Schmidt & Schott & Ors
[2008] FamCA 447
•3 June 2008
FAMILY COURT OF AUSTRALIA
| SCHMIDT & SCHOTT AND ORS | [2008] FamCA 447 |
| FAMILY LAW – CHILDREN – With whom the children live and spend time with – Neither parent is able to meet the children’s most basic needs – Returning the children to either parent requires that the Court fails in its statutory responsibility to protect the children from exposure to violence and abuse – Three of the children are to remain in foster care while one of the children is to live with an uncle – The children are to have regular but minimal supervised contact with each of their parents FAMILY LAW – CHILDREN – With whom the children live and spend time with – Children’s views FAMILY LAW – CHILDREN – Family Violence – Risk of harm – Both the mother and father have a history of chronic drug and alcohol abuse and associated anti-social behaviour – Children often witnessed violence their parents perpetrated on each other as well as on neighbours and strangers FAMILY LAW – CHILD ABUSE – Allegation that the father physically abused one of the children |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) Part VII Children and Young Persons (Care and Protection) Act 1998 (NSW) |
| A v A (1998) FLC 92-800 Briginshaw v Briginshaw (1938) 60 CLR 336 |
| APPLICANT: | MS SCHMIDT |
| RESPONDENT: | MR K SCHOTT |
| FIRST INTERVENER: | DIRECTOR-GENERAL DEPARTMENT OF COMMUNITY SERVICES |
| SECOND INTERVENERS: | MR Y SCHOTT AND MS KLYE |
| THIRD INTERVENER: | MR R SCHOTT |
| FILE NUMBER: | (P)NCC | 3377 | of | 2007 |
| DATE DELIVERED: | 3 June 2008 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | The Hon. Justice Ryan |
| HEARING DATES: | 28, 29, 30 April, 1, 2 and 6 May 2008 |
REPRESENTATION
| APPLICANT: | In person |
| RESPONDENT: | In person |
| COUNSEL FOR FIRST INTERVENER: | Mr Moore |
| SOLICITOR FOR FIRST INTERVENER: | Crown Solicitor’s Office |
| COUNSEL FOR SECOND INTERVENERS: | Mr Bateman |
| SOLICITOR FOR SECOND INTERVENERS: | Craney Solicitors |
| THIRD INTERVENER: | In person |
Orders
That all prior orders made pursuant to the Family Law Act 1975 in relation to the children H born … April 1996, K born … January 1998, T born … April 2006 and B born … September 2007 are discharged.
That the Minister of Community Services has sole parental responsibility for H born … April 1996, T born … April 2006 and B born … September 2007.
Commencing from her birthday in September 2011 that B shall spend time with the mother, Ms Schmidt, three times per year supervised by an officer of the Director-General of the Department of Community Services or person nominated by the Director-General.
Commencing from her birthday in April 2010 that T shall spend time with the mother, Ms Schmidt, three times per year supervised by an officer of the Director-General of the Department of Community Services or a person nominated by the Director-General.
Commencing from her birthday in April 2010 that the child T shall spend time with the father, Mr K Schott, three times per year supervised by an officer of the Director-General of the Department of Community Services or a person nominated by the Director-General.
That H spend time with the mother, Ms Schmidt, once every two months for a period of two hours supervised by an officer of the Director-General of the Department of Community Services or a person nominated by the Director-General.
That the child H spend time with the father, Mr K Schott, once every two months for a period of two hours supervised by an officer of the Director-General of the Department of Community Services or a person nominated by the Director-General.
That the father and mother may send H, T and B birthday and Christmas gifts and cards and occasional letters which the Director-General of the Department of Community Services or a person nominated by the Director-General shall, at their discretion, give to the children.
That K born in January 1998 live with Mr Y Schott and Ms Klye.
That Mr Y Schott and Ms Klye have equal shared parental responsibility for K.
That the child K spends time with the mother once every three months for a period of three hours at a contact centre or supervised by a person or agency nominated by Mr Y Schott and Ms Klye.
That the child K spends time with the father once every three months for a period of three hours at a contact centre or supervised by a person or agency nominated by Mr Y Schott and Ms Klye.
That the father and mother may each send the child K gifts, cards and letters which Mr Y Schott and Ms Klye shall, at their discretion, give to the child.
That Mr Y Schott and Ms Klye give each of the parents an annual calendar which sets out suggested dates and times for them to spend time with K. No less than 14 days prior to each nominated visit, the visiting parent shall confirm with Mr Y Schott and/or Ms Klye that he or she is attending. Should either parent fail to confirm within the said 14 days that he/she will attend at the proposed place and time Mr Y Schott and/or Ms Klye are at liberty to suspend the arrangements for that visit.
That Mr Y Schott and/or Ms Klye shall facilitate regular telephone contact between K, H and T.
That Mr R Schott shall have contact with H, K and T as follows:
(a)To H, during school term, each fourth weekend from after school Friday until 4.00 pm Sunday.
(b)To H, for one week in each school holiday period.
(c)To K, for one week during each school holidays to coincide with those weeks that H is in his care, or as otherwise agreed with Mr Y Schott and/or Ms Klye.
(d)To T, at times as agreed with the Minister of Community Services.
In the event the mother or father appears to be drug affected or fails to abide the supervisor’s reasonable directions, the supervisor may suspend the child’s visit.
In the event that H, K, T or B expresses a view that she or he does not wish to spend time or communicate with the mother, father or Mr R Schott the order is suspended for so long as the child/children does not wish to spend time or communicate with that person.
Other than as is provided for in these orders, the mother is restrained from approaching the children, their schools, places of residence or having contact with them unless pursuant to a written agreement with the Director-General or in relation to K, Mr Y Schott. This is an order for each child’s personal protection.
Other than as is provided for in these orders, the father is restrained from approaching the children, their schools, places of residence or having contact with them unless pursuant to a written agreement with the Director-General or in relation to K, Mr Y Schott. This is an order for each child’s personal protection.
The mother and father are each restrained from speaking about each other in the children’s hearing in a derogatory fashion or permitting any other person to do so.
In the event that the Minister of Community Services proposes to change the foster family in which H, T and/or B resides, written notice that change is proposed must be given to the mother, father, Mr R Schott and Mr Y Schott.
Each of the parties and the Independent Children’s Lawyer has liberty to provide copies of Mr P’s reports and Ms S’s reports to their or the children’s counsellors or any agency involved in the children’s care.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Any person who issued subpoena for the production of documents shall forthwith return them to their owner.
Unless an appeal is lodged, at the expiration of one month, all exhibits shall be returned to their owner/s.
All outstanding applications are otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Schmidt & Schott is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: (P)NCC3377 OF 2007
| MS SCHMIDT |
Applicant
And
| MR K SCHOTT |
Respondent
And
| DIRECTOR-GENERAL DEPARTMENT OF COMMUNITY SERVICES |
First Intervener
And
| MR Y SCHOTT AND MS KLYE |
Second Interveners
And
| MR R SCHOTT |
Third Intervener
REASONS FOR JUDGMENT
Introduction
These proceedings concern the future living arrangements of H (a daughter) born in April 1996, K (a son) born in January 1998, T (a daughter) born in April 2006 and B (a daughter) born in September 2007. The three elder children are full siblings, their parents being Ms Schmidt (the mother) and Mr K Schott (the father). Ms Schmidt is B’s mother. The mother has identified four men, including Mr K Schott, who may be B’s father. Until the other men are tested the father refuses to undergo DNA parentage testing. He denies the mother’s assertion that there is any possibility that he may be B’s father.
As soon as B was born, the Department of Community Services (“Department of Community Services”) took her into care. Following B’s discharge from hospital, she was placed in short term foster care, which placement changed on 21 February 2008. The change in foster placements occurred so that B could move to carers suitable to care for her long term. By order of the Federal Magistrates Court made 11 October 2007, the three elder children went into foster care. Presently, H and T are in one foster placement and K in a separate, short term placement. If H and T remain in the Department of Community Services care they will stay with their current foster carers. No one proposes that K remains in foster care.
The mother wants all four children returned to her. Failing this, she says her daughters should remain in their respective foster placements and that she should see them often. Of the four children she considers that K in particular needs to return to her and submits that with only one child she is able to provide adequate care. The mother opposes any of the children going into their father’s care and prefers that none are placed with Mr Y Schott or Mr R Schott. Concerning Mr Y Schott her opposition is based upon her concern that it would be difficult for her to see the children if they live in Queensland. The mother complemented Mr R Schott’s commitment to the children and his parenting capacity. Because she believes the girls are happy in foster care, she says this should only be disrupted so as to return them to her. Concerning the elder three children’s relationship with their father, she vacillates between suggesting he should be gaoled for child abuse or sees them weekly.
The father has no interest in B. Although he would like the elder three children returned to him he accepts this is not viable and says that the children would benefit from a fresh start with his brother Mr Y Schott in Queensland. The father also complemented Mr R Schott’s parenting capacity and commitment to the children and says that the children would do well with either Y or R Schott. The father says that the children should have limited contact with their mother, as he believes contact with her involves an unacceptable risk of exposure to drug abuse and violence. He rejects claims that he often beat K or that he kicked him during which attack the child’s arm was broken. Just as the mother says her heavy substance abuse and anti-social behaviour is a thing of the past, so does the father.
Mr Y Schott and Ms Klye intervened and seek orders that the three elder children live with them. Mindful of Ms S’s concern that the children’s individual needs may make it problematic if all three live together, he is open to any structure shared between he and his brother R Schott, which keeps the children in the Schott family. The Department of Community Services and Independent Children’s Lawyer submit that K alone should live with them.
At the commencement of the hearing, R Schott applied to intervene. He had been wrongly informed that he had no role to play in these proceedings. H and K lived with R Schott and his family between late 2004 and November 2006. Notwithstanding that he has interim consent orders made 2 May 2005 whereby H and K live with him, in November 2006 R Schott returned H and K to their father. This is what both children wanted. R Schott would welcome all four children into his home. Concerning B, he and Y Schott agree that she should have the chance to grow up free from her parent’s influence and supports her permanent placement in foster care. He adopts Y Schott’s approach concerning the possibility that the children may need to be separated and says he will co-operate with R Schott to ensure that between them the other three children stay within their family. He is distraught by the events which unfolded after he returned H and K to their father and says that since late 2006 the parents hid from him their drug abuse and mistreatment of the children. In his care R Schott says the children will be safe and that he would not repeat his mistake of allowing the children unsupervised time with either parent. Putting to one side issues arising from R Schott’s judgment in giving H and K to their father, there are no child protection concerns per se concerning his ability to care for the children. Similarly, there are no child protection concerns concerning Y Schott and Ms Klye’s ability to care for the children.
Because of the issues involved, the Department of Community Services intervened, an Independent Children’s Lawyer was appointed and a Chapter 15 Court Expert order made. Ms S, who is a consultant clinical psychologist accepted the Court Expert appointment. Ms S has a strong child protection background and thoroughly investigated the various allegations and placement options. In Ms S’s opinion, the children are exposed to a grave risk of harm if returned to either parent. Notwithstanding the difficulties involved in long term foster care, she recommends that the three girls remain in foster care. To a great degree her recommendation is predicated upon the girls being settled with families which appear likely to last.
Ms S supports K’s placement with Mr Y Schott. Her opinion is significantly influenced by K’s determination to reside with family and the probability that he will refuse to accept a different outcome. Ms S recommends that the three children have reasonably regular contact with each other and Mr R Schott’s family. For B Ms S suggests an open adoption and contact with her mother a couple of times each year for identification purposes. Concerning future contact between the other children and their parents Ms S opines that this should occur a few times a year. The frequency is limited to maximise the children’s opportunity to fully accept foster care and protect the children from the risks involved in contact with their parents.
The Evidence
The Department of Community Services relied upon the following evidence:
· Affidavit of Ms C sworn 12 March 2008 and her oral testimony. Ms C was an impressive witness and I accept her evidence.
· Affidavit of Mr F sworn 26 October 2007. This witness was not cross examined and I accept his evidence.
· Affidavit of Ms H sworn 17 March 2008. This witness was not cross examined and I accept her evidence.
· Affidavit of Dr L sworn 22 April 2007 and her oral testimony. Dr L was an impressive witness and I accept her evidence.
· Affidavit of Mr G sworn 10 March 2008 and his oral testimony. Mr G was an impressive witness and I accept his evidence.
· Affidavit of Dr U sworn 12 March 2008. This witness was not cross examined and I accept her evidence.
· Affidavits of Ms W sworn 26 October 2007 and 19 March 2008 and her oral testimony. Ms W was an impressive witness and I accept her evidence.
· Affidavit of Associate Professor V sworn 24 April 2008 and his oral testimony.
The applicant mother relied upon her affidavit sworn 30 November 2006 and her oral testimony.
The respondent father relied upon his affidavits filed 7 December 2006 and 21 April 2008 together with his oral testimony.
The Second Interveners relied upon:
· Mr Y Schott’s affidavits sworn 28 March 2008 and 19 April 2008 and his oral testimony.
· Affidavits of Ms Klye sworn 28 March 2008 and 19 April 2008 and her oral testimony.
The Third Intervener relied upon the following:
· His proof of evidence[1][2] and oral testimony.
· Mrs R Schott’s proof of evidence and her oral testimony.
[1] Exhibit J
The Independent Children’s Lawyer relied upon the following evidence:
· Reports of Mr P dated 23 August 2007[3] and 28 September 2007[4] and his oral testimony. Mr P accepted the mother’s information that K told her the father broke his arm. He was comfortable doing so because he says that it is extremely rare for a parent to falsely accuse the other of serious child abuse. While this may be so, in the context of a known grossly dysfunctional parental relationship and contested parenting proceedings it is not so rare that a person appointed to investigate the families circumstances ought, without more, prefer one parents claims over the others denials. Nor should an investigator lead a child to a disclosure by putting suggestions which predict an answer. Doing so raises the risk of false positives and potentially undermines later investigations. These comments relate to Mr P’s discussion with K about his broken arm in which, without proper foundation, he put to the child that someone had broken it. Between his first and second reports Mr P changed his opinion. This occurred because he knew little of the family when he completed his first report and only had access to Department of Community Services material and the mother’s participation for the second report. I agree that his second opinion carriers more weight and subject only to my comments concerning his discussions with K about his broken arm, his evidence carries reasonable weight.
· Reports of Ms S dated 20 February 2008[5] and 22 April 2008[6] and her oral testimony. To a large extent Ms S’s observations of the parties accords with my own. She thoroughly investigated the children’s and parties circumstances and carefully evaluated the child protection, attachment and relationship issues arising in the matter. As to the major issues Ms S’s evidence carries considerable weight.
[3] Exhibit G
[4] Exhibit H
[5] Exhibit E
[6] Exhibit F
There are voluminous exhibits.
Background Facts
The father was born in 1964.
The mother was born in 1973.
The father married NS in 1983. Together they have three children, aged 24 years, 22 years and 20 years.
In 1983 the father suffered a serious workplace injury which required spinal surgery. Following this injury the father’s cannabis use increased which ultimately led to serious and near fatal drug abuse.
The father and NS separated in 1987. At separation, their three children remained in NS’s care.
In 1990 the mother commenced cohabitation with MC. Together they have one child, J, who was born in August 1990.
In 1992 the father received $100,000 compensation for his 1983 back injury. Within nine months he spent the entire sum feeding his drug addiction.
Commencing in May 1994 the father spent three months in gaol.
Between September 1994 and June 1995 the father was in gaol.
The mother and father commenced cohabitation in the later part of 1995. The child J formed part of their household. At this stage the father was on parole and under Probation and Parole supervision.
In September 1995 the father’s parole was revoked. This is because he had returned three positive drug screens, two being cannabis and the other amphetamine. Although the father’s parole was revoked no action was taken for his apprehension.
The child H was born in April 1996.
On 14 March 1997 the father attempted suicide by hanging. The mother was at his home and with a friend cut him down. Had she not done so there is no doubt that the father would have killed himself. He spent eight days in a coma and suffered grave short term memory loss. After lengthy rehabilitation he regained considerable functionality but will forever suffer neurological damage.
The child K was born in January 1998.
On 9 June 1998 police arrested the father in relation to his 1995 parole revocation. At their request he had attended his local police station unaware that he may be arrested. The father was assessed by Dr D, of the Forensic Psychiatry Service and identified as a suicide risk and being neurologically impaired. For his own safety he was transferred to the hospital wing at the gaol while an urgent Parole Board review was completed. While he was still in gaol, the mother informed the father that their relationship was over. In response to this news the father punched through a glass window for which he required two sutures to his right thumb.
The father was released from custody in June 1998. Not long afterwards the mother and father resumed cohabitation.
The mother and father separated temporarily in September 1998. Whilst separated the mother obtained a Department of Housing rental home at M.
During 1999 the mother and father resumed their relationship. Thereafter there was a pattern of reconciliations and separations, some of which involved cohabitation. Even when the parties were separated, the father spent significant amounts of time at the mother’s home and she at his.
In March 2002 the father returned to gaol for four and a half months to serve the balance of his parole. He was assessed as a special needs prisoner arising from brain injury and associated memory problems. He has not been to gaol since.
From about 2002 the father and mother lived predominately separately although still saw each other frequently, if not daily.
By mid 2004 the father was living at his former wife, NS’s home.
By August 2004, the mother realised that her drug use was totally out of control and that the children were neglected. Although she would have preferred them to go to their father, she did not know where he was living or how to contact him. At her request, K who was then six years old, contacted Mr R Schott and asked him if R Schott could care for them while his mother was sick. Whilst the children were with R Schott the mother planned to commence either a residential drug rehabilitation program or seek admission into a mental health ward.
H and K went into R Schott’s care on 19 August 2004. He understood that the mother would complete drug rehabilitation and in a reasonable time frame the children would return to her. R Schott and his family live at E. He withdrew H and K from M Public School and enrolled them at E Public School.
On 20 August 2004 R Schott informed the Department of Community Services that H and K were living with him.
R Schott filed an urgent application in the Local Court at Raymond Terrace for parenting orders. His application was heard ex-parte on 23 August 2004. The proceedings were adjourned until 30 August 2004, with an order that during the interim H and K live with him. The mother and father were able to have such contact with the children as the parties agreed.
On the weekend following the children coming into his care, R Schott visited the mother, basically following up her stated plans for admission into a rehabilitation or mental health unit. Because of her drug use the mother was incoherent. J remained with her mother.
On 30 August 2004, the proceedings were adjourned to 20 September 2004 with further orders mirroring those made the preceding week. During the period of the adjournment the father, mother and R Schott were directed to attend counselling.
On 20 September 2004 the proceedings in the Local Court at Raymond Terrace were adjourned with further orders identical to those previously made.
On 25 October 2004 the proceedings were again adjourned, on identical terms, until 2 May 2005. By this stage it was becoming clearer that the mother was not reducing her drug use and the prospects that the children may soon return to her were diminishing.
For the first two months that H and K lived with R Schott, the children rarely saw their parents. This is notwithstanding R Schott’s stance that they could ring and visit the children at any time. The father spoke to the children most weeks and the mother visited rarely. During this period the mother made arrangements to visit the children which more often than not, she failed to keep.
Between Christmas 2004 and May 2005 the parents had reconciled and stayed at R Schott’s home from Friday to Sunday almost every weekend. R Schott was present throughout their visits. Although reconciled the parents were not living together.
On 2 May 2005 the parents and R Schott entered into interim consent orders identical to those previously made. The Local Court proceedings have not been finalised.
In early July 2005 the father and mother separated for the last time. Since then they have occasionally had sexual intercourse, less frequently than the mother suggests.
H and K spent the July 2005 holidays one week with each of their parents. During this period R Schott telephoned two or three times each week and saw the children once in each home.
During September 2005, the children commenced alternate weekends with their parents. On the weekends with their father, they went to his home from school on Friday and returned to R Schott initially on Sunday evening and later, directly to school on Monday morning. The children’s paternal grandparents usually collected and returned the children when they were spending time with their father. On the weekends the children spent with their mother, they went to her between about 5.00 pm or 6.00 pm Friday. Although the mother was encouraged to collect and return the children she rarely did. So as to maintain the children’s relationship with their mother when she failed to arrive Mrs R Schott delivered the children to her. The children returned to R Schott on Sunday evening, most commonly collected by his wife.
In October 2005 the father started living with Ms AN. Ms AN’s two children, EN who was born in March 2003 and TN born in August 2004 formed part of their home. Since then the father and mother have had sexual intercourse a couple of times. The mother exchanges sex for drugs.
In late 2005, the mother commenced a relationship with Mr RL, who she claimed to Department of Community Services and others is a paedophile. Mr RL was born in 1957. He has an extensive criminal history, commencing in 1972 with his last offence committed on 27 January 2006. During that period he has been in and out of gaol, with numerous drink driving, assault, domestic violence, and dishonesty and drug offences.
During the 2005 Christmas school holidays, R Schott, his family, H and K holidayed for three weeks at Y Schott’s home.
In April 2006 T was born. The father stayed at the mother’s home for one week following T’s birth. Thereafter T remained in the mother’s care. From the time of T’s birth until 25 October 2006, the father cared for her overnight at the mother’s place on about eight occasions. In addition, the mother stayed overnight with the father and his partner on about three or four occasions.
During the Easter 2006 school holidays H and K holidayed with Y Schott and his family.
In May 2006 the Department of Community Services spoke with R Schott and told him that they did not want the children left alone with the mother’s partner, Mr RL.
In mid August 2006, Mr G who was then Assistant Principal of E Primary School notified the Department of Community Services that he believed the father was physically abusing K. He had been concerned about K’s deteriorating behaviour and following a conversation with K, notified the Department of Community Services. As far as he is aware the Department took no action.
On 28 August 2006, Mr G noticed bruising on K’s shins. K told Mr G that his father had inflicted these during the preceding weekend.
The mother and Mr RL separated in September 2006. At about the same time, R Schott says he learned that the mother was leaving the children alone with Mr RL. As the Department of Community Services and he had discussed with the mother that this was not to occur, R Schott stopped H and K visiting their mother. They did not see her for about four weeks.
During the September 2006 school holidays Y Schott and his family visited his parents. During this visit they saw H and K two or three times for a few hours each time.
N was born in October 2006. The father and Ms AN are N’s parents.
At the mother’s request the father cared for T for the weekend commencing 27 October 2006. T was six months old and barely knew her father. When he tried to return her to the mother on the Sunday evening, she was nowhere to be found. Having eventually contacted her, the father returned T to the mother on Tuesday, 31 October 2006.
By agreement, the father collected T for the weekend commencing 3 November 2006. Once again he observed that T had nappy rash which was so severe that she was bleeding. Nonetheless, he attempted to return her as planned, again finding himself unable to contact the mother.
On 6 November 2006 the father contacted the Department of Community Services and informed them that T was with him. At this stage he decided that he would not return T to her mother. In response to this information the Department took no action.
At her mother’s request on 9 November 2006 J telephoned the father and asked when he planned returning T. The father and mother spoke without reaching agreement concerning T’s future care.
On 10 November 2006 R Schott relinquished K’s care in favour of the father. The catalyst for this was K running away from school distressed about not being able to live with his father. H also wanted to live with her father and on the following Sunday she moved to her father’s.
On 16 November 2006, without his father’s permission, K went to McDonalds. When he hadn’t returned home by 6 pm the father contacted Police and went looking for him. Alone K hid in the bush until he fell asleep. He awoke at about 3 am and made his way to his paternal grandparent’s home. They took K in and returned him to the father the following morning. R Schott was not informed of this incident.
On 19 November 2006 the mother attended the father’s home and unsuccessfully attempted to retrieve T. T was literally caught in a tug of war between her parents.
On 20 November 2006 the mother attended the Department of Community Services looking for their help retrieving T. A Department of Community Services officer advised the mother to seek legal aid. The mother complains that notwithstanding her subsequent requests that they do so, Department of Community Services failed to assist her retrieve T. Having regards to the mother’s situation no criticism should be made about the Department’s failure to help her retrieve T.
On 30 November 2006 in the Local Court the mother applied for orders that T lives with her and spends time with her father as agreed. Although she knew that H and K were living with the father the mother did not apply for orders concerning them. I accept the father’s contention that this is because she was satisfied that the children wanted to live with their father. The mother’s application was made returnable on 5 December 2006.
On 5 December 2006 in the Local Court a recovery order was made in the mother’s favour concerning T. Although the mother’s affidavit disclosed the father’s drug abuse and violence, she failed to disclose her own similar behaviour. For reasons which were never apparent to me the mother was concerned about T’s exposure to the father’s drug abuse and violence but unconcerned about the effects upon H and K. Not long after the recovery order was made, T returned to live with the mother. Until the three children went into foster care these few weeks with their father is the only period in which, other than occasional weekends with their mother, they lived together.
On 12 December 2006 an order was made in the Local Court transferring the proceedings to the Federal Magistrates Court at Newcastle.
During December 2006 the mother formed a relationship with Mr ID. They are old friends and for a couple of years used amphetamines together. He is 42 years old and has a long drug and criminal history. While Mr ID lived with the mother he had sexual intercourse with J. J has since had a baby to him.
The father withdrew H and K from E Public School and, commencing with the new school year in 2007, the children went to WG Public School. Each alternate weekend H and K stayed with the mother. After a short period the father stopped midweek overnight contact because too often the mother failed to get the children to school the next day. On those weekends when H and K were in his care, T was with the father from 3.30 pm Friday until 4.00 pm Sunday. In addition, T stayed overnight on an ad hoc basis.
On 7 February 2007 K, without his father’s approval, missed school and walked to the mother’s home. It is a long walk, taking about 20 to 30 minutes to drive. When the father learned of K’s actions, he drove to the mother’s home. She and a number of friends were at home and all of them were drunk. The father told K to “get in the car” and on the drive home aggressively explained to K the risks involved in his actions. Although he managed to communicate his concerns the father told K that when they arrived home, K would be strapped. True to his word the father strapped K with a belt he has hanging behind the lounge room door. He severely beat K three or four times. Although the father aimed at the child’s bottom, because the screaming boy was trying to escape the father also hit his upper thigh. The child developed severe bruising apparent to Ms AN, the mother and school. This was a serious assault which Department of Community Services referred to JIRT for further action. It is difficult to understand how JIRT decided against charging the father. R and Y Schott first heard about this incident during this hearing.
The Department of Community Services tendered a photograph[7] which the mother says depicts bruising on K’s leg not long after the beating. The photograph shows a leg with heavy bruising but does not show the victims face. In the background one can see another child. The father and R Schott say that K is the child in the background. R Schott identified K’s clothes and the boy. Although the mother had the opportunity to answer the father’s evidence that the injured child was J after she was beaten by Mr ID she did not take it. On balance I am satisfied that the photograph depicts J’s leg and that K is the uninjured child in the background. In this instance the mother deliberately attempted to mislead the Department of Community Services and the court. Her actions are reprehensible and bring her credit into serious doubt. Unfortunately the misleading nature of this evidence is so severe where the mother’s evidence conflicts with any other persons or the father’s corroborated evidence, hers carries little weight.
[7] Exhibit K
On 8 February 2007 an order was made in the Federal Magistrates Court appointing an Independent Children’s Lawyer for T and adjourning the proceedings to 18 April 2007.
On 18 April 2007 an order was made for the appointment of an Independent Children’s Lawyer for H and K and a Family Report ordered. Consent orders were made for T to live with the mother and spend time with the father on alternate weekends.
In April 2007 the mother commenced a relationship with Mr BE who was born in 1968. They cohabited on and off until Mr BE went back into prison. Many years ago the father worked with BE’s father, BE Snr. BE Snr is a drug dealer and is a close friend of the parents. The mother’s relationship with BE is closer than the father’s. BE is a heroin user and has a lengthy criminal history. He was first charged on 7 February 1984 with his most recent charge being dated 6 April 2007. This is about the same time as he commenced his sexual relationship with the mother. In November 2007, Mr BE was sentenced to nine months imprisonment with a six month non-parole period. Mr BE has been convicted on numerous occasions of breaching domestic violence orders, drink driving offences, dishonesty, drug and assault offences; a number of which have resulted in imprisonment.
On 26 April 2007 the father attended the mother’s home. Police attended in relation to a domestic violence incident between them. Upon arrival they observed that the mother appeared either drug effected or mentally ill. The mother asked one of the police officers if his gun was loaded and commented she would like to kill herself. Pursuant to the Mental Health Act, the police apprehended the mother and took her to the local Hospital from which she promptly absconded. Police took T with them and contacted the Department of Community Services. Department of Community Services arranged for T to go into her maternal grandmother’s care. The following day the mother attended the local Hospital. There it was decided that the mother was not mentally ill. She was advised about how to obtain an AVO and a social worker discussed referral to a drug and alcohol unit. The hospital took no further action. The maternal grandmother returned T to her mother.
On 12 August 2007 K broke his left olecranon, commonly known as the “funny bone.” K was in his father and Ms AN’s care. They say that K fell from his upper bunk bed and that the injury was accidental. Initially K described the incident in similar terms. He now says his father pulled him from his bed and in trying to protect himself from his father’s kick, his arm was broken. The following morning the father took K to see his father, who is a retired health worker. The paternal grandfather advised that the child’s arm needed to be x-rayed. Ms AN took K for an x-ray that day which confirmed the break. The same day Ms AN’s father had a heart attack and she left the father to care for the children, which he says meant that he was unable to take K to hospital.
On 14 August 2008 the father arranged for a friend, …, to take K to the local Hospital where the child’s arm was put into plaster. Neither Ms AN nor the father accompanied K. Of the various explanations provided for the injury, Professor V concludes the most likely causation is consistent with K’s claim that his father broke his arm whilst the child was trying to fend his father off.
In August 2007 the father, who has never held a drivers license, was convicted of driving an unlicensed vehicle. He was placed on an 18 months bond and disqualified from driving for three years commencing 21 August 2007. This is the father’s most recent conviction. He has no outstanding charges.
On 13 September 2007, the Independent Children’s Lawyer requested that the Federal Magistrate’s Court invite the Department of Community Services to intervene. An order was made in accordance with this application. As well as procedural matters, orders were also made for an updated family report. T remained in the mother’s care with orders that she spends time with the father each alternate weekend and for the two days the mother was to be in hospital for B’s birth.
B was born in September 2007. Prior to going to hospital to deliver her baby, the mother used ice and cannabis. J and H were with her. Doctor U gave evidence concerning her dealings with the mother following her arrival at the local Hospital and B’s care following delivery. The mother told Doctor U that during her pregnancy she used ice, amphetamines, heroin, marijuana and smoked tobacco. I accept that this is factually correct. As was the case with T’s pregnancy, the mother had no ante-natal care. Because of the mother’s presentation and drug history, a urine drug screen was collected from B. This tested positive for amphetamines (ice), opiates and cannabis in the baby. Dr L reviewed the hospital notes and says that none of the medications given to the mother during delivery would have resulted in the drugs discovered in the baby. There is no doubt that the drugs found in B were ingested in utero from her mother.
B was admitted to the special care nursery for observation of possible drug withdrawal where she remained until discharged on 4 October 2007. In the period following her birth B was jittery, with her hands and feet shaking a lot. She had a noticeable groove in her forehead. Initially B was slow to feed. These symptoms resolved without treatment and the likelihood is that they are attributable to drug withdrawal. The mother’s behaviour whilst at hospital was appalling. She used foul language, screaming and swearing at staff. Without embarrassment she acknowledges calling B “an ugly cunt”. Attempts by hospital staff to have the mother interact with the child were met with indifference, even to the extent of refusing to name the child. The Department of Community Services took B into care and commenced Children’s Court proceedings.
On 29 September 2007 the Children’s Court made an interim order placing B in the care of the Director General of the Department of Community Services. This order was continued until an interim parenting order was made in the Federal Magistrates Court in the Department of Community Services favour.
At the Department of Community Services’ request, on 5 October 2007, the mother completed a random drug urine test. The mother tested positive for morphine and cannabis metabolite. The mother participated in further urine testing on 14 November 2007. On this occasion she tested for cannabis metabolite, amphetamine and methamphetamine.
Dr L reviewed the mother’s and father’s drug urine tests. Dr L is a Clinical Forensic Pharmacologist employed by the New South Wales Police Service. Dr L says that methamphetamine can only be present as a result of the use of illicit methamphetamine. Methamphetamine can be metabolised to amphetamine. She concludes that the probability is that the mother used methamphetamine (commonly referred to as speed) within 48 hours of the urine samples being taken. The mother’s carboxy-THC level is consistent with chronic cannabis use. Her increased carboxy-THC creatinine ratio in the second test is indicative of new cannabis use. Although subsequently requested to provide further drug screens, the mother refused to do so. At the end of this hearing the mother produced a drug screen dated collected 21 April 2008.[8] This test is positive for cannabis with no other drugs detected. The mother provides this result as proof that she now only uses cannabis. Unfortunately her long drug history and failure to continue random drug testing means that this result established no more than in the few days prior to the testing the mother only used cannabis. It says nothing about her continued use of those other drugs she has been addicted to for years and was still using in late 2007.
[8] Exhibit S
On 11 October 2007 an order was made in the Federal Magistrates Court granting the Director-General of the Department of Community Services leave to intervene. Pending further order the Director-General was granted sole parental responsibility for the three eldest children. Further orders were made for the mother to spend supervised time with the children once per week for a period not less than one hour. The father was given liberty to arrange supervised visits through the Department of Community Services.
Initially all three children were placed with the same intentionally short term foster family.
On 12 October 2007, Department of Community Services officers visited the father and Ms AN at their home. In effect the Department of Community Services gave Ms AN an ultimatum concerning her four children. Unless she agreed to live separately from the father, the Department of Community Services informed her they would commence proceedings to remove the children. The father agreed to vacate the home and moved to his parent’s home. Although he has not been living with Ms AN, since then he has visited often.
On 29 October 2007 consent orders were made in the Federal Magistrates Court as follows:
1.Pending further order the Minister of Community Services have sole parental responsibility for the children [H], [K] and [T] and that the children live with such person as the Director-General or his/her delegate directs.
2.That the mother spend time with the children (including [B]) once per week for a period of not less than one hour, such time to be supervised by an officer of the Director-General or a person nominated.
3.That the father spend time with the children once per month for a period of not less than one hour at a time and place nominated by the Director-General, such time to be supervised.
4.That subject to the Children’s Court granting leave to the Director-General pursuant to s 66 of the Children and Young Persons (Care and Protection) Act (NSW) 1998 to withdraw the proceedings instituted in the Broadmeadow Children’s Court in relation to the child [B] born […] September 2007, and upon all prior orders of the Children’s Court being discharged, that the Minister be granted parental responsibility for [B] and that the child live with such person as the Director-General or his/her delegate directs.
5.That an updated report pursuant to s 62(G)(2) be prepared by Mr [P] to address the nature of the relationship between each of the children and parents, including the children’s attachment and bonds to each of parents in light of alleged family violence involving the children, in addition to whether restoration of either parent is viable in light of the events and disclosures since the report by Mr [P] in September 2007.
In addition to the above orders, restraining orders were made against the parents, both were ordered to attend drug screenings as requested by the Director-General and the matter was transferred to this court.
The father commenced monthly supervised visits with his three children on 2 November 2007.
H moved into a second foster family on 9 November 2007.
The father participated in three random drug screens, on 9 November 2007, 19 November 2007 and 14 December 2007. A prearranged screen taken 31 October 2007 tested positive for cannabis metabolite, amphetamine and methamphetamine. His 14 December 2007 test returned positive readings for cannabis metabolite, amphetamine and methamphetamine. His 7 February 2008 sample tested positive for methamphetamine. Dr L concludes that on each occasion the father used methamphetamine within approximately 48 hours of the urine sample being taken. His changing carboxy-THC and carboxy-THC: creatine ratio indicates that he probably had not used cannabis after the 31 October 2007. Curiously, until the week in which this hearing commenced, the father was not requested to provide further urine samples for testing.
On 10 December 2007 K and T were placed with a second foster family. Two days later H joined them. This is the family with whom the Department of Community Services propose the two girls live.
On 20 December 2007 orders were made as follows:
1.That pursuant to Chapter 15 of the Family Court Rules 2004, Ms [S], Clinical Psychologist, be appointed as Court Expert to prepare a report to assist the court in relation to proceedings involving the children [H] born […] April 1996, [K] born […] January 1998, [T] born […] April 2006 and [B] born […] September 2007 (hereinafter referred to as “the children”).
2.That the report address the following matters:
(a) The psychological profile of each of the parties.
(b) The psychological profile and developmental profile of the children and the children’s siblings and the attachment of the children with their siblings.
(c) The nature of the relationship between the parties.
(d) The capacity of each of the parties to provide for the needs of the children including physical, emotional and intellectual needs.
(e) An opinion as to whether the children are at risk of physical, emotional or psychological harm from any of the parties or any other parties or any other persons and if the children are at risk of such harm how to protect the child from that risk.
(f) The mother’s alleged abuse of illicit drugs and the affect that this has on her parenting capacity.
(g) The mother’s concerns of possible physical abuse of the children by the father.
(h) The children’s relationships, attachments, health, behavioural problems and needs.
(i) Any other matter that the single expert considers relevant.
3.That the parties do all acts and things necessary to facilitate the preparation of the report including attending upon the Chapter 15 Expert and arranging for the child in their care and relevant persons sought to be examined by the Chapter 15 Expert to attend upon the Chapter 15 Expert.
4.That the legal representatives for the mother and the father do all things necessary to provide the Single Expert with all material filed by their client or in the case of the father by the father in these proceedings.
5.That leave is given to the Independent Children’s Lawyer to photocopy and make available to the Chapter 15 Expert for the purpose of preparing the report all documents produced under subpoena.
6.That the remuneration of the Chapter 15 Expert for preparing the report and attending at the court is the current Legal Aid scale for psychiatrists in children’s matters.
7.That pending any further order made as to costs following the final hearing of this matter the cost of the Chapter 15 Expert Witness for preparing the report and attending the court are to be paid by the mother and father equally and that:
(a) Within 14 days of the date of these orders each party who has not been granted an exemption or waiver by Legal Aid in relation to the Chapter 15 Expert’s fees is to pay to Legal Aid the sum of $2,000 to be applied by Legal Aid towards the payment of the costs of the Chapter 15 Expert.
(b) In the event that there is money remaining after the payment of the costs of the Chapter 15 Expert, the money remaining is to be divided equally between those who paid the monies.
(c) In the event that the sum of $4,000 is insufficient to pay the costs of the Chapter 15 Expert, each party is to pay to Legal Aid such additional sum as requested by Legal Aid to pay the whole of the costs of the Chapter 15 Expert within 14 days of a request from the Independent Children’s Lawyer for them to do so.
8.I give the Department of Community Services leave to apply on 7 days notice in the event they seek to vary the order for the appointment of the Single Expert. Leave pursuant to this order expires 4.00 pm on 23 January 2008.
9.I extend the time for compliance with order 2 made 3 December 2007 to 4.00 pm on 11 January 2008.
10.That the parties file and serve all affidavits upon which they propose to rely by 28 February 2008.
11.That this matter is adjourned to 19 March 2008 at 9.30 am.
In January 2008 E was born. Ms AN and the father are his parents.
In January 2008 J’s baby JJ was born. JJ’s father is Mr ID.
Ms AN provided a urine sample on 7 February 2008 which tested positive for methamphetamine. The amount detected is below Australian standards for urine testing. Although the finding is suggestive of methamphetamine use she agrees with the father’s suggestion that Ms AN may have consumed, he says unwittingly, a quantity of methamphetamine which he had mixed in soft drink.
After Ms AN produced a positive drug screen the Department of Community Services contacted EN and TN’s paternal grandmother. Primarily as a result of information the Department of Community Services provided, EN and TN’s grandmother took EN and TN from Ms AN. Parenting proceedings then commenced in the Federal Magistrates Court between Ms AN, the grandmother and EN and TN’s father.
At his request, on 18 February 2008 K moved into a third foster family, where he remains.
On 21 February 2008 B moved to a long term foster family at E. This is the family with whom the Department of Community Services propose B will live.
On 19 March 2008 the following orders were made:
1.I extend the time within which the parties are to file and serve their affidavits (including those of their witnesses) to 4.00 pm on 1 April 2008.
2.I give the Department of Community Services leave to adduce adversarial evidence from Dr [L] and Professor [V].
3.In the event that [R Schott] seeks leave to intervene in these proceedings, he is to file and serve an application and affidavit in support of his intervention application by 4.00 pm on 26 March 2008.
4.In the event [R Schott] files an application in accordance with the above order, the application is to be returnable before me at 9.30 am on 2 April 2008.
5.I give the Department of Community Services leave to photocopy documents produced under subpoena for the purpose of preparing a bundle of documents for the trial.
6.That the Department of Community Services file and serve a paginated bundle of documents by 4.00 pm on 16 April 2008.
7.That within 7 days the mother’s solicitor shall file and serve a Notice of Address for Service.
8.By 4.00 pm on 11 April 2008 the parties and Independent Children’s Lawyer shall serve upon each other a List of Objections.
9.By 4.00 pm on 18 April 2008 the parties and Independent Children’s Lawyer shall each reply to each other’s objections.
10.By 4.00 pm on 23 April 2008 the parties and Independent Children’s Lawyer shall file with my Associate the following:
(a)a list of documents relied upon at the hearing;
(b)a chronology;
(c)the outcome of the objection process; and
(d)a list of authorities.
11.The parties are all required to attend on the next occasion.
12.That further consideration of this matter is adjourned to 9.30 am on 2 April 2008.
The Court Notes:
(A)The father proposes adducing evidence from himself; his parents and [R Schott].
The Court is of the view that he should contemplate calling evidence from his partner [Ms AN].
(B)The mother proposes calling evidence from herself and other, as yet undisclosed, witnesses.
(C)The Department of Community Services proposes to call evidence from:
(i) Ms [W]
(ii) Mr [F] (Case Worker)
(iii) Ms [H] (Case Worker)
(iv) Mr [G] (School Principal)
(v) Ms [C] (School Principal)
(vi) Dr [U]
(vii) Dr [L]
(viii) Associate Professor [V].(D)The Independent Children’s Lawyer proposes calling evidence from Ms [S] and Mr [P].
The Court further notes:
(E)A significant issue in these proceedings relates to the parent’s drug use. The Court recommends to the parents that they consider providing drug screen results which test for drugs of the type it is alleged each of them uses.
The father’s solicitor was requested to notify R Schott of these directions.
Orders were made on 2 April 2008 as follows:
1.I give the Mother’s solicitor Sharon Moore leave to withdraw from the proceedings.
2.I direct Sharon Moore to file a Notice of Ceasing to Act within 72 hours.
3.By the consent of the Applicant Father, the Director-General of the Department of Community Services and the Independent Children’s Lawyer I give leave to [Y Schott and Ms Klye] to intervene in these proceedings.
4.I dispense with the requirement that Mr [Y Schott] and Ms [Klye] file a Response and note that the orders they seek are contained in their Application in a Case filed 28 March 2008.
5.I extend the time for the parties to file their affidavits to 4.00 pm on 16 April 2008.
6.I extend the time for compliance with Order 8 made 19 March 2008 to 4.00 pm on 21 April 2008.
7.I extend the time for compliance with Order 9 made 19 March 2008 to 4.00 pm on 23 April 2008.
8.I extend the time for compliance with Order 10 made 19 March 2008 to 12.00 noon on 24 April 2008.
9.I extend the leave for the Department to photocopy documents produced under subpoena for the purpose of preparing a bundle of documents for the trial.
10.That by 4.00 pm on 3 April 2008 the father shall deliver to his solicitors x-rays of the child [K’s] arm taken by Hunter Imaging in 2007.
11.That upon receiving the x-rays referred to in the above order, the father’s solicitor shall release them to the Director-General Department of Community Services so that they can in turn be provided to Professor [V].
12.As soon as Professor [V] decides that he no longer needs the x-rays referred to above the Director-General Department of Community Services shall return them to the father’s solicitors.
13.That an updated Expert’s Report be prepared by Ms [S] for the purposes of assessing Mr [Y Schott] and Ms [Klye’s] capacity to assume [H], [K] and [T’s] fulltime care and that such report shall address those terms previously ordered.
14.That unless the Director-General Department of Community Services agrees to pay one-half of the costs for the updated Expert’s Report, by 4.00 pm on 9 April 2008 Ms [Klye] and Mr [Y Schott] shall deposit with the Independent Children’s Lawyer the sum of $1,650.
15.That all parties have leave to issue any further subpoena for the production of documents which they deem necessary.
16.That within 72 hours of receiving the request to answer questions from the Director-General Department of Community Services, Mr [Y Schott] and Ms [Klye] shall return the answers verified by affidavit.
On 21 April 2008 the Department of Community Services intervened in the parenting proceedings between Ms AN and the paternal grandmother.
On 23 April 2008 a federal magistrate made interim parenting orders in the proceedings between Ms AN and the paternal grandmother. It was ordered that pending further order, EN and TN live with their paternal grandmother and she has parental responsibility. EN and TN’s father lives with his mother. Ms AN may spend time with EN and TN for no less than one hour a month supervised by a person nominated by the Department of Community Services. The children N and E remain with Ms AN. Ms AN’s parenting order concerning N and E is subject to a series of conditions. Essentially, these require her to submit to regular drug screen tests, remain in contact with the Department of Community Services and restrain her from using illegal drugs. The father is restrained from living in the same home as N and E or having contact with them beyond that arranged and supervised by the Department of Community Services.
History of Departmental involvement
Since 21 February 1997 the Department of Community Services has received approximately 27 notifications in relation to the children. The key notifications and the Department’s responses are set out below.
On 21 February 1997, when H was 10 months old, the Department of Community Services received a notification alleging that the mother was using amphetamines and child neglect. The same day Department of Community Services’ officers completed a home visit, where they interviewed the mother and father and saw H. They observed severe relationship difficulties between the parents. In private conversation the mother disclosed domestic violence and fears for her safety. The mother advised Department of Community Services’ officers that she was planning to move to RK Caravan Park for a break. Department of Community Services officers advised the mother that they would visit her at RK and that she should contact them if she required assistance. The mother telephoned the Department on 4 March 1997 and told them that she was living at her brother’s home but declined to disclose where. The mother advised the Department of Community Services worker that she was planning to attend counselling. The Department took no further action and closed its file.
In October 1998 the mother attended the area Community Services Centre in relation to alleged domestic violence perpetrated that day by the father. An officer took the mother, H and K to a women’s refuge. No further action was taken and the Department closed its file.
On 17 May 2000 the Department received a notification that the children, J, H and K were left unsupervised while the mother and father were at a club. Department of Community Services contacted M Public School, the Department of Housing and local police. M Public School reported absenteeism of about six to eight days a term and that H was a steady worker albeit below average academically. The Principal informed Department of Community Services that H is not a child who comes to attention for behavioural problems. Police informed Department of Community Services that there was a current Apprehended Violence Order (AVO) operative until 20 October 2000 which included a provision that the father is not to enter premises at which the mother resides or approach her. Police reported no domestic violence incidents since 1998. Given the nature of the notification it is clear that the allegation suggested that both parents were in breach of the AVO. No further action was taken and the Department closed its file.
In March 2002 Department of Community Services received an information only notification concerning domestic violence. No further action was taken and the Department closed its file.
In April 2003 Department of Community Services received a domestic violence notification. Police attended and at the mother’s request, took no further action. Department of Community Services were advised that the mother had moved to her brother’s home. The Department of Community Services took no further action.
In May 2003 Department of Community Services received a domestic violence notification in which it was alleged the father assaulted the mother during which the children were present. No further action was taken and the Department closed its file.
On 25 May 2004 a Department of Community Services officer visited the Principal of M Primary School. It appears the Principal initiated the contact in relation to K and two other students discovered wagging school. The Principal retrieved the boys, who later that day absconded. Department of Community Services were informed that the Schott children have a chronic non-attendance problem. This issue had been raised with the mother and an education liaison officer provided, without improvement. Department of Community Services were advised that during the last year the father had been collecting the children, as had another male. Departmental officers interviewed K at school the following day. Relevantly, the Department of Community Services report of the interview notes:
[K] had been asked who lives with you in the home and [K] said ‘[MS] and [KS].
When asked who [MS] was, [K] said ‘my mum’. [K] was asked did he call his mum [MS] and [K] said ‘no, mum’.
When asked who [KS] was, [K] said ‘he is my dad, but he has his own place’.
[K] was asked who else lives in the home and [K] said ‘[J] and [H] who are his sisters’.
[K] said that [H] goes to the same school as him and that [J] goes to high school but she doesn’t go there very much. [K] also stated that someone called [BY] had lived with them who was his mum’s friend.
[K] was asked what happens when you get into trouble at home and [K] said ‘I get a flogging with a stick or hand’.
[K] was asked ‘Have you gotten a flogging with a stick and [K] said, ‘once’. [K] then said he has been smacked with a hand 10 times.
When [K] was asked when was the last time he was hit with a stick [K] said he only got hit one time and when asked when did this happen, it was difficult to follow [K’s] track of thought. He was looking up at the ceiling and providing fragments of information such as mum, dad, on the face, months ago, when I was a baby, when I was three or four.
At the end of this interview, the Department of Community Services officers discussed strategies with the school Principal to help K settle more at school, including addressing his behavioural management issues. Already K had a support teacher assisting him most days.
Later in the day, Departmental officers visited the mother. The home was neatly presented. The mother denied hitting K with a stick and discussed her difficulties ensuring that he and J attend school. She spoke of her conflict with other neighbours and advised that she asked BY to leave because she did not approve of the way BY spoke to K. The mother confirmed that she had an interim Apprehended Violence Order against the father; however contact between them was frequent. The mother commented that she had not followed up family support and that she was “back on track”. The officers reported that: “When n/mother had been questioned on what do you mean about getting back on track n/mother had evaded the question”. The Department of Community Services contacted the Family Support Service who confirmed that they had offered the mother family support assistance, which she declined. The offer had been to address parenting and relationship skills, home and financial management. It was agreed that the Family Support Service would again offer their assistance and by their letter of 28 May 2004, Department of Community Services reminded the mother that she should contact the Family Support Service and them if she required further assistance. The file was then closed.
The file was reviewed and closed on 28 May 2004.
On 3 May 2006 the Department of Community Services received a notification alleging the mother was living with a paedophile, Mr RL. It appears that officers spoke with the mother and explained that the children were not to be left alone with him.
On 14 June 2006 the Department of Community Services received a notification that the mother was using amphetamines and there had been a domestic violence incident. The mother’s boyfriend, Mr RL, had smashed her window when she refused him entry. Departmental officers spoke with the mother who advised that H and K were living with R Schott. Asked for how long, she said: “Since May last year. [The father] and I had problems. I wanted [the father] to take the kids”. Having traversed other matters, the officers spoke about T and advised the mother that she needed to ensure T received her immunisations and offered her support.
In August 2006 the Department of Community Services issued an s 248 Notice to the New South Wales Police requesting information regarding the parent’s criminal histories.
In August 2006 the Department of Community Services conducted a file (peer) review. The file was unallocated because of competing priorities.
On 14 August 2006, the Department of Community Services received a notification that K had a bruise on his left hip and had been punched in the mouth. The notification was not allocated because of competing priorities. At some stage prior to the next notification, Department of Community Services spoke with M Public School. No further action was taken.
On 18 October 2006 the Department of Community Services received a notification alleging that K was engaging in demonstratively inappropriate behaviour at school. Because of competing priorities the notification was not allocated and the file was closed.
In October 2006 the Department conducted a file (peer) review. The file was unallocated because of competing priorities.
On 24 November 2006 the Department of Community Services received a notification alleging that K was missing. Department of Community Services responded with a telephone call to E Public School in December 2006. They learned that H and K were now living with their father. It appears no further action was taken.
In December 2006 the Department of Community Services conducted a file (peer) review. The file was unallocated because of competing priorities.
On 7 February 2007 the Department of Community Services received notification alleging that the father strapped K causing massive bruising. The following day the Department of Community Services referred the notification to the Joint Investigative Response Team (JIRT). On 9 February 2007 JIRT rejected the referral because it did not meet “particular criteria” specified by JIRT. Notwithstanding that the referral identified massive bruising, it was regarded as insufficient to categorise it as a serious physical assault warranting JIRT intervention. No further action was taken.
On 28 February 2007 a file (peer) review occurred with the case unallocated because of competing priorities.
On 14 March 2007 the file was again reviewed with the case remaining unallocated because of competing priorities.
On 26 April 2007 the Department of Community Services were advised that Police had taken the mother to a psychiatric unit. Department of Community Services collected T and took her to the maternal grandmother. The next day the Department of Community Services contacted the hospital who advised that the mother had been released. No further action was taken.
On 12 August 2007 the Department of Community Services were notified of a domestic violence incident involving the mother and Mr BE. The notification was classified as a “Level 3”, that is low priority, and no further action was taken.
On 23 August 2007 the Department of Community Services were notified that the father was using heroin, speed and cannabis. By virtue of their contact with the school in late 2006, the Department of Community Services were aware that H and K were in their father’s care. No further action was taken.
On 14 September 2007 the Department of Community Services received the Federal Magistrates Court’s request that they intervene in these proceedings.
On 21 September 2007 the Department of Community Services received from the Federal Magistrates Court Mr P’s two reports. These revealed, inter alia, his concern that the father may have broken K’s arm and that the mother was abusing drugs.
On 29 September 2007 the Department of Community Services were notified by the local Hospital about the mother’s presentation and B’s imminent birth. The same day, the Department of Community Services served an order for B’s assumption into care.
On 11 October 2007 the Department of Community Services intervened in these proceedings and took H, K and T into care.
General Law in parenting cases
Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64A). They arise in proceedings conducted under Pt VII of the Family Law Act 1975 (Cth). Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns eighteen, each of the child’s parents has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B as: “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children.” Essentially the presumption relates to parental decision-making and does not determine where or with whom a child will live. By virtue of s 61DA(2) the presumption does not apply where there exist reasonable grounds to conclude that a parent, or a person who lives with a parent of the child has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DB). Thus if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements. The process for doing so is found in s 60B and s 60CC.
Section 60B sets out the objects of Pt VII and the principles which underline those objects. In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensures that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective, points the way to an optimum outcome. Where there are no countervailing factors, the s 60B principles may be decisive. Section 60B is set out below.
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.
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).
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.
In deciding the arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s 60CC. Section 60CC(1) contains two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)). The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)). Because these two factors are referred to as “primary considerations” this means they must be considered in every parenting case and are to be considered as having particular importance.
Having considered the primary considerations, the Court must take into account the thirteen additional considerations set out in s 60CC(3). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities: s 60CC(4). In deciding the appropriate parenting order, the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence: s 60CG. Ultimately the weight attached to each factor is a matter for the Court’s discretion.
The sequence of determining parenting orders is important. If the court is satisfied that a child’s parents are to have equal shared parenting responsibility, it must consider the practicability (s 65DAA(5)) of the child spending equal or substantial and significant time with its parents (s 65DAA). In the context of s 65DAA 'consider' means a consideration tending to a result, or to consider positively the making of an order. Goode and Goode (2006) FLC 93-286. The notion of equal time requires no explanation and is decided first. If equal time is not ordered, substantial and significant time must be considered. This concept is defined in s 65DAA(3) and occurs where:
(1)The time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(2)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(3)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The child’s best interests remain the overriding consideration.
Where neither concept delivers an outcome which promotes the child’s best interests the court then determines the parenting applications as outlined above. Similarly, where the Court has decided against maintaining equal shared parental responsibility s 65DAA considerations do not apply.
General principles to be applied in determining abuse allegations
The legal principles to be applied in a case involving allegations of sexual abuse are laid down by the High Court in M v M (1988) 166 CLR 69. The oft quoted passages are found at pp 76-77 where the High Court held:
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at p. 362. There Dixon J. said:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a ‘risk of serious harm’ (A. v. A. (1976) V.R. 298 at p. 300), ‘an element of risk’ or ‘an appreciable risk’ (M and M (1987) FLC 91-830 at pp. 76,240-76,242; (1987) 11 Fam L.R. 765 at pp. 770 and 771 respectively), ‘a real possibility’ (B and B [Access] (1986) FLC 91-758 at p. 75,545), a ‘real risk’ (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an ‘unacceptable risk’ (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
K started school in Kindergarten at M Public School in 2003. In Kindergarten he missed 64 days of school. In first class he missed 33 days, and three days in second class before moving to live with R Schott. Having moved to R Schott’s home, K attended E Public School and did not miss a day’s school for the remainder of 2005. In 2006, K missed nine days of school. He missed eight days in Term 1 and six in Term 2. At WG Primary School, K was suspended on 27 February 2007, 8 March 2007 and 26 November 2007. These were all short suspensions of up to four days. K had two long suspensions, starting 8 June 2007 and 13 December 2007. The June 2007 suspension lasted 14 days. K was suspended because of his physical violence, verbal abuse and non compliant behaviour. His misbehaviour was directed at teachers and students.
Clearly the children’s school attendance whilst with their mother was manifestly inadequate to ensure even a rudimentary education. K is the only child of whom I have heard having the services of an Education Liaison Officer whilst in Kindergarten. J also had an Education Liaison Officer. It is highly probable that the primary reason the children, while living with their mother, failed to regularly attend school is directly related to her drug abuse. That is, the mother was so grossly drug affected during these years she could not attend to the children’s educational needs, even to the extent of cooperating with the Education Liaison Officer. While with the father K’s school attendance improved but his behaviour worsened. This is apparent from the frequency and extent of his school suspensions. H’s attendance deteriorated and it is likely that she was required at home to help with the younger children. The children’s excellent school attendance while living with their uncle demonstrates that they are not school avoidant and with adequate support are able to regularly attend school and behave appropriately while there. The contrast between their educations while with their parents compared with their uncle demonstrates how gravely deficient the parents’ ability to care for their children is. This is symptom of both capacity and attitude to their parental responsibilities.
Concerning the future Ms S says:
Given the parent’s personalty disorders, the longevity and recency of their drug use, and the severe parenting incapacities in attachment, insight and empathy, it is highly unlikely that they will be amenable to any therapy/counselling, either in the short or medium term. The fact that following removal of the children, they have not been able to abstain from drug use when this has been one of the conditions laid down by Department of Community Services, is an example of the unviability of hoping to successfully ‘treat’ the parents to allow restoration to take place. As well the mother’s stipulation that she would not go to residential treatment (although she has no children to care for) even as a condition of having the children returned, is reflective of her poor motivation to change.
I agree and give her opinion significant weight. This means long term the children’s needs must be provided by others.
B’s foster family is a Department of Community Services foster family. Department of Community Services and Ms S are confident that these people are well equipped to provide the parental supports B needs. H and T’s foster family are provided through Life Without Barriers. The Department of Community Services and Ms S similarly agree that these people are well placed to provide the children’s parental needs. In relation to both placements, I accept their evidence. I am similarly satisfied about the parenting capacity of Y Schott and Ms Klye.
Lifestyle issues permeate these reasons. There are no other s 60CC(3)(g) factors which require further elaboration.
Aboriginal and Torres Straight Islander issues do not arise.
I will deal further with the parents’ attitudes to the children and the responsibilities of parenthood in conjunction with family violence issues. In this case these issues are intrinsically linked and provide the factual substratum for s 60CC(2)(b) considerations. They are also linked to the parties’ substance abuse and associated anti-social behaviour.
The mother and father claim theirs was a normal relationship and family, but for their drug abuse and violence. Their conceded extensive drug abuse and grave family violence demonstrates that their notion of an otherwise normal relationship is deluded. As is reasonably common in cases involving drug abuse and violence, each parent accuses the other of having a more serious addiction and being more violent.
When Ms S asked the mother about the parties drug use and the amounts they were using, the mother said she did not really know as the father was dealing and she obtained her drugs from him. Both used cannabis daily and heavier drugs from Thursdays to Saturdays. The mother described Saturdays as “fight day”. Her point being that by Saturdays they often had insufficient drugs for both and physical violence between them ensued, I infer, for access to the remaining drugs. As well as being violent to her, the mother says the father was violent to himself. Ms S reports the mother telling her: “He would frequently head butt into walls and corners of the furniture, giving himself black eyes (laugh). He would also punch holes in the walls and smash in windows. At one stage, there were 23 holes in their house”. As Ms S reveals, the mother laughed when discussing this issue with her. The father laughed when the issue was explored during his cross-examination. From cross-examination it is clear that the mother’s description of the father’s self harm is correct. This behaviour took place irrespective of the children’s presence.
Following are but two examples of the types of incidents the mother reported to police. The first incident occurred on 9 July 2004. The police file recounts the incident thus:
The PINOP [the mother] and the accused [the father] have been in a domestic relationship for a period of nine years. As a result of the relationship the PINOP and the accused have two children aged seven and six years old. About 11.30 pm on Friday 9 July 2004 police attended [their address] in relation to a domestic incident. Upon arrival police spoke to the PINOP. The PINOP stated to police that she had been asleep on the lounge room floor. The PINOP stated that about 10.30 pm she heard a loud knock on the front window. The PINIOP said ‘Who is it?’ a male person stated ‘It’s me’. The PINOP recognised the voice as the accused. The PINOP said to the accused, ‘I’ll let you in if you sleep in the kids room’. The accused agreed. The PINOP has opened the front door and has then gone back to the lounge room and again laid on the floor. The accused has come into the lounge room. The accused said, ‘I’m going to kill you’. The accused has grabbed the PINOP around the throat with one hand. The accused has then pushed his fist into the right side of the PINOP’s face pushing her face into the floor causing a red graze mark to the PINOP’s right cheek bone area. The PINOP has pleaded with the accused to let her go. The accused has removed himself from the PINOP and has then left the premises. The PINOP stated to police that during the period of their relationship the accused has been violent to her on numerous occasions and that she fears for her safety. The PINOP stated that she believes the accused is in possession of a rifle and that she has sighted the rifle on numerous occasions.
H and K were both present when the incident reported above took place.
The second incident occurred at about 7.30 am on 12 September 2004. The police notes reveal:
Police attended [the mother’s address] in relation to a domestic assault. Upon arrival police spoke to the PINOP [the mother] who stated to police that her ex partner [the father] has turned up at her address and assaulted her. The PINOP stated that about 6.00 am this day the accused has turned up at her premises and has approached the front door. The PINOP’s daughter [J] has answered the door. The accused has allegedly forced the door open and gained access to the premises. At this stage the PINOP was sitting on the lounge. The PINOP has asked the accused to leave. The accused has then walked up the hallway and into the main bedroom located at the rear of the premises. About 15 minutes later the PINOP has walked into the main bedroom to see what the accused was doing. The PINOP has stated that she has got into the bed. The PINOP stated that an argument has occurred between herself and the accused. The accused has then got on top of the PINOP. The accused has then grabbed the PINOP’s hair and left arm pulling her off the bed and onto the floor. The accused has then kicked the PINOP to the left side of her head. At this stage the PINOP’s daughter ([J]) has come from behind of the accused and pushed him out of the bedroom and down the hallway. When police arrived the PINOP stated that the accused was in the bathroom area of the premises. The police have gone into the bathroom area where police saw the accused lying the bath. Blood was coming from a laceration on the accuseds forehead. Police arrested and cautioned the accused where he was conveyed to [the] Police Station and entered into custody. The accused was taken to [the] Hospital for treatment where he received five stitches to his forehead. The PINOP stated that the accused has inflicted his injury by head butting the door jam after the assault. Police apply for a TIO on behalf of the PINOP for her protection.
The children were present when the above incident occurred. The police notes accurately report what occurred during the two incidents. In relation to the second incident, as well as injuring himself, the father’s head injuries were exacerbated when the mother hit him with a frying pan.
The police notes are lengthy and replete with similar incidents. They are not a complete record of this couple’s violent relationship. The mother’s approach to police assistance is erratic and contradictory. More often than not, when the mother called police, she refused their assistance and advice. The mother’s attitude to police assistance is fairly summarised in their report that the victim, namely the mother, told us to “fuck off her property, which we did.” She is repeatedly advised to obtain an Apprehended Violence Order and encouraged to cooperate with assault charges against the father. When the mother has given statements, more often than not she subsequently retracts. When Apprehended Violence Orders have been made for her and the children’s protection, the mother has breached the orders, both by permitting the father entry to her home and herself going to his. Essentially the mother made it impossible for police, women’s refuge and Departmental workers to keep her and the children safe.
The father told Ms S he is a violent drunk. While this is true, his violence is not restricted to times when he is inebriated. The father has limited control and when irritated readily responds with aggression. He is verbally threatening and physically violent. He conceded that the children regularly witnessed his verbal abuse of their mother, neighbours and strangers. A common occurrence when at local shops with their father involved his verbal and physical abuse of other shoppers. Although the father suggests his behaviour was provoked, I was left with a strong sense that the provocation was insignificant compared to his response.
Concerning his violence towards the mother, the father used the foulest and most demeaning language to her. The father says the trigger for his verbal and physical abuse of the mother is her drug use. He does not appear to have had difficulties obtaining drugs when he wanted them. It is not an issue concerning drug use per se but that he believes the mother’s drug abuse (and not his) compromised the children’s well being. Apart from the hypocrisy involved in his position, when, for example, the mother was incapable of getting out of bed so that the children were fed or attended school, the father dragged her out. I have no doubt that he often hit, shoved, dragged and abused the mother. This behaviour continued long after they separated with the only variation being that if necessary, the father forced his way into the mother’s home.
Her aggression to him is not as well documented in police and welfare agency reports. This is because although her violence was also serious, the father is unafraid of the mother and other than the occasion when he was hit with the frying pan, he did not sustain serious injuries. Other than this occasion, I doubt that there was ever a time when the mother gained a physical advantage over the father. The police reports include reports from the mother’s neighbours and male associates complaining of her violence. These give some insight into the mother’s capacity for verbal and physical abuse and are consistent with the type of incident the father spoke of. In the police reports, one sees the mother using the foulest language, damaging property and assaulting others. I have no doubt that she often hit, shoved, and abused the father.
There is no distinction between the behaviour reported concerning the mother and the mother’s evidence concerning the father’s violence to her. I am strongly satisfied that both are capable of ferocious verbal and physical abuse. For them, verbal and physical abuse of others is used indiscriminately and without regard for their children’s exposure to it.
Ms S commented:
While the mother claims she is fearful of the father, her actions belie this. She allows him to come to her home. She voluntarily moved back to the same town and close by to him; she has defended him against police interventions; and her tone of voice when speaking of him does not reflect this fear. As well, it is likely that she has been quite provocative and challenging of him during conflict and maybe even violent in return on some occasions. She certainly does not present as being submissive to/or fearful of him. Rather her personalty style is quite the opposite. While this is not to deny her claims of violence perpetrated by him, it appears that she has impairments in herself protective capacity – a dissociative response often seen in chronically abused women, who themselves have been raised as children in violent households and have become inured to this. This also explains why [the mother] is insightless about the effects of the violence witnessed by the children and her lack of insight into their need for protection from this.
Apart from my satisfaction that the mother has been violent to the father, initiating it as well as responding to it, I agree with Ms S’s opinion.
Both parents disavowed violence to the children. K identified that both parents hit him but initially did not see this as violence. During supervised contact, as I have earlier commented, the mother hit K on a number of occasions. On 14 August 2006 the school notified the Department of Community Services of a large bruise on K’s left hip. R Schott confirmed that this developed after K spent the weekend with his mother. If it was non accidental, he was injured in her care and not by his father. Clearly, the mother regards physical discipline as appropriate. The children report their mother screaming at them and I am satisfied the mother regards verbal abuse of the children as appropriate discipline. These behaviours are generally abusive.
The father’s denial that he has been physically violent to the children is untrue. When H and K came into the father’s care, he told them that if they misbehaved he would strap them. His belt hung behind the living room door and is the implement the children understood he would use if they broke the households rules. When K ran away on 7 February 2007, the father made good his threat. On this occasion the father mercilessly strapped K. The beating was brutal and unforgivable. K and H were relatively unperturbed about the father’s violence, including his threats of it, when they spoke with Mr P. It is apparent, that by that stage, the children were learning to accept the threat of violence and violence to them as normal. For these children, living in the perpetual shadow of the threat of violence has taken a terrible toll.
The Department of Community Services submits that that on 12 August 2007 the father broke K’s arm. K and H agree. However, the children have given numerous versions of the incident and the events are far from clear. Throughout these proceedings the father has maintained that K fell from an upper bunk bed and banged his elbow on an adjacent bedside chest, breaking his funny bone. When K was X-rayed and had his arm set, he said nothing which suggested this was a non-accidental injury. When these attendances occurred, the father was not present. The child, therefore, had an opportunity to complain about mistreatment without any immediate repercussions from his father. Mr P interviewed K three days after the injury. K’s account to him is consistent with the father’s version. No suspicions were raised in K’s account or from the injury per se to either Mr P or at the Hospital. If there were, I am confident that as mandatory notifiers both would have notified K as being at risk.
The first suggestion that K’s injury results from his father assaulting him, arose a month later and immediately following K spending time with his mother. The father believes, and he may be correct, that the mother encouraged K to lie about how he was hurt. This conduct would be consistent with her presenting false photographic evidence in this hearing claiming an injury to J as evidence of the father injuring K. K told Ms W, Ms S and Mr P that the father kicked him on the elbow. He gives two accounts of how this occurred. In one, the father burst into the children’s bedroom and verbally abused K, then kicked him. In another, K describes being chased through the living room and hallway into his bedroom where he was kicked. H was in her bedroom and says she heard a fracas. Everybody agrees T, who was on the bottom bunk, was crying. H said she heard a thud. This is consistent with K falling from his bed. She gives one version which has her rushing to her brother’s bedroom and another in which she denies entering. These are not small inconsistencies which can be put aside because of a core consistency of more significant facts.
Associate Professor V reviewed K’s medical notes, X-rays and the various discussions had with H, K and the father. On balance, he considers K’s claim that his father kicked his pointed elbow medically most consistent with the injury.
In Associate Professor V’s opinion, if K fell from an upper bed bunk, instinctively he would have straightened his arm in order to break his fall. With a straightened arm, it is unlikely that K fell with sufficient force onto a bedside table causing the fractured funny bone. However, if K fell as described but with his arm bent, an injury consistent with K’s presentation could result. With his arm bent, if K fell onto the point of a bedside table, K’s injuries are also consistent with his original version. Associate Professor V said this type of injury is most unusual and commonly associated with upper arm bruising and/or fracturing/shattering of other bones. None of this is present in K. If K was kicked Associate Professor V opines that the force could have been strong enough to fracture the funny bone and sufficient to cause associated bruising and adjacent fractures. In coming to his ultimate conclusion, Associate Professor V said H’s final statement tipped the balance of medical probability in favour of non-accidental injury. Because of the inconsistencies in H’s statements concerning this incident, I am not persuaded her final version is sufficiently reliable to influence the fact finding process. Having regard to the totality of the evidence concerning this incident, I am satisfied that it is equally likely that the injury was caused by K falling out of bed as it is that his father kicked him. Such a finding requires a cautious approach to the children’s future contact with the father.
Although the focus of this part of the discussion has been the parents, particularly the father’s treatment of K, the findings are relevant to all their children. Once a parent physically abuses one child the parent rejects a well accepted social taboo. Although K’s noncompliant behaviour has put him at greatest risk of parental mistreatment from his parents, particularly by his father, all of the children are at risk of being treated similarly. These are findings to which I attach significant weight.
As far as possible the Court should make orders least likely to lead to future litigation. If the children live with their mother, future proceedings are almost certain. The mother is highly unlikely to comply with orders designed to protect the children from exposure to the numerous risks involved in living with her. Orders which result in H, T and B living in foster care, also raise a spectre of future proceedings. With T and B, there is at least a theoretical risk that these placements may fail, with a somewhat heightened risk concerning H. If a placement fails, there is likely to be future proceedings. I take this into account. Placing K with Y Schott also involves a risk of future proceedings, if, in spite of their good intentions and best endeavours, K refuses to remain with them. There are no options which lessen this risk. In this case, the risk of future proceedings is a factor which does not warrant significant weight. To the greatest extent possible I have tried to construct orders which address future circumstances so that the parties have a long term framework within which the children will be settled and safe.
There is considerable overlap between s 60CC(3), (4) and (4A). There are no further factors which s 60CC(4) and (4A) requires that I consider. Until the Department of Community Services assumed the children’s care, the parties involvement in decision making concerning major long term issues and spending time with the children waxed and waned. Over a number of years the mother failed to spend time and communicate with the children to the extent available or anticipated. The father’s approach by taking himself off to undisclosed destinations for his drug binges is similar. While the children lived with R Schott neither parent contributed financially and presently offers no future financial support for their children.
Conclusion
This is a sad case in which a constellation of factors, including parental drug abuse and violence makes home an unsafe and unhealthy environment for these children. The presumption of equal shared parental responsibility is rebutted. The elder three children have suffered serious trauma by virtue of their parents’ failure to fulfil their parental responsibilities. Returning the children to either parent requires that the Court fails in its statutory responsibility to protect the children from exposure to violence and abuse. Although the primary considerations emphasise the importance to children of meaningful relationships with their parents, this is conditional upon such relationships promoting the children’s best interests. Where promoting a meaningful, in this case albeit unhealthy and unsafe relationship with a parent, involves an unacceptable risk of abuse and harm, the former must give way to the latter.
The optimal relationships for these children with their parents is achieved by ensuring the parents deal with the children in a safe setting and with a frequency that does not deny the children the chance to settle into their new homes and families. This cannot be provided in a setting which has the children spending substantial and significant time with either parent. Simply put the three elder children have lived too dysfunctional a life for the Court to contemplate taking any step in which there is any risk of rejection or exposure to parental abuse. The three elder children have a chance to recover from their past abusive and neglectful parenting only if protected from their parents and in a healthily functioning and normal family environment. While these options are available within the children’s paternal extended family, placing H and K with their Uncle R Schott is contrary to their views. Taking steps which the children strongly oppose runs a real risk that the arrangement will fail. Such a retrograde step is strongly contrary to the children’s interests. So as to maximise the elder children’s prospects of settling into a new life and thereby recover from past trauma these children will live with people acceptable to them.
For the younger two children their attachment needs strongly influence my decision to leave the children with their foster families. The importance to these two children of stability cannot be overstated. It is fundamental to their future wellbeing.
Safety considerations and maximising future family stability drives the structure for the children’s time with their parents. Presently the two younger children have no obvious need or interest in spending time with either the mother or father. While from the adults perspective denying them the chance to see their younger children for a number of years is harsh, my focus is upon the children’s best interests. Assuming that both children reach their developmental milestones in accordance with their chronological ages by the time they are four years old they will be sufficiently mature to have quarterly visits with their mother and, in T’s case her father. By this I mean cope with separation from their primary carers and enjoy a short visit in a safe setting with an adult.
As explained earlier, the parents have misused their visits with the children in the sense that each has involved the children in adult issues and undermined the children’s out of home placements. The risk they will continue to do so is high and means regular but infrequent contact is appropriate. While this may involve some adjustment by the children it is necessary if the children’s future living arrangements are to succeed. It is agreed that gifts for special occasions, cards and letters are appropriate. For obvious reasons these will be examined for suitability before the children receive them.
With the children living away from their parents and spending little time with them, it is necessary to rearrange parental responsibility. All parties seemed to agree that whoever has the children’s care should have parental responsibility. Even if this was not formally agreed the parents have demonstrated that they are unable to full fill their parental obligations. Leaving the children’s carers to arrange the children’s lives without adequate parental authority would seriously undermine their ability to care for the children. This means that Y Schott and Ms Klye will share equally parental responsibility for K. The Minister of Community Services will have parental responsibility for the remaining three children. As far as the parents are concerned by these orders their parental responsibilities and rights are extinguished. In a similar vein it is necessary to discharge all orders in R Schott’s favour.
Because the children will live in three different homes and two states, maintaining and promoting the sibling relationships is difficult. K’s violent behaviour to H and the risk he may behave similarly to T and B makes the issue even more complex. Neither uncle has seen K attack H. The elder children do not contemplate rarely seeing each other and it is likely that if contact between them effectively stops the children would mourn each other. R Schott provides a safe venue for the elder two children to see each other and for extended family contact. That is, with his family and other suitable relatives, including possibly the mother’s mother. This is a matter he will need to discuss with the Department and Y Schott. By ordering that the elder children spend time with him they can maintain appropriate family ties in a setting which is safe and does not undermine the children’s living arrangements. However, if K continues his violence towards H, it is my expectation that R Schott and Y Schott and the Minister of Community Services will rearrange these children’s visits with R Schott so that they do not overlap.
It is impractical for K to visit E during school term and his visits will take place for one week in each school vacation. During the Christmas holidays longer periods are feasible but my concern is that more than one week may disrupt his sense of being settled with in Queensland. The same considerations apply to the length of H’s visits during school holidays. At this stage longer periods of H being away may be unsettling for T and are thus undesirable. Ms S recommended monthly weekend visits for H with R Schott, essentially so that she can maintain important family ties. More frequent contact is too disruptive.
K will see his parents quarterly which means that between them he will have six visits annually. These will be three hours long, a period which balances the gaps between visits, the effort involved in attending, his relationship with his parents and the outer limit of the child’s ability to be contained in a supervised setting. The other children’s visits are shorter. H will see her parents more frequently and the other two are unlikely to be able to enjoy more than two hourly visits.
I have not made orders whereby T must spend time with R Schott or Y Schott. While this is a possibility which the Minister of Community Services must in the future consider she is unlikely to cope with visits with them for many years. At some distant point whether or not she spends any time with these relatives is a matter for the Minister of Community Services or, failing consensus a future hearing. The opportunity for K to see T is thus seriously curtailed. This is a sad but necessary outcome.
In this case it is appropriate that the children are able to resist contact with a parent. In this respect their wishes are to be respected and those who have the children’s care may suspend a visit if a child requests it. For children who have had such a difficult start in life it would be inappropriate to force them into visits which they do not desire.
There are a series of injunctions which restrain the parents from approaching the children and otherwise control their behaviour when seeing the children. As the orders themselves suggest the primary purpose is to ensure that the children are protected from parental anti-social behaviour and their home lives are not undermined. So far as the orders restraining the parents from approaching or contacting the children other than in accordance with these orders is concerned it is important that all parties understand that these are orders for the children’s personal protection. If a police officer has reasonable grounds for believing that the order has been breached the offending party may be arrested without warrant.
Finally it is appropriate to note that each of the notifications made to the Department of Community Services was properly made and accurately reported the children’s situation. Given the children’s ages and the gravity of the risks to their welfare if the reports were true a more detailed investigation of the notifications was required than occurred. At least prior to B’s birth and the intervention request. With more significant intergovernmental agency communication between the NSW Police Department, Department of Health and the Department of Education the predicament these children faced while in their parent’s care was easily discovered. I do not know what the competing priorities were which resulted in the Department of Community Services’ decisions to resource other cases in preference to this one and it would be inappropriate to comment upon those resource allocation decisions. Suffice to say there is no doubt that these children required greater assistance from the Department of Community Services’ from when it received its first notification.
For these reasons I am satisfied that the ordered identified at the start of this judgment are in the children’s best interests.
I certify that the preceding three hundred (300) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan
Associate:
Date: 3 June 2008
[2] Exhibit T
Key Legal Topics
Areas of Law
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Family Law
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Negligence & Tort
Legal Concepts
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Duty of Care
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Jurisdiction
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Remedies
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Standing
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