McKenzie and Matthews and Anor
[2008] FamCA 853
•22 September 2008
FAMILY COURT OF AUSTRALIA
| MCKENZIE & MATTHEWS AND ANOR | [2008] FamCA 853 |
| FAMILY LAW – CHILDREN – With whom a child lives – Child to live with maternal grandmother |
| APPLICANT: | Mrs McKenzie |
| RESPONDENT FATHER: | Mr Matthews |
| RESPONDENT MOTHER: | Ms Dawson |
| INDEPENDENT CHILDREN’S LAWYER: | Peter Hamilton |
| FILE NUMBER: | NCF | 636 | of | 2006 |
| DATE DELIVERED: | 22 September 2008 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | JUSTICE MULLANE |
| HEARING DATES: | 14 March 2007, 27 -29 February 2008 and 17 April 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Carl Boyd |
| SOLICITOR FOR THE APPLICANT: | Boyd Olsen Lawyers |
| THE RESPONDENT FATHER: | In person |
THE RESPONDENT MOTHER: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr T Bates |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Peter Hamilton & Associates, Solicitors |
Orders
Any current orders regarding the child Y born … November 1998 are discharged.
Y is to live with the maternal grandmother Mrs McKenzie and she has sole parental responsibility for Y.
For the personal protection of Y, the maternal grandmother and Mr McKenzie, each of the parents must not:
3.1reside or stay overnight within 10 kilometres of the village of X;
3.2go within 200 metres of Y’s residence or any school he attends;
3.3approach Y except during time he spends with the parent pursuant to these orders;
3.4approach either of the maternal grandmother or Mr McKenzie; or
3.5communicate with Y by telephone.
It is noted that order 3 is an order for the personal protection of Y, the maternal grandmother and Mr McKenzie, a breach of which attracts the power of arrest without warrant pursuant to section 68C of the Family Law Act, 1975.
Each of the parents must keep the maternal grandmother informed in writing of his/her residential and postal address and a contact telephone number.
Subject to agreement by the Rainbows Contact Centre conducted by Relationships Australia (“the Contact Centre”), Y spend time with the parents at the contact centre and supervised by it as follows:
Father
The Saturday before Father’s Day, for 2 hours;
The Saturday before the father’s birthday, for 2 hours;
The Saturday before Y’s birthday, for 2 hours;
The last Saturday of the Christmas school holidays, for 2 hours.
Mother
The Sunday of Mother’s Day, for at lest 3 hours
The Sunday before the mother’s birthday, for at least 3 hours;
The Sunday after Y’s birthday, for at least 3 hours;
The first Sunday of the Christmas school holidays, for at least 3 hours.
Within seven days the Independent Lawyer for Y must provide the contact centre with a copy of the Judgment (including these orders).
Each party must:
8.1contact the contact centre within 7 days and arrange an appointment for assessment for suitability for supervision of the time Y spends with him or her;
8.2 attend the assessment;
8.3comply with any appointments made by the contact centre for supervised time;
8.4 comply with all reasonable rules of the contact centre;
8.5comply with all reasonable requests or directions of the staff of the contact centre; and
8.6pay any reasonable fees of the contact centre for each provision of supervision at least 14 days before the supervision is to be provided.
By 31 December 2008 the maternal grandmother must attend and complete a course in parenting or a course of counselling in parenting approved or nominated by the Manager of the Child Dispute Service of this Registry of the Court and must:
9.1telephone the Manager within 7 days and obtain the necessary approval or nomination;
9.2 attend each session of the course;
9.3 pay the reasonable fees for the course;
9.4upon completion of the course obtain a letter from the provider certifying sessions attended and completion of the course; and
9.5promptly provide the other parties and the Independent Lawyer for Y with a copy of the letter.
The course or counselling is to include material addressing Y’s special needs arising from him suffering Oppositional Defiance Disorder and Disorganised Attachment Organisation.
Within seven days the independent lawyer for Y must provide a copy of the report of the single expert, Ms S, and of the Judgment (including these orders) to the K Office of the Department of Community Services, and also provide a copy of the judgment to Mr C of Kaleidoscope Mental Health Services and to Ms S.
The maternal Grandmother must arrange for Y to attend the Child Dispute Services on the second floor of the Newcastle Registry of the Court at 4.30pm on Monday, 29 September, 2008 so the Judge can meet with Y, inform him of the orders, and briefly explain the reasons.
Otherwise any outstanding applications of the parties regarding Y are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym McKenzie & Matthews and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCF 636 of 2006
| MRS McKENZIE |
Applicant
And
| MR MATTHEWS |
Respondent Father
And
| MS DAWSON |
Respondent Mother
REASONS FOR JUDGMENT
INTRODUCTION
This was a hearing about whether a 9 year old boy, should live with his grandmother or with one of his parents. But as the evidence evolved, the main issues were about whether he should spend time with his parents, and, if so, how he could be protected from them.
CREDIT OF THE APPLICATION MATERNAL GRANDMOTHER
The maternal grandmother presented generally as honest and reliable in her evidence.
CREDIT OF Mr McKENZIE
Mr McKenzie also presented as an honest and a credible witness.
CREDIT OF THE RESPONDENT MOTHER
The respondent mother presented as dishonest and wholly unreliable in her evidence. Her versions of events were contradicted by many public records made by persons without any demonstrated motive for misreporting.
Her evidence was often inconsistent.
In some areas of her oral evidence contradicting previous oral evidence she had given, when her attention was drawn to the inconsistency with her prior evidence she denied having given the prior evidence.
The mother presented as a person who would to lie about anything if she thought it would assist her in the proceedings.
On 28 February the father did not attend the hearing until 2.34pm. The mother told the Court in the morning that the father would be there at 11am and that the reason for his absence was that he was attending a funeral. But when she was being cross-examined in the afternoon, after 3pm and the father again was not present and she was asked in cross-examination where he was. She testified that he had gone to Sydney “for a few days looking for work”.
According to evidence which the father later gave, neither of these explanations she gave the Court was true. When the mother was cross-examined further on 29 February, she denied telling the Court the previous day that the father had gone to a funeral and denied there was any discrepancy between the explanation she gave the Court on the morning of 28 February and the explanation she gave in the afternoon. When she was asked where he was, she said she did not know.
During her cross-examination on 28 February, the mother for the first time raised an allegation of sexual abuse of her by Mr McKenzie. She said, “When I was 15 [Mr McKenzie] tried to pull me onto his penis. He tried the same thing to [Y].” She claimed that this was in an affidavit prepared by David Coyle’s office. She said that she had sworn the document and it was filed. But the affidavits relied upon by her in the hearing did not include any such allegations, nor was any affidavit from the court file tendered by her to substantiate the allegation that she did swear an affidavit. The solicitor’s file was subpoenaed, but there was no affidavit or copy of an affidavit tendered from the file. On the balance of probabilities she was lying about the affidavit and she was also lying about the attempted sexual abuse of her and Y by Mr McKenzie.
At the start of the hearing on 17 April 2008 the mother falsely purported that she had instructed a lawyer to appear on her behalf. The hearing was then delayed while enquiries were made of various lawyers. She had not instructed any lawyer.
CREDIT OF THE RESPONDENT FATHER
The father did not have such serious credit problems as the mother.
The father has a criminal record with numerous convictions for offences involving dishonesty over many years. In cross-examination he sometimes avoided questions and sometimes responded to a question with a question, rather than an answer. On 17 April he gave false evidence about his proposals.
Overall he presented as a witness of poor credit who was sometimes shown to be dishonest in his evidence and had a history of dishonest behaviour.
BACKGROUND
Y was born in November 1998. His father was then 36 and his mother was 27. Both the parents had been users of illegal drugs, including heroin. The father was in prison at the time. The mother was on a methadone program.
The mother had another child J, from another man, and J was 5 at the time Y was born. The mother had started using illegal drugs with J’s father in 1992 before J was conceived. She stopped using for a while before J was born. Similarly after she fell pregnant with Y she stopped using heroin and went on a methadone program. The mother does not know the whereabouts of J’s father.
Y was born in Sydney with a methadone addiction and treated for that. When Y was born, the maternal grandmother travelled from the village in the Hunter Valley (“the village”), where she resided (and still resides) to assist the mother with the baby and J. The maternal grandmother stayed for 3 months. She returned to the village in February a week after the father was released from prison.
After the maternal grandmother returned home, the mother cared for J and Y and the father was a member of that household.
Since December 2000, J has lived with the maternal grandmother. The maternal grandmother had married Mr McKenzie in 1990. When J came to live with them, they were still cohabiting. But in 2001, they separated. However, they have since continued living in the same home and have, it appears, continued to perform household chores for each other and assist each other personally and also with the care of J and Y.
In May 2001, the mother purchased a house in the village. The mother and Y moved to live in the maternal grandmother’s home with her, Mr McKenzie and J. The father remained living in Sydney. It appears the mother was still in the methadone program when she moved there. Over the next 2 years the mother arranged for various repairs to be carried out on the house she purchased.
When the mother was living in the household of the maternal grandmother, the grandmother assumed the full time care of Y and continued to provide most of J’s care.
On 25 February 2002 the mother contact DOCS. She said that she had taken Y the previous week to visit the father in Sydney. She alleged that the father had drugged her with a spiked drink and then sexually assaulted her while she was unconscious. She said she had fears that the father would kill her and Y and she had obtained an Apprehended Violence Order against him.
In 2003 the mother obtained a traineeship in health services working 5 days a week and attending TAFE 2 nights a week. She also had a weekend job working as a receptionist on some weekends. During this period the maternal grandmother provided most of the care of Y. On week days the mother was away from the home from 7.30am to 6pm and in addition away from the home to attend TAFE classes at night, two nights per week.
The father says that he ceased using heroin and cannabis in 2002. It appears that from then on he was participating in a methadone program for about 2 years.
In late 2003 the mother moved to reside in her own house at the Village. She took Y with her. Her employment in health services continued.
From 1 October 2003 to 28 December 2003 Y resided with the maternal grandmother, J and Mr McKenzie, and the maternal grandmother provided most of his care.
The mother was charged with assaulting Mr McKenzie in May 2004. She was later convicted and placed on a good behaviour bond for 12 months with a condition that she strictly comply with an Apprehended Violence Order restricting her conduct for the purpose of protecting Mr McKenzie.
From June 2004 Y resided with the maternal grandmother and this continued until December 2005. Orders were made in the Federal Magistrates Court on 24 September 2004 that Y reside with his maternal grandmother, that she have joint responsibility with the mother for making decisions about his long term care, welfare and development, and that he spend time with his mother as agreed between the maternal grandmother and the parents, and in default of agreement, every second weekend from 10am to 5pm on Saturday and on Sunday. There was provision for him to spend other times or overnight stays with his mother or his father.
The orders were made on an undefended basis. Neither parent appeared at the hearing.
In December 2004 the father was sentenced to imprisonment for 18 months for armed robbery. The mother’s employment ceased in November 2005 and she has not been employed since. From about December 2005 the mother assumed the full time care of Y. J continued residing with the maternal grandmother and Mr McKenzie.
In 2006 the father was sentenced to a further period of imprisonment for other offences, including armed robbery with an offensive weapon (3 years and 2 months sentence).
In July 2006 the mother assaulted Y. She pulled his hair and hit him repeatedly about the head. He sustained 2 black eyes, including bleeding in one eye, an injury to the nose causing bleeding, and injuries to the head causing lumps. Y has since resided with the maternal grandmother. The Police took proceedings against the mother for assault occasioning actual bodily harm and also for an Apprehended Violence Order for protection of Y against the mother.
An interim Apprehended Violence Order was made against the mother on 10 July 2006 restricting her behaviour for the purpose of protection of Y. She pleaded non-guilty in relation to the assault charge and it was adjourned.
On 10 July 2006 the maternal grandmother commenced these proceedings by filing an application in the K Local Court seeking that Y reside with her, she have sole parental responsibility for him, and Y spend such time with the mother as she and the maternal grandmother agree.
On the application of the Police a 12 month Apprehended Violence Order was made on 12 July 2006 restricting the mother’s behaviour for the purpose of protection of Y. Interim orders were made by the Local Court at K for Y to live with the maternal grandmother, and have such contact with the mother as is agreed between her and the maternal grandmother.
Further interim orders to the same effect were made in the same Court on 9 August 2006.
The father was released from prison on 17 August 2006 on parole. It appears that it was a condition of his parole that he not travel to the area where Y was residing. But in late August Y disclosed to the maternal grandmother that his father had visited him at school. The school contacted the maternal grandmother about the father “hanging around” the school. The maternal grandmother consulted the Department of Community Services (“DOCS”). They took Y into foster care for a week. During that period the father returned to Sydney.
The proceedings were transferred to the Federal Magistrates Court at Newcastle on 20 September 2006 and in that Court an independent lawyer was appointed to represent Y.
On 25 October 2006 the mother telephoned the Probation and Parole Service and demanded that the father be able to return to the village in which Y was residing. The father’s Probation and Parole Officer contacted DOCS and was advised that the Department considered the father to be a risk of absconding with Y and also that he and the mother “are a risk to the children”.
In September 2006 the maternal grandmother consulted Y’s general practitioner and he organised for a referral for Y to see a child psychologist about behaviour problems. In October 2006 Y went to his first appointment with Dr C, a psychologist at the Kaleidoscope Mental Health Services.
The proceedings were subsequently transferred to the Family Court and on 13 December 2006 interim orders were made by a Judicial Registrar for Y to live with the maternal grandmother and spend 5 hours each Saturday from 11am to 4pm with his parents. The maternal grandmother was given parental responsibility for Y’s day to day care.
The parents then saw Y for 5 hours each Saturday. That involved the father travelling to the village from Sydney. The arrangement continued until March 2007.
In January 2007 the maternal grandmother allowed Y to stay for a few days with his parents after his misbehaved and she had difficulty controlling him. But the parents refused to return Y. While the parents had Y they went to the Probation and Parole Service on 4 January saying that they had custody of Y and that the father wanted to reside in the area full time. The Probation Officer contacted DOCS. He referred to the mother as aggressive, and “like a terrier and doesn’t give up”. He told the Department that although the father was on parole for a violence offence, he was more concerned about the mother, as whenever he saw her, she was “carrying on a treat and yelling and screaming and threatening people”.
The Probation Officer that the parents had contacted a solicitor and were planning to approach the Family Court to obtain “custody” of Y. The Probation Officer also said that if Y was back residing in the father’s custody, the Probation and Parol Service could not stop him living in the area. He expressed concern as to how the father would react if the Department visited him. He said that when the father was in prison he often spoke about his concerns about Y’s welfare if he was in the care of his mother.
On 4 January the maternal grandmother was served with an application by the mother for Apprehended Violence Order against the maternal grandmother for the protection of the mother. .
On 8 January 2007 Y was still being retained by the parents and the maternal grandmother was able to contact her solicitor, who sent a faxed letter to the solicitor for the parents requesting the return of Y. Y was returned to the maternal grandmother later that day. DOCS assisted in securing his return.
In March 2007 the mother again applied for an Apprehended Violence Order restricting the maternal grandmother’s conduct for the purpose of protecting the mother. It appears that this application was again dismissed.
The proceedings came before the Family Court for the first day of a Less Adversarial Trial on 14 March 2007. An order for a Single Expert, to be agreed upon by the parties, to be appointed to prepare a report. The issues to be covered in the report were defined in the orders. The parties were restrained from discussing with Y or in his presence, the proceedings or allegations of abuse of the child, or permitting anyone else to do so.
T, the second child of the parents, was born in May 2007. The father then returned in about June or July to reside in the village, where the mother, the maternal grandmother, Y, J and Mr McKenzie were residing. The father resided in the mother’s house, but it appears that the parties did not cohabit.
There was an incident in early August 2007. The maternal grandmother had received medical advice that she may be suffering from bone cancer in her leg. She had no-one available to speak to about this and she went to the mother’s home. She was invited in for a cup of tea. They talked. The mother requested the maternal grandmother to tell the Single Expert that Y’s injuries in July 2006 were caused by him falling off his bike. The maternal grandmother refused. The mother told her not to come back. Later that day the maternal grandmother was informed by DOCS that the mother had contacted them alleging that the maternal grandmother had bashed Y. This was a false allegation by the mother.
A further interim Apprehended Violence Order was made against the mother on 22 August 2007 restricting her behaviour for the purpose of protecting Y. There was also an interim Apprehended Violence Order made that day against the maternal grandmother for the protection of the mother. Those proceedings were then adjourned until the 17 October 2007.
Ms S, a psychologist, was the Single Expert appointed by consent orders on 27 March 2007. She has eminent qualifications as a psychologist dealing with troubled children and other children and in teaching, research and report writing. She conducted interviews and observations in August. Her report is dated 31 August 2007. It was released to the parties shortly after that.
The report concludes with the following findings and recommendations:
OPINION
This is complex matter, with many child protection issues, although the family is best known to the Police rather than to D.O.C.S.
It appears that, throughout much of [J] and [Y’s] lives, the parents led a chaotic lifestyle within a criminal and drug using/drug supply network. The mother also apparently was engaged in prostitution during the early 1990s. Both parents have extensive criminal records of long duration, with the father only being released from prison a year ago and still on parole. Both parents have histories of violence and the mother has an extensive criminal history for deception.
It was in this milieu that [Y] spent the first 3 (formative) years of his life, alternating in subsequent years between his parents' and grandparents' residences. In contrast, [J] spent most of his first 5 (formative) years in the care of his grandmother, although subsequently he has resided for periods with his mother. He has now been in his grandmother's full time care (Family Court Order) since 2002.
The contrasting placement history of the two children is apparent in their presentations. While [J] has spent short periods in his mother's care, the majority of his life has been spent with the grandmother and this is reflected in his generally well functioning presentation. He is a well mannered boy, doing well at school, with strong attachments to his grandparents and no behavioural/emotional problems. He has good insight into the lifestyle of his parents and is quite rejecting of this. However, he is quite "parentified" in presentation and has had in the past to assume esponsibilities which were age-inappropriate.
On the other hand, [Y] has spent the majority of his formative years in a criminal, drug using/supplying violent family. He was exposed to very unsavoury aspects of life, e.g. being taken on his parents' drug dealing activities; being abandoned then placed in danger by his father in a stroller during a police chase. It is little wonder then that [Y] presents with such severe emotional/behavioural problems, both at home and at school. These problems particularly revolve around violence/threats to others and extreme challenging of authority - both reflective of the behaviours of his parents and their lifestyle while he was residing with them.
Surprisingly, this family has not been well known to D.O.C.S. until 2004, although the Police have extensive history on the parents. [Y] was born addicted to Methadone and likely suffered emotional deprivation/neglect in his early years associated with the parents' drug using lifestyle. There are suggestions that he was also subjected to physical abuse at the hands of his mother, although there is no substantiation of this. Unfortunately, the grandmother's reports of this abuse in 2006 (black eyes) did not result in a medical examination until more than one week after the alleged results, when no abnormalities were detected. However, both parents have a Police record for violent behaviour and it is likely that the grandmother's and [J’s] claims about physical abuse of [Y] by the mother (also disclosed by [Y] at the time) are valid.
However, far more damaging, in my opinion, has been [Y’s] exposure to his parents' chaotic, criminal and drug abusing lifestyle in his formative years. As well, [J], who is quite insightful, has stated that the mother favoured himself while rejecting [Y].
Despite [Y’s] early history, he is attached to his parents. He particularly idealises his father and wishes to return to live with his parents. In my opinion, the parents, who are in conflict with the grandmother, are encouraging [Y’s] anti-social and anti-authoritarian acting-out against the grandmother (and possibly also the school). It is apparent that, despite the Court Orders that the parents should only see [Y] for 4 hours a week, he is having much more contact with them. [Y] seems very poorly supervised at times, is allowed to wander the streets and has no compunction in disobeying the Court Orders. Because the grandparents and parents live near to each other and [Y] is quite mobile, he is able to come and go to his parents' as he pleases, even though the father presents these visits as "accidental" meetings in the street. It seems impossible to control such contact, even with Court Orders.
[Y] himself presents at times in a clinically contradictory way. He is highly indulged and infantilised by his grandmother and, when with her, can present as being dependent, regressed and over-protected. On other occasions, he presents as quite the opposite - as a challenging, defiant, violent and anti-authoritarian young boy with extreme behaviour problems.
While I agree with Mr. [C] (Child Psychiatry Services) that [Y] likely meets the DSM-IV criteria for Oppositional Defiant Disorder (see Appendix I), because of his behavioural symptoms, his underlying disorder is most likely
Disorganised Attachment Organisation.
This would explain the contradictory extremes in his presentation and is consistent with the highly contrasting parenting experiences he has had in his parents' and grandparents' residences.
[Y] is a very damaged young child in terms of his personality development. His prognosis for rehabilitation is poor, given his relatively advanced age and his ongoing exposure to his very anti-social parents. His behavioural problems are quite extreme and are likely, if sustained, to bring him in contact with the Juvenile Justice system within the next few years. His cruelty to animals; his violence to others; and his lack of empathy and remorse are particularly concerning.
The grandmother and her ex-partner are providing a placement for [Y] which is predictable, loving and fulfilling his physical needs. However, he is highly indulged and infantilised by his grandmother, with few limits being set on his behaviour, despite occasional inappropriate discipline (smacks, Tabasco sauce). This indulgence is feeding into [Y’s] pre-existing sense of omnipotence; his disrespect for others; his flaunting of rules; and his lack of empathy for others.
However, the placement with his grandmother is being severely undermined by the parents and their conflict with the grandmother. As well, despite the grandmother's indulgence of [Y], her commitment to him is ambivalent and she may well, in the future, precipitously return [Y] to his parents when she can no longer cope with his behaviour.
Both parents meet the criteria for
Anti-Social Personality Disorder,
in view of their extensive criminal histories; their violence records; lack of empathy/remorse for wrongdoing; and extreme anti-authoritarian attitudes. Thus, they offer a very poor moral tone for parenting. Both claim they are now free from drug use although there is no corroborative evidence to confirm or refute this. The father claims he has given up his criminal lifestyle. However, he has only been out of jail for a year and is still on Parole, so this represents "early days" in any rehabilitation. The parents have little insight or recognition into their son’s behavourial problems and seem almost triumphal that these are occurring in the grandmother's care.
It is difficult to know what to recommend as [Y] has little respect for Court Orders (neither do the parents) and will disobey these if he desires it. With the grandparents living nearby and with [Y’s] s advanced age and mobility, there is little to stop is contact with his parents, even with a restrictive Court Order.
On the other hand, it is not clear that there is enough current "evidence" for [Y] to be placed in D.O.C.S. ' care, with subsequent tighter control on contact with his parents. He is a very wilful and challenging child and would likely sabotage any placement - either with his grandparents or in foster care. As well, his comparatively advanced age and the severity of his behavourial problems make it difficult for him to be able to use the reparative aspects of a foster placement.
The only placement which may be (temporarily) suitable for him would be a residential-type placement, such as Father Riley's facility, with only the most minimal and supervised contact with his parents. This may be an option for the future but is probably not appropriate at this time.
It seems that the less than ideal option is for [Y] to remain with his grandmother, with Orders for limited contact with his parents. However, such Orders may not be able to be enforced and the parents have the capacity (and motivation) to sabotage [Y’s] placement with the grandmother and at school, even with minimal contact with him.
It has been fortunate that [J] has had such a "good start" in his early life by substantial placement with the grandmother. He has also developed the maturity and insight to the destructive nature of his mother's lifestyle. Unfortunately, [Y] has not had this opportunity nor will baby [T], who should be considered as a "child at risk".
It is recommended that a copy of this report is made available to D.O.C.S. and to [Y’s] treating clinician, Mr. [C], at Child Psychiatry Services.
Ms S in making those findings and recommendations relied upon her finding that the mother has an extensive criminal record and a history of violence. However, in evidence in these proceedings the only record of a criminal conviction against the mother was in respect of the assault on Mr McKenzie. There was also evidence that she was convicted of assaulting Y in 2008, although the records did not cover that period.
The mother was cross-examined about numerous other alleged convictions, which she denied. She said that the criminal record was not based upon fingerprint identification and was not hers. She was shown documents and denied the use of various aliases. She did, however, concede that the names were names of women who she knew or who had been friends of hers. Her denials were not very convincing. She said there were no finger print records to identify the person to whom the criminal records related. Those records were not tendered in evidence and it has not been established that the mother does have an extensive criminal record.
However, Exhibit CR5 is Incident Reports from the NSW Police Records in relation to incidents involving the mother in the period 1993 to 2008. In that period the mother was involved in extensive and numerous incidents where the Police were called. Sometime she was an alleged victim, but mostly an alleged offender. There were numerous matters regarding alleged assaults, numerous applications for Apprehended Violence Orders, and in many situations she was the person against whom the Apprehended Violence Order was being sought. There were also matters where she was alleged to have committed traffic offences, been using or dealing with drugs, stealing or committing fraud. She was charged with goods in custody on one occasion. There were also about 8 occasions where the Police investigated alleged assaults, about half of the allegations being alleged assaults by her and the other half being alleged assaults on her.
It appears that notwithstanding that the evidence does not establish that the mother has a long history of criminal convictions, the conclusions and opinions Ms S gave are probably still supported by the evidence before the Court.
The maternal grandmother was away for a holiday in Victoria from 31 August to 7 September 2007. J and Y were being cared for by Mr McKenzie. The father collected Y on Saturday, 1 September 2007 in accordance with the interim orders. But the parents did not return Y. Mr McKenzie contacted the maternal grandmother’s solicitor and she wrote to the parents’ solicitor requesting Y’s return. That was done on 3 September. But Y was not returned. On 4 September the maternal grandmother instructed her solicitor to issue a Recovery application. That was done and the application was returnable on 7 September. The mother was served with the application on 5 September, but the father could not be located. Y was returned on the afternoon of 6 September.
When the matter came before the Court on 7 September, there was no appearance by either parent. They were subsequently ordered to pay costs of $654.50 in respect of the Recovery application. Those costs have not been paid.
Y did not attend school on 3 September or 4 September. On 3 September 2007 the mother’s solicitors wrote to her twice. The first letter refers to a conversation between her solicitor, Mr Coyle, and the mother regarding the mother retaining Y after he spent time with her at the weekend. It says:
Mr Coyle tells us that he tried to give you some advice today, but you would not listen to him, you expressed a lack of confidence in our advice, and you eventually hung up on him.
In the circumstances, we must regard our instructions to act for you to be at an end. The matter is urgent and you should secure urgent advice on your position and on what steps you should take at this time.
If you care to telephone Mr Coyle and listen to what he has to say, please do so. In the meantime and unless we hear otherwise from you, please note that it is our intention to file the attached Notice of Ceasing to Act for you.
Later that day the solicitor wrote again to the mother and in that letter said among other things:
As you know, I accepted several telephone calls from you without complaint and tried to help you in an urgent situation. This was at home, during my private time over the weekend.
The least I expected in return was for you to listen to me and give me an opportunity to provide careful and considered advice when Relationships Australia rang me again today.
Instead, you refused to listen to me. Instead, you talked at me and told me of the advice you were receiving from other quarters, demanding immediate action and, when I tried to get a word in, you hung up on me.
What I was trying to say was that
1. You have an obligation to obey court orders and contravening one is a very serious matter.
2. You should only retain the child after the most careful consideration and where that is essential for the child's protection. I was about to ask you what new evidence there was that might possibly provide an excuse for not returning the child when you hung up on me.
3. You started to say to me (for the first time) that this was the third time that the child had been left uncared for in this fashion; you abruptly ended our conversation before I could ask you more about this allegation.
I therefore am in no position to advise you whether or not you might have a reasonable excuse for not complying with the order.
While the mother retained Y in September the maternal grandmother was forced to cancel an appointment on 7 September, arranged by DOCS for Y to attend on a counsellor from the Child Protection Agency. The appointment had been arranged some time previously.
A further interim Apprehended Violence Order was made in K Local Court on 17 October 2007 restricting the mother’s behaviour for the purpose of the protection of Y. It appears that that day the interim Apprehended Violence Order against the maternal grandmother for the protection of the mother was discharged and the application dismissed.
On 18 October 2007 the trial was set down for the final stage by way of a 3 day hearing.
Further Interim Apprehended Violence Orders were made in R Local Court restricting the mother’s behaviour for the purpose of protecting Y on 31 October 2007 and 7 November 2007. On the latter day the charge against the mother for assault occasioning actual bodily harm, relating to her assault on Y, was adjourned for hearing on 8 February 2008 at the R Local Court. On that date the mother failed to attend. The proceedings continued in her absence and she was found guilty and convicted. A warrant was issued for her arrest to secure her attendance for sentencing.
A final Apprehended Violence Order was made on the same day restricting the mother’s behaviour for a further period of 2 years for the purpose of protecting Y.
The mother was subsequently arrested on the warrant and brought before the K Local Court on 12 February 2008. She was bailed to appear on 2 April 2008 for sentence. The bail was conditional upon her entering into a recognizance in the sum of $1,000 with a surety and she was required to continue living in the village and report to the Probation and Parole Service within 48 hours and comply with their directions.
The hearing continued on 27, 28 and 29 February. The parents were unrepresented. Initially on 27 February they sought an adjournment of the hearing to obtain legal representation. The adjournment was refused and reasons given.
When the matter resumed on 28 February at 10.30am the father had not arrived. He did not arrive in the court room until about 2.34pm in the afternoon. In the morning the mother told the Court that he would not be attending until 11am because he had another appointment. When she was asked what the appointment was, she said, “He’s at a funeral”. When asked, “Who’s funeral?”, she said it was someone “on his mother’s side”. The following day in cross-examination the mother denied having told the Court these things.
When the father was cross-examined, he said that he did not attend in the morning of the second day of the hearing because he had “a previous engagement. I had been waiting for it over a year. It was unavoidable.” When asked what it was, he said he had been waiting to get a set of false teeth and had to get a Health Care Card from Centrelink in order to do that. He denied that he was attending a funeral. He said, however, his grandmother had died, but he did not attend the funeral. He said that the mother, “didn’t know whether I was going to the funeral or to Centrelink (in Sydney)”. But later he said that the mother “would have known” that he was going to Centrelink.
During the hearing on 28 February the maternal grandmother requested the mother to agree to a change in the times Y would spend with his parents so that he could attend the 21st birthday of the mother’s cousin on the following Saturday. The maternal grandmother proposed that Y have the same period of time with the parents, but on the following weekend. The mother refused to agree to this. When she was cross-examined about it, she said she would not agree. She said, “It would have to be discussed”. When it was put to her that she was being asked to decide in the witness box because it was the following weekend, she answered, “It’d need to be considered. I don’t like to decide on the spot.”
When the proceedings were adjourned on 29 February the following orders were made:
1The proceedings are adjourned part heard for a further 1 day on 17 April 2008 at 10am.
2Pending further order the child [Y] born […] November 1998 is not to spend time with either of his parents unless it is time spent under supervision by a contact centre and agreed to by the Independent Lawyer for the Child and the maternal grandmother.
3Pending further order for the personal protection of [Y], the maternal grandmother and [Mr McKenzie] the parents are restrained from attending [Y’s] school or within 50 metres of [Y’s] place of residence or approaching or communicating with [Y] except during periods of supervised contact with him under Order 2.
4It is noted that Order 3 is for the personal protection of [Y], the maternal grandmother and [Mr McKenzie] and a breach of such order attracts the power of arrest without warrant pursuant to Sec.68C of the Family Law Act 1975.
5The Independent Lawyer for the child has permission to issue and serve within 7 days a subpoena for production returnable before 17 April 2008 on each of:
5.1The Police Department for records of the mother;
5.2The Department of Corrective Services for records of the mother; and
5.3The Roads and Traffic Authority for the mother’s driving record.
6After 2 April 2008 the Registry Manager is to request the Registrar of the Local Court at [K] produce to this Court copies of any records of the mother’s appearance on 2 April 2008 in proceedings for criminal charges.
It appears that when the mother came before the Local Court on 2 April 2008 for sentence in relation to the assault causing actual bodily harm to Y, the proceedings were adjourned in order that a pre-sentence report could be supplied. The mother testified that the interview for the pre-sentence report occurred on 13 March.
On 8 April the DOCS took the child T into care and he was subsequently placed with foster parents. The father telephoned the child’s representative and informed him of this. He said he was leaving the mother’s home so that he could see his sons.
When the hearing resumed on 17 April, the following notations were made by agreement:
1)the parents are no longer cohabiting;
2)the mother lives in Sydney and the father lives in (the village) where the maternal grandmother, Y and Mr McKenzie reside);
3)the mother now seeks that Y reside with her or the father, and, if he resides with either, he spend time with the other;
4)the father now seeks that Y reside with him.
Although the parents said on that occasion that they will see T occasionally, the father testified that he does not know where T resides.
At the end of the hearing on 17 April 2008 submissions had not been completed. The independent lawyer for Y submitted that there should be orders for Y to live with the maternal grandmother, for her to have sole parental responsibility, for Y to spend time with his father on the last Sunday of each month from 9am to 4pm (unsupervised), and for him to have time with his mother as agreed by the mother and the maternal grandmother with supervision for a maximum of 6 hours per month. He proposed that the father and mother be restrained from living within 10 kilometres of the village and that time with the father be implemented by the maternal grandmother delivering Y to the father at the MacDonald’s Family Restaurant at K and collecting Y from there at the end of the period. He proposed that a copy of the report of Ms S be provided to DOCS and Mr C.
For the maternal grandmother it was proposed that Y reside with her and she have sole parental responsibility for him. She also proposed that he spend time with each parent separately on 4 occasions per annum (none of them overnight) including one occasion before or after Y’s birthday, Mother’s Day with the mother, and Father’s Day with the father. She proposed that she supervise the mother’s time with Y, and the father’s time with Y be supervised by a contact centre. The maternal grandmother also proposed a personal protection order so that neither parent would reside within 20 kilometres of the village where Y and the maternal grandmother reside. She also proposed an order that each parent provide a phone number to be used to contact them in the case of an emergency.
The father told the Court that Y should reside with him. He said he did not know what the mother’s plans were as to where she would reside. He opposed an order for Y to reside with the maternal grandmother.
The mother also opposed any order for Y to reside with his grandmother. She proposed that he reside with her or his father and the parents should have parental responsibility.
The Court heard submissions from each of the parents as to where Y should live and as to who should have parental responsibility for him.
The following Orders were made at the end of the hearing:
1Each of the father and the mother must file and serve within 7 days a Notice of change of Address for Service.
2The independent lawyer for the child and the maternal grandmother must file and serve within 14 days written submissions on the orders they propose other than orders for residence and parental responsibility.
3Within 14 days of service of the written submissions in Order 2 each parent must file and serve any written submission on orders proposed other than for residence and parental responsibility.
4The independent lawyer for the child must provide a copy of Ms [S’] report to the relevant office of the Department of Community Services.
Submissions were received from the maternal grandmother, and the independent lawyer for Y. No submission was received from either of the parents.
The independent lawyer for Y and the grandmother proposed that Y live with the grandmother. The independent lawyer for Y proposed:
·that Y spend time with his father from 9 am to 4 pm on the last Sunday of each month;
·that it be unsupervised;
·that it be implemented by the maternal grandmother delivering Y to the father at the McDonalds Family Restaurant at K at the start time and the father returning Y to her at the same place at the end time;
·that Y spend up to 6 hours per month with his mother at times agreed by her and the grandmother;
·that it be supervised by the grandmother;
·that each of the parents be restrained from residing within 10 kilometres of the village;
·the time each parent spends with Y be conditional upon the parent’s compliance with the restraint from residing within 10 kilometres of the village.
The other proposals of the grandmother in her written submissions are:
· that Y spend time with his father on 4 occasions per annum:
· that Y spend time with his mother on 4 occasions per annum:
· that the time Y spends with the father parent be supervised by an officer of DoCS or the Rainbows Contact Centre at Broadmeadow and his time with his mother be supervised by the grandmother and/or some other responsible person nominated by the grandmother;
Y
Y was 9 at the time the hearing concluded. He will turn 10 in November.
Ms S reported from her observations of Y:
[Y] presented more like a pre-schooler/toddler than an 8 year old. He was quite infantile, with regressed (baby) talk. He snuggled into his grandmother like a very small child and was continually affectionate to her. At times, he pretended he was asleep in her arms. On occasion, when he needed disciplining, [the grandmother] found it difficult to set limits on him. She related to him as though he was a much younger child, although [Mr McKenzie] was more appropriate in his interactions with him.
She reported regarding the parents’ account of Y’s behaviour:
When asked whether they thought [Y] had any behavioural problems, [the father] said,
"Lately, he has a foul mouth. Since he's been with his grandmother, he plays sides. He says (to us), 'If you don't do what I want, I'm going to the Welfare'. He says we have to do what he says or he'll go back to Grandma. He gives you the finger when he comes in".
[The father] added that he heard that [Y] was using knives at school.
The grandmother is part Aboriginal and hence so is Y. The grandmother is a member of an Aboriginal community organisation and attends meetings once a month. She has on many occasions taken Y with her. Y was “confirmed” as a member of the Hunter Valley Aboriginal Corporation in June 2004. The Corporation runs a hostel for Aboriginal families who are visiting relatives in Gaol. They are also considering the possibility of opening an Aboriginal Centre in the Hunter Valley to display Aboriginal artefacts and other aspects of Aboriginal culture. The mother has attended meetings of the corporation, but when the grandmother was giving evidence in February, the mother had not attended recently. At the grandmother’s instigation, Y’s school had pursued the question of whether special assistance might be available to him because of his Aboriginality, but without success.
In the maternal grandmother’s care Y attends Little Athletics on Friday after school. In October 2007 he received an award for “Most Improved”.
The maternal grandmother’s evidence is that Y has a number of friends who live in the area of her house. They include 6 boys she named and 4 of those live close to her home. Her evidence is that he also has some female friends, with whom she is not familiar, but he has been invited to their birthday parties. Y has also stayed overnight at some of his friends’ homes on occasions and she has received no complaint from any parents about his behaviour at such times.
The grandmother testified that Y needs “routine” and is easily distracted. There can be a problem if he doesn’t want to do something. If “he becomes over the top” and she can’t deal with him, she gets Mr McKenzie to help. “He roars at him and tells him to do as he is told”. But she said in February that Y’s behaviour had improved since the end of 2007 and he hadn’t been running away from home. She was more able to talk to him and reason with him. Most of the time her relationship with him was “good”. His anger bouts were still “fairly unpredictable”, but not as frequent.
Ms S reported regarding Y:
[Y] presented as a very socially/emotionally immature child, with a strong sense of entitlement and omnipotence. He wanted to make his own rules about the interview and often would not do as requested. Although he showed no signs of clinical hyperactivity, on occasions, he left the interview table, either going to the window or lying on the floor in what seemed to be a challenge to my authority. While the interview was completed, there was little rapport established. He talked freely of his own misbehaviour with little embarrassment, guilt or expressions of remorse. [Y] seemed quite pre-occupied with food.
She also reported from her interview and observations of the parents and the three children together:
FAMILY INTERVIEW: PARENTS AND THREE CHILDREN
When the parents came into the room, [the mother] greeted both boys but [the father] only greeted [Y]. [J] did not respond to his mother's greeting. He sat stony faced throughout the interview. He and [the father] did not speak with or look at each other during the entire time. [J] made no effort to relate to his baby brother. He perfunctorily answered his mother and myself when questions were asked but it was apparent he did not want to be there. However, he did not verbally express this anger.
[Y] spent most of the time relating to his father. He alternately showed affectionate baby-like behaviour as well as aggression towards his father. During this interview, [Y] presented as much more "anti-social" than he had been in the previous interview with his grandparents. He often made threats to harm others but in a calm manner. He was never admonished by the parents for these threats.
[The mother] presented in a jovial manner to both boys, despite [J’s] rejection of her overtures. She described [J] as being “a closed book" of his emotions. [The father] was quieter and calm in manner and related in a gentle manner with [Y].
The parents were asked about the children's medical histories which were uneventful, except for [J] having his tonsils removed at age 11, which required a 2 day hospital stay. [The mother] told me quite spontaneously that she had not visited him during this hospitalisation as she was working and her mother said she did not have to come in.
[Y] began to throw two soft balls around, aiming them at his parents' bodies with some force. He was quite provocative in this and it seemed quite unsafe play, given that his mother was nursing baby [T]. However, neither parent made a comment about this, even when hit by the ball. Later, [Y] began to play with a toy tool set with which he threatened others.
[The mother] was speaking positively to me about [J’s] accomplishments when she turned to [Y] smilingly:
Mother: "Now what can you do?"
[Y]: "I'll cut you open" (brandishing a tool)
Mother: "(Flatly) No".
[Y]: "I'll cut you open".
The mother did not respond to this second threat. [Y] then began to "drill" into the mother's arm with a toy drill. She told him not to do this as she had a sore arm, to which he replied in a bland voice, "I'll cut you then".
[Y] then looked at his baby brother and said,
"I'll cut [T] open",
to which the father responded by playfully pulling down [Y’s] hat onto his face and smiling.
[Y]: "Who did that?"
Mother: "Papa".
[Y]: "Well, I'll cut him open too",
at which he proceeded to "saw" his father's leg in play using a toy saw.
Some discussion followed about [Y’s] school progress. [The mother] asked [J] about this:
[J]:"He's not going good. He mucks up and gets suspended.”
Father:“(Playfully ruffles [Y’s] hair and smiles at him) You’re only 8 years old and you’re getting suspended!”
[Y]:“(To father) I’ll cut your toes off, I’ll cut [T’s] head off".
[Y] then took up the drill and pretended to "drill" into baby [T’s] head quite forcibly, only about 1/2 inch from the baby's skull. As an observer, I was beginning to feel quite anxious about such aggressive play near a small baby but the parents were unresponsive. However, within a minute, [Y’s] aggressive demeanour abruptly changed. He kissed his mother affectionately but then repeatedly began to throw balls quite forcibly at his father's abdomen. [The father] did not respond. [Y] then demanded to be given the baby but [the mother] deftly distracted him.
I asked the mother whether she was ever anxious about the baby's safety in [Y’s] presence. She denied she ever was, telling me that [Y] is “just a live wire". [Y] then demanded and was given his father’s mobile phone, which he played with for a prolonged time, including putting the radio on and going through the ring tone selection. The father did not stop his play.
Throughout, [Y] was very demanding, attention-seeking, challenging and self-absorbed. The parents appeared to be unresponsive to such unappealing behaviour.
The following conversation took place:
Father: "How is everything at Grandma's?"
[Y]: “Bad! I want to live with you”.
Father: “But we have to go through the courts”.
[Y]: (Starts to chatter about the mobile)
The interview ended uneventfully and [Y] separated from his parents without any distress.
In relation to her interview and observations of Y with the maternal grandmother, Mr McKenzie and J, Ms S reported:
In response to my questions about the boys' development/activities etc., [the grandmother] told me:
1.Neither child has any set jobs around the home, with [the grandmother] telling me, "Let them be kids when they can be". Neither child receives pocket money but are given money when needed.
2.Grandmother stays next to [Y] until he goes to sleep. Most nights, he wakes and gets grandmother, who then goes into his bed. He would never take himself to the toilet at night without first waking up his grandmother.
3.[Y] insists on grandmother running the bath for him and washing him. He said,
"I get in bad moods if I have to bath myself. I get in good moods when she does it (for me)".
4.Grandmother dresses [Y], as she finds this easiest, even though she knows he can do this himself. Grandmother also does his hair for him.
5.[Y] also told me, "I need help to wipe my bum", but [Grandmother] denied this was the case.
6.[Grandmother] said both boys have huge appetites and "will eat anything that is not tied down". [Y] eats more than a normal adult. [Grandmother] said, "This is why (the boys) are so big".
7.[Y] spends the weekends riding bikes around the streets of [the village] with his friends. [Grandmother] explained that [the village] is a "safe village".
8.[J] spends nearly every weekend staying over at his 13 year old cousin's home. He sometimes leaves for school from there on Monday mornings. It was explained that [J] does this as an escape from [Y’s] behaviour.
9.[Y] started soiling his pants about 4 months ago. This only occurs at home and happens most days. He hides his soiled pants. [Y] did not seem overtly embarrassed when this was being discussed.
[Y] and grandmother appeared to form quite a close dyad. [Mr McKenzie] seemed more relaxed and "laid back" with the boys and they seem relaxed with him.
When Ms S interviewed Y in August 2007, she reported regarding Y’s views and wishes:
When asked to tell me a bit about people in his family, [Y] told me:
"[Grandmother]": "She's nice. She makes me milkshakes when I want them".
"[Mr McKenzie]": "He doesn't do anything except sit on the computer.
(Q.) E-Bay".
"[J]":"He is evil. He's stupid evil. (Q.) He hits me. I don't hit him. He is one big fat person and I don't hit a fat person".
"Mum":"She's good and bad. (Q. Good?) She makes me milkshakes and lets me have anything I want. (Q. Bad?) She hits me a lot. (Q.) with her hands. Just on the bum and arms. (Q.) Don’t know.
“Dad”: “He’s good and good-good. He gave up smoking”.
[Y] said he sees his parents each Saturday and wants to see them more. He added,
"I should LIVE with them because they are nice people”.
[Y] is aware that his parents want this too but his grandmother does not. He spontaneously added that his grandmother "doesn't like the way I act". He told me, without guilt or embarrassment, that the thing they do not like is that [Y] hits grandmother. When asked whether this actually happened, he said, almost boastfully,
"Yep! A long time ago, 'cause she was annoying me".
When I asked if he “acted” like this with his parents, he replied,
"Nope! Because I love them. (Q.) I love Grandma but not that much".
When asked what would happen if he "acted" like this with his parents, he said his parents would hit him back.
When asked what his “Pop” ([Mr McKenzie]) does when he "acts up", he told me, with animation,
"Pop gives me Tabasco. Hot stuff in my mouth. It tastes like fire in your mouth (laughs). (Q. How many times has this happened?) Thousands of times. About a dozen. Is that 12? At my Mum's, it's zero times".
[Y] said he swears at his grandmother, using words like "f. ..." and "bastard", but he does not swear at [Mr McKenzie]. He said he does not swear at [Mr McKenzie] because of the Tabasco sauce threat. He never swears at his father, "'cause he's special. Or he’d smack the hell out of me".
[Y] said his father has NEVER hit him but his mother had hit him last year. However, he did not seem critical of this. He then claimed cheekily that his brother, [T] (aged 3 months),
"hits me over the head and smacks me (laughs) " .
It seemed that [Y] was not taking this interview very seriously.
[Y] talked undefendedly about his troubles at school, which he listed almost boastfully and with animation,
"I used to hit kids. I'm not behaved in class. Thousands of things I'm in trouble for! (smiles)".
When asked why he thought he got into so much trouble at school, [Y] replied,
"When I'm hot, I play up! School is dumb and Mum and Dad are cool".
When asked about 3 wishes, [Y] told me:
l. "Mum".
2. "Mum".
3. "A wish for 3 new wishes - Mum, Mum, Mum".
When asked about feelings in general, [Y] said he is angry when grandmother smacks him with a spoon or her hand. He denied he has ever felt guilty about anything.
[Y] said that, last night, his grandmother told him she wanted him to live with his mother. He refused to elaborate on this and said he wanted to leave the interview room. He would not co-operate for the rest of the interview.
In her affidavit of 12 October 2007 the maternal grandmother said that at that time Y was inconsistent with his views, sometimes telling her he wants her to live with his mother and father and at other times saying he wanted to live with her. At the time she swore that affidavit he was expressing a preference to live with her. Previously when saying he wished to live with his parents he had said that his father had bought him an iPod and he would get to keep it if he lived with his father, and that his mother and father were going to buy him a motor bike if he went to live with them.
In her evidence in February the grandmother said that Y and Mr McKenzie did have a very good relationship, but it had declined. In the last 12 months Y had been calling Mr McKenzie names and swearing at him.
J, when interviewed by Ms S, was disdainful about Y’s behaviour and said:
[Y] "acts up for no reason" and embarrasses him in front of friends. He told of a recent occasion when his friends were over playing. [Y] said he was going for a drink but came back with a knife, threatening his friends but laughing. [J] says [Y] boasts,
"I'm going to be bad when I go with my Mum and Dad".
When asked about punishment for misbehaviour, [J] said [Y] is never smacked but gets grounded from seeing friends for 1-2 days. [J] said he thinks [Y] should get a smack on the behind for bad behaviour "but not flogging like Mum does".
Y has had extensive difficulties in relation to his schooling and his behaviour. In December 2004 the school counsellor at Y’s school reported regarding assessment of Y’s learning and behaviour and recommendations. The counsellor referred to the fact that J had behaviour problems when he started school “but the consistent parenting and positive attitude to school discipline provided by his grandmother has resolved those issues and [J] is now a model senior student at the same school”.
At the time of the report Y was 6 years of age. He had completed a year of kindergarten. Prior to that he had attended preschool. An application for “Transition Support” was made by the school, but was unsuccessful because of the high demand for such services and insufficient staff. He was referred for assessment to the Child & Family Team at the Kaleidoscope Mental Health Services for children with disturbances. There was a 6 month wait for this service then the appointment was not taken up.
Y’s teacher reported that Y in class needed firm boundaries and would only accept them from someone with whom he already had a positive relationship. His behaviour and limited attention was impacting on his learning. He had difficulty with impulse control and seemed unaware at times that his actions might hurt himself or others. The school established an individual behaviour plan and learning support team for Y. For several hours per week there was a Teachers Aide available in the classroom to assist. Y also had peer tutoring.
Y’s verbal IQ score was in the average range with a percentile of 30 and his performance IQ score was also in the average range, but with a percentile of 53. In the classroom he frequently did not follow directions and needed individual instruction during both verbal and written literacy tasks. During testing, he had difficulty remaining seated, squirmed constantly in his chair, and was distracted by items in the room. He demonstrated very limited impulse control. He appeared to say and do things as he thought them. He was very excited when he was talking about violent things that had happened in a movie. He said he wanted to be an Army man when he grows up and “fly bombers and kill the Chinese dudes”.
His scores on attention and rule breaking behaviour syndromes in a behaviour assessment were above the 97th percentile. His scores on aggressive behaviour syndrome tests were in the border-line clinical range (93rd-97th percentile).
His scores for inattention and hyperactivity-impulsivity were high enough to warrant concern. On other tests, he also had high scores in terms of Attention Deficit/Hyperactivity problems and conduct problems. The results suggested that he may meet diagnostic criteria for effective disorders such as Attention Deficit/Hyperactivity Disorder.
At the time of the testing, the father was either about to be sentenced for armed robbery or had been sentenced to imprisonment for armed robbery. Y was living with his maternal grandmother and had been seeing his parents occasionally.
The school counsellor made the following recommendations:
RECOMMENDATIONS
1. [Y’s] IQ as measured by the WPPSI-R was in the Average range. His Verbal IQ was slightly lower than his Performance IQ. He preferred to work hands on than talk.
2. [Y] needs support with developing phonemic awareness, spelling and writing tasks both at home and at school. [Y’s] Learning Support Team should consider applying for Support Teacher Learning Assistance time for [Y].
3. [Y’s] class teacher could consider supporting [Y’s] learning to read through the parent volunteer program.
4. [Y] needs regular routines, firm boundaries and to be taught explicitly, appropriate behaviours at home, in the classroom and playground. The Goldstein Skillstreaming Programme for Infants' students would be appropriate. Introduce one skill at a time. Teach it explicitly to the class, put posters on the skill up in the classroom and verbally reward all students for using that skill during the week. Have a whole class tangible award at the end of the week.
5. Topics including fighting and violence should be avoided in his personal reading and T.V. viewing. Movies and T.V. shows should be chosen to help develop awareness of appropriate social behaviour and be age appropriate.
6. [Y’s] Attention and Aggression problems need a full assessment by a Paediatrician and Clinical Psychologist.
7. If [Y’s] behaviour continues to be of concern after intervention [Y’s] learning Support Team could consider application for Support Teacher Behaviour.
8. [Y’s] learning Support Team should investigate if there are any extra supports available through the NSW Department of Education and Training for Aboriginal students.
On 5 July 2005 the maternal grandmother obtained a referral for Y to the Behaviour Problem Clinic in respect of his learning and behaviour problems evident at school and at home. His general practitioner recorded that he had no hearing difficulties but had recently been diagnosed as suffering short-sightedness and needing glasses.
At the end of the 2005 school year Y’s teacher reported in his school report: “[Y] has become more settled in class and is beginning to apply himself harder. He is also beginning to work more cooperatively in group work and showing greater confidence in his ability.”
Y was assaulted by his mother on about 5 July 2006. He then started to have very limited contact with his parents.
On 13 July 2006 there was a report by the Kaleidoscope Clinic, and in particular by a Paediatric Registrar who examined Y. He indicated soreness in the left frontal region of the head and complained that his mother had hit him there with her hand.
The doctor recorded that Y’s general appearance was of “a chubby, healthy looking child moving freely in no distress, shy but interactive at times, especially with the help of his grandmother, and he was quite appropriate for his age.” There was no physical abnormality observed. No further examination or treatment was recommended.
From July to December 2006 Y did not spend time with the mother.
On 7 August 2006 he saw the general practitioner with the grandmother and there was discussion about his disturbed behaviour. A referral letter was provided.
When the grandmother took Y to the general practitioner on 18 September 2006 it was reported that recently Y had stabbed 2 other children with a broken plastic spoon. He had also been chasing children around the school trying to stab them and teachers had stopped him. The grandmother reported that there had been problems with Y’s parents and Y had been recently removed by DOCS for a week. She said that Y was concerned that they might take him again. The grandmother also reported that she had made contact with a child psychologist who was willing to see Y and a referral was needed. Arrangements were made for this to be done. In the referral letter, which was to Kaleidoscope Child Psychiatry Service, the general practitioner requested that the Service provide a re-assessment of Y’s behaviour problems and support and advice for the maternal grandmother.
There was a report from Mr C, the psychologist at the Kaleidoscope Clinic to a staff specialist paediatrician at Maitland Hospital on 27 October 2006. Mr C described Y as ‘quite a big boy who looks older than his almost 8 years”. He said that Y related quite well. He said that the grandmother had told him that Y was “quite oppositional and this takes both active and passive forms. He has only recently come back into her care, although she has been the substantial care giver for most of his life.”
He found that Y was a good historian relative to his young age. He said, “He was quite attached to both the grandparents. He played very well in a very organised fashion and there was certainly no suggestion of over-activity in the confines of the clinic”.
Mr C said, “He has had many changes in his life and I believe these changes are reflected in his behaviour. The other thing which is reflected in his behaviour unfortunately is the fact that many of the adults in his life use physical means in order to apply discipline to him. This had been abusive in his mother’s care and, whilst it is not abusive in his grandparents’ care, it certainly occurs there as well. It can be of no surprise therefore, that when Y, who is also quite entitled, tries to impose his will upon others, a physical struggle will almost always eventuate.”
He said that he had the opinion that Y did not have any primary mental health diagnosis, “although one would consider that his behaviour would probably fit an Oppositional and Defiant classification. He said, “I believe that the disruption in his life and the abuse that he has encountered during his 7 years, have been negatively influential upon his social presentation.” He said he had not made any further time to see Y or the family.
On the same day there was a report by each of Y’s class teacher and Principal. The teacher reported that Y’s behaviour problems were a concern in and out of the classroom. She said that they appeared to have “impacted greatly on [Y’s] learning and he is only now starting to improve and approach the level of his peer group”. She said that in the classroom he “constantly demands the attention of both myself and other students”. She said he regularly called out, asked for assistance when not necessarily required, and had other attention seeking behaviours. If he did not receive attention when desired, he often began to distract other students and drew attention to himself by moving round the classroom and touching things.
She also recorded that he was easily distracted during independent work and class discussions. He had trouble listening to and following instructions. He was easily frustrated when working independently. He had trouble sitting still for any extended period. He often fiddled with his clothing or objects he had brought into the classroom or touched other children. In discussion times, he often called out, made noises and began talking to other students. He had extreme difficulty working in group situations, problems following rules, and was very uncooperative. He constantly tried to annoy team mates by cheating, touching and sometimes hurting them. These problems occurred with or without adult supervision.
She reported that more recently Y had begun to be defiant and had started refusing instructions and sometimes refused to participate in activities, often in front of the whole school. He wandered off in a defiant attitude usually making a lot of noise and drawing more attention. In the playground, she said that he tended to be more physical and frequently hurt people without any apparent reason.
The Principal said that despite his problems, Y had made significant progress recently in reading.
Mr C saw Y again on 26 October 2006. Y listened well to his introduction and said he thought it was his behaviour that had brought him there, but found it hard to be specific about what aspects of his behaviour. He said he did not think it was about anger. It was noted that Y was to see a paediatrician for an assessment and consideration of whether he is suffering ADHD. He noted that Y found it hard to settle to sleep each night and usually needed the maternal grandmother to be with him.
Mr C noted that Y’s main problem seemed to be disruptive, anti-social, aggressive behaviour, and problems with family life and relationships. He proposed that there be follow up after the assessment by the paediatrician.
At the end of the 2006 school year Y received a certificate for “Most Improved” in his class (Year 2), an achievement in “Improvement in Quality of Bookwork”. The paediatrician’s assessment became available in December 2006. The maternal grandmother and Mr McKenzie were interviewed by the paediatrician with Y, and they reported that Y’s behaviour since July had improved significantly. They said that they were “more easily able to deal with him through a variety of strategies including distraction and positive motivation”. They said that any form of violent discipline seemed to be counter-productive with an escalation of physical violence in Y and they had abandoned such approaches. They had also become aware of Y’s attention seeking, provocative behaviours such as deliberately making a loud noise in the waiting area.
The maternal grandmother said that when he arrived in her care he was severely frightened by the dark and had regularly nightmares. She said he seemed to need a lot of sleep – at least 12 and sometimes 14 hours per night, but his behaviour was much worse the next day if he was sleep deprived.
He was said to readily show affection and the doctor observed that in the consulting room. He was also said to be “very able to read body language and understand jokes”. The doctor noted that he still had some self-esteem issues and was concerned that other children might not like him. The doctor recorded:
“[Y] presented as a very likeable, confident and outgoing boy who appeared happy and well clothed, was articulate and chatting readily. He clearly felt comfortable in his grandparents company. [Y] weighted in at 40.2 kg on the 98th centile while his height of 137.7 cm was on the 95th centile putting his body mass index of 21.2 on the97th centile; his blood pressure was 106/66. [Y] submitted readily to a routine physical examination including genital inspection, reportedly the first time that he has been confident enough to do this with a doctor.
The paediatrician reported that he could not find evidence on the basis of the information available to him that day that Y suffered from any primary attention deficit problem nor a pervasive developmental order. He said, “I do believe that [Y’s] oppositional and acting out behaviours reflect his previous highly traumatic life incidents. At this stage I can see no evidence of a medical disorder and largely concur with [Mr C’s] conclusion from the Child & Youth Mental Health Service reached in his report of 27 October. At this stage I do not feel that further follow up on my part is likely to be contributory.”
The paediatrician did not have available to him the school reports referred to earlier.
Y continued consultations with Mr C on 18 January 2007, 15 February 2007, and 27 March 2007.
In February he recorded there was some improvement in Y’s behaviour at school and he said in his notes, “Generally things have gone well for [Y] of late and there seems to be something of a truce operating between the households that [Y] is part of. Some Court matters remain, [Y] has his day visits only, all of which seem to add to the current apparent calm.”
At the March consultation, the grandparents reported that they considered Y was not so much a problem at school, although they strongly believed that his challenges and disruptiveness were linked to visits that he has with his parents.
Mr C indicated that the problems were likely to continue in the future and that it was “useless to direct too much by way of intervention at [Y], when the other party – his mother and father – are non-participants”. The grandparents had been attending some parent education groups and believed that was benefiting them. They still saw his behaviour problems as largely related to the contact he had with his parents. Mr C spent most of the consultation endeavouring to assist the grandparents to manage change in the behaviour of the adults.
By the end of Term 2 in 2007 Y had been suspended from school and was limited to attending from 9am to 11.30am each day.
At a further consultation on 5 June 2007, the maternal grandparents attended with Y. They reported that J had some limited contact with his mother and was telling them that Y’s behaviour with the parents was inappropriate, rude and uncontained, with the parents accepting “anything that [Y] deals out to them, including being smacked across the face by him”. The maternal grandmother reported that he had done this to her as well and that her reaction had been to smack him back. There was considerable discussion with Mr [C] about how appropriate that had been and about better ways of dealing with him.
Mr C recorded: “[Y] continues to have battles with authority at school. He receives the occasional suspension, although the school … is very good, keen to send [Y] home rather than raise a suspension. His main problem is with teachers’ authority, disruptive, uncooperative, and unproductive behaviour as well as the school rules and his entitled status, also explained today, is reflected in much of this kind of challenge. He is occasionally aggressive to peers.”
When the grandmother saw Ms S on 10 August 2007, the grandmother reported that Y was very cruel to animals. She said he tormented dogs and chased them with sticks. She said he also threw dirt and stones at them. Ms S noted: “Ironically, he is scared of spiders and cobwebs”.
Ms S on 10 August 2007 and 24 August 2007 saw Y. As already quoted elsewhere, she considered that he was “highly indulged and infantilised by his grandmother”, and with her could present as “dependent, regressed and over-protected. On other occasions he presented as quite the opposite – a challenging, defiant and anti-authoritarian young body with extreme behaviour problems.” She agreed with Mr C that Y probably meets the criteria for “Oppositional Defiant Disorder”, but she believed that because of his behaviour symptoms his underlying disorder is probably “Disorganised Attachment Organisation”.
She considered him as “very damaged in terms of his personality development”, and she said she thought his prognosis for rehabilitation was poor: “… given his relatively advanced age and his ongoing exposure to his very anti-social parents. His behavioural problems are quite extreme and are likely, if sustained, to bring him in contact with the Juvenile Justice system within the next few years. His cruelty to animals; his violence to others; and his lack of empathy and remorse are particularly concerning,”
Near the end of the third school term there was an occasion when Mr McKenzie slept in on a school day. Y got out of bed, prepared and dressed himself for school, made his own lunch and went to school.
The maternal grandmother testified that in 2007 Y was suspended 3 times from school for being disruptive in class, bad language, and not doing as he was told. At the start of Term 4 he was again attending from only 9am to 11.30am, but the school was going to increase the period each day depending on how he progressed. The grandparents were speaking with the school principal daily about Y’s behaviour and how he was progressing.
Mr C reported to the school principal on 12 May 2008. In that report he said that the dispute between the parents and the maternal grandparents in the Family Court:
“remains unresolved and must be seen as an additional and important stressor to the other issues for [Y]. In the time that I have known him, [Y’s] behaviour in the home and school settings has consistently met criteria for the term Oppositional Defiant Disorder (DSM-IV 313.81) to be applied to summarise the behaviours noted.
In her report written for the Family Court following her assessment, Ms [S], Senior Clinical Psychologist, also made this diagnosis and added to it “Disorganised Attachment, which relates to the conflict and confusion, including abuse, he experienced as a younger child, features of which can be seen in the way in which [Y] relates to others around him.”
His criminal background includes sentences for violence and other abuse, and there is no evidence by anyone with any expertise in that area to say that he has changed.
The father did not give evidence about his proposals for schooling and other education for Y, for any extra-curricular activities for Y, or any routines in the household if Y lives with him.
On the first day of the hearing the father told the Court that Y is “destructive and naughty”, and that the solution is that “all young boys do need discipline or sent the bad corner. I don’t believe in smacks.” He said that he did not believe that Y had a behaviour problem and he did not believe that bad behaviour of Y could have caused problems for the grandmother.
The Family Consultant who gave evidence on the first day in the father’s presence, said that Y was at risk because of his behaviour problems and that Mr C who was seeing him, “only sees children who have very difficult diagnosed problems … significant problems”. Ms L also referred to Mr C’s opinion that the problems may have arisen from the mother’s use of methadone during the pregnancy and referred to research indicating that children can have problems arising from such situations, giving rise to the child being so addicted at birth.
On the last day of the hearing, the father was asked whether having read Ms S’s report (3 times) he had changed his opinion that “[Y] is healthy and normal”. He replied, “She’s the expert”. But then he said he would not say that Y had serious problems. He said that he believes that Y needs “guidance and love of a father and mother … and that’s why he’s reaching out for us”. When he was asked whether he believes that T was at risk with he and the mother, he answered, “No way at all”.
He said later that he disagreed with Ms S’s view that Y is a very damaged young child. He denied that the parents encouraged his anti-social and anti-authoritive behaviour and denied that the parents undermined the care of Y by his grandmother. He criticised the grandparents for allowing Y to wander the streets of the village. He conceded that Y came round to the parents’ home and said, “Only when he had a problem with the grandparents.”
He said that Y was well behaved with them on Saturdays. He denied that Y has “a lot of problems”. He said he did not know how Ms S concluded the parents were undermining the grandparents’ care and denied they did so. Overall, he appeared to have very little insight into Y’s problems, his emotional and intellectual needs, or the adverse effects on Y of the parents’ involvement with him.
As at 17 April the father had been in full time employment for 2 weeks as a labourer in Newcastle. This required considerable travel to and from work. He testified that he leaves the village at about 5.40am and does not arrive home until 5pm or a bit afterwards. He said that if Y came to live with him, he would not give up work, “I’ll have somebody look after him”. He said that he had been working Monday to Friday and also Saturdays. He did not give evidence as to who it might be that he would rely upon to care for Y.
The father’s record of criminal offences includes offences committed over a span of 27 years from when he was 15 years of age in June 1977 until December 2004. A summary of the convictions and penalties imposed is as follows:
Date of charge
Offence
Penalty
10/6/77
Stealing
Recognizance to be of good behaviour until 16 and pay compensation of $400.
25/9/78
Stealing
12 months probation
25/2/84
Fail to stop after accident and render assistance
Sentence deferred on entering recognizance in the sum of $1,000 to be of good behaviour for 2 years.
Fine of $500. Disqualified from driving for 3 years.
25/2/84
Unaccompanied Learner
Fined $200.
13/3/85
Demand money with menace
Recognizance self in the sum of $500 to be of good behaviour for 5 years.
31/8/86
Possess prohibited weapon
Fined $500.
4/9/86
Public Mischief
$300 fine and pay $60 compensation.
5/12/90
31 charges – make false instrument
3 months imprisonment on each charge.
15/1/91
Found in gaming house
Fined $300.
5/7/91
Found in gaming house
Fined $300
2/10/91
Use false instrument (9 counts)
Imprisonment for 20 months minimum on each charge – additional 10 months for other sentence.
28/2/92
Armed robbery
Additional term 3 years 6 months – minimum term 1 year 5 months – from 15/5/92.
19/12/95
Drive unregistered vehicle
Fined $500
19/12/95
Drive uninsured vehicle
Fined $500
19/12/95
Use plates calculated to deceive
Fined $500
17/4/97
Drive whilst licence cancelled
6 months periodic detention. Disqualified from driving for 12 months.
Exceed speed
Fined $200 and court costs of $51.
26/4/97
Drive whilst licence cancelled
6 months periodic detention. Disqualified from driving for 12 months.
13/9/97
Periodic Detention cancelled
Failure to attend – imprisonment for 21 weeks commencing 10/9/98
20/11/97
Supply Prohibited Drug – small quantity
150 hours of community service.
20/11/97
Possess Prohibited Drug
Fined $200.
22/1/98
Goods on premises reasonably suspected stolen
2 months imprisonment.
22/1/98
Possess prohibited drug
Fined $500. 2 years supervision by NSW Probation Service.
17/7/98
Drive while disqualified
Fined $500. Court costs $52. Disqualified for 2 years - accumulative.
17/8/98
Resist Officer in execution of his duty
Fined $400, Court costs $52
12/7/99
Accessory before fact of attempted robbery in company
Recognizance in the sum of $500 with 5 years of supervision by the NSW Probation Service, undertake intervention re: DNA.
12/10/99
Possess prohibited drug
Fined $4000 and court costs $54.
26/1/03
Drive unregistered vehicle
Fined $400 and court costs $59.
26/1/03
Drive uninsured vehicle
Fined $400 and court costs $59.
26/1/03
Display unauthorised number plate
Fined $400 and court costs $59.
26/1/03
Drive whilst licence cancelled
Imprisonment for 4 months, suspended on entering into Bond with 4 months supervision by NSW Probation Service and to obey all directions as to anger management and drug and alcohol counselling. Disqualified from driving for a further 2 years commencing 30/3/04.
16/6/04
Fail to appear in accordance with bail undertaking
6 months imprisonment commencing 30/1/05.
16/6/04
Goods in custody suspected of being stolen
6 months imprisonment commencing 31/1/05.
Supply prohibited drug – small quantity
12 months imprisonment commencing 30/1/05.
16/12/04
Robbery armed with offensive weapon
36 months imprisonment to conclude 31/12/07. Non-parole was conditioned. Supervision for 6 months after release on probation including conditions regarding reasonable directions, random drug testing at least 4 times per month for the first 9 months.
21/6/01
Drive whilst disqualified
150 hours community service and disqualification for 2 years commencing 4/10/01
29/6/03
More than 3 persons using violence to cause fear
40 hours community service
The evidence discloses no convictions for offences since December 2004, but for much of the time since then he has been in gaol and his parole from his last sentence ended only on 31 December last year. Also, the subpoena for production of his criminal record was served in 2006 and his criminal record for the period after 9 November 2006 was not produced. The father has a history of about 30 years of antisocial behaviour and abusive behaviour.
He said the final hearing regarding whether T remains in care will be on 3 and 8 May 2008. He had legal representation to appear for him. He said if they are unsuccessful in obtaining care of T in those proceedings, “I’m not staying. I’ll leave (the village)”. He said he does not want the maternal grandparents to know his address, but he does not mind if the mother knows.
In terms of the father’s attitude to the responsibilities of parenting, it was a serious adverse reflection on him that he did not give priority to the hearing on 28 February, and he instead went to Sydney on other business. He was unable to manage the case to the extent of arranging legal representation for the parents at the hearing, although, they claimed they had been granted legal aid. He has been lacking in commitment to Y throughout the whole of Y’s life, even though, he says, he believes that Y is “calling out for his father”.
The father has not provided any child support for Y for the large part of Y’s life when he has lived with the grandparents. It is a seriously adverse reflection on the father’s attitude to the responsibilities of parenting that the advice he gave J about illegal drugs was that he not take them until he is 14.
The father is a less than adequate role model for Y. The reasons for this includes his anti-social attitudes, his dishonesty, his criminal activity, his past involvement in drugs, his history of violence/abuse (including robbery), his inability to obtain and maintain paid work, his instability as to living arrangements, and his inability to establish and maintain a good intimate relationship.
The father testified that he would also let the mother have the boys with her, “She’s their mother”. He also testified that he would give her unsupervised contact with the children. His parenting capacity is also compromised because of the likelihood that he would not provide any protection of Y against the mother. He does not recognise the mother as a risk to Y. He says he does not believe that the mother assaulted Y and he does not believe that Y is at risk with her.
The father’s parenting capacity is also seriously compromised in that he has for most of Y’s life not been reasonably available to him, and being unable to give priority to Y’s needs over his own.
On the first day of the hearing the father said when asked what he wanted to achieve for Y in the proceedings, said, “I want him to come back and live with us”. He did not seem to perceive that Y might have a different perspective and different interests to his own. He said that Y “needs to know we love him and are always there for him”.
Later when he was asked why he was applying for custody of Y, he answered, “He’s still my boy and I’m his father. We love each other unbelievably. I wouldn’t abandon my boy. No way I’d leave him.” He also testified, “[Y] is my best friend … we like doing things together all the time. He knows I’ll never leave him again. I don’t have any friends up here. I’m his father, too.”
ORAL EVIDENCE OF MS S
Ms S was present in Court on the morning of 28 February and heard Mr McKenzie cross-examined by the independent lawyer for Y and by the mother. She then gave further evidence and was cross-examined. She said that if the grandmother moved away to another village with Y the advantage would be to prevent free access to him by his parents because “the playing off” between the parents and the grandparents is one of Y’s problems. She said she had observed the interactions between Mr McKenzie and the mother in Court and that reinforced her views about their relationship.
She said she could not see any other advantages, but one of the disadvantages would be for the grandmother to become a single parent of Y and deal with him alone. She said that Mr McKenzie does provide the grandmother with a lot of support in the management of Y, and if she was managing him a lone it would make her relationship with Y much more intense. She said that in some situations Mr McKenzie is able to contain Y’s behaviour when the grandmother is not. She said that in parenting, the grandmother and Mr McKenzie are “a team” and the boys relate to them as such. She said that J is “very emotionally mature and probably the most credible of the people I interviewed.”
She said another disadvantage would be a change of school. She said that Mr C’s opinion is that the village school handles Y very well and is amenable to being flexible with punishment. She said a new school might not. She said that it may be appealing to the grandmother to take him to a Christian School, but if it is a small school, such schools are often not so tolerant of behaviour like that of Y. She said they could not be compelled to retain him as a student. Ms S’s opinion was that if Y had a further change of school he would be “quite distressed”, and he’d need to make new friends, but he does not have very good social skills.
She said she is also not convinced that Y, if he moved to another village as his grandmother had proposed, would not be able to access his parents, particularly on a weekend and if he used a bicycle.
Ms S said that Y has “fairly significant attachment damage” from dysfunctional parenting. She said in a way that he is attached to his parents, but he has disorganised attachment, which is usually a result of chaotic care/attachments. She said that in his formative years she believes he was exposed to very different styles of the grandparents and the parents, and the parents’ style was chaotic. She said he needs future management to address his disorder and also his anti-social behaviour, but the prognosis is not good. She said if the problems are not to become worse, he needs very firm limits, no exposure to violence, exposure to good role models, and no exposure to people who are anti-social and encourage anti-social behaviour.
Ms S said that in her view both the parents meet the diagnostic criteria for anti-social personality disorder. She said it is not in Y’s interest to have much exposure to them. She said that Mr McKenzie’s view of no contact is relatively valid, but, she would suggest Y have some supervised contact with the parents through an agency.
Ms S also expressed an opinion that there are “minimal prospects” of the parents playing a supportive role in relation to Y’s education.
She suggested that Y spend time with them several times per annum with supervision by a qualified person such as a DOCS Officer or some other experienced contact supervisor, such as from Relationships Australia. Ms S said that although DOCS is involved with the family, she is of the view that they probably would not provide supervision for Y to spend time with his parents.
Ms S’s opinion was that the best step the parents could take for Y would be for them to move away, such as to Sydney, and have supervised contact several times per annum.
RELEVANT LAW
The objects of the children’s provisions of the Act are set out in Subsection 60B(1) which provides:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Subsection 60B(2) provides:
(2) 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; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Subsection 60B(3) provides:
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
Subsection 60CC provides:
Determining child’s best interests:
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
SUBSECTION 60CC(3) FINDINGS
The findings under subsection 60CC(3) are as follows:
a) Expressed wishes of the child
Y has expressed wishes to live with his parents and also wishes to live with the grandparents. When seen by Ms S he expressed a preference to live with his mother. It was not in his contemplation that it would be anywhere but in the village. He did not contemplate leaving to move to Sydney, living away from the village, J and the grandparents and having to change school.
It is likely in the circumstances that Y’s expressed wish to live with his mother was motivated partly by promises by his father of a motorcycle and other material benefits and also by his experience of greater freedom and less restrictions on his behaviour when he is with his parents.
Y is immature and it is unlikely that in reaching a preference he gave any serious consideration to the likely short term and long term implications of living with either parent or the grandmother.
For the reasons discussed, little weight should be given to Y’s expressed wishes in deciding where he should live.
b) The child’s relationships
The most positive relationships Y has are with each of the grandparents. Y, however, resents their attempts to have him comply with routines and behave himself. Y bears some negativity towards J because J is not anti-social and behaves well.
Y’s relationship with each of his parents is perverse. He idealises his father and also the mother. He has unrealistic perceptions of how good life would be living with them. They each want him to live with them but they are toxic to Y’s interests because their parenting capacities are grossly inadequate, they lack commitment to Y, they are very bad role models for him, and they persistently put their own interests before his.
c)Willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent
Subsection 60CC(4) provides:
4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long-term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A) If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
The grandparents are likely to facilitate Y spending some time with the parents but, unless the Court orders supervision by a professional, are unlikely to sufficiently protect Y from the toxic influences of the parents in such periods and permit more such periods than are in Y’s interests.
Neither of the parents could be relied upon to facilitate and encourage a close relationship between Y and J, or Y and the grandparents, if Y lived with either of the parents.
d) Likely effect of any changes including any separation
If Y is removed from the grandmother’s care to live with either parent or both parents, he will be subjected to a chaotic lifestyle, and the abusive anti-social and dishonest role models the parents are for him.
If Y spends time with either parent without professional supervision he will be at risk of abuse, neglect, and learning the abusive, dishonest and anti-social habits of his parents.
If he spends time with either parent without professional supervision his behaviour problem is likely to worsen. He is likely to become more anti-social and anti-authoritarian and eventually offend the criminal laws.
e)Difficulty and expense of spending time with and communicating with a parent and whether they will substantially affect the right to maintain personal relations and direct contact on a regular basis
The danger the parents each present for Y will substantially affect his right to maintain a relationship with that parent and regular contact, because it dictates that to protect Y his time with them should be infrequent, short and supervised by someone with sufficient training and experience to be able to protect Y.
f)Capacity of each parent and any other person to provide for the child’s needs
The parenting capacity of each parent is grossly inadequate. They are incapable of meeting Y’s emotional, intellectual, social, educational and health needs.
The grandmother has a tendency to spoil Y and to not be consistent in applying discipline. Otherwise her parenting capacity is more than adequate. She is willing to attend a parenting course. She should be ordered to do so.
Mr McKenzie provides considerable support and assistance to the grandmother in parenting Y.
A copy of the Judgment should be provided to DOCS in the hope that DOCS will support the Court’s orders and provide assistance to the grandparents in parenting Y.
g) Maturity, sex, lifestyle and background of the child and of either parent, and any other characteristics of the child
As a male child Y has a need for a close and positive relationship with a suitable adult male role model. The father is not a suitable role model. In the mother’s home there is no adult male role model.
In the grandmother’s home Mr McKenzie is an adequate adult male role model and J may also provide such a role model. If Y continues to live in that home without his care or carers being undermined by his parents, his relationships with Mr McKenzie and J are likely to improve and become more positive.
h) If the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right
Y is an Aboriginal child and if he lives with the maternal grandmother she will continue to involve him in the Aboriginal community, and Aboriginal culture. Neither parent has done so or would do so.
Attitude to the child and the responsibilities of parenthood
Subsection 60CC(4) provides:
4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A) If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
The attitudes of the grandparents to Y and the responsibilities of parenting Y are adequate. The attitudes of each of the parents to such responsibilities are inadequate. They will each give his or her own interests priority over those of Y. They lack commitment to him. They have failed to financially support him, to communicate with him, and to reasonably make themselves available to be with him and care for him.
j) Any family violence
Both the parents use abuse (including violence) in their dealings with others. Y has been a victim of a serious assault by the mother. Y’s behaviour problem is such that in the care of either parent he is likely to often behave in destructive, disruptive, disobedient and challenging ways. The parent is likely to be stretched and provoked and respond with physical or other abuse of Y, which may injure him and will worsen his behaviour problem.
Abusive behaviour is not an attribute of a particular victim or a particular relationship. Abuse is an attribute of the perpetrator. It is a fact that some people use abuse in dealing with others, but most do not.
Children who spend time with an adult who uses abuse in his or her dealings with others are at an obvious risk of physical injury. Children, (some would say especially at certain stages such as “the terrible two’s” and adolescence) can test an adult carer’s patience as much as any argumentative or aggressive adult. Y’s behaviour problems are likely to worsen if he is in the care of either parent and result in confrontations between him and the parents leading to violence and other abuse.
Spending time with an abusive adult involves other risks to children. One of those is the risk of psychological harm. Children can as a result of experiencing abuse or witnessing abuse of loved ones, suffer insecurity, apprehension, unhappiness, anxiety, fear, hypervigilence and terror. Generally experiencing or witnessing abuse inhibits a child’s emotional development.
Verbal abuse and put downs can also diminish a child’s self esteem and self confidence, and that can cause long term damage.
The worst danger that an abusive parent or carer presents to a child, however, is as a role model. The child can learn to use abuse in dealings with others, including those they love. It is a social disability that can destroy the most intimate relationships and bring the child into conflict with relatives, friends, other people they socialise with, the police and the law. The role model of an abusive parent or carer puts a child at risk of adopting the role of an abuser (or the role of an accommodating victim) of abuse when they partner. Either way, it is a long term damaging legacy from the adult(s).
The parents both use abusive behaviour as part of their methods of dealing with other people. There is a need to protect Y from exposure to their behaviour.
Each of the parents is also is a threat to the grandparents. They are likely to subject them to abuse and to undermine their relationship with Y and their parenting of him. Even telephone communication with Y is likely to be used by the parents to influence him in antisocial ways and undermine his relationship with the grandparents. This threat to the grandparents is a danger to Y. The grandparents are Y’s main emotional, educational and intellectual support. There is a likelihood that unsupervised time with either parent will frustrate the care, discipline and influence the grandparents provide for Y.
k)Any family violence order that applies to a child or a member of the child’s family
The current Apprehended Violence Order restricting the mother’s behaviour for the purpose of protecting Y will not expire till 8 February 2010.
l)Whether it is preferable to make the order that would be least likely to lead to the initiation of further proceedings in relation to the child
If orders are made permitting unsupervised contact by Y with either parent, it is likely that the parent will use the time with Y to further undermine the grandparents’ parenting of Y, their relationship with him, and efforts to overcome his behaviour problems and anti-social attitudes. That would lead to further proceedings.
These factors support orders for supervised time only, and an order that for the protection of Y and the grandparents neither parent approach either grandparent, Y’s home or school, or Y (except during supervised time).
If orders are made for either parent to participate in decisions about Y that too is likely to lead to abusive and/or controlling behaviour by the parent towards the grandmother in relation to issues about Y and hence further proceedings. The grandmother should have sole parental responsibility for Y.
PRIMARY CONSIDERATIONS
The findings as to primary considerations under Subsection 60CC(2) are:
a)The benefit to the child of having a meaningful relationship with both of the child’s parents
Each of Y’s parents presents a danger to Y, particularly because of the problems he already has. Y can have an enjoyable and beneficial relationship with either parent only if he is protected by the time he spends with the parent being supervised by a competent supervisor.
b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Y needs to be protected from the risk of physical or psychological harm from being subjected to or exposed to conduct of each parent that is abusive of him or others, neglectful of him, or violent to him or other members of his family such as J or one of the grandparents.
PARENTAL RESPONSIBILITY
There is an issue as to parental responsibility.
Section 61DA of the Act provides:
(1) When making a parenting order in relation to a child, 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 for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
For reasons already set out, it would be contrary to Y’s interests for either parent to have any parental responsibility for Y. The presumption is displaced. The grandmother should have sole parental responsibility.
OTHER CONCLUSIONS
Y is idealising his parents. His perception of them is unrealistic. If he does not see them as much as he wants, he is likely to blame the grandmother and that will aggravate the existing difficulties for her in parenting him.
Y’s interests are best served if he resides with the grandmother and spends limited time with each parent about four times per year on a weekend and the time is supervised by a competent person. Y should be informed by the Judge, of the orders, of the fact that they involve less time with his parents than the grandmother proposed, and briefly the reasons.
Y’s interests also require:
· That the grandmother have sole parental responsibility for him; and,
· The grandmother should be ordered to attend a parenting course.
The parents’ behaviour involves the likelihood of negative influence on Y in relation to dishonesty, education, anti-social attitudes, anti-authoritarian attitudes, drugs, the use of abuse in dealings with others, and undermining of his relationship with the grandparents and their parenting of him. This requires that there be orders protecting Y by:
· Requiring his time with each parent be limited to four short occasions per annum;
· It be supervised;
· Each of them be restrained from residing within 10 kilometres of Y’s residence;
· Each of them be restrained from approaching either grandparent, Y (except during the defined time with him), or his school or residence; and,
· There should be no communications with Y by telephone as it cannot be properly supervised.
It is not appropriate that the supervisor be the grandmother or her nominee as this is likely to result in further conflict between her and the parents and opportunities for the parents to further undermine the grandparents and their parenting of Y.
Also, supervision by anyone other than a professional is unlikely to properly protect Y from the negative influences of the parents.
Y’s interests require that the supervision be provided by the Rainbows Contact Centre or some other professional. However, there is no evidence of any other professional available.
The parents’ provide no financial support for Y. If there are any fees payable for supervision of the time Y spends with either of them, that parent should pay the fees.
The centre should be provided with a copy of the Judgment, as should the K Office of DOCS, Mr C and Ms S. A copy of Ms S’s report should be provided to DOCS.
It is in Y’s bests interests that each parent keep the grandmother informed of his or her address and telephone number so that she can keep them informed (as she is likely to do) of significant matters concerning Y.
____________________________
The Hon Justice Graham Mullane
22 September 2008
Key Legal Topics
Areas of Law
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Family Law
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