VESEY & LYGON

[2017] FamCA 717

FAMILY COURT OF AUSTRALIA

VESEY & LYGON [2017] FamCA 717

FAMILY LAW – CHILDREN – Allegations of abuse – Where both the mother and father have a long history of illicit substance abuse – Where the mother and father have criminal convictions – Where the father has intellectual impairments and an Anxiety Disorder with depressive features – Where the mother has Schizoaffective Disorder – Where the Mother makes allegations that the father raped the children – Court found that the children have suffered significant harm of a detrimental effect to their physical, psychological and/or emotional wellbeing due to the actions of both the mother and father – Court found there is an unacceptable risk of future harm to the children – Where the Department of Communities, Child Safety and Disability Services have been requested to remove the children from the mother.

Family Law Act 1975 (Cth)
Child Protection Act 1999 (Qld)

Banks & Banks (2015) FLC 93-637
Baghti & Baghti [2015] FamCAFC 71
Goode & Goode (2006) FLC 93-286
M & M (1988) 166 CLR 69
SCVG & KLD (2014) FLC 93-582

APPLICANT: Mr Vesey

RESPONDENT: Ms Lygon

INDEPENDENT CHILDREN’S LAWYER: Couper Geysen Family & Animal Law

FILE NUMBER: BRC 125 of 2007

DATE DELIVERED: 15 September 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 28, 29 and 30 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Seaholme

SOLICITOR FOR THE APPLICANT: Power Legal

FOR THE RESPONDENT: Self-represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Carmody

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Couper Geysen Family & Animal Law

Orders

The Court having made the following findings:

a)B born … 2002 and C born … 2006 have suffered significant harm of a detrimental effect to their physical, psychological and/or emotional wellbeing due to the actions of their parents namely Ms Lygon born … 1985 (“the mother”) and Mr Vesey born … 1977 (“the father”).

b)There is an unacceptable risk of future harm to B born … 2002, C born … 2006 and D born … 2014 namely the risk of sexual abuse, physical abuse, psychological abuse, exposure to family violence and neglect and the person responsible for that risk is the mother.

c)There is an unacceptable risk of future harm to B born … 2002 and C born … 2006 namely the risk of sexual abuse, physical abuse, psychological abuse, exposure to family violence and neglect and the person responsible for that risk is the father.

It is respectfully requested that the Department of Communities, Child Safety and Disability Services (Qld) (“the Department”) take all necessary steps to forthwith remove B born … 2002, C born … 2006 and D born … 2014 from the mother.

IT IS ORDERED

1. All previous parenting orders be discharged.

2. Pending the removal of B born … 2002 and C born … 2006 (“the children”) from the mother, the father is restrained and an injunction hereby issues restraining the father from removing the children from the mother or spending time with them other than at times that may be organised by the Department and until such times are organised by the Department the father spend time with the children each alternate Saturday commencing 16 September 2017 between 11am and 3pm to be supervised by a person appointed by the Department and until such time as the Department appoints a person, then the time may be supervised by Ms E, a religious minister.  

3. Pending the removal of the children from the mother, the mother shall ensure that she takes all steps necessary to ensure that the children spend time with the father as provided in paragraph (2) or this order.

4. Pending the removal of the children from the mother, the mother is restrained and an injunction hereby issues restraining the mother from changing the children’s residence at G Street F Town or from removing B from F Town State Secondary College and C from F Town State School.

5. The independent children’s lawyer is discharged.

NOTATION

Senior Registrar Spink of the Family Court of Australia, Brisbane Registry, is requested to forthwith provide a copy of this Order and Reasons for Judgment to the Director-General of the Department of Communities, Child Safety and Disability Services (Qld) (a draft of the Reasons for Judgment having already been provided on 14 September 2017).

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 123 of 2007

Mr Vesey

Applicant

And

Ms Lygon

Respondent

REASONS FOR JUDGMENT

1. Mr Vesey (“the father”) and Ms Lygon (“the mother”) are the parents of two children, B born in 2002 and C in 2006 (“the children”).[1]

   [1] The mother says that the children’s surname was registered as “J” at her mother’s insistence as this is her mother’s surname

2. The mother has another child, D born in 2014. D’s father is Mr H. The mother is engaged in other litigation with Mr H regarding D and his time with D is apparently subject to supervision.

3. On 6 July 2017 the parenting dispute between the mother and the father was set down for a trial over three days commencing 28 August 2017. The matter was transferred to this Court from the Federal Circuit Court on 17 June 2015 and there have been a number of interim hearings and orders.

4. Until the end of the trial both parties and the independent children’s lawyer were proposing that the Court make a final parenting order.

5. No doubt as a result of concerns raised during the hearing, both parties and the independent children’s lawyer now propose that I make a further interim order and request the Department of Communities, Child Safety and Disability Services (Qld) (“the Department”) to conduct an “immediate urgent assessment of the family” and for the matter to then return to this Court for further review.

6. In the interim it is proposed by the parties and the independent children’s lawyer that the children remain with the mother. The father and independent children’s lawyer propose that the children spend fortnightly time with the father supervised by one or other of three named persons and that he communicate with the children at specified times. The mother opposes the children spending any time with the father or communicating with him.

7. The father was represented in the proceedings and funded by Legal Aid Queensland. The mother represented herself in the proceedings. An Independent Children’s Lawyer represented the children B and C.

8. The child D is not the subject of these proceedings although I consider the circumstances relating to the mother’s care of her to be very relevant to these proceedings.

Facts that inform the decision in this case

Personal circumstances of the parties

The father

1. The father is 40 years of age having been born in 1977 and has been in receipt of a disability support pension since he was 19 years old. He currently receives $693 per fortnight by way of pension and $110 per fortnight by way of rental assistance ($803 per fortnight). He is not quite sure why he receives the pension. He thinks he last saw a doctor in relation to his pension entitlements about four years ago. He pays rent of $210 per fortnight and has a health care card which entitles him to reduced or free health care and prescription medication.  

2. The father currently lives in a two bedroom Housing Commission flat with another man, Mr K, who has a seven year old daughter. The father acknowledges that his current living circumstances are not appropriate for having the children stay and he proposes to obtain a more suitable Housing Commission residence if and when he is able to spend time with the children.

3. When the father was interviewed by Ms L on 21 August 2017 he told her that he lived alone in a two bedroom flat and had two single beds for the children to stay with him. Obviously that information was not correct.

4. The father was involved in a motor vehicle accident at age five and suffers from an acquired brain injury (although this is not accepted by the father) and he has some physical impediment as a result of his injuries.

5. He was exposed to family violence between his parents as a child and alleges that he was beaten by an older brother to the point of suffering black eyes and bruising.

6. He attended a ‘special school’ but ceased his schooling in Grade nine. He has only ever had one job and that was as a teenager when he stacked fridges. He did some volunteer work with a religious group for some years. He enrolled in a diploma course but did not finish. He candidly acknowledged that he received extra money if he undertook study.

7. The father has a long history of drug misuse and suffers from an Anxiety Disorder with depressive features for which he has been prescribed anti-depressants for at least the last fourteen years.  

The mother

1. The mother is 32 years of age having been born in 1985 and is in receipt of a parenting payment. As noted, she has another child, D, born in 2014 and D’s father is Mr H.

2. Mr H was formerly the mother’s sister’s boyfriend and the person she alleges introduced her to drugs when she was ten years old and he was 17 years old. In March 2016 the mother told Ms L (the family report writer) that her sister, Ms M, was a heroin addict prior to her death in 2014 and that Mr H was a heavy drug user. Ms M had four children. Mr H is the father of two of those children. The mother has given various accounts of how her sister died viz. as a result of a car accident; as a result of a heart attack; as a result of an overdose of Valium and Serquil.  

3. The mother and Mr H allegedly parted company at the end of 2013 prior to the birth of D. I say allegedly because documents tendered by consent indicate that they were still together in 2014. The mother undertook a paternity test to determine whether Mr H was D’s father as she had been with a number of different men prior to becoming pregnant with D.

4. All three children live with the mother in a three bedroom Housing Commission home at G Street, F Town where it appears she has been living since in or about August 2016.

5. The mother says that she lives alone with the children and that no one stays over. The mother has no family or other support. She has had significant conflict with siblings in the past (her sister is now dead). Her mother lives interstate and is apparently cared for by the mother’s older brother, Mr N. In January 2016 the mother says that she was attacked by her brother, Mr O, in her home and that Mr O is in prison for grievous bodily harm. His imprisonment seems unrelated to his alleged assault on the mother.

6. The mother receives a parenting payment of $1,020 per fortnight from which she pays rent of $410 per fortnight. The mother also has a health care card.

7. The mother had a traumatic childhood having been exposed to family violence, drugs and early sexualisation. She first commenced cannabis use at age 10.

8. The mother left school in Grade eight and has barely held a job. The longest time she was employed was for a few months in or about 2007/2008. She has not been employed since that time.

9. The mother was pregnant at 16 with B.

10. The mother also has a significant history of mental illness and admissions to psychiatric hospitals.

11. The mother has had a number of other pregnancies which did not progress to full term.

12. The mother alleges that Mr H and Mr P, two people with whom she has had a relationship, have been physically violent to her including punching her and pushing her and calling her derogatory names. She also alleges that Mr H attempted to run her over in a motor vehicle. The mother says that this abuse occurred in front of the children on occasions. The mother also alleges that the children have been sexually abused by each of these men. Apparently Mr P is now deceased as a result of a drug overdose.

13. Despite the mother’s knowledge of the father’s drug habit and her belief that he had sexually abused the children she agreed to the children living with the father for significant periods. For example she gave the children to the father in November 2012 because of the violence occurring in the house she was sharing with her brother (who has been in gaol “one or two times”), his girlfriend, (to whom her brother was violent), her uncle who was a “junkie” and “in and out of hospital” and who brought guns into the house.

14. In 2013 she signed an agreement that the children live with the father.

History of relationship between the parties

1. The father and mother commenced a relationship in or about 2000 (when the mother was 15 and the father was 23) and separated on a final basis in November 2012. There were numerous periods of separation prior to the final separation. Even after the final separation they shared a flat at times. The father at one time disputed that they had separated in November 2012 suggesting it had more to do with the receipt of Centrelink payments than reflecting reality.

2. Each party alleges they were subjected to family violence by the other. On 24 July 2015, both parties described to Ms Q, family consultant, a history of family violence. The mother said family violence did not descend into physical violence but involved the father “going off” at her if she did not provide him with money and that the father verbally abused her and denigrated her.  According to the father he was subjected to regular physical abuse from the mother generally on “payday when [the mother] wanted money for drugs.” He contends that the violence involved the mother ripping his clothes off or punching him in the face and that in or about late 2014 she sent him text messages threatening to kill him. Both parties agreed that their verbal arguments occurred in front of the children and would have impacted on them emotionally. Despite the history provided by the mother, she made a complaint to police in 2017 alleging that the father had raped her in or about 2000 and again in 2010.

3. Over the years police attended at the parties’ various residences in response to complaints of disturbance and on occasions temporary protection orders were made but no final protection orders were made.

4. The parties do not communicate in any way currently and have not done so since about March 2015.

Father’s drug habit

1. The father has had a cannabis habit for at least 16 years. He described a significant misuse of cannabis over his lifetime. For many years he was smoking ten to twelve ‘cones’[2] per day (including after the birth of B) and while he denied he was using as much as that at the present time he agreed that he was still smoking cannabis as recently as the week beginning 14 August 2017. The mother alleges that the father was also an ‘ice’[3] user, which he denies, save on one occasion when he says the mother told him he had to “shoot up” or she would not give him money for cannabis. I note that according to Dr R and Dr S the father denied ever using any other illicit substance other than cannabis. That information was clearly incorrect given his admission during the trial.

   [2] The father explained the method by which he smoked cannabis preparing a ‘cone’ with cannabis and smoking it by means of a water pipe called a ‘bong’

   [3] A reference to methamphetamine

2. The father also smokes tobacco, claiming he smokes about one packet of cigarettes a week at a cost of $25. This contrasts with what the father told Dr R in October 2015 and Dr S in April 2016 when he reported smoking 10 to 15 cigarettes a day.

3. The father failed to comply with requests for random drug tests on 20 July 2015, 2 September 2015, 25 January 2016, 27 March 2017 and 24 August 2017. The order made 17 June 2015 required compliance with a request for drug testing to be completed within 24 hours.

4. The drug test results produced for the father dated 24 August 2015, 7 September 2015, 22 December 2015 and 18 February 2016 were positive for the presence of cannabinoids.

5. The father claimed to have missed drug requests because of the cost. While that may have been the case, the father was acutely aware of the importance of undertaking drug testing and has been able to continue his cannabis and tobacco use despite his limited income. The father was also aware that he was breaching a court order by failing to attend.

6. The father admitted taking the children with him on occasion to buy cannabis.

7. The father has five convictions for possession of dangerous drugs and two convictions for possession of utensils or pipes. Those offences were committed in 1998, 2004, 2009, 2013 and 2015. On each occasion the father was fined and on two occasions (1998 and 2015) no formal conviction was recorded. In this regard I note the father told Dr R in October 2015 that - “The Judge told me I had to get on track and to start thinking about my family.”

Mother’s drug habit

1. The mother admits to a significant history of drug misuse including smoking cannabis and injecting heroin, ‘ice’ and ‘speed’.[4]

   [4] The latter two being different forms of methamphetamine

2. The drug test results for the mother on 21 July 2015, 5 September 2015 (requested 2 September), 14 December 2015 (requested 11 December) and 4 February 2016 (requested 25 January 2016) note the presence of benzodiazepines on two occasions and venlafaxine on four occasions which are said to relate to the mother’s prescription medication of an anti-depressant and Valium. No medical or pharmaceutical evidence for that submission by the independent children’s lawyer was produced nor importantly, in my view, whether the presence of the substances may indicate prescription drug misuse.

3. The mother failed to comply with drug test requests in March and August 2017. Like the father the mother claims to have missed the drug tests because of the cost and while I accept the mother has a limited income she too was acutely aware of the importance of the drug tests and that she was breaching an order by not complying.

4. The father alleges that the mother was injecting drugs from the time B was three months of age. The mother denies this but concedes she was a regular user of cannabis, smoking 10 to 12 ‘cones’ a day from when B was about 12 months of age. Prior to that she says that she was a daily user but smoked only one or two ‘cones’ at night. While she was pregnant with B she was still smoking about five ‘cones’ a day. During her relationship with the father she describes staying up half the night and when she did get up she would just watch television.

5. I note that records tendered by consent from T Hospital from in or about 2012[5] record that the mother attended hospital in the company of a police officer and during the interview her mood was noted as angry and aggressive. She was hung over from drinking alcohol the previous night and her long hair was noted to be unkempt. She reported that her weight had increased since reducing the amount of ‘speed’ she was using but that her only current enjoyment was alcohol and ‘ice’. 

   [5] Although undated reference is made to B being ten years old and her date of birth is in 2002

6. On another page from the T Hospital records from in or about the second half of 2014[6] the mother informed the staff that she had been “using heroin since age 15 yrs”. I note also a reference to the mother informing the Service that she had not used heroin since Christmas 2012 but tested positive for opioids on a urine drug test. I also note that reference is made to the mother’s then partner, Mr H, and that they had been together for 12 months. That information is at odds with the mother’s evidence during the trial when she said that she and Mr H separated eight or nine months before D’s birth which occurred in 2014.

   [6] Although undated reference is made to B being twelve years old

1. During the trial the mother admitted injecting ‘speed’ within several months of C’s birth but says that she did so only once in 2006. She was living with the father at the time. She says that the next time she injected a drug it was heroin in 2007 but says she only did so on three occasions.

2. The mother concedes being addicted to ‘speed’ and heroin at “different periods since 2008.” She was supplied heroin by her sister and ‘speed’ by one of her boyfriends, Mr P. She alleges that she ceased using either drug in 2010 but ‘relapsed’ in 2012 when she commenced to inject ‘ice’ as well as heroin. She admits to continuing to inject ‘ice’ until she was six months pregnant with D.

3. The mother described one particular incident to Dr R which seems to have occurred in or about late 2013 because she refers to falling pregnant with D. She told Dr R that she had injected ‘speed’ and ‘ice’ and she was at Mr H’s place where people were drinking. She says “I was keeping an eye on the kids, I was alert because of the drugs and then [Mr H’s] mate came over who was a drug dealer, so I had some more drugs and stayed up all night.”

4. In the mother’s affidavit filed 16 June 2015 at paragraph 19 the mother deposed to last using illicit drugs in May 2014. Contrary to her affirmed evidence in that affidavit the mother conceded during the trial that she had injected illicit substances in October 2014. 

5. The mother reported to Women’s Health on 16 October 2014 that she had “been clean” for a few months and was “100% confident” of remaining that way. As noted, the mother used intravenous illicit substances in that very month.

6. The mother has a criminal record for possession of dangerous drugs, possession of utensils or pipes, failing to take reasonable care and precautions in respect of syringe or needle (1998), fraud and receiving stolen goods (2013) and assaulting a police officer (2013). For each offence the mother was fined.

7. The father contends that the mother has a history of selling the children’s property e.g. DVDs to fund her drug habit.

Mother’s mental health

1. The mother has a long history of mental illness dating back many years. A precise diagnosis was unclear but I note the mother has been hospitalised on numerous occasions during psychotic episodes.

2. In or about 2010 the mother was admitted to U Hospital with drug induced psychosis, paranoia, racing thoughts, emotional lability, aggression and a fixed belief that her partner was sexually abusing their 8 year old daughter. She remained an involuntary patient for nine days.

3. In or about August 2010 the mother was transported to the V Hospital by police. She was abusive to police and handcuffed. The Hospital notes record that she was “intoxicated on marijuana, smokes daily and had a history of amphetamine and heroin use but had ceased six months earlier.” She was prescribed Zoloft (an anti-depressant). It also seems she was prescribed Risperidone (an anti-psychotic) as she later reported that her menstrual cycle had ceased as a result of taking it. On a home visit the mother reported that she was not taking her medication because of side effects. She is reported to have expressed concern the children would be taken from her care.

4. In 2011 the mother was transported by police to the V Hospital and then transferred to the U Hospital. The discharge summary notes a psychotic episode and prescription of Risperidone 2mgs.  After discharge the mother was case managed for seven months. Her case was closed when the mother withdrew from case management. The treating psychiatrist noted a vast improvement in her mental state and functioning but was concerned about ongoing stressors and limited supports.

5. In or about February 2013 the mother was transported to hospital pursuant to an ‘emergency examination order’ after threatening to kill Mr H while armed with a knife. When police arrived she was being restrained by Mr H on the road and she threatened to get a loaded gun to shoot police. She asked police to shoot her otherwise she would jump in front of a truck. She had consumed half a bottle of rum and used ‘ice’. There had been recent issues with drug and gun deals. The mother was noted to be antagonistic at hospital.

6. She was followed up after she left hospital and offered an appointment in March 2013. On review she reported her moods to be up and down and that she had recently been charged with trying to cash a stolen cheque. She reported using heroin, ‘ice’ and alcohol. She reported not having used heroin for seven months but was using ‘speed’ once a week and continued to have a binge pattern of alcohol abuse. She reported threatening her partner with a knife and that she only thought normally when she uses ‘speed’.

7. In April 2013 the mother was again taken to hospital by police after another incident with Mr H. It was noted that there had been an increased use of alcohol and intravenous amphetamines. Hospital records indicate “chronic risk of death by misadventure due to ineffective ability to control stress levels, personality complexities and poor impulse control.”

8. On 5 September 2013 the mother was pulled over by police and she asked them to shoot her. She was agitated and transported to hospital in handcuffs.

9. It appears that on yet another occasion in 2013 the mother was transported to hospital by police after shouting out an allegation that the father had raped C. The father contends this incident happened in the early hours of the morning after they had both been smoking cannabis and the mother held C over the balcony screaming that the father was a devil. The mother concedes that she suffered an “episode” involving C but denies holding him over a balcony. It seems that on this occasion the mother was involuntarily detained for about nine days. During the trial the mother conceded that at the time she made the allegation of rape the father had not raped C although she maintained he had done so on an earlier occasion.

10. In November 2013 the mother took a deliberate overdose and was found by Mr H. According to information provided by the mother to Ms L she was in an induced coma for five days at the W Hospital.

11. In May 2014 the mother was referred to X Town Hospital Antenatal Clinic due to her extensive mental health history. The mother reported that she had been struggling with her mental health for a long time and felt it had deteriorated over the previous few weeks. She was noted to be six months pregnant and reported that she had left her partner who had tried to punch her in the stomach and run her over. She reported that she had stopped all medication when she found out she was pregnant however I note that during the trial the mother admitted to having continued to use intravenous ‘ice’ until she was six months pregnant with D. She reported having episodes where she felt she could read people’s minds and when people went past her she has heard that person’s voice in her head. The acute team referred the mother to ATODS (Alcohol, Tobacco and other Drugs Service). The mother was said to be concerned her baby would be taken by the Department.

12. The mother told Ms L, the family report writer, that in October 2014 her mother cared for D while the mother was in a Mental Health Unit but that she had not seen her mother since Christmas 2014. She also informed Ms L that she would not take her children to see her father (who lives at X Town) because he has mental illnesses and was seriously assaulted outside the X Town Pub.

13. In November 2014 the mother was brought into hospital by ambulance stating that she felt something bad would happen. She reported that she had given birth eight weeks previously and had stopped all medications. A urine drug screen was negative. Again I note that during the hearing before me the mother admitted to using ‘ice’ in October 2014. The mother reported that she had tried to pick up the children from school but was prevented from doing so and she blamed the father for this. She tried to exit the Emergency Department saying she wanted to leave and die. She required physical restraint. She was admitted overnight for assessment and prescribed Risperidone.

14. It is unclear whether there have been further hospital admissions.

15. For the purpose of these proceedings Dr R, psychiatrist, undertook an assessment of the mother on 23 October 2015 and noted the mother’s significant history involving psychotic symptoms including presence of auditory hallucinations and thought disorder. He opined:

    Whether this psychotic illness is best characterised as a drug induced psychosis or not, it clearly indicates an underlying diathesis to psychosis and given that they appear to have been present in the absence of intoxication or drug use, albeit in the postpartum period, as well as the presence of prominent mood symptoms, it may point to a diagnosis of Schizoaffective Disorder especially given the relative preservation of affect (although decreased intensity was noted).

    With regard to the mother’s personality, the mother’s suicidal and parasuicidal behaviour and presentations in crisis in the context of interpersonal difficulties and emotional instability would point to significant personality vulnerabilities in the Cluster B range. These presentations may also be influenced by the presence of an Axis I diagnosis.

    Clearly there are significant prejudicial features in her own childhood … which may have contributed to her low self-esteem and difficulty in trusting others as well as difficulty in appropriately managing her emotions. It is of particular concern that there has been suggestions of a high degree of violence towards significant others in the context of interpersonal conflict.

16. In interview with Ms L on 22 March 2016, the mother’s presentation was noted to fluctuate significantly from a “normal pace of speech and hand gestures, to being highly animated.” Ms L describes the mother’s narrative as being disjointed and her references to the father as being hostile.

17. During the trial the mother admitted that she made three attempts to commit suicide when living with Mr H in 2013 and that she has had suicidal thoughts on a number of occasions since that time including in the weeks leading up to this trial.

18. The mother has failed to undertake ongoing psychiatric treatment and rejects the need for psychotropic medication.

19. During the trial the mother said that she had more strength now in standing up for her children. She gave as an example an occasion last year where she assaulted the mother of one of B’s friends. Her version is that she grabbed the woman’s face through the window of the woman’s car and said to her “Stop your shit.” She conceded that she was holding D at the time and that D was frightened because “we were screaming and yelling at each other.” She did not recall if D hit her head (which is alleged in a notification made to the Department). B and C were present as well.

20. Dr Y, psychiatrist, was first consulted by the mother on 30 September 2016 and saw her again on 15 February and 17 March 2017 before  receiving a request for a report and as a result he saw her again on 26 July 2017. His report is dated 2 August 2017.  It appears he again saw the mother on 11 August 2017 (the mother was late for the appointment) in relation to providing a prescription of Risperidone. It is apparent that the mother saw Dr Y primarily for the purposes of these proceedings.

21. Dr Y confirmed the difficulty with diagnosis given the number of interconnecting factors such as drug induced psychosis, compromised childhood, fixed ideas and underlying personality vulnerabilities. He initially diagnosed the mother as suffering from a Borderline Personality Disorder with brief reactive psychoses but also considered that she suffered from Schizophrenia. He deferred to Dr R’s diagnosis that her condition may more correctly be described as a Schizoaffective Disorder involving, as he considered likely, two co-existing conditions of Schizophrenia and Borderline Personality Disorder.

22. Dr Y referred to the mother’s fixated ideas of harm involving her children. He expressed concern at the impact of the mother’s ideas on the children and by way of example he referred to his concern about the mother’s reasoning for removing D from four different child care centres because of rather benign activities which the mother interpreted as singling out D for harm. On the first occasion the mother observed a teacher coming at D in a toy car with children in it as if to run D over so she removed her from the Centre. At the last Centre the mother heard a teacher saying to D ‘brum brum going to run you over’ and while she talked to the teacher about it, she removed D when she interpreted D’s reaction to the teacher as sinister.

23. Dr Y expressed concern that the mother was allowing her own experiences influence her decisions about her children to the point of not permitting them to access a world outside their home. He described the mother as demonstrating high reactivity and opined that her borderline disorder did impact on her capacity to parent but the extent of the impact would depend upon external information from schools/day care centres etc. He noted some positive aspects of the mother’s life such as no longer using drugs but that of course is dependent upon the reliability of the information. Dr Y referred the mother to Dr Z at the X Town Mental Health Services but there is no evidence the mother has followed up on that referral. The mother made it clear to Dr Y that she would only take Risperidone if forced to do so and in her view it made no difference to her belief that the children had been sexually abused by the father.

24. She also told Dr Y that if the father were able to spend unsupervised time she told him she would “just give up” which he interpreted as walking away but given her history of suicide attempts and violence to others I cannot rule out the possibility that the mother might harm herself or her children.

25. Dr Y was very guarded in his prognosis for the mother stating that it very much depends on the steps the mother takes to lead a stable non drug using life and whether the mother accepts treatment.

Father’s mental health

1. When the father was five years old he was injured in a car accident when he was thrown through the windscreen. He lost consciousness and spent three months in hospital and then had follow up treatment. He informed Ms L that the circumstances of his accident occurred when his mother was fleeing a violent relationship with his father.

2. The father says that he has been taking prescribed anti-depressants for over 14 years and also Temaze for anxiety. He told Ms L in March 2016 that he had recently been attacked by the mother’s brother, Mr O.

3. The father was psychiatrically assessed by Dr R in October 2015. According to Dr R there was no evidence of any major mental illness, in particular there was no evidence of psychosis. Although the father reported a history of depression, Dr R opined that on the history provided by the father a more appropriate diagnosis would be an Anxiety Disorder with depressive features. In his view the father clearly had some cognitive difficulties suggesting an acquired brain injury. At the time of interview the father said he had recently ceased using cannabis.

4. Dr S, clinical neuropsychologist, undertook an assessment of the father on 21 April 2016. A full range of testing could not be undertaken because the father was late for interview and because of his low level of reading he was not given the questionnaires to take home. In her summary, Dr S opines:

   His general intellectual functioning (as measured by the WAIS-IV) fell in the Borderline range (Full Scale = 74: 70-79; 4^th percentile). However, this score cannot be interpreted meaningfully as his verbal comprehension and working memory abilities (Extremely Low and Borderline range, respectively) were significantly (and abnormally) lower than his perceptual reasoning abilities (Average range) and significantly (but not abnormally) lower than his processing speed abilities (Low Average range).

   …

   It is evident then, based on his neuropsychological profile, that [Mr Vesey’s] clear deficits (performances <9^th percentile compared to peers his age) are in verbal cognitive functioning (vocabulary & general knowledge); naming and reading speed; attention; concentration, and working memory; incidental visual recall; and social reasoning. …

   [Mr Vesey’s] relative strengths (performances in the Low Average to the Average range) are his visuospatial/visuoconstructional skills; verbal fluency; speed of information processing; learning and memory; and most aspects of his executive functioning.

   It is unclear to what extent the cognitive difficulties identified on formal assessment reflect a constitutional intellectual impairment or sequelae from a probable brain injury (or a combination of the two) particularly as [Mr Vesey] had his injuries prior to commencing school.

   … A diagnosis of Adjustment Disorder (with anxiety and depressed mood) may be appropriate.

   All things considered, it is my opinion that [Mr Vesey’s] current cognitive difficulties are not of a nature or severity that would deprive him of the ability to parent his children. It is my recommendation that [Mr Vesey] should continue to engage in appropriate counselling both for his own mental health needs and also to support him in parenting his children throughout various developmental stages. He should also continue to abstain from illicit drugs and heavy alcohol intake.

5. During her oral evidence, Dr S was at pains to stress that her involvement was not focussed on the father’s parenting capacity. It was to assess intelligence and general functioning and memory. I certainly gained the impression that she was cautious about her report being used to assess the father’s capacity as a parent.

6. During the father’s oral evidence he certainly presented as a man of limited intellect and poor memory. He even had difficulty remembering his age.

Allegations of sexual abuse

1. The mother alleges that the father has raped both children by penetrating them with his penis and has engaged the children in sexual activity including having them perform fellatio on him.

2. The evidence relied upon to support the rape allegations consists of an allegation that on one occasion when B was a baby she heard a “blood curdling” scream from B and when she entered the bathroom she saw the father holding B over the bath. She says she thought that the water must have been too hot. She thought nothing more of it at the time but later that evening noticed a tea towel on the floor which she says was covering blood. She contends that the father told her that B had a cut foot but on her inspection there were no cuts.

3. The mother says that on another occasion there was blood on B’s pants so she took the pants to the doctor. The medical records do corroborate the mother’s evidence that B’s pants were provided to Dr AA and pathology was requested on 10 December 2007. The medical records include this notation:

   Discussed with M [mother] re risk of abuse. Previous suspected abuse was not proven and M does not think anything is occurring.[7]

   [7] The mother denied saying she did not think anything was occurring

4. There is no support in the medical records for the child having been sexually abused and in particular that B suffered any injury consistent with the father penetrating B’s vagina. I note that despite medical practitioners being subject to mandatory reporting requirements there is no evidence that Dr AA notified the Department of any concerns.

5. I reject the mother’s allegation that B was raped by the father.

6. In relation to the allegation of rape involving C, other than the mother making that assertion it is not clear what evidence she relies upon to support the assertion. In 2013 the mother shouted out her allegation that the father had raped C. C was present. The mother concedes that at the time she was suffering “some sort of episode”.

7. I reject the mother’s allegation that C was raped by the father.

1. The mother says that she walked in on B and the father in the shower when B was about four years old and saw B with the father’s penis in her mouth. During cross examination in the trial she drew a plan of the bathroom and positions of herself, the father and B and described in detail what she saw. The mother concedes she did nothing about what she saw and if this were a ‘normal’ situation that would be enough for me to dismiss the allegation out of hand. However, while I certainly cannot make a positive finding that the alleged incident occurred I find myself unable to make a positive finding that it did not occur. My reason relates to the extent of drug use by the parties in and around this time. It may be that the mother misconstrued what she saw or it may be that the father does not remember it occurring. B has never made a disclosure about being sexually abused but in the circumstances of this family I do not find that conclusive. The father of course denies the allegation but I do not find his denial conclusive.

2. It seems that at some time thereafter the mother did make a complaint about what she had seen and B was interviewed by police but was unable to be understood and was not even able to state her brother’s name. The circumstances leading up to the complaint by the mother involved mutual allegations by the parties of physical assault. The police attended and noted the father’s shirt had been torn. They applied for a protection order against the mother.

3. The mother also alleges having observed the father letting water drip off his penis into B’s mouth as a young child and having an erection while in the bath with the child. The father denies the allegations. The mother did nothing as a result of her observations e.g. she did not put in place any protective measures. She also consented to the children living with the father on many occasions. Again, while I cannot make a positive finding that the alleged incidents occurred I find myself unable to make a positive finding they did not occur because of the significant drug use of the parties throughout this period. If it did occur it would be behaviour that was sexually inappropriate.

4. B was again interviewed by the Department in 2007 but at that time, aged four and a half, she had an extremely limited ability to speak. She was unable to form nearly all words and made sounds more like grunts. No indication was given by her of any sexually inappropriate experience although given her limited verbal skills and age it could not be said to be conclusive one way or the other.

5. On 11 May 2013 the police attended the mother’s home when she was living with Mr H as a result of the children calling the father and saying they wanted to leave. The police established that there had been a verbal argument between the mother and Mr H and found the children on a mattress on the floor with the mother. B appeared upset and unhappy. The mother stated to police in front of the children that the father was a paedophile and that nothing had been done about it because B would not make any disclosures. B was observed to be holding back tears. Despite the mother’s allegations she agreed to the children being taken to the father and the children were happy to go.

6. I note that in a letter purportedly written by B (exhibit 6) she says that she was taken to police by the mother and maternal grandmother who tried to force her into saying that the father had done something. The maternal grandmother was not a witness in the proceedings. The letter appears to be written to the father. It is not clear how it came into the possession of the mother or if the contents of it are true.

7. Allegations of sexual abuse of the children are also made against other persons by the mother.

8. She alleges that Mr P (her partner in 2006/07) raped C as a baby after he drugged her. She alleges that it happened right beside her and she knows it happened because she could hear C screaming.

9. On the evidence before me I reject her allegation that C was raped by Mr P.

10. The mother also alleges that Mr H raped both children. Her evidence to support that allegation is sketchy to say the least.

11. On the evidence before me I reject her allegation that the children were raped by Mr H.

12. In relation to the mother’s beliefs that the children have been sexually abused, Dr R, psychiatrist, opined that the mother displays a tendency to jump to conclusions “which may suggest they have a morbid basis” and “may suggest the presence of delusional-like ideas or true delusions.” Noting the history of significant amphetamine and marijuana abuse Dr R speculated as to whether “these morbid beliefs arose in the context of acute intoxication or alternatively a drug induced psychosis.”

13. During the trial the mother stated that there is nothing that anyone can say to dissuade her of the view that the children have been sexually abused by the father. I do not accept the mother’s evidence during the trial that she would comply with an order that the children spend unsupervised time with the father given that she has not even complied with an existing order for supervised time.

14. In the police records produced and tendered by consent there is a report of a complaint by the mother of rape. It is unclear when the alleged rape occurred or who the perpetrator was but it was reported in August 2015 and the mother told police the rape occurred after she had returned home from a night out with her sister and boyfriend and she and the perpetrator were in bed together when the rape occurred. The mother did not provide any further details to police and declined to provide a formal statement.

15. On 2 August 2017 the mother made what appears to be the same complaint of rape and it seems the allegation of rape is made against the father and is said to have occurred in 2000. When the mother was asked why she had not reported it at an earlier time she said she had forgotten about it and only recently remembered the incident. She also said she did not report it at the time because she was shocked about what had happened. The police were understandably of the view that there was no reasonable prospect of a conviction given the delay in reporting the offence; the relationship between the mother and father for the following twelve years; their having two children together after the alleged rape and the suspicious timing of the allegation as the parties were involved in legal proceedings over their children.

History of care arrangements for children

1. Since birth the children have lived in various arrangements with various people. At times they lived in a house with both parents. At other times the children have lived with the father and other person/s for significant periods in the absence of the mother. At times they have lived with the mother and other person/s in the absence of the father. At other times the children have lived in a week about arrangement moving between their parent’s households. There have been significant periods when the children’s relationship with the other parent has been significantly limited or non-existent.

2. On 23 October 2013 the mother and father signed an agreement (while both represented by lawyers) providing for equal share parental responsibility and for the children to live with the father and spend alternate weekends with the mother. Subsequent to that it seems the parties shared the same flat with the children from time to time including a period when Mr BB also shared the flat. (I discuss Mr BB in greater detail below)

3. In March 2015 the mother refused to return the children to the father and they have lived with the mother since that time and spent no time with the father until April 2017. Since then there have been several short periods of supervised time. Despite an order for the time to occur each alternate Saturday for two hours the mother has on many occasions failed to comply with that order. 

Physical harm, school absenteeism and other issues

1. When B was 18 months old she was badly scalded when she pulled a jug of boiling water over herself. She still has the scars. This occurred at a time when the father was smoking 10 to 12 ‘cones’ of cannabis a day and the mother was likely to have been injecting herself with illicit substances or at the very least smoking ‘cones’ with the father. The mother did not call the ambulance and ran from the house. The father did call the ambulance and the child was taken to hospital. I note that contrary to the mother’s evidence at trial she told Ms L that she had put B under the shower until the ambulance had arrived. The mother also provides conflicting accounts of B’s hospital admission, stating to Ms L that she stayed by B’s bedside for two weeks but in her affidavit stated that the father had decided that he would be staying overnight with B in her approximately one week’s hospitalisation. I discuss this incident further under the heading relating to the Child Protection history.

2. In June 2009, C suffered burns in similar circumstances to his sister when he is said to have pulled a saucepan of hot water onto himself. Despite the father saying he was “just a bit red” I note from the medical records that C also suffered burns which required repeated dressing.

3. B suffered a fractured wrist in April 2013. The mother referred to it as a broken arm which she said occurred at a school camp. The father had no recollection of his daughter having suffered this injury. I note the medical records provide a history of B falling while playing football.

4. During a recorded interview between police and B on 2 July 2013 when she was 11 years of age it is apparent that B is very much aware of her parent’s drug habits. She was able to describe various drugs and the affect they have; that the bathroom was the place her parents consumed their drugs; that her mother was trying to cut back on injecting drugs and that she had found a needle in the car used by her mother.

5. On 21 August 2013 it was noted by the school that C had been out of sorts for two weeks and had fallen asleep by 2pm and was unable to be awakened. He slept through packing up and the bell so the father was asked to come in and wake him.

6. C recently suffered a broken arm. The circumstances of this injury are not explained although the father raises it as a matter of concern as he has heard different versions of how the injury occurred.

7. The mother alleges the father gave illicit substances to B. She does not allege that she witnessed him doing so but has formed that opinion based on B’s presentation at times. The father denies having done so. The mother did not take any action as a result of her suspicion e.g. take B to the doctor. The evidence does not support a finding that the father has given B drugs. It is entirely possible however that B could have accessed illicit substances while living with either of her parents.  

8. The children have been to about seven different schools. The most recent change was instigated by the mother in late 2015 contrary to an order made by the Federal Circuit Court requiring the children not to be moved from their then schools.

9. The children have lived in at least ten different locations and probably more houses and flats.

10. The children have a history of poor school attendance whether in the care of the mother or the father.

11. The child C has missed 38.5 days of school in semester one 2017 i.e. nearly eight weeks of a 20 week semester. The mother said that he did not like going to school on Fridays so she let him stay home. On other occasions she said he was sick. Indeed on the second day of the trial the mother was significantly late and gave as her excuse that C had not wanted to go to school. There is no evidence upon which I could be satisfied that his absenteeism was reasonable in the circumstances. It indicates to me a failure by the mother to ensure C’s education requirements are met.

12. The mother told Ms L in August 2017 that C did not like doing his homework so she did not make him do it.

13. In the period 6 November 2015 to 14 July 2017 B had 51 full day absences i.e. more than 10 weeks.[8] The records from B’s school indicate numerous messages left for the mother raising concerns about B’s behaviour, truancy and poor work performance. There is no evidence that the mother has contacted the school or addressed any of the issues raised. In June 2017 B was suspended for four days for punching another student. As is apparent by letters written by B in exhibit 6 her capacity for writing and spelling is limited.

    [8] 8 days are noted to be for work experience and 7 days are when she was suspended

14. The mother concedes having difficulty managing the children’s behaviour. I note that B ran away last year and police were involved in locating her.

Additional risk factors associated with the father

1. The father met a man called Mr BB while attending a TAFE in or about 2013. The father was at that time living in a one bedroom flat with the children. Within four weeks of meeting Mr BB the father agreed for him to commence to live with him and the children at their flat.

2. While Mr BB was living at his flat the father says he was contacted by police who told him that Mr BB had been charged with offences relating to communicating over the internet with a girl about 16 years of age. Mr BB is a year younger than the father. The father took no action as a result of receiving that information. Mr BB was later gaoled for offences which he told the father involved sexual offences against children. The father received calls from Mr BB from gaol and agreed to Mr BB returning to live with him and the children after his release from prison. The circumstances of their living arrangements prior to Mr BB being gaoled were described by C during an interview conducted by police on 1 July 2013 where he informed police that he and his sister and father slept together and Mr BB slept on a mattress in the same room. The father did not exclude Mr BB from his home until sometime in or about late 2016.

3. The information obtained by police from C in 2013 was apparently passed on to the Department as was their opinion that the children were at serious risk of harm because father may not be able to sufficiently supervise the children. There is no evidence before me that any action was taken by the Department. 

4. The police records tendered by consent indicate that in September 2016 police received a complaint about the father sharing a flat with Mr BB and ‘the children’ (it is not clear which children as the parties contend that the children did not have contact with the father in 2016). The records reveal that Mr BB had convictions relating to a number of children and had mental health problems.

5. Information obtained by the Department from Probation and Parole on 19 September 2016 at 9.55am includes the following:

   ·    [Mr BB] has [been directed to have] no unsupervised contact with children under 16 years of age…

   ·    [Mr BB] gravitates to people with children. He will go from family to family, whoever will take him in

   ·    He knows not to have any unsupervised contact with children. [Mr BB] has been advised that he cannot really have children residing with him in the home

   ·    It is believed that [Mr Vesey][the father] is well aware of [Mr BB’s] offending history. It is suspected that [Mr Vesey] may underestimate his children’s safety around [Mr BB]

   And at 3.47pm further information was obtained including:

   ·    [Mr Vesey] and [Mr BB] live together. They have known each other for four years. [Mr Vesey’s] children have known [Mr BB] for approximately three years. [Mr Vesey] reports there have not been any issues

   ·    They are looking for a new place. They need to move by the 14/10/2016. There is apparently an issue with [Mr BB’s] name change[9]

   ·    [Mr BB] doesn’t stick to his treatment

   ·    [Mr Vesey] is well aware of [Mr BB’s] offences

   ·    [Mr Vesey] has applied for 50% custody

   ·    [Mr Vesey] is aware of [Mr BB’s] convictions and yet appears to fully trust him in the presence of the children

   ·    Police believe [Mr BB] is a habitual user of dangerous drugs. [Mr BB] stated that he and [Mr Vesey] are being evicted as of […2016] and they did not have a new residence at this stage. Both [Mr Vesey] and [Mr BB] are unemployed

   ·    QPS have had numerous interactions with [Mr BB] throughout his life. The QPS have also had numerous interactions with [Mr Vesey] including domestic violence incidents between [Mr Vesey] and [Ms Lygon] [the mother]

   [9] It appears Mr BB was formerly known by another name

6. Mr BB is also the person referred to by the nickname ‘[CC]’.

7. The father met another man Mr K in or about late 2016 and shortly thereafter he commenced to share a two bedroom flat with him. Mr K has a seven year old daughter who stayed at the flat until the father says an accusation was made against Mr K by his former partner that Mr K had sexually abused his daughter. I have no other evidence relating to that allegation.

evidence from family consultants

1. The mother admitted to Ms Q, family consultant, on 24 July 2015 that her drug misuse issues impacted on her parenting capacity in that she was often tired after being awake for several days at a time and that she was emotionally unavailable to her children.

2. When B saw Ms Q, family consultant, on 24 July 2015 she was at times emotional during interview and said she wanted to live week about with her parents. She said that would be “fair”. She was aware that her mother considered her to be unsafe in her father’s care because of sexual abuse but she said “If anything has been done to me, I don’t remember anything.” Asked for her views at that time if she were unable to spend time with the father she said “I would feel angry for the rest of my life. Mum hates dad, they don’t get on. She thinks he’s a paedo.”

3. C refused to be interviewed on 24 July 2015.

4. When B saw Ms L in March 2016 she said she was angry and upset about not being able to see her father. She said it would be nice if she could spend week about with each parent but if she had to live with her mother she would like to see her father every second weekend from after school Friday to before school Monday but she was aware that her mother did not want her to see her father. She said her mother had told her and C that the father had “touched them in a certain way down there” while pointing to her genital area. B stated that she had no memory of any sexualised behaviour by her father.

5. When C saw Ms L in March 2016 he denied that anyone had touched him inappropriately.

6. In her observations of the children with the mother in March 2016 Ms L noted that the children appeared very well behaved and that the mother had brought appropriate food and drinks for the day. She had a support person with her from CC Community Services to assist with the children during the interviews. The mother explained to the children that they would be seeing the father and they were happy to do so.

7. Ms L noted that C greeted the father with a long embrace. B was tearful when she saw the father. B showed the father that she had had her tongue pieced and also had a phone. The father took photographs of the children on B’s phone. The observation session lasted forty minutes. Ms L opined:

   243. Observations between the children and their father indicated that the father has sufficient skill to structure conversations with the children and have quality interactions with them. During the observation session with their father, the children interacted with warmth and affection. They were relaxed and comfortable with their father and did not exhibit any distress or anxiety.

   244. [Mr Vesey] engaged well with the children and oscillated between them ensuring that they were occupied. … He was affectionate with the children and they were happy to sitting (sic) chatting with him. …

8. In Ms L’s view both children had a secure and strong attachment to the father and also a strong bond to the mother but she expressed concern about the parent’s lack of insight into the need to be child focussed and their poor impulse control. She observed that they had each attended parenting programs but had been unable to implement their ‘learnings.’

1. Ms L expressed the following view:

   406. It is the report writer’s assessment, that [Ms Lygon] has a long-term history of engaging in impulsive behaviours such as intravenous methamphetamine drug use and cannabis use as evidenced by the subpoena material and her own self reports. [Mr Vesey] has a significant long-term cannabis addition (sic) and although he states that he is reducing his use of this drug it is not enough for him to have a clear drug test. [Ms Lygon’s] drug abuse impacts on the deterioration of her mental health and subsequently on her capacity to care for the children. [Mr Vesey’s] drug use also compromises his parenting and availability for his children. It is evident that [B] and [C] need to be protected from any future drug, substance and alcohol abuse. The report writer’s concerns are based on each parent’s long-term drug addictions, [Ms Lygon’s] fluctuating mental health, and her reckless lifestyle and impulsive behaviours, and the impact of this behaviour on their children should [Ms Lygon] relapse.

2. On 16 March 2017 the parties were ordered to attend confidential counselling with Mr DD, psychologist, to deal with their drug dependencies and relapse prevention and to assist them to deal with past traumas. They attended one session.

3. Ms L provided an updated report after interviews conducted on 21   August 2017. The original interviews were scheduled to occur on 2 August 2017. Neither party attended so the interviews were re-scheduled. They each provided a reason for their non-attendance which may or may not be reliable. The father was an hour and a half late for the re-scheduled family report interviews. He said he had problems with transportation. 

4. B is now fifteen and over six foot tall. In her interview with Ms L on 21 August 2017 she described a difficult relationship with her mother involving lots of yelling at each other. She said that her father shares inappropriate things with her involving the dispute between her parents. She felt she was too old to be having supervised time with the father. She wants to see him and feels she is old enough to protect herself although she does not remember her father ever acting in an inappropriate sexual way with her as alleged by the mother. She said she had never felt unsafe or uncomfortable in her father’s care. If she lived with her father she said she would be worried about getting to school on time and curiously felt her mother was more focused on ensuring attendance at school.

5. When expressing her views about where she should live, B was very upset. She initially said she wanted to live in an equal time arrangement but then thought it would be better for her to remain predominantly with her mother and she stressed she had other people to think about and mentioned her young half-sister D.

6. C has not spent much time with the father since the order for supervised time was made in April 2017. The mother says he refuses to go and she is content to leave it up to him. The mother told Ms L that at a recent visit with the father C had told the supervisor to “fuck off” and would not interact with the father. During a recent contact visit with B, the father called the police and his solicitor when C was not presented. The father admits to be being very upset and that this occurred in front of B.

7. C initially refused to see the father on 21 August 2017. He said that seeing his father made him too sad and makes him feel emotional. He described having a memory of his father “locked up somewhere inside of him.” C screamed out “I need to be left alone by the fucking Judge” and continued to scream and yell various things including: “Why, why. I will just die if I have to do stuff. I don’t want to do it as it is making it worse. My head is being twisted. I just wish I could do what I want. It has been going on for years. I cannot do this, I want to be alone and away from the Judge. Nothing will work out. I am 11, get out of my head. I feel sad and angry.” Ms L describes C as wailing loudly. She enlisted the assistance of the mother to calm things and said the mother was very nurturing and able to comfort C and was able to get him to see his father.

8. Ms L did not include in her report the discussion that occurred between herself and C and the mother at this time but conceded during the mother’s cross-examination of her that she had told C that the mother would get into trouble if he did not see his father. The mother pressed her on whether she had told C that the mother would go to gaol if he did not see the father and while she did not agree that she had used that word she agreed that the sentiment was clear i.e. that the mother would be in trouble legally if C did not see the father.

9. During the observed interaction between the father and the children Ms L describes a relaxed and happy visit with no sign of anxiety. The father brought some ‘DS’ games which he said he would not let C take home because the mother had taken the ‘Xbox’ to the “hock shop.”

10. It is Ms L’s opinion that C has an enmeshed relationship with the mother and is “an extremely vulnerable child given his disrupted attachment and estrangement from his father.” In her view he is not coping with his “torn and confused emotions.”  She noted that he has been refusing to spend time with the father although in Ms L’s opinion he seems to miss him greatly.

11. In her view both children have now formed a secure attachment to the mother.

12. In her view neither parent are able to ‘filter’ their conversation when around the children such that the children are acutely aware of the conflict between the parents. By way of example I note that the mother told Ms L that when B was eleven she told her that the father had put toilet paper up in her vagina to cause her to have a miscarriage and the father told the children in Ms L’s presence that the mother had sold their property.

13. Ms L expressed scepticism that the mother can “affect the major changes of attitude and behaviour required to bring about a balanced parenting and home life for the children.”

14. In her view the “risk factors in the areas of drug and alcohol, alleged child abuse, childhood abuse, mental health and family violence … are likely to have significantly impacted on both parent’s functioning and parenting capacity.”

15. Despite identifying these risk factors Ms L suggests that C and B needed to spend unsupervised time with the father and recommends that they remain with the mother conditional upon her engaging with a psychiatrist and maintaining a treatment regime. If the mother does not comply with those conditions Ms L recommends that the children live with the father. Remarkably she also recommends the parents make joint decisions about their children’s major long term care issues.

16. The mother told Ms L that she was only taking Risperidone because the court wanted her to and she thought it might prevent her children being removed from her care.

child protection history

1. The mother and father and their children are well known to the Department and police. 

2. The mother came to the attention of the Department in 1994 and 1998. There were concerns of neglect and physical harm. I have no evidence as to whether or not the Department intervened with the mother’s family of origin.

3. As an adult, the mother alleges that as a child she and her siblings witnessed significant family violence between her parents. When her parents separated she says that the changeovers were violent and on one occasion her mother suffered a broken arm. She describes an emotionally deprived childhood with her mother generally ignoring her.

4. The mother says that at age ten Mr H who was then 17 introduced her to cannabis and used to “touch” her and “make her do stuff with him in his car.” She alleges that she was “set up with a guy” when she was thirteen. She says that she dropped out of school in Grade eight and remembers wandering around not thinking or feeling because of what was happening in her home. After leaving school she says that she would just smoke “cones”[10] with Mr H. She had a couple of part time jobs but then “fell pregnant” when she was sixteen. 

   [10] A reference to the use of cannabis

5. The child protection history relating to the children in this trial records that during the period 2004 to 2016 there were 29 ‘child concern reports’ (where a notification is made to the Department but is deemed insufficient to warrant an investigation) and five ‘child protection notifications’ (where a notification is deemed of sufficient seriousness to warrant investigation) resulting in investigation. The Department records state:

   The child protection concerns revolve around mental health concerns for the Mother, neglect and physical harm by the Mother, school attendance issues, domestic violence in the Mother’s relationships, ongoing Family Court matters, and drug misuse by [the father].

6. Much of the record is redacted and unfortunately no application was made by the independent children’s lawyer pursuant to s 69ZW of the Act. There is nevertheless sufficient information contained therein to identify serious protection issues for the children that are of long standing.

7. Of the five child protection notifications (deeming an investigation is warranted), two notifications were deemed ‘unsubstantiated’ and two were deemed ‘substantiated’ in January 2007 and January 2008 which resulted in the family being subject to an IPA (‘intervention with parental agreement’) as a result of the mother’s mental health, alleged sexual abuse of the children and parental drug misuse. It is unclear whether there was a fifth investigation.

8. The father contends that the Department’s involvement ceased in 2008 when it was said to him – “it was now up to him to be a good father.” He contends that at the time his mother had a significant role in the care of the children. His mother and father are now dead. The mother contends that the Department continued their involvement until 2011.

9. C was interviewed at school on 30 January 2014 by police. It is unclear at whose instigation this occurred or the outcome. 

10. Since 2016 there appears to have been a notification on 6 April 2017 raising concerns about the mother’s mental health and care of the children. It was reported that B had run away. The notification was treated as a ‘child concern report’ and no investigation was conducted, it being noted that there was “insufficient evidence to clearly indicate the intervention of the Department is required and there is insufficient information at this time to indicate the children have incurred significant harm of a detrimental effect to their physical, psychological and/or emotional wellbeing due to their mother’s actions.”

11. The mother and father agree that when B was about three years of age she pulled a jug of boiling water on herself. They each blame each other for the accident and while the counsel for the independent children’s lawyer submitted that such an accident could happen in any household I am more inclined to view this incident as occurring because of a lack of supervision arising as a result of the likely drug induced torpor experienced by these parents at the time. The mother conceded that the father asked her to call an ambulance but she says she was unable to do so because she had run out of credit on her phone. She then ran from the house. She says she did so in order to get an ambulance. I am not persuaded that is the reason. I think it more likely that she was afraid she would get into trouble. B was hospitalised for one or two weeks and sustained scaring to her body which was still causing her problems in 2013 evidenced by medical records noting she was hypersensitive to touch on the scar. Despite B being taken to hospital I have no evidence that the Department intervened at this time. B was certainly not removed from their ‘care’ and despite their admitted and continued drug misuse she remained with them and they had another child, C, in 2006.

12. Between 2006 and 2008 it seems the father had some restrictions placed upon his care of the children by the Department and was not supposed to be alone with the children. It is unclear how this was monitored as the children were living with him for at least a significant part of the time. Apparently, the father’s mother was supposed to be supervising. It is unclear if that was successful and the mother alleges overhearing the paternal grandmother complaining to the father about his taking the children into a bedroom alone. Unfortunately the paternal grandmother died in 2009.

13. The Department records tendered by consent include a notification made about the incident on 29 March 2016 (mother assaulting the mother of one of B’s friends). The notifier said the mother walked out in the middle of the road with D in her arms and made a car stop. The mother was observed to hit the driver through the car window and in the process D’s head hit the car window. The car then sped off only centimetres from where B and C were standing. The notifier also stated that B is often seen at the shop with D and says that her mother is always asleep. The only time the mother goes to the shop is to buy cigarettes. The notifier described a lot of screaming and yelling coming from the mother’s house and that the baby appeared to be neglected. There is no evidence before me that the Department made any enquiry about the matters raised.

History of assistance and support offered to the parties

1. The father has been referred on a number of occasions over the years to drug rehabilitation services and counselling. He has attended from time to time but has failed to cease his drug habit.

2. Although the mother claims to have undertaken a PPP parenting course in 2006, a 1-2-3 Magic and Emotional Coaching Program in 2015, a Keeping Children in Mind parenting course in 2015, a Circle of Security program and was involved in a RAI (‘referral for active intervention’) service I am not persuaded that this assistance (if completed) has afforded her the capacity to safely parent the children.

3. The assistance and support offered to the parties from various services over the years including drug rehabilitation, psychologists, psychiatrists, parenting advice, family support services etc. has been considerable but the parents have generally failed to engage, commit to attendance or follow up on recommendations. The most recent example involving the mother is demonstrated by exhibit 13 in a letter dated 21 August 2017 from an organisation called EE Group which is described as a community managed mental health support service. The mother attended an intake appointment on 24 May 2017 at which point a support plan was developed recommending counselling with a private practitioner and linkage with a mental health support worker for practical support. The mother met with the practical support worker once before her file was closed due to their inability to contact her.

How parenting applications are determined

1. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper, but such consideration will focus in particular on matters raised as significant issues by the parties and the Independent Children’s Lawyer and of course the Court.[11]

   [11] see Goode & Goode (2006) FLC 93-286; SCVG & KLD (2014) FLC 93-582; Banks & Banks (2015) FLC 93-637

2. The Court is not required to make findings of fact on every factual dispute raised by the parties.[12]

   [12] Baghti & Baghti [2015] FamCAFC 71

3. The objects of the Act are set out in s 60B(1) and are to ensure that the best interests of children are met by:

   a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

4. Section 60B(2) provides that the principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   d)parents should agree about the future parenting of their children;

   e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

5. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

6. Section 60CC outlines the primary and additional considerations that the Court must consider in determining what is in the best interests of the child. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

7. Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.

8. ‘Abuse’ in relation to a child, is defined in s 4 of the Act and means an assault (including a sexual assault) or involving a child in a sexual activity or causing the child to suffer serious psychological harm or serious neglect.

9. ‘Family violence’ is defined in s 4AB of the Act and means violent threatening or other behaviour that coerces or controls a member of the person’s family or causes that person to be fearful. Examples of such behaviour are set out in the section.

10. Section 61C provides that each parent has parental responsibility for a child subject to any order made by the Court.

11. Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence, and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

12. Where the presumption does apply, the Court is required to consider s 65DAA as to whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.

13. Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation.

14. Although I may not specifically discuss in these reasons each subparagraph of each relevant section in the ‘legislative pathway’ I have considered all sections as required when making my determination.[13]

    [13] Banks & Banks (2015) FLC 93-637

15. In cases where it is suggested that a child will be exposed to an unacceptable risk of harm, the Court is required to identify the nature of the harm and assess its magnitude and the extent to which the risk can be ameliorated by an order such as supervision.[14] 

    [14] M & M (1988) 166 CLR 69

discussion and findings

1. The paramount consideration in the determination of what parenting order is proper is the best interests of the children. The Act also emphasises the importance of protecting children from physical or psychological harm, a consideration which must be given greater weight than the rights of children to have a meaningful relationship with their parents.

2. In this case the father has had a long term drug habit involving the illegal drug cannabis. He has convictions for possession. On occasions he has involved the children in his illegal activities by taking them with him when he purchased his drugs. The children have been exposed to his long time drug habit being only too well aware that he uses the family bathroom to smoke cannabis and B has complained about having to have a shower after he has been doing so.

3. In addition the father has a probable brain acquired injury from an accident at age five and constitutional intellectual impairment. He also suffers from an Anxiety Disorder with depressive features.

4. It is also likely in my view that the father is a target for paedophiles. By befriending the father they may gain access to the children. While neither child has made any disclosure of being a victim of sexual abuse the risk in my view remains high. The father has shown poor judgment (at the very least) in exposing his children to the risk of abuse by sharing his one bedroom flat with Mr BB, a convicted paedophile, while the children were living with him.

5. I find that the father’s excessive and long term drug habit coupled with his intellectual impairments and Anxiety Disorder has detrimentally impacted on the children in a number of respects including:

   a)Depriving the children of his emotional availability e.g. being affected by illicit substances while the children are in his care;

   b)Exposing the children to illicit drug taking e.g. the father admits to using illicit substances during the entirety of the children’s lives and being aware of the mother injecting illicit substances while living with him;

   c)Precluding him from providing reliably for the children’s day to day needs e.g. not getting the children to school on time or at all;

   d)Exposing the children to criminal activity e.g. taking them with him when he buys illicit drugs;

   e)Exposing the children to the risk of sexual abuse e.g. inviting a convicted paedophile to share his one bedroom flat with him and his children;

   f)Failing to adequately supervise the children e.g. B suffered burns after pulling a jug of boiling water on herself;

   g)Exposing the children to family violence e.g. yelling and screaming at the mother in front of the children and remaining in a relationship with the mother after her alleged assaults on him.  

6. The mother has had a long term drug habit including the use of heroin, ‘speed’ and ‘ice’. I find it more likely than not that she injected those substances on a regular basis from about the age of 15 to at least October 2014. She was a significant drug user during all her pregnancies and thereby put her children’s lives or at least the quality of their lives at risk. In particular, the mother admitted that she was an intravenous drug user (heroin and/or ‘ice’) until she was six months pregnant with D.

7. I am not persuaded that she has not reverted to drug use given the history of unreliability of her accounts in this regard; her persistent and long history of drug use; her failure to engage with any drug rehabilitation service and her failure to comply with the last two random drug test requests. Even if she is not currently using drugs I find that the risk of her relapsing is high given her history.

8. In addition, the mother has a significant history of mental illness. I find that the mother is likely to suffer from Schizoaffective Disorder. She is well known to various health services and hospitals with a history of polysubstance abuse, chronic poor affect regulation, poor interpersonal skills on a background of a highly prejudicial childhood and attempted suicides. She has been an involuntary patient on numerous occasions and has threatened harm to herself and others on numerous occasions. The mother has admitted to recent suicidal ideation. The children have been a witness to the symptoms of her mental illness on many occasions. The mother rejects the need for treatment or psychotropic medication.   

9. The mother alleges that the father has raped both B and C by penetrating them with his penis and alleges that she observed  B at age four with the father’s penis in her mouth. In spite of this she regularly left the children in his sole care. The mother alleges that two of her other former partners have sexually abused the children yet she remained in relationships with them and took no action to protect the children. She has exposed the children to her strongly held beliefs in this regard and refers to the father as a paedophile.

10. The mother has remained in allegedly extremely violent relationships and exposed the children to criminal activity including drug dealing and to people in possession of firearms.  

11. I find that the children’s significant absenteeism from school has had a detrimental impact on their education e.g. the letters written by B show a very limited grasp of literacy. C has missed nearly eight weeks of schooling in the first semester of this year.

12. I find that the mother has a limited ability to manage the children and make decisions in their best interests e.g. not being able to get C to school when he says he does not want to go.

13. I accept Ms L’s assessment that the mother “has engaged in serious levels of high conflict and violence both physically and verbally during the post separation period. During her relationship with [Mr H] she has demonstrated a pattern of using impulsive and unregulated behaviours and explosive verbal and physical interactions regardless of the presence of her children.” The mother’s continued lack of insight into the impact of her behaviour on the children (and lack of impulse control) was again evidenced by her assault of the woman in a car while she had baby D in her arms and while the other two children looked on. Such was the mother’s focus on her tirade of abuse she was unaware that she had caused D to hit her head. Given the mother’s admissions about this incident I have no difficulty accepting the account of this incident reported to the Department.

14. I find that the mother’s excessive and long term drug habit coupled with her mental illness has detrimentally impacted on the children in a number of respects including:

    a)Depriving the children of her emotional availability e.g. being affected by illicit substances while the children have been in her care;

    b)Exposing the children to illicit drug taking e.g. the mother admits to using illicit substances for most of the children’s lives and being aware of the father using illicit substances while living with her;

    c)Precluding her from providing reliably for the children’s day to day needs e.g. significant absenteeism from school;

    d)Exposing the children to criminal activity e.g. drug dealing;

    e)Exposing the children to risk of sexual abuse e.g. leaving the children in the care of persons she believes to have sexually abused the children;

    f)Failing to adequately supervise the children e.g. B suffered burns after pulling a jug of boiling water on herself;

    g)Exposing the children to family violence e.g. remaining in relationships with men whom she says physically assaulted her in front of the children;

    h)Exposing the children to violence involving third parties e.g. the mother’s assault on the mother of a friend of B’s.  

15. I do not regard either parent as a reliable source of information about any improvement in their living circumstances, reduction or abstinence in their drug use or capacity to parent given the factual matters discussed in these Reasons.

16. Given their respective histories and the number of services that have been offered to assist them I find that neither parent has the capacity to provide a safe environment for the children in the future (nor indeed for any other children they may have).

17. While the father has shown a greater capacity to care for the children than the mother that is not really saying a lot in my view. Despite these proceedings and the possible consequences and despite the assistance variously provided to him he has not ceased his consumption of illicit substances and shows a complete lack of insight into his children’s vulnerability to paedophiles while in his care.

18. I reject the recommendations of Ms L that the children should remain with the mother for so long as she remains compliant with psychiatric treatment. Not only has the mother demonstrated an inability to do so she sees no need for it.  It is a completely impractical suggestion in my view. Ms L also recommends that while living with the mother, the children spend unsupervised time with the father. I reject the recommendation. The mother in my view is unlikely to comply with an order that she facilitate the children spending time with the father other than perhaps on a very short term basis. Given her unwavering beliefs and her enmeshed relationship with C it would be a tortuous experience for him to spend time with the father while living with the mother. His extreme reaction at the thought of seeing his father (which Ms L could not control) is not a situation I am prepared to leave him in, even though on that occasion the mother was able to persuade him to see his father and Ms L says that he appeared happy once with his father.

19. I also reject Ms L’s recommendation that if the mother fails to comply with orders the children live with the father. For the reasons explained I consider the children to be at an unacceptable risk of harm in the care of either parent.

20. To be fair to Ms L she did not have the benefit of seeing the witnesses and hearing all of the evidence and she certainly recognised the ongoing risks for the children if the parents did not change their behaviour and also comply with psychiatric treatment recommendations.

21. The independent children’s lawyer did not adopt Ms L’s recommendation and recommended another interim order while the Department undertakes an assessment. I reject that recommendation because I have had the benefit of three days of evidence tested by cross-examination and a detailed history of the parties and the children. Given the demands on the Department, it is unlikely to be able to offer the same attention to detail as I have been able to afford this case. I have been able to make very clear findings of harm based on the evidence before me. I also see no utility for the children in making yet another interim order. Nothing will change in my view.

22. Although D is not the subject of these proceedings I find that there is an unacceptable risk of her being exposed to harm for the reasons discussed in relation to the other children and that risk would be increased in my view if she were to remain with the mother in the absence of her older half siblings.

Conclusions

1. I have come to the conclusion for the reasons identified above that the statutory imperatives of protecting the children from physical and psychological harm cannot be met by making a parenting order that the children live with either parent or spend unsupervised time with either parent.

2. Unfortunately, in these proceedings, this Court only has the option of making an order in favour of a parent.

3. To ensure the protection of the children this Court requires the co-operation and assistance of the Department to find a permanent home for these children. I do not pretend this will be an easy task but it is nevertheless one I hope the Department will undertake.

4. The main principle for administering the Child Protection Act 1999 (Qld) is that the safety, wellbeing and best interests of a child are paramount.

5. I am hopeful that these reasons will assist the Department in acting to carry out their primary role of protecting these children from further harm.

6. I have no doubt that the mother and father have had deprived and traumatic lives, particularly as children, but that cannot be relied upon as a rationale for failing to remove the children in this case. Both parents were exposed as children to significant family violence and history is repeating itself. If the children are not removed from their parents they will in all likelihood have similar lives to their parents involving drug abuse, violence, lack of education, lack of employment and early parenthood.  

7. While I recognise that D is not the focus of these proceedings between the mother and father, her protection is nevertheless a real concern to me. I also note that D’s father, Mr H, has not been involved in these proceedings and the Department will no doubt undertake their own investigation of his suitability to spend time with his daughter. There are however very serious allegations made against him in these proceedings.

8. The children and D deserve an opportunity for a better life and hopefully be exposed to adults who can be permanent and appropriate role models for them. I fear that it may be too late for B but I hope that with the support of the Department B, C and D will at least be afforded a chance to have a better life than they have experienced to date.

9. Away from the mother the children will be able to have a relationship with both parents. I certainly consider it to be very important for the children to have an ongoing relationship with the mother and father so long as that can occur in a safe environment. Given the observations made by Ms L of the children with each parent and, despite the deficiencies in their upbringing, the children appear to love their parents and want to have a relationship with them. Away from the mother’s influence I consider it likely that C will want to spent time with his father.

10. While it may be difficult for B at age 15 to endure supervision I consider all efforts should be made to ensure she is not put into a vulnerable situation. I do not consider that she has the maturity to make sound judgments about her own safety. She has had no reliable role model in her life to teach her the skills to make appropriate assessments of people and the risks they may pose.

11. The independent children’s lawyer submitted that in the event I declined to make a parenting order in favour of either parent it was nevertheless important to make an order that would prevent the children being caught up in a ‘tug of war’ between the parents in such a vacuum. Accordingly, the order I propose to make restrains the father from removing the children from the mother (in the event there is a delay in the children being removed from the mother by the Department) and provides for the father to have supervised time with the children. I have accepted the appropriateness of one of the proposed supervisors by reason of her occupation and the fact that she has apparently already supervised the father’s time.

12. The reason I have not approved the alternate supervisors proposed by the father and the independent children’s lawyer is that I know nothing about them. I am most concerned by the father’s description of them as ‘friends from church’. As already noted I have come to the conclusion that the father’s judgment in forming appropriate friendships is impaired. It might be that after appropriate investigation the persons proposed are suitable but that will be a matter for the Department.

13. Finally, because of the mother’s mental illness, her history of attempted suicide, her threats to harm others and her recent suicide ideation I have concerns that she may harm herself and/or the children when she becomes aware of this decision. It is for this reason I have taken the unusual step of releasing a draft of my reasons to the Department prior to publishing them to the parties. I have directed that a transcript of that mention be provided to the parties and the independent children’s lawyer.

I certify that the preceding two hundred and twenty (220) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 15 September 2017.

Associate: 

Date:  15 September 2017