Seldon and Denny and Anor

[2010] FamCA 1029

FAMILY COURT OF AUSTRALIA

SELDON & DENNY AND ANOR [2010] FamCA 1029

FAMILY LAW – CHILDREN – With whom the children live and spend time – Where child in temporary care of State welfare authority – Where neither parent is able to meet the child’s needs – Both the mother and father have a history of drug abuse and anti-social behaviour – Family violence – Returning the child  to either parent would expose child to unacceptable risk – Parental responsibility given to  the NSW Minister for Community Services – Child to have limited supervised visits with his parents

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C(1), 61DA(2), 61DB, 64A, 65AA, 65DAA, Pt VII
Evidence Act 1995 (Cth) s 140

M v M (1998) 166 CLR 69
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR
Johnson and Page (2007) FLC 93-344
W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235
A v A (1998) FLC 92-800
R v Department of Community Services [2001] NSWSC 419
Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157
Carpenter & Lunn (2008) FamCAFC 128
Mazorski v Albright (2007) Fam LR 516

APPLICANT: Ms Seldon

RESPONDENT: Mr Denny

INTERVENOR: Director General,
Department of Human Services

INDEPENDENT CHILDRENS LAWYER: Legal Aid NSW

FILE NUMBER: (P)NCC 1868 of 2008

DATE DELIVERED: 9 September 2010

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: The Hon. Justice Ryan

HEARING DATES: 17, 18, 19, 20, 23, 24, 25 & 27 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Burns

SOLICITOR FOR THE APPLICANT: Craney Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Wilkinson

SOLICITOR FOR THE RESPONDENT: Sneddon & Partners

COUNSEL FOR THE INTERVENOR: Mr Anderson

SOLICITOR FOR THE INTERVENOR: Crown Solicitor’s Office

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms O’Rourke

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. That all prior orders made pursuant to the Family Law Act 1975 (Cth) in relation to the child J born … December 2007 (“the child”) are discharged.

2. That the New South Wales Minister for Community Services, the Intervenor in these proceedings, has the sole parental responsibility for the child until the child attains the age of 18 years.

3. That the child shall spend time with the applicant, the mother, supervised by an officer or delegate of the Director General as delegate of the Minister as follows:

   (a)for one period of 2 hours each three months at such times and locations as agreed to by the Director General as delegate of the Minister at any time between the hours of 8.00 am and 6.00 pm ; and

   (b)at any other time as agreed in advance by the Director General as delegate of the Minister and the mother.

4. That child shall spend time with the respondent, the father, supervised by an officer or delegate of the Director General as delegate of the Minister as follows:

   (a)for one period of two hours each three months at such times and locations as agreed to by the Director General as delegate of the Minister at any time between the hours of 8.00 am and 6.00 pm ; and

   (b)at any other time as agreed in advance by the Director General as delegate of the Minister and the father.

5. That in the event the mother or the father appears to be drug affected or fails to abide the supervisors’ reasonable directions, the supervisor may suspend the child’s visit.

6. That the mother and father are restrained from speaking about each other, members of the others family and the foster carers in the child’s hearing in a derogatory fashion or allow any other person to do so.

7. In the event that the New South Wales Minister for Community Services proposes to change the foster family in which the child resides, notice of that proposed change must be given to the mother and the father.

8. That each of the parties has liberty to provide copies of the single expert’s report prepared for these proceedings to their or the child’s counsellors or any agency involved in the child’s care.

9. 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.

10. That any person who issued subpoena for the production of documents shall forthwith return them to their owner.

11. That all outstanding applications are otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Seldon & Denny and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC 1868 of 2008

MS SELDON

Applicant

And

MR DENNY

Respondent

And

DIRECTOR GENERAL DEPARTMENT OF HUMAN SERVICES

Intervenor

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. These proceedings concern the future living arrangements of J, born in December 2007 (the child).  Since 3 April 2009 the child has lived with foster carers.  When the hearing began there were five competing proposals for his long term care.  The child’s mother (Ms Seldon), his father (Mr Denny), his maternal grandmother, his paternal grandmother and the Director General of the Department of Human Services all sought to have fulltime care.  During the hearing the mother, paternal grandmother, maternal grandmother all withdrew their applications for him to live with them.  The proponents for the child’s long term care thus became a choice between the father and long term foster care under the auspices of the Department of Human Services (“DoHS”).  The mother, paternal grandmother and maternal grandmother said that the child live with the father.

2. Because of the complex issues raised in the proceedings an Independent Children’s Lawyer was appointed to represent the child’s interests.  At the end of the hearing, the Independent Children’s Lawyer submitted that orders should be made in favour of the Minister of the Department of Community Services until the child is 18[1].  The effect of such an order would be that the child would be placed in long term foster care. The Independent Children’s Lawyer proposed the child would see his parents slightly more often than was proposed by the Intervenor.

   [1] Exhibit ‘P’

3. These proceedings were commenced in the Federal Magistrates Court and transferred to this Court.  Before being transferred, the parties agreed that Ms SE, who is a Clinical Psychologist, would be appointed as a Single Expert to investigate and report upon the child and his family circumstances.  Ms SE interviewed the father, paternal grandmother, her partner and observed them with the child on 2 April 2009.  The following day she interviewed the mother and observed her with the child.  After she had finished her interview with the mother, Ms SE contacted Ms CY of DoHS.  Ms CY is the relevant manager responsible for the child’s care.  Ms SE expressed her view that the child was at risk in the father’s care and recommended that DoHS take immediate action to remove the child.  Essentially, Ms SE was concerned that the father may have resumed taking Ice, in breach of orders the father had been placing the child in the mother’s unsupervised care and that against a background of neglectful and abusive parenting the child urgently required a reparative living environment. 

4. There is no doubt that in breach of orders the father had placed the child with the mother.  When, in response to Ms SE’s notification DoHS attempted to locate the child, the mother hid him so she could return him to the father.  Unsurprisingly DoHS attended the father’s home by which time the mother had managed to return him.  He was removed by DoHS.  Since then the child has been in three foster placements.  In the event an order is made for the child to be in the care of the Minister for the Department of Human Services, he will leave his current placement and be placed with long term foster carers.  Whilst the child has been in foster care, he has had regular supervised visits with his parents and other close family. 

Background facts

1. The father was born in 1985.  He is 25 years old.

2. The mother was born in 1991.  The mother is 19 years old.

3. The mother and father met in May 2006. 

4. In July 2006 the mother and father commenced a relationship.  The mother was 15 years old and the father was 21 years old.  Each of the parents came to their relationship scarred by abusive childhoods.  From early in their teenage years each of the parents used cannabis and engaged in serious anti-social and risk taking behaviour. Within a short period of having commenced their relationship, the father was using methamphetamine (Ice).  After the parents commenced their relationship there were periods when he used cannabis, as much as 40 cones a day, and periods when he used Ice daily.  Virtually from the outset of the parent’s relationship, the maternal grandmother saw them being violent towards each other.  Indeed the mother acknowledged that she and the father hit and punched each other which resulted in them both being hurt.  This more dangerous level of physical violence between the parents mainly happened while one or other used Ice.

5. On 15 November 2006, the father was hospitalised in relation to an infection connected to Ice use. 

6. In December 2006, the mother started to take Ice.

7. The mother and father separated on 10 April 2007.  Not long after the mother found she was pregnant.  When the mother discovered she was pregnant she stopped using Ice and did not resume its use until after the child was born.

8. In May 2007, the parents resumed cohabitation.  The father was still heavily using Ice.  Upon the resumption of cohabitation, for a period, the father reduced his Ice consumption to about three times a week. 

9. In June 2007, the parent’s went to Western Australia where the father’s brother D lives with his partner and two young children.  D has a significant criminal and drug history.  Whilst in Western Australia the father continued using Ice about three times a week.  It is the mother’s evidence, which I accept, that when the father was using Ice he was quick to anger and violent. 

10. Whilst the parents were at a shopping centre in Western Australia, in August 2007 the father grabbed the mother by the throat.  The mother was frightened by his behaviour and contacted police who took her to a refuge.  The following day the mother flew back to her mother.  Two weeks later the mother returned to the father in Western Australia.  When they resumed cohabitation he was still using Ice three times a week and although in Western Australia he was verbally aggressive to her, he was not physically violent.

11. By mid November 2007, the mother had returned to New South Wales where she lived in a converted shed at the rear of her mother’s property.   Not long after the father returned from Western Australia.  Motivated by his desire to continue his relationship with the mother and parental responsibilities, he briefly stopped using Ice. 

12. The child was born in December 2007. The mother explained the first 12 months of the child’s life were unstable and with her, he constantly moved homes.  There is also little room to doubt he was exposed to extensive family violence and parental drug abuse.  Because of the violence and drug abuse in the parents’ relationship, during this period the child spent most weekends with either his maternal or paternal grandmother.  Although this reduced the risk of harm, it was a most unstable model of child rearing and made it impossible for the child to attach to a primary caregiver. 

13. In February 2008, the mother and father resumed cohabitation and moved into rented accommodation near Cessnock. 

14. In March 2008 as a birthday present to himself, the father used Ice.  This resulted in his Ice usage increasing and quickly he was again using at least three times a week.  At this time the parents’ relationship was volatile with the mother particularly concerned about the father’s drug abuse and his lack of involvement with their son.  I accept her evidence that he generally left her at home with the baby while he was out with mates.  Their arguments were frequent, physical and verbal.  The mother said during this period, the father only “hit her when they were out of control”.  The mother also started to use Ice again and did so consistently for about another month.  From the child’s position, he was reliant upon his parents, both of whom were using Ice. 

15. At about this time the Department of Community Services offered to arrange drug rehabilitation for the mother, which she declined.

16. The mother stopped using Ice in April 2008.

17. The mother and father separated in May 2008.  At separation, the mother and child returned to live at the maternal grandmother’s home and the father went to Western Australia. 

18. In May 2008, the mother met and began a relationship with Mr O.  At this time, the mother focused her energies upon her relationship with Mr O and the child was substantially in the maternal grandmother’s care.  Mr O was a heavy drug user, including Ice.

19. The father returned from Western Australia a couple of weeks later.  Upon his return the mother gave the child to him but the father refused to return him.  When this happened the maternal grandmother contacted DoHS.

20. On 14 May 2008 the parents and maternal grandmother attended a Case Plan meeting with DoHS.  The minutes of that meeting are annexed to the affidavit of Ms DU sworn 25 September 2008.  In this meeting there was frank discussion with the parents about how their drug use, unstable lifestyle and violence was harmful to the child.  Both parents said they were unable to care for him full time with the father in particular saying he would be content to be able to see the child.  At the meeting agreement was reached the mother would reside with her mother and the father would have regular overnight contact.   

21. On 20 May 2008, DoHS asked the Department of Housing to allocate the mother priority housing. 

22. On 26 May 2008, the mother and father entered into an agreement with DoHS concerning the child’s care.  It was agreed the child would live with the mother and spend time with the father from 9.00 am Wednesday until 9.00 am Thursday and 9.00 am Sunday until 9.00 am Monday each week.  The father, who was still using Ice, had returned to live at his mother’s home.  The agreement also required the parents to undergo regular drug screens and participate in a variety of counselling and other programs.  The mother quickly stopped attending counselling and neither parent attended the First Steps Parenting Program to which they had been referred.  Although the father told the court he was by then living back at his mother’s home, he told DoHS he was living with friends and after he paid rent he had insufficient funds to attend the various referrals made for him.  It is noteworthy that during this period the father’s urine screens were all positive and his levels showed no signs of decreasing. 

23. In an unprovoked attack, on 12 July 2008 the mother assaulted the father by punching him a number of times then head butting him.  The mother was charged with assault and two year Apprehended Violence Order (AVO) for the father’s protection issued.

24. By mid July 2008 DoHS advised the parents they were seriously considering placing the child before the Children’s Court.

25. On 23 July 2008, the mother commenced parenting proceedings in the Federal Magistrates Court.  Essentially, the mother alleged the father had failed to return the child.

26. The father filed a response on 25 July 2008. 

27. On 30 July 2008 interim parenting orders were made by consent as follows:

    1.The child [J] born […] December 2007 (hereinafter referred to as ‘the child’) will live with the mother.

    2.The child will spend time with the father as follows:

    2.1Each week from Tuesday at 5.00 pm until Wednesday at 5.00 pm and otherwise as agreed between the parties from time to time;

    2.2Each weekend from Saturday at 5.00 pm until Sunday at 5.00 pm.

    3.Both parties are restrained from using illicit substances during all times when the child is in their respective care and for 72 hours immediately prior to the chid coming into their respective care, and are required to immediately remove the child from the care of (sic) presence of any third party affected by illicit substances.

    4.Both parties will submit to supervised chain of custody drug screens testing for all illicit substances as follows:

    4.1Every Monday, Wednesday and Friday;

    4.2The parties are to request that the pathology service note on each drug screen result that the samples analysed were provided by way of supervised chain of custody.

    5.Both parties will enrol in and complete the first available Parenting After Separation course in their area as approved by the Manager of Child Dispute Services at the Newcastle Registry of the Family Court of Australia.

    6.For the purpose of implementing these Orders, the mother or her nominee will deliver the child to the father at his residence at the commencement of his time, and the mother or her nominee will collect the chid from the father at his residence at the conclusion of the father’s time.

    7.The Director General of Department of Community Services is requested to intervene in these proceedings.

28. Later that day, that is, on 30 July 2008, the father returned to Western Australia to spend time with his brother for his brother’s child’s birth. 

29. The father rang the mother a number of times from Perth.  He rang late at night on which occasions she believed he had used Ice.  Because of her experience with the father when he had used Ice I am satisfied he had been.

30. On 5 August 2008, DoHS workers visited the mother and child.  They observed a bong and cannabis on the child’s highchair.

31. On 18 August 2008, DoHS workers visited the mother at a friend’s home where she was staying temporarily.  She refused their request to immediately undergo a drug screen.  The child was observed to be slightly withdrawn and inactive with dried mucus on his face.

32. In August 2008, the mother took the child and went to live with Ms R.  Not long afterward she returned to her mother’s home.  

33. On 26 September 2008, the Department of Community Services intervened in the parenting proceedings.  he same day, a federal magistrate made the following orders:

    THE COURT ORDERS PENDING FURTHER ORDER THAT:

    (1)Leave is granted to the Department of Community Services to intervene in these proceedings.

    (2)Leave is granted to the maternal grandmother to join as the Second Respondent to these proceedings.

    (3)This matter is adjourned for interim hearing on 17 October 2008 at 9:30 am before Federal Magistrate Coakes (2 hours allowed).

    (4)Time for compliance of unanswered subpoena is extended to 10 October 2008 at 9:30 am.

    (5)I DIRECT that the parties file and serve all affidavits upon which they intend to rely no later than 4:00 pm on 10 October 2008. 

    (6)Pursuant to s 68L of the Family Law Act 1975 that the child, [J] born […] December 2007 (“the child”), be separately represented and I request that the Legal Aid Commission of New South Wales provide that representation.

    (7)Each party make available to the Legal Aid Commission of New South Wales within 48 hours copies of all applications and affidavits filed by the party together with all existing orders and copies of any relevant reports.

    (8)The child, [J] born […] December 2007 (“the child”), continue to live with the mother pending the interim hearing on 17 October 2008.

    (9)The parents of the child will have equal shared parental responsibility for the long term care, welfare, supervision and development of the child.

    (10)That the parent with whom the child is living with from time to time, has sole responsibility for the care, welfare, supervision and development of the child.

    (11)When the child is in the care of the mother or the father pursuant to these orders, that party to ensure that he or she is present personally to care for the child.

    (12)The child spend time with the father as follows:

    a.Each weekend commencing from 5:00 pm on the Saturday and concluding at 5:00 pm on the Sunday following.

    b.Each week commencing at 5:00 pm on the Tuesday and concluding at 5:00 pm on the Wednesday following.

    c.In the event that Father’s Day falls on a weekend when the father is not scheduled to spend time with the child, the father spend time with the child in accordance with Order 12(a) and the scheduled time on the following weekend will be vacated.

    d.In the event that Mother’s Day falls on a weekend when the father is scheduled to spent (sic) time with the child, the father’s time will be vacated for that weekend, but will occur in accordance with Order 12(a) on the following weekend.

    e.At such other times and places as may be agreed between the parties. 

    (13)The time with the father is to be facilitated by the maternal grandmother delivering the child to the father at his residence at the commencement of each period and collecting the child from the father at the conclusion of each period at the same location.  These arrangements may be varied by agreement between the parties and the maternal grandmother.

    (14)Each party is to telephone the other as soon as practical upon the happening of any of the following:

    a.The child being hospitalised;

    b.The child being involved in an accident;

    c.The child becoming seriously ill.

    (15)Each party provide the other notice in writing of their current residential address and operable telephone number for all periods when the child is in the care of that party, and advise the other in writing of any changes within 48 hours.

    (16)Neither party abuse or permit the abuse or denigration of the other in the presence of the child.

    (17)Neither party is to consume alcohol or illicit substances whilst the child is in that party’s care or for 12 hours prior to the commencement of that care.

    (18)The mother and father provide urine samples to the Pathology Department at […] Hospital or […] Hospital for the purpose of screening for drugs and alcohol at such times and locations as directed by the Director-General or her delegate. 

    (19)The mother and father comply with the directions of the Director-General or her delegate as to the provision of urine samples, including compliance as to the following:

    a.Provision of urine samples under supervision;

    b.Provision of urine samples no later then 4:00 pm on the same day that the sample is requested;

    c.Within 7 days the mother and father shall sign all documents necessary to undertake the drug screening and to allow the Pathology Department attached to […] or […] Hospital to provide the urine sample results to the Director-General;

    d.That the Director-General pay for the costs of the urine drug screen for a period up until the date of the next hearing. 

    (20)Neither party is to change the residence of the child from the Newcastle Hunter Valley area of New South Wales.

    (21)Each party advise forthwith the Director-General forthwith of any change in residential address.

    (22)The mother is to ensure that the child is located at the home of the maternal grandmother prior to 6:00 pm on any day that the child is in the mother’s care pursuant to these Orders.

1. In late August 2008 the father returned to live with his mother.

2. The father said he last used cannabis on 26 September 2008.  He had been before a federal magistrate and said he realised that if he was to have a relationship with the child he needed to be drug free.  Between September 2008 and March 2009 the father underwent reasonably regular drug screens, the first of these is dated 30 September 2008 and the last one 27 February 2009.  The first three were positive for cannabis but with falling Creatinine levels with the remainder negative.  The falling Creatinine levels and clear screens corroborate the father’s evidence he was drug free during these months.  However, the father then stopped doing drug screens even though he knew DoHS said they would submit his failure would suggest he was taking drugs.  The father failed to undergo urine testing from 27 February 2009 to 11 September 2009. Although he belatedly underwent hair follicle testing once in mid May 2009, his stance was generally obdurate and I infer motivated out of fear drug screening was likely to show he continued to abuse drugs. His refusal to address an important issue which was directly connected to his willingness to cooperate with an agency concerned to help him parent the child is troubling.  It strongly indicated the father would be unlikely to maintain even for a relatively short period a cooperative approach to compliance with orders or appropriate child protection directions issued by DoHS. 

3. On 17 October 2008 the Federal Magistrates Court made the following orders:

   THE COURT ORDERS PENDING FURTHER ORDER THAT:

   1.Leave is granted to the Department of Community Services to intervene in these proceedings.

   2.The matter is adjourned to 10.00am on 3 November 2008 at Newcastle for an interim hearing, three hours allowed.

   3.Orders made in the Federal Magistrates Court at Newcastle on 26 September 2008 are continued pending further Order.

   4.Liberty to apply to each party on forty eight (48) hours notice.

4. On about 18 October 2008, the mother moved out of the maternal grandmother’s home, taking the child with her.  This occurred because of disagreement with her mother about the mother’s lifestyle and in particular, her lack of attention to the child.  The maternal grandmother was also unhappy with the news the mother was pregnant to Mr T.  Because of this, the maternal grandmother told the mother to leave her home.  The mother moved in with Ms Z, who is a drug user.  Ms Z’s aunt was a drug dealer who had provided the mother with drugs.  When she learned where the mother had taken the child, the maternal grandmother notified the Department of Community Services the child was at risk.  The risk related to being in a house occupied by drug users and frequented by drug dealers as well as otherwise being neglected.  I have no difficulty accepting he was seriously at risk.

5. On 21 October 2008, the mother was one hour early for the child’s handover to the father.  She telephoned and asked him if, rather than she and the child having to wait at the railway station for an hour, he take him early.  Although it would not have caused him any inconvenience, the father refused.  An hour later, in a rage, the mother arrived at the father’s home, where he lived with the paternal grandmother.  A violent altercation ensued in the child’s presence.  The mother, who was screaming at the father, refused his mother’s direction to leave the property.  The father placed the mother into a headlock, dragged her from the property and across the road where he head butted the mother.  The child was present throughout and was crying.   

6. The same day, primarily in response to the maternal grandmother’s child at risk notification, using its emergency powers, DoHS appropriately removed the child from the mother. 

7. On 22 October 2008, reliant upon its emergency powers, DoHS directed that the father retain the child.  He agreed and the child remained in his care until DoHS removed him in April 2009.  Counsel for the father submitted it was significant that DoHS placed the child with the father as this demonstrated it was their assessment he could adequately care for the child.  The point being, his antecedents, relationship violence, his family of origin, non compliance with directions for drug screening or to attend parenting skills programs and recent drug use were not seen as disqualifying factors.  While this is obviously correct, DoHS seem to have accepted the father would be more likely to comply with their directions when they were strengthened by court action and orders.  In this regard, their trust was misplaced as was their assessment the father would be a suitable long term carer.  In any event, the father was given a real chance to demonstrate he would work constructively with DoHS and comply with orders and directions. 

8. On 24 October 2008, on the application of DoHS an order was made in a NSW Children’s Court that placed the child in the Department’s care for 14 days.  The Department continued the child’s placement with the father.

9. On 3 November 2008, orders were made by consent in the Federal Magistrates Court as set out below:

   BY CONSENT, ORDER PENDING FURTHER ORDER THAT:

   1.That pursuant to Chapter 15 of the Family Law Rules, Ms [SE] be appointed to prepare an expert report in the proceedings, such report to address the following issues:

   In relation to the mother:                  

   a.An assessment of the mother's mental health, including a diagnosis if relevant  and/or recommendations for treatment

   b.An assessment of the mother's drug and/or alcohol use and abuse and the impact of this upon the child

   c.The mother's insight into the needs of the child

   d.The child's attachment to the mother

   e.The mother's insight into the dynamics of domestic violence and the impact of this upon the child, as well as how she would be able to ensure the child's safety in the future

   f.The mother's insight into her own history of alleged violence and whether she has an understanding of the impact of her behaviour upon the environment for her child.

   In relation to the father:

   a.An assessment of the father's insight into the needs of his son,

   b.An assessment of the father's drug and/or alcohol use and abuse and the impact of this-upon the child,

   c.The child's attachment to the father,

   d.The father's insight into the dynamics of domestic violence and the impact of this upon the child, as well as how he would be able to ensure the child's safety in future,

   e.An assessment of the father’s mental health, including a diagnosis if relevant, and/or recommendations for treatment.

   In relation to the maternal grandmother:

   (a)An assessment of the maternal grandmother’s insight into the needs of the child,

   (b)The child's attachment to the maternal grandmother,

   (c)The maternal grandmother's insight into the dynamics of domestic violence and the impact of this upon the child, as well as how she would be able to ensure the child's safety in future,

   (d)An assessment of the maternal grandmother's mental health, including a diagnosis if relevant, and/or recommendations for treatment,

   (e)The maternal grandmother's insight into the dynamics of the mental health of her daughter [N] and the impact of [N’s] behaviour upon the child, as well as how she would be able to ensure the child's safety in the future.

   In relation to each parent and the maternal and paternal grandmothers:

   (a)Whether the child is at risk of physical, psychological or sexual abuse from any of the parties or any other person and how to protect the children (sic) for any risk of abuse.

   In relation to the paternal grandmother [Mrs Denny Senior]:

   (b)An assessment of the paternal grandmother’s insight into the needs of the child;

   (c)The child's attachment to the paternal grandmother;

   (d)The paternal grandmother’s insight into the dynamics of domestic violence and the impact of this upon the child, as well as how she would be able to ensure the child’s safety in future;  and

   (e)An assessment of the paternal grandmother’s mental health, including a diagnosis if relevant, and/or recommendations for treatment.

   2.That the parties do all things necessary to facilitate the preparation of the report including attendance on [Ms SE], Expert, and arranging for the child and any other relevant persons sought to be examined by [Ms SE], Expert, to attend upon the Expert.

   3.That leave be granted to the Independent Children's Lawyer to photocopy and to make available to the Court Expert all documents produced under subpoena and to provide a copy of all documents filed in the proceedings.

   4.That the report of Ms [SE] be paid for in the first instance by the Intervener on the basis that each of the parties makes an equal contribution to the cost of the report.

   5.Until further order the parental responsibility of [the child] born […] December 2007 be allocated to the Minister for Community Services.

   6.Until further order the orders made on 26 September 2008 are to continue save where superseded by the orders made today, and by notations made today.

   7.Order 16 of the orders made on the 26 September is amended to read as follows:

   8.Each party is restrained from being rude, abusive or using profane or insulting language towards any party to the proceedings and is further restrained from permitting any other person to be rude, abusive or use profane or insulting language towards any party to the proceedings in the presence of (sic) hearing of the child.

   9.Order 17 of the orders made on 26 September is amended to read as follows:

   Each party is restrained from consuming alcohol or illicit         substances whilst the child is in that party's care and during a      period of 12 hours prior to the commencement of that care.

   10.Order 20 of the orders made on 26 September is amended to read as follows:

   Each party except the intervener is restrained from taking the child out of the area limited by a radius of 50 km from [Y Street, O] except with the consent of the Director General.

   11.Note:  it is the intention of the Director General that the child live with the father at the home of the paternal grandmother at [Y Street, O].

   12.The father is restrained from changing the residence of the child without the consent of the Director General.

   13.Order 11 of the orders made on 26 September is revoked.

   14.Contact to take place between [the mother] and the child only as follows:

   (i)Wednesdays from 1.00 pm to 4.00 pm at a Community Service Centre to be advised.

   (ii)Fridays at a playgroup (2 hours) to be advised.

   (iii)Each contact period is to be supervised.

   (iv)The Director General or her delegate is to pick up and return the child.

   (v)The Director General is to pick up [the mother] for contact where such contact is at [K] CSC, where [the mother] is at [K] and where the supervisor is a departmental employee.

   (vi)Mondays from 2.00 pm to 4.45 pm at a location to be advised by the Director General or her delegate.

   (vii)Where such contact period falls on a public holiday, an alternative contact period will be arranged by the Director General with [the mother].

   13.That the paternal grandmother be joined as a party to the proceedings, to be called the “Third Respondent”.

   14.That the first and third respondents file any further Amended Response they might be advised to file within 7 days.

   15.Orders 1 and 2 above come into effect upon the expiration of the Emergency Care Order made at Broadmeadow Children’s Court on 24 October 2008 for a period of 14 days concerning the child [J] born […] December 2007 (“the child”).

   16.By consent, Order 18 and 19 of the Orders made in Federal Magistrates Court of Australia on 26 September 2008 at Newcastle are continued.

   17.Liberty is granted to apply on 24 hours notice.

   18.Leave is granted to the Independent Children’s Lawyer to photocopy subpoena material for the purpose of forwarding such material to the Chapter 15 Expert.

   19.The matter is transferred to the Family Court of Australia at Newcastle.

10. As is apparent from the November orders, from that time DoHS had substantial contact with the parties and child.  They were generally content with the child’s presentation and the father’s level of cooperation.  However, it was surprising DoHS did not undertake formal home visits with the father while the child was in his care.  In my opinion this was an inadequate child protection response.  However, it is relevant to note they did not observe the father to be drug affected or the child’s physical needs to be unattended.   

11. In December 2008, Ms DU was appointed the child’s case worker.  She graduated from Newcastle University in December 2006 and commenced employment with the Department of Community Services in January 2007.  Ms DU completed a caseworker development course from induction until October 2007.  Ms DU had previously met the child and his parents in about April 2008, when she conducted a risk assessment.  She had not been party to DoHS decision to place the child with the father.

12. On 5 February 2009, Ms DU telephoned the mother who told her she was with the child at the beach.  The mother told Ms DU the father allowed her to have the child “all the time”. Although the father denied it, the following day Ms DU spoke with him and he denied that the child had been spending time with the mother with the frequency she disclosed in the telephone call.  According to him this happened on no more than six or seven occasions. Ms DU was unsure about which of the parent’s versions was correct.  However, she assumed the parents had a private arrangement which enabled the mother to spend time with the child outside and in conflict with the orders.  Because she thought the father seemed to be managing well enough with the child she took no action in relation to the parents’ breach of orders. Ms DU’s lack of action was an inadequate response to the serious child protection issues present in the case.

13. By arrangement between the parents the child spent the weekend of

    
    

    21 -22 March 2009 with the mother.  

14. On 2 April 2009 the father was interviewed by the single expert.

15. In advance of the weekend commencing 3 April 2009, the father arranged for the mother to care for the child for the weekend.  It was his plan to go out with Mr L.  Mr L was then on parole which has since been revoked.  Mr L has a history of anti-social behaviour and of causing trouble.[2]  In both the father and Mr L’s COPS reports one sees reasonably often they are both reported as together being involved in the incident.  It appears he is typical of the style of person with whom the father had been friends.  Indeed one of the interesting aspects of this matter has been the extent to which the parents’ families, friends and associates were known to police.  

    [2] Exhibit ‘L’

16. On 3 April 2009, the mother attended Ms SE.  She informed Ms SE she had arranged with the father she would have the child again that weekend.  Not only was this in breach of the November 2008 orders, Ms SE considered the child was seriously at risk.  Amongst other child protection issues she was concerned the father (who she had seen the day before) had not been fully frank with her and believed the father’s physical presentation was consistent with him continuing to use Ice.  As to the latter, the father was very thin with poor skin.  I accept Ms SE had the experience to make an informal assessment about the father’s physical presentation. As later became apparent the father’s physical presentation that day was for him unremarkable and was not necessarily indicative of drug use.  As I understood the evidence the father’s appearance whether or not he uses drugs is basically the same.  In any event, because of a multiplicity of concerns Ms SE contacted DoHS and spoke with the District Manager to whom she expressed concern that the child was at risk[3] . 

    [3] Exhibit ‘J’

17. On 3 April 2009, the child was removed from the father’s care by DoHS and placed into foster care.  The child remained in emergency foster care with the same carer until 6 April 2009.  DoHS had a very difficult time retrieving the child.  When they went to the mother’s home, she hid the child.  While DoHS workers decided how to proceed she raced the child to the father’s home, their joint aim being to pretend the child had not been out of his care.  When DoHS removed the child, he became distressed as did the father and his mother. 

18. The father said he last used Ice on 3 April 2009.  According to him, the child’s removal caused him such distress he needed drugs to cope. On this occasion, he obtained Ice from Mr H, who is a friend and drug dealer.  The father’s contact with Mr H contradicts his evidence he had moved away from his drug and anti-social friendship circle.

19. Supervised visits between the child and his parents (separately) commenced on 6 April 2009. 

20. On 7 April 2009, the child moved into a second foster placement.  This placement continued until, because of the foster carer’s ill health, the child was removed on 5 May 2009.

21. On 20 April 2009 this court made the orders set out below.

    BY CONSENT IT IS ORDERED:

    1.That the Applicant’s legal representative file and serve a Notice of Address for Service within 7 days of the date of this Order.

    2.That within 7 days of the date of this Order the Applicant and the First Respondent shall attend upon a general practitioner or another service nominated by the delegate of the  Director-General of the Department of Community Services.

    3.That within 5 days of the date of this Order the Applicant and First Respondent shall provide all necessary consents to enable hair follicle testing of the Applicant and First Respondent to test for their use of all illicit or prescribed drugs by a service nominated by the Director-General of the Department of Community Services.

    4.That within 7 days of the date of this Order the Director-General of the Department of Community Services shall provide the Applicant’s legal representative with a copy of the documents in the Children’s Court proceedings relating to the child [J] born […] December 2007.

    5.Liberty to the parties to apply to relist the matter for interim orders within 3 days following release of the Single Expert’s report.

    6.That the Applicant and the First Respondent are restrained from cutting their hair prior to their provision of a hair sample in accordance with Order 2.

    7.That further consideration of this matter is adjourned to 10.00 am on 9 June 2009.

22. On 5 May 2009 the mother underwent hair follicle testing.  Although her result was negative, she admitted she used cannabis the day DoHS removed the child.  The father was supposed to be tested by hair follicle but refused to participate.

23. On 6 May 2009, the child went into his current foster placement.

24. Since then the mother and father have continued to spend time with the child at DoHS offices.  Reasonably often the father has been accompanied by his mother and his mother’s partner.  From time to time the maternal grandmother has also visited.  

25. During May 2009 the mother was convicted of assault and breaching an AVO in relation to the father.  She was placed on a Good Behaviour Bond.

26. On 22 May 2009, the father submitted to hair follicle testing.  The tests returned a positive result for Ice and amphetamines.  Because of the nature of the test, Dr PE who is a Pharmacologist with New South Wales Police, said this meant the father had used at least Ice between 22 December 2008 and 22 May 2009.  Ice metabolises into amphetamines.  Depending upon urine acidity Ice or speed could disappear within 48 hours.  According to the mother, she had heard from mutual drug using friends the father was also using ecstasy. His test results do not support this.      

1. On 22 July 2009 the mother terminated her pregnancy to Mr T.

2. Orders were made in this Court on 22 July 2009 as set out below.

   IT IS ORDERED PENDING FURTHER ORDER:

   1.That all previous orders providing for the parties to these proceedings to spend time with the child [J] born […] December 2007 (“[the child]”) be vacated.

   2.That [Ms Seldon] (“the mother”) shall spend time with [the child] as follows:

   (a)Once per week on Wednesdays for two hours from 2.15 pm to 4.15 pm.

   (b)That such time to be supervised by a delegate of the Director‑General and to take place at either the [K] Community Services Centre or at another location as agreed by the Director‑General's delegate.

   (c)That the mother is to confirm her attendance by 4.00 pm on the Tuesday prior to each occasion.

   (d)The Court notes that should the mother not confirm her attendance the Director‑General may cancel the arrangements for her to do so.

   3.That [the mother’s mother] (“the maternal grandmother”), [Mr G] (“the maternal step-grandfather”), [N] (“the maternal aunt”), [… Seldon] and [… Seldon] may attend with the mother at those times.

   4.That [Mr Denny] (“the father”) shall spend time with [the child] as follows:

   (a)Once per week on Wednesdays for two hours from 12.00 noon to 2.00 pm.

   (b)Such time to be supervised by a delegate of the Director‑General and to take place at either the [K] Community Services Centre or at another location as agreed by the Director‑General's delegate.

   (c)That the father to confirm his attendance by 4.00 pm on the Tuesday prior to each occasion.

   (d)The Court notes that should the father not confirm is attendance, the Director‑General may cancel the arrangements for him to do so.

   5.That [the mother’s mother] (“the paternal grandmother”) and [Mr G] (the paternal grandmother’s partner), may attend with the father at those times and with his consent.

   6.That the parties be given leave to convene a conference pursuant to Rule 15.64 on  21 August 2009 at 4.00 pm.

   THE COURT NOTES:

   A.The parties will convene a conference on 21 August 2009 at 4.00 pm for the purpose of putting questions to the Single Expert witness.

   B.The parties will exchange a list of questions within 14 days pursuant to Rule 15.65 of the Family Law Rules 2004.

   C.In the event that there are any disagreements which occur between the family members during the spend time with periods the supervisor(s) of that time will immediately terminate the time spent with period.

3. On 27 August 2009 the mother informed DoHS the father was using drugs.

4. On 8 September 2009, DoHS gave both parents written instructions to attend drug screening each Monday, Wednesday and Friday until 17 November 2009.  Each parent attended a few times, in the mother’s case four and the father five[4].  For both the drug screens were clear.  Both attended far less often than was required.  The father was unable to attend on 28 September 2009 because he was attending a course.  However, on all the other missed occasions the effect of his evidence was he could not be bothered attending.  DoHS even asked the paternal grandmother to intervene and try to persuade the father to cooperate.  Notwithstanding the evidence the father has regularly attended all visits with the child and has not appeared to be drug affected or recovering from having done so, I accept the submission made by DoHS and the Independent Children’s Lawyer his failure to give drug screens as required supports a finding he may well have continued to take drugs.  Dr PE’s evidence demonstrated that drugs such as Ecstasy, Ice and Speed disappear from the body quickly.  Had the father used these drugs, which in relation to Ice in particular was his drug of choice, this would have disappeared in all likelihood within about 48 hours but possibly up to 4-5 days.

   [4] Exhibit ‘G’

5. In early November 2009 the mother commenced a parenting course called “Living with Kids” and attended upon a psychologist.    

6. The weekend prior to the start of this hearing the mother moved out of her mother’s home and in with Mr N with whom she was expecting a baby.  At the mother’s request, the father picked her up and drove her north of Newcastle so she could get to Mr N.  He collected the mother in his mother’s car.  The father is disqualified from driving until about 2012. 

General Law in parenting cases

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. The child’s best interests remain the overriding consideration.

7. 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 risk of abuse allegations

1. 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.

2. By way of further elaboration of the civil standard of proof, the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 per Mason CJ, Brennan, Deane and Gaudron JJ said at pp 170-171

   The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary ‘where so serious a matter as fraud is to be found’. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

3. The Briginshaw test is now enshrined in s 140 of the Evidence Act 1995 (Cth). As the Full Court in Johnson and Page (2007) FLC 93-344 makes clear these principles apply to cases decided after its introduction.

4. Thus a Court will only make a positive finding that sexual or other abuse has happened when, by reference to s 140(2)(c) of the Evidence Act the judge “is satisfied to the highest standard, on the balance of probabilities abuse has occurred”: W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235.

5. If the Court determines that it cannot or should not make a positive finding that there has been abuse, the Court must determine whether, by reference to s 140 of the Evidence Act,  in all the circumstances there is an unacceptable risk of it.  This involves an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.  The components which go to make up that conclusion need not each be established on the balance of probabilities.  The Court may determine that the constellation of factors comprises an unacceptable risk even though none or only some are proved to that standard:  Johnson and Page (supra).  

6. These principles are applicable to all allegations of risk of harm, including family violence:  A v A (1998) FLC 92-800.

7. The findings made in the assessment of risk addresses part of the Court’s responsibilities.  Whilst the resolution of the risk issue may be the central issue in proceedings, the Court’s role is broader in that it must determine the best interest of the child having regard to the relevant statutory factors.   In M v M (at p 76) the High Court said:

   The resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child.  The Family Court’s consideration of the paramount issue which it is enjoined to decide, cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse.  The Family Court’s wide-ranging discretion to decide what is in the child’s best interest cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse and the balance of probabilities. 

1. If the Court reaches the conclusion that there is no unacceptable risk, the Court must consider the separate issue of the parent’s belief in the occurrence of the events.  In A v A (supra) the process is described thus:

   The first enquiry is whether there is objectively an unacceptable risk.  If there is the Court must take steps proportionate to the degree of risk.  If there is not, the Court may then need to consider whether the residence parent has a genuinely held belief that such a risk exists and whether it will have a significant impact on the party’s capacity as the resident parent and so impinge on the interests of the children. The Court then needs to take steps proportionate to that circumstance.

The mother’s circumstances

1. The mother is 19 years old.  On the evening prior to the start of this hearing her mother ordered her from her home.  With the mother’s grandmother’s and the father’s assistance, she returned to her boyfriend, Mr N’s, home.  The mother and Mr N commenced a relationship in mid 2009.  It was their practice, for the mother to stay with him from Friday through to Sunday evening each week.  The mother was expecting a child to Mr N and at that stage was at the end of her first trimester.  Unless Mr N makes significant changes to the way he lives, the mother believes that he is an inappropriate person to have contact with the subject child or their child.  Mr N drinks alcohol to excess, uses cannabis, used and has dealt ecstasy.  According to the mother, Mr N grew up in a violent home.  It is her evidence that Mr N’s father killed his brother and sister and tried to kill Mr N.  Mr N’s dealings with the police are before the court.  It is sufficient to observe he has not insignificant (however very modest when compared to the father) and current dealings with police. 

2. The mother’s ambivalence about the future of her relationship with Mr N is understandable and her concern that he will be unable to make the lifestyle changes which she considers necessary if they are to have a future together seems founded in reality.  The mother tried to encourage Mr N to participate in the single expert interviews but he refused.  He was not called as a witness.  Although it was undoubtedly a difficult decision for the mother to make, she no doubt appreciated that if she was to have any reasonable prospect of securing the child’s return to her, her partner needed to participate in these processes.  Her inability to secure Mr N’s cooperation in this regard demonstrates that his commitment to her is as at least as ambivalent as hers to him. 

3. The harsh reality of the mother’s circumstances was exposed by her evidence that after she was evicted from her mother’s house her choices were to live on the street or with Mr N.  The general tenor of the mother’s evidence was that she had no family support or friends to whom she could turn for help.  As to the latter, the mother’s associates appear to be young people who, like her, have used drugs and, if she were to reside with them, it would be highly likely not only she but also her children would be at risk of serious abuse and neglect. 

4. There is no doubt the mother endured a dysfunctional and abusive childhood.  Neither the mother nor her mother took issue with Ms SE’s evidence concerning the mother’s history. 

5. The mother’s parents separated when she was a toddler.  Both were teenagers when the mother was born and they separated because of her father’s severe violence to her and her mother.  He punched the mother when she was about eight months old.  After separation the mother had contact with her father for a time which her mother stopped, because the child had been returned with injuries she believed were caused by cigarette burns and had been sexually abused (by an unrelated male).  It is the mother’s mother belief that in retaliation for her leaving her partner the father arranged for her to be attacked.  The mother’s mother was attacked during which she was cut on the breast and face.  The mother’s mother’s upbringing was tumultuous and violent.  Her parents separated when she was about four years old.  She recalls that her mother re-partnered often, with violent men.

6. As a child the maternal grandmother was sexually abused by a step-father for which she has never received therapeutic assistance.  To Ms SE the maternal grandmother described the mother as similar to her mother.  It is the maternal grandmother’s belief that her mother turned a blind eye to her partner’s sexual abuse of her.  She has a complicated relationship with her mother which mirrors in many respects her relationship with the mother.  Unsurprisingly, the maternal grandmother’s mental health records are extensive and she has been diagnosed as suffering a borderline personality disorder and post traumatic stress disorder. 

7. The maternal grandmother met her husband, Mr G, in 1995.  Apart from separations early in their relationship they have been together ever since.  Mr G’s childhood was at least as dysfunctional as the maternal grandmother’s.  He too is a victim of childhood sexual abuse, neglect and exposure to severe domestic violence. In short, neither of them was emotionally or psychologically equipped to cope with the complexity which their respective backgrounds brought to their relationship. 

8. The mother was 10 years old when her mother and Mr G’s relationship commenced.  For the first two years their relationship was extremely violent with the maternal grandmother and Mr G equally responsible for severe physical and personal abuse directed towards each other.  Eventually they each had counselling which resulted in a diminution in Mr G’s aggressive behaviour early on but which took longer for positive outcomes vis-à-vis a reduction in the maternal grandmother’s violence.  The situation in the home had become so poor notwithstanding his prior abuse of the mother and that she had not seen her father for years, the mother was sent to live with her father.  The maternal grandmother was defensive of the implied criticism made during cross examination that this reflected poor judgment on her part.  She said she believed the mother’s father had turned his life around and because he lived with his parents the risk the child would be again sexually, physically or emotionally abused was moderated. 

9. Whatever the situation in that home was, within two years the mother returned to live with her mother.  From the mother’s perspective this is when she became aware of her mother’s rejection of her.  When the mother returned to her mother’s home, the situation there remained volatile.  Although Mr G’s domestic violence had become a thing of the past, the maternal grandmother remained emotionally labile and prone to physical violence.  During this period, she attempted to commit suicide on a number of occasions.  Her misery was compounded by five miscarriages and then when a son was born the mother’s inability to accept her sibling.  It is unnecessary to continue reciting in detail the awful situation in the maternal grandmother’s life in the period up to 2005.  It is sufficient to record she became involved in petty crime and assaulted neighbours and other family members with whom she did not reside.  By about 2005, however, when she was in her mid thirties, the maternal grandmother began to settle.  She became more content in her relationship with Mr G and was happy in her relationships with her two young sons.  By this stage the maternal grandmother had three children by Mr G, the two sons to whom I have made reference and another daughter, N.  The maternal grandmother rejected N in the same way she rejected the mother.  N is severely behaviourally disturbed and there is reason to be fearful for her future.  However, by 2005 the maternal grandmother’s violence ceased and she and Mr G had settled into a mutually supportive relationship.

10. In spite of the maternal grandmother’s and the mother’s dysfunctional relationship, the maternal grandmother has tried to help her daughter as a mother.  Provided the mother was willing to care for the baby and keep him safe, the mother and child were made welcome in her home.  She has given the mother guidance in the practical aspects of child rearing and provided her with support and information which would have enabled the mother to avoid making the mistakes with her child which the maternal grandmother made with her daughters.  Unfortunately the maternal grandmother’s and the mother’s relationship is too complex and dysfunctional for them to be able to live together. 

11. The mother had something of an ally in Mr G.  However, for reasons only the mother could appreciate, at the commencement of this hearing she alleged she had been sexually abused by Mr G[5].  It was the mother’s evidence that the reason her mother evicted her from her home on the evening prior to the hearing was because she told her mother to eject Mr G from the home because he had sexually abused her four or five years ago.  The mother was not present when the hearing commenced.  After considerable persuasion from her solicitor and a case worker from DoHS, the mother eventually arrived.  In evidence in chief, she outlined an argument with her mother the evening before.  Concerning Mr G the mother initially said he sexually abused her over a period of six years.  Whilst still giving evidence in chief, she gave details of a single incident which occurred when she was about 14.  On the mother’s evidence Mr G was taking a shower.  She entered the bathroom and used the toilet.  She said she turned the light off which Mr G switched back on.  He flicked water at her when she was on the way out of the bathroom and moved in such a way that her hand brushed his penis.  When Mr G gave evidence his account of this incident was largely consistent with the mother’s evidence.  He denied that the mother brushed her hand against his penis and seemed confused about whether or not he had switched the light back on. 

    [5] Exhibit ‘M’

12. Although afforded the opportunity to give evidence which supported her statement of Mr G’s sexually abusive behaviour over a six year period, the mother proffered nothing further.  She made no claim of having been sexually abused by Mr G to Ms SE or her case worker from DoHS, with whom she claimed to have a close and cooperative working relationship. 

13. Mr G denied sexually abusing the mother.  An incident shower undoubtedly occurred.  On the day it took place, the mother and Mr G both spoke to the maternal grandmother about it.  Not long afterwards the mother went to stay with a girlfriend for about one week.  Without the mother saying so, her girlfriend’s mother formed the belief the mother had been sexually abused.  Apparently her girlfriend’s mother was unable to contemplate that there may be other reasons why the mother would not want to remain at home.  Had she understood the nature of the mother and the maternal grandmother’s relationship she would have appreciated there were alternate explanations for the mother’s decision to leave home.  In any event the Department of Community Services investigated the mother’s circumstances with particular reference to the possibility the mother had been sexually abused by Mr G.  The mother firmly denied she had been sexually abused by Mr G or that he had behaved towards her in an inappropriate manner.

14. The maternal grandmother and Mr G gave evidence that on the evening prior to the hearing they informed the mother that each of them had received a subpoena to give evidence served by DoHS.  A family discussion ensured the effect of which was the maternal grandmother and Mr G told the mother they would not lie under oath.  They left her in no doubt that they planned to tell the truth about her lifestyle.  They and the mother knew that this severely reduced the likelihood that the mother would have the child returned to her.  In response, the mother threatened that unless they spoke positively about her she would claim Mr G had sexually assaulted her.  Although the mother denied this conversation, on balance I am satisfied it occurred as the maternal grandmother and Mr G claimed.  I accept the mother is an emotionally labile and disturbed young woman.  Her actions, however, in this instance warrant strong criticism. 

15. The Court’s response to the mother’s initial evidence concerning Mr G’s behaviour was to treat this as a serious issue, particularly given that N resides with her parents.  I ordered an urgent transcript and requested DoHS initiate a further investigation.  The hearing was adjourned overnight.  The following morning the mother was at pains to emphasise Mr G had never touched her.  The sense I had was that in effect, the mother’s nerve failed her and having started the lie she did not know how to contain the damage it appeared likely to cause.  The effect of these findings is that I am satisfied the mother had not been sexually abused by Mr G.

16. The mother is in her fourth significant relationship.  All four of her partners, which include the father, have serious substance abuse histories.  The father, Mr O and Mr T were violent and abusive towards the mother.  In none of the relationships has the mother been treated respectfully and, although her self esteem may be so fragile that she is unable to cope unless she has a partner, the probability is that none of the mother’s relationships have been healthy.  It was only a matter of weeks before the mother fell pregnant to Mr N that she terminated a pregnancy to Mr T.  The mother terminated the pregnancy because she said she was not in a position to care for the subject child if she had a baby to care for as well.  Although when the mother fell pregnant to Mr N she hoped to have the child returned to her she failed to appreciate her parenting capacity would be stretched whether the baby’s father was Mr N or Mr T.  As I understood the mother’s evidence, none of her pregnancies were planned.  Unfortunately it is necessary to record that the mother gave no thought to the risk or consequences of random unsafe sex with young men who she considers unsuitable partners and probably unsatisfactory fathers, let alone the risks to her health.

17. In relation to the mother, the single expert said:

    It is thus not surprising that she has grown into a young woman who has serious emotional/behavioural problems; has difficulty in attaching to her child; and who lurches from crisis to crisis in her life.  [The mother] appears to have some borderline personality traits like her mother, which is hardly surprising in the light of her unfortunate childhood experiences.  However it is not clear whether she meets the criteria for a personality disorder. 

18. Ms SE described the mother as very emotionally immature and with “little motivation to change things in her life”.  I accept that while the mother would like her life to be different, she lacks the maturity and motivation to make the changes which of necessity she must make so as to improve her circumstances. 

19. The mother’s proposed orders[6] are set out below.

    [6] Exhibit ‘I’

    In the first alternative:

    · Pursuant to s 61DA of the Family Law Act 1975 (Cth) ('the Act'), and for a period of twelve months from the date of these orders, the Respondent Father and the Intervenor Department of Community Services will have equal shared parental responsibility for [J] born […] December 2007 [hereinafter referred to as 'the child'] for decisions about major long-term issues as they relate to the child including, but not limited to, long-term care, welfare, supervision, housing, education, health and religious matters.

    · Thereafter, pursuant to section 61DA of the Family Law Act 1975 (Cth) ['the Act'], the father will have sole parental responsibility, in consultation with the mother, for [J] born […] December 2007 [hereinafter referred to as 'the child'] for decisions about major long-term issues as they relate to the child including, but not limited to, long-term care, welfare, supervision, housing, education, health and religious matters.

    ·        The child will live with the father.

    ·    The child will spend time with the mother as follows:

    ·    For the first twelve months from the date of these orders:

    (a)For two hours once per month, supervised by either the father or a delegate of the Director-General of the Department of Human Services, at the discretion of the Director-General or her delegate;

    (b)From the conclusion of twelve months from the date of these orders and thereafter in the event that the mother has her own accommodation:

    (c)Each alternate weekend from Saturday at 10am until Sunday at 4 pm;

    ·   For one half of each gazetted New South Wales school holiday period in each year as follows:

    (i)In 2011 and later odd numbered years, for the second half of each school holiday period;

    (ii) In 2012 and later even numbered years, for the first half of each school holiday period;

    In the event that the mother does not have her own accommodation:

    (iv)Each alternate weekend from Saturday at l0 am until Saturday at 4 pm, and from Sunday at 10 am until Sunday at 4 pm;

    ·      During each of the periods gazetted as New South Wales school holidays in each year as follows:

    (i)  In the school holiday periods at the end of Terms 1, 2 and 3 for five days between 10 am and 4 pm as agreed between the mother and father;

    (ii)In the second holiday periods at the end of Term 4 (Christmas holidays) for five days each alternate week between 10 am and 4pm.

    ·    The mother and the father are restrained from using illicit substances during all times when the child is in their respective care.

    ·    The mother and the father will provide a sample to a pathology service for the purpose of drug urinalysis testing which complies with the Australian/New Zealand Standard 4308:2001 on the following basis and will immediately provide the solicitor for the other parties with the results of such testing upon such results becoming available.

    (a)Each Monday for a period of three months;

    (b) On a random basis at such times as requested by the Department of Community Services for a period of twelve months from the date of these orders, with such requests not to exceed one request per week.

    ·    The mother will attend upon a counsellor as approved by the Director of Child Dispute Services for anger management for so long as the counsellor in their sole discretion deems necessary.

    ·    The parties are restrained from denigrating another party, their family or their friends to or in the presence or hearing of the child and will use their best endeavours to ensure that no one else does so and will remove the child from any environment when the same is occurring.

    In the second alternative, if the child remains in foster care;

    1.The child will spend time with the mother as follows:

    a.For a minimum of two hours once per month, such time to be supervised at the discretion of the Director-General or her delegate;

    b.For additional time as agreed between the mother and the Director-General or her delegate.

The father’s circumstances

1. The father is 25 years old.  He lives with his mother and her partner at Y Street, O, north of Newcastle.  The father’s mother is the registered proprietor of this home and it is where the father lived throughout his childhood. 

2. Curiously the father disclosed little about himself in his affidavit.  To a very significant extent it was necessary for the Independent Children’s Lawyer and DoHS to undertake a detailed search of police and other agencies’ records in order to gain some appreciation of his circumstances.  The point which flows from this is that the father at best gave superficial information and failed in a material way to tell the full truth.  With respect to the submissions made by his counsel that the father had fully and honestly cooperated with the Court and expert, one only needs to compare his affidavits with the voluminous material produced from police and the like to appreciate this submission is unsustainable.      

1. It was the single expert’s assessment that the parents presented as very immature and irresponsible parents.  With this assessment I strongly agree.  Given their unstable and violent upbringing, it was no surprise to her they both demonstrated serious behavioural problems from early adolescence. With little experience themselves of good role modelling and a safe and nurturing childhood, she opined that neither had the experiences to draw from to be able to adequately care for the child.  In her view, they had shown they were unable to provide an appropriate, even at the most minimal level, living environment for their child.  In circumstances where, the single expert concluded:

   It was highly likely the child has a reactive attachment disorder of infancy and childhood disinhibited type’ he strongly needed to live in ‘a loving, stable and cognitively enriched environment, in which he is protected from any exposure to violence, change of caregivers or unempathic care.  As well he needs to be raised in a household with strong moral values.  The child needs more than a “good enough” environment if he is to recover.  His needs are for a reparative (healing) environment if he is to grow up into a well functioning child and adult, and to break the tragic generational cycle of abuse which has been visited on both of his parents.

2. If the child goes into long term foster care, he will be denied a meaningful relationship with his parents or other people from his family of origin.  Although he would see them, the aim of a long term foster arrangement would be for the child to become attached to his foster parents and for them to become the people with whom the child has his most meaningful relationships.  However, as my findings thus far suggest, were the child to reside with the father the positive aspects of that relationship which would give it meaning, is their biological connection.  I accept the father loves the child and would want to be the best parent he is capable of being.  Unfortunately, I am satisfied the father’s parenting deficits are profound and there would be little that is positive for the child in a long term relationship with his father. 

3. The mother agrees she cannot meet the child’s needs and he should live with someone other than her.  Her strong preference is for the child to reside with the father.  Again, the evidence in relation to the mother’s parenting capacity points in one direction.  Namely, that she is unable to meet the child’s needs on even the most rudimentary level.  My findings in relation to the positive aspects of the child’s relationship with the mother long term are the same as those made in relation to the father.

4. Section 60CC(2)(b) concerns the need to protect the child from physical or psychological harm, and from being exposed to abuse, neglect or family violence. There is no doubt the child has been exposed to serious family violence and neglect because of his parent’s drug use and lack of appreciation of even his basic needs. If the child were to return to reside with his father, there is an unacceptably high risk he would be exposed to drug abuse, family violence and anti-social behaviour. While there is evidence the father has made some gains in terms of his drug misuse, anti-social behaviour and has possibly settled for at least a period, these gains are of limited duration and it is far from clear they are likely to be maintained. The damage that has already been done to this child by his parents’ behaviour is such, that the risk, which is assessed as being high, the father may use drugs or live as he has previously from the time he reached his majority, would be an inadequate response to the child’s need for a reparative environment. These are findings which warrant significant weight. I make similar findings in relation to the risks the mother presents to the child. In relation to both parents, it is mere luck this child has not been physically harmed, or the effect of their violent relationship even more damaging than it has been. It is mere luck that the drug and anti-social world into which they took him did not have an even poorer outcome for him.

5. In my view, it is noteworthy that even with the intense support provided by DoHS, the child’s removal and the parents’ appreciation that they would need to show the Court they would adequately fulfil their parental responsibilities to the child in the future, neither has engaged in appropriate therapy.  The father does not attend Narcotics Anonymous, nor have a drug or alcohol counsellor.  While he has undertaken parenting courses, he had no appreciation he would benefit from continuing counselling.  Although the mother had a cooperative relationship with her case worker, she had been unable to see her way to engaging in an on-going, therapeutic relationship, nor drug or alcohol counselling.  The expert report was released in May 2009.  Thus, the parties had six months within which to consider its ramifications and take steps to address the serious issues raised therein.  With respect to both parents, their responses were inadequate and undermined their evidence they could be trusted in the future to cooperate with any agencies or counsellor the Court considered would be beneficial to them.

6. On balance I am strongly satisfied both parents present an unacceptably high risk to the child of exposure to drug abuse, violence, neglect and other anti-social behaviour.  Neither of them has the insight or capacity necessary to make and maintain the almost entirely life altering changes required to ensure the serious risks to the child to which in their respective care he has been exposed would not continue.   

Section 60CC(3) considerations.

1. The child lacks the maturity to understand the issues or articulate any views in relation to the matter.

2. In my discussion about the primary considerations, I touched upon the nature of the child’s relationship with his parents and paternal relatives.  The single expert’s report and contact supervisor reports also show the child enjoying visits with his maternal grandmother.  One of the particularly important issues was whether the child has an attachment disorder.  It was the single expert’s opinion he has a reactive adjustment disorder, which was particularly manifested in what she said was his indiscriminate attachment behaviour.  In the history given to her by the mother, father, paternal grandmother, paternal grandmother’s partner and foster parents, as well as her observations of the child, she saw it as most significant that he easily went to strangers or unfamiliar people, called strangers “mummy, daddy and nanny”, was over familiar with strangers, showed reduced “safe base” approaches to his familiar carers, that is, mother, father, paternal grandmother and a notable lack of grief or distress about his loss of those familiar carers.  She considered it quite extraordinary there had been virtually no reaction from the child going into foster care. 

3. It was submitted by counsel for the father the single expert had an insufficient amount of time allocated to her observation sessions to reach the conclusion she did in relation to attachment.  The gravamen of the submission was that it follows the single expert had concluded the child had an attachment disorder prior to her observation sessions and used that time to “cherry pick the systems” to justify her conclusion.  It was submitted the single expert “begrudgingly acknowledged” that a reactive attachment disorder is very rare, and used the term “to cover all the child’s alleged ills”.  Counsel for the father placed reliance upon a number of academic articles to support the submission the child had been misdiagnosed.  In an article, ‘Child Abuse and Neglect, Reactive Attachment Disorder:  Treatment and Medication’ written by Roy H Lubit MD, PHD, Assistant Clinical Professor, Mount Sinai School of Medicine, New York University, the author discussed how a child may come to rely on a new attachment figure.  Under the heading, ‘Medico Legal Pitfalls’ there is discussion about alternate diagnoses related to non-attachment or disinhibited superficial attachments.  Practitioners are reminded to take a cautious approach and not diagnose attachment disorders too freely, or view virtually all behavioural disturbances as being caused by disruptions in attachment.  Differential diagnoses are discussed and, for children who are unresponsive to others, the clinician is reminded to rule out the presence of a pervasive development disorder or an autistic condition.  Reliance was placed by counsel for the father on the following remarks: 

   … Many children experience disruptions in their relationships with caregivers, and many children become aggressive, hyper-vigilant or defiant.  However, these children do not necessarily have attachment disorders.  Aggressive behaviour, explosions of temper, and defiance are characteristics of several disturbances in childhood; do not assume all of these are attachment disorders.

   Many infants seem to be oblivious to their caregivers;  they do not exhibit fear and are very disinhibited.  They might not have an attachment disorder but are rather focused on a particular stimulus and unaware of their surroundings.  This tendency to be impulsive, focussed on a stimulus, and to be somewhat oblivious to danger is not necessarily a sign of an attachment disturbance, but is more a sign of attentional deficit and impulsivity.  The history of disruptions in relationships with caregivers guides the diagnoses. (My emphasis) 

4. The single expert was questioned at length in relation to this issue, with particular focus on the supervised contact report of the child’s visit with the father and paternal grandmother on 22 May 2009.  In this report, the foster carer advised the child had been asking all week for his father.  He had been calling all men “daddy” when they went shopping.  On arrival, the father called and ran to the child and scooped him up in a hug.  He told the child he had missed him and loved him.  The report continued: 

   The child was observed to turn when he heard his natural father and after letting go of my hand he ran to his natural father with his arms raised.  The child appeared excited to see his natural father.  He was heard to say ‘daddy’ as he hugged his natural father.  The paternal grandmother was seen to kiss and touch the child in welcome, as he was still in his natural father’s arms.  The child appeared happy to see his paternal grandmother saying ‘nonna’.  During his visit the child remained closely by his father’s side, sitting on the lounge with hugging and kissing.  He sat on his father’s knee for some time.  The father and child were joined in play by the paternal grandmother and the scene which was played out was warm and companionable. 

   The report continues: 

   The child was seen to approach his paternal grandmother and his natural father to have his needs met and play.  The child appeared happy to see his natural father.  He was observed to approach his natural father easily for affection, wrestling and hugging him throughout the visit. 

   The child’s nappy required changing and there were no wipes in the bag.  The paternal grandmother said she had some in the car and the natural father said he would go and get them.  When the natural father left the room the child was seen to become distressed and beginning to cry, he was seen to call his natural father, run to the door and cry, climb on the table and try to reach the door handle.  With this behaviour we decided to take the child to the car to get the wipes, calling to his natural father who was at the lift and had heard the banging on the door and returned.  The child appeared happy to be carried to the car by his natural father.

   On return the child was seen to entertain some people in the foyer as we waited for the door to the family room to be opened.  He was seen to approach these people with ease and engage with them, but then returned to his natural father.

   The visit continued with the father, child and paternal grandmother warmly engaged in play.  The father was obviously affectionate to the child and the child was seen to approach the father for hugs throughout the visit.  He also approached his paternal grandmother for affection with ease.

5. Under the heading “Reaction on Departure” it is reported: 

   The natural father was seen to carry the child to the car and kiss and hug him on the way.  Once placed in the seat the natural father was seen to kiss the child and tell him he loved him and he would see him at the next week visit.  The child was seen to accept the affection of his natural father and was seen to hold onto him when he went to leave the child.  The child held onto the paternal grandmother’s necklace and his hand had to be disengaged. 

6. Under the heading, “Other Comments/Incidents” there is written: 

   Please note that on the last contact visit, the child was seen to walk to the door and look for his natural father when he was on the phone talking to him.  The child was seen to begin to cry as he looked for his father, who he appeared to think was on the other side of the door.  The paternal grandmother was heard to inform the natural father she was hanging up as the child was getting upset.  The paternal grandmother was seen to comfort the child and divert him with a toy.

7. In part, based upon the article referred to, it was put to the single expert that having spent two and one-quarter hours with the child, it was exceedingly dangerous to make the attachment disorder diagnosis which she did.  In response, the single expert pointed out she had a substantial body of information about the child and the manner in which he had been cared for.  She agreed the diagnosis is rarely made, but commented that it was not a difficult diagnosis to make.  She rejected the suggestion there may have been a pervasive development disorder or an autistic condition.  I agree with her that there is no evidence either conditions are applicable to the child.  In relation to the positive remarks and observations made by contact supervisors, she pointed out many people can interact very well whilst being observed for an hour or two.  Also, that the contact supervisors, while reporting accurately, do not bring to the observations the same skill set of an investigator who is a psychologist.  The single expert did not agree with the proposition the positive observations about the child’s enthusiasm, close contact and seeking out the father, were inconsistent with her diagnosis.  She agreed one needed to look not just at the child, but also at the child’s history.  When that is done, particularly the ease with which the child moved into foster care and against the known background of multiple caregivers, including reliance upon carers who were abusing Ice, the weight of the evidence pointed to the probability there was an attachment disorder which, the single expert said, she saw played out in her observation session.  On balance, I am satisfied the child has an attachment disorder of the type expressed by the single expert.  I have not overlooked the challenges made to the single expert’s evidence about the child’s reactions to various separations and injuries.  In my view, the most reliable evidence about what occurred during her interviews and observations is the evidence she gave.

8. Thus, while the child also has a relationship with his father, mother, paternal grandmother and paternal grandmother’s partner, the quality of his relationship with them is seriously compromised by his disturbed attachment.  None of them was willing to accept the single expert’s opinion about this matter and all lacked insight into causation or how to address the matter.  These factors all weigh against them being able to assist the father and child to provide the reparative environment if the long term adverse consequences for the child are to be avoided.  These are findings to which I attach significant weight.

9. I agree with the single expert, it is fundamentally important to the child’s long term needs that he is placed with competent carers, who are emotionally sensitive and able to form a close and intimate bond with him.  As the article written by Lubit[7] indicates, a child with a history of disruptions in relationships and/or reactive attachment disorder is able to develop a new attachment to new caregivers, even as late as a school age child.  It was the single expert’s opinion the child should be able to appropriately attach to competent new carers.  She also opined that in order to maximise the success of a new attachment and stability of a long term foster placement, the child’s contact with his parents would need to be reduced.  Her point being, the child would continue to need contact with his parents sufficient to establish his sense of identity, but not so frequent that contact with them detracted from his ability to perform strong attachments with new carers.  It was her opinion the child would need to see his parents no more than three or four times a year and that time which was materially greater than that, would probably disrupt the success of the foster placement.  These are significant matters and findings upon which I place considerable weight.  They weigh heavily in favour of the orders sought by DoHS.

   [7] Exhibit ‘H’

10. Section 60CC(3)(c) requires the Court to consider the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent. Until the child went into foster care, the mother and father facilitated regular contact, including contact by the father to the mother which was inconsistent with orders. His generous approach to the mother’s request for non-ordered contact showed he was unable to appreciate the gravity of the risk which contact between the child and mother involved in a non-supervised setting. Notwithstanding the father’s protestations that he could be trusted to abide restraints which would require him to limit the child’s contact with the mother, I have grave reservations about his ability to comply. The point being, I am reasonably strongly satisfied the father would facilitate an ongoing relationship between the child and mother, even when doing so would be contrary to orders and place the child at risk. This is a finding to which I attach reasonable weight.

11. Section 60CC(3)(d) is one of the pivotal issues in the proceedings. There is a strong connection between this and the risk findings. This subsection concerns the likely effect of any changes in the child’s circumstances, including separation from parents, or other people with whom the child has been living. The child has been living in foster care since April 2009. He has settled into foster care and adjusted to being separated from his mother and his father. Further change is necessary with the options available being to return the child to the father, or place him with a new foster family. Thus, for a child who has already experienced multiple disturbances in his relationships and caregivers, the risk associated with further change cannot be avoided. However, the quality of care which would be provided when this change is implemented, is critical to its success and the likelihood transition would be completed without an unacceptably high level of distress to the child. In the father’s favour, the child would return to a home he may remember and people with whom he has a relationship. His new foster family will comprise strangers and a cautious approach to transition from his current carer. The evidence from the case workers is that the transition would take place over a period so as to make it as smooth as possible. The risk findings I have made, when combined with the father’s parenting deficits, would mean that such advantages as might be available from placing the child back into a setting with which he is familiar, are heavily outweighed by both the short and long term risks to the child.

1. It was submitted by counsel for the father that foster family placements are inherently risky and the prospect of failure and bad outcomes for children are well known.  The single expert agreed there are real risks involved in foster placement and acknowledged that many fail.  It is probably for this reason that long term foster care is a step rarely taken.  However, the risks in not taking this step for the child are clear and are so high they weigh heavily in favour of foster placement.

2. Section 60CC(3)(e) concerns the practical difficulty and expense of a child spending time with and communicating with his or her parents. This is not a significant issue and whatever contact arrangements are ordered, are able to be reasonably implemented.

3. Section 60CC(3)(f) focuses on the parties’ parenting capacity. This is also connected to the manner in which they have exercised their parental responsibility. I have earlier made numerous findings concerning these issues which do not require restating. Simply put, drugs, violence, anti-social behaviour, the past history of neglectful parenting by both parents, means that neither is able to meet the child’s needs. Their parenting capacity and judgment has failed them and the child. While the parents have each made some lifestyle changes, these are of relatively recent origin and when considered in the context of their long history of anti-social behaviour, the father’s long history of drug abuse, it would be mere speculation to conclude such positive changes that have been made are likely to be maintained, even in the short to medium term. Regrettably, the Court is of the view that neither parent has demonstrated they are able to adequately parent the child.

4. The Department of Human Services is confident that the family chosen to take on the child’s care is well equipped to provide the parental support he needs.  The placement will be supervised and the foster carers offered guidance and support by the Department.  I am satisfied that DoHS will place the child with a family assessed by them as being able to meet the child’s long term needs.

5. Lifestyle issues permeate these reasons. There are no other s 60CC(3)(g) factors which require further elaboration.

6. Aboriginal and Torres Strait Islander issues do not arise.

7. I have already made findings in relation to the parties’ attitudes to the responsibilities of parenting and family violence issues.  Again, these matters are intrinsically linked and the evidence all pointed in the direction that the parents’ substance abuse, anti-social behaviour and family violence has been pervasive and although the risk may have somewhat reduced, in terms of the risk of relapse and further like behaviour, it is unacceptably high.

8. The Apprehended Violence Order for the father’s protection from the mother has recently expired. 

9. There will be a risk of future proceedings irrespective of which proposal the Court adopts.  If the child were to live with the father his history of breaching orders makes further proceedings almost inevitable. In this regard ad notwithstanding his protestations to the contrary I am far from satisfied he would comply with orders to limit the child’s contact with the mother or orders and injunctions designed to improve his parenting capacity.  I also accept there is a possibility any foster placement, no matter how well chosen, may not endure.   While these are factors I have taken into account,  the risk of further proceedings does not warrant significant weight.  

10. 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.

Conclusion

1. This is a sad case in which a constellation of factors have made home an unsafe environment for the child.  The presumption of equal shared parental responsibility is rebutted.  The child has been seriously neglected and badly affected by his parents’ failure to fulfil their parental responsibilities.  These are strong words and it is important to note the parents came to this position against a background of being abused and neglected themselves.  Basically, these parents had little or no idea about how to care for this child.  Returning the child to the father would require that the Court failed in its statutory responsibility to protect him from exposure to violence, abuse, drug abuse and neglect.  Although the primary considerations emphasise the importance to children of meaningful relationships with their parents, this is conditional upon such relationships promoting the child’s best interests.  Where promoting a meaningful, in this case unhealthy and unsafe relationship with a parent, involves an unacceptable risk of neglect, abuse and harm, the former must give way to the latter.

2. The optimal relationships for this child with his parents is achieved by ensuring the parents deal with him in a safe setting and with a frequency which does not deny him the chance to settle into a new home and family.  This cannot be provided in a setting which has the child spending significant and substantial time with either parent.  As to the ultimate issue, simply put, the child has lived too dysfunctional a life for the Court to contemplate taking any step in which there is any risk of further exposure to drugs, violence or abuse.  He must be given the chance to recover from his past neglectful parenting which, if it is to occur, can only be provided in a healthy family environment. This environment is not available to him in his father’s care.  I am conscious such an outcome will seriously impede the child’s ability to maintain relationships with other family members who love him as well as half siblings who come into the picture.  This is the awful reality of his care having been so compromised within his family of origin.  Such contact as the child will have with these family members will be insufficient for these relationships to have any real meaning to the child.  This is a weighty consideration but must in this case give way to the importance the child is safe and has an opportunity for healthy and appropriate role models to guide his future.  

3. Safety considerations and maximising future family stability drives the structure for the child’s time with his parents.  While the child has enjoyed his visits with his parents, the time has come for these to be reduced as he transitions and settles into long term foster care.  I accept this may cause a degree of him being unsettled for a time, but this will pass as he forms a new and healthy attachment to his foster carers.  The Independent Children’s Lawyer proposed the child see each of his parents every two months, which was slightly more than proposed by DoHS.  As a long term arrangement it was considerably less than was proposed by the parents.  The gravamen of the submission made by the Independent Children’s Lawyer was that because of the possibility a foster care arrangement may fail, it was desirable to maintain a somewhat closer relationship between the child and his parents.  Thus if the foster care arrangement failed, it would be easier for the child to return to one or other of his parents.  As a matter of logic this must be so. However and notwithstanding the risk referred too, it is my view that it is even more important to maximise the chances for the child to settle and attach with new foster parents.  Although it is a fine distinction, visits with the parents as often as sought by the Independent Children’s Lawyer would tend to undermine rather than achieve that outcome. 

4. The Minister will have parental responsibility for the child  Because of the possibility at some stage the child’s foster placement may break down, the Minister will be required to ensure the parents are informed of any change to the child’s foster care arrangements.

5. There will be injunctions which will enable any visits between the child and parents to be suspended if, for example, a parent appears to be drug affected.

6. For these reasons, I am satisfied that the orders identified at the start of this judgment are in the child’s best interests.

I certify that the preceding one hundred and eighty (180) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan

Associate: 

Date:  9 September 2010