SUTTON & BROCK
[2015] FCCA 713
•27 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SUTTON & BROCK | [2015] FCCA 713 |
| Catchwords: FAMILY LAW – Parenting – where the mother, the Independent Children's Lawyer and the Intervenor (Department of Family and Community Services) consent to orders that the child remain in the care of the Department – where the father seeks orders that the child live with him – where there are serious concerns about the father’s ability to care for the child – where the child would be exposed to an unacceptable risk of harm if placed in the father’s care. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60CA, 60CC, 61DA, 65D, 65DAB |
| Goode & Goode [2006] FamCA 1346 Hall & Hall (1979) FLC 90-713 |
| Applicant: | MS SUTTON |
| Respondent: | MR BROCK |
| Intervenor: | DEPARTMENT OF FAMILY & COMMUNITY SERVICES |
| File Number: | WOC 1139 of 2012 |
| Judgment of: | Judge Kemp |
| Hearing dates: | 9, 10 & 11 March 2015 |
| Heard at: | Wollongong |
| Date of Last Submission: | 11 March 2015 |
| Delivered at: | Sydney |
| Delivered on: | 27 March 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Snelling |
| Solicitors for the Applicant: | McNamara & Associates |
| The Respondent appeared in person. |
| Counsel for the Intervenor: | Ms Neville |
| Solicitors for the Intervenor: | Crown Solicitors Office |
| Counsel for the Independent Children's Lawyer: | Ms Reynolds |
| Solicitors for the Independent Children's Lawyer: | Luke's Law |
THE COURT ORDERS THAT:
All previous parenting orders in relation to the child X (born (omitted) 2012) (“the child”) be discharged.
The Minister for Family and Community Services have sole parental responsibility for the child.
The child live as directed by the Secretary of the Department of Family and Community Services ("the Secretary") or his delegate.
By consent, the child spend time with and communicate with the mother as directed by the Secretary or his delegate and the Secretary may determine whether such time or communication is to be supervised.
By consent, during any period in which the mother spends time with or communicates with the child, she is to comply with all directions given to her by the Secretary or his delegate.
The child spend time with and communicate with the father as directed by the Secretary or his delegate and the Secretary may determine whether such time or communication is to be supervised.
During any period in which the father spends time with or communicates with the child, he is to comply with all directions given to him by the Secretary or his delegate.
By consent, that the mother is hereby restrained from consuming alcohol or illicit drugs within 24 hours prior to any scheduled time she is to spend with the child.
By consent, that the father is hereby restrained from consuming alcohol or illicit drugs within 24 hours prior to any scheduled time he is to spend with the child.
By consent, that the mother is hereby restrained from making critical or derogatory remarks about the father, any member of the father's family, caseworkers from the Department of Family and Community Services and the child’s foster carers in the presence or the hearing of the child.
By consent, that the father is hereby restrained from making critical or derogatory remarks about the mother, any member of the mother's family, caseworkers from the Department of Family and Community Services and the child’s foster carers in the presence or the hearing of the child.
By consent, that each of the mother and the father have leave to release a copy of the report of the Single Expert to any therapist with whom either of them may engage for the purpose of obtaining mental health review or therapy.
By consent, that the Secretary has leave to release a copy of the report of the Single Expert to (omitted) Family Services and any therapeutic service provider engaged to provide services to the child.
The appointment of the Independent Children’s Lawyer is discharged.
The matter is, otherwise, removed from the active pending cases list.
THE COURT NOTES THAT:
As far as possible, the child’s time with the mother will occur in the (omitted) Central Business District.
The frequency and duration of the child’s time with the mother will be reviewed by the Secretary and/or his delegate on a yearly basis.
The Secretary or his delegate will give consideration to facilitating time between the child and the mother at local parks and other activity based venues.
IT IS NOTED that publication of this judgment under the pseudonym Sutton & Brock is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 1139 of 2012
| MS SUTTON |
Applicant
And
| MR BROCK |
Respondent
| DEPARTMENT OF FAMILY & COMMUNITY SERVICES |
Intervenor
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings initially commenced by the mother in the Local Court of New South Wales at Nowra on 3 December 2012, seeking parenting orders with respect to X born (omitted) 2012, currently aged 3 years (“the child”).
The father filed his Response on 7 December 2012 seeking his own parenting orders.
On the first return of the mother’s application, the Local Court of New South Wales transferred the proceedings to this Court making interim orders to the effect that the child live with the father and spend defined time with the mother, that both parents complete a drug urinalysis test by 5pm on 7 December 2012 and it was noted that neither party was to consume drugs or alcohol during or 24 hours prior to the child being in their care and the mother was to provide appropriate sleeping arrangements for the child and all other items necessary for the care of the child, when spending time with the child.
The proceedings came before this Court on 13 December 2012 when the parties were ordered to attend a child dispute conference, an Independent Children’s Lawyer was appointed for the child. By consent, orders were made for the child to spend further time periods between the mother and the father up until 12 January 2013 and, thereafter, commencing on 14 January 2013, in fortnight A from 4pm Monday until 4pm Saturday with the mother and commencing 28 January 2013 in fortnight B from 4pm Saturday until 4pm Monday with the mother and at all other times with the father. Certain other orders were made, including a restraint on consuming excess alcohol or illicit drugs and a requirement to undertake random urinalysis at the request of the other party’s solicitor. The proceedings were then stood over to 13 February 2013.
On 13 February 2013, the order for urinalysis testing was discharged and a further order was implemented for such testing to be effected at the request of the Independent Children’s Lawyer. The fortnightly spend time orders made on 13 December 2012 were discharged and orders were made for the child to spend time with the mother from 14 February 2013 to 21 February 2013 and then with the father from 21 February 2013 until further order. The Department of Family & Community Services was requested to intervene and the proceedings were stood over to 27 February 2013.
On 27 February 2013, interim consent orders were made for the child to live with the father and spend defined time periods with the mother. Further restraint orders were made but relevantly, within 7 days the father was directed to attend upon his general practitioner to obtain a mental health plan and a referral for a psychiatric assessment and to attend at all appointments, to see the psychiatrist as directed and to comply with any medication prescribed. The proceedings were then stood over to 3 April 2013.
On 3 April 2013, the Secretary of the Department of Family & Community Services (“the Department”) intervened in these proceedings. The proceedings were then stood over to 19 August 2013.
On 19 August 2013, the parties agreed to the appointment of Dr P (“Dr P”) as a single expert witness and the proceedings were further adjourned to 10 December 2013.
On 10 December 2013, the proceedings were further adjourned to 30 April 2014 as interviews were scheduled to occur with Dr P on 3 March 2014.
On 3 April 2014, the Court made further interim orders by consent to the effect that all previous parenting orders were discharged and the Department was allocated sole parental responsibility for the child, with the child to live as directed by the Secretary of the Department or his/her delegate and for the child to spend time with the mother and the father as directed by the Secretary of the Department or his/her delegate. The proceedings were then stood over to 17 June 2014 with a notation that it was expected that Dr P’s report would be completed by 10 June 2014.
Dr P’s report dated 12 June 2014 was released to the parties by Chambers order on 13 June 2014 and that report has become Exhibit “Court 3”.
On 8 July 2014, trial directions were made and the matter was then listed for a final hearing for 3 days commencing on 9 March 2015.
The final hearing commenced on 9 March 2015. On that day, Ms Neville of Counsel appeared for the Department, Ms Snelling of Counsel appeared for the mother and Ms Reynolds of Counsel appeared for the Independent Children’s Lawyer. The father did not attend at Court. A solicitor by the name of Mr Philip J Carey had sent an email to the Court (which has become Exhibit “Court 1”), to the following effect:
I have been asked by Ms Brock (sp) to advise the court that Ms Brock has not filed any materials and is not represented in the matter today.
Ms Brock advises that he will be asking for an adjournment. I am not instructed in any way by Ms Brock and I have no intention of accepting instructions from Ms Brock. I simply write to day as a friend of the Court.
I have been told that Ms Brock had engaged the services of a Solicitor for the matter today. I make no comment in that regard. Accordingly Ms Brock will not be represented today.
Given that the father had not attended Court and given other matters listed for hearing that day, the Court stood the matter down. At approximately midday on the first day of the hearing, the Court telephoned the father on a mobile telephone number that he had provided to the National Enquiry Centre (“NEC”).
The father advised the Court that he did not intend to appear on that day as he did not feel comfortable attending without a lawyer. The Court explained to the father that having a lawyer appear for him was not a right, but a privilege and that if he wanted to make any application to the Court he needed to attend in person to do so. The father stated that he would so attend Court on 10 March 2015 and agreed to be in attendance at approximately 9.00am, in order to have discussions with the other parties. Therefore, the matter was stood over to 10 March 2015 at 10.00am, being day 2 of the 3 day hearing.
On 10 March 2015, the matter was called on shortly after 10.00am. The father was not in attendance, despite his representation made the day before. However, the mother was also not in attendance. Counsel for the mother indicated that there was likely to be an agreement between the mother, the Independent Children's Lawyer and the Department and that the parties who were in attendance required time for the mother to attend and sign an agreed document. The matter was then stood down so that the mother could attend Court and sign the proposed minute of consent orders. The mother attended Court at approximately 11.15am. The matter was called at 11.30am. The father, at that point in time, appeared and advised that he had only just arrived at the Court precinct. He apologised for his lateness. At that stage, the consent orders between the mother, the Independent Children's Lawyer and the Department were tendered and marked Exhibit “Court 2” and are as follows:
(1)All previous parenting orders in relation to the child are discharged.
(2)The Minister for Family and Community Services will have sole parental responsibility for the child.
(3)The child will live as directed by the Secretary of the Department of Family and Community Services (“the Secretary”) or his delegate.
(4)The child will spend time with and communicate with her mother as directed by the Secretary or his delegate and the Secretary may determine whether such time or communication is to be supervised.
(5)During any period in which the mother spends time with or communicates with the child, she is to comply with all directions given to her by the Secretary or his delegate.
(6)The child will spend time with and communicate with the father as directed by the Secretary or his delegate and the Secretary may determine whether such time or communication is to be supervised.
(7)During any period in which the father spends time with or communicates with the child, he is to comply with all directions given to him by the Secretary or his delegate.
(8)That the mother is hereby restrained from consuming alcohol or illicit drugs within 24 hours prior to any scheduled time she is to spend with the child.
(9)That the father is hereby restrained from consuming alcohol or illicit drugs within 24 hours prior to any scheduled time he is to spend with the child.
(10)That the mother is hereby restrained from making critical or derogatory remarks about the father, any member of the father's family, caseworkers from the Department of Family and Community Services and the child’s foster carers in the presence or the hearing of the child.
(11)That the father is hereby restrained from making critical or derogatory remarks about the mother, any member of the mother's family, caseworkers from the Department of Family and Community Services and the child’s foster carers in the presence or the hearing of the child.
(12)The each of the mother and the father have leave to release a copy of the report of the Single Expert to any therapist with whom either of them may engage for the purpose of obtaining mental health review or therapy.
(13)That the Secretary has leave to release a copy of the report of the Single Expert to (omitted) Family Services and any therapeutic service provider engaged to provide services to the child.
Notations
(14)As far as possible, the child’s time with the mother will occur in the (omitted) Central Business District.
(15)The frequency and duration of the child’s time with the mother will be reviewed by the Secretary and/or his delegate on a yearly basis.
(16)The Secretary or his delegate will give consideration to facilitating time between the child and the mother at local parks and other activity based venues.
The father did not consent to orders being made in terms of Exhibit “Court 2”. His initial position was the he maintained the orders set out in his Response filed 7 December 2012, to the effect that he was to have sole parental responsibility for the child, that the child was to live with him and the mother was to spend time with the child as agreed between the parties, together with consequential orders regarding informing each other of any illness, refraining from making critical or derogatory comments and advising each other of current telephone contact numbers. Accordingly, the matter proceeded to hearing.
On 10 March 2015, Dr P gave his oral evidence. His evidence was substantially in terms of his written report. The father only asked Dr P a few questions and his evidence was then concluded.
Given the position of the mother, the Independent Children’s Lawyer and the Department in terms of their agreement to orders as set out in Exhibit “Court 3”, Ms Snelling submitted that the application was now substantially that of the father and that, therefore, unless required by any other party, the mother did not need to give evidence. The Court accepted that position, as did the Independent Children's Lawyer and the Department. The Court asked the father if he wished to ask the mother any questions and he indicated that he did not.
During the luncheon adjournment, the father prepared a document which has become Exhibit “A” (the father’s first proposed minute of orders) and which then set out his proposed parenting orders for the child. They were as follows:
a)The father proposes that he regain full parental responsibility with a period of 6 months of intervention and assistance for a smooth transition back into his care to ensure the child who is currently in the “interim” care of the Department no longer has any child substantiated material to warrant placing her into full time care. “THIS MUST NOT HAPPEN”.
b)The father assures the Court that all the child’s needs shall be met within a proposed 6 month period to ensure that all parties are satisfied that the best interests of the child are adhered to from a moral and legal perspective being returned to the father’s full time care.
c)The father proposes that all submissions by the mother be degected from these proceedings as she has signed off and agreed to her going into full time care which shall not happen….
d)The father moves to file a s.90 based on his mistreatment on the Intervenor’s part, being that there is no relevant at this time to the Court as to their handling of access and guidelines to ensure the father’s rights were met.
e)Furthermore - reasons for the child being removed from the father’s interim care by the Intervenor were a vulgar display of “GOVERNMENTAL DEPARTMENT power playing” as the Intervenor has a generalised opinion on their stance of a male (being the father) successfully caring for his child at an age where under normal circumstances the Courts tend to favour the mother in the best interests of the child’s care.
f)As the mother has agreed to and signed documents regarding the welfare of the child agreeing to her being placed in the Minister’s care, all submissions through her representative should be dismissed by the Court forthwith to allow the father full time custodial agreeance, as DOCS has no case to retain her and be in agreeance to placing the child back into his care as his circumstances have improved dramatically which unsubstantiates DOCS reasons for removal from the father in the first place.
g)The father is in agreeance to unannounced visits by the Department to ensure the child’s needs are being met and agrees to undergo further testing through means of urinalysis and scrutiny of the Intervenor at their discretion.
h)The father agrees to access between the mother and the child until such time as the Intervenor Department is satisfied of her interactions under supervised vistitation between the proposed 6 month period outlined forthwith.
i)Lastly, the father proposes that a new DOCS case worker be appointed to the father to avoid prior knowledge being misjudged and to implement a better rapport between the Intervenor and the father.
j)I miss my daughter with whole heart and ask that upon this s.90 being granted my daughter will have a much better chance in my full care.
On the afternoon of 10 March 2015, the father’s evidence commenced and during the course of that evidence he indicated a reluctance to answer a question posed by Ms Neville of counsel and he sought an adjournment. The basis of his adjournment was that he did not have any legal representation and his former legal representative who had withdrawn on 5 March 2015 had not filed any trial affidavit or complied with any trial directions. The Court heard that application and dismissed it, providing ex tempore reasons. The matter was then adjourned to 11 March 2015 at 10.00am.
On 11 March 2015, the father did not attend Court until 12.15pm. It appears that he had caught a train from (omitted) to Wollongong but had missed getting off at Wollongong, had then travelled to the next station, being (omitted), and had to get a return train which then arrived at 11.30am in Wollongong. It appears that the father then went to the library for the next 40 minutes or so before arriving at Court. His explanation was that he was deep in thought in preparing a further minute of order which has now become Exhibit “B” (the father’s second proposed minute of orders), as follows:
1. That the respondents parenting orders/interim orders stand with amendments to allow full custody to be restored to the father.
2. That the Minister for the Department shall NOT have sole parental responsibility for the child.
3. The child will reside with the respondent “father”, after a 3 month period when the Department is satisfied that the respondent has sufficient living arrangements and the child’s bedroom and all arrangements are satisfied by the Department, on his own lease agreement, and/or co-agreement.
4. That the child spend time with the mother as advised by the Department.
5. That at all times the father remain drug free and agree to random urinalysis testing as directed by the intervener [sic], the Department and also the mother.
6. That the mother is hereby restrained from consuming alcohol or illicit drugs within 24 hours prior to visits.
7. That the father is hereby restrained from derogatory remarks and also the mother and all communications between parties is to go through the Department.
On 11 March 2015, the father’s evidence was concluded. The father was cross examined by both Ms Reynolds and Ms Neville.
The father called one witness being his own mother who fortuitously had made her own arrangements to attend at Court (albeit the Local Court) and when this Court telephoned her she was able to make her way to Court, arriving at approximately 3.30pm. The father’s mother was cross examined by Ms Reynolds and Ms Neville.
The Departmental officer, Ms J, gave evidence and was cross examined by both Ms Reynolds and the father.
At the conclusion of the evidence, the parties made their oral submissions. The father, no doubt, upset by the prospects of “losing” parental responsibility and live with arrangements for the child was, understandably distressed. Nevertheless, he presented his case to the best of his ability, in the circumstances. He relevantly conceded orders in terms of paragraphs 4, 5, 8, 9, 10, 11, 12 and 13 of Exhibit “Court 2” and those orders can, therefore, be made by consent of all of the parties.
Principles to be applied and procedure to be followed
Section 65D(1) of the Family Law Act 1975 (“the Act”) provides that this Court may make such parenting orders as it thinks proper, subject to the provisions of s.61DA and s.65DAB of the Act.
Section 61DA of the Act requires the Court to apply a presumption before it makes any parenting order in respect of a child (and this is the case whether or not a party has sought a specific order for equal shared parental responsibility) that it is in the best interests of a child for a child’s parents to have “equal shared parental responsibility” for the child.
The presumption does not apply in this case. The father was seeking sole parental responsibility while the mother had acceded parental responsibility to the Department. The Independent Children’s Lawyer supported the mother and the Department’s position.
Further, the Court finds that the presumption would not apply in this case, in any event, as:
a)there was sufficient relevant evidence to negate the application of the presumption because of the factors referred to in s.61DA(2) of the Act (being reasonable grounds for the Court to believe that the child concerned has been the subject of abuse or family violence);
b)there was sufficient relevant evidence to rebut the presumption, as not being in the best interests of the child (s.61DA(4) of the Act) after a consideration of the primary and additional considerations under s.60CC(2) and (3) of the Act referred to below;
c)given the mother’s position, it was no longer appropriate that the parents either jointly hold parental responsibility or exercise equal shared parental responsibility for the child; and
d)given the child protection concerns referred to herein, the Court accepts that sole parental responsibility should vest in the Department so that the Department has appropriate legal authority to ensure that the child’s needs are met.
The best interests of a child remain the paramount consideration (s.60CA of the Act).
The best interests of a child are to be determined by an examination of the factors as set out in s.60CC of the Act. These factors are to be examined, weighed and applied against the facts of each case within the ambit of the objects and their underlying principles as set out in s.60B of the Act, as follows:
“(1) The “objects”…are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The “principles” … are … :
(a) Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never been married or have never lived together; and
(b) Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) Parents should agree about the future parenting of their children; and
(e) Children have a right to enjoy their culture (including a right to enjoy the culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii) to develop a positive appreciation of that culture.
(4) An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
The Full Court of the Family Court of Australia in Goode & Goode [2006] FamCA 1346 set out a number of procedural steps to be followed on an interim application, but which may also be usefully examined here, namely:
“(a) Identifying the competing proposals of the parties;
(b) Identifying the issues in dispute;
(c) Identifying any agreed or uncontested relevant facts;
(d) considering the matters in s.60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s.61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s.65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.”
Evidence
The father relied on:
a)His affidavit sworn on 6 December 2012 and filed on 7 December 2012;
b)His affidavit sworn on 25 February 2013 and filed on 26 February 2013;
c)His affidavit sworn on 3 April 2013 and filed on 3 April 2013;
d)His affidavit sworn on 27 February 2014 and filed on 28 February 2014;
e)His affidavit sworn on 15 May 2014 and filed on 16 May 2014;
f)The affidavit of Ms L (the paternal grandmother) affirmed 26 March 2013 and filed on 2 April 2013.
The mother relied on:
a)Her affidavit affirmed 28 November 2012 and filed on 7 December 2012;
b)Her affidavit affirmed 22 February 2013 and filed on 27 February 2013; and
c)Her affidavit affirmed and filed on 4 March 2015.
The Department relied on:
a)The affidavit of Ms J (“Ms J”) affirmed on 24 February 2015 and filed on that day.
The following documents were placed into evidence as follows:
Exhibit No
Document
Tendered by
Court 1
Email from Mr P dated 9 March 2015
Court
Court 2
Minute of Orders signed by the mother, the ICL and the Department
Court
Court 3
Report of Dr P
Court
A
Father’s first proposed minute of orders
Father
B
Father’s second proposed minute of orders
Father
Int 1
Material produced under subpoena to NSW Police (green sticker)
Intervenor Department
Int 2
Documents produced under subpoena to the NSW Department of Corrective Services regarding the husband’s District Court of NSW appeal (blue sticker )
Intervenor Department
Issues
Given that the mother, the Department and the Independent Children's Lawyer are in agreement in terms of Exhibit “Court 3”, the issues in dispute concern the orders that the father seeks and relate to the following:
a)Parental responsibility;
b)Who the child is to live with; and
c)Time to be spent with the child.
Factual Matters
There appear to be a number of relevant uncontested facts, as follows:
a)The father was born on (omitted) 1976 and is currently 38 years of age.
b)The father was currently living in the (omitted) area.
c)The father has 2 sons from a previous relationship, A aged 15 years and B aged 13 years, at the time of the family report interviews in 2014.
d)The mother was born on (omitted) 1994 and is currently 21 years of age.
e)The mother had been living with the maternal grandfather, Mr G, (aged 50 years) and his partner, Ms G (aged 51 years) since November 2013, in their Department of Housing home in (omitted), in Western Sydney.
f)On 30 October 2007, the mother was placed in the long term care of the Department.
g)In early 2010, the parties met and commenced cohabitation in about (omitted) 2010 (when the mother was approximately 16 years of age).
h)On (omitted) 2012, the mother turned 18 years of age and the Department’s parental responsibility for her ceased.
i)On (omitted) 2012, the child was born.
j)That following the child’s birth, both the father and the mother provided for her basic needs up until the date of their separation.
k)On 21 October 2012, the parties separated, although the mother continued to spend approximately 2 days per week with the father, up until early 2013.
l)On 12 December 2012, the mother commenced these proceedings.
m)After the parties’ separation, the mother, with the assistance of her family, cared for the child up until (omitted) 2013 when the child was approximately 11 months old.
n)By 27 February 2013, the child had moved into the care of the father and was then spending time with the mother. During that time, the paternal grandmother looked after the child approximately 2 to 3 days per week, sometimes getting a one week break.
o)On 21 March 2013, caseworkers for the Department conducted an assessment of the father’s home and determined that there were no significant risk of harm issues.
p)On 25 March 2013, caseworkers for the Department conducted an assessment of the maternal grandmother’s home (where the mother was living) and determined that there were no significant risk of harm issues in relation to the child spending day time there.
q)On 3 April 2013, the Department was joined to these proceedings as Intervenor.
r)On 20 December 2013, the Department received information that the father was in a relationship with Ms S (“Ms S”) born (omitted) 1997 and then aged 16 years and also under the care of the Department.
s)In about February 2014, the father enrolled the child in (omitted) Child Care at (omitted) for long day care 3 days per week. The father said that this only continued for a short time as the child care benefit he received did not cover the full costs of that care and he could not afford to continue with that program.
t)On 8 March 2014, the Department received information that the father was using cannabis and amphetamines in the presence of the child, that he was hitting the child, that there was domestic violence in his relationship with Ms S and that he had an untreated mental illness.
u)On 21 March 2014, the Department assumed care of the child and the child was placed with foster carers in the (omitted) area.
v)On 26 March 2014, an emergency care and protection order (“ECPO”) was made by the Children’s Court of New South Wales at Port Kembla for a period of 14 days until 9 April 2014, providing for interim parental responsibility for the child in the Department, as the child was then considered at risk of serious harm.
w)On 3 April 2014, interim orders were made in this Court, inter alia, allocating sole parental responsibility for the child to the Department.
x)On 12 February 2015, the Department identified a long term placement for the child.
y)On 25 February 2015, the child commenced transition into a long term placement.
Expert evidence
The Part 15 expert report (being Exhibit “Court 3”) was based, as Dr P described, on the material provided by the parties and the interviews conducted. Dr P records that his assessment was based on the interviews with the parties, the observations conducted with the parents and the child and the inspection of other material. Given the mother’s position, the Court has extracted from the report the matters that primarily relate to the father’s position:
a)The interview with the father was due to commence at 9am. Dr P received a message that morning to inform him that the father would be “1 ½ hours late”. He arrived after 10.30am. The Court notes that father was late on each day of the hearing.
b)The father presented neatly and smartly dressed. He did not present as depressed or anxious. There was no evidence of a psychotic disorder. He did not present as agitated.
c)The father was, at the time, receiving the “single parent pension”. He had worked as a (occupation omitted), in (employer omitted), and in (occupation omitted) work, but had lost a full-time job as a (occupation omitted) because of conflict. He had lost sleep, been late for work twice, and had an argument with the floor manager.
d)The father identified the paternal grandmother (aged 60 years) as a support, as she lived only 4 minutes’ drive away in (omitted). She lived with her partner of 4 years, Mr W. The paternal grandmother ran her own business as a (omitted) and worked from home. The father stated that if he moved house, he would stay close by to her for “family support”. The father did not repeat this at the hearing, saying that he would seek to move further away, even to Victoria to “start a new life”.
e)The father also identified as supports the paternal grandfather and his partner. They had been living in (omitted), 1 hour north of (omitted), but had moved one month prior to suburban (omitted), and were building a home there.
f)The father also identified as supports the paternal grandmother’s mother (the father’s “Nan”) and the father’s brother and his wife.
g)The father has a brother, Mr A, 2 years younger than him, who lives with his partner and children aged 2 years and 1 year in (omitted), and works in (omitted). He has a brother, Mr C, 8 years younger than him, who lives with his partner in (omitted), and is a (occupation omitted)working in (omitted).
h)The father bought a house at 19 and was doing well financially, but this then ended in his bankruptcy in 2004 (aged 28 years). He came out of bankruptcy in 2007 (aged 31 years).
i)The father met and married, Ms A, in his youth and they had 2 sons and separated 2 ½ years later.
j)The father had been in a number of relationships since that separation.
k)The father had been in a relationship with Ms S (then aged 17 years) for “only 2 months”, but that the relationship, he said, had ended at time of interview.
l)The father was physically well.
m)The paternal grandmother had looked after the child 2 to 3 days per week, sometimes getting a week’s break.
n)The paternal grandmother presented neatly and smartly dressed.
o)The paternal grandmother presented as somewhat sad in mood, rather weary and resigned. The paternal grandmother presented as quite independent, resolute and considered in her quietly held views, but at a “transactional level she lacked influence and was quite compliant to the father’s wishes”.
p)The mother presented neatly and casually dressed. She did not present as depressed. She was at times anxious, with no evidence of panic symptoms. There was no evidence of a psychotic disorder.
q)The mother remained in mutually supportive contact with the maternal grandmother and maternal aunts.
r)The mother had had some relationships since separating from the father. One relationship was with a man who was using drugs and went to rehabilitation. They were only together for 2 months and used drugs together. She broke up with him in (omitted) 2013.
s)The child was aged 2 years exactly at the time of interview, and 2 years and 2 months at the time of the report.
t)Ms T, director of (omitted) Child Care in (omitted) was interviewed by telephone. Ms T said that the child:
i)appeared sad;
ii)wouldn’t talk and would often just go and sit in the corner;
iii)when there was group play, would sit still and look down;
iv)didn’t engage in other activities;
v)was not brought to the centre regularly by the father and was only there for a month or two;
vi)when she needed something, she did not usually signal that need and the teachers would need to notice it;
vii)appeared to value structure and routine.
u)The father had been the most consistently present adult figure in the child’s life to date.
v)The child’s relationship with the father had been an attachment relationship, as the child had relied upon the father to meet her basic needs for food, shelter and protection from harm, and her more complex emotional, intellectual, relational and developmental needs. There had been positive aspects of that relationship.
w)The father had been strongly committed to the welfare of the child. He had quite a positive, idealised view of himself as parent and of the life that he was giving the child.
x)The father appeared to have been able to meet the child’s basic necessities of life and the child did not signal distress or need. The mother confirmed that the child “appeared well looked after” in the father’s care.
y)The father was observed to be capable of engagement with the child and in reciprocitous play with the child.
z)The child showed some distress when being separated from the father, particularly when she was entering a new or challenging environment and some appreciation of a reunion with him. The contact report of 3 April 2014 confirmed that the child (not having seen the father for 14 days after the child’s removal by the Department) said “daddy” and appeared excited in anticipation, then appeared happy to see the father and gave him a hug. Subsequently, the child screamed and cried when the father left the room.
aa)That there were some concerning vulnerabilities in the child’s relationship with the father. There was a large intention/action gap, where the lived reality of the child did not match the father’s idealisation of his role.
bb)The child had an anxious-avoidant attachment to the father, meaning that she had adapted to relative incapacity in her adult care system by suppressing desire and negative emotion and becoming self-reliant in terms of her own needs, so as to meet the father’s need for her not to be too demanding or provocative.
cc)That children will usually develop such a pattern of self-contained self-reliance in a context where either they have learnt that signals of need are unlikely to be met, or where such signals can be dangerous in terms of the response that they provoke. The former has been true most of the time, and the latter true intermittently for the child, when the father has been under the influence of amphetamines or, otherwise, stressed or emotionally reactive.
dd)The child’s attachment system appeared rather diffuse, in that she did not present as a child with a deep, unconditional and presumptive reliance upon one or more adults, but rather as a child who had developed a pattern of observing the movements and inclinations of the familiar and unfamiliar adults in her environment, and responding as seemed best in the moment.
ee)The child demonstrated a quiet self-reliance, and was mostly compliant and self-contained. She played alone, with little reference to or demand from the father.
ff)The child’s behaviour at preschool (noted in paragraph (t) above) may have been related to the child’s pattern of self-reliance at home.
gg)The child presented as rather sad and inhibited in emotional expression. The child’s play lacked energy and drive and there was not the degree of joy, purpose or inquisitive exploration that would be typical for a child of this age.
hh)The child’s presentation related to the child lacking a consistent experience of being kept-in-mind by the father, or encouraged or responded to by the father in the moment.
ii)In a secure child-parent relationship, the child’s play is sustained, elaborated and extended by adult mindfulness of the child and by adult response to intermittent invitations from the child to witness, admire or join.
jj)When the child did engage in problem behaviour, accessing drawers in the medical cupboards, the father was slow to pick this up and to address it.
kk)The father had presented as wearied by the burden of care of the child and resentful that others did not assist him with that care.
ll)It was likely that the father’s personality, immaturity and lack of empathic awareness of others were such that he lacked empathic attunement with the child and did not have a good understanding of the child’s emotional needs. As a result, the child had not found the father to be attuned or responsive.
mm)The father had his own distractions, including his intense and unstable relationship with the mother and then with Ms S, the processes of obtaining and using drugs and financial pressures.
nn)The paternal grandmother said that she would hear from the father with a request to take the child and “it could be one hour before… or that morning to look after her in the afternoon”.
oo)After the Department set up child care, the father initially complied, but then the child’s attendance dropped away, particularly when the father discovered that he was required to make a financial contribution.
pp)That, in addition, to experiencing relative neglect, the child may have experienced periods when the father has been agitated, aggressive and unpredictable in his responses, and where neediness or noisiness in the child may have been dangerous in terms of the risk of abuse. In these cases, the child’s observed responses, namely being passive and compliant, with no sign of distress suggests an adaptive but insecure need in the child to become still, quiet and compliant and to minimise provocation or challenge, in the face of paternal agitation or aggression.
qq)There is the potential for the child’s relationship with the father to be supported and enriched by the child’s relationship with the paternal grandmother and also for the relationship with the grandmother to mitigate risk in the relationship with the father. However, the paternal grandmother has not been able to influence the father in terms of his difficulties or personal deficits.
rr)The child appeared to know the paternal grandmother and to be comfortable in her care and appeared to have a secondary attachment relationship with her.
ss)The child’s relationship with the mother was a secondary attachment relationship.
tt)It was likely that the father has an amphetamine-induced bipolar disorder, predominately with mania and at times with psychotic features, related to an amphetamine use disorder and cannabis use disorder. The father has had episodes over the years of symptoms of mania (agitation, busy-ness, grandiosity, irritability, pressured speech) and psychosis (unusual or persecutory beliefs).
uu)The father’s mental health notes record:
i)The father was brought in by the paternal grandmother in 2007 for punching a door.
ii)In 2010, he was “violent to his ex-girlfriend”, namely the mother.
iii)On both the above occasions, he reported using amphetamines and declined follow up treatment.
vv)Dr P considered:
i)At one end of that spectrum is the possibility that the father has a significant bipolar disorder existing separately from any substance misuse. If this is the case, the most vital element of treatment will be development of a therapeutic relationship with a psychiatrist, regular review by that psychiatrist and medication management. Ceasing drug use would be helpful but not the central issue.
ii)At the other end of the spectrum is the possibility that the father’s symptoms are entirely secondary to substance misuse (most likely amphetamine use), either only due to stimulant intoxication, or also due to a (more persistent) amphetamine-induced bipolar disorder. If this is the case, the most vital element of treatment will be for the father to cease all amphetamine use, and preferably also all use of cannabis and other illicit drugs. Regular review by a psychiatrist and medication management may temper symptoms even if drug use continues. If the father ceases all drug use, such treatment may not be necessary.
iii)It was likely that the father’s symptoms were mostly secondary to amphetamine use and represent an amphetamine-induced bipolar disorder. The more general increase in irritability and reactivity noted for example by the paternal grandmother was likely an amphetamine induced hypomania.
ww)It was likely that the child and others associating with the father, such as the mother and Ms S, have been exposed recurrently to the father in this acutely agitated intoxicated state.
xx)The father reported that he had given up cannabis 2 weeks prior to the interview, on the advice of his lawyer. He felt that cannabis use had never been a problem.
yy)The father had used amphetamines (“Ice”) a bit in 2013, about once per month, when the child was not in his care. When the father’s urine test was positive, he had originally told the Department that his drink had been spiked but, in fact, the father had “done drugs” on one occasion, he claimed with the mother.
zz)The father maintained that “Ice” was a problem for a few years in the lead-up to 2005. In 2005, there was “a little period” when amphetamines “sent [him] crazy… mentally”.
aaa)When the father saw a family consultant in February 2013, he reported that he had last used “Ice” 4 months prior to that interview.
bbb)The father minimised his substance misuse and was dishonest and dismissive of it. This was in keeping with the father’s attitude and history during interviews with the Department, when he would deny use, then when challenged with facts attempt to claim his drink had been “spiked”, then admitted to only “once-off” or occasional use, and then to deny that this was of any significance.
ccc)The father’s urine tests were positive for cannabis in June 2013, November 2013 and March 2014, then in 6 out of 7 tests in April/May 2014. A positive test suggested some use in the preceding 1 to 3 months. A test was negative for cannabis in August 2013, suggesting a period of 1 to 2 months of minimal or no use.
ddd)The father’s tests were positive for amphetamines in June 2013, on 17 March 2014 and on 23 May 2014. These tests are significant as they usually only remain positive for about 24 hours after use of the substance.
eee)It was likely that the father’s DSM V amphetamine use disorder was of moderate to severe severity. The father continues use despite known harm and despite some desire or intent to stop. He uses when he has not intended to do so, or for longer than he intended to do so. He spends time and resources arranging use, using, or recovering from use. Other priorities are disrupted. It was likely that he experienced craving to use.
fff)It was likely that the father’s substance misuse had been a major contributor to his poor day-to-day functioning, for example his ongoing financial difficulties and his apparent stress and difficulty in meeting basic obligations such as to meet with his lawyer and the Department and to get the child to child care, or to make mutually satisfactory care arrangements with the paternal grandmother.
ggg)The father’s prognosis for change with regard to his substance misuse was currently poor. The father denied and minimised his amount of use, the intentionality associated with his use and the impact of his use on his functioning. He has continued use despite the high-stakes context of the young age of the child, the current court proceedings and the Department’s scrutiny.
hhh)The father has significant personality dysfunction. The father may have a personality disorder, if the patterns evident in his intimate relationships are also evident in other settings such as in his friendships and occupational relationships. The differentiation between traits and disorder was one of degree and was not central to the matters before the court. In order to make the differentiation, a clinician would need to see the father over a period of time and appraise his functioning in broader contexts beyond the focus of this report on functioning in family relationships.
iii)The father shows:
i)Immaturity of personality functioning. He presented as quite needy, self-focussed, externalising of blame (holding others responsible for his troubles, whilst listing the various external factors that excuse or explain his own failings) and with an external locus of control (looking to others to fix his troubles). Under pressure, the father went quickly to an aggrieved stance, listing the wrongs of others towards him and the ways that he had been let down by others. He lacked reflective functioning, that is an ability or willingness to step back and to think about the thoughts, feelings, motivations and behaviours of himself and of others.
ii)Some antisocial and narcissistic personality traits, reflecting his antisocial personality style. The father has demonstrated, particularly in his relationships with his partners, a pattern of disregard for and violation of the rights of others. In terms of antisocial personality traits, the father could behave unlawfully, be deceitful, impulsive, irritable and aggressive, reckless, and irresponsible. The father lacked remorse, being indifferent to or rationalising having hurt or mistreated another.
jjj)The father appeared to have recurrently claimed to have ended his relationship with Ms S, but then had continued in that relationship, including (according to refuge staff) picking her up every second day, including the afternoon and evening after his difficult contact visit on 22 May 2014. The father presented a picture of himself as victim of Ms S’s violence, then later admitted to himself having caused a hole in the kitchen door when angry with Ms S.
kkk)In terms of deceitfulness, the father’s call to the police in April 2013 claimed that the mother had assaulted him. The police document that the father’s version of events “changed several times”, and they expressed concern that he may have been seeking an AVO for Court purposes.
lll)The father’s mid-range PCA in 2002 (aged 26 years) and low range PCA in 2009 (aged 33 years) likely represented unlawful behaviour, reckless disregard for others and irresponsibility, rather than alcohol dependence.
mmm)Reflecting his narcissistic personality style, the father had demonstrated in his family relations a pattern of grandiosity, a need for admiration and a lack of empathy. In terms of his narcissistic personality traits, the father demonstrated a grandiose sense of self-importance, engaged in idealised fantasies of his role in the lives of others, in particular the mother and now Ms S, required excessive admiration and attention, had a sense of entitlement, was interpersonally exploitative and lacked empathy, being unwilling to recognise or identify with the feelings and needs of others.
nnn)At the level of intention, the father was motivated by a genuine concern for the child and had a strong commitment to her and to the responsibilities of parenthood. However, the father’s commitment to the child and his responsibilities were disrupted or put aside by his own needs, which were related to his personality dysfunction and substance misuse.
ooo)While the father has been able to meet the child’s needs at a basic level for food, shelter, and day-to-day engagement, there had been a neglect of the child’s emotional, intellectual, relational and developmental needs and there had been a risk to the child associated with exposure to family violence and a risk of physical harm to the child through misadventure or physical abuse.
ppp)The above concerns would be reduced but not extinguished if the father ceased all substance misuse. Concerns about the father’s personality dysfunction and the issue of family violence would remain. The father’s history of minimising of his use, denial of and deceit regarding his use, would make any claim by the father to have ceased use difficult to appraise or monitor.
qqq)The father in completing a treatment program for family violence perpetrators such as the Relationships Australia: “Taking Responsibility” program, might reduce these concerns, if the father engaged with and opened himself up to considering the challenges put forth by such a program.
rrr)The father attending an “anger management” program would be of limited use if he continued to use amphetamines and some (but limited) use if he ceased or curtailed such use.
sss)The paternal grandmother had a “good enough” parenting capacity and would be able to take on the role of raising the child, if she was willing. The latter was not true, with her partner not willing to take on that role.
ttt)An area of vulnerability would be the father’s disrespectful, demanding and probably, at times, intimidating behaviour towards the paternal grandmother. There would need to be firm boundaries set on the father’s intrusion on the paternal grandmother’s raising of the child.
uuu)The mother confirmed using “Ice” with the father.
vvv)Both parties describe an episode of conflict involving physical violence in late 2012 between the parents and others which occurred with the child present.
www)Dr P recommended that the child be settled in a secure placement and regular child care, then if inhibition persists or there are observed developmental delays after 3 to 6 months, a review by a developmental paediatrician be sought at that time.
xxx)There has been a pattern of family violence perpetrated in the father’s relationship with the mother, more likely with the father as the instigator, including physical violence but also including a pattern of behaviour within a family relationship that was coercive, intimidating, disrespectful and harmful to others.
yyy)Ms S was reviewed by a doctor on 31 March 2014 (4 weeks after the interviews with Dr P and after removal of the child) with notes recording: “assault by boyfriend yesterday”; “multiple bruises and possible rib fracture”; “punched left anterior chest; strangled; bitten on face”. Ms S was also noted to have bruises on her right thigh, left thigh, abdomen, chest and a hand mark on her right upper arm.
zzz)The father had demonstrated attitudes and behaviours typical of family violence perpetrators, these being Superiority, Entitlement, Control, Possessiveness, Externalisation of Responsibility, Selfishness and Self-Centredness, Denial, Minimization and Victim-Blaming, Manipulativeness, Contradictory statements and Behaviours, Confusion of Love and Abuse, and Serial Battering (Reference: List based on a literature review in Bancroft L, Silverman J & Ritchie D (2012) The Batterer as Parent 2nd Edn. SAGE: Los Angeles).
aaaa)The father’s interactions with the paternal grandmother had features of a pattern of family violence. He relied upon her to rescue him when stuck, for example financially or with regard to accommodation and when acutely unwell as evidenced by her taking him for mental health reviews in 2007 and 2010, but she presented as frightened and wary of him and not able to assert herself with him in 2007 and 2010 and in recent times.
bbbb)On 27 March 2014, the paternal grandmother told the Departmental worker that she felt like the father’s “verbal punching bag”. The Departmental worker observed the father to use a very negative tone when speaking to the paternal grandmother and when the paternal grandmother was asked how she would feel saying “no” to the father, she did not answer.
cccc)The child had already been exposed to significant family violence perpetrated by the father to the mother, the father to Ms S, mutual violence between the father and each of these two women, and mutual violence in the context of the maternal extended family. If the child remained in the father’s care, this exposure was highly likely to continue as there was no evidence of insight or change of attitude regarding family violence by the father.
dddd)Like the father’s drug use, risk of family violence would be very difficult for external parties to monitor and assess because of the father’s use of deception evidenced by the father’s recurrent reports to the Department that he had terminated his relationship with Ms S, accompanied by him listing earnest reasons for the same, followed by another report of him engaging with Ms S. This occurred as recently as late May 2014, when he was reported to leave a contact visit with the child and pick up Ms S from the refuge and to spent the afternoon and evening with her.
eeee)The child’s exposure to family violence was a form of emotional abuse.
ffff)If the father continued to use amphetamines, there was an ongoing risk of direct physical abuse of the child by the father. There was also a risk of direct physical abuse of the child by a partner of the father’s.
gggg)The child did not have an active engagement with the mother. The child had an attachment relationship with the father, but there was insecurity and vulnerability in that relationship. The child had quite diffuse attachments overall.
hhhh)The child would adapt well to separation from either or both parents, if she was in the adequate and predictable care of an alternative carer.
iiii)The benefit of a relationship with each parent needed to be weighed against the risks and against the parent’s current and possible future capacity to raise the child.
jjjj)The order least likely to lead to further proceedings would be an order placing the child in the long term care of the Department.
kkkk)If each parent could adapt to such an order and put effort into their important long-term role as the child’s biological parent whilst supporting the child’s current care environment, then an ongoing relationship with that parent throughout childhood and adolescence would benefit the child.
llll)If the parent was not able to adapt to the order and sought to disrupt or undermine the current care environment and to recruit the child into partisan dispute or reunion fantasies, then the child would benefit from having time with this parent limited so as to protect the child’s wellbeing in her care environment and her attachment relationships, as she grew up. The child could then reconnect in a more substantial way with that parent when she reached adulthood, if she wished to do so.
mmmm)The father’s established mix of characterological (sic), substance misuse and mental health concerns suggested that the child was unlikely to benefit from and was likely to face risk within any return to regular time in the father’s care. In addition, the father’s deceitfulness would make such a process difficult to monitor.
nnnn)If the Department was able to provide the child with a long-term (kinship or unrelated foster) placement, then the child would be better served by getting on with forming an attachment relationship with that new person or couple.
Dr P makes the following recommendations in his report:
a)The child be placed in the long-term care of the Department.
b)If the Department can allocate a long-term (kinship or foster) placement for the child, then such a placement be made.
c)The mother and father maintain regular supervised contact with the child, for example monthly. The Department should be able to vary the frequency of contact depending upon the needs of the child and the presentation of each parent and the capacity of each parent to accept and support the orders and the child’s relationship with her carer.
d)At the Department’s discretion or at a set age, there be the option of a shift to unsupervised time with either parent or an extension of that time. It would not be envisaged that this would extend to a substantial care role for either parent.
e)If the child was placed in the care of the Department, that there be no Court order for a mental health review or therapy for either parent, but that either parent be able to initiate such therapy if they feel the need and be able to provide a copy of this report to the therapist, if they wish to do so.
f)The father attend a psychiatrist skilled in assisting adults with substance misuse, mental health, and personality vulnerabilities, to discuss the concerns raised. On the advice of that psychiatrist, the father may decide to be abstinent from substances, and/or to enter rehabilitation.
g)The father attend a group for perpetrators of family violence, such as the Relationships Australia “taking responsibility” group.
h)The mother attend a therapist skilled in assisting adults with mental health, personality, and substance misuse vulnerabilities in the context of childhood adversity. On the advice of that therapist, the mother may decide to be abstinent from alcohol, and/or to enter rehabilitation.
i)The mother attend a group for women who have experienced family violence, or some appointments with an individual therapist who has worked with women who have experienced family violence. Such an intervention would aim to assist the mother to better understand the relational processes that she has experienced, her responses to them. A particular goal of relevance to the mother’s and the child’s long-term welfare would be for mother to aim to re-set her expectations of relationships and family life away from accommodation to and towards addressing family violence and substance misuse within the family.
j)Each party be restrained from making critical or derogatory remarks about the other in the presence or hearing of the child.
k)The parents be appropriately informed about educational and medical matters in the non-resident child’s life, for example receiving copies of school reports.
The Court has quoted extensively from Dr P’s report as set out above. Dr P was orally examined very briefly and the basis of his report, his expertise and the factual matters that underpin his recommendations were not challenged by the father. Indeed, the father really only had one question for Dr P about the length of time of his interview. The balance of the father’s questioning was not, in fact, questioning at all but rather a personal monologue. The following is an extract of the father’s questioning of Dr P:
The father: Dr P, how have you been? I have had a substantial turnaround in my life. I am quite prepared to work with all departments to make sure that my daughter’s best interests are at heart. And whatever the courts shall decide in the end I guess I am going to have to accept it. …I just don’t understand how I can come for an hour appointment to see a specialist who works for the department or who is working for the department with relation to allegations and whatever else DOCS has thrown at me, that you could make a proper assessment of me as a father and me as a person in an hour visit based on hearsay that the DOCS has thrown … [inaudible]
Dr P: … I think that your comment is reasonable in that the assessment that I have written up is a summary assessment including information from a lot of sources. So you will see when you read - I try to be as transparent as possible - so you will see when you read it, some of it was from assessment of yourself on your own and your child and your own comments, some of it was from information including court documents, so from police documents, …community services documents. The reason I try to link it back to where I am getting my info from is that if there is certain pieces of that information that are open to question and that you would have a different slant on them… then they can be challenged. But I would agree with you, the assessment is not just based on the hour interview it is also based on the information that was sent to me. And I suppose I have tried to make that as transparent as possible.
The father: I have actually been through a lot of family law proceedings, we didn’t actually go to trial with ah, my previous marriage that I was in. …I gave all my assessment(?) to my ex wife, the best place for my children are with you … you’ve obviously had some extra marital affairs, we since separated, went through a divorce. I went to mediation on about 6 occasions. I got to a point where she had stopped me from seeing my children for access visits which affected me emotionally and physically and mentally. Obviously being a good father, that I am, that affected me for many years which ended me in you know taking up the drug addiction which I over came back in 2005. I relapsed probably about 3 years ago, so there was a lot of things going on in my life that affected … obviously… we never actually went to hearing. My house and everything was sold in my name, never represented back then. So anything that DOCS has probably thrown in about... approached my ex wife and my children, they stopped wanting to see me. It’s my sons birthday today, 17th birthday … haven’t seen them since my other sons birthday on (omitted) last year. Since DOCS actually approached them. So, DOCS involvement in my life is, yeah, not really appreciated. …and I have done everything in power that they have a good life. I gave all of my assets, I went bankrupt, and basically was a really bad period of my life. Obviously because of misrepresentation in a family court of law, which I never got to... I had all the certificate s.60Is ready to go, on three occasions and I sort of went through a period of being employed, not being employed because my ex-wife had my kids. So, … all that’s about to change. …I actually want to become a family law lawyer. Thankyou.
The Court accepts and gives significant weight to the recommendations of Dr P and will make orders in light of those recommendations, given that the recommendations and opinions expressed (and assumptions and observations which grounded them) were soundly based in accordance with the body of evidence before the Court and none of the relevant factual matters relied upon by Dr P have been found to be inconsistent with such evidence. In this regard, the Court has had regard to the general observations set out by the Full Court of the Family Court of Australia in Hall & Hall (1979) FLC 90-713.
The father’s evidence
The father’s affidavit in December 2012, disclosed that he was then living in a 2 bedroom unit provided by Housing New South Wales in (omitted). That accommodation provided appropriate facilities for the child. In February 2014, the father had accommodation in a 2 bedroom private rental flat in (omitted). Again, that accommodation provided appropriate facilities for the child. It appears, however, that the father was evicted from those premises at the request of the landlord after the police had been called. At that time, Ms S had been staying for a night or two and on the father’s own concession, she had temporarily left that property to acquire some “Ice”. Upon her return, she was apparently affected by illicit drug use, became violent and attempted to smash up his accommodation and items of his personal property. In May 2014, the father gave his address as the Legal Aid office. The father appears to have had his lease terminated. The father, at that time, was hopeful of moving in with his mother, but said that that relations between he and his mother were somewhat strained. Subsequently, however, the father moved out of that accommodation and then for a period of time moved between friends and family, various hotels and, indeed, lived in the back of his car for a period of some 10 months. The father was last staying at a hotel in December 2014. The father at that time confirmed that he had no family support. The Court accepts that it is unlikely that the father will be able to reside with the paternal grandmother, given the existence of an AVO and previous family violence at her home. The father had applied for urgent accommodation in January 2015 and had completed certain medical assessment documents in order to obtain priority housing. This housing, however, does not appear to have eventuated and the father then found accommodation through an advertisement on Gumtree. The father stated that, at the time of the hearing, he was residing in shared accommodation with another person at (omitted) and that he had been there for about 2 weeks, but that this accommodation was only temporary. He also indicated that he would be seeking his own place in the future. The Court is not satisfied on the evidence that the father has any suitable accommodation to house the child and weight is attached to that.
The father has not worked since 2012 and the Court has concerns as to his financial ability to support himself, let alone the child.
The father conceded that there was family violence in his relationship with the mother, although he did not concede that he was the instigator. The Court accepts, nevertheless, that the child was exposed to such violence in the parties’ relationship.
The father’s evidence was that despite his numerous complaints to the police, no-one would believe him and take out any apprehended violence orders for his protection. This included his assertion that in February 2014 he had been hit on the back of the head by Ms S when he had attempted to remove her from premises when she had been affected by drugs. The father also alleged that Ms S had kicked his car. The father, further, alleged that Ms S had come to the (omitted) and was kicking at his door. In those circumstances, if the father is to be believed with respect to this, the father finds himself in dangerous circumstances without the remedy to obtain any protection. This would give the Court great concerns if the child was in the care of the father when the father found himself in those dangerous circumstances. Notwithstanding the assertions the father made against Ms S, it appears that an AVO was made as against the father for the protection of Ms S in about June 2014. The father said that in March 2015, he had spoken to Ms S after she had recently been released from rehabilitation and had been arrested for a “bag snatch”. He had then met up with her where it appeared that she offered him some “KFC” chicken. At that time, the father alleged that Ms S had thrown dirt in his face and accused him of cheating on her. It was put to the father that this accusation was consistent with Ms S being of the view that she was still in a relationship with him. The father did not deny that.
The Court also accepts that both the father and the mother were involved in illicit drug use and, relevantly, the father continues to use. The father did not accept that he had “as big a problem” as the mother had, given he deposed, to the mother’s use of “Ice” on a number of occasions, but notwithstanding that, his own evidence was that he continued, at times, to use “Ice”.
The father’s affidavit clearly discloses that he was closely involved in the care of the child and as indicated by Dr P, that appeared to be the case, albeit, the father had somewhat of an idealised view of his involvement in that regard.
The father’s affidavit in December 2013, refers to his mental health issues which he said, at that time, were well managed. At the end of 2013, he stated that he did not currently see a Doctor in relation to his “previous diagnosis of bi-polar” and stated that he believed the symptoms that he had in 2005 were related to his drug use at the time. The father, in those circumstances, believed that he had been mis-diagnosed in 2005. He deposed to not using drugs or alcohol at that time. In January and February 2014, his urinalysis testing indicated the presence of cannabis metabolites which required further testing and cannabinoids which showed a positive reading. Notwithstanding that, his oral evidence at the hearing was that he had only recently used cannabis and meth-amphetamines. The father confirmed that he had used cannabis some 2 weeks before the hearing and amphetamines some 4-5 months before the hearing. In the father’s May 2014 affidavit, he acknowledged that despite previous attempts to remain free from illicit drugs, at the time the child was removed from his care he was using cannabis and was still using “Ice” on, what he described as, “rare occasions”. Again, he denied using any drugs in the presence of the child although he acknowledged that he may have been affected by cannabis or “Ice”, while the child was with him. The father also stated that as a result of his “suffering from bi-polar disorder”, he had been “self-medicating with illicit drugs to help manage [his] mood”. He denied the allegation in the risk of harm report received by the Department on 8 Mach 2014 that he blew smoke in the child’s face and denied ever hitting, slapping or physically disciplining the child. The father confirmed that in April 2014 he had attended an appointment with his GP for the purposes of having a mental health plan prepared and was referred to a psychologist named Mr D at (omitted) Counselling Services. The father said that he was to attend some 6 sessions to be completed in June 2015, but had missed 3 of those appointments. The father, again, indicated a willingness to work with the Department in relation to his illicit drug use and mental health issues.
The father’s affidavit in February 2014 disclosed, at that time, that he was in regular contact with the Department, informing it of changes of his residence and that he had complied with requests by the Department to undergo supervised urinalysis testing and intended to cooperate with the Department. His affidavit in May 2014 confirmed that he did not attend urinalysis testing on 2 dates in April 2014, notwithstanding that those dates had been specified by the Department. He conceded that he had a history of illicit drug use and that some of his urinalysis results were positive for cannabis and a test result in June 2013 was positive for amphetamines. He understood that any illicit drug use could impact on his parenting of the child although, in his oral evidence, he sought to distinguish his actions if not done in the presence of the child. The father, in his oral evidence, stated that he believed that if the child didn’t see him take drugs then any drug taking wouldn’t affect her. His affidavit in February 2014 stated a clear intention to remain drug free for the child’s sake. Notwithstanding this, his oral evidence was that he had continued to take illicit drugs beyond that date.
The father was also well aware that his involvement with Ms S was problematic for his future care of the child. While denying that he provided Ms S with illicit drugs, he confirmed that he was well aware of her problems with drug use. Notwithstanding this, his oral evidence was that only a week or two prior to the hearing, he had once again met up with Ms S because, he said, she was pursuing him and he “cared too much” for people and had met up with her. This was so, notwithstanding that he was of the view that his relationship with Ms S had ended in 2014 and that he had deposed that he would no longer see her, as he needed to prioritise the child’s needs over those of Ms S’s. The father conceded in his May 2014 affidavit that he had allowed Ms S to stay at his home for a period in March 2014 and discussed with her the possibility of resuming a relationship. Subsequently, the father referred to changing his telephone numbers but then said he had not changed numbers, but he had two mobile numbers. Notwithstanding this, Ms S seems to have been able to make contact with the father very recently by mobile phone/message to arrange a meeting with him.
The father said that following the Department’s removal of the child in March 2014, that he had had supervised contact with her and said that those times, he believed, had been “very positive”. Some weight is attached to that view. In his oral evidence, the father confirmed that he had seen the child regularly between March and May 2014 but that his time had been limited after May 2014 given, he said, that he appreciated that his behaviour had been erratic. He also believed, at the time, that as he had no legal representation he had been “railroaded” by the legal system. He had some difficulties appreciating that the Department’s decision to suspend time had anything to do with him testing positive for illicit drug use and further, that he had been abusive when attending upon the Department in May 2014. The father conceded that he had had positive illicit drug tests in May and July 2014. The father, at various times, indicated that his positive drug and alcohol test results could have been as a result of either using breath freshener or as a result of his drinks being spiked. The father indicated in the witness box that drug users, to his knowledge, provide explanations which seek to minimise or explain away their drug use and he saw this as an issue which was, in itself, related to the use of illicit drugs. Nevertheless, while giving this evidence the father did not seem to appreciate that he was in a similar position and his explanations appeared to have little credit, in that regard. The father, further, indicated that he had various documents in a suitcase which he had not bought to Court which might have assisted him in relation to his asserted mental health issues. The father appeared to accept that he had been rude to Departmental officers in May 2014 but said that that was as a result of those officers being rude to him. At the time he had started to rearrange various pamphlets in the Department’s office and appeared to the Departmental officers to be under the influence of drugs with large and fixed pupils. He agreed that he had sworn at the Departmental officers but disputed the number of times that he had used the “F word”. The Court accepts from the father’s own description of what had happened, that he had raised his voice, that he appeared agitated and that he had caused a disturbance in the office of the Department. The Court accepts that at that time the father was likely to have been under the influence of illicit drugs.
It was clearly put to the father by Counsel for the Department that the child had been removed from his care as a result of the Department’s appreciation of an unacceptable risk arising from the father’s use of illicit drugs (cannabis and amphetamines), his involvement of the child in that (blowing smoke in her face), ongoing domestic violence issues associated with the father including hitting the child and, in particular, his continuing involvement with Ms S and the father’s failure to deal with his identified mental health issues. The father, initially, maintained that the child’s removal was related to his relationship issues or a failure to have the child attend its day care as a result of confusion over dates. Notwithstanding this, the father, to his credit, appeared to later accept that these matters had been at the heart of the Department’s position in removing the child, but insisted that he then be the subject of ongoing urinalysis testing, calling for it in Court so that the child could be returned to his care. He explained his change in position on the basis that he had a lack of sleep the night before. A number of the test results for such urinalysis testing were put to him indicating either positive test results to illicit drugs or the need for ongoing testing. The father had, really, no answer to that position, other than to assert that the Department was consistently repeating its concerns about his drug use which, he said, he had addressed. He claimed to have addressed this issue in his previous affidavits filed since December 2012, but his evidence clearly indicated that he was still using illicit drugs. The father gave evidence that he had had no contact with Ms S since February 2014, but then contradicted himself and said that he had been in very recent contact with her, given that he “cares about people too much and their wellbeing”. The father also made allegations that Ms S had threatened him and sought by her own actions to have the child removed from him so that she would benefit by being able to re-engage with him. The father also said that she had blackmailed him, although it was unclear as to what that asserted blackmail related to.
The father’s oral evidence was evasive and unfocussed. He showed an inability to concentrate on the questions asked of him and tended to answer in a monologue that was unresponsive to the question. At one point, when being questioned by Counsel for the Independent Children's Lawyer, the father refused to answer any more questions on the basis that he was his own legal counsel. Shortly thereafter, the father said that he would walk out of Court because he was losing patience with this line of questioning. Indeed, the father was also unable to follow basic instructions from the Court such as “please listen” to which the father continued to interrupt. Again, the father’s presentation in Court gave the Court some real concern as to his ability to focus and behave rationally or appropriately.
Again, when the Court directed the father to answer a question asked of him rather than engage in an unrelated monologue, the father stated that as he was his own legal counsel he was about to walk out of the Court and did not wish to be subject to further questioning.
The father said that he had recently started seeing a young woman (aged 25 years) who has a daughter (aged 16 months) from a previous relationship. They had met through a friend but the father was not very forthcoming as to their current relationship. This young woman has not filed any affidavit in support of the father’s case and as far as the court is aware, she is an unknown factor.
The father had no ability to reflect on how his behaviour may have lead to the child being removed from his care by the Department. When asked why the child was removed by the Department, the father stated that the only reason was that he was in a bad relationship at the time. This was inconsistent with his own understanding as deposed to in his affidavits.
The paternal grandmother’s evidence
The paternal grandmother lives with her partner in (omitted). She is employed as a (occupation omitted) running her own business and she deposed to regularly spending time with the child, when the child was living with the father and assisting the father in his care of the child. The Court accepts that she has a close relationship with the child. While her affidavit of March 2013 deposed to her observing the father being the child’s primary care giver and stating that the father was attentive to the child’s needs, it also referred to the father’s illegal use of drugs and his drug problems and stated that she believed the father was not using drugs then. The Court accepts that that may have been the paternal grandmother’s belief at the time, but the evidence is that the father is currently still using illicit drugs. Of further concern, is the paternal grandmother’s reference to the father being diagnosed with bi-polar disorder, taking medication and then needing her assistance to take him to (omitted) Hospital, but the father then not staying for appointments.
The paternal grandmother gave oral evidence that she had spoken to the father about terminating his relationship with Ms S and she was of the view that he had done that and that she had not seen Ms S for about 8-10 months. The father’s evidence was that he had met up with Ms S a few weeks prior to the hearing.
The paternal grandmother gave evidence that she was not requested by the father to come to Court but that she had intended to come to support him. This was contrary to the statements of the father when explaining his late arrival in Court, who said that the paternal grandmother had indicated that she was intending to drive him to Court on the morning of 11 March 2015 but that this had fallen through and that he had to then catch a train. The paternal grandmother denied that there was any such arrangement. Where the evidence of the paternal grandmother conflicts with the evidence of the father, the Court prefers that of the paternal grandmother.
The paternal grandmother confirmed that she had informed the Department that she and her partner were not interested in taking on the care of the child. She said that that was because of her partner’s position. Her oral evidence was that her partner had changed his mind, about a year ago, but there was nothing filed from him or her in that regard. Further, she clearly indicated that she had some health issues and that she was likely to be hospitalised in relation to a potential operation. Her evidence as to her acceptance of things told to her by the father gave the Court real concern that she, too, readily accepted what he said as the truth. Ms Neville put to her that she would find it difficult to say “no” to the father and her response was that that was the reason that she had taken the AVO out against him. This again causes the Court concern that the paternal grandmother needed the protection of such an order to deal with the father. Clearly, the paternal grandmother is placed in a position of some conflict, wishing to support the father as her son, but realising that when he is affected by illicit drugs she has little ability to control him, given that he becomes angry and physically violent at the time. Her evidence was that she felt rattled rather than unsafe and that the father had little ability to comply with, what she described as, her and her partner’s house rules.
The paternal grandmother confirmed that the father had exhibited some violence in her home in October 2014, where he had damaged a door and as a result an AVO had issued in early November 2014. The paternal grandmother’s description of that incident, to some extent, coincided with her observations of the father, when affected by illicit drug use. Further, his behaviour was consistent with an anger management issue, which the father did not accept that he had. The father, in his oral evidence, accepted that he had put his knee through the bedroom door of the paternal grandmother’s home. The father conceded that he had also put a hole in a door at his home. The father said that this was after an AVO had been taken out by the police against him for the protection of Ms S in about June 2014. He said that he had been sleeping with Ms S in a caravan (he had no explanation as to how this could have occurred when his evidence was that he was no longer in a relationship with her at that time) and had left to get cigarettes, returned and was, thereupon, attacked by Ms S, who kicked him in the testicles, punched him in the eye and that he had simply defended himself by blocking her attack. When the police arrived he said that given his physical stature and that of Ms S and Ms S’s apparent injuries, he was charged with assault and grievous bodily harm and that he defended himself but had been found guilty. This issue had then been dealt with by way of a finding of a breach of an 8 month suspended sentence and in December 2014 (when he appears to have then been resident at the (omitted) Motel he was gaoled for some 2 weeks, getting out, he said ,“on appeal”. He then said that he was hospitalised for a period at the (omitted) hospital and conceded that he was not in a good state at that time and not able to care for the child.
The father also agreed that he had put a hole in the door between the kitchen and the lounge room at the house he was occupying with the child. He claimed that the child had not seen the hole as he had put a towel over it and he argued that if the child had not seen it, it would not affect the child.
Departmental case work officer’s evidence
Ms J’s affidavit was read. She was examined by the father. There was no critical attack on her evidence. She confirmed that a long term placement for the child had been identified and the child was currently in transition into this placement.
Ms J further confirmed that there was a list of tasks (substantially set out in paragraph 119 of her affidavit) which, if attended to by the father, would see him once again spending time with the child in a supervised environment initially and then progressing to unsupervised time. Those matters covered urine testing, a mental health assessment, a drug and alcohol assessment, the provision of contact details and stable accommodation which could be verified.
The Court accepts Ms J’s evidence referrable to the child’s health and the Department’s involvement in dealing with dental issues, a slight heart murmur, grommets and a health management plan.
Ms J sets out in detail the various urinalysis tests requested and supplied by the father. During a home visit in June 2013, Ms J records a conversation with the father wherein he admitted smoking a joint and in relation to his urinalysis results for amphetamines suggested that his friends “might have spiked his drink”.
Ms J records receiving a report by a mandatory reporter in February 2014 when the father had visited Ms S in hospital accompanied by the child. The reporter noted the child presented as dirty and dishevelled with no shoes and appeared tired and was located unsupervised in the drug room, while the father was kissing and touching Ms S.
During a home visit in March 2014, Ms J said that the father admitted using “Ice” about a week and a half earlier.
During the March 2014 home visit, the father confirmed he was under financial pressure and stress and reiterated his concerns about his bipolar disorder. He believed that his mental health difficulties were drug induced. Ms J observed a large hole in the kitchen door which the father admitted to her he had caused, rather than hitting Ms S. At that time, there was no towel over the hole as Ms J said she had not observed the hole before. More than likely, in those circumstances, the child would have seen the hole, notwithstanding what the father said.
Due to Departmental concerns, the child was assumed into the care of the Department on 21 March 2014 and an emergency care and protection order was made on 26 March 2014 for a period of 14 days until 9 April 2014.
Based on the Department’s assessment, the child could not be placed into the care of either the mother or the father and a case plan has been devised to enable the father and the mother to spend time with the child going forward. In light of that case plan, in October, November 2014 and February 2015, the father had supervised time with the child.
The Court is confident that the Department will pursue the issue of some form of regular time between the child and both the mother and the father (on at least a bi-monthly basis) provided the Departmental concerns in respect of each of the parties have been appropriately addressed and weight is attached to that in support of the Department’s proposed orders.
Primary considerations
In order to determine the child’s best interests, the Court must have regard to the “primary considerations” under s.60CC(2) which are:
a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the considerations set out in the subsection (2), the Court is to give greater weight to the consideration in paragraph 2(b). See s.60CC(2A).
The following terms “abuse” (see s.4) and “family violence” (see s.4AB(1)) are defined in the Act as follows:
abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
Section 4AB(2) provides examples of behaviour that may constitute family violence which include but are not limited to:
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
The Court notes the examples set out in s.4AB(2) provide a non-exhaustive list. The explanatory memorandum (at 17) referrable to the introduction of the relevant provision provided that: “Behaviour that fits within the general characterisation set out in the definition will be captured. …The definition encompasses patterns of family violence and single violent events”.
For proceedings commenced after 7 June 2012, the definition of family violence no longer requires a person to reasonably fear for their own safety or well-being.
A child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence. (see s.4AB(3)). The Act provides in s.4AB(4) examples of situations that may constitute a child being exposed to family violence which include but are not limited to the child:
(a) overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b) seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c) comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d) cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
The Court accepts that while the child would, ordinarily, benefit from having a meaningful relationship with both of her parents there are significant risks associated with this as considered below. While Dr P considered that the child had an attachment relationship with each parent, his view was that that relationship had been compromised by various factors, including an insecurity and vulnerability with the father and a lack of active engagement with the mother.
In this regard, the primary consideration referred to in s.60CC(2)(b) is:
a)relevant on the facts of the case.
b)relevant in that there was domestic violence (including physical violence) occurring between the parties during their relationship and both parties have extensive histories of illicit substance/alcohol use, giving rise to concerns in relation to both parties’ ability to appropriately care for the child. Each parent’s involvement with drugs has meant that they have been unreliable in caring for the child in the past. Neither parent has presented evidence that would satisfy the Court that those historic issues have been successfully resolved.
c)relevant notwithstanding the father’s denials as to physical violence against the mother, as the father’s conduct, as observed by Dr P, falls within the definition of family violence insofar as that conduct was coercive and controlling of the mother’s behaviour and of the behaviour of Ms S. Indeed, it extended to his own mother.
The Court accepts that the child has been exposed to family violence and neglect in the care of both the mother and the father. Dr P’s view, which the Court accepts, was that there was a risk of direct physical abuse of the child by the mother and exposure to family violence and that same risk applied in the father’s household, particularly, given the father’s involvement with Ms S and his ongoing positive tests for amphetamine and cannabis use.
The Court finds that this case involves the Court considering orders that maintain a relationship between the child who, in the Court’s opinion, should remain in the care of the Department, and the parents who are both unable to effectively care for the child at this stage. Therefore, the focus is not on maintaining meaningful relationships but ensuring that the child is protected from physical or psychological harm and from being subjected to or exposed to, abuse, neglect or family violence.
The mother and the Independent Children’s Lawyer accept that the child, outside the care of the Department, would be placed in an unacceptable risk of harm. The Court is of a similar view given the father’s lifestyle choices and his lack of any insight into how to overcome those for the benefit of the child. While he understands what needs to be done, he appears unable to effectively implement the same over time. To that extent, notwithstanding his asserted good intentions, he continues to take illicit drugs and to associate with persons who would potentially expose the child to risk. The Court has no satisfactory evidence before it to show that the father has engaged in any process to deal with his illicit drug use, the domestic violence issues flowing from his relationship with Ms S and his unresolved mental health issues. The father failed to complete or attend all of his designated sessions with his psychologist referred to in paragraph 50 above.
In the above circumstances, the Court accepts that the Department will facilitate an ongoing relationship between the child and her parents in a safe and predictable way. The Court also accepts that given the unpredictability of the personal circumstances of each of the mother and the father, that any arrangements for time between the child and her biological parents needs to be flexible and at the direction of the Department, rather than as set in place by order of this Court. The Department would be in the best place to monitor the child’s ongoing needs for time with each parent and to adjust and facilitate those arrangements into the future.
Additional considerations
The Court must have regard to each of the “additional considerations” under s.60CC(3) of the Act separately, to consider how, together, they should give effect to either or both of the primary considerations in order to determine a child’s best interests. These are as are set out below:
(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;
Given the age of the child, her views were not sought nor expected. She was aged 2 years at the time of Dr P’s observation and was assessed through his observations of her with each parent.
(b) the nature of the relationship of the child with:
(i) each of the child's parents;
The Court accepts Dr P’s view that the child has a secondary attachment relationship with the mother, as a consequence of her reduced role and time with the child.
The Court accepts Dr P’s view that the child has an anxious-avoidant attachment to the father, likely to have developed as a consequence of learning that her signals of need were not likely to be met and/or that such signals could be dangerous in the terms of any response that they provoked. Further, the Court accepts Dr P’s view that the father lacked emphatic attunement with the child and did not have a good understanding of her emotional needs. Weight is attached to that.
and other persons (including any grandparent or other relative of the child);
The Court accepts Dr P’s finding that the child also has a secondary attachment relationship with her paternal grandmother, which is mostly secure. The paternal grandmother also appeared to be emphatically attuned to the child’s needs.
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
After the parties separated, the father showed a commitment to the child in his care and since the child has been under the care of the Department, he has taken up most of the opportunities of spending supervised time with her, save when he was incarcerated or when his time was interrupted due to Departmental concerns about his mental health.
After the parties’ separation, while the mother commenced these proceedings seeking a return of the child to her care, she now no longer seeks such an order. When the child has been in the care of the Department, she has, at times, missed opportunities to spend supervised time with the child, including when such time was interrupted by her incarceration.
At the time the child moved into the care of the Department, it had assessed the mother and the father as lacking the capacity to care for her.
The Court accepts that both the father and the mother love the child but they have been unable to consistently take up the opportunity to make decisions for, spend time with and communicate with her in a safe and predictable manner, given the father’s illicit drug use, mental health issues and the mother’s unstable history and illicit drug use.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
Shortly prior to the child moving into the care of the Department, the father had been her sole financial provider while she was in his care.
The Court accepts that the father, at the time of the hearing, had no stable accommodation so as to maintain the child with a fixed roof over her head.
There is no evidence that either the father or the mother have ever paid any child support. Given the circumstances of the parties, it is unlikely that the father or the mother have sufficient means to pay child support, in any event.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents;
The child has not been in the care of either of her parents since March 2014, when the child was approximately 2 years of age. The child is now 3 years of age.
The Court accepts that as neither parent has placed any evidence before the Court to suggest that any of the issues leading to the intervention of the Department have been satisfactorily addressed, the Court has no confidence that if the child was to return to live with the father that he could meet her needs and care for her safely and predictably.
The child has experienced a safe placement since her removal from the father’s care. The Court would not likely return her to an environment where family violence was likely or even possible, as that would have the potential to compound further harm upon past harm, which the Court accepts the child was exposed to.
The child is currently undergoing transition into a permanent placement, arranged by the Department.
The Court accepts the evidence of Dr P that the child will potentially adapt well to separation from both her parents if she is the subject of adequate and predictable care by an alternate carer. Weight is attached to that.
or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
This consideration is not significant in this case.
(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;
Given the mother’s position, she would seek to be able to spend time with the child in a geographic location which minimises any potential difficulty and expenses. A similar consideration applies to the father. The father generally lives in the (omitted) and (omitted) areas and the mother has lived in the (omitted), (omitted) and (omitted). Accepting that both parties have limited financial resources, this issue will impact potentially on their spend time arrangements if the long term carers identified for the child are a substantial distance away from the parents. The Court raised this specifically with the Department and the Court accepts the matters in Exhibit “Court 2” which are to be noted by it, deal with these concerns.
The Court accepts that if the Department deems ongoing supervision of each parent’s time with the child is appropriate, then the costs of such supervision would be met by the Department.
(f) the capacity of:
(i) each of the child's parents; to provide for the needs of the child, including emotional and intellectual needs
Dr P considered that the father suffered from moderate to severe amphetamine-induced bi-polar disorder and that he had a significant personality dysfunction. The father has had an unstable relationship with Ms S, which appears to be continuing. Ms S has accused the father of assaulting her and he has accused Ms S of assaulting him. There is a final AVO against the father in Ms S’s favour. The father maintains that the police will not assist him in taking out any AVOs and, in those circumstances, he feels that he is without protection and has been ignored by the legal system. The father confirmed that he had informed the Department that he had had a nervous breakdown at the end of 2014, had used amphetamines and cannabis at times and had been in gaol for a period of 2 weeks at the end of 2014 and was, currently, without any stable accommodation.
The Court accepts that the father had not, at the time of hearing, addressed his amphetamine use. While he appears to understand the need to do so and has attempted to deal with that issue, he has not been successful in his attempts and has relapsed over and over again.
The Court, further, accepts that the father has not dealt with his mental health concerns. The father appears to accept that those concerns stem from his drug use, which he has not been able to cease. The father does not appear to have undergone any treatment, save for obtaining literature about ceasing drug use and attending some irregular counselling although it appears to have had little effect as he has no insight for the need for specific treatment to assist him.
The Court accepts that the father does not have the current capacity to reflect on the impact of his illicit drug usage on his ability to meet the physical and emotional needs of the child and provide her with a safe environment and a safe role model. When affected by drugs, the father has an altered demeanour which will potentially negatively impact on the child’s needs and care and for the father’s ability to meet them. The Court accepts the father is unable to prioritise the child’s needs over his own needs and that this compromises his parenting capacity.
The Court, further, accepts that the father’s failure to appreciate the grounds upon which the Department initially removed the child from his care, which went well beyond simply his poor relationship with Ms S, as he asserted, and went directly to his drug use, mental health issues and the issues of violence including those involving Ms S, were indicative of his lack of insight as to what was occurring in his own life at that time.
The Court accepts the Independent Children Lawyer’s submission that given the father’s evidence, there was a real doubt as to the father’s ability to provide for his own needs, let alone those of the child.
Dr P considered that the mother had an alcohol use disorder of moderate severity, in partial remission but that there was a significant risk of relapse into alcohol and/or drug use and that she had immature life skills and coping strategies and that her immaturity and normalisation of dysfunctional lifestyles would make it difficult for her to consistently meet the child’s needs. The mother was also incarcerated at the end of 2014 for breaches of AVOs. The mother appears to accept the Doctor’s views, given her agreement to the Department’s proposal. She is to be given credit in that regard.
The Court accepts that the mother and the father do not have the current capacity to provide for the child’s needs at this point in time nor into the future.
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 paternal grandmother may have had the necessary capacity but given her evidence, she is not a viable carer for the child, into the future.
The father’s continuing involvement with Ms S is of concern as it appears to give rise to ongoing violence. Even if the father is the victim, as he alleges, the child would be exposed potentially to the risk of Ms S’s conduct. Notwithstanding the father’s evidence about moving addresses and limiting his mobile phone contact details, he confirmed that he had met up with Ms S a week before the hearing. The Court accepts the Independent Children’s Lawyer submission that it should have been obvious to the father that meeting with Ms S only bought him more trouble but despite that he arranged to meet with her which clearly indicated a lack of insight. The father’s inability to sort out his own life means that he is not currently in a position to care for the child.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant.
The child has not had any significant medical issues.
The child was observed by Dr P to be physically robust, coordinated, alert and able to communicate.
Nevertheless, the Court accepts that the child, given her young age, is vulnerable. The Court also accepts Dr P’s view that the child was likely to have experienced neglect in each of her parent’s care.
The Court accepts, further, that given the child’s background, she is likely to be more vulnerable to emotional and/or psychological harm in the event that she was to return to the care of either parent and such care proved inadequate. The child has already now experienced 12 months away from the care of either of her parents.
The father gave evidence that Ms S was 16-17 years of age and in the care of the Department when he commenced a relationship with her. That made the father over 20 years older than Ms S at the time of their relationship. The father also accepted that the mother was also aged 16 years and in the care of the Department when he commenced a relationship with her. At that time, the father was close to 20 years older than the mother.
The father’s personality appeared such that he sought to place blame on others, rather than to take responsibility for matters himself. He blamed the police for not taking out AVOs on his behalf. He blamed the (omitted) Mental Health for a misdiagnosis of his mental health condition. He blamed lawyers representing him in AVO proceedings for failing to look at all of the documents. He blamed others for his drug usage, including the mother, who he said encouraged him to use drugs to get evidence against him. He acknowledged that spending 2 weeks in gaol at the end of 2014 was a “wake up call”. Notwithstanding that, he blamed Ms S who telephoned him in gaol and said she had “cheated on him”, only to once again involve himself with Ms S, one week prior to the hearing. He said that he had since been released from gaol, seen his GP, been placed on anti-depressants and was now performing in accordance with probation and parole requirements. He maintained that he was now “totally open with all government departments” and had followed the advice of “Mr G” (from the mental health advocacy services) and that he was willing to work with the Department and provide further urinalysis tests.
Both parties’ engagement in a drug lifestyle has severely compromised their ability to care for the child and exposed her to a significant risk not only in living with each parent, but in spending time or communicating with them. This weighs significantly in favour of the Department’s proposed orders.
(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;
The mother did not identify herself as Aboriginal during Dr P’s interview. Dr P refers to noting that the maternal grandmother’s affidavit made mention of “koori blood” through the maternal grandmother’s father. The mother also indicated in an interview with the case worker Ms J that her step father was Aboriginal. The Department asked the mother whether she identified as Aboriginal and her response was that she did not. The Court, therefore, accepts that cultural considerations do not necessarily arise in relation to the child.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
The Court accepts that both the father and the mother love the child.
The Court accepts, further, that each parties’ personal circumstances and lifestyle choices, including exposure to drugs has prevented them from providing a proper regime of care for the child and from fulfilling their responsibilities as parent.
Both parents have demonstrated a poor attitude to the responsibilities of parenting, for various reasons. The mother, to her credit, accepts that the child is best placed in the care of the Department, at this time. The father maintained that the child should be returned to his care. While the Court accepts that Dr P considered that the father had a strong commitment to the child and to his perception of his responsibility as a parent, the evidence showed that the father’s commitment was often disrupted by the pursuit of his own needs. The Court is of the view that the father does not have an appropriate attitude to the child or the responsibilities of parenthood.
The father’s evidence was that he had at various times taken cannabis, amphetamines and methamphetamines. However, he was evasive and impatient in response to Ms Neville’s questioning, in this regard. The father gave evidence that he did not think it would impact on the child if he was taking drugs, while the child was not in his care or presence. This position demonstrated a complete lack of understanding of how drug use, particularly chronic drug use could negatively affect a child and, in particular, the parent’s capacity to care for the child.
The father also gave evidence that he did not believe that it would be distressing to a child to be present during disputes between the father and his girlfriend/partner, similar to the disputes that had given rise to the various AVOs against the father. This belief gives the Court serious concerns as to the father’s parenting capacity.
(j) any family violence involving the child or a member of the child's family;
The Court accepts that both parents have been involved in incidents of family violence.
The Court accepts that the child has been exposed to family violence when in both the mother’s and the father’s care. The father conceded in March 2014 to putting a hole in the door of his kitchen and in October 2014 to putting a hole in the door at his mother’s home. The Court accepts that the father has current issues with anger management, particularly, under the influence or under the effect of illicit drug usage. The Court accepts that the father does not appear to have any relevant insight into this and, accordingly, has not sought specific assistance by way of counselling. Indeed, his evidence was that he did not believe he had any anger management issues. The Court accepts that it is likely that the father’s issues of aggression have closely coincided with the times he has been using methamphetamines. The father’s behaviour in May 2014, at the Department’s office in rearranging pamphlets and swearing at staff was highly inappropriate and if the father’s time with the child had not been suspended at that time it is likely that his demeanour would have had a negative effect on the child. His lack of insight as to his drug usage has also, negatively, impacted on his insight into his anger management.
The father’s evidence was that he was not in a relationship with Ms S. However, despite describing a volatile relationship and stating that she was “stalking him”, the father acknowledged that he had made contact with her since the incident on 14 February 2015. In this regard, the father said that maybe “he cared about people too much”.
When Ms Neville put allegations to the father in relation to medical records from 31 March 2014 which record that Ms S attended a medical centre after being assaulted “by an ex-boyfriend”, around the time that she was in an “on again/ off again” relationship with the father, the father said that he had never assaulted Ms S but that she had assaulted him on many occasions and that she liked to get into fights and had assaulted many people. He, nevertheless, conceded he used physical force to defend himself. That physical force occasioning the injuries set out in paragraph 63 above.
The father laid all blame for any family violence in his relationships with both Ms S and the mother, at their feet and accepted no responsibility for any conflict in those relationships. Indeed, in relation to an incident whereby the father smashed a hole in the door between the kitchen and the laundry during an argument with Ms S, the father said “I put a hole through the laundry door, or it would have been [Ms S’s] head”.
The father’s evidence was that although the Police took out an AVO against him for the protection of Ms S in about June 2014, it was, in fact, Ms S who had assaulted him and he had “defended himself”. This even resulted in the father receiving an 8 month suspended sentence.
(k) if a family violence order applies, or has applied, (be it final, interim, contested or consented to) to the child or a member of the child’s family-any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
The father had a number of offences and convictions recorded on his criminal history bail report (Exhibit “Intervenor 1”), including driving a motor vehicle under the influence of alcohol or other drugs (October 2000; June 2002; September 2009), driving while unlicensed (October 2000; November 2006; September 2009), assault (August 2004; May 2011;), using offensive language (October 2006).
In September 2014, the father received in the Local Court of New South Wales at Nowra an 8 month sentence suspended on entry of a bond for an assault occasioning actual bodily harm and for contravening a prohibition/restriction in an AVO (domestic).
On 1 December 2014, the father was sentenced on a call up for 8 months commencing on 1 December 2014 with a non-parole period of 2 months concluding on 30 January 2015, in respect of a breach of the bond referred to in paragraph 137 above. The father was imprisoned but subsequently lodged an appeal. The appeal against sentence from the District Court records appears to have been dismissed on 16 December 2014, with the penalty varied in terms of the father then being released having served time and with no further action taken for the breach of the bond. An entry in the NSW Corrective Services records, somewhat inconsistently, that the appeal had been upheld.
The father’s evidence was that the police would never apply for an AVO for his protection.
(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 Court accepts that if the child was to remain living with the father, this would likely lead to further proceedings, given the instability in his life.
The Court accepts the submission of the Department that the order least likely to lead to further proceedings is an order providing that responsibility for the child’s long term care be in the Department.
(m) any other fact or circumstance that the court thinks is relevant
The mother’s Counsel stated that there was some concern about the father’s evidence about him possibly going to Victoria for a new start and, at the same time, his evidence about a new relationship with a 25 year old woman and her 16 month old daughter, living in the (omitted) area. This again demonstrated the potential instability in the father’s lifestyle.
Further, Dr P made certain recommendations about the father attending to outstanding mental health issues. Given the father’s evidence, it is apparent that he has taken not taken active steps to fully deal with those issues, notwithstanding that he had been well aware of them since the provision of Dr P’s report.
The father, in his final submissions, was critical of the mother in moving many times and being in and out of gaol and in that regard, being “no better than him”. The father regretted being with Ms S, but could offer no explanation as to why he continues to meet up with her. He confirmed he regretted his erratic behaviour at his mother’s home and said that he was distraught and emotional. He believed that his mental health issues had been brought about by his use of drugs, but considered himself to be now drug free. He then stated that he had no evidence to that effect and in those circumstances was prepared to work with the Department to attend parenting seminars and carry out urinalysis tests. He wanted to improve his life and become a family lawyer.
Live with
The Court accepts that the child should live as directed by Secretary of the Department, in whom parental responsibility will vest.
Spend time
The Court also accepts that given the uncertainty about the father’s drug use, mental health issues and family violence, it could have no confidence in prescribing a level of time the father could spend with the child or as the Department submitted “even manage a sable trajectory” for the exercise of any such time. Therefore, the Court accepts the spend time orders as promoted by the Department as being in the child’s best interest on the basis that they protect her from any unacceptable risk of harm.
Other matters
The father raised concerns that all at the bar table were female Counsel representing the mother, the Independent Children’s Lawyer and the Department (including the instructing solicitors and the Departmental caseworker) and that only he and the Judge were males. Nothing turns on that concern.
The father refers to “s.90” in terms of his orders. Section 90 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) refers to an application for the rescission or variation of care orders which may be made with the leave of the New South Wales Children’s Court. That provision is not relevantly applicable to the jurisdiction exercised by this Court.
The father’s proposed orders would appear to be of an interim nature. The Court accepts that it is in the best interests of this child for the matter to be dealt with on a final basis.
The father’s proposed orders referrable to injunctive relief in relation to the involvement of certain Departmental workers is outside the jurisdiction of this Court and even if it were not, there is no evidentiary basis upon which that jurisdiction should be exercised.
Conclusion
Having considered the matters referred to above, and having given such matters the weight referred to and for the reasons set out herein, the Court is of the view that the orders the subject of the Department’s proposal, as consented to by the mother and the Independent Children’s Lawyer are in the best interests of the child and, accordingly, the Court will so order.
The Court will note the matters referred to in Exhibit “Court 2” as referred to in paragraph 105 above.
The Court will order the discharge of the appointment of the Independent Children’s Lawyer.
I certify that the preceding one hundred and fifty-three(153) paragraphs are a true copy of the reasons for judgment of Judge Kemp
Associate:
Date: 27 March 2015
Key Legal Topics
Areas of Law
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Family Law
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Administrative Law
Legal Concepts
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Consent
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Injunction
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Procedural Fairness
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Remedies
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Standing
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