Jordan & Callaghan and Ors 2012. FamCA 147
The case involved two boys, C aged 8 and T aged 4 years. Ms J was the mother of both boys, from different fathers Mr T and Mr C. The boys lived with their maternal grandparents Mrs & Mr P for a year after the boys had been removed from the mother’s care on the initiative of the child protection department. The maternal grandparents had previously cared for their son’s other grandchildren for 4 years. The department then withdrew the boys from the grandparent’s home without notice and placed them into long term guardianship. The department was concerned that the grandparents had not protected the children as they allowed the father (their son) to live in the same house as the children, as the father had earlier exposed the boys to his violent and abusive behaviour towards their mother (family violence, capacity to protect).
Mr and Mrs P agreed they had undertaken to supervise contacts between their son and the grandchildren, but the requirements of the obligation to supervise were never documented and the grandparents argued that reasonable standards were not breached. Departmental staff later considered that it had been a mistake to place the boys into a situation where they lived in the same house as a man whom the boys had seen being violent and abusive towards their mother, although no specific harm to the boys had been observed.
The department had earlier removed the boys from the care of their mother because of the mother’s persistent alcohol abuse, being intoxicated while caring for the boys, and going to hotels while responsible for the care of the boys. The mother was considered to be a devoted child-focused parent when sober, but she ceased being child-focused when she became intoxicated, or if she became involved in conflicts involving other people. The mother had participated in three relationships where family violence arose. The mother was unable to assure the court that she would make lasting changes to her ways. The mother’s lawyer submitted that she had acted impulsively without foreseeing the consequences of her actions (personality impulsive, marked instability).
Neither pair of grandparents offered family support to the mother if the children were returned to the mother’s care.
The mother preferred the boys to remain living in a foster home over living in either grandparent’s home.
All three parents had histories of extensive use of alcohol and of calling police because of violence in their relationships. Mr T described his own parent’s house as being too violent for his children to be safe in.
The maternal grandparents Mr & Mrs P had raised 4 children and they had experienced difficulties with only one child that commenced when they objected to his practice as a teenager of taking drugs. The maternal grandmother took out an AVO against her own son (one boy’s father) to show him what would occur if he continued to be difficult towards his own father.
There was an allegation that grandfather Mr P was too strict. A family assessor described Mr P as being domineering and over-bearing as he had offered advice to other litigants about how to raise their own children when this advice was not invited and was considered to be interference (parenting style authoritarian). Mr P informed the court that he viewed things as being either right or wrong, and that he took action when he needed to.
C’s paternal grandmother was critical of the care provided by a foster family. The judge cautioned the grandmother about how she spoke about care provided by others in front of the children.
The department sought sole parental responsibility, and proposed that the boys reside in a foster home in the long term.
A departmental assessing psychologist recommended that the children be removed from the care of Mr & Mrs P without notice on the grounds that the grandparents lacked insight into the children’s vulnerability, and they could not be relied on to restrain their emotional reactions in front of the children. This psychologist had not directly assessed the children or grandparents.
One assessor reported that the child C was hypervigilant, and that he coped by being quiet and watchful.
One assessor reported that the children had displayed disturbed eating and sleeping habits and mood changes while living with their mother, and that these had settled after the boys fitted into the family routine of the grandparents.
The judge found that the mother viewed herself as being the victim of actions by other people rather than as taking personal responsibility for her own actions (attributions externalising, personality submissive).
The judge found that it was an unacceptable risk to return the children to the care of their mother due to the lack of any promise for lasting change, as the mother had not demonstrated any lasting change in relevant behaviours (capacity to change).
The judge found that grand-parents Mr and Mrs P had demonstrated their parental competence by raising their own children and by caring for two grand-children for 4 years without complaints.
The judge noted that all three parents had participated in family violence in their relationships and they had called police due to incidents. The judge considered the children should not live with any of the parents.
The judge found inadequacies in one assessor’s report (expert evidence unsatisfactory). The assessor did not question two children about how they had been parented by Mr & Mrs P. The assessor concluded that one child had regressed while in the care of Mr & Mrs P but this was refuted by other reports.
The judge found that the maternal grandfather understood the need to not harm a child by expressing critical views about anyone the child depends on, as this undermines the meaningful relationship the child has with that person.
The judge ordered:
- the children return to the care of the paternal grandparents
- parental responsibility be granted to the paternal grandmother with an exception that decisions about communication between the children and their parents be delegated to the child protection department (delegated parental responsibility)