessment that both parties require supervision in their care of the subject child and that this most appropriately be undertaken within a child protection framework.… I therefore make the following recommendations:
12.3.1 [Ms Jeffery] be given the opportunity to address her substance abuse issues, complex trauma history and low parenting capacity and henceforth, be identified as the potential primary caregiver of the subject child…
(footnotes omitted)
Dr P interviewed the parties again in April 2014. In relation to the mother’s relationship with Mr K, I note the mother’s comments to Dr P:
5.1… [Ms Jeffery] stated that she and [Mr K] have been attending relationship counselling to improve their communication skills and we have not had any DV incidents now for over a year. We can communicate and we are trying to work things out to be a family.
Dr P’s evaluation and recommendations as at April 2014 include the following:
11.1… Significant changes have occurred since the initial report. Most notably [Mr Lowry’s] relationship with [Ms Dodson], arguably the child’s primary carer, has ended and secondly, [Ms Jeffery] has given birth to her youngest child, and to her credit, has consistently parented this child to date. It is recognised by all parties concerned that the child has a strong and secure attachment to his primary caregiver, [Ms Dodson] and that it is in his best interest that this attachment be preserved in the short term so as to maintain his sense of stability and security.…
[she recommended]
11.1.1 That the child remain in the primary carer of [Ms Dodson] for a period of 10 months, and commence as soon as possible spending time with his mother each weekend … progressing to… [the child] living with his mother and spending time 2 nights per week with [Ms Dodson]…
On 1 June 2016 the parties attended further interviews with Dr P. By this time the mother had a third child. During the mother’s interview with Dr P she made the following comments:
5.2… There has been violence between [Mr K] and I in the past, that’s true, but we have been working on that and we do still argue but there isn’t the violence anymore. We still see a counsellor to keep on top of this. We have separated a few times, that’s true as well, but from my counselling I learned that because of how I have been treated [by] men in my life, including [Mr Lowry], have always fucked me over. I have trust issues, I know that. But [Mr K] and I are really close and we have a family and that’s our focus. We need [Ms Dodson] and [Mr Lowry] to stay out of it and leave us alone. Most of the stuff they keep saying is not true.
5.3 [Ms Jeffery] opined that the child the child has settled into a routine in her care. She stated that she has maintained counselling for the child with a child psychologist ([Ms J]) to assist him in adjusting and to help him with everything that has happened. She discussed her concerns regarding her relationship with the child commenting, he sometimes says really mean things to me and it hurts. Like he can say he hates me and I feel so hurt about that. He kicks me and things like that. He is better with [Mr K]. [Ms Jeffery’s] responses indicated some attachment difficulties and a lack of clarity in terms of her own attachment needs, that is to feel loved and needed which seems to get in the way of her being able to recognise the cues from the child which most likely at this point, include ambivalence in regards to her emotional availability and capacity to remain consistent and predictable in her presence. [Ms Jeffery] acknowledged she doesn’t really know what to do some times. I want to help him, so I would do anything to help him.
5.4…[Ms Jeffery] identified parenting strategies that indicated at the least knowledge of age appropriate discipline, including ‘thinking time’ (which resembled ‘time in’ strategies more appropriate to children who have experienced attachment trauma) and predictable routines and play. In terms of attunement, [Ms Jeffery] reported feeling at a loss at times as to what the child is attempting to communicate or to achieve. She indicated a strong desire to improve this capacity. It is noted that during the interview, [Ms Jeffery] nursed her young baby, demonstrating a capacity for showing delight (smiling and cooling with the baby) comfort (feeding the baby, soothing as needed) and responsivity.
8.1 [The child] interacted comfortably with both his mother and [Mr K]. The interactions initially began with general discussion regarding activities the child had been participating in at school. [Ms Jeffery], discussed how excited she is to attend his first sports carnival and the child appeared happy with his mother’s enthusiasm by adding how fast he can run. [Ms Jeffery’s] interactions demonstrated understanding of his need to explore as well as seek reassurance and comfort as needed.… At times [the child’s] mood up regulated however, he was easily settled by his mother. [The child] was noted to call [Mr K] ‘Dad’ and readily sought proximity to him and he also cuddled his younger infant sister appropriately and with warmth. Overall, the interaction was characterised by warmth and connectedness.
9.1 Initially [the child] appeared a little overwhelmed in the room, perhaps due to the number of people present. [This was during the observation with [Mr Lowry], [Ms Dodson’s] and her daughters, [F] and [E] He readily sought proximity to his grandfather and looked through photographs with him, discussing memories from same. The child also settled into some discussion with [Ms Dodson’s] daughter [E] and appeared comfortable in her presence.…[The child] was observed to separate without issue. However, he did appear somewhat confused or hesitant. This is perhaps as a result of his past experiences of ‘changeovers’ being filled with turmoil and conflict as well is uncertainty in regards to when and under what circumstances, he may spend time with the parties again. He readily joined his mother and [Mr K] leaving the building calmly and well regulated.
In her final evaluation and recommendations Dr P opines:
10.1… It is evident that over the course of approximately 6 years the child [B] has primarily been in the care of [Ms Dodson] with his mother, [Ms Jeffery] initially struggling to remain consistent in her care of the child due to substance abuse and general instability. Although the caregiving context has historically been marked with episodes of heightened conflict, there have also been periods of time when [Ms Jeffery] and [Ms Dodson], and intermittently [Mr Lowry], have managed to cooperatively negotiate how the child spends time with either party.… It seems, however, over the past 12 to 18 months that the relationship between [Ms Dodson] and [Ms Jeffery] declined with increased conflict and subsequently a plethora of allegations by both parties… The outcome of each investigation has determined that there is insufficient evidence to support their allegations with child safety determining that, indeed, Ms Dodson currently poses a significant risk to [the child’s] emotional well-being due to her unstable desperate behaviours …
10.2 … It is highly likely that, as [Ms Dodson] claims, [the child] is struggling emotionally to develop a coherent understanding of his caregiving context … that has been fractured, conflicted and insecure. What is absent from [Ms Dodson’s] narrative, however, is the impact of how her fear and anxiety in regards to his safety whilst in his mother’s care, influences his sense of safety,… so although his attachment with [Ms Dodson] is strong, it is likely to be characterised by insecurity. [Ms Jeffery], from the evidence provided, has proactively engaged with appropriate services to address to her difficult relational patterns, she has refrained from substance abuse for a significant period of time, as evidenced in her random urine samples and rather than attempting to silence [the child], has engaged him with a child psychologist to assist him adjust and express areas of difficulty he is experiencing. … what seems to be clear is the need for a stable, predictable and supportive caregiving context for [the child]. The difficulty here is that there is evidence to indicate [Ms Dodson] is and has provided this for [the child] historically and could most likely do so under circumstances where she has sole parental responsibility, with [Ms Jeffery] having supervised contact. It is, however, difficult to form the opinion that [Ms Jeffery] poses a level of risk to [the child] to warrant this kind parenting arrangement and, indeed, it would seem counter-productive to his well-being to deny him the opportunity to continue to develop a meaningful and secure relationship with his mother, stepfather and siblings.
Dr P makes a number of recommendations including:
a)The child remain in the primary care of Ms Jeffery and that she have sole parental responsibility given the level of conflict between the parties
b)Supervised time with Ms Dodson and Mr Lowry on a monthly basis for a period of six months to allow a period of restorative reprieve for the child, his mother, Mr K and siblings to further facilitate the development of their relationships;
c)F and E be permitted to attend supervised contact;
d)Subsequent to the six-month period contact remain supervised but occur on a fortnightly basis for a further period of six months and then further review;
e)The child to continue to see Ms J.
No party (including the Independent Children’s Lawyer) sought an interim Order. That is understandable given the Court’s involvement over the past six years.
In her oral evidence Dr P opined:
a)There are benefits in Ms Dodson remaining in the child’s life even if on a supervised basis. She acknowledged the vulnerability of the mother’s household and possible future involvement of the Department and in circumstances where the Department required a third party placement for the child at least Ms Dodson is someone well known to him.
b)It would be a good time for the Department to become involved by linking the mother to supports given her greater stability. She was however unsure how that might happen absent a Notification of Risk.
c)The child’s presentation in July 2015 as described by Ms Dodson was consistent with a boy having been removed from his primary carer, not having contact with her and being exposed to conflict.
d)Neither attachment (with Ms Dodson or with the mother) is currently secure. The child is floundering. In such circumstances he is going to present with traumatic symptoms.
e)An important consideration in continuing supervision is that Ms Dodson can continue to monitor and the Contact Centre likewise can continue to observe. It is a protective mechanism.
f)The hope is that his attachments become more reliable, stable and a source of comfort. If the attachments continue to be a mixture of comfort and fear he will continue to present in a traumatic fashion and is likely to develop mental health issues.
g)The child’s recent interaction with his mother was the best to date. There was spontaneous affection shown by the child to his mother. He laughed and played with the mother and Mr K and his half siblings. The mother was very child focussed. The child separated well from the mother without any anxiety. He did appear to have formed an attachment to his mother.
h)Moving the child now will likely further fracture his ability to form attachments.
i)While both households have issues and risks he seems to be progressing reasonably well.
j)The mother needs to establish solid support structures.
I find Dr P’s observations, opinions and recommendations to be very helpful and I generally accept her opinions. I do not intend however to make an interim Order. The parties and Independent Children’s Lawyer agree that a final order should be made. The child needs the security of knowing (as far as possible) that his placement with his mother is permanent.
Assessment and consideration of relevant legislative matters
The child is developing an attachment to his mother and the mother is doing all she can to seek out assistance and adopt strategies to assist her in managing the child. The very recent observations made by Dr P demonstrate an affectionate relationship between the mother and the child suggesting a secure attachment is developing.
While historically his primary attachment was to Ms Dodson that attachment is now an insecure one according to Dr P. He has had very little time with her since April 2015.
It seems he has a loving relationship with the grandfather as he has spoken fondly of him to the school chaplain and has told the mother he misses him. The observation made at the Contact Centre of a visit between the child and the grandfather was positive.
Dr P’s recent observations suggest a warm relationship with Mr K, his half siblings and with F and E.
It would seem that there is benefit to the child maintaining all relationships but that will depend upon whether sufficient safeguards can be maintained and whether he can be protected from exposure to conflict and risk of harm.
Whether I order the child to live with his mother or the intervenor there are potential risks to his safety and development.
The mother, grandfather and intervenor all have a history of drug use. The grandfather and intervenor concede a continuing drug use. There is no evidence that the mother or Mr K have recommenced illicit drug use or alcohol abuse.
Although this Court does not usually enjoin a person from doing something that is already illegal, I see a need to do so in this case given the rather cavalier attitude of the parties to illegal drug use, particularly the grandfather and intervenor, and the consequent historical exposure of the child to poor parenting, violence and a criminal element. There is also no doubt that the mother’s and grandfather’s capacity to care for the child has been significantly impaired in the past by their drug and alcohol use and the child has been exposed to violent conduct more often when drugs and alcohol have been a feature.
The mother, Mr K and the grandfather all have a history of violence. The mother and the grandfather continue to be subject to the conditions of protection Orders. The protection Order against Mr K has expired.
The intervenor has a history of failing to protect her own children and the child from exposure to family violence and abuse.
It is my intention to impose a number of restraints on each party.
The child has endured enormous change in his short life. Since April 2015 he has been moved back and forth between households and endured interruptions to his relationships for significant periods. I accept, as Dr P opined, he is confused and anxious and that his behaviour, as variously described by the intervenor and the mother, is explicable by the extraordinary changes and the exposure to high conflict between the warring households including physical altercations, swearing and police intervention. In addition, he has endured interviews by police and the Department, examination by various doctors and interrogation by the intervenor and various members of her household.
Further he was removed from the intervenor’s care in July 2015 by Police pursuant to a recovery Order when the intervenor failed to comply with an earlier Order. The intervenor readily acknowledged that it was a very traumatic event for the child.
It is hardly surprising that he has presented as distressed and anxious in a variety of settings including at school and that he has expressed suicidal ideation and acted out aggressively at times.
The mother’s household is vulnerable. Despite her attempt and Mr K’s attempt to paint a rosy picture of their life together, I find that the relationship is unstable and there is a real prospect of it breaking down. This is despite the fact that they have undergone relationship counselling in the past and have continued to undergo relationship and personal counselling in recent times. They have also been undertaking counselling in relation to improving their parenting skills and have each been able to demonstrate an understanding and insight into strategies that will assist in their management of the child and their other children.
If the child remains in the mother’s care she will need significant practical, psychological and emotional support. Despite my reservations about the mother and her circumstances, she has shown a history of seeking support and assistance and that is a positive. In the past, one of those supports has been the intervenor. At least in the medium term that will not be an option given the intense conflict between them at this time.
There are finally signs of the child settling in his mother’s household and his school describes him as a ‘happy little boy’. He has in place considerable supports at school and the mother, to her credit, has sought out assistance from a paediatrician and a psychologist. The child has been regularly attending school and presents at school as a physically well cared for little boy. It will be beneficial for the child to remain at his current school. The intervenor stated that while she would be likely to keep him at his current school for the rest of this year, it would be her intention to change his school next year.
If I were to uproot the child yet again I fear he will only go backwards. He no longer has a secure attachment to the intervenor and it is unlikely that he would be able to further develop his relationship with the mother given the high level of animosity between the households.
As the child has a mother and grandfather who are of Aboriginal descent he will have the capacity to be exposed to any relevant cultural mores although neither party was able to articulate what that may involve other than to refer to elders in their extended family and an intention to enrol the child in traditional dance classes and camping adventures in the future.
There is no capacity of the parties to make joint decisions about major long term issues and accordingly the person with whom the child lives will have sole parental responsibility.
Despite some significant shortcomings, the intervenor has provided some worthwhile care to the child historically and I am satisfied that she does have his best interests at heart. She impressed as having learnt from her mistakes in relation to the ‘evidence gathering’ conduct and accordingly I propose to provide for the child to spend time with her. Importantly she may be able to step in should the mother be unable to care for the child for some reason in the future. I envisage this occurring only if the Department consider placing the child in foster care and in such circumstances the intervenor may be a contender. Her time with the child will be supervised initially but will revert to unsupervised after twelve months. I consider this will be a sufficient buffer to enable the mother’s bond with the child to strengthen and will also provide an independent monitor (at the Contact Centre) of the child’s welfare over the next twelve months. As the child becomes more settled in his mother’s household I propose to reduce his time with the intervenor to monthly visits as he will no doubt become more involved in school and extracurricular activities and I consider monthly visits will be sufficient for him to maintain his relationship with the intervenor and her family.
The child expresses a fondness for his grandfather and as long as he can see him in a safe environment I propose to enable that relationship to continue also. Initially it will be supervised at a Contact Centre and thereafter supervised by a responsible adult appointed by the mother or intervenor.
The child is, of course, the mother’s biological child but this fact has not been a significant factor in my deciding in favour of the child remaining with his mother.
For the reasons outlined I propose to make an Order as set out above.
I certify that the preceding one hundred and thirty nine (139) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 11 July 2016.
Associate
Date: 11 July 2016
Key Legal Topics
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Family Law
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Administrative Law
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Injunction
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Procedural Fairness
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