Stonelake and Verboom and Anor
[2014] FamCA 434
•20 June 2014
FAMILY COURT OF AUSTRALIA
| STONELAKE & VERBOOM AND ANOR | [2014] FamCA 434 |
| FAMILY LAW – CHILDREN – Best interests – with whom the child shall live and spend time – sexual abuse allegations made against the father’s older son – where the mother is assessed to have a mild to moderate intellectual disability – the mother does not have the parenting capacity to care for the child without assistance – where the mother has been assisted by her foster mother to care for the child – child has meaningful relationships with both parents – where the father is the child’s primary attachment figure and has been the most consistent carer for the child - no risk of harm including sexual harm by the father’s older son found in the father’s household - there is a risk of psychological harm to the child by the mother’s foster mother – child to live with the father – child to spend time with the mother |
FAMILY LAW – CHILDREN – Parental responsibility – presumption of equal shared parental responsibility rebutted – mother has an impaired parenting capacity, particularly in relation to making independent decisions – mother’s closest support person is her foster mother who is not an appropriate person to be involved in the decision making for the child – mother and father have a high conflict relationship – father to have sole parental responsibility for the child
| Family Law Act 1975 (Cth) ss 60CC, 64B |
| APPLICANT: | Ms I Stonelake |
| RESPONDENT: | Mr Z Verboom |
| INTERVENER: | Secretary, Department of Family & Community Services |
INDEPENDENT CHILDREN’S LAWYER: | Legal Aid New South Wales |
| FILE NUMBER: | NCC | 1634 | of | 2010 |
| DATE DELIVERED: | 20 June 2014 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Cleary J |
| HEARING DATES: | 25, 26, 27 November 2013; 28, 29, 30 April and 1, 2, 5 and 14 May 2014. |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Burns |
| SOLICITOR FOR THE APPLICANT: | Slater & Gordon |
| RESPONDENT: | In person |
| COUNSEL FOR THE INTERVENER: | Mr Moore |
| SOLICITOR FOR THE INTERVENER: | Crown Solicitor’s Office |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms O’Rourke |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid New South Wales (Mr Scally) |
Orders
That the father has sole parental responsibility for the long term issues involving the child R born … 2009, (“the child”) including but not limited to education, health and religious instruction.
That in relation to any long term decisions to be taken for the child, the father shall (other than in an emergency):
(a)Advise the mother in writing of the issue requiring decision and his proposal and provided the mother responds with any different proposal within 28 days, the father shall take into account the response and proposal of the mother and promptly advise her in writing of his decision.
That the mother and the father shall each have parental responsibility for the day to day care of the child when she is in that parent’s care.
The child shall live with the father.
The child shall spend time with the mother as follows:
(a)Commencing the next weekend, until the end of the current school term, each alternate weekend from 5.00 pm Friday to 5.00 pm Sunday; and thereafter;
(b)Commencing the next school term, during school terms, commencing the first weekend after the start of each new school term, each alternate weekend from 5.00 pm Friday to 5.00 pm Sunday;
(c)During school holidays at the end of school terms 1, 2 and 3, from 5.00 pm the first Saturday of the school holidays to 5.00 pm the mid-Saturday of the school holidays;
(d)Until the child is eight years old, during school holidays at the end of school term 4:
(i)each alternate week from 5.00 pm on the first Saturday of the school holidays to 5.00 pm the second Saturday of the school holidays and from 5.00 pm the third Saturday of the school holidays to 5.00 pm the fourth Saturday of the school holidays and then in similar sequence to the end of the school holidays;
(e)After the child is eight years old, during Christmas school holidays at the end of school term 4:
(i)when the holiday begins in an even numbered year, from 5.00 pm on the first Saturday of the holiday period to 5.00 pm on the middle Saturday of that period;
(ii)when the holiday begins in an odd numbered year, from 5.00 pm on the middle Saturday until 5:00 pm on the last Saturday of that period.
(f)Notwithstanding the above orders, on the weekend of Mother’s Day, the child is to spend time with the mother from 5.00 pm Friday to 5.00 pm Sunday;
(g)Notwithstanding the above orders, on the weekend of Father’s Day, the child’s time with the mother is suspended;
(h)As otherwise agreed between the mother and father, in writing, from time to time.
The child’s time with the mother is to be implemented as follows unless otherwise agreed:
(a)From the commencement of school in term 3 2014, the nominee of the father (to be a member of the paternal family) is to deliver the child to a nominee of the mother (to be Mr A or a member of his family) at 5.00 pm on Friday and collect the child at 5.00 pm on Sunday;
(b)From the commencement of school in term 4 2014, the mother or her nominee shall collect the child from the home of the father at the commencement of each period of weekend contact and the father or his nominee shall collect the child from the home of the mother at 5.00 pm Sunday.
(c)For school holiday contact commencing in September 2014:
(i)The father or his nominee is to convey the child to the mother or her nominee at McDonalds Restaurant at Location B at Town C at the commencement of the child’s time with the mother and the mother or her nominee is to convey the child to the father or his nominee at McDonalds Restaurant at Location D at Town E at the conclusion of the child’s time with the mother.
(d)As otherwise agreed between the mother and father from time to time.
Each parent shall, when the child is living with/spending time with that parent, allow and assist the child to telephone the other parent at any reasonable time.
The father shall enrol the child at a school convenient to his home and the father shall provide to the child’s school:
(a) the name and contact details of the mother;
(b) a copy of these Orders.
The father shall within 14 days of the date of these Orders, advise the mother in writing of the name and contact details of the general medical practitioner for the child and advise that doctor of the name and contact details of the mother.
The father and the mother are thereafter restrained from taking the child to any other general medical practitioner except in the event of a medical emergency.
The father shall obtain a referral to a Paediatrician for a paediatric assessment for the child and ensure that the child attends on the nominated date.
(a)The father shall advise the mother in writing of the date of the assessment and the mother may attend if she wishes to do so.
(b)In any event the father shall provide the name and contact details of the mother to the Paediatrician and authorise him/her to provide copies of any report following the assessment.
(c)The father and the mother shall each act on any recommendation by the Paediatrician for referral treatment and therapy for the child.
The father and the mother are restrained from posting on social media or any internet site, material which is offensive or rudely critical about the other party and their children AND FURTHER shall immediately remove any current material of that kind.
The father and the mother are restrained from recording communications or other interactions between the two of them in the presence or hearing of the child AND FURTHER are restrained from doing so in the absence/beyond hearing OF the child UNLESS the non-recording parent has consented in advance to the recording.
The father and the mother must keep each other informed of their up-to-date addresses and telephone contact numbers.
The father and the mother must notify each other as soon as practicable (and no later than 4 hours) of any serious medical matter involving the child when the child is in the care of that parent.
The father and the mother are restrained from making contact with each other for any purpose other than compliance with these Orders and in relation to parental responsibility and parenting arrangements for the child.
The father and the mother are restrained from denigrating each other or members of each other’s family to, or in the presence or hearing of the child and from permitting other people to do so.
The father and the mother are restrained from discussing these proceedings (including the allegations made against the child’s sibling M) with, or in the presence or hearing of the child and from permitting other people to do so.
The mother is restrained from permitting the child to stay overnight in the home and/or care of Ms J Stonelake.
The solicitor for the Intervener shall provide a copy of these Orders and Reasons for Judgment to:
(a)Registrar of Births Deaths and Marriages; and
(b)Organisation F.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Stonelake & Verboom has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC1634 of 2010
| Ms I Stonelake |
Applicant
And
| Mr Z Verboom |
Respondent
And
| Secretary, Department Of Family And Community Services |
Intervener
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
These are competing applications for parenting orders in relation to one child, R born in 2009, (“the child”) aged five.
The applicant is the mother Ms I Stonelake, (“the mother”) aged 25.
The respondent is the father Mr Z Verboom, (“the father”) aged 36. The father represented himself throughout the hearing.
The Intervener is the Secretary of the Department of Family and Community Services (D-FACS).
The parents formed a relationship in 2008 when the mother was 19 and the father 30. The child was born the following year. They lived together intermittently but consistently maintained a relationship until June 2010 when they separated.
Post separation the child, by consent, lived with the father and spent time with the mother.
The mother has a new partner Mr A. Their relationship began late in 2011. She has a daughter from that relationship G, aged one. She is hoping to be able to live with Mr A full time if orders permit.
In mid-2010 the father formed a new relationship with Ms P and lived with her from about July 2010 for two years. Ms P was pregnant (with H) to another man when the relationship began. She also had three young children; L, N and O, from her prior marriage to Mr K.
The father has a son from a prior relationship M (16). M was also a member of the household.
In April 2012 allegations were raised by Mr K about sexual misconduct by M with N. Allegations were substantiated by the Joint Investigation Response Team (JIRT). The K family children were moved to live with their father.
In mid-2012 the father and Ms P reluctantly ended their relationship. The K family children returned to live with Ms P.
The applications
Each parent sought sole parental responsibility for the child and an order for primary residence. During the course of the proceedings both indicated a willingness to consider shared parental responsibility.
The mother proposes that time for the child and the father be supervised by the paternal grandmother Ms W Verboom. This relates to the allegation of sexual misconduct made about M by Mr K on behalf of his two oldest children who previously lived in the Verboom household.
The father proposes that time for the child and the mother be supervised and that she not be brought in contact with Ms J Stonelake. This relates to the father’s fear that Ms J Stonelake will take control of the child for her own reasons and that the mother will be unable to prevent her doing so.
The Intervener at first proposed that for a period of 12 months from date of final orders the child live with the mother “provided that she remains living with MS [J Stonelake].” During the course of these proceedings that proposed restriction was withdrawn.
Conduct of proceedings
On 19 December 2012 the mother filed an Application for Final and Interim Orders in this Court. She sought orders for the parents to have equal shared parental responsibility, for the child to live with her and spend time with the father, provided he did not bring the child into contact with his son M and for other reasons, with his new partner, Ms Q.
The mother also filed a Notice of Child Abuse and Family Violence raising her concern that the child may have been sexually abused in the father’s household.
On 30 January 2013 urgent interim orders were made as follows:
(1) Allocation into the Magellan Protocol.
(2) Independent representation for the child.
(3) Orders for preparation and distribution of Magellan Report concerning the allegations of the mother contained within the Form 4 Notice filed on 19 December 2012 and also the general circumstances affecting the child R born … 2009.
(4) Leave to the Independent Children’s Lawyer to issue extensive subpoenae.
(5) Hearing of the matter adjourned until 12 April 2013 at 10:00am before Justice Austin.
(6) Orders and directions.
On 14 March 2013 a Magellan report was provided noting that the child was not safe in the father’s home because M was living there.
On 2 April 2013 the father filed a Response seeking sole parental responsibility for the child and that the mother spend supervised time with the child.
On 12 April 2013 interim orders were made by consent for the mother and father to share parental responsibility for the child, for the child to live with the mother (provided she lives with Ms J Stonelake) and for the child to spend time with the father for five nights per fortnight (provided she doesn’t come into contact with M or Ms Q). The first family report was ordered.
On 7 May 2013 interviews took place for the first family report.
On 12 June 2013 directions for trial were made with the Court noting at that time that the father was unsure of the parenting orders he would seek and that he was not presently taking up the opportunity to spend time with the child provided for in the interim orders made two months previously. The hearing was set down for five days commencing on 25 November 2013.
On 16 July 2013 the Intervener filed a response proposing that the mother have sole parental responsibility for the child but that the mother and the child, and by inference G, live with Ms J Stonelake for 12 months before unrestricted residence occurred.
On 11 October 2013 the mother filed an Amended Application seeking sole parental responsibility, that the child live with her and that the father have set times with the child supervised by his mother or another suitable adult.
On 25 October 2013 the father filed an Amended Response that he have the sole parental responsibility for the child, that she live with him and have supervised time with the mother.
By 25 November 2013 when the final hearing began the parties were completely polarised, with the father concerned that his son had been unfairly accused of sexual misconduct with the two K family children and the mother focusing on the possibility of sexual abuse of the child in the father’s household.
On the first day of hearing the recorded JIRT interviews were played in Court.
On the second day the evidence commenced with the cross-examination of Ms J Stonelake.
It became apparent that there was a secondary issue concerning the capacity of the mother both as a parent and to give evidence in these proceedings. There was no proper basis for determining her capacity nor for the need for Ms J Stonelake to be involved as a carer for the mother and or the child.
Accordingly on 27 November 2013 all parties consented to an adjournment of the hearing, an Assessment of the mother to be undertaken by a Clinical Psychologist, followed by an updating report by the Family Consultant. The mother was requested to release any relevant information that was held by Centrelink about her disability, education and health.
The paternal family foreshadowed applications to be joined as parties. Adjustments were made to the current interim orders noting that the mother stays at the home of her partner three to four nights per week and altering the nights that the child spent with her father each fortnight. Provisions were also added for when the child commenced school, for the father’s time with her to decrease to three nights per fortnight.
On 3 December 2013 the mother attended on consultant Clinical Psychologist Dr R for an assessment of her intellectual and developmental level of functioning and her capacity to parent.
A report by Dr R was prepared dated 24 January 2014.
On 6 February 2014 that report was released to all parties.
On 11 March 2014 all parties and relevant others were interviewed by the Family Consultant Ms S for a second family report.
On 17 March 2014 that report was released to all parties.
On 20 March 2014 a response document was filed by the paternal grandmother Ms W Verboom as second respondent.
On 17 April 2014 the paternal grandmother filed a Notice of Discontinuance thereby withdrawing as a party.
The hearing resumed on 28 April 2014 and concluded on 5 May 2014.
On 5 May 2014 the Order requiring the mother to live in the home of Ms J Stonelake was suspended pending delivery of reserved judgment.
On 14 May 2014 the matter was relisted by the Court. Orders were made for inspection and copying of documents from the file of this Court number … ([T & Stonelake]).[1] This file relates to the dispute between Ms J Stonelake and Ms T in 1989 over custody of the mother in both the Local Court and the Sydney Registry of this Court.
[1]Exhibit 45
On 27 May 2014 an order from the Local Court in 1990 was produced to the Intervener by Ms J Stonelake and forwarded to this Court.
Subsequently the Registrar of the Local Court provided a second file in relation to the custody dispute between Ms J Stonelake and Ms T. Leave was granted to all parties for inspection of that file.[2]
[2]Exhibit 51
Issues identified for determination
The issues identified for determination were:
· Is there an unacceptable risk to the child in the household of either parent?
· Does each parent have the capacity to meet the child’s long term and day to day needs?
Allegations of sexual abuse
On 15 April 2012 there was a report to D-FACS through the Helpline that a child in the father’s household, N aged five, was at risk of sexual harm or injury from the father’s son M, then aged 13.
The JIRT team immediately investigated the allegations. Later there was an allegation in respect of a second child L, then aged six.
Records of interview by video and written transcript were brought into existence in April 2012 in respect of both children.[3] M was also interviewed.[4]
[3]Exhibits 5 & 6
[4]Exhibit 7
The allegations in regard to N were substantiated by JIRT. Those made by L were not substantiated nor were they regarded as corroborative of the allegations about N.
As a result the three K family children were removed into the care of their own father Mr K. After the father and Ms P ended their relationship the K family children were returned to Ms P.
In November 2012 the mother was notified by D-FACS that the father’s son M, by then 14, had been investigated and allegations had been substantiated in relation to N.
In November 2013 Ms J Stonelake made her second complaint that the child may have been sexually abused by her brother M. The complaint was screened out but the child was examined and interviewed informally by a D- FACS officer.
The evidence
The documents relied upon were as follows:
Mother
a)Amended Initiating Application of mother filed 14/02/2014;
b)Affidavits (2) of Mother filed 18/10/2013 and 28/03/2014;
c)Affidavit of Ms J Stonelake filed 09/10/2013;
d)Affidavit of Mr A filed 26/11/2013;
Father
e)Amended Response filed 25/10/2013;
f)Affidavits of father filed 25/10/2013 and 22/04/2014;
g)Affidavits of paternal grandmother Ms W Verboom filed 14/02/2014 and 27/03/2014;
h)Affidavit of paternal grandfather Mr U Verboom filed 02/04/2013;
i)Affidavit of paternal aunt Ms V Verboom filed 02/04/2013;
j)Affidavit of Ms X filed 08/04/2013;
Intervener
k)Response of the Intervener filed30/04/2014;
l)Proof of Evidence of Ms Y Brighter Futures Case Worker, Exhibit 37;
m)Affidavit of Ms BB Child Protection Case Worked filed 02/10/2013;
n)Affidavits of Ms CC, Child Protection Case Worker filed 03/10/2013 and 28/03/2014;
o)Magellan Report dated 14/03/2013;
Family Consultant
p)Family Reports of Ms S, Family Consultant dated 09/05/2013 and 17/03/20142 (with reference back to family report of Mr DD Family Consultant dated 01/02/2011).
Parties and witnesses
Ms J Stonelake, self-described foster mother and carer to the mother
Ms J Stonelake took the mother into her care when she was a few days old and raised her. There is no biological relationship between them.
The biological mother of the mother is Ms T.
Ms J Stonelake has raised more than one girl who is not her own child. At least one other girl EE, whose mother is said to have died, was probably an unauthorised foster child of Ms J Stonelake.
History of mother coming into care of Ms J Stonelake
Ms J Stonelake stated that there was an order from the Local Court giving her parenting responsibility for the mother when the mother was about 15 to 18 months of age. Ms J Stonelake said that “DOCS didn’t turn up at the Court. The Judge gave me custody to age 18.” She was unable to produce any Court order at that time. Several weeks after the hearing she produced an order.
After the hearing concluded, evidence emerged that proceedings were commenced in the Local Court by the biological mother in September 1989. The application was for the return of her child to her by Ms J Stonelake. The proceedings were contested by Ms J Stonelake. D-FACS was not involved.
On 3 October 1989 the application and response were transferred to this Court with a notation, “Arrangements made for return of child”.
On 28 November 1989 Ms T made application for a restraining order against Ms J Stonelake. There were supporting affidavits. Ms J Stonelake then applied for a restraining order against Ms T.
On 15 December 1989 an interim order was made restraining Ms T and Ms J Stonelake from harassing/assaulting each other. The Judge hearing the matter identified two alleged death threats made by Ms J Stonelake to the mother through a third party.[5]
There is an affidavit by one [Ms FF] who suggests that the respondent (Ms [J Stonelake]) spoke to her by telephone on 29 November 1989. The words were:
Tell [Ms T] (the biological mother) she is going to be dead and I won’t be the one to do it;
AND
Tell [Ms T] she is going to be dead and if she ever steps out of the house she will be dead.
[5]Reasons for Judgment of Justice Kay dated 15/12/1989
The applications were adjourned to 9 January 1990. There were no subsequent orders made in the Family Court. Perhaps there were on appearances on the adjourned date. I do not know.
On 30 January 1990 Ms J Stonelake made an application to the Local Court. The application of Ms J Stonelake was for joint guardianship for herself and Ms T, with custody to herself.
Another file was opened in the Local Court despite the transfer of the earlier file to the Family Court at Sydney. It is not obvious on the face of the file why that happened. The documents filed by Ms T, very much at odds with the documents filed by Ms J Stonelake, were not part of the new file at the Local Court. They remained in Sydney.
On 6 February 1990 an interim order for custody of the mother was made in favour of Ms J Stonelake.
On 29 May 1990 final custody was granted to Ms J Stonelake. I am unable to determine whether the mother was present at Court although she appears to have been represented.
On 23 March 1992 solicitors for Ms T wrote to the Court asking for a copy of orders on her behalf as she “did not have a copy of the orders”.
On 27 April 1992 Ms J Stonelake made another application to the Local Court, for guardianship of the mother to her alone. That application was served on Ms T. No outcome is recorded for that application.
On 23 June 1992 an order was made “By Consent. Reasonable Access to [the mother]” noted in the file as “for 2 hours each Saturday between 10am and 12 noon”.
The totality of that evidence strongly suggests that Ms T was threatened, intimidated and tactically excluded from participation in the litigation over the custody of the mother. The evidence is also entirely inconsistent with any lack of interest or effort by Ms T to keep her daughter in her care.
Evidence in these proceedings
Ms J Stonelake was a witness in the mother’s case but first in the witness box. Her evidence was dealt with first.
I was unwilling to have the mother cross-examined unless there was evidence of the nature and extent of her asserted intellectual disability and the reason for a disability pension for the mother and a carer’s pension for Ms J Stonelake. Accordingly Ms J Stonelake gave evidence and was cross-examined on two separate occasions, first in November 2013 on the issue of the disability and the need for a carer and again, more broadly, in April 2014.
Ms J Stonelake asserted that there had been numerous assessments over the years of the mother at school, of her health and by Centrelink for disability. Ms J Stonelake was unable to produce any supporting documents. In the records of D-FACS there was an assessment of the mother as a three year old.
It became clear that there was no evidentiary basis before the Court for the asserted disability of the mother which had given rise to the welfare payments to the mother and to Ms J Stonelake since the mother finished high school sometime in 2008. The mother had been assessed as eligible for disability benefits and Ms J Stonelake gave as the basis for her becoming a paid carer for the mother that “She (the mother) couldn’t do day to day chores for herself she just lied around.” The mother continues to receive the disability pension.
Ms J Stonelake is 62. Her stated occupation is Foster Carer.
When the hearing commenced she had had two young girls, GG aged 14 and HH aged 12 in her care for about three months, which was continuing when the hearing resumed in April 2014. Both girls are disabled. Ms J Stonelake is apparently a carer for foster children through Organisation F. She receives $690 per week for each child by way of carer’s allowance for a special needs child.
Ms J Stonelake was also receiving a pension of $700 per fortnight as a carer for the mother.
Ms J Stonelake referred to having a lot of involvement with D-FACS “through my fostering.”[6] There is no evidence to suggest that Ms J Stonelake is an accredited foster carer for D-FACS although she may have been. There is evidence that at least by 1992, Departmental Officers were extremely wary of her as a dangerous and manipulative person.[7]
[6]Affidavit of Ms J Stonelake filed 09/10/2013, par 21
[7]Exhibit 10
Ms J Stonelake received the carer’s pension until early 2014, despite the mother having lived with the father for significant periods between 2008 and June 2010 and later spending two to four days per week with her current partner Mr A, G and sometimes the child, in Mr A’s home.
Ms J Stonelake gave quite extraordinary evidence that since 2009 the mother had developed the capacity to care for the children really well, whereas previously she had functioned at the level of a 12 year old. The evidence, which I do not accept, was in my view convenient for Ms J Stonelake to justify ongoing payment despite the mother’s independent living arrangements.
From her own pension/parenting allowance the mother contributed to rent for Ms J Stonelake’s home at $170 per week irrespective of how often she was there. She also paid weekly board.
In 2014 after the receipt of Dr R’s report, Ms J Stonelake asserts that she arranged with Centrelink to cease receiving the carer’s allowance in respect of the mother. There was no independent evidence of this having happened.
Ms J Stonelake has had two partners; her husband Mr JJ Stonelake, who was either the father or step-father of her daughter Ms KK and later she partnered with Mr LL. There is apparently no current partner.
When the hearing began the household was said to consist of Ms J Stonelake, the mother, the child (four), G (seven months) GG, HH, and Ms LL (18). The house was obtained for rental through Organisation MM.
In her affidavit Ms J Stonelake referred to Ms LL as her daughter. This is a misrepresentation. In fact Ms LL is her grand-daughter, the child of her daughter Ms KK, fathered by Mr LL. This matter was revealed during oral evidence. The mother was unaware that her sister Ms LL was in fact her niece. There was no information as to why Ms LL was being raised by her grandmother rather than her mother, or what Ms LL had been told about her parentage. Ms J Stonelake was receiving a Centrelink payment for Ms LL.
I formed the impression that Ms J Stonelake was a formidable woman, who would do and say whatever it took to achieve what she wanted to achieve. An example of this is that she has always asserted her personal knowledge of Aboriginal heritage for the mother. However she was willing to go to D-FACS about the care of the child to say there was no evidence that the child was Aboriginal and in the absence of cultural considerations she was the best person to care for the child.
Ms J Stonelake said when those words were quoted to her “I might have said that, I was pretty hurt.” I take that to mean that Ms J Stonelake was angry with the parents for cutting her out of caring for the child so sought the assistance of D-FACS in the way she thought would be most effective. It was a vengeful act but motivated in my view by financial advantage for herself.
Ms J Stonelake lives in a five bedroom home in a suburb of Newcastle and in November 2013, had income of at least $2,500 per week in allowances and benefits in respect of those dependent on her. She has been away on several cruises and holidays to Queensland and most recently to Bali.
However she was clear to say that, “[The child] is [the mother’s] responsibility, not mine.” This was in the context of the child no longer being taken to speech therapy in the Stonelake household. “That ($21 contribution per session) doesn’t come out of my money”.
There are two things to be said about that attitude. First it is not consistent with being the loving grandmother that Ms J Stonelake represented herself to be, and secondly, it is not consistent with the facts. All of the mother’s income other than child support from the father was paid into a joint account in the names of the mother and Ms J Stonelake. Ms J Stonelake held blank withdrawal forms signed by the mother. In combination with her evidence, “[The mother] can’t cope with Centrelink and banks,” it was quite clear that the mother’s money became Ms J Stonelake’s money and should have been applied to the child’s speech therapy.
In 2014 Ms J Stonelaken filled in the enrolment form for the child to start school, including herself as a parent/carer omitting any reference to the father.[8]
[8]Exhibit 36
This was entirely inconsistent with her statement to the Family Consultant that she was stepping back to allow the mother to care for the child. It was consistent with having kept the child with her for the majority of time over the wishes of the mother.
At the same time Ms J Stonelake was complaining to Ms NN, the worker from Organisation OO, that it was not fair on the child to be going back and forward between the houses. Further that the child hadn’t bonded with her mother. This conduct was tactical and duplicitous. I am satisfied that Ms J Stonelake was doing all she could to keep the child with her.
After later hearing the evidence of the mother, I concluded that Ms J Stonelake has been an authority figure whom the mother has obeyed, feared and at times rebelled against. The mother in the witness box was quite obviously anxiously fearful of openly criticising Ms J Stonelake to any extent. She admitted to fear.
In a dispute with the father at a changeover, I am entirely satisfied that Ms J Stonelake told him that she would have him “bashed so bad.” The child was in the car nearby. It was a flash of impulsive anger.
In his submissions the father made this statement with which I agree:
Ms [J Stonelake] has a distorted view of a Carer. She doesn’t care. She manipulates vulnerable people and steals their children.
Ms I Stonelake, applicant mother
The mother is twenty five. She has now been assessed as having a mild to moderate intellectual disability. She has had a deprived and confusing life. She was raised by Ms J Stonelake, described in various documents as her foster mother. It was an unofficial and unsupervised fostering; worse, it was cold and abusive.
The mother has a hostile relationship with her biological mother conducted now through social media. The mother is hurt and upset that her mother does not show an interest in her welfare, visit her or keep in touch. She was not aware of her mother’s efforts to keep her. She would also like to know who her biological father is and whether she is Aboriginal through him or any member of her maternal family.
There is evidence of repeated attempts by the biological mother to have the mother returned to her and later to develop a relationship with her. An assessment of the mother at pre-school age refers to the mother having lived with her natural mother between the age of six and nine months, “before returning permanently to the [Stonelakes].” That is consistent with the Local Court order for return in October 1989.
There is an unexplored story of pressure brought to bear by Ms J Stonelake on the biological mother (Ms T) to stay away from the mother.
Ms T married after giving birth to the mother and had two more children, now in their early twenties. In 1992 reports were made to DOCS by Ms T (by then married), that Ms J Stonelake was harassing her about taking over the care of her new baby (IJ). Ms T, who has a mild intellectual disability, was anxious. The report of the District Officer confirms that the anxiety was justified in relation to threats by Ms J Stonelake and her husband. The baby in question was assessed to be healthy and well cared for.
A glimpse of the mother’s childhood was provided through such evidence as abusive and scornful insults being directed at her,[9] being left alone locked out of most of the house on more than one occasion, once at age 12 with $10, while Ms J Stonelake went on a holiday to Queensland,[10] paying board for the use of the garage and being evicted when she was 18. She was reclaimed when the child was born.
[9]‘Pinocchio’, ‘Dumbo’, ‘Birdshit’
[10]Exhibit 31
Aspects of the identity of the mother and the conduct and influence of Ms J Stonelake in that regard are a relevant consideration to parenting orders for the child in whom Ms J Stonelake has had a powerful possessive interest.
The name of the Mother
The mother was born in mid-March1989 to Ms T. Within days of her birth the mother came into the care of Ms J Stonelake and her then husband Mr JJ Stonelake.
There is now clear evidence that the birth mother Ms T did not give up her child (the mother) willingly or intentionally. Ms T was living in a caravan in the backyard of Ms J Stonelake’s home, whilst pregnant. She returned from hospital to that house with the baby, but left for Queensland without her.
In mid-April 1989 the Registrar of Births Deaths and Marriages registered in a Birth Certificate the name of the mother as the mother’s given names and MS T’s SURNAME. This was as a result of details in a Form of Information of Birth signed by the mother Ms T and witnessed by “[Ms J Stonelake]” on 24 March 1989. I note that the birth Certificate in the Local Court file was cut off above this entry.
Inexplicably a second birth certificate was generated by the Registrar, dated on the same day in April 1989 in the name of the mother’s given names and the surname STONELAKE.
The first birth certificate was produced in response to a subpoena to the Registry of Births Deaths and Marriages. A letter from the research co-ordinator of the Registry originally advised that the Registry was unable to produce the first birth certificate:[11]
As the certificate has been cancelled and super seceded (sic) by the birth certificate showing [the mother’s given names and the surname Stonelake] registration number 1989/… as surname was changed in 1990.
[11]Exhibit 33
Subsequently both birth certificates were in fact produced. There was no information produced explaining the basis for the change of surname.
In her oral evidence Ms J Stonelake said she rang the biological mother and “asked about a change from [Ms T’s surname] to [Stonelake] for school.” It seems unlikely. The change of surname was effected the year after the mother was born not when she was approaching school age. Officers from the Department caused a search of files in Local Courts on the Central Coast without result.
Ultimately documents including the shortened Birth Certificate in the name of Ms T’s surname, were located in documents transferred from the Local Court to this Court in 1989.
I conclude that Ms J Stonelake contrived to change the surname of the mother to Stonelake for her own reasons.
Aboriginality
The child is being raised with the understanding that she is of Aboriginal descent through her mother. There is conflicting evidence on that topic.
There is no claim by the father of Aboriginality. He was told by the mother and accepted that the mother was aboriginal. The father has assumed Aboriginality for the child, “I have kept [the child] in touch with her Aboriginal heritage by…..”[12].
[12]Affidavit of father filed 25/10/2013, par 4
The mother states in her affidavit, “I am of Aboriginal descent” but with no further detail. She annexed a certificate of completion of a Parenting Course run by QQ Aboriginal Corporation. Her oral evidence revealed that she did not know, but would like to know, if she was Aboriginal. Her source of knowledge about the matter is Ms J Stonelake, who told her at different stages, both that she was and she was not Aboriginal.
Ms J Stonelake asserted in her affidavit, “[The mother] ...is of Aboriginal descent.”[13] In her oral evidence in November 2013, Ms J Stonelake asserted that Ms T’s late paternal grandfather Mr AB T was Aboriginal. She certainly told Ms CC (D-FACS Officer) that he was. She stepped back from that assertion in her later oral evidence in April 2014:
I don’t know. Can’t say he was. I honestly don’t know.
[13]Affidavit of Ms J Stonelake e-filed 09/10/2013, par 2
She sent a text message to the mother which included the words “gutless birdshit you’re not black, grow up”.
Ms X is the biological maternal grandmother of the mother. She was previously married to Mr T. They are the parents of Ms T. Ms X was previously a close friend of Ms J Stonelake; that is no longer the case.
Ms X filed an affidavit in support of the father in these proceedings. In it she states, “There is no Aboriginal descendant in my family.”[14] She made no explicit reference to the family of her late husband Mr T, or his family. “My family” may or may not have included her husband’s family. That was clarified in her oral evidence when Ms X said it did extend to her former husband’s family. Further she had made specific enquiries which confirmed her understanding.
[14]Affidavit of Ms X filed 08/04/2013, par 13
She says further that she was asked by Ms J Stonelake on 28 January 2013, to represent to the Legal Aid Commission that the mother was Aboriginal. She declined to do so, on the basis that such a representation was untrue. There was no challenge to this evidence and I accept that the improper request was made to her.
Ms CC, the day-to-day case worker for the child, makes the following relevant statements in her two affidavits:
First affidavit - 3 October 2013
The mother identifies as Aboriginal.[15]
[15]Affidavit of Ms CC filed 03/10/2013, par 9
Community Services first became aware of [the child] when an Aboriginal Health Worker referred the mother who was then pregnant with [the child] to Community Services.[16]
[16]Affidavit of Ms CC filed 03/10/2013, par 20
The parents were engaging… with …services… facilitated by aboriginal case worker [Ms TT]; arrangements were made for [the child] to attend an Aboriginal supported playgroup and pre-school.[17]
[17] Affidavit of Ms CC filed 03/10/2013, par 24
Second affidavit - 28 March 2014
[Mr T], who died approximately seven years ago, was Ms [X’s] husband and [the child’s] maternal great grandfather. I understand from the mother and Ms [J Stonelake] that the mother’s Aboriginal descent is through Mr [T].[18]
[I note that on her own evidence Ms CC has not ever had a face-to-face conversation with the mother alone. I infer that the information was given to Ms CC by Ms J Stonelake or the mother in the presence of Ms J Stonelake.]
Aboriginal health nurse’s visits to [G].[19]
[UU] Aboriginal Health Service at Newcastle – [G’s] allocated worker for immunisation.[20]
Dr [R] recommended Brighter Futures. [VV] ATSI, the Brighter Futures program tailored to Aboriginal and Torres Strait Islander clients, was contacted by the Department and accepted the referral.[21]
[18] Affidavit of Ms CC filed 28/03/2014, par 21
[19] Affidavit of Ms CC filed 24/03/2014, par 36
[20] Affidavit of Ms CC filed 24/03/2014, par 38
[21] Affidavit of Ms CC filed 24/03/2014, pars 43 to 46
Dr R in his report mentions the mother telling him that she has completed a Triple P Aboriginal parenting course and is currently attending aboriginal play groups with the child.[22] Dr R understandably assumed that the mother was Aboriginal based on what he had read and was told. He recommended further parental training courses particularly those courses tailored to families with Aboriginal heritage.[23]
[22] Report of Dr R dated 06/02/2014, par 24
[23] Report of Dr R dated 06/02/2014, par 43
There was no other evidence before me of the mother participating in any other cultural, social or sporting activities based around Aboriginality as a child, or as an adult. Ms J Stonelake stated that she received Abstudy for the mother at school. I am left with the inconsistent information given to the mother and to others by Ms J Stonelake about the Aboriginality of the mother.
At around eight years of age the mother asked her biological great grand-father Mr AB T, whether she was Aboriginal and she reports that he said “yes.” That may well have happened. However it is highly likely that Ms J Stonelake wanted the mother to believe that for her own purposes at the time and engineered the situation.
There is likewise no evidence about future intentions of the mother to learn more about her possible aboriginality. I accept that she would like certainty on the topic but may not be able to achieve that. Her natural mother could let her know who her father was and whether he was Aboriginal but the relationship between them is not presently conducive to that. Other members of her biological family may be able to provide information.
On that basis I conclude two things; that it is unlikely that the mother is Aboriginal although she may be. Learning about Aboriginal culture and heritage may continue for the child if she lives with her mother. Unless the mother receives positive confirmation of Aboriginality it is unlikely that she will be in connection with Aboriginal culture.
Intellectual function of the mother
In the first affidavit of the mother, she makes reference to having a mild intellectual disability. The mother says of herself: “I’m just a little bit slow with learning new things”.[24]
[24]Affidavit of mother filed 18/10/2013, par 1
The mother grew up in the Stonelake household and went to Year 12 at high school in 2008. She did not sit for the high school certificate, perhaps because of her pregnancy with the child.
There is evidence that Ms J Stonelake arranged for a developmental assessment of the mother aged three and a half years”
… because she was concerned that [the mother’s] speech was delayed. [The mother’s] natural mother and her mother’s siblings are intellectually handicapped.
The ultimate opinion from the assessment was as follows:
[The mother] is currently functioning at a mental age between two and a half and three years (that is between six and 12 months younger than her chronological age).
Assessment indicates that she has a general intellectual ability in the low average range. Her skills are widely scattered. [The mother] would benefit from early intervention services.[25]
[25]Exhibit 8
The mother was assessed again at Town WW when she finished school and was granted a disability pension.
Mother’s relationship with father
The mother expressed a negative view of the father blaming him for the present hostility in their relationship.
She did present as somewhat immature for her age. As recently as December 2013 she posted a poisonous string of accusations about the father on a site especially established for complaints of that type about former partners.[26] The worst aspect of that was a reference to M as a paedophile.
[26]Exhibit 20
When challenged about it, the mother expressed some shame and volunteered that she “shouldn’t have done it.” It was one example of the mother’s behaviour when she is upset and frustrated. She is impulsive when angry and a very regular user of social media. It is an explosive combination which requires addressing.
Both parents have sent enormous numbers of critical and provocative texts to each other. Neither of them has stepped back.
Mother’s relationship with Ms J Stonelake
Just before the mother saw Dr R she was told about Mr LL (former partner of Ms J Stonelake) and Ms KK (daughter of Ms J Stonelake) being the parents of Ms LL. The mother had believed that Ms LL was Ms J Stonelake’s own daughter.
Under sensitive cross-examination by Ms O’Rourke for the Independent Children’s Lawyer, the mother conceded that Mr LL had treated her badly. She also conceded that she told Dr R something quite different about Mr LL, “He was ok…nice to me and Ms and [Ms LL]”.
Her reason for giving the wrong information was that she felt “nervous and scared.” I accept that she did and feared an adverse outcome for herself and the child. She was crying in the witness box and appeared frightened. However I think she also feared saying anything which would displease Ms J Stonelake. This was made clear during questioning over the struggle for care of the child, soon after her birth. The mother agreed that Ms J Stonelake had tried to convince her to give up the baby to her.
However when the questions turned to the AVO which the parties together sought against Ms J Stonelake the mother reached the limit of her courage:
That was [the father’s] idea.
[The father] said I couldn’t talk to her.
Later when cross examined by the father the mother stepped back entirely from responsibility for getting the child back:
Q: We fought really hard to get [the child] back.
A: You did.
Q: You didn’t fight?
A:You were corrupting me. You were drumming things into my head.
Q: That Ms [J Stonelake] wasn’t a nice person?
A: Yes.
Q: We went to the police for an AVO.
A: You were.
Q: You were too scared to get up and tell your story in Court.
A: No.
The evidence certainly supports both parents with the assistance of their Brighter Futures Worker, Ms Y, having indeed fought very hard and ultimately successfully to get the child back into their care.
The mother’s denial of involvement is a reflection in my view of her fear of Ms J Stonelake, rather than simple dishonesty. It accords with a passage of cross-examination where the mother was advised, probably for the first time, of all of the criticism that Ms J Stonelake had delivered to the Department directed at the mother. There followed this passage:
Q:Sometimes (she) Ms [J Stonelake] says wrong things about you to people in authority.
A: Yes.
Q: Will that likely go on?
A: Yes.
Q: Have you thought what to do about it?
A: No.
Q: Spoken to your mother (Ms [J Stonelake]) about it.
A: No.
Q: Why not?
A: Scared?
A: Yes.
Q: Scared of what?
A:That she (Ms [J Stonelake]) will back away from me and stop supporting me.
This ambivalence in the mother about Ms J Stonelake is a profound problem for her. Ms J Stonelake is the only consistent parent she has had, despite indifferent and sometimes cruel treatment; she is dependent on Ms J Stonelake and probably loves her. She is unable to risk criticising or even independent action for fear of swift reprisal to her detriment. In time, with the support of a stable partner, the mother may be able to establish some independence for herself. She has not reached that stage yet.
Dr R, Clinical Psychologist
Unsurprisingly Dr R agreed that he would be concerned if the Court concluded that Ms J Stonelake was manipulative in her behaviour towards both the mother and the child, especially as she is likely in his view, “to defer to anyone with authority.” That conclusion about deference came from a particular assessment of the mother where hypothetical vignettes were put to her, which involved problem solving. Approximately half the time the mother’s solution to a problem was to ask somebody that she trusted.
The report was a review of the mother only. Dr R did not see the child or the father. Dr R under the heading “Diagnosis” said this:[27]
At the time of the assessment Ms [I Stonelake] (the mother) presented with a number of features associated with mental health concerns, most notably difficulties in both short term and long term memory, as well as in communicative abilities, which presented as more immature than expected of her age.
[27]Report of Dr R dated 06/02/2014, p 9, par 37
The doctor went on to say that in combination with the results of his neurological testing there was sufficient material to meet the diagnostic criteria for mild to moderate intellectual disability.
In relation to her psychological profile, Dr R assessed the mother as having a socially isolative personality, low self-esteem and dependency on others, which had developed as a result of early identified learning difficulties and subsequent separation from peers to attend special needs classes.
Under the heading ‘Opinion and Recommendations’, Dr R noted the significance of the mother’s willingness to attend courses to assist with her parenting, which in combination with his assessment and interview of her, led him to the conclusion that the mother demonstrated “genuine care and concern for the wellbeing of her children and their cultural heritage.” He referred to a sense of dependence on Ms J Stonelake and also her current partner’s mother in the way that many young mothers are dependent on grandparents.
The doctor concluded that there did not appear to be an elevated risk of harm from the mother to her children. The doctor also expressed the view that if the mother’s level of independence and capacity to parent continued, it would likely no longer be necessary for her to have a carer; namely Ms J Stonelake. However Dr R was clear to say that although it was his view that the mother had the capacity to care for herself as well as her children, it was
.. on the proviso that she maintain existing family support structure and continued to attend further programs to develop her parenting abilities.[28]
[28]Report of Dr R dated 06/02/2014, p 11, par 42
Recommendations were then made about the kind of programs that would be appropriate. Dr R was able to be present when the mother was giving part of her evidence and his recommendations did not alter “in a material way”.
In his oral evidence during cross-examination, the doctor explained that the mother operated between the lowest one to five per cent of aged matched adults and specifically that she functioned in the upper level of the mild intellectual disability in his view. However in a conservative approach, he estimated her as falling within the mild to moderate range of disability. The IQ range for moderate disability is 55 to 40 for the mild range; 70 to 55.
The doctor explained that the extreme end of the range are people who are effectively untestable and therefore outside the range. So the assessment of the mother in the lowest range of one to five per cent of matched adults is a reference to the intellectually testable population.
Mr A, the mother’s partner
Mr A is the mother’s partner. He is 30 years of age and a tradesman by occupation. Although he had been in a relationship with the mother for two years by November 2013, no affidavit by him had been filed until it was required by the Court. The likely reason for this is that the mother and Ms J Stonelake wished to conceal the reality of the mother’s living arrangements from the Court.
The mother and Mr A had been spending a good deal of their time together in Mr A’s house and really regarded themselves as living together. Court Orders required the mother to live with Ms J Stonelake.
Mr A has one child, G (aged one), born of his relationship with the mother. He moved from his previous residence in Town YY to a house in the same street as Ms J Stonelake. His motivation for doing so was to make life easier for the mother and the child.
I formed the impression that Mr A was an honest and straight forward witness, committed to the mother, devoted to his daughter G and genuinely fond of the child.
In his oral evidence Mr A stated that the mother usually spent three to four nights a week with him and that the child had sometimes come with her. His best estimate was that the child stayed with Ms J Stonelake two nights per week by herself and also when the mother was in Ms J Stonelake’s house for three to four nights per week. I accept the evidence of Mr A about that, which indicates that the child was living mostly in the home of Ms J Stonelake and spending some time with her mother and Mr A, perhaps three days a week at most.
Mr A appears to be committed to the mother and is hopeful of living with her on a fulltime basis, once these proceedings have been concluded.
He learned about the sexual abuse allegations in relation to M and N in November 2012, when the mother and Ms J Stonelake were told of it by a Departmental Officer. He was asked whether he had seen anything (in relation to the child) which was a cause of concern. He responded that for about two months before, perhaps from about September 2012, the child used to “complain about a sore bum”. The mother was advised to take her to the doctor and the child stopped complaining about having a sore bum within a few weeks of seeing the doctor.
He also stated that when he went to do changeovers, the child would start screaming and kicking at the reference to her going back to her father’s home.
This evidence is not consistent with the mother’s evidence that she held concerns that the child may have been sexually assaulted in the father’s household and that in February 2012; the child had complained to her “my bum and wee wee hurt.”[29] Clearly the mother only became concerned about the possibility of sexual assault after she was told in November 2012 of the substantiated allegation of sexual abuse in relation to M and N. Indeed, she said that she did not think that the father would hurt the child or anyone else in his household.
[29]Affidavit of mother filed 18/10/2013, par 12
Mr A had no other concerns about the child. He referred to the good relationship between his own mother and the mother and the child. Ms A calls in on the family through the week. I accept the evidence of Mr A that he had not known that the mother had “posted stuff” about M being a “paedophile” and I also accept his statement, “I would have had words with her to take it down”.
Mr A is amply providing funds for the care of his daughter G and would be a positive influence on the child in the mother’s household. He has not yet had the experience of the child being a fulltime member of his household, although I am confident that he would accept that situation and will step up to the role of step-father to the child irrespective of where she lives.
Mr A does the cooking of the evening meal and understands that the mother is not so proficient in that regard. He appears to understand and work around limitations of the mother; he cooks and she bathes the girls and puts them to bed. The relationship appears to be a positive and supportive one for the mother and their daughter.
Mr Verboom, respondent father
The father is aged 36. He is self-employed doing handyman work. He has made a deliberate choice to balance work and family life. He has two children; M now aged 16, born to the relationship between the father (then aged 20) and Ms CD. His other child is the child R, the subject child in these proceedings, now aged five.
The father presented as direct, candid, responsive to questions and willing to make appropriate concessions. I formed the impression that he is an intelligent and able man, perhaps under-educated for his ability. He attended a selective high school.
He lives in a property in Town AA, owned by his brother for which he pays rent. As a self-employed contractor he grosses approximately $23,000 to $25,000 per annum, giving him a net income of approximately $400 per week. This amount is adequate for the modest lifestyle he has chosen to live. One consequence is that he has been assessed for child support at $14 per fortnight, which he has paid irrespective of whether the child was living with him or not.
The father was quite strenuously cross-examined on the basis that he was not working to capacity in order to avoid his financial obligations. Although he conceded that he could have been employed fulltime and at a higher rate of pay, I accept that his choice to live and work the way he does, relates to a conscious decision with particular reference to the needs of both his children.
After the parents separated in June 2010, the child lived mainly with her father and spent time with her mother. Although orders were made, commencing in September 2010, they were by consent and the parents appear to have negotiated arrangements quite amicably.
The child continued to live with her father until late 2012, in April 2013 interim orders were made by consent that she live with her mother on condition that the mother lived with Ms J Stonelake. The consent to the orders was given by the father, not because he considered that the child’s best interests were served by living in that way, but as an acceptance of circumstances. Those circumstances were that in April 2012, D-FACS substantiated an allegation of sexual misconduct by M, then aged 13, in relation to N, then aged five.
In November 2012 case worker Ms CC told the mother and Ms J Stonelake of the substantiation made seven months previously. There was then a reaction by the mother and Ms J Stonelake to that news, which included a medical examination of the child and an application for a change of residence away from the father’s home. The case was included into the Magellan protocol of this Court. The only suggestion that the child was at risk in the father’s household came from a complaint to the Helpline in November 2012. I am satisfied that that complaint, which was made by Ms J Stonelake was a malicious complaint made in a manipulative way to justify an application for the child to live in Ms J Stonelake’s household.
These events were such that the father understood that there was no purpose to opposing a change of residence, until the whole matter could be thoroughly investigated. The child began to live with the mother and Ms J Stonelake in late 2012 after the application was filed and the father had no contact with the child until April 2013.
Accordingly up until late 2012, the child had been used to having her day to day care provided mostly by her father, with significant contribution by her mother. There was a period of about two months soon after her birth, when she was exclusively in the care of Ms J Stonelake. Both parents made strenuous efforts to recover the child into their care, which was successful.
The father quickly formed a new relationship after the end of his relationship with the mother. Ms P and her three children moved in with him in mid-2010. His son M had just turned 12 and the child was about 15 months old. Ms P had three children, the eldest of whom was five (L) and she was pregnant with another child.
Despite the size of the household, the relationship is described by the father as “eight happy people together” and this continued to be the case until April 2012. As a result of the allegation and substantiation of misconduct of M, the household broke up. To his lasting regret the father ended his relationship with Ms P. His household continued as himself, M and the child. He had made arrangements as directed to ensure that M and the child were not alone together unsupervised and entered into a safety plan in November 2012 to that effect.[30]
[30] Affidavit of Ms CC filed 03/10/2013 par 40
Unfortunately in November 2012, the impact of the news of those events on the relationship between himself and the mother was immediate and destructive. I accept that the mother was genuinely worried. I also consider that she was led by Ms J Stonelake into stated belief that the child was at risk in the father’s home. The two parents became immensely angry with each other, hurling insults and antagonising in a way identified by the family consultant in this matter as destructive for the child.
In March 2014, when asked whether she had any worries she needed to discuss, the child said this:
Yes, I am worried about my mum and I am worried about my dad. When asked what she was worried about she said, ‘that they will fight.’[31]
[The child] reported that her parents were fighting about her and that that made her feel ‘really sad.’ She was otherwise assessed to love both of her parents and to be happy in both their households.
[31]Family Report dated 17/03/2014, par 87
The father agreed with the proposition put to him that the child had seen horrible encounters between her parents and that it had hurt the child to see such aggressive and disrespectful events. He also conceded that it would be much better for the child if her parents could be polite and respectful to each other.
The father volunteered that the text messages that he had sent the mother had been immature. They were. He has a greater intellectual ability than the mother and can choose to antagonise her. The mother when frustrated through an inability to express her feelings or take control of situations; lashes out verbally and electronically.
However it has to be said that both the father and the mother were affected by the looming litigation sparked by the allegations of sexual misconduct by M. The mother was shocked that the child might be at risk in the father’s household and perhaps feeling guilty for not having protected her. The father was shocked that his son M could be considered “guilty until proven innocent” for behaviour which he was certain had not taken place. It is extremely unfortunate that the parents took their feelings out on each other, but somewhat explicable in context.
In February 2013, there was an incident at the child’s school; the first and only time that changeover was affected there. The behaviour of both parents is a good example of their behaviour at this time. The mother had let the father know that she would likely be late. The father, mistrustful, believed that the child would not be delivered to him. He electronically recorded their encounter. The mother tried to give him a doctor’s certificate which he would not accept. The child was present, although no other children were.
The father described his relationship with the mother at that point as being “at rock bottom.” I agree. I also accept the father’s position that it would be better for the parents to have no contact with each other at all; which would obviate the child seeing any more arguments, to that end, he had begun arranging for his mother to attend changeovers, which was an improvement for the child.
The father proved to be quite insightful about his daughter, the child R. He agreed that the child’s perception that he did not like her Nan (Ms J Stonelake) was true, but that it was psychologically harmful for the child to know that. He agreed that it could be harmful to cut off the relationship between the child and Ms J Stonelake, but was very clear to say that he did not consider it would be as harmful as continuing it. This is a significant matter in the case. The child does apparently have a close and affectionate relationship with Ms J Stonelake, who she regards as her grandmother (Nan). Ms J Stonelake is not abusive towards the child. However the father’s view that there is risk in the relationship is also true.
Ms J Stonelake is a manipulative person, who has controlled the mother in a way that has been a disadvantage for her throughout her life. Ms J Stonelake wanted the child in her care, even before the child was born. I have found that Ms J Stonelake will say what it takes to get what she wants. There has been disruption in the child’s life, at least since late 2012 when there was a change of residence for her. To cut her off entirely from Ms J Stonelake would be something she would experience as a loss. It is a matter I have taken into account in determining where the child should live.
Abuse allegations
The father agreed that he had needed to find a way to protect both of his children, M and the child R. In my view he has put an immense amount of effort in doing just that.
The father does not believe there has been any sexual misconduct by his son with any of the K family children, the children of his former partner. He stated that having seen the videos (JIRT interviews), he was confirmed in this view. When pressed about the possibility of M having been sexually abusive, he said that it was a one in a million possibility. I take that to be that it is impossible to exclude without a shred of doubt the possibility of human misconduct, but that he was very, very confident about his son’s behaviour:
Q: There’s no need for protection (of [the child]) in [M’s] presence?
A: Correct.
The father conceded that he had learnt from an interview of M by an independent psychologist (arranged by him), that whilst M was living in the caravan he had bought for him in the backyard; that he had been viewing pornography. He did not think that it was a good thing that he had been doing that and further the father conceded that in retrospect, it had not been a good idea to put him in the caravan and that also in retrospect it had been a deficient parenting decision; although M had been nearly 13 when the caravan was purchased and installed.
In my view the caravan was a mistake. It may have been that the caravan was obtained for M as an acknowledgement that he was much older than the other five children in the household (all five years and under), or it may have simply been a reaction to the pressure of limited space within the house, but it left M rather isolated and perhaps lonely.
The father was asked whether he had read the transcript of the interviews by JIRT with N, L and M. I accept that he had and he was present in Court when those interviews were played. He expressed the view that N had been led into making allegations and I agree with that perspective. He also said that the allegations had come from Mr K and were false and fabricated. In my view, that is a possibility.
The father was also asked about his opposition to the mother being informed about the allegations in November 2012. He took the view that it would be better for the child if the mother did not know, “I thought it would be detrimental to [the child’s] care”.
To the extent that the proposition was being put to the father that he was attempting to deny the child’s mother the opportunity to exercise parental responsibility, I do not consider that that was his motivation. The outcome for the child was an unpleasant one. She was medically examined and subsequently interviewed on the basis of possible abuse, aged four. At that time the parents had equal shared parental responsibility. It was necessary for the child’s mother to know what had occurred. In retrospect, the father would have done better to explain the situation to the mother himself. However his reaction to the JIRT proposal was, I am satisfied, child focused.
In April 2013 the child began spending time with her father again. Sadly the father took the child to be medically examined as protection against allegations that he feared might be made by Ms J Stonelake about the child in his household in relation to him or to M. That was the level of mistrust that had been reached between the parents and others by that time.
M
The father was asked about his son and agreed that he had had no contact with M between the ages of about two and a half to six and that he had been unaware of what was occurring in the home of M’s mother. He readily conceded that what had happened to M in those years was particularly difficult for him, and went on to accept responsibility for not having been involved.
I consider that the father does feel responsibility for the violent and disruptive childhood that M had in his mother’s household and further, that that experience informs to some extent, his willingness to participate in this litigation representing himself over nine days of hearing.
Mental health
The father had been asked what assistance he had sought for himself, the family consultant having referred to him appearing to be depressed and needing assistance.
The father said that he had friends from school, who were smart, some of whom were psychologists. One particular friend, a psychologist in England has been someone he has spoken to about difficult issues for more than a decade and that the father had spoken to him a lot more in recent times. The family consultant was clear to say that this was not the kind of assistance she thought the father should be seeking.[32]
[32]Family Report dated 09/05/2013, par 111
However there is nothing in the evidence to suggest that the father suffers from any mental illness. Ms S said about the father that it was important to recognise that “this is a father who loves both of his children and who is viewed by others including the mother and maternal grandmother as a good father.”[33] Ms S also referred to the father as “being run down and at the end of his tether”.
[33]Family Report dated 09/05/2013, par 107
The father had lost a relationship which he was happy with, (with Ms P) in 2012, his son M had had allegations of sexual misconduct substantiated by D-FACS, he had lost the care of his daughter, the child R and did not see her for a period of months, his grant of legal aid was withdrawn on the basis of recommendations in the family report and he was faced with representing himself in these proceedings. It seems probable that some or all of these factors were contributing to the observations of Ms S, that the father appeared to be struggling with his mental health.
In relation to the mother, the father said that he accepted that she would not harm the child intentionally and that although he had some concerns about outbursts of anger from her, it was not a huge concern. This was a reference to the mother having thrown mobile phones and smashed one; to having broken a cot of the child’s when she was a baby in anger and on the evidence of the paternal grandmother, having smashed glass panels in the front door of the house, also in anger. There is, in my view some grounds for concern and that the mother’s frustrations which erupt impulsively in anger from time to time, are a matter to be taken into account.
However the father’s real concern in relation to the child and her mother was that the mother’s judgment, or the ability to make the right decision under pressure, was not especially good:
I am not convinced that in a life death situation, [the mother] would make the right decision.
However the father conceded about the mother, as she had about him, that she was a loving parent with a loving and affectionate bond with her daughter. Quite insightfully the father reflected that his application and the mothers were at the extreme end of possibilities; including supervision of time with the child and that at that point he did not see how the Court would order supervision of either of them. The father however was unwavering about the importance of minimising the influence of Ms J Stonelake and so far as he is concerned, there would be no contact whatsoever between Ms J Stonelake and the child, whilst ever the child was in his care.
Relationships
The father has had relationships with more than one woman, who has been the victim of domestic violence, women with chaotic family lives. M’s mother Ms CD, Ms P and Ms Q, with whom the father had a brief relationship after Ms P, all fall into this category.
In the same way, the mother has had relationships with at least two men who have been violent towards her and a risk to children. Mr RR and Mr SS fall into this category.
Both parents need to be especially careful of future relationships, given the exposure of the child and M to disruption and traumatic events. Fortunately, the mother’s relationship with Mr A bodes well for a stable and affectionate bond for the child with her sister G and Mr A.
The father expressed his willingness to do a Parenting after Separation program and a Keeping in Contact program, especially after he had it explained to him by the Advocate for the Independent Children’s Lawyer, the nature of those programs and the likely benefit. The father said and I accept that he would be prepared to do the programs and put 100 per cent into doing any program that would strengthen relationships.
I note that the father said that since the child had been living with her mother, she had been happy to come to him and equally happy to return to her mother. This was a significant piece of evidence in itself and also by way of an appropriate concession by the father.
Also in this category was the father’s evidence that he would prefer the child to attend a particular school, School DE, within proximity of his house. However he went on to say that he knew that the mother preferred a public school and not a religious education for the child, and that in the event there was joint parental responsibility, he would simply accept that the child would be enrolled into the local school, Town AA Public School.
The father was quite positive about sharing parental responsibility, on the basis that he acknowledged the benefit of both parents having input. However he also agreed that on his evidence and the evidence of the mother, they presently could not agree on anything, nor could they be civil. He was hopeful that the Parenting after Separation course might assist in that regard.
However I consider it likely that it will be sometime before relationships between the mother and father improve, given all that has been said and done and on that basis, it would be preferable for one parent to have primary responsibility, with orders for consultation and reporting. It is the father who has the capacity to initiate and manage such an arrangement.
Ms W Verboom, the paternal grandmother
The paternal grandmother is a foster carer by occupation; she is 57 years of age.
The paternal grandmother presented as a thoughtful, balanced and warm individual. Her 12 year old foster child has been in her care for almost 10 years and lives with her fulltime, other than when he is in respite. The paternal grandmother is otherwise not in paid employment and has been fully involved in the life of the child, including having her to stay on many occasions. The child has her own bedroom in the home of her paternal grandmother.
The paternal grandmother assisted the parents together after the child was born. It is apparent there was a good relationship between the mother and the paternal grandmother.
The paternal grandmother confirmed that shortly after the child’s birth, the parents were actively trying to have the child placed back in their care, opposed by Ms J Stonelake in this regard. She raises concerns about the conduct of Ms J Stonelake when the child was a baby.
One of these concerns which the paternal grandmother was not cross-examined about was the shape of the child’s head. Apparently Ms J Stonelake had commented to the paternal grandmother that the baby (the child R) “likes to watch the football. How am I supposed to position her another way so that she can see the TV?” The observation of the paternal grandmother in April 2009, when the child was returned to the care of her parents, was that the child’s head had been asymmetrically flattened leading to a peak at the back of her head. She required physiotherapy for her neck muscles, to allow her to turn her head properly.
The advice that the parents received at the time from the child’s physiotherapist, was that the issues with the child’s head had been caused from the child lying in the same position for extended periods of time. The paternal grandmother notes that the child’s head is still visibly misshapen, although now covered by her hair.
During the course of her relationship with the father, the mother confided in the paternal grandmother as her mother-in-law. She spoke of being made to sleep on a mattress in the garage and abused with derogatory statements by Ms J Stonelake. Of relevance to these proceedings is the paternal grandmother’s reporting of the child saying to her in late 2012 and early 2014 that, “Nanny, naughty little girls get put in jail by the police.” She would respond with words to the effect, “That’s lucky because you’re a good little girl.” Eventually however after the comments had been made quite a few times, the paternal grandmother says she asked the child who told her that and the child said, “[Ms J Stonelake] said that when I was crying cause I miss my dad”. The period in question is when the child had been returned to the care of the mother in the home of Ms J Stonelake after the revelation of substantiated allegations in November 2012.
The paternal grandmother described observing during the relationship that the mother had on occasions, smashed glass and broken objects in the house and that she had explained why she had done that with the words “I got angry.” The paternal grandmother clearly has concerns about the ability of the mother to control her anger, but I also accept her assertion that she is fond of the mother and hopes to maintain a relationship with her, at least for the sake of the child.
Likewise, Ms NN on behalf of Ms J Stonelake, wrote to the child’s kindergarten telling the director that although fees were outstanding there, she should not be discontinued because “Ms [J Stonelake] was paying all [the child’s] costs and receiving no financial support.” This was simply not the case. Ms J Stonelake had access to all of the mother’s money in their joint account and regularly withdrew it.
On 18 December 2013, 12 months after the child had gone to live in the Stonelake household and three weeks after these proceedings had commenced in Court, Ms J Stonelake makes the further complaint about the child and M.
On 7 January 2014, Ms CC visited the child in Ms J Stonelake’s home to discuss the disclosures. She conducted an interview with the child on the spot, asking her if M had ever pulled down her pants and touched her wee wee. The child replied, “[M] pulled down my pants”.
In making the complaint Ms J Stonelake reported that the child had not seen M for about nine months. Nevertheless, the child was taken to a body chart and asked to identify the parts of her body and who touched them. The child did not identify M as a person who touched any of her body parts and identified the genital area as flower rather than “wee wee”. She identified that the last time she had seen M, her paternal grandmother had also been present. The paternal grandmother confirmed that the father was very particular about not bringing the child into contact with M. Ms CC conducted another safety assessment and concluded that the child was safe and that no further intervention was required.
On 8 January 2014 Ms CC telephoned the father and told him that D-FACS had received information that M had pulled the child’s pants down and touched her wee wee, but that there would be no further investigation of the alleged disclosures. The father said that he had ensured that the child had not seen M within the last 15 months and Ms CC confirmed that the paternal grandmother had confirmed the same thing. The father became angry and spoke in a rude and offensive manner to Ms CC, if what she has recorded in the final paragraph of her affidavit sworn in March 2014 is correct. It is likely that the father was not only shocked, but alarmed, that an allegation might be made about the child and M in circumstances where it was without doubt that the child had not seen her brother for more than a year. It is understandable.
Given that the informant was Ms J Stonelake, who had already been cross-examined in these proceedings to her detriment, the father’s concern is well founded.
Ms CC was asked whether she was aware that it was Ms J Stonelake who had filled in the child’s enrolment application for formal schooling, including her own details as the person with whom the child was living.[52] Ms CC agreed that it did sound as if Ms J Stonelake was taking the main role with the care of the child.
[52] Exhibit 36
Ms CC was warmly supportive of the mother on the basis of the progress she has made and that is understandable. However this evidence reveals that Ms J Stonelake has both controlled the flow of information to D-FACS and taken the lead role in caring for the child; the child having spent the majority of her days in the Stonelake household. The assessment that the mother is easily able to care for both girls with the assistance of Mr A, is undermined by the fact that she has not had the care of both girls for most of the time. The child has spent more of her time with Ms J Stonelake.
Ms S, Family Consultant
Ms S expressed in both of her reports, a strong view that the child live with her mother. In her first report[53] the recommendation was that:
· The child live with her mother at the home of the maternal grandmother (Ms J Stonelake); and
· that there be ongoing supervision of her progress by case workers through the mother engaging with Brighter Futures and maintaining her links with the Aboriginal community via those case workers;
· that the child spend time with the father under the supervision of his mother on alternate weekends, until such time as the father was functioning at a level where he was able to care for the child independently.
[53]Family report dated 09/05/2013
In relation to M, her proposal was that M spend time with the child in the home of the paternal grandmother, provided that that time was supervised.
In her second report[54] Ms S recommended that:
· The child live with her mother and that she have sole parental responsibility;
· that the paternal grandmother be permitted to arrange medical, dental and other specialist appointments for the child, on the proviso that she advises the mother of her intention to do so.
· that the child spend time with her paternal grandmother on the first weekend of every month and that the child spend the overnight time at the home of the paternal grandmother or the paternal aunt, and that she have unsupervised time during the day with her father, by arrangement with his mother.
[54]Family report dated 17/03/2014
The recommendation that the child spend time with M was repeated, provided there was supervision.
Ms S had had the opportunity to read the assessment of Dr R of the mother. I conclude that the reference to the paternal grandmother taking on responsibility for some of the long term issues was directed at Dr R’s strong proviso to the mother caring for her children, that is that she have the family support either of Ms J Stonelake or Mr A.
There was a considerable amount of evidence that Ms S was unaware of and could not have been expected to know. For instance, that the visits by Ms NN from Organisation OO, were all to the exclusion of the mother, other than for two; that Ms J Stonelake had filled in the enrolment form on the basis that the child was living with her; that she was caring for the child 50 per cent of the time and that the mother and Mr A were now living about five doors away from her home.
Ms S, it appears to me, based her recommendations on her view of the father, that he presently lacks capacity to care for the child and his inability to be protective, because of his belief that his son had not sexually abused N. She also took into account the substantiation by JIRT in April 2012. Quite properly, Ms S said she could not critique or comment on the interview, not having conducted it herself. However, it does appear to me that she accepted that substantiation by the Department meant that M had indeed sexually abused N and therefore represented a risk to the child.
I am most assisted by the observation by Ms S of the child in May 2013. When asked to create a picture of her family, the child placed her father in the centre of her page, with her mother on far left with Mr A beside her. The baby G was placed in the mother’s arms. The maternal grandmother was placed away from the father on the other side of the page, with the child holding the hand of her maternal grandmother (Ms J Stonelake). This is a matter of considerable significance.
The child had been separated from her father since December 2013 and had only begun to see him again fairly recently. Ms S notes that the father appears to have been the child’s primary carer for most of her life and she appears to have a good attachment to him. She placed him at the centre of her picture and everything else was built up around him.[55]
[55]Family Report dated 09/05/2013, pars 93-97
It is of significance that the child placed herself with Ms J Stonelake on the extreme edge of the paper, to that of her mother, Mr A and the baby. Her father was central to everything.
In the second interview the child expresses her concerns about her parent’s fighting. Ms S notes that the child’s angry behaviours upon her return to her mother’s care, as reported by the mother, are possibly indicative of the confusion and pain that she is feeling. She may also be missing her father, as they certainly do have a loving relationship with one another and the father is an important part of the child’s life.[56] This is an important observation by the Family Consultant.
[56]Family Report dated 17/03/2014, par 95
At this point in March 2013, the child had been at school for a couple of months. One result of that was that her time with her father reduced to alternate weekends. Interim orders were made after the hearing commenced in November 2013, providing for the father to spend five nights a fortnight with the child, reducing when she started school.
It seems likely that although the child is delighted with school and enjoys going there and making friends, she has been quite disrupted since November 2012 when she was first of all removed from her father’s care, effectively for the first time, did not see him for a period of four months, saw him sporadically between April and November, saw him five nights a fortnight for three months until she started school and was then reduced again to alternate weekends. It is hardly surprising that she revealed angry behaviours.
The law
The objects of the Act in relation to parenting Orders are to ensure that :
a) Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests
b) To protect children from physical and psychological harm
c) To ensure that children receive adequate and proper parenting to help them achieve their full potential
d) To ensure that parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a Court must have regard to the best interests of the child as the paramount consideration. The way a Court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3).
There is also a presumption when making a parenting order, that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.
In this case the presumption of equal shared responsibility is rebutted by the following evidence. The evidence of Dr R that the mother has a mild to moderate intellectually disability, with the implication that although she has the capacity to care for herself and one or more children, she can only do so with the support of family, the doctor nominating Ms J Stonelaken or Mr A.
For the reasons set out in the judgment, I do not consider that Ms J Stonelake is an appropriate support to the mother in the exercise of sole parental responsibility. It is quite inevitable that Ms J Stonelake would continue to take that responsibility upon herself and would determine how much time the child spent with her now and in the future.
The mother has the utmost difficulty dealing with authority, particularly where there is likely to be conflict. She has a lifetime of Ms J Stonelake speaking on her behalf, whether she agrees or not. Despite her recent gains in independence and confidence, she has not reached the point where she has separated herself as an independent adult from the authority of Ms J Stonelake. One example of the revelation of this is that during her cross-examination, the mother resiled from the fight that she and the father had together put up against Ms J Stonelake keeping the child, aged just a few days old. The mother insisted that she had not been a part of that exercise and that the father had “drummed ideas into her head” about Ms J Stonelake.
I am satisfied that the mother was frightened of making a strongly negative statement about Ms J Stonelake during her evidence. She is likely to withdraw and be frightened if Ms J Stonelake said and did the kind of things she has done in the past, in order to dominate and control the mother.
The other possibility for the family support which Dr R has identified as essential is Mr A. Mr A is a reliable hard working person, with a commitment to the mother. It may well be that their relationship flourishes and that he does prove to be a continuing source of support to the mother. However I cannot make orders made on possibility and hope. They have not yet lived together fulltime independently of Ms J Stonelake. They have not yet had the experience of having both children in their household under their responsibility together. Mr A appears to be genuinely concerned for the child and her welfare. The father assesses him to be a good person in the child’s life.
However whether the relationship will endure, particularly if there is a conflict of loyalty for the mother between Ms J Stonelake and Mr A, as there clearly was for the mother between Ms J Stonelake and the father; it is at least likely that the mother would revert to doing as she was told by Ms J Stonelake to the detriment of the child and indeed to G.
The father had an established history of providing well for the child, looking after her post-separation and ensuring that she attended kindergarten and enjoyable experiences such as book reading in groups and swimming. He had her assessed as to her speech and commenced with her speech therapy, which stopped for reasons unrelated to him. The commitment of the father, both to the child and to M, was very much on display throughout these proceedings and I am confident that he takes seriously the role of parental responsibility, which includes support for the relationship of a child with the other parent.
In this area too, given the evidence, I am more confident that the father will continue to support a relationship between the child and the mother, than I am that the child’s mother would support that relationship with the child’s father. At times when the mother becomes angry and frustrated, she says and does things which are quite immature and destructive.
In my view the best chance for the child is for her father to have parental responsibility, with provision for consultation and engagement with the mother. For that reason, the most appropriate course is for the father to have parental responsibility and an order has been made accordingly.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of the child.
Section 60CC(2)(a) – the benefit to the child of having a meaningful relationship with both of their parents
The child does have a meaningful relationship with both of her parents. She loves them and worries about them. She hates the fact that they fight with each other; she has been present when they have displayed intemperate anger.
There is no doubt that the child understands that both her parents love her and she wants to continue to be with both of them.
Section 60CC(2)(b) - the need to protect the child from physical or psychological harm from being subjected or exposed to abuse or family violence
The child has experienced psychological harm. Her relationships and even attachments have been disrupted on more than one occasion.
When she was a new born her bonding and attachment with her mother was disrupted by Ms J Stonelake’s unwillingness to allow the child to be with the mother for a period of two months.
On two occasions, in 2010 and again in 2011, the mother acknowledged along with the father, through consent orders made in the Federal Circuit Court, that the child should not be brought in contact with Ms J Stonelake. Ms J Stonelake’s evidence was that she was unaware of those orders. That may be the case and if it is, it would be because the mother hid that information from her. It is equally probable that Ms J Stonelake did know of those orders and simply disregarded them.
Ms J Stonelake is a manipulative person. She prevailed over Ms T in litigation relating to care of the mother as an infant. She has raised several children who are not hers for inexplicable reasons. She managed to have the mother’s surname changed. There is no evidence for the basis of the change before me. There is no evidence of a relevant Court order.[57]
[57]Exhibit 33
In 2012, when the child was living with her mother, she was subjected to an interview and a full medical examination on the basis of being the victim of sexual abuse, with only the flimsiest basis for such an allegation.
In April 2013, she was subjected to a further examination arranged by her father, arising from hostility and distrust which had developed between the parents.
The child is presently spending less time with her mother than her sister G does and the majority of time with Ms J Stonelake and the two foster children, GG and HH, who are under Ms J Stonelake’s authority.
The position of the mother, effectively supported by the Intervener, is that the child should be protected from exposure to abuse. The evidence relied on is the substantiation in April 2012 by the JIRT officer who conducted an interview with N and substantiated an allegation that N had been sexually abused by M. I do not consider that the evidence supports a finding of abuse, nor of unacceptable risk to the child in the father’s household on the basis of that evidence.
Additional considerations
The additional considerations are set out in s 60CC(3) of the Act. These are:
Section 60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The child is a five year old girl. She has no worries in either parent’s home. She expressed a wish to see her brother M. At five years of age, she has had the experience of living in each of her parent’s households and with Ms J Stonelake. She has moved and moved around quite often.
Her maturity at five and level of understanding means that she is not in a position to express a view about her immediate or long term arrangements.
Section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
The child has her most important relationship with her parents and given her history, particularly her father, who has been her most consistent carer all her life.
She enjoys a close relationship with Ms J Stonelake, who she regards as her “nan”. There is a risk to the child in this relationship, whilst ever Ms J Stonelake retains authority over the mother.
The child has close, enjoyable, loving relationships with her paternal grandmother, her paternal grandfather and her aunt. She has an emerging relationship with Mr A, her mother’s partner and a close, affectionate relationship with her baby sister G.
During the course of this hearing both parents began to express a willingness to facilitate and encourage a relationship between the child and the other parent. For many reasons they have both been unwilling to do that in the recent past. Post-separation the relationship settled down to the child spending time with both parents and there being reasonably good cooperation.
However after the allegations against M were made known to the mother and Ms J Stonelake in November 2012, relationships deteriorated very badly. The father lost confidence in D-FACS and began to doubt whether he could sustain a relationship with both the child and M, given the pressures that were operating on him.
The mother was shocked when told of the allegations and was encouraged to react with anger and hostility towards the father.
Section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The father lives on the Central Coast of New South Wales in Town AA. He has stability of accommodation and works sufficiently to meet the needs of himself, his son and the child. He has a licence (green P plates) and a motor vehicle.
The mother presently lives in a suburb of Newcastle. Since the conclusion of this hearing she has been able to live full time with Mr A and has presumably made that change. However her new household is in the same street as Ms J Stonelake. The mother does not drive, nor does Ms J Stonelake. Mr A apparently drives and has a motor vehicle. The parties are on the main northern train line and if all else fails, changeovers can occur by train without any significant difficulty or expense.
Section 60CC(3)(f) – the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
The father has the capacity to meet all of the child’s needs, including her emotional and intellectual needs. He will be in a position to assist her with her school work and to monitor her needs, particularly including speech therapy and her physical health.
The mother has an emerging capacity to meet most of the child’s needs. She has a mild to moderate intellectual disability, which causes her to be slower to learn new things. She lacks confidence and has difficulty dealing with authority. She has been used to Ms J Stonelake speaking on her behalf and has not developed the skills associated with resolving conflict or managing day to day life. She will have some difficulty assisting the child with her education as she progresses through school.
The mother becomes impulsively angry when frustrated. She lashes out in foul language.
Section 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander
The evidence does not support the child being an aboriginal child, although she may be. Her education is continuing to proceed on the basis that she is. Both parents have supported that. It is an important aspect of identity. In the event that the mother is able to find out from members of her biological family, especially her mother, the truth of her history and connection to aboriginal culture she will be able to explain those matters to the child.
Section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Both parents love the child. They were pleased to learn that the mother was pregnant and have been interested in her all her life. I conclude that the mother would like to have had more opportunity to care for the child, but that she was subject to the direction of Ms J Stonelake in that regard.
The parents united to insist on the child being returned to their care soon after her birth and were supported by Ms Y in that regard. Reports on their capacity as parents were positive and the child did well in the care of her parents, with the assistance of the paternal grandmother and to some extent Ms J Stonelake, until they separated in 2010 when the child was about 16 months old.
Thereafter the father took on the majority of the child’s care and she has developed reasonably well. Neither party gave complete priority to the child’s needs; each of them formed relationships which proved to be destructive and/or unsatisfactory on several occasions.
Because the mother is easily frightened and controlled, at least two of her boyfriends were violent, drug addicted and in one case, mentally ill men. Each parent needs to give absolute priority to the child’s safety and happiness above any future relationships.
The mother has relied heavily on Ms J Stonelake and that dependence has been encouraged. Effectively the mother has obeyed and complied. Ms J Stonelake has been her mother, and the mother fears losing that relationship.
When relationships have ended in the past the mother has turned to Ms J Stonelake. It seems probable that she would do so again in the event her current relationship ended.
The child has spent the majority of her time with Ms J Stonelake over the past two years at the latter’s insistence.
Although there is no physical risk to the child there is risk of psychological harm as a result of Ms J Stonelake’s propensity to sacrifice truth to self-interest.
Section 60CC(3)(j) – any family violence involving the child or a member of the child's family
The child has been exposed to some family violence. She has seen angry exchanges between her parents. She has been present when her mother has lost her temper and smashed window panes, a mobile phone and when she was an infant, her cot, although the child may not have been present on that occasion.
The parents have been verbally abusive to each other and the child is old enough now to be distressed by that and worried that it will continue.
Section 60CC(3)(k) – any family violence order that applies to the child or a member of the child's family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person
There is no current family violence order in respect of the child or any family member. There was an order obtained by the parents against Ms J Stonelake in the child’s infancy.
Section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The order most likely to create stability for the child is one where her parental responsibility is ensured and that is with the father; whereas a change of relationship for the mother or the end of her current relationship is likely to lead to further proceedings.
The mother does not have the capacity to care for her two children alone and unsupported. She presently has good support from Mr A and his family. If that ceased the likelihood is that she would return to the authority of Ms J Stonelake to the detriment of the children. It would undoubtedly provoke a further application by the father which would be a child focused one in the circumstances of this case.
Section 60CC(3)(m) – any other fact or circumstance that the Court thinks is relevant
The mother in this case has been an abused child. Whatever the capacity of her own mother was, she did not have the opportunity to raise the mother, or to engage with her to the extent that she wanted.
The mother’s identity, that is her surname which reflected the biological truth of her identity, was changed, almost certainly by Ms J Stonelake. The mother has been given inconsistent information about whether or not she is Aboriginal, which is another important aspect of identity. She has been hurt by not knowing.
The mother had Ms J Stonelake as her paid carer from the time she finished high school until Ms J Stonelake withdrew from the role after the commencement of these proceedings. Her disability pension and later the financial support provided by the Government for the child, was directed by Ms J Stonelake. The mother paid a significant part of her pension towards rent on the Stonelake residence and board for the use of the garage where the mother lived. It has been a harsh life. The mother has not been properly acknowledged by authorities. Ms J Stonelake has spoken for her and others have found it easier to deal with her, rather than the mother directly. That was particularly significant with the support worker from Organisation OO, who spoke only with Ms J Stonelake and never seemed to fully understand the dynamics of the household.
The mother now appears to have found stability in her relationship with Mr A and she has had the opportunity to care for her daughter G, supported by G’s father and G’s paternal grandmother Ms A. That relationship, although on foot for two years, is a fragile one in the sense that it has not yet had the opportunity to become fulltime and independent.
The other circumstance is that the allegation made by Mr K on behalf of his daughter N in April 2012, has had enormous ramifications for a great number of people, including both parents and the child in these proceedings. I have found that there is no unacceptable risk to the child in the father’s household on account of M, or for any other reason.
The substantiation of the allegation on the basis of the interview with N alone does not reflect the whole of the evidence on the topic. I conclude that a consideration of all of the factors that gave rise to that complaint would have cast a different light on the second part of the JIRT interview; that it’s leading nature from the material supplied by Mr K in the circumstances of a very young child and a bitter family law dispute between N’s parents.
Unfortunately whatever consideration was undertaken by the police part of the JIRT team, was not replicated by the Departmental side of the JIRT team, rather there was substantiation on interview, with no overall reconsideration once all the information was put together and reviewed.
Conclusion
The child was happily living with her father and spending time with her mother until November 2012, when the repercussions of an allegation against her brother caught up with her life and saw her removed from her father’s care. Fortunately her relationship with her father and brother is still in place. Residence with her father and regular time with her mother represents in my view, her best long term opportunity for stability and ongoing relationships with those adults and children who are the most important people in the child’s life.
Orders are made accordingly.
I certify that the preceding four hundred and eleven (411) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 20 June 2014.
Associate:
Date: 20 June 2014
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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