Thomas & Anor & Franklin

FAMILY COURT OF AUSTRALIA

THOMAS & ANOR & FRANKLIN & ANOR

[2013] FamCA 618

FAMILY LAW – PRACTICE AND PROCEDURE – De novo hearing – CHILDREN – Application by non-parents – Foster parents – Where the child has been reunified with his mother – CHILD ABUSE – Where the child was historically a victim of child abuse – Neglect – Whether there is unacceptable risk for the child to live with the mother – Where the child is returned to live with the foster parents – Where the child is to spend time with his mother.

Family Law Act 1975 (Cth) s60B, s60C, s60CA, s60CC(2), s60CC (3), s61DA, s64B, s64C, s65C(c), s65DAA,

Aldridge & Keaton [2009] FamCAFC 229.

Donnell & Dovey (2010) FLC 93-428.

1st APPLICANT:	Ms Thomas
2nd APPLICANT:	Mr Thomas
1st RESPONDENT:	Ms Franklin
2nd RESPONDENT:	Mr O
FILE NUMBER:	BRC	2356	of	2013
DATE DELIVERED:	23 August 2013
PLACE DELIVERED:	Brisbane
PLACE HEARD:	Brisbane
JUDGMENT OF:	Hogan J
HEARING DATE:	5 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANTS:	Mr Jordan
SOLICITOR FOR THE APPLICANTS:	Honeychurch Lawyers
COUNSEL FOR THE 1ST RESPONDENT:	Mr Tucker
SOLICITOR FOR THE 1ST RESPONDENT:	Carroll Fairon Solicitors
FOR THE 2ND RESPONDENT:	No appearance

it is ordered until further order

That all previous Orders be discharged.
That the child B, born … 2010 live with the Applicants.
This Order is authority for Child Dispute Services, Level 3 Harry Gibbs Commonwealth Law Courts Brisbane, to deliver the child, R born … 2010, into the care of the Applicants, Ms Thomas and or Mr Thomas.
That the Applicants jointly have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) in respect of the child, save that they shall, prior to making the decision about any such issue:
(a)use their best endeavours to advise the mother in writing of the decision intended to be made;
(b)seek her written response in relation thereto;
(c)consider, by reference to the best interests of the child, any such response prior to making any such decision;
(d)advise the mother in writing as soon as reasonably practicable of ultimate decision.
That each party has responsibility for daily decisions about the day to day care, welfare and development of the child while he in is his or her care.
That the child shall spend time and communicate with the mother, at all times as agreed between the parties and failing agreement as follows:
(a) From 9 am Saturday until 5.00pm Saturday each week;
(b) By telephone at all reasonable times.
That the party into whose care the child is going shall collect the child from an agreed meeting point close to the residence of the other party at the commencement of the period of time the child is to spend with that party.
That the mother do all things and take all steps necessary to ensure that Mr W does not attend at or be present at any such change over.
That the parties shall communicate with each other about the child in writing including via e-mail and the Applicants and the Mother shall each inform the other of an email address for use in such communication.
That each party shall provide to the others a contact telephone number and residential address and shall advise of any change to the same within 48 hours of such change occurring.
That each party shall keep the others informed of the details of the child’s school, day care and health care professionals and advise of any change to that information within 7 days of any change.
That each party shall advise the others, as soon as is reasonably practicable, of any serious illness or medical emergency that relates to the child.
That by this Order any educational facility at which the child attends and any health service provider upon whom the child attends is hereby authorised to provide to the parties, at their cost, any information, document or thing in relation to the child (including, but not limited to reports, letters, photographs and the like) and to discuss all matters pertaining to the child’s education, health and wellbeing.
That the parties shall be allowed to attend any extracurricular activities that a parent is entitled to attend.
That each party refrain from denigrating or making critical or derogatory remarks about any other party and any member of that party’s family to the child or in the presence or within the hearing of the child.
Each party shall do all things reasonably necessary to remove the child from the presence of any other person who makes any denigrating, critical or derogatory remarks about any other party or members of another party’s family to the child or in the presence or within the hearing of the child.
That the parties be restrained and an injunction be granted restraining the parties from discussing any Court proceedings in the presence or hearing of the child.
That the parties be restrained and an injunction be granted restraining the parties from consuming excessive alcohol or any illicit drugs at any time the child is in that party’s care.
That the parties be restrained and an injunction be granted restraining the parties from using physical discipline on the child at any time he is in their care.
That each party will use their best endeavours to ensure that no other person uses physical discipline on the child.
That pursuant to s 68L(2)(a) of the Family Law Act (1975)(Cth) an Independent Children’s Lawyer be appointed to independently represent the child’s interests in these proceedings and it is requested that Legal Aid Queensland do all things necessary to secure such independent representation.
That forthwith upon appointment by Legal Aid Queensland the Independent Children’s Lawyer file a Notice of Address for Service.
That upon filing a Notice of Address for Service the Independent Children’s Lawyer have leave to inspect the Court file and obtain a copy of any material filed to date.
That within 48 hours of being notified of the Independent Children’s Lawyer’s address for service, each party provide to the Independent Children’s Lawyer a copy of all material so far filed on that party’s behalf.
That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Thomas and Anor & Franklin and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2356 of 2013

Ms Thomas and Mr Thomas

Applicants

And

Ms Franklin

First Respondent

and

Mr O

Second Respondent

REASONS FOR JUDGMENT

B, born in 2010 (“the child”) was placed into the care of the Applicants, his foster carers, by the Department of Communities, Child Safety and Disability services (“ the Department”) on 22 July 2010. At that time he was about 10 weeks old. His placement was consequent upon him suffering 2 “non-accidental” fractures, one to his left arm and one to his left ankle (“the non-accidental fractures”), whilst in the care of his mother and her then partner, Mr G.
Save for being told that the mother had not provided any explanation for the cause of the non-accidental fractures[1], the Applicants were given no other information about the causation of such injuries. Mr Thomas says, and it is not challenged, that when the child came into the Applicants’ care he was very small for his age, seemed frail and did not cry at all. Mr Thomas described the child as “emotionless”.
[1] Affidavit of Mr Thomas filed 22 April 2013, paragraph 29.
Mr O, the child’s biological father, and the Second Respondent, has not been a presence in the child’s life save for, according to Ms Thomas, an occasion where he attempted to take the child from her at a local shopping centre and became verbally abusive toward her in front of the child and her three biological children. He did not participate in the proceedings before me and is thought to be incarcerated. The mother, the First Respondent, has said that the Second Respondent has been in contact with her and that she will encourage contact between the child and his father if it is in the child’s best interests to do so.
The Applicants have three biological children now aged nine, eight and five years respectively. These children were about six, five and two years of age respectively at the time the child started to live with them and their parents. As a consequence of living in a household with three children who called the Applicants “mum” and “dad”, the child used the same terms to refer to them once he started to talk.
The Applicants have been foster carers since early 2010. They have cared for over 20 foster children for regular long-term respite and longer periods. Their evidence that they have always actively supported the Department’s decisions to reunify children with biological parents has not seriously been challenged.
Mr Thomas’s mother, who is an enrolled nurse, and his father live on the same property, in a residence located approximately 20 m away, as the Applicants and their children. Ms T Thomas has known the child since he arrived at the Applicants’ home at which time she described him as being very fragile. Her evidence corroborates that of Mr Thomas referred to above.
Ms T Thomas says that the child has identified the Applicants’ children as his brothers and sisters and refers to herself and her husband as “Nan” and “Pa” since he has been able to speak. So much is almost inevitable given his age when he started to live with the Applicants.
The child was, prior to his birth, the subject of an “un-born child” notification to the Department as a result of allegations that his mother threatened to kill him when he was born if he were a boy.
Consequent upon the following Child Protection Orders, the child lived with the Applicants until April 2013:
a)for the period 22 July 2010 until 18 August 2010: an interim order for custody;
b)for the period 19 August 2010 until 11 November 2010: interim order for custody;
c)for the period 11 November 2010 until 11 May 2012: a short term child protection order;
d)for the period from 31 May 2012 until 31 May 2013: a short-term child protection order.
The child’s mother left Queensland and travelled to Melbourne in about December 2010. She lived with her partner, Mr G, who was present during the only time the mother says the child was out of her care prior to him suffering the injury to his arm. During this period the Department considered that the mother had “abandoned” the child. The mother did not spend time with the child until after her return to Queensland in December 2011.
On 23 May 2011, the Victorian Department of Human Services, issued a protection application in relation to the mother’s second child (“B”) who was born in 2011 and who is currently about 2 years and three months of age. On 24 May 2011, R was placed on an Interim Accommodation Order with Mr J G on condition that the mother was permitted to live with him and her time with the child be fully supervised by Mr J G or other family members approved by the Department.
The mother returned to Queensland with R on 15 December 2011 with the assistance of her current partner, who is not the biological father of either of her children. When interviewed by the Department she stated that an incident had occurred on the previous weekend where R was thrown, by Mr G, across the room onto the sofa. She said that she had taken the child to a doctor but was not able fully to disclose the situation to the doctor because R’s father was there and she was fearful of retribution. She said she didn’t see what had happened but heard R cry in a manner different to that which she had previously heard.
On 16 December 2011, a child protection notification was made in respect of B. This Notification was based upon an alleged persistence of family violence in the mother’s relationship with her then partner, her own sworn testimony that her partner had thrown R on a couch and concerns that she was transient and had no money.
The Department acted to remove R from the mother’s care and place him in the care of the Applicants. It was at this time that the child met R for the very first time.
Ms Thomas asserts[2] that R came into the Applicants’ care dressed in clothing she described as being in a “filthy state” and with bottles covered in mould. Well before these proceedings were commenced, Ms Thomas had passed this information on to the Department in an email sent on 18 December 2011. Despite having the opportunity to put this assertion in context the mother has not done so. Ms Thomas also says that the mother provided written instructions to “try” R on three bottles per day and chopped apple which, given his age and lack of teeth demonstrated a lack of appreciation of the appropriate nutritional needs of a child of his age. I accept that, if suggested, such proposal demonstrated a lack of proper appreciation of the dietary needs and requirements of a child of R’s age.
[2] Affidavit of Ms Thomas filed 11 April 2013, paragraph 40.
R remained in the care of the Applicants for approximately one month, during which he was examined at a local hospital. The hospital did not report anything of concern. He was returned to the mother’s care.
R was the subject of a Child Protection Order requiring the Chief Executive of the Department to supervise his protection and a Child Protection Order directing that any contact with his father (Mr G) be supervised. These two orders expired on 28 June 2013 with the consequence that there is no longer any Departmental supervision or oversight of his care.
The Applicants assert that, in December 2012, the Departmental case manager indicated that the Department would not apply for a further Child Protection Order in relation to the child upon the expiration of the existing order because of a belief that such application would not be successful. They were also advised that the child would be reunited with the mother on 31 May 2013 or earlier and that, in order to give effect to this proposal, there was a need to ensure that he spent sufficient time with the mother so as to create some form of attachment between them prior to and/or at the time of the reunification. For the purpose of this proceeding, I accept their evidence in this respect and note that actions of the Department as discussed herein seem consistent with such information.
Having spent the daytime time with the mother on occasions as discussed below, the child spent his first overnight time with the mother on 15 December 2012. In the period from 3 February 2013 until 19 April 2013, the child spent from Friday morning until Monday afternoon each week in the care of the mother.
As at 11 April 2013, when the Applicants filed an Initiating Application (“the Application”) seeking parenting orders in relation to the child, he was spending from Friday morning until Monday afternoon in the care of the mother.
On 19 April 2013 the child was reunited with his mother. He has not spent any time or had any communication with the Applicants or their children since then.
Dr L[3], the manager of the Department’s Child Safety Service Centre said, in an affidavit filed 24 April 2013, that the Department had assessed that, at the expiry of the most recent Child Protection Order on 31 May 2013, no further statutory intervention by virtue of Child Protection Orders would be sought by the Department because the mother had demonstrated that she is a parent able and willing to meet the child’s care and protection needs.
[3] who holds a Doctorate of Education conferred in 2006 and a Masters of Education (School guidance and Counselling) conferred in 1999.
The Principal Registrar heard the Application on 30 April 2013. On 24 May 2013 she dismissed the Application and ordered, with the consent of the Department, that the mother have sole parental responsibility for the child and he live with her. The Department was given leave to withdraw from the proceedings.
On 21 June 2013 the Applicants filed an application for review of the Order made by the Principal Registrar.
In the period since the expiration of the Child Protection Order on 31 May 2013 the Department has not sought any subsequent order and there has been no formal intervention in relation to the child, the mother or her family.

Do the Applicants have standing?

At the time the Application was filed the child was spending from Friday morning until Monday afternoon each week in the care of the mother and was otherwise living with the Applicants.
Section 65C(c) of the Family Law Act 1975 (Cth) (“the Act”) provides that a parenting order in relation to the child may be applied for by any other person concerned with the care, welfare or development of the child.
In Aldridge & Keaton[4] the Full Court said, at paragraph 83:
i) a two step approach is appropriate in dealing with an application for parenting orders brought by a person other than a parent, a child, or a grandparent. In other words is the applicant a person concerned with the care, welfare or development of the child (step 1) and if so, what order should be made in the best interests of the child. This consideration may lead to an order for parental responsibility, an order a child live with, spend time and or communicate with the person, or that no such order be made (step 2);
ii) s 65C does not prescribe a hierarchy of Applicants. The application falls to be determined under s 60CA guided by the objects and principles in s 60B(1) and s 60B(2) and based on consideration of relevant matters under s 60CC(2) and s 60CC(3);
[4] [2009] FamCAFC 229; (2009) FLC 93-421; 42 Fam LR 369; 235 FLR 450.

I consider, given the history of care provided by the Applicants to the child in the period from July 2010 (when he was two (2) months of age) until April 2013 that they have a relationship with him. They have had significant involvement with him in a meaningful sense, having provided entirely for his care in the 12 month period the mother lived interstate. They were a stable and consistent presence in his life until April 2013 when he was “reunited” with the mother. During the time the child lived with them they provided for, and attended to, all of his needs and acted to nurture and support him both physically and emotionally. They are clearly persons concerned with his care, welfare and development.

What are the Applicants’ submissions?

The Applicants submit that:
a)all of the evidence supports a conclusion that the child was a well-adjusted, happy, little boy prior to coming into contact and spending time with his mother and being reunified with her and placed into her care;
b)the mother’s care of the child since she commenced spending time with him has not been appropriate and he may be at continued risk of harm;
c)in the time since the child commenced overnight time with the mother, not only have they raised significant concerns with the Department but the child’s biological grandmother (Ms F Franklin) has also raised concerns about the level of care he has been receiving from the mother;
d)the child is at risk as a consequence of Mr W’s temperament and “abusive temper” given that:
i)he has previously called Ms Thomas a ‘fuckwit’ and abused her in front of the child and other children;
ii)he drove off with the children in his car at high speed.
e)there are the following significant risks in the mother’s household:
i)a history of the cycle of family violence;
ii)a history of multiple child protection notifications;
iii)the presence of “short-term” partners in that the mother has had three partners in three years.

What are the Mother’s submissions?

The respondent mother submits that:
a)the Department has no concerns and there are no unreasonable risk factors present in the mother’s care of the child;
b)the mother’s evidence of a stable, safe environment is consistent with the Department’s position;
c)the mother is concerned that the Applicants are attempting to alienate the child from his mother;
d)that the Principal Registrar property rejected the Application in the best interests of the child.

What are the applicable principles when determining a matter involving a ‘parent’ and ‘non-parents’?

This case involves competing proposals of a ‘parent’ (the mother) and ‘non-parents’ (the Applicants). In Donnell & Dovey (2010) FLC 93-428, the Full Court[5] considered the manner in which Part VII of the Act is to be applied in such a situation.
[5] Warnick, Thackray and O’Ryan JJ.
I consider that the following relevant binding principles emerge:
a)‘Parent’ means a biological or adoptive parent and does not include a person who stands in loco parentis to a child[6] - hence, the Applicants are not ‘parents’ for the purpose of Part VII of the Act;
[6] Donnell v Dovey (2010) FLC 93-428, [92].
b)Sections 60B(1) and (2) of the Act maintain a distinction between a ‘parent’ and a non-parent as the Objects expressed in s 60B(1)(a), (c) and (d) and the Principles expressed in s 60B(2)(a), (c) and (d) specifically refer only to “parents” (or parenting)[7];
[7] Ibid at [121] - [122].
c)There being no distinction between parents and non-parents in s 60CA of the Act, a child’s best interests remain the paramount consideration in deciding whether to make a particular parenting order regardless of ‘the biological (or other) connection of the child to the parties to the proceedings’[8];
[8] Ibid at [79] - [80].
d)Sections 64B(2) and 64C permit a parenting order, which includes an order for parental responsibility, to be made in favour of a non-parent as well as a ‘parent’ and an order can be made for a non-parent to share parental responsibility with another person[9];
[9] Ibid at [82] - [83].
e)In the absence of an order of the Court which allocates parental responsibility for a child or a parenting plan, only the ‘parents’ of a child have parental responsibility in relation to that child[10];
[10] Ibid at [81] - [83].
f)The presumption of equal shared parental responsibility prescribed by s 61DA and considerations of equal or significant and substantial time prescribed by s 65DAA are not ‘prescribed pathways in the reasoning process towards a best interests conclusion’[11];
g)Section 65DAA has no application in circumstances where an order is made for a parent to share parental responsibility with a person who is not a parent[12];
h)Section 60CC of the Act on its face maintains clear distinctions between a ‘parent’ and a non-parent such that:
i)Section 60CC(2)(a) has no application to a person who is not a parent and any consideration of the benefit to a child of having a meaningful relationship with a non-parent is not a primary consideration;
ii)The additional consideration in s 60CC(3)(e) does not apply to proceedings between a parent and non-parent.
i)Whilst the benefit to a child of the maintenance of a meaningful relationship with a non-parent can never be a ‘primary consideration’, this does not, of itself, mean that it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a ‘parent’[13];
j)Where the subject matter of a consideration which refers only to a ‘parent’ is relevant to a non-parent, consideration of the same can occur pursuant to s 60CC(3)(m) of the Act[14].

Need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

[11] Ibid at [86], [121] - [122].

[12] Ibid at [84] - [86].

[13] Donnell v Dovey (2010) FLC 93-428, [101] - [102].

[14] Ibid at [99].

It is clear that whilst the Court must have regard, as a primary consideration, to the benefit of the child having a meaningful relationship with both his parents, the need to protect him from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, must be given greater weight.[15]
[15] Family Law Act 1975 (Cth) s60CC(2)(b).
The Applicants filed a Notice of Child Abuse, Family Violence or Risk of Family Violence on 11 April 2013 (“the Notice”). The Notice contains allegations of “chronic neglect” and assertions that the mother lacks the capacity to attend to the child’s hygiene, nutritional and developmental needs, and has failed to feed or clothe him properly. In addition, concern is raised because of the historical fact that the child suffered non-accidental fractures to his tibia and humerus whilst in the mother’s care.
Counsel for the Applicants submitted that, because the non-accidental fractures remain unexplained by the mother, the child is at a significant risk of being subjected or exposed to abuse, neglect or family violence in her care. Counsel submitted that there is a significant need, particularly when investigations are yet to be undertaken in a court process to determine the likely cause of the non-accidental fractures, to act so as to protect the child from the potential risk of suffering physical harm or psychological harm from being subjected or exposed to abuse, neglect or family violence.

What is the evidence about the child’s broken limbs?

Departmental records suggest that, during the investigation and assessment of a Notification[16] and Concerns, reported on 18 June 2010, injuries were noted to the child’s arm. [17] Following this, the mother was advised to seek medical care which she apparently did. An x-ray revealed no fractures. Consequently, the Outcome was recorded as “Unsubstantiated – child not in need of protection”.
[16] made 25 September 2009.
[17] Affidavit of Dr L filed 24 April 2013, Annexure "SL – 1".
However, on 1 July 2010 the Department recorded a Notification following the child attending at the Emergency Department of a local hospital two weeks previously because he was not moving his arm. An x-ray taken then revealed a spiral fracture of the left arm and a buckle handle fracture of the left ankle which were described as “typical” of physical abuse. Following this, the Outcome was recorded as “Substantiated – child in need of protection.”
As at 9 July 2010 the Department considered the child to be in immediate danger because of the two suspicious fractures and the absence of an explanation for the same. As at 12 July 2010, the Department recorded that the child had suffered non-accidental injury to his arm and leg.

What explanations have been given about the cause of the non-accidental fractures?

Neither the mother nor Mr G provided an explanation for the injuries to the Department at the time the child was admitted to hospital. [18]
[18] Affidavit of Dr L filed 24 April 2013, Annexure "SL – 5".
However, in an affidavit filed nearly 3 years later on 23 April 2013, the mother provides an explanation for the cause of the ankle fracture. She says that, because the child was born with jaundice, he had to undergo several heel prick tests in hospital and one of these was carried out by a trainee nurse.
She says that after the test was performed by the trainee nurse:
a)she noticed that his foot and ankle were black;
b)she ran out to the nurses’ station and asked for someone to come and see the child to make sure he was okay;
c)when a nurse finally came, having noted the time of the last heel prick test, she confirmed that it was the heel prick that had “caused the issue”: presumably a reference by the mother to the cause of the ankle fracture.
Such information was clearly within the mother’s knowledge at the time the fracture occurred. Despite this, she did not provide this explanation to the Department at that time nor has she, in sworn evidence, provided any explanation for her failure to tell the Department about this alternative explanation for the cause of the ankle fracture at a time proximate to it occurring. The provision of such information in a timely way would have assisted in a proper investigation of causation. It is troubling that it comes only during the course of the proceedings and some three years later.
The mother also says that the nurse who attended upon her told her that she hadn’t done anything wrong. She says she made a complaint to the hospital about the nurse who had performed the heel prick test so as to ensure that there was a record of what had happened and that she did so because of her involvement with the Department as a child and cognizance of the fact that she did not want any “concerns” raised about her as the child’s mother based on this event.
That the mother records her understanding of the possibility that “concerns” may have arisen about her capacity to parent the child because of the non-accidental fractures yet failed to address such possible concern by providing, then, the explanation given now adds to, rather than detracts from, my concerns about this issue.
The mother says that, after she had been home from hospital for about a week, she noticed that the child’s arm “was not working as it should have been.” She says she took the child to a medical practitioner and was directed to attend upon the hospital. The child had a full body x-ray which revealed the non-accidental fractures.
The mother says that she could explain the ankle fracture as having occurred as part of the heel prick test administered by the trainee nurse but could not explain the fracture to the child’s arm[19]. Whilst repetitive, I note that despite swearing this in April 2013 the mother did not, on the evidence available to me, inform the Department at that time of her explanation for the cause of the heel fracture, nor did she do so upon her return to Queensland in late 2011 and prior to or during the process of reintroduction to the child implemented by the Department.
[19] Affidavit of Ms Franklin filed 23 April 2013, paragraph 6.
In addition, Department records indicate that, during the mother’s interaction with the Department of Human Services in Victoria in relation to B, both she and Mr G “continued to report that they are not aware of how the child sustained his injuries.”[20]
[20] Affidavit of Dr L filed 24 April 2013, paragraph 53.
Such assertion is clearly at odds with the explanation provided by the mother that the heel prick test administered by a trainee nurse was responsible for the child suffering a spiral fracture to his ankle. The difference in account and the maintenance of the assertions to the Department of Human Services in Victoria causes me significant concern, especially where the mother provides no explanation for her failure to tell either the Department or its Victorian counterpart the account contained within her April 2013 affidavit.
The hospital explained that the type of arm fracture sustained by the child was not sustained from birth and was more than likely “non-accidental”. According to the mother she was told that it was like “winding a tea towel up and flicking it but holding the child’s arm and twisting him around and flicking him.” She says that she certainly had not done anything like that.
The mother says that the child had been in her care the entire time save for one occasion when she went to the shop for about five minutes when her boyfriend Mr G looked after the child. She says that when she left the child was asleep and when she returned the child was asleep. She says that she did not know and “to this day” does not know how the child sustained the injuries but that she did not cause them.
Mr Thomas said that when he saw Mr G, he was “very aggressive and rough” with the child despite the child having broken bones.
Mr Thomas says that, from his perspective, either the mother caused the injuries to the child or, knowing who did, she acted to protect that person (who he assumes was Mr G). Such a conclusion is certainly not fanciful or unrealistic.
I am left with significant lingering concerns about the events by which the child suffered skeletal fractures at about two (2) months of age. I am further significantly troubled by the mother’s unexplained change of position, wherein she has gone from positively asserting that she does not know how either injury occurred to providing a potential explanation for at least one of them some significant time thereafter.
The child is still of an age where he must rely on adults for protection and is unable to act self-productively. His age and vulnerability amplify the concerns I have expressed thus far.

What were the child protection concerns identified by the Department and have theses been addressed?

The Department recorded concerns about the mother’s capacity to care for the child arising out of allegations of exposure to or involvement in domestic violence, financial hardship and the unexplained non-accidental injuries.
The Department identified, as a basis for its previous applications for Child Protection Orders :
a)the mother’s past violent relationships with partners;
b)the mother’s transience;
c)the mother’s financial hardship;
d)the mother’s own child protection history;
e)the two unexplained spiral fractures to the child’s arm and ankle;
f)the mother’s lack of adequate support network;
g)the need for the mother to continue to develop an attachment with the child; and
h)the need for the mother to continue to develop her parenting skills to enable her to provide full-time care for both the child and B.
Dr L says that, since January 2012, the mother has actively worked with the Department to address these child protection concerns, particularly those associated with her parenting skills, support network and attachment with the child and that she has made significant progress in addressing them.[21] Whilst this may be the case, it is also clear that the mother has not attended at a parenting course nor has she taken the opportunity to obtain information and support via recommended counselling to assist in the recognition of the importance of shielding the child form the harmful impacts of domestic violence.
[21] Affidavit of Dr L filed 24 April 2013, paragraph 51.
On 13 April 2012, the Department convened a family group meeting with the mother to discuss and develop a case plan for the child (“the Case Plan”). A number of goals were identified:
a)That the child needs to have the opportunity to have regular and positive contacts with his family;
b)That the child needs a mother who can develop and maintain positive and healthy relationships;
c)That the child requires a mother who can develop and maintain a healthy parent child attachment.
The inclusion of such goals at that time (April 2012) can only reflect a Departmental assessment that the mother was deficient in the identified areas.
A review of the Case Plan reveals that, as at 13 April 2012, the Department considered that the mother was yet to demonstrate her ability to provide for the child’s care and protective needs. In addition, the Department considered that the mother and child needed to re-establish a relationship and attachment and that the child needed to get to know his mother and continue to meet his little brother B.
That this was identified, at that time, as a matter requiring attention is hardly surprising given that the mother had only returned to Queensland in late 2011, having been absent for about 12 months during which time she had no interaction at all with the child.
The Department’s identified ‘Outcomes and Actions’ required that the mother demonstrate an ability to attend all of the scheduled contacts with the child, ensuring that she arrives on time and that observations of the child indicate he was enjoying the contact visits, had engaged in positive interaction and communication with the mother and was able to identify her as his mother.
That the child was unable, as at April 2012, to recognise the mother as his parent is unsurprising as is the assessment that he needed time to develop a relationship with her so as to engage in positive interaction and communication with her.
The Case Plan also records that, whilst the mother, who was at that time having contact with the child once per week, was offered a second weekly contact she was unable to provide the Department with a second day and time. This occurred despite it having been explained to her that, in order to build her attachment with the child, she needed to spend time with him more frequently. Whilst this attitude did not, seemingly, trouble the Department in its imperative to “reunify” the child and the mother, it is, I think, a demonstration of the ambivalence of the mother or of her inability to appreciate the importance of establishing a relationship with and attachment to the child beyond that which “exists” because of the fact of biological connection.
The Case Plan recorded that the child would have supervised contact with his mother each Wednesday between 10.00am and noon.
On 11 December 2012 the Department completed a review report of the Case Plan (“the Review Report”). The Review Report noted that the mother had been attending contact regularly on a weekly basis and was rebuilding an attachment with the child such that he was then able to “recognise” her. Further, the Department noted that the mother had demonstrated that she had been able to parent R in her home, that there had been no recorded domestic violence incidents and that she engaged with the Department in a positive manner. No child protection concerns had been raised during the Case Plan period.
It is of significant concern to the Court that the Review Report records ‘outcomes’ as having been achieved in circumstances where it is clear that the mother decided not to engage in the counselling sessions considered by the Department to be necessary to support her to develop insight into the effects of domestic violence and the triggers which have led to her engagement in domestically violent relationships in the past. Departmental offices identified the necessity for the child to have a mother who can maintain healthy and positive relationships. Clear proposals were formulated so as to enable the mother to demonstrate that she had been able to achieve this goal. The Department outlined and particularised the manner in which the mother’s achievement of this outcome was to be recognised. Despite the mother failing to comply with any of these particularised matters, the Department recorded the ‘outcome’ as having been ‘achieved’. This conclusion was, seemingly, reached simply because the mother told the Department that she had not been provided with counselling options, such counselling was not necessary, her circumstances had changed considerably and she was in a healthy relationship.
On 10 December 2012 the Department developed a further Case Plan (“the second Case Plan”). The second Case Plan involved planned increased time between the child and his mother commencing 15 December 2012 in order to facilitate the planned reunification of the child and the mother. The second Case Plan identified that once “the goal of three consecutive nights” had been successfully achieved, the child would be reunified full time into his mother’s care.
The second case plan records that the mother has not presented as alcohol or drug affected during recent contacts with the Department. The Department described the mother’s current family structure as “supportive with minor occasional conflict”. No further detail is provided within the Case Plan but, given the mother’s past violent relationship, it is of concern that there was any conflict deemed worthy of Departmental note.

The second case plan recorded that, commencing 15 December 2012, the child was to have overnight contact with his mother every weekend at the home of his maternal grandmother. It was intended that there be a trial period for one month and a review in the first week of January 2013. The plan was that, once the child was comfortable, the time would progress to occurring in the mother’s home with an increase in time of one night per stage until the child was spending three consecutive nights in the care of his mother. Once that “goal” was achieved it was determined that the mother would then take on the responsibility of the child’s full-time care.
On 23 January 2013 the Department made a referral to the X Society Family Intervention Service (“the Family Intervention Service”) seeking that that service work with the mother in her home. An employee of the Family Intervention Service, Ms Z, commenced twice weekly visits to the mother’s home in early February 2013.
On 15 March 2013 the Department received a preliminary report, covering the 11 visits which occurred from 15 January 2013 until 13 March 2013, from the Family Intervention Service (“the preliminary report”). The preliminary report noted that the mother and her partner were implementing strategies and activities “to build a secure attachment” with the child, that an improvement had been observed in the attachment between them and the child, that an ongoing demonstration of a secure attachment was observed and that the child interacted happily with the mother and her partner and appeared comfortable in their home environment.
On the basis of the 11 opportunities to observe the interaction between the child and the mother, the preliminary report recommended that the child be re-unified with the mother based on the observations of her positive parenting and “to foster and encourage the progress already made.” Of course, the fostering and encouraging of progress a parent may have made in their parenting of a child is not the focus of this Court. In addition, it can be inferred that Ms Z was well aware of the Department’s intention to reunify the child once the goal of three consecutive nights, which had been implemented in the mother’s care had been achieved.
The Department considered that, there being no record of further concerns in relation to domestic violence since the mother ended her relationship with Mr G in December 2011, no child protection concerns in relation to the mother’s relationship with her current partner, Mr W, that he does not have a recorded criminal history in Queensland it had no concerns about him living in the household with the children.
Whilst the Department concluded that there were no current child protection concerns in relation to the mother, I am concerned by the inconsistency in her explanation of her knowledge of any potential casual factors relating to the child suffering non-accidental injury whilst in her care. I am further concerned that, whilst the Department, determined to ‘reunify’ the child with the mother, such decision was made without the benefit of a proper assessment of the attachment of the child to the mother at the time of the reunification, his attachment to the Applicants and their family and the impact on him of being removed completely from any opportunity to continue to interact with them.

The Child’s Views

There is no evidence as to the child’s “view” and, given his age, this is not surprising.

Nature of child’s relationship with each of his parents and other persons

The Applicants say that after the child started to spend time with the mother he: returned physically smelly, dirty and very unclean; was very hungry, “uptight” and louder than usual; appeared hyperactive and violent, wanting to throw punches and wrestle; stayed up very late and wanted to come into them many times for hugs and cuddles. Mr Thomas also says he returned reeking of cigarette smoke, with teeth that didn’t appear to have been brushed and was back in nappies, his toilet training having “gone out the window”.
They say that the child also displayed behaviour indicating that he wanted to be carried by them where previously he had positively displayed behaviour demonstrating that that he did not want to be carried.
In addition, the Applicants observed bruises on the child following his return from contact, in particular on 15 April 2013 when they noticed a large bruise on the child’s back and a bruise on his arm which appeared, to them, to be a finger mark. Whilst Mr Thomas is not sure that the bruises were not caused by the child playing or falling over, he expresses understandable concern because the child has previously suffered significant physical harm in his mother’s care.
Ms Thomas gives evidence of an event, on 9 March 2013, when, having told the mother and Mr W that, because they were late in collecting the child and she had appointments in J Town if they wanted to meet her at appointments it would be there, she received a text from Mr W telling her that they would collect the child that afternoon and that it was him “jist (sic) to let u know who to whinge about to docs.” She also says that when she telephoned the mother after receiving this text, Mr W answered and said “you are such a fuckwit”.
Ms Thomas says that, later that day, when the mother came to the house the child started to cry. She says that the mother was upset and had been crying and told her that lots of really bad things were happening at home with people taking things from them and that they were having money problems. Ms Thomas says that the mother told her, in a quiet voice so that Mr W could not hear, that “I told him not to say those things or send those messages”.[22] Ms T Thomas says that as she approached the car Mr W was highly agitated and very angry, banging doors. He did not say hello to the child or acknowledge him. She says she asked him not to speak to her like he had earlier that morning and he went into a rage and began to make threats to her and continued to yell abuse at her. Ms Thomas says that the mother looked “genuinely scared” and all of the children were crying. Ms Thomas says that Mr W then sped away from their house and she could hear the loud revving of the engine several streets away. Mr W has not challenged this account.
[22] Affidavit of Ms Thomas filed 11 April 2013, paragraph 70.
While the mother agrees that a text message exchange took place, she disputes that she or children were distressed. She deposed that the only thing that Mr W said was “say good bye (sic) to foster carer [Ms Thomas]”.[23]
[23] Affidavit of Ms Franklin filed 23 April 2013, paragraph 63(k),(l) & (m).
As a consequence of the behaviour, as perceived by Ms Thomas, Ms Thomas is concerned that the mother does not have the capacity to protect the child from harm or physical violence.
Ms Thomas says that in early March the child returned smelling of sewerage – she received a message from his maternal grandmother advising that she knew he had been playing in raw sewerage and that she should disinfect her bath.
Ms T Thomas also says that the child started to pack food into his sleep-over bag before leaving for his mother’s home. In addition she is concerned, because of the on-and-off nature of the mother’s relationship with the maternal grandmother, that the child will not be provided with sufficient food given the grandmother’s involvement in purchasing the same.
Ms T Thomas is concerned that the house in which the child lives with his mother is frequented by other people who the mother does not trust (because she has complained of people taking things from the house) and who may pose a risk of harm to the child.
Ms T Thomas says that after the commencement of overnight time with the mother, the child had regular night terrors and developed significant separation anxiety. She says he locked their front door, became upset when people came to visit and hid his foster siblings’ uniforMs Zn his bedroom so they could not leave him.
She says that he became distressed when conversation occurred talking about him visiting it his mother. He became very frustrated and angry, engaged in hitting, slapping, pulling out earrings and head-banging. He used the word “shit”, lashed out at other young children and smacked himself. His toilet training regressed and he lost weight since he started the sleepovers.
On three occasions Ms C[24] saw the child return to the Applicants’ home following time with his mother. She says he was covered in headlice on one occasion, covered in mosquito bites on another and, on the last, covered in raw sewerage. He was ‘famished’ and unable to stop eating.
[24] in correspondence dated 23 March 2013.
Ms M[25] says that, since the child started having longer stays away from the Applicants, he changed from being a confident, loving little boy to one showing more aggressive behaviour towards others, becoming easily upset and unsettled and increasingly attached and clinging toward Ms Thomas.
[25] in correspondence dated 23 March 2013.
Ms M, who has observed the child prior to and after the commencement of interaction with the mother, asserts that the child has suffered confusion and frustration, emotional turmoil and instability.
Ms Z, the paternal grandmother, says[26] that she knows Mr W, because he previously went out with her daughter Ms P. She says he was violent toward her daughter, put holes into her daughter’s wall when “he couldn’t get his own way”, on occasion took drugs and consumed alcohol. Neither the mother nor Mr W have challenged in sworn evidence these assertions.
[26] Affidavit of Ms H filed 29 April 2013, Annex LMH 1: correspondence dated 29 April 2013.
Ms Z also says that she has seen that the mother is an “abusive and violent person towards my son” and others. Ms Z expresses support for the child being placed into the Applicants care so as to ensure his safety. Neither the mother nor Mr W have challenged in sworn evidence these assertions.
Ms A from the R School P & C Association says[27] that, in the few months prior to March 2013 there were changes in the child’s demeanour and behaviour. She describes him going from a happy, mischievous little boy who was confident and content to a child who, on some days, was clingy, teary, screaming and sometimes violent and who would not let Ms Thomas out of his sight. She noted that these behaviours occurred immediately after the child had spent time with the mother. Ms A described the child lashing out at other children, hitting, punching and biting them as well as trying to punch other adults, screaming and behaving in a generally unsettled manner. Ms A also says that she has seen the child covered in big red itchy bites all over his body, being incredibly tired and ravenously hungry after his return from time with his mother.
[27] in correspondence dated 23 March 2013.
Accepting the interim nature of this hearing, it is relevant that the descriptions of the child’s behaviour outlined above are so consistent. It is, I think, more likely than not that the child acted in the manner described as a consequence of the speed with which he was being asked to manage his “reunification” with the mother who was, until January 2012, a stranger to him.

What has happened since ‘reunification’ in April 2013?

On 28 July 2013 Ms Thomas was telephoned by a person from T Care, the organisation through which the Applicants have been registered foster carers since 2010. She was advised that the mother had complained about her because she took more photos of the child than of her own children and that the child was very attached to her and called her “Mum”.
The mother told T Care that the child was acting out, hurting kids at school, putting a rope around his neck and making things difficult for her. The mother blamed this behaviour upon the child’s attachment with the applicants.
I accept this evidence given that it is consistent with the mother’s evidence that “there was some initial difficulties” when the child was returned to her care:
a)he would not talk to her or let her know what he needed them to do this him;
b)the child would scream at her instead of talking;
c)the child would point and make baby talk instead of using actual words;
d)the child would hurt his younger brother, randomly going up to him and pushing him for no reason;
e)he did not like to share and was demanding;
f)he put a piece of rope around his neck on two occasions.
The Applicants assert that when the child commenced time with his mother in the first half of 2012 he began to be “very clingy” towards them and commenced exhibiting some acting out behaviours. This behaviour would not be unsurprising given the lack of interaction between the mother and the child prior to that.
The Applicants assert that, when overnight time between the child and the mother commenced on 16 December 2012, the child was returned to them early because of difficulties the mother had in caring for him and his emotional and psychological state. They assert that the child was very reluctant to attend at sleepovers with the mother and was visibly scared and traumatised at having to attend.
Mr Thomas says that the child did not want to go on contacts and became quite aggressive saying that he would not go. He said that the child did not want to get into the mother’s car and that they had had to force him into the car on occasions. He had started having night terrors, and was said to have engaged in behaviour like lashing out at younger children, becoming aggressive and even smacking himself. Mr Thomas said that the child’s toilet training had regressed and he had started to hoard food before going on overnight visits with the mother.
Mr Thomas gives evidence that the child appeared to have an extreme fear of attending time with his mother and exhibited increased anxiety.
The Applicants submit that, as at the time the child was placed into the care of the mother in April 2013, he did not have a consistent and meaningful attachment to her. Given the time he had spent with her, as detailed below, I consider it more likely than not that whatever attachment he did have to his mother was tenuous and not as secure as that he had with the Applicants.

Extent to which each parent has taken or failed to take opportunities to participate in decision-making about major long term issues in relation to the child, spend time with the child and communicate with the child

The Applicants assert that in the period from July 2010 until December 2010 there was very limited contact between the child and the mother. They assert that when the mother spent time with the child she was almost always late (if she turned up at all), would often not turn up and indicated that contacts were “boring” because the child slept a lot. They also assert that, in this period of time, she did not contact them to check on the child’s well-being.
Departmental records[28] indicate that the child spent time and interacted with his mother on the following occasions:
a)30 September 2010,
b)6, 7, 14, 20, 27 and 28 October 2010;
c)3 November 2010.
[28] see Dr L's affidavit filed 24 April 2013
The mother states that her contact with the child from July 2010 to December 2010 was consistent and that she never missed a visit. She contends that if she was late, she informed the Department.[29] Even if this is the case, it is clear that 8 visits as recorded by the Department were unlikely to contribute much to the creation of any secure attachment with the child.
[29] Affidavit of Ms Franklin filed 23 April 2013, paragraph 22.
The mother did not have any contact with the child between December 2010 and December 2011 as a consequence of her moving to live in Melbourne. The Applicants assert that, other than a few text messages and calls, there was no communication from the mother to them in this period. They also assert that the mother did not contact the child on his first birthday nor send a card or gift to him to mark this occasion.
The mother says[30] that, when the she moved to Melbourne, she lost the details of where the child was living and Ms Thomas’s mobile telephone number. She also says that, having lost this information, she “kept on asking” the I Town office of the Department for the details “but they wouldn’t give it to me”. Even dealing with this matter on an interim basis, with all of the inherent limitations this involves, I struggle to accept as credible the explanation that a departmental officer would refuse to provide to a biological parent the contact details of the foster carers into whose care that parent’s child has been placed.
[30] in her affidavit filed 23 April 2013.
Dr L says “there was a gap in contact due to Ms Franklin residing in Victoria during 2011.” Such a description significantly understates the reality of the uncontested fact that the child spent no time with the mother from December 2010 until January 2012.
The Applicants assert that, following the mother’s return to Queensland at the end of 2011, there was very limited contact between the child and his mother during the first half of 2012. They say that she was regularly 45 minutes late for a 60 minute contact visit or failed to attend such that many, many contacts were cancelled as the mother was not consistent in turning up.[31] They also say that she provided excuses for her non-attendance including that:
a)her other child was teething or sick;
b)someone stole petrol from her car;
c)she had slept in;
d)her alarm did not go off.
[31] Affidavit of Ms Thomas filed 11 April 2013, paragraph 45.
Departmental records suggest that the child first spent time with the mother, after her return from Victoria, on 13 January 2012. Whilst Dr L summarises that the mother was said to be positive and attentive to the child’s needs throughout “the whole contact” (which was intended to be one hour), the relevant Case Note records that:
a)the mother was 15 minutes late and did not explain why;
b)the child appeared “comfortable” with the mother but when she attempted to get a kiss and cuddle from him he turned his head and pushed her away;
c)the mother said that she would need to take things slowly;
d)the mother told the child that she loved him and missed him a great deal - whilst it is, perhaps, understandable that the mother would make such comments, it is, I consider, more likely than not that they would have caused the child some confusion given that this was the first time he had seen the mother since 3 November 2010.
On 8 February 2012, the mother was late for the one hour per week visit with the child.[32]
[32] see email correspondence dated 8 February 2012 between Ms Thomas and Ms V, caseworker at Shared Care Queensland.
Dr L says, that, as at 13 April 2012 (the date of the Case Plan) “regular contact” between the child and his mother was continuing positively.[33] However, his affidavit does not contain copies of the Case Notes relating to the visits which occurred between the child and the mother in the period from January 2012 until that date.
[33] Affidavit of Dr L filed 24 April 2013, paragraph 78.
Such omission is troubling given Ms Thomas’s assertions[34], as summarised in paragraph 114, and her evidence that the child would scream when the time came for him to leave her and transition to the mother and that every time they attended at the child safety office he would scream and start doing a poo in his pull-ups.[35]
[34] Affidavit of Ms Thomas filed 11 April 2013, paragraph 42.
[35] Affidavit of Ms Thomas filed 11 April 2013, paragraphs 43 & 44.
Had Ms Thomas’s assertions been inaccurate or overstated, it would have been relatively easy for the Department, via Dr L, to put into evidence the Case Notes that related to the visits between the child and his mother which occurred between January and June 2012. As this material is not provided, I accept, even on an interim basis, Ms Thomas’s evidence about the mother’s behaviour during this period of time.

The Child Protection matter was in Court on 17 May 2012. Email correspondence from a Departmental officer[36] records that it was adjourned for two weeks because the mother did not come to contact and was, therefore, unable to be served with the material.
[36] dated 18 May 2012.
The mother was unable to attend a visit planned for 6 June 2012 because of transport difficulties.
On 13 June 2012 a Departmental Officer informed[37] Ms Thomas that contact arrangements for the child and the mother had to be changed because of the mother’s inability to attend the Child Safety Centre for contact. So as to accommodate the child’s time with the mother, Departmental officers transported the child from the Applicants’ home to the mother.
[37] see email correspondence dated 13 June 2012.
On 18 June 2012, Ms Thomas contacted the Department and raised concerns about the child’s aggressive behaviour following time with the mother.
In the six-month period from June 2012 until December 2012 there were 12 supervised contact visits between the child and the mother.[38] These occurred on:
a)12 and 26 June 2012;
b)17 and 31 July 2012 (a visit organised for 10 June 2012 being cancelled due to the child is ill health);
c)14 and 28 August 2012;
d)17 and 31 October 2012;
e)9, 14, and 26 November 2012; and
f)5 December 2012.
[38] see Departmental Case Notes exhibited to the Affidavit of Dr L filed 24 April 2013.
There were no visits at all in September 2012 although no explanation is provided for this lacuna in contact. A perusal of the case notes suggests that the visits were of a duration of between 30 and 60 minutes. Departmental officers were in attendance on eight occasions.
Dr L reports, in reliance on the contents of Departmental documents, that the contacts were “generally noted as going well with good interactions, noted bonding between child and mother as well as growing attachment.”[39]
[39] Affidavit of Dr L filed 24 April 2013, paragraph 79.
The child became upset when it was time to leave his mother on the visit which took place on 14 August 2012.
The mother was 45 minutes late for the visit which occurred on 3 October 2012 stating that there were difficulties with her partner’s motor vehicle. She had earlier called to say that they would be late due to R having a difficult night. During discussions on this visit the mother told the child safety officer who was present that she acknowledged that the reunification process between herself and the child would be challenging due to her location. On this occasion the observations were that the child appeared to connect with the mother but his attachment interactions, such as going to his mother or seeking her support, were not evident. He also showed no interest in B. He was observed to become quite restless towards the end of the time and made minimal responses to verbal direction either the child safety officer or the mother.
On the 17 October 2010 visit it was recorded that the child appeared to recognise the mother on arrival. R was provided Coke in a baby bottle. This observation provides some corroboration for the Applicants’ concerns that the child will not be appropriately fed if he remains living with the mother. The child was not observed to suffer any negative emotive behaviour or change in demeanour at the end of contact, and appeared to be happy when recognising Ms Thomas – this is not being evident with his mother.
On 31 October 2012 the mother arrived 45 minutes late. She said that she believed contact was to commence at 1030 rather than 10 am. This corroborates the Applicants’ evidence about her tardiness during earlier visits. Again the child’s demeanour was observed to remain unchanged during and leaving contact with his mother in that there were no negative reactions. It was also noted that his behaviour was the same with the child safety officer. The notes of this visit record that “attachment needs to occur with [the child].”
On 14 November 2012 the child was observed to appear to recognise the mother on her arrival but his demeanour and facial expression did not change. He interacted well with her by responding to her directions and non-verbal communication, did not display any negative emotive behaviour or change in demeanour at the end of contact and appeared settled and content after it. In contrast to his interaction with the mother, he appeared to be happy when recognising Ms Thomas.
On 15 November 2012 the mother described, via Facebook, her reaction to the child spitting in her face during a visit. She said that ‘the worker’ said that the discipline she gave the child was perfect, she let him know that it wasn’t okay to do that and he tried to suck up and kiss her and make up “without thinking about what he did wrong” and “I ignored him.” I consider that such explanation demonstrates a lack of maturity on the part of the mother and gives rise to concern about the mother’s capacity to meet the child’s developmental and emotional needs.
On 15 November 2012 the Department convened a Practice Panel to assess the current intervention in relation to the child and the reunification process. The Department recorded that :
a)contact between the child and the mother had gone well;
b)there were no new child protection concerns raised during visits;
c)no incidents of domestic violence between the mother and her partner had occurred;
d)B had lived with the mother without incident for a number of months.
On the basis of this information it was determined that the frequency of contact between the child and the mother would be increased and that weekend contact would commence as soon as possible with the plan that “full-time reunification” ideally occur in February 2013 in order to permit monitoring of the mother and the child for three months prior to the expiration of the Child Protection Order on 31 May 2013. At this time the child had increasing but limited time in the care of his mother as accompanied by a child safety officer.
Save for the assertion that the contact between the child and the mother had “gone well” there was no further assessment undertaken by the Department in relation to the child’s attachment with the mother at this point. I consider it clear that the Department had determined that the child would be placed into the full-time care of the mother irrespective of any consideration, beyond reliance upon the bald assertion that the time between them had “gone well”, of his preparedness for this course.
The child spent time with the mother at W Town library on 26 November 2012. He ran to hug her and gave her a big hug on her arrival, was smiling and appeared content. The Child Safety Officer who was present considered that the mother’s parenting, such as meeting the child’s basic and security needs while also providing supervision for B, was appropriate.
The child spent time with the mother on 5 December 2012. He was observed to recognise his mother through the window on arrival by smiling and waving. It was considered that the “developing attachment between [the child] and his mother was evident with reference to arrival and departure of contact and [the child’s] more frequent eye contact and listening to his mother.” It is, I think, relevant to comment that, at this stage the Department itself considered the level of attachment between the child and the mother to be no more than “developing”.
Departmental documents[40] make it clear that over the 12 visits which occurred between 12 June 2012 and 5 December 2012, the child spent 22 hours and 20 minutes in the care of his mother and, more often than not, a child safety officer). Of these, only eight (8) hours and 20 minutes in total occurred at the mother’s home, the remainder taking place either at a library or the food court or play area of a local shopping centre.
[40] exhibited to the affidavit of Dr L filed 24 April 2013.
In accordance with the decision made during the Practice Panel on 15 November 2012, the child spent his first overnight with his mother on 15 December 2012. This occurred at his biological maternal grandmother’s house, with whom the child had a familiar relationship as a result of the Applicants support of his relationship with her during the period of time the child was in their care. Despite the plan being that the child would remain in the mother’s care until 5pm on Sunday, he was returned to the Applicants at approximately 8:30am.
Ms Thomas says that both the mother and the maternal grandmother told her that the child had a lot of trouble sleeping. She accepted this because she observed the child to be very tired upon return.
The child next spent overnight time with the mother on Saturday, 19 January 2013. Ms Thomas says that the mother was 1 ¾ hours late in collecting the child that day and returned him at 3:45 pm rather than 5.00pm on Sunday, 20 January 2013.
On 21 January 2013, Ms Thomas received an email from a Departmental Safety Officer discussing the options of increasing the child’s overnight time with his mother to 2 nights. This position was confirmed by email, dated 24 January 2013, which proposed that the child would be collected at 7:30 am each Saturday morning and returned between 4- 5 pm each Monday. Such proposal clearly occurred after the child spent no more than two overnight periods of time in the care of the mother.
Ms Thomas says that, despite the departmental information, the times nominated for collection and return of the child have not been adhered to: collection has occurred “very late in the morning” and returns have been at any time from 3.30 to 7.00 pm.[41]
[41] Affidavit of Ms Thomas filed 11 April 2013, paragraph 56.
On 8 February 2013, the Department told Ms Thomas that a decision had been made that the child would spend three nights per week with the mother “to support attachment and to allow the family intervention service to observe the mother’s capacity to parent.” [42]
[42] Affidavit of Ms Thomas filed 11 April 2013, paragraph 57and Annexure "KT 23".
On 11 February 2013, Ms Thomas says that when the mother arrived at their home the child became very agitated. She says the mother was “completely unable” to place the child into the car. Her partner had no success either. Ms Thomas says that the child was screaming “uncontrollably” and she stepped in and calmed him down.
On 12 February 2013, a Departmental officer told Ms Thomas that the contact between the mother and child would occur from Saturday morning until Tuesday afternoon and that, where possible, he would facilitate the child’s transition between the mother’s household and that of the Applicants by collecting the child from the mother at the W Town shopping centre and returning him to the Applicants.
Ms Thomas told the departmental officer that the child had been returned at 9.00 pm the previous evening, was covered in mozzie bites and that he was in nappies, not underwear. She also reported that he was very ‘clingy, huggy and affectionate’.
On 8 March 2013, Ms Z from the Family Intervention Service contacted the Department seeking information about the child’s daily routines, boundaries, and discipline strategies. She raised concerns that the Applicants may not be encouraging the child to understand that he is “actually going home” to his mother and stepfather. Given the paucity of interaction between the child and the mother at this point in time it is, I consider, inaccurate and misleading to describe the mother’s residence as the child’s “home”.
Ms Thomas says that on 12 March 2013, the child was returned to the mother having played in sewage. This evidence is confirmed by a contemporaneous text message from the maternal grandmother to Ms Thomas. I am uncertain whether Ms Z was present during any part of this visit.
On 21 March 2013, the Department assessed that the child was not at risk of harm and that his attachment with the mother had progressed to a positive level that would support his “sense of belonging”. Such conclusions rested upon a consideration of the report prepared by Ms Z. The Department decided that the child be “reunified” with his mother.
A Departmental officer attended the mother’s home on 24 April 2013, some five days after the “reunification” process had been put into effect, to see how the child had settled into his mother’s care. The mother, her partner, the two children and Ms Z were present. The child was observed to be happy, clean and well cared for. The children appeared to have good rapport.
The mother told the Departmental officer that the child had been sleeping well, had not demonstrated any signs of distress and had not referred to the Applicants or their children. It appears, somewhat incomprehensibly to me, that this bland assertion was accepted and relied upon as providing an indication that the child had managed the significant and dramatic transition from the Applicant’s care to the mother’s care without distress. That such conclusion could be reached following the removal of the child from the family unit within which he had lived since he was about two months of age beggars belief.
Ms Z, who advised the Departmental officer that she was completing an updated report, stated that she was happy with the mother’s progress and had no concerns for the child’s safety. She said that, having been made aware of the concerns raised by the Applicants in their “family law” material, she had always observed the child to be happy, well adjusted, clean and cared for during previous contact visits.
On 24 April 2013, Ms Z emailed the Department advising that:
a)she had been observing the mother’s household, at a frequency of two occasions per week, since 13 February 2013 – a total of, perhaps about 20 visits;
b)she had seen the child on the day he arrived for overnight visits and on the days on which when he has returned to the Applicants and he has always presented in a clean and tidy manner;
c)she considered the child was emotionally stable and connected with the mother and her partner and that he appeared comfortable within the home environment and was interacting positively with all family members;
d)she saw the mother and her partner feed the child a variety of food including custard, apples, sandwiches and biscuits and she had observed them to respond to his needs immediately and set age-appropriate boundaries with consequences and rewards;
e)the mother and her partner reported that the child slept well and they had not experienced any behavioural problems with the child whilst in their care;
f)she has observed the mother to “grow personally” from the experience, in that she has demonstrated insight and maturity in relation to her responses, choices and behaviour whilst acknowledging that she has a lot of support especially from her partner and his family;
Ms Z advised that, as a result of her observations and the ‘reunification’ of the child into his mother’s care, she would only visiting the family on a weekly basis.
This email and the observations of the visits between June and December 2012, as summarised above, provide the only evidence upon which a conclusion that the child had “settled well” into the care of his mother and formed an attachment to her and her partner can be based.
The Applicants also assert that, whilst Ms Z visited the mother from early February 2013, she did not contact or speak directly with them about the child nor did she seek information about his demeanour after overnight time with the mother commenced. Whilst Ms Z’s focus may well have been directed toward achieving the Departmental imperative of “reunification”, the fact that such information was not sought from the Applicants, being the child’s primary carers at that time, causes me to be circumspect about the weight to be accorded to her observations. Such circumspection is increased because of the fact that it is impossible, from a perusal of Ms Z’s reports, to ascertain any detail about the date, duration and circumstances in which her visits and interaction with the mother’s household occurred. In addition, it is impossible to determine whether all or any of Ms Z’s interactions with the mother’s household occurred on a planned or unannounced basis. These matters cause me to place limited weight upon Ms Z’s reports. Further, whatever was the position in Ms Z’s presence, the child’s behaviour had seriously deteriorated in July and August 2013, according to the mother’s own reports to T Care and Ms N, a speech pathologist upon whom the child attended.
A Departmental officer spoke with the mother after the Applicants reported their concerns that the child had suffered bruising whilst in his mother’s care in April 2013. She said that the child and his sibling engaged in play fighting and, on one occasion, she saw R sitting on the child. She also saw the child pick up a bat and whack R across the face. She said that she believed that R was more physical because the child had been randomly hitting him. This behaviour itself seems to contrast with that reported by Ms Z. The Department determined that there were no significant concerns arising out of the child’s bruising because there was no evidence to indicate that such bruises were inflicted or occurred as a result of any negligence on the mother’s part.

Extent to which each parent has fulfilled or failed to fulfil the obligation to maintain the child

The Applicants and their extended family have acted toward the child as if he were a member of their biological family. They have supported him and cared for him and welcomed him into their extended familial unit. He has had the opportunity to form relationships with them and their children and their children’s grandparents. They have ensured that all of his needs were met during the time he lived with them.
As I understand it, the mother made no financial contribution to the support of the child at any time from his birth until the date on which he came into her primary care. During the 12 month period of time she was absent from Queensland, the mother failed to fulfil the obligation to maintain the child in any sense.

Likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either parent or any other child or person with whom the child has been living

As noted above, the Applicants assert that, when the child commenced spending overnight time with the mother, his behaviour deteriorated such that he experienced:
a)night terrors and significant separation anxiety;
b)frustration and demonstrations of anger;
c)waking during the night saying “ no, no, no”;
d)regression of his toilet training.
In addition, they note that the mother has reported, to Foundation Care, that the child had been engaging in the following behaviours:
a)being frustrated, angry and “hitting out” at other children;
b)putting items around his neck.
On 2 August 2013 Ms N, Senior Speech Pathologist (Therapy and Support Service for Children), records, as at 2 August 2013, that she referred the mother for some behaviour support as the mother reported “some concerns that the child has recently started hurting her and hurting animals.” Such report clearly is of concern and inconsistent with the behaviours seen by Ms Z. Such deterioration of behaviour is, I consider, more likely than not to be an expression of the child’s inability to cope with the significant changes and losses imposed on him by his placement with the mother and consequent loss of interaction with the Applicants.
It is, I think, more likely than not that such behaviours are a demonstration by the child of the stressors, disruption and losses he has suffered as a consequence of his dramatic separation and isolation from the Applicants and their family.
I consider it more likely than not, given that the child had lived with the Applicants from July 2010 until 19 April 2013, his removal from their care has had a significant negative impact upon him. Such impact is, I consider, more likely than not to have been made more significant, dramatic and potentially harmful as a consequence of the fact that he has not spent any time with the Applicants or their children since his placement into the care of his mother, despite the mother telling the Department prior to “reunification” that she would like the Applicants and their family to continue to be part of his life.

I consider that the likely effect on the child of a decision to return him to the primary care of the Applicants is that he will be reunited with the adults, including Mr Thomas’s parents, who have met his primary care needs for all but the last 16 weeks of his life. In addition, he will return to and be provided with the opportunity to spend significant time with the Applicant’s biological children who, until his ‘reunification’, formed part of his family unit. He will also continue to have the opportunity to spend time and develop a relationship with his maternal grandmother given that the applicants have previously fostered this relationship.
I also consider it more likely than not that a return to the Applicants’ primary care will alleviate distress currently being experienced by the child as a consequence of the decision to place him into his mother’s care in April 2013 and her decision to ensure that he spend no time with the Applicants or their children since then.
Whilst such a decision will require the child to deal with further disruption to his primary care arrangements, I consider that, given he has only been in his mother’s care for about 16 weeks, any negative impact is likely to be ameliorated by a return to the familiar home, environs and routine provided by the Applicants. I also consider that any disruption, distress and destabilisation which might attend a return, on an interim basis, to the Applicant’s primary care is less than the likely benefit which I consider will flow to him as a result of such a return.
I am satisfied that it is more likely than not that the acting out, hurting others, putting a rope around his neck and difficult behaviour that the mother has complained of will diminish and/or cease following a return to the familiar care of the Applicants.
I consider that a return to the Applicants’ primary care, whilst removing the child from his biological parent’s primary care, is a return to stability, security and a known environment. I am well persuaded that it is more likely than not, given the relative lack of time the child had spent with the mother prior to his “reunification” with her on 19 April 2013 that the move has caused him significant distress and trauma.
I consider, at this stage, that even if there were no concerns about the child’s physical safety whilst in the care of his mother, there is an unacceptable risk of the child suffering psychological harm as a consequence of being placed in the care of a person with whom he has limited attachment – particularly in circumstances where the mother has not acted to ensure that he maintains any time with the Applicants or members of their extended family.
Given the evidence of the witnesses in the Applicants’ case about the Applicants’ promotion of the child’s time with his biological maternal grandmother (Ms F Franklin), I consider that his opportunity to spend time and develop a relationship with Ms F Franklin (with whom, as Miss Thomas deposes, he has a very close relationship) may well be more significant than if he remains living with his mother given the difficulties in the relationship between the mother and Ms F Franklin which have occurred over time.
It is apparent[43] that Mr W’s son Y, who is about five or six years of age, spends time in their household every second weekend. Whilst the child has had, since his ‘reunification’ on 19 April 2013, the opportunity to spend time with this child every second weekend, there is no evidence before me to provide a basis for any conclusion as to the strength of this relationship. Doing the best that I can on the material before me I am secure in the conclusion that whatever the nature of the relationship which exists between the child and Y, it can continue to develop provided the child has an opportunity to spend time in his mother’s care when Y is present. Even if this relationship was significant to the child, I consider that the benefits he is likely to obtain from the security, stability and comfort associated with a return to the Applicant’s primary care outweigh any potential diminution of that relationship.
[43] see the Mother's affidavit filed 23 April 2013.
I am cognisant that an order returning the child to the Applicants’ primary care will diminish the time he spends with his half sibling B. Given the factual matrix, as outlined above, within which I am asked to determine those orders which are in the child’s best interests, I consider that any disruption to the development of the relationship between the child and R can be minimised by providing both children with an opportunity to spend time together on a weekly basis.

Capacity of the mother and the Applicants to provide for the child’s needs, including his emotional and intellectual needs

The mother says that Ms Thomas is a good foster carer and that she appreciates her assistance with the child.
I accept the Department’s assessment that the Applicants provide a loving home environment for children and that they have been described by Foundation Care, the foster care agency with which they are associated, as being one of their most valued carers as a consequence of the high quality of care provided by them to children placed in their care. I also accept the evidence that no concerns have been raised with the Department about the care provided by the applicants to children fostered to them.
I also accept the Department’s assessment that the Applicants have good insight into the way in which experience of harm may impact children and that they have previously demonstrated an ability to minimise this impact by providing a loving, safe and caring home environment to those children entrusted to their care. I accept that if the child returns to their primary care he will receive high quality care. I am confident that all of his physical and emotional needs will be met and supported by the Applicants.
The Applicants assert that, after the child commenced spending overnight time in the care of his mother, he started packing food into his sleepover bag and said that he does not get enough food when he is with his mother. They also assert that the maternal grandmother started to buy food to ensure that he was fed. Whilst it is, of course, difficult to reach any firm conclusion in relation to this assertion, I note that previous Departmental concerns have included that the mother has previously lacked financial security.
The mother says[44] that since the child came to live with her on 19 April 2013 he has “formed a great bond” with her partner, has built a loving relationship with all members of her family and is close to all of them. I am somewhat concerned, given the lack of time that the child spent with the partner prior to 19 April 2013 that the mother has formed a view that he has a “great bond” with him.
[44] in her affidavit filed 2 August 2013.
Correspondence from the Child and Family Health Service for the H Town Health Service District notes, following a speech pathology assessment on 2 August 2013, that the child demonstrated moderately delayed receptive language skills and mild – moderately delayed expressive language skills. The mother asserts, in reliance on these, that the Applicants have failed properly to attend to the child’s speech.
I note that Ms N, the Senior Speech Pathologist who performed the assessment, recorded that the child’s level of receptive language delay may not be this significant and that, functionally, his expressive delay seemed more significant than the test score. It is not entirely clear, given the contents of her report to the effect that the child “has returned to Shah’s care in the last six months”, that Ms N was aware that the child had transitioned into his mother’s care on 14 April 2013.
Such matters may, of course, be the subject of further investigation and consideration during the preparation of this matter for a final hearing. I am not persuaded at this point, however, to conclude that the Applicants have failed to attend to the child’s speech needs. I consider that it is at least possible, given Ms N’s conclusion that the child’s level of receptive language delay may not be as significant as the test score suggests, that the destabilising effect of a separation from the familiar and secure primary care provided by the Applicants has impacted negatively upon the measurement of the child’s language skills.
The mother acknowledges that, after she returned to Brisbane in December 2011, the Department initially required that she attend parenting and other courses. After her file was transferred from one Departmental office to another, she was not required to attend these courses. She says that the Department then wanted her to attend counselling to deal with matters which had occurred to her as a child but she did not do so as she considered that she had dealt with those matters in her own way.
Accepting the mother’s own evidence, the reality is that despite an initial, and I consider understandable, requirement that she attend at parenting and other courses and counselling to address personal issues, the mother has not undertaken any of these recommendations prior to the child being placed into her primary care. I consider it open to me to conclude, even on an interim basis, that the deficiencies in her parenting upon which the Department relied for its recommendation that she participate in parenting courses are, more likely than not, not to have been fully ameliorated as a consequence of her disinclination to participate in such a course.

The attitude to the child and to the responsibilities of parenthood demonstrated by the mother

The mother has, for a period of at least, struggled to demonstrate a mature attitude to the responsibilities of parenthood. This is demonstrated by her decision to move to Melbourne for 12 months during which she had no interaction with the child.
I note that the mother seeks the continuation of the current arrangement whereby the child does not spend any time with, or have any communication with, the Applicants or members of their family. She advances the suggestion that such a regime is in his best interests because it will allow her to re-establish his relationship with her. Such position implicitly recognises the current state of the child’s relationship with her. It fails, however, to recognise the importance to the child of the opportunity to maintain relationships with those adults and children who, until April 2013, were integral to his sense of stability and, I infer, self.
The mother also expresses concern that the Applicants will alienate the child if they have time with him. I consider that this “concern” has little foundation given the Applicants’ support of the child’s relationship with the maternal grandmother during the time he was living with them.

Any family violence involving the child or a member of his family

The mother has, on her account, previously experienced both physical and mental abuse at the hands of a previous intimate partner. She has been the victim of significant assault including being choked, hit, yelled and screamed at. Given these events it is unfortunate that the mother failed to take up the Department’s recommendation to participate in counselling designed to assist her in recognising the signs and impacts of exposure to domestic violence.
Whilst there are no official records of any domestic violence between the mother and her current partner, the paternal grandmother says that Mr W has previously acted in an aggressive and unrestrained manner. In addition, Ms Thomas asserts that he has behaved aggressively toward her. Such matters are unable to be determined at an interim hearing.

The family violence order and any inferences which can be drawn from it taking into account the nature of the order, the circumstances in which it was made, any evidence admitted in proceedings for the order, any findings made by the court in or in proceedings for the order and any other relevant matter

There is no family violence order in existence between the mother and Mr W nor between the Applicants.

Any other fact or circumstance that the court thinks is relevant

The child has spent time with his mother in the manner outlined above since January 2012. It is, I consider, likely that there are benefits to him in having a meaningful relationship with her, albeit that, because of her absence from his life until January 2012, it is difficult to particularise these other than in a theoretical manner.
There is, I think, significant benefit to the child of having a meaningful relationship with the Applicants and members of their family. They were, until the reunification of the child with the mother on 19 April 2013, the providers of his primary care. They can only be the persons to whom he has been primarily attached. They have welcomed him into their family and provided him with significant emotional and physical support.
As noted above, the child has not spent any time with the Applicants or members of their family since being placed in his mother’s care on 19 April 2013. This is a clear demonstration by the mother of her unwillingness, contrary to the position advanced to the Department in December 2012, to act so as to ensure that the Applicants and their family continue to be part of the child’s life.
In contrast, it is clear[45] that the Applicants and their extended family have ensured that the child had been provided with an opportunity to spend time with his maternal grandmother (Ms F Franklin), with whom they say he has a good relationship. I consider that by this the Applicants have demonstrated a willingness to promote the child’s relationship with members of his extended maternal family. I am further strengthened in this conclusion by the evidence which establishes that, when R was placed into the Applicants’ care in December 2012, Ms Thomas sent the mother a photo of him.
[45] see Dr L's affidavit for corroboration of this assertion.
The Applicants have been approved foster carers since 21 May 2010. They have no criminal or domestic violence history and no recorded child protection history in relation to their own biological children. Further, there have been no Child Placement Concern reports or Matters of Concern reports raised in relation to their care of the child or any other child placed with them during the time they have been foster carers. The Department acknowledged that the Applicants had provided a good standard of day-to-day care for the child whilst he lived with them and that he had a significant relationship with them and their children.

Summary

I consider, given the paucity of time that he has spent in his mother’s care to date, that it is more likely than not that the child’s primary attachment remains with the Applicants.
I consider that, because of the concerns I have expressed about the non-accidental fractures suffered by the child, the mother’s parenting capacity and inability to appreciate the importance to the child of the opportunity to maintain an ongoing relationship with the Applicants, their children and members of their extended family, her failure to participate in counselling designed to ensure an appreciation of the detrimental impact exposure to domestic violence can have on the child and the necessity for there to be an assessment of the existing level of attachment between the child, the mother and the Applicants, that it is in the child’s best interests that he return to live with the Applicants in the known, secure and stable environment that they have previously provided.
I consider that the benefits to the child of a return to their primary care, being a return to a secure, stable and known environment and the opportunities of continued interaction and relationship with the their children, outweigh the detriments to him which may follow upon a further change to his primary care arrangements.
I am confident that, whilst in the Applicants care, the child will continue to have the opportunity to develop and maintain a relationship with his mother, half sibling and maternal grandmother by virtue of the opportunity to spend time with them.
I consider that, because of my concerns about the potential of the child being exposed to a risk of harm or neglect whilst in his mother’s care, until a Family Report is prepared, it is in the child’s best interests that he spend time with his mother and half sibling on a weekly daytime basis. Whilst I appreciate that this represents a significant reduction in the time the child has been spending with the mother since “reunification” on 19 April 2013, the reality of the existence of unexplained non-accidental fractures compels me to take a cautious approach.

Parental responsibility

When, as is the case in this matter, the court is making an interim parenting order, the presumption that it is in a child’s best interests for that child’s parents to have equal shared parental responsibility for the child applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making the order: section 61DA(3) of the Act.
In the present case I consider it would not be appropriate for the presumption to be applied because, whilst a party to these proceedings, the child’s biological father has played no role in his life since his birth; there is no evidence of the ability of the child’s parents to communicate so as to be able to discharge jointly those obligations imposed on them should an order for equal shared parental responsibility be made and, as is apparent from the Reasons already given, it is the Applicants who have, so far, discharged this responsibility.
The consequence of this conclusion is that the determination of an order allocating parental responsibility for the child on an interim basis remains “at large”, subject to the consideration of the order which is in the child’s best interests.
I am persuaded, in the circumstances of this case that, on an interim basis, it is in the child’s best interests that the Applicants have, jointly, sole parental responsibility for him. They have been the adults who to date have been the most involved in his life and who have provided the majority of his care. Given the mother’s determination to ensure that the child has not spent any time or had any communication with the Applicants or their family since coming into her care on 19 April 2013, I am not persuaded that, at present, she and the Applicants possess the necessary ability to ensure that decisions which may be required to be made are made jointly. I am confident, however, that should the Applicants be called upon to make such a decision in the period until there is a final resolution of the matter, by way of final hearing or agreement, they will act to involve the mother in the manner prescribed by the order I intend to make.

I certify that the preceding two hundred and one (201) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 23 August 2013.

Associate:

Date: 23 August 2013

[2013] FamCA 618

23 August 2013

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