Annissa and Haura and Anor
[2017] FamCA 651
•25 August 2017
FAMILY COURT OF AUSTRALIA
| ANNISSA & HAURA AND ANOR | [2017] FamCA 651 |
| FAMILY LAW – CHILDREN – PARENTAL RESPONSIBILITY – Where the Secretary, Department of Family and Community Services has intervened – Where significant history of parental neglect and lack of supervision as to the children – Where significant history of Departmental intervention – Where children removed from the mother’s care by order in late 2015 – Where children shortly before final hearing restored to the mother’s care by the Department – Where father refuses to engage with the Department – Where consideration of the children’s best interests – Where Minister for Family and Community Services to hold parental responsibility for the children and for the time the children spend with both parents. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65C, 65DAA Acts Interpretation Act 1901 (Cth) s 2C |
| Aldridge & Keaton [2009] FamCAFC 229 |
| APPLICANT: | Mr Annissa |
| RESPONDENT: | Ms Haura |
| INTERVENOR: | Department of Family and Community Services |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Bevan |
| FILE NUMBER: | SYC | 52 | of | 2008 |
| DATE DELIVERED: | 25 August 2017 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 19, 20 and 21 June 2017 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Patricia J O'Shane Solicitor |
| COUNSEL FOR THE RESPONDENT: | Mr Bernie |
| SOLICITOR FOR THE RESPONDENT: | Shelly Legal |
| COUNSEL FOR THE INTERVENOR: | Ms Christie |
| SOLICITOR FOR THE INTERVENOR: | Crown Solicitors Office |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Schroder |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Sarah Bevan Family Lawyers |
Orders
That all previous parenting orders in relation to the children B born … 2004, C born … 2005 and D born … 2007 be discharged.
That the Secretary for Family and Community Services have sole parental responsibility for the children save and except for cultural and religious matters.
That the mother have parental responsibility for the children as to cultural and religious matters.
That the children shall live with and spend time with the mother and father as directed by the Secretary or the delegate of the Secretary of the Department of Family and Community Services.
It is noted that that the Secretary has sought live with and spend time with orders to the effect:
(a)that the children live with the mother;
(b)that the child B spend time with the father as per her wishes;
(c)that the father spend time with the children C and D supervised by the Secretary or his delegate for a period of 12 months after which time the need for supervision be reviewed.
THAT BY CONSENT the applicant father pay by way of contribution to the Independent Children’s Lawyer’s costs the sum of $9,411.00 to Legal Aid NSW within six months from this date or such further date as may be agreed in writing between the father and Legal Aid NSW.
That, otherwise, all applications before the Court be dismissed.
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 Annissa & Haura and Anor 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 PARRAMATTA |
FILE NUMBER: SYC 52 of 2008
| Mr Annissa |
Applicant
And
| Ms Haura |
Respondent
And
| Department of Family and Community Services |
Intervener
REASONS FOR JUDGMENT
These are final parenting proceedings in relation to the children, B born in 2004, C born in 2005 and D born in 2007.
The parties are the applicant father, the respondent mother and the intervener, joined as the second respondent, the Secretary, Department of Family and Community Services (“the Department”).
A useful earlier history of the proceedings is set out in reasons for judgment delivered in respect to interim proceedings on 4 December 2015 (Department of Family and Community & Annissa and Anor [2015] FamCA 1131) as follows:
1.Parenting proceedings in relation to the children, B born … 2004, C born … 2005 and D born … 2007 were originally commenced in 2008 in the then Federal Magistrates Court of Australia.
2.On 8 December 2011 final orders were made by consent following protracted litigation. Those orders in summary provided:
a)That the mother and father have equal shared parental responsibility for the children;
b)That the children live with the mother;
c)That the children spend time with the father during school term on alternate weekends from after school Friday until before school Tuesday and in the other week from after school Tuesday to before school Wednesday and for half of the school holiday periods; and
d)Various specific issues orders were made relating to changeovers, non-denigration, the provision of mutual information relating to the children’s welfare, maintaining of contact details, a prohibition on physical discipline, a prohibition on consumption of alcohol or illicit drugs when the children were to be in the care of either parent and that the parents engage in the Brighter Futures Program.
3.The father subsequently commenced further proceedings on 2 April 2014 and those proceedings were later withdrawn and dismissed on 21 May 2014.
4.The present proceedings were commenced by the father on 17 April 2015. He sought orders that provided for:
a)The father to have sole parental responsibility for the children;
b)That the children live with the father;
c)That the children spend time with the mother from after school until 6.30 pm on Tuesdays and Wednesdays and each Saturday from 10.00 am to 4.00 pm; and
d)Otherwise, he sought various specific issues orders similar to those made on a final basis previously.
5.The mother filed a Response to the father’s application on 3 July 2015 and sought, in summary, the following orders:
a)That the mother have sole parental responsibility for the children;
b)That the children live with the mother; and
c)That the children spend no time with the father.
6.On 27 May 2015 an Independent Children’s Lawyer (“ICL”) was appointed to represent the interests of the children and the Department of Family and Community Services was requested to intervene in the proceedings by reason of significant concerns as to the ongoing welfare of the children.
7.Subsequently on 3 July 2015 the Secretary, Department of Family and Community Services joined the proceedings as Intervener and orders were made requiring the father and mother to undertake urinalysis testing at the request of the Department and further requiring them to permit the Department to conduct random visits at their residences, meet with the children and to accept all reasonable recommendations of the Secretary of the Department or his delegate. It was noted by the Court that should the Intervener have concerns in relation to the children that it would exercise its State welfare powers under the Children and Young Persons (Care and Protection) Act 1998 (NSW). Orders in relation to the father’s time with the children were suspended.
8.On the same day the proceedings were transferred to this Court from the Federal Circuit Court of Australia.
9.The proceedings were listed for the purposes of a first day Less Adversarial Trial on 19 November 2015 and in the absence of agreement in relation to the appointment of a single expert forensic psychiatrist for the purposes of a Chapter 15 report and proceedings were adjourned to 29 February 2016. It was noted on that day:
a)That the parties were at liberty to provide a minute of proposed orders to the Court in Chambers for the appointment of a Chapter 15 expert when agreed;
b)That the Department proposes to undertake a CARA assessment in relation to the child C;
c)That the father proposes to make application for the revocation of the existing final apprehended domestic violence order that precluded all contact between him and the children; and
d)That the father would make contact with the Suburb E Children’s Contact Centre for assessment as to his suitability in the event that any subsequent orders were made for him to spend supervised time with the children.
10.Thereafter on 2 December 2015 the Department filed an Application in a Case returnable on short notice on 4 December 2015. In that application the Department sought orders that, in summary, provided for all previous parenting orders in relation to the children to be discharged, that the Department have parental responsibility for the children and the children live as directed by the Department. The Department’s application was supported by affidavits by the allocated case worker.
11.The mother made application for the Department’s Application in a Case to be adjourned so as to be able to properly respond to the Department’s concerns. Consequent upon the serious concerns as to the welfare and safety of the children, the mother’s application was refused but proceedings were adjourned to later in the day to facilitate the mother and father filing a Response to the Department’s Application in a Case and any affidavit that they may wish to rely on.
12.Ultimately, the mother filed a Response to the Department’s Application in a Case seeking to have the Department’s application dismissed and that there be an order that the children live with the mother.
13.The father filed a Response to the Department’s Application in a Case that sought orders that the Department’s Application in a Case be dismissed, that notwithstanding the existing apprehended violence order the father have sole parental responsibility for the children and the children live with the father with the mother having no contact with the children.
14.As a consequence of the urgency in relation to the children’s circumstances, particularly as to the child C, the interim application by the Department proceeded on the basis of oral submissions and after consideration of those oral submissions and consideration of documents tendered in evidence, orders were made that pending further order previous parenting orders in relation to the children be discharged, that the Department exercise sole parental responsibility for the children and that the children live as directed by the Department.
The parties relationship
The mother and father had been in a relationship from about 2003 until December 2007. It appears that there were periods of separation before December 2007 and periods of cohabitation since then.
The mother has three older daughters Ms G, 30, Ms F, 28, and Ms H, 27, being the subject children’s maternal half siblings.
The parents and the children are of indigenous background. The mother identifies as an O People woman and has engaged the children in their culture and aboriginal cultural practices. The father identifies as a P People man. He acknowledges that his culture is a patriarchal male dominant society and that of the mother is matriarchal.
Context
Otherwise, earlier reasons for judgment (supra) provide context to the present applications:
Departmental engagement and concerns
28.Since 2004 the Department has received 99 risk of harm reports in relation to one or more of the children. Those reports relate to various allegations including inadequate supervision, the capacity of the mother to care for the children, domestic violence against the children from both the mother and father, substance abuse and the child C exhibiting violent and suicidal behaviours.
29.On 21 May 2014 the New South Wales Police issued a provisional apprehended domestic violence order for the protection of the mother and the three children from the father. In addition to the usual statutory orders the order provided that the father must not approach or contact the protected persons by any means whatsoever except through his legal representative or as agreed in writing or as permitted by an order or directions under the Act for the purpose of counselling, conciliation or mediation.
30.It is common ground that the provisional apprehended domestic violence order has now been confirmed as a final order and it is in place until 10 June 2016.
31.The police application for the apprehended domestic violence order sets out various particulars including that previously there had been ten apprehended domestic violence orders in the period between 2004 and 2008. The application for apprehended domestic violence order was made following information from the child C that she was told by the father that “when he gets custody of us he is going to shoot you (the mother)” and “I’m going to get my colleague to shoot mum”. Having regard to the police knowledge as to the history between the mother and father it is not unsurprising that the apprehended domestic violence proceedings were commenced.
32.The Department became engaged again with the family as a consequence of the apprehended domestic violence proceedings but due to the existence of the provisional order the children were assessed as not being in need of care and protection.
33.On 18 September 2015 the mother informed the case worker that the father had recommenced contact with her, he asserting that the apprehended domestic violence order had been varied.
34.The Department holds significant concerns in relation to the child C who was hospitalised twice in August 2015. The child’s behaviour at school became concerning; the child crawling under the high jump mats saying “I want to suffocate”. The child was taken by ambulance to hospital where she had remained in the care of her teachers and her school principal. The child was later released from hospital into the care of the mother. Nevertheless the child attended school following day and her behaviour continued to be violent and aberrant, the child screaming “I want to die”. The mother attended at the school and refused to accompany the child in the ambulance to the hospital. The case worker reports that the mother “showed no concerns for her child’s actions”. The child was released from hospital the same day.
35.On 10 September 2015 the case worker conducted a home visit to the mother’s home. Whilst in attendance at the home the child was observed to lock herself in the garage and later climbed onto the roof throwing roof tiles onto the ground and threatened to throw tiles on the mother’s car and at her siblings.
36.It is reported that from May 2013 until March 2015 the child C was regularly seeing a counsellor as a consequence of a sexual assault. In May 2013 the children B and C had snuck out of their mother’s home at 1.00 am and gone to a neighbour’s home where they had been sexually assaulted by the neighbour. It was later alleged by the child B that the mother had left the children in that neighbour’s care while she went gambling.
37.The Department reports multiple risk of harm reports relating to the mother’s inadequate supervision of the children since December 2008. The allegations are set out in detail in the affidavit of the case worker filed on 29 September 2015. The Department further reports multiple incidents where the children have been exposed to physical and psychological harm as a consequence of the conduct of either the mother or the father.
38.The Department has significant concerns in relation to the physical and mental health of the mother, having received multiple risk of harm reports in relation to the mother’s mental health since 2005 including allegations that the mother has a gambling addiction, suffers from severe depression (including thoughts of suicide) and abuses alcohol, prescription medication and/or cannabis. There are numerous reports of the mother leaving the children in the care of her adult children and the children being underfed, inadequately clothed and their personal appearance being neglected.
39.The mother had previously in November 2009 been referred to early intervention services but failed to engage with that service with the file being closed in May 2010. The mother was later again referred to early intervention services in November 2010 with some involvement until September 2012. The Department from October 2012 has conducted casework with this family following a safety assessment by the Department in September 2012. The assessment identified dangers in that the mother “does not meet the children’s immediate needs to the extent that it results in serious harm or threat of serious harm to the children…” and that the mother “appeared overwhelmed by her current circumstances (chronic back pain) coupled with the children’s absconding on the behaviours that she is finding difficult to manage”.
40.By early 2013 the Department had concerns in relation to the mother’s abuse of prescription high level painkillers including Endone. The mother informed the Department at this time that when she takes the medication she “zones out” and feels helpless, hopeless, and like she is not making any progress. The mother sought to enlist her older daughters to assist with the children on weekends.
41.Subsequently the father had no engagement with the children from late February until May 2013 by reason of an injury suffered by him. The mother was thus without assistance from him in her day-to-day care of the children.
42.Circumstances in the mother’s home continued to deteriorate with the children being exposed in mid-2013 to inappropriate sexual issues. In early August 2013 the Department identified dangers in the mother’s household as the parents’ current emotional, psychological or cognitive functioning or physical condition/disability seriously impairs her ability to supervise, protect or care for the child…” However with the use of family, neighbours and other individuals in the community and community services as safety resources the children remained in the mother’s primary care notwithstanding the sexual assaults perpetrated in May 2013 by a neighbour.
43.In the period from 5 November 2013 to 14 April 2014 the Department received 14 reports regarding amongst other things, the children being hit by the maternal half siblings, the children being left in the care of their maternal half siblings when they are drug and alcohol affected, the mother providing insufficient care for the children and drinking in front of them, the children being exposed to a maternal uncle who is a “paedophile”, the children accessing inappropriate images of men on the mother’s phone and at school and the child D staying up late playing violent video games.
44.In a home visit on 11 April 2014 the case workers were informed by the mother that she was still trying to manage her pain. The mother complained that she had put on weight and had memory loss. She reported that she was taking OxyContin and codeine and they were highly addictive and she also took Panadeine Forte occasionally. The mother further reported that the maternal half sibling of Ms G had commenced using ICE and drinking heavily. The mother further reported that she had evicted the maternal half sibling Ms H out of her home because she was smoking marijuana. It was agreed by the mother as a safety plan that the children were not to be left unsupervised with their adult siblings and their partners.
45.Notwithstanding the terms of the safety plan the mother permitted the children to accompany Ms G and Ms H to the Easter Show without the mother being present.
46.Shortly thereafter the mother reported to the Department that the children were now in the care of the father. The father subsequently informed the Department that he and the mother had commenced a week about arrangement with the children.
47.In early August 2014 the Department received information that Ms G had been arrested for kidnapping an adult whilst under the influence of ICE and had been bailed to the mother’s address.
48.On 1 November 2014 the child C had accessed the mother’s medications using a stool to reach the cupboard whilst the mother was asleep. On returning from shopping the mother had found the children C and B asleep on the couch.
49.On 3 November 2014 the mother informed the Department on a home visit that three weeks before she had a car accident and had been using Endone, OxyContin, Valium and Endep but asserted that she had thrown the drugs away.
50.The Department continued to hold concerns in relation to the children in the mother’s care through late 2014 and on 30 June 2015 case worker met with the mother. There was discussion in relation to the basic needs of the children, the children’s referral to counselling, exposure to domestic violence, allegations about the mother’s alcohol use, the children’s exposure to unsafe people in the home and current parenting arrangements. The mother rejected concerns in relation to her alcohol use and lack of supervision and refused to agree to sign a case plan.
51.On 10 September 2015 a Departmental representative attended at the mother’s home and observed pictures on the walls of the bedrooms of C and B of men and penises and words like “sex”. There were also holes in the children’s bedroom walls. It was observed that the mother was not able to control the child C’s behaviour.
The father
52.Some aspects of the Departmental concerns in relation to the father are referred to above in so far as domestic violence is concerned. The Department has received a number of risk of harm reports relating to the father since 2011 including reports that he smoked cannabis and that the paternal family uses illicit substances.
53.The father tested positive to cannabis in two tests in August 2015 but negative to some other tests. The integrity of the negative results is somewhat suspect by reason of low creatinine levels. The father has to the Department’s knowledge had no contact with the children since the apprehended domestic violence order in May 2015.
54.The father rejects any need for domestic violence counselling asserting that there has never been anything physical in his relationship with the mother.
The children
55.Following the sexual assault in May 2013 the Department received a number of reports that the behaviour of C and B had deteriorated and become more difficult. The children attended counselling for a period with B stopping counselling in September 2014 and C stopping counselling in late March 2015. Information came to the Department that the father had discouraged both children from attending counselling.
56.In December 2014 a psychologist consulted in relation to the children observed that “many of the issues and reports seem to stem from neglect”.
57.In May 2015 at a home visit the children’s use of Internet dating sites was discussed with the mother. The mother asserted that C had opened an account for all three of the children.
58.In late July 2015 C’s school principal at Suburb I Public School reported concerns about the child’s behaviour. The child was defiant in class and among other things had “I want to die” written on her hand. At this time the mother reported that the child was not listening to direction and was being disruptive. The father shortly thereafter reported his concerns about the children being on Facebook using fake names and ages. The Facebook pages evidence the children receiving sexual responses to their images.
59.On 13 August 2015 the Department received a report that C had posted a video of B in the shower on YouTube. On 18 September 2015 the mother reported that C had cut herself out of family photos saying that she was not part of the family and she was refusing to go to school.
60.The children’s school attendances have at times been irregular with the C on occasions having been suspended.
61.On 26 September 2015 the Department received a risk of significant harm report in relation to B and C who were observed to be inadequately supervised. The mother reported C missing to the police and she was later found four stories up on the outside of the older half-sister’s building.
62.On 12 October 2015 the Department was informed by the police that C had been scheduled following a “manic attack”; the child had been taken to hospital and then discharged into the care of the mother. The mother reported that the child had been lying on the road. The mother picked up the child, took her off the road and put her in the car. When the car stopped the child jumped out of the car and ran into a house. The child was observed by the mother to be hitting herself with a stick. When the mother attempted to restrain her the child bit the mother on the arms causing her to bleed. The child was taken to J hospital by ambulance.
63.On 14 October 2015 arrangements were made for all of the children to commence at Suburb K Public School commencing 15 October 2015. The child C attended the school on 14 October 2015 and was invited to stay for an induction. On that date the Department received a call from staff at the school who reported that the child C had “shut down” and ended up in a foetal position after being told she couldn’t start at the school until the following day. The school principal had expected the mother to wait at the school gate during C’s induction, but the mother had left the premises and gone home. The child left the school and ran across the road. The mother was called to come and collect her at the school.
64.The mother met with the case worker on 21 October 2015 and there were discussions in relation to the children’s schooling, C’s behaviour and the mother’s supports among other things. The mother reported that the child had been stealing now for a couple of months. Later, on 29 October 2015 the case worker attended C’s school to find that a police liaison officer was in attendance in relation to an incident where C had broken into a car at 12.00 am and stolen a bag and other items.
65.The child C has more recently been voluntarily placing herself in situations of danger, running out in front of cars, sitting on the road and attempting to stick pins in her wrist.
66.A further safety assessment completed on 16 November 2015 determined that the children were deemed to be at high risk of neglect and abuse with the Department having concerns about the mother’s ability to provide ongoing care consistent with the children’s needs. During the assessment it was observed that drawings remained on the children’s bedroom walls of a naked male with a penis showing. Several days later the mother telephoned the case worker, having called 000 as the child C was attempting to hurt herself and the mother. The mother reported that whilst driving home the child had half her body out of the car window. On arrival at home the child threatened to hurt the mother with a blunt kitchen knife and was trying to harm herself with a coat hanger around her neck whilst attempting to get on the roof of the premises. The child was taken by ambulance to hospital. It was otherwise reported to the Department in relation to the same incident that the child was “going absolutely berserk” and that the child had held a knife to her chest and said “I’ll die”. She then held a knife to her wrist and later went outside and attempted to jump in front of moving cars. The child otherwise was reported to have tried to harm herself with a school compass and had stated that a ghost in the school had told her to do so. On arrival at the hospital the social worker reported that the child was “too aggressive to assess” and that she was “hitting, screaming and throwing things”. The child was discharged later in the evening into the care of the mother.
The mother’s housing
67.In late September 2015 the mother received a breach notice in relation to the community housing property that she occupies with the children. On 15 October 2015 the mother informed the Department that she had been served with an eviction notice by community housing and that she had been asked to sign an agreement about the expected behaviour of community housing tenants. Her residential circumstances remain unclear.
68.The Department has sought assistance for the mother. In late October a referral form for the child C was forwarded to L Centre. Subsequently L Centre informed the Department that it would be unable to work with C while she remains in an unsafe environment. The Department also assisted the mother in completing an application for In-Home Care that provides an in-home child care service which seeks to encourage the development of life skills with daily routines.
69.On 29 October 2015 the mother appeared to the case worker to be very tired and stressed. The mother stated that she was struggling to manage C’s behaviours and that she was very close to taking her to a police station and leaving her there. In early November 2015 a Departmental officer made enquiries of the M Unit seeking respite care for C. There was no respite care available.
70.The mother’s ability to work has been severely impacted by C’s behaviour and the mother has commenced to receive food vouchers to assist in providing for her household.
In May 2015 the mother was told by the child C that “daddy…. Told me when he gets custody of us he is going to shoot you. He then told me that he has a work colleague… He told him that he will shoot you soon then the man said to daddy let me help you I have guns”: Exh “H”. The father for his part denies the allegation.
As a consequence of this complaint, a provisional apprehended domestic violence order (“ADVO”) was made for the protection of the mother and the children on 21 May 2015.
In June 2015 a final ADVO was made for the protection of the mother and the children against the father. The order dated 10 June 2015 for a period of 12 months restrained the father from:
a)assaulting, molesting, harassing, threatening or otherwise interfering with the protected persons;
b)engaging in any other conduct that intimidates the protected persons;
c)stalking the protected persons;
d)approaching or contacting the protected persons by any means whatsoever except through the father’s legal representatives or as agreed in writing or as permitted by an order or directions under the Family Law Act 1975 (Cth) as to counselling, conciliation or mediation.
On 4 December 2015 interim orders were relevantly made as follows:
(5)That all previous orders in relation to the children B born … 2004, C born … 2005 and D born … 2007 (“the children”) be discharged.
(6)That pending further order the Secretary, Department of Family and Community Services (“Secretary”) exercise sole parental responsibility for the children.
(7)That pending further order the children live as directed by the Secretary or his delegate.
The subsequent course of proceedings
On 29 February 2016 Dr Q, Psychiatrist, was appointed Single Expert for the purposes of providing a report to the Court. His report was later provided to the Court and released to the parties on 19 August 2016.
On 6 October 2016 the parties were ordered to attend mediation and trial directions were made. On 17 February 2017 the matter was fixed for trial commencing 19 June 2017 allocating five days.
On 22 March 2017 the matter was relisted on application by the Independent Children’s Lawyer (“ICL”).
Orders and notations were made that day as follows:
1.The proceedings be adjourned to trial to 10.00 am on 19 June 2017.
2.Each of the parties file and serve a short updating affidavit as to circumstances that have occurred since the filing of their trial affidavits with such affidavits to be filed and served by no later than 14 days before the commencement of the trial.
3.Leave is granted to the Independent Children’s Lawyer to have photocopy access to all documents produced on subpoena particularly so as to provide copies of relevant documents for consideration by the single expert.
4.Leave is granted to the legal representatives only to inspect documents produced by the Department of Family and Community Services pursuant to a subpoena to produce documents filed on 21 February 2017.
THE COURT NOTES THAT
5.The proceedings have been relisted today on the application of the Independent Children’s Lawyer who has expressed significant concerns as to the Department facilitating the return of the child C to reside with the mother and the possibility that the Department is considering the return of the children, B and D to reside with the mother.
6.The Court is informed by the Department today that C is in fact residing with the mother and the circumstances of the children, B and D subject to review by the Department in relation to their current arrangements in kinship care in the R Town area.
By the commencement of the trial all three children had been placed with the mother by the Department.
The trial commenced 19 June 2017 and concluded 21 June 2017 with judgment reserved.
The Parties’ Positions at trial
At trial the ICL provided to the Court a minute of orders sought on behalf of the children. In summary, the ICL’s proposed orders were as follows:
a)that all previous parenting orders in relation to the children be discharged;
b)that the Secretary, Department of Family and Community Services exercise sole parental responsibility for the children save and except for cultural and religious matters;
c)that the children shall live with and spend time with the mother and father as directed by the Secretary or the delegate of the Secretary.
Otherwise, the ICL’s minute of proposed orders further noted:
That the Secretary has sought live with and spend time with orders to the effect:
i)that the children live with the mother;
ii)that the child [B] spend time with the father as per her wishes;
iii)that the father spend time with the children [C] and [D] supervised by the Secretary or his delegate for a period of 12 months after which time the need for supervision be reviewed.
At trial the Department sought, in summary, the following orders:
a)that all previous orders are discharged;
b)the Minister for Family and Community Services and the mother have equal shared parental responsibility for the children for a period of two years;
c)that at the expiration of the two-year period the mother have sole parental responsibility for the children;
d)that the children live with the mother;
e)that the children C and D spend time with the father for a period of five hours as agreed between the parties or failing agreement on the first Sunday of each month;
f)that the time the father spends with C and D is to be supervised by the Secretary, Department of Family and Community Services or his delegate for a period of 12 months, after which time the Secretary may review the need for supervision;
g)that the children C and D are to communicate with the father by telephone on a minimum of one occasion each month, with such communication to be facilitated and supervised by the Secretary or his delegate for a period of 12 months, after which time the need for supervision may be reviewed;
h)that the child B spend time with and communicate with the father in accordance with her wishes;
i)that the mother shall use her best endeavours to encourage the children to spend time and communicate with the father, including to facilitate the same, should involvement by the Secretary cease;
j)that the mother and father are each restrained from denigrating any other party or family members of the other party in the presence or hearing of the children or from allowing any other person to so denigrate any other party or family members of any other party in the presence or hearing of the children.
The mother at trial sought orders that provided:
a)that the mother have sole parental responsibility for the children;
b)that the children live with the mother;
c)that the children spend no time with the father;
d)that the father be restrained from molesting or harassing the mother.
The father at trial proposed orders that provided:
a)that the father have sole parental responsibility for the children;
b)that the children live with the father;
c)that the children spend supervised time with the mother.
The father’s alternate proposal at the time of final submissions was that “he be allowed contact with C and D each fortnight between 5.00 pm Friday and 5.00 pm Sunday with supervision at his home for the first three months only”.
Documents relied on at trial
The father relied upon his affidavit filed 19 June 2017.
The mother relied upon her affidavit filed 15 June 2017.
The Department relied upon the affidavits of Departmental case workers Ms S filed 2 February 2017 and Ms T filed 7 June 2017.
Otherwise, the Court had before it the single expert report prepared by Dr Q dated 12 August 2016. It is noted Dr Q was not the subject of any significant challenge as to his observations, conclusions and opinions during his oral evidence. His report is of significant assistance although completed in circumstances where the children were in/out of home placements in the care of the Department. It is referred to in detail below.
The Children post December 2015
C
The child, C, had been attending Suburb I Public School in 2015 but following an adverse behavioural incident the child commenced to attend Suburb K Public School in October 2015.
Following interim orders in early December 2015 the child, C, was placed in a supported care placement by the Department. At the same time the other children were placed in an independent supported care placement by the Department.
In February 2016 the Department received a risk of serious harm report in relation to the child, C. A further risk of serious harm report in relation to the child was received on 4 March 2016. The child was thereafter placed in a therapeutic care placement from 1 April 2016 in the Hunter region of New South Wales.
Subsequently, between August and November 2016, the Department received numerous risk of harm reports in relation to the child, C, whilst the child was placed with “Impact Youth Services”. The reports included notifications as to hypervigilance, emotional outbursts, self-harming including attempting to exit a moving car, absconding from her placement residence, significant absences from school, inappropriate social media use, being scheduled for mental health issues and violent behaviour.
On 2 October 2016 the child, C, refused to return to her care placement following spending time with the mother, the other children and other members of the maternal family. She was returned to placement following police intervention only to abscond from that placement again on 13 November 2016. Thereafter she was placed with emergency carers before she was returned by the Department to the care of the mother on 14 November 2016. It was the Department’s intention to provide intensive casework and other support services to the child and to the mother following the restoration of the child to the mother’s care.
The child has remained in the mother’s care since 14 November 2016.
The Department has provided significant assistance to the mother including financial assistance for food and outstanding bills in particular rental arrears.
The child was re-enrolled at Suburb K Public School from 5 December 2016, at first with reduced attendances from 10.00 am to 1.00 pm to allow the child to integrate back into the school system after a four-month absence. The school reported that the child had a smooth transition into school with no outbursts, incidents or meltdowns. The child commenced regular attendance at Suburb K Public School again in 2017.
In late March 2017 the child was engaged by the Department and the mother in discussions about the child’s views about where she is living, school, health, culture and contact with family members. This resulted in an updated departmental case plan for the child.
In March 2017 the child commenced attending U School, a private primary school for Aboriginal and Torres Strait Islander children at Suburb E. On 3 May 2017 the child attended a health assessment at U School. It was recommended that she receive trauma counselling through L Centre. In late May 2017 it was reported that the child was doing well at the school with her attendance rate being steady. The child was engaged in school activities and performing at a high academic level. The mother’s observations of the child’s engagement at school are positive.
B and D
After the Department assumed care of the children, B and D, they were placed in care in Sydney with arrangements to see the mother about once every three weeks.
The children were later on 2 June 2016 placed with kinship carers in R Town in southern New South Wales with arrangements in place to see the mother each fortnight. Both children settled in reasonably well with their kinship carers.
In mid-February 2017 the Department became aware that the kinship carers for the children would be unable to look after them long-term. The Department engaged with both the mother and father as to the possibility of other family members who may be able to care for the children, but none were considered appropriate. The Department instituted a Restoration Viability Assessment that resulted in a report dated 28 March 2017. The parties were informed as to the result of the viability assessment.
On 6 April 2017 the children, B and D, were restored to the care of the mother. Subsequently the Department undertook home visits to the mother’s home and has had regular engagement with her.
On 27 April 2017 the child, B, informed the caseworker that as the father had “said mean things to her during a visit” she would not attend future contact visits with the father. The other children indicated that they wish to continue time with the father.
The child, B, after a period at U School, commenced attending V School about 15 May 2017. The school has a strong focus on Aboriginal culture.
The child, D, commenced attending Suburb K Public School on 15 May 2017. The school reports that he has settled well into his old school, having fallen in with his old friendship group and his attendance has been stable.
The father and the children
The ADVO expired in June 2016.
The father denies any physical violence in his relationship with the mother but concedes significant conflict.
The father saw the children in the presence of the single expert Dr Q on 8 July 2016.
All of the children spent time with the father and extended paternal family the next day on 9 July 2016 at an event celebrating NAIDOC week. Otherwise, the father has spent time with the children, B and D, once in Sydney and once in R Town in the period to February 2017. The father’s contact with the children in R Town led to concerns held by the contact worker as to his anger and inappropriate interaction with the child, D.
On 14 December 2016 the father spent supervised time with the child, C, and then on 22 January 2017 supervised time with all three children at the zoo in Sydney.
The father is reported to have had infrequent telephone contact with the children.
In January 2017 the father was invited by the Department to participate in Family Group Conferencing Meeting. He refused to participate. The father subsequently refused to participate in the Restoration Viability Assessment conducted in relation to the mother and the children and a children’s Case Planning Meeting. The father informed the Department that he considered them to be “a wasteful exercise” and that he would attend no further meetings with the Department.
A schedule was implemented for the father to spend time with the children between 10.00 am and 4.00 pm on a Sunday on a supervised basis for the period between April and July 2017. A supervised occasion in April 2017 at W Park was terminated early as a consequence of the father’s aggressive behaviour especially in regard to the supervisor and the father informing the child, B, who was distressed that she was “not welcome to attend any future contact visits”.
Otherwise, the father cancelled scheduled contact on 7 April 2017 and did not confirm he would be attending contact on 21 April 2017 so it did not take place.
He did not see the children since the 23 April 2017 time at W Park until supervised times on Sunday 11 June 2017 and Sunday 18 June 2017 (Exh “P”) on which occasions B did not attend. The first contact report demonstrated some reluctance of the children, C and D, to attend but the second report showed an appropriate engagement by the father with the two children present and the children’s warm engagement with him.
The father resides in public housing accommodation being a three-bedroom home unit at Suburb X. He says that that accommodation would provide comfortable overnight accommodation for the children, notwithstanding his proposal that his elderly mother would also live with him. The paternal grandmother, Ms Y, aged 73, confirmed her willingness to reside with the father in the event that the children were to live with him.
The father is in receipt of a carer’s pension for his mother although she does not live with him. He stays five or six nights a week at her one bedroom flat in Suburb Z, that also being public housing accommodation.
He is, otherwise, employed on a casual basis as a driver but concedes that he would likely have to stop work should the children be in his full-time care.
The father has a significant criminal history both as a juvenile and as an adult. Offences involve dishonesty, antisocial behaviour, assault, drug possession, break enter and steal, drink-driving, driving in a manner dangerous, resisting arrest and various offences of driving whilst disqualified.
The mother has an extensive juvenile criminal history but has not been before the courts since mid-1995 when she was convicted of larceny and placed on a 12 month good behaviour bond.
The children often expressed concerns as to the father’s drinking, physical violence and psychological and verbal abuse: Exh “J”. The father denies abusing alcohol notwithstanding police reports in December 2016 that would indicate to the contrary: Exh “I”. He conceded that the child, C, was concerned about his drinking. He asserts in his trial affidavit that he had engaged in efforts to change his behaviour by ensuring that he no longer had harmful habits such as alcohol and drug consumption.
The father’s initial primary proposal for the children to live with him would see a necessary change in each of the children’s schooling arrangements. He had only made telephone enquiries of the schools proposed by him. To assist the child, B, settle in he would seek psychological intervention for her, although he was at a loss to explain how he would get the child to stay with him.
He proposes that his elderly mother would reside with him to assist him with the children, although he made no mention of this to the Single Expert.
The mother and the children
The mother gives a long history of conflict with the father including her being assaulted by him, being the subject of ongoing abuse throughout their relationship and being subjected to controlling and coercive behaviour at the hands of the father including his spurious complaints to the New South Wales Police and the Department of Family and Community Services seeking to force the mother to resume their relationship on the various occasions that they separated.
On a number of occasions the mother sought advice from the Aboriginal Legal Service in relation to the domestic violence in her relationship with the father.
The relationship between the mother and father has been a disaster for the children. In December 2007 the father retained the children for a period of about three months in breach of orders that were in place. Later the father spent no time with the children for about three months in 2013.
In November 2010 the mother engaged with the Brighter Futures Program through the Department to assist her with the children. She remained engaged with that program until about September 2012.
In July 2011 the mother was involved in a car accident and sustained injuries. Subsequently she was diagnosed with depression and post-traumatic stress disorder.
In May 2013 the children, B and C, were sexually assaulted by a next-door neighbour. The perpetrator was convicted and sentenced to a period of imprisonment in September 2014. The assault and the subsequent interviews and court attendances were traumatic for these children. There had been subsequent issues in relation to the children accessing or being exposed to inappropriate sexually explicit material.
It is common ground that the Department has had an intimate engagement with the mother and the children for some years and continues to do so. The mother’s evidence is that she will have ongoing reliance on the Department to assist with counselling and her care of the children. At the time of trial there were regular meetings between the mother and the Department including phone attendances and a weekly home visit from a case worker from the Department with the departmental officers attending at the children’s schools from time to time.
The mother presently resides in a three-bedroom public housing accommodation and is waiting for a transfer to four bedroom accommodation.
She is on leave from her previous employment until October 2017. She acknowledges that to facilitate a return to work she will need to make arrangements for before and after-school care for the children who at present are in different schooling arrangements that present significant issues for the mother in procuring regular and timely attendance.
In her oral evidence, the mother concedes a number of incidents dating back to before 2011 where her supervision of and/or engagement with the children have been concerningly deficient. The children were absent from school on a concerning number of occasions in 2013 and 2014. On other occasions, particularly in 2015, the children or one or other of them were the subject of police intervention in circumstances where the mother had no idea of their whereabouts.
There is no doubt that the Department had no choice but to intervene in these proceedings and ultimately for reasons given at that time the children were in December 2015 placed in the Department’s care by orders of this Court.
More recently the mother has had some difficulty in ensuring C’s attendance at school on time citing difficulties in having the child get up in the morning. Otherwise, the children have been absent from school for a period of days in early June with the mother asserting it was for purposes of attending a funeral at EE Town, New South Wales.
The mother has logistical difficulties in getting all the children to school. The child, D, cannot be dropped at Suburb K Public School until after 8.30 am with the mother then required to drive to Suburb V and then to Suburb E where C attends school. On occasions she has relied upon family to assist.
The mother also demonstrated little understanding as to how to control the engagement of C and B with inappropriate social media, evidencing little willingness to take appropriate steps to introduce child locks or controls on the multimedia available to the children.
The mother’s financial circumstances are somewhat precarious. She receives $880.00 per fortnight by way of a care benefit for C, $730.00 per fortnight by way of family payment including rental benefit otherwise, her public housing rent is $540.00 per fortnight. She is reliant, to an extent, on Departmental assistance.
Ultimately, when challenged, the mother agreed that the Department needed to remain engaged to provide necessary assistance to her and that particularly she needed to consult with the Department as to the children’s schooling.
She acknowledges that the child, D, misses his father whilst the child, B, is still upset with and concerned that she is not safe in the company of her father.
The mother in her oral evidence was open to the prospect that she would share parental responsibility for the children for the next two years and at that time sole parental responsibility would move to her. She was very clear that she “needed to be included in consultation”.
She was clear in her mind that the child, D, should have supervised time with the father only to protect him from inappropriate conversations with the father. Although, when pressed, she conceded that the child’s time with the father could occur for a period at a contact centre to ensure appropriate behaviour from the father and then with changeovers effected at the contact centre the child could spend time with the father away from the contact centre. She agreed that such an arrangement would not require her to engage with the father.
The Department
The Departmental caseworker, Ms T, continued to hold concerns in relation to the children who have now been restored to the mother’s care. Since the return of C to the mother she has demonstrated some capacity to meet the child’s needs. Otherwise, the mother has seen to some of the needs of the children overall in collaboration with the Department particularly as to the children’s medical, dental and therapeutic needs.
The Department was of the view that it was necessary for it, at least for a period, to share parental responsibility for the children with the mother in order to provide support for the family.
Ms T agreed that the father’s recent position was that he had opted out of cooperation with the Department.
Otherwise, it was the mother’s position that she has made the choice to cooperate with the Department currently and into the future. The mother, said Ms T, was showing signs of appropriate engagement with the Department and it was important for the children that that engagement continue particularly having regard to the mother’s history in relation to her three older children.
There were indications that the behaviour of the child, C, had improved since she was restored to the mother’s care, in particular, there were no reported incidents of self-harm or risk taking by the child.
Ms T held no concerns as to the cultural engagement of the children. She was of the view that the mother could in the future provide to the children significant connection to their cultural background and practices as she had done in the past.
The Department, said Ms T, was concerned in relation to the prospect of the father having unsupervised time with the children by reason of his behaviour and his argumentative style. There was concern that unsupervised time would facilitate him endeavouring to undermine the mother’s relationship with the children.
Ms T’s views were supported by the children’s previous caseworker, Ms S.
The Single Expert Report
Dr Q, psychiatrist, provided an expert report to the Court: Exh “D”. The report was dated 12 August 2016 with interviews taking place in July 2016.
As can be seen above, there were significant changes in the children’s circumstances since the report.
The report provides a useful and very detailed background and history as to the parties and the children together with the expert’s observation of the parties and the children. At the time of the report the children were in out of home placement under the care of the Department and the report must be considered in that context.
As to the children’s psychological and/or psychiatric issues the single Expert opined:
Bearing in mind the numerous disruptions which the children had experienced over the years, and particularly in the past 18 months, as well as having undergone a variety of assessments by people unknown to them, I decided that it was probably preferable to conduct as little intrusive questioning as possible with the children in order to maintain their cooperation and equanimity prior to seeing them with their mother and father, the latter for the first time in 14 months, and to rely when necessary on the voluminous collateral material available in this matter.
[B], the oldest, appeared to be the most settled when I saw her, and the other materials I have seen also indicate that she is probably the least overtly troubled of the children. I note that she underwent an assessment at [BB] Clinic at the [CC] Hospital (the developmental disorders clinic) as her mother had noticed that she was somewhat slower in her developmental milestones than her three older daughters and also that she was having difficulty with speech and a stutter. [Ms Haura’s] recollection was that [B] had difficulty with the structured assessment but that the overall view was that she was mildly developmentally delayed and she also had (an expressive language disorder) for which she attended speech therapy for about two years with almost complete resolution. When I saw [B] there was not evidence of a stutter despite what must have been a rather stressful situation at my office, and I felt that any expressive problems have now resolved. She also did not seem to show a cognitive developmental delay at a clinical level, and consistent with this, her school reports seem to place her overall achievement levels well within the average range in all key areas. Overall I formed the view that despite her pressure of speech and slight restlessness at the assessment, she is the quietest and most temperamentally stable of the children.
That said, it is also my view that [B] is a highly emotionally vulnerable child. On all accounts, she internalises her feelings and withdraws. This occurred quite evidently after the sexual assault and it has also been evident with the disruption of the past 18 months. I am particularly concerned that she has actually experienced underlying depression for a number of years, but she has not been open to therapy so far. While in my view she is in need of counselling to minimise a significant risk of depression or other problems during her adolescence and adulthood, I do not think she will accept this until there is structure and stability in her life.
When I saw [C], she was unsettled throughout, although her behaviour was more difficult when she saw me and also at the beginning of the times with both of her parents. She was oppositional and defiant, attention seeking, manipulative and furtive. I note that she amused herself at some point in the assessment by collecting all of the filing cabinet keys in the area where the children spent most of their time, and locking them in a filing cabinet drawer with the last remaining key, which she then took with her away from the consultation and which had to be retrieved later in the day. I did not observe any sexually explicit conduct during the assessment, however there is clear evidence of sexually inappropriate expressions and activity by [C] which goes back a number of years, perhaps even prior to May 2013, both in terms of its precocity and in terms of its inappropriateness at any age. Moreover it appears that she sought to involve [B] in some of this activity, such as probably drawing the penis on the girls’ bedroom wall, and when she put a clip of [B] in the shower up on YouTube then apparently told [B] that she had taken it down whereas she had not. There have also been a number of incidents in which [C] has stolen, including from home, from shops and from other premises, including at this assessment. She has also become progressively more aggressive, particularly in the six months prior to coming into the Department’s care, and there were significant threats of self-harm. It seems clear from the records that these were often in the form of outbursts when she did not get her own way, and that she was also capable calming down very quickly, often denying recollection of what had happened. Finally and seemingly paradoxically, she has displayed increasingly clinging behaviour with her mother in the past year which recently seems to alternate with a degree of hostility towards her mother.
A notable issue with [C] is that despite her uncooperative behaviour, she also very often seemed to be in control of herself and she had a somewhat calculating air, as if she was trying to work out what she was going to do next for whatever effect she wished to create. I formed the view that an important element of her psychology is that she needs to be in control. I speculate that there were at least three reasons for this. Firstly, things have happened to her which she has experienced as distressing and traumatic, so she wants to prevent recurrence. Secondly, she has spent a significant amount of time in a household where there was little or no structure ensuring safety so she tries to impose structure on situations in order to make them more predictable and controllable. Thirdly, she is an imaginative child with a very active mind. In my view a significant reason for this is that she has had poor role models and inappropriate behavioural reinforcement in her mother’s home which has led to a form of mis-socialisation. On the other hand, there is also some, but not comprehensive, evidence that she has been more settled and manageable in her father’s care.
In my view [C] manifests very significant mental health problems. She has always been quite an imaginative and intelligent child, and she seems to have been in charge of aspects of her own life from a remarkably young age in her mother’s home. This was evident from as early as she was able to get out of the house herself to be able to do what she wanted in the community, often inducing [B] and later [D] to go along with her. This precocity is on one hand a strength but on the other hand it runs the serious risk of leading her into very bad trouble and putting herself at risk of exploitation and other harms. She also clearly has trouble with emotional dyscontrol. Moreover I am particularly concerned that she is reporting that she is seeing spirits at the moment, and that the culturally sanctioned way of managing this situation (smoking ceremony) appears to have led to her experiencing more spirits rather than less. This raises the question as to whether this is not so much a cultural matter but more an indicator of dissociation and a developing quite severe personality dysfunction. In my view there is a high risk that she will have addiction problems, that self-harm is a great risk, premature pregnancy is a risk and that she may get herself into a great deal of trouble with relationships. It is also possible that some of her sexualized behaviour may indicate a potential to sexually exploit others. Already she shows many features of a Borderline Personality Disorder.
[C] has been interviewed in a variety of settings for a number of reasons. It is noteworthy that on several of the occasions which seem to have been more formal, such as the JIRT interview in May 2013, the interview over taking amitriptyline tablets in November 2014, and several psychologist interviews in 2015, she actively avoided participating in the interview, actually running away and physically resisting returning on several occasions, as she did to some extent when I saw her myself. Yet she settled well into counselling with Ms [DD], and she was quite upset when that ceased before she was ready. This indicates that while she probably would benefit from counselling, she is very distrustful and she will be difficult to engage.
Returning [C] to an appropriate and safe developmental trajectory will be an extremely difficult task as she is on one hand a very challenging but insecure girl, and on the other hand she is also capable of being extremely determined and manipulative in her actions. It is my view that she probably requires a higher level of care than she is receiving at the moment. However in my view it would probably do more harm than good to remove her from the current setting to conduct further assessments. Her current house coordinator was of the view that there may be some openness developing and she is starting to settle in after two months, and she likes her school. A more productive way may be for the Department to contract a comprehensive assessment to be undertaken while she is in her current placement in order to tailor an individualised program for her of sufficient intensity. This should include as much formal psychological assessment as can be undertaken as well as a psychiatric assessment. [C] will undoubtedly resist face-to-face assessment as much as she can, as she has in the past, so the assessment will also need to be as non-intrusive as possible and to rely significantly on secondary sources such as the staff with whom she is living at the moment and a review of previous materials including this report. To simplify the task, I would suggest that the affidavits of the FACS caseworkers and their annexures are probably more than sufficient to cover most of what has gone on in [C’s] life and there do not appear to be any other substantive assessments that have been completed. However there may be some merit to that person speaking with [Ms DD], who seems to have had [C’s] trust over a period nearly two years.
It may also be preferable for [C] to continue to live in the current therapeutic environment unless there is a reason to think that it is either insufficient or that there is a substantially better therapeutic placement for her. If not, then supplementary services should be provided to this particular placement with a view to her possibly being reintegrated with her siblings at a later date. A problem with that however is that if [B] and [D] stay in [R Town], it is unlikely that the level of professional support that [C] is going to require over at least the following three or four years will be able to be found in that area. If that is the case, then it may be necessary to prolong the separation of the children, or this may be an argument for a Sydney placement of all three children, including possibly with their father.
In the meantime, in my view it would be important for the Department to continue with a pattern of reuniting the children at regular intervals, although probably not at weekly intervals as is occurring at the moment but perhaps something which is less disruptive under the circumstances, such as fortnightly or monthly visits of somewhat longer duration, and perhaps at a later date even the opportunity to [C] to stay overnight with her siblings when her emotional state and behaviour are judged to be sufficiently improved for this to be productive and not a disruptive experience for she and her siblings as well as the family where [D] and [B] are staying.
There is good evidence that [D’s] behaviour deteriorates in the direction of acting out when he is troubled or stressed. He seems to act out his feelings in quite obvious ways with non-compliance, aggression and bad language. He also seems to be the most distractible and impulsive of the three children. On the other hand, school has usually found him a delightful, enthusiastic and quite bright child. I felt that his problems are more of an adjustment disorder with disruptive and anxious behaviour rather than a persistent condition such as ADHD. While counselling may assist him at some point, the most urgent priority is that he lives in a stable, settled and consistently caring but firm parenting environment.
It is also my view that all three children’s mental health has probably suffered further since they have been in the Department’s care.
Otherwise, in the context of the circumstances in place at the time of interviews, the Single Expert said:
All three children have undergone a great deal of disruption throughout their lives, but particularly since their mother’s accident in July 2011 and especially over 2015, which accelerated when the Family Court directed that the children’s living arrangements be under the control of FACS on an interim basis. In addition, there is abundant evidence that they have been exposed to poor parenting, most evidently at the hands of their mother who has had the majority of their care by a small margin, but possibly also at the hands of their father, although there seems to be less confirmation of problems in his case despite there having been many opportunities for conclusions in this regard to have been considered by FACS.
All three children also show evidence of ongoing psychological difficulties. This is most evident in the case of [C] who has a longstanding problem of oppositional defiant behaviour to which has been added significant separation anxiety since at least 2015, and she is at very high risk of developing a personality disorder or major mental illness. Both [B] and [D] also show evidence of difficulties, [D] with a mixture of low-grade disruptive behaviour and anxiety which could easily develop into a form of disruptive disorder, and [B] with more withdrawn behaviour and anxiety which probably reflects an ongoing fluctuating depression. As I have indicated elsewhere, at this stage all three children are vulnerable to ongoing maladjustment into adulthood, especially [C].
Unfortunately stability was not brought into their lives by the transfer to FACS’ care. Indeed it may have made things worse in some respects. They have all had three placements in the eight months since then, and [C] has been separated from her siblings by the last of these placements, in her case into a therapeutic setting. Any subsequent change of circumstances must be carefully considered because the risk that an ill-chosen change will further compound each child’s problems is extremely high.
As I indicate elsewhere, all three children need a stable and appropriate parenting environment which understands their individual emotional needs, as well as access to appropriate therapy. They are also all probably underperforming at school, again particularly [C], so an optimal placement should include an educational environment which has the capacity to provide this as well. I would note parenthetically that it is quite possible that all the schools they have attended have in fact done as well as could have been contemplated under the circumstances.
In my view the potential changes which could occur are few in number. For reasons which I have elaborated elsewhere, it is not my view that the children should be restored to their mother’s care despite their desire for this. Not only have her failings as a parent been extensively documented, but she seems to lack insight into this, so it is very unlikely that she is going to change in the future and provide what the children need.
Another possibility is the children living with their father. In some respects it could be argued that he represents a good prospect. He has not been subject to an intense focus from FACS in the past despite numerous opportunities, and it is possible that the main reason for this is that the contact they have had with him had suggested that he is the more capable of the parents, although far from perfect, and that his parenting, which has been quite extensive over the years that FACS have been involved, has not been in need of support as a priority. I indicate elsewhere some reservations about him as a parent and also that supports would need to be put in place by FACS were the children to be placed with him. However it is my view that provided these conditions were met, the children would probably fit fairly smoothly into his household. Depending on how FACS assess him as a placement, it may also be prudent that the FACS authority for the children’s placement remain in place.
Another question in relation to such a placement would be what time the children should spend with their mother. This is a difficult area. All three children clearly have a strong, although dysfunctional, attachment to their mother and in my view they would certainly be unhappy, if not quite distressed, by not spending regular time with her. However I am concerned that what may be an opportunity for the children at one level may also have a countervailing disruptive influence if the potential areas for trouble are not managed. The main problem I would anticipate is [Ms Haura’s] intense hatred of [Mr Annissa], and what she may say or do during contact visits which would have the effect of undermining his parenting and destabilising the children’s placement in his home. For that reason I would recommend that this time be closely supervised.
The other option is that the children remain fully in the care of the Department, probably in a kinship placement such as at present which would support important cultural considerations. As I indicate elsewhere, it is my view that such a placement should be accompanied by orders providing for the children to spend time with their parents, and I comment on the details of this later. I would emphasise that in my view the Department carries a heavy responsibility to satisfy the Court that the placement will be more satisfactory than their first two, and I trust the Department will fully inform the Court in respect of all the material they hold on the current kinship placement up to the time of the hearing, including from the children’s school as well as from Impact. Included among the important criteria are permanency, parenting competency, kinship if possible, support of culture, and access to appropriate counselling services.
And then said:
I have indicated earlier that one possibility the Court may consider is to place the children with their father, beneath or outside a protective and supportive umbrella from FACS. I have also indicated that while I think it would be important for the children to maintain their relationship with their mother, this should be done under professionally supervised circumstances in order that [Ms Haura] does not sabotage the children’s placement with their father. Another consideration is the frequency of such visits. In my view they should optimally occur at about fortnightly intervals. I note that in the past [Ms Haura] has had a great deal of difficulty controlling all six of her children, including them running away or simply being loose in the community. Of course these orders would only concern the three youngest, but there is the potential for a single supervisor to not be able to manage what might happen if the three children spend time with their mother in the community. Accordingly in my view it would be best if these initial visits occur within a relatively confined environment such as an indoor or contained outdoor area where there is little or no opportunity for the children to escape. If such an arrangement works satisfactorily and the supervisors form the view either that [Ms Haura] is keeping a better eye on the children than she has in the past or that the children themselves are regulating their own conduct better, particularly [C], this could provide an opportunity for more community based contacts which could also probably be of longer duration. In addition, once again after the visits have got into a routine, other of the maternal family members could be included in the visits provided that it does not become unmanageable, which presumably could include the children’s older half sisters and nieces and nephews. [Ms Haura] would also benefit from counselling advice on how to behave during visits in order to not disrupt the children’s placement. Continuing visits should be contingent on her conducting herself appropriately. I would note that the current ongoing visiting schedule may have already sufficiently tested some elements of this program for stages to be modified or skipped.
In the event that the Court leaves the children in the care of the Department, then my views about their time with their mother would be the same as above. In terms of the children spending time with their father under these orders, it is possible that by the time of the Family Court hearing the Department will have enough information about the children’s behaviour with their father and his capacity to supervise them properly during visits to be content with the children spending time with him on an unsupervised basis, and perhaps at a later date with overnight visits to be added, or alternatively the same basic approach may need to be taken as with the mother.
The Single Expert was taken to more recent events and the parties’ respective proposals at trial under cross examination. In his oral evidence, he reflected on the mother’s past history in relation to her older children as follows:
And in the case of the older three children, the supervision – lack of supervision was manifested by extremely precocious and inappropriate behaviour in children who were not even out of primary school, unsupervised in the community, involved in theft and other – delinquency with other kids, involved in – and also involved in things that progressively became more clearly sexual, and exposure to substances and things of that sort all before middle adolescence, as I say, starting from 11 or 12. You know, these are – I see lots of DoCS records, and I would have to say that – that this was as significant – well, as significant a history of indifference and neglect of the children as I’ve seen in a long, long time…
Just going back to [C], then, would you agree or disagree that placing her back into the care of the mother on an every-day basis in, say, the shared parenting responsibilities with the Minister would be counterproductive, in terms of her conduct arising out of that constellation of attitudes that you spoke about earlier in the report?
THE WITNESS: Well, I think it’s going to be extremely difficult to change what I think is a very concerning trajectory in [C’s] life. I would have thought that the probability is that it won’t change. When I say probability, better than fifty-fifty chance that things will go from bad to worse.
As to the prospect of the children, other than the child, B, by reason of her wishes being placed with the father, the expert said:
Yes. And, indeed, it has come up that in the event that the children would live with the father, in fact, it probably would mean that, in fact, [B] – wouldn’t it be a split between – [B] wouldn’t go to live with the father, given her age, and that would mean a split up of the siblings. Do you – would that?
Well, if she was still of that view, then yes, it would. Yes.
Yes. And do you think that that would be good for the?
No, I don’t think so. I mean, as I mentioned in the report, one of – for all the problems, these children are a pretty tight-knit group and there’s a sort of an inter-reliance, I think, between them. As I say, I think that it was a sort of a bit of a default position that the children, mainly C, have grown – you know, they’ve got some capacity to look after each other and support each other, so I think probably [B] being taken out of that group – well, I don’t think that she has leadership, I think that [C] is the leader – no, I think they would experience that as another loss in their lives.
As to the parties’ indigenous background the expert said:
Because one of the things that you’ve mentioned in your report and it’s mentioned in the mother’s affidavit is important to her is her background is – and forgive me for my pronunciation – [O] People background and what I was going to ask you about is the father appeared to be quite dismissive or disparaging of that. Would you agree with that?
Well, that’s the way it read to me. I mean, it didn’t sound like he was dismissive of Aboriginal issues, it was more of an intertribal thing, as far as I could see. Dismissive of that particular people.
The children’s progress after restoration to the mother’s care was the subject of comment:
Now, having the benefit of reading what has happened since the children have returned to the mother, you’ve been able to see from the FACS documents how that appears to be progressing?
Yes.
And some evidence has been given by FACS officers that the mother is cooperating with the Department and getting support?
Yes.
Yes. And that also, you would notice that [C’s] behaviour seems to be markedly improved; would you agree?
And school attendance, I understand, is improving. Yes.
Yes. I think – apart from [B], the school attendances have improved? Yes.
And could I say, if you look at that, that the children and the mother seem to be doing well though with the support of the Department since the placement of the children back with the mother?
Well, look, it’s encouraging.
Yes?
I think I wouldn’t go further than that.
HIS HONOUR: Encouraging and to be built on?
Definitely. And I also would have thought that a great deal of persistence is going to be – or continuity or continuation of surveillance and support would be necessary.
In essence, from the Department? Yes.
When confronted with objective evidence as to complaints as to the father’s conduct and emotional regulation the expert said:
And the children were engaged with Catholic Care for a number of years and would, I want to tell you, disclose to Catholic Care that their father had hit them, pulled their hair, yelled at them and that he made them afraid when he would drink too much. None of that material was available to you when you formed your recommendations, was it?
No.
Right. You then had the opportunity, since you prepared your report, to have a look at the viability assessment report in respect of [Mr Annissa]? Yes.
And one of the things that has been raised with you in cross-examination so far is the question of whether or not his perception of the children’s conduct, as arising from their [O] background, would have any impact on his capacity to parent them. I mean, I think he described in that viability assessment, [O] People as being “feral” and his role would have to be to “deal with the feralness” of his children. That can’t be a proper place to begin the interaction with your own children, can it? “You are somehow feral because of where you come from and I need to deal with that”?
Well, if that was what he believes, then that is a problem, yes.
And then:
But nonetheless, if we accept that [Mr Annissa], in the presence of the supervisor, still felt at liberty, in front of his children … on that occasion, to refer to her as – I believe the expression he used was a “white bitch” or something of that nature and to say to [B], “If that’s going to be your attitude, don’t come back”, then we’re not presently at a position where the court should consider unsupervised time, are we?
No, probably not.
…
HIS HONOUR: Although, Doctor, you would take some heart, I expect, from the two more recent contact visits?
Yes. Yes. Yes. … [Mr Annissa] is a very contained man and you know, people like that can be very organised and provide a lot of structure and rules and all that sort of thing but some of them can also be quite explosive and you know, some of them, the materials that I’ve seen cause me to be concerned that [Mr Annissa] – and it’s a matter for the court but you know, I was left somewhat concerned that he has the capacity to be very calm and purposeful but also, that he can be quite explosive and that incident at the zoo, I thought, was a sort of explosive verbal kind of thing. It was pretty inappropriate.
And then:
Another particular issue which might indicate that supervision is in the interests of the children is if the court were to find that there was evidence that unsupervised, there may be a propensity for [Mr Annissa] to undermine the mother’s parenting of the children; do you agree with that? If his Honour were to find that there was evidence that, absent a supervisor, he may say or do things?
Yes.
…which would undermine the mother?
Yes. That can be another reason. Yes.
And it’s very important, given the embryonic nature of the restoration to the mother, that things don’t occur to destabilise these children again, isn’t it?
Yes.
As to the above concerns the expert responded to the Court as follows:
HIS HONOUR: Can I just ask this? Doctor, if the Department was to retain parental responsibility, even in conjunction with the mother, they would be able to manage the ongoing relationship between the children and the father, having regard to what’s happening in the mother’s household and the children’s lives, their perceptions of their supervision reports and then make an election from an informed point of view as to whether, perhaps, some unsupervised time should be tried. Is that something that you think would be a responsibility that could remain with the Department?
Definitely.
As to the father’s unwillingness to engage with the Department the expert opined:
Okay. Now, it’s a truism, I think, that wherever these children are placed, they will require a lot of support from family and community services?
Yes.
And accordingly, if the evidence were to establish that out of the two parents, only the mother is willing to engage, cooperate and collaborate, then that really is the end of the father’s application for residence, isn’t it?
I suppose you could say that, yes.
There’s no other? If the court is satisfied that he’s not going to cooperate with the Department Yes?
then yes.
The Department’s ongoing engagement with the children brought this response from the expert:
…But that given his Honour has to decide what would be best for them now; that they live with their mother and continue to receive the support of the department appears to be the best solution, doesn’t it?
Yes, but I think it should – I think that it should have a longer timeframe than two years. I just think that – I’ve got a lot of concerns about [Ms Haura]. I mean, I don’t think that she’s – I’ve got a lot of concerns about [Ms Haura]. I think that – I’m not sure what happened in cross-examination, but – but – but these children were profoundly neglected in her care and her earlier set of kids, I think, were neglected severely as well. And these children are only just starting to enter the age group where the DOCS records cover the lives of her first three children. And I’m – and I think if she comes out – I’m very worried that if she comes out from under the shadow of the department that things may slip back into bad habits. She – she doesn’t accept any responsibility for that at all, as far as I can see. And as I say, perhaps in cross-examination there has been a change, but – but – but – but the – particularly [C] is such a disturbed child that I think that – that I think that there does need to be a – a mechanism for really – for very prompt – very prompt action.
And then:
HIS HONOUR: …And having regard to what you’ve just said, I get the perception that your evidence would prefer to see that the question of parental responsibility remained with the department, full stop, and do they effectively, as they do in the state sphere, simply determine the living circumstances of the children and their time with the father, but they be obligated in the exercise of that parental responsibility to consult and collaborate with the mother, particularly in terms of issues of education and health?
No, I agree, your Honour. And, you know, I think that – that [Ms Haura] has the capacity to misuse a shared – a shared parenting responsibility arrangement and manipulate the situation, which will just provide – you know, give unnecessary work to the department and interfere with the department, you know, exercising – doing what’s best for the children and reacting – responding quickly. So you know, I wouldn’t support shared parenting personally,
And as to the issue of the children’s use of social media the expert said:
And would that also cause you concerns in relation to the mother still not recognising the level of supervision that she must apply to these children?
Yes.
And that would also, would it not, cause you some concerns that the department should continue to closely monitor the mother in the day-to-day living circumstances of these children by home visits on a regular basis and by talking to the mother and providing support to the mother?
Yes.
The capacity of both parents to engage in decisions about the children has been curtailed by appropriate Departmental intervention. It is appropriate by reason of the matters discussed above that such intervention continue.
The proposals of the mother and Department as to the children’s physical circumstances would see no change in the current arrangement as at trial.
The father’s proposal would, however, see a significant disruption in the children’s lives including schooling arrangements. As opined by the expert as to the children’s circumstances at the time of interview:
All three children have undergone a great deal of disruption throughout their lives, but particularly since their mother’s accident in July 2011 and especially over 2015, which accelerated when the Family Court directed that the children’s living arrangements be under the control of FACS on an interim basis. In addition, there is abundant evidence that they have been exposed to poor parenting, most evidently at the hands of their mother who has had the majority of their care by a small margin, but possibly also at the hands of their father, although there seems to be less confirmation of problems in his case despite there having been many opportunities for conclusions in this regard to have been considered by FACS.
All three children also show evidence of ongoing psychological difficulties. This is most evident in the case of [C] who has a longstanding problem of oppositional defiant behaviour to which has been added significant separation anxiety since at least 2015, and she is at very high risk of developing a personality disorder or major mental illness. Both [B] and [D] also show evidence of difficulties, [D] with a mixture of low-grade disruptive behaviour and anxiety which could easily develop into a form of disruptive disorder, and [B] with more withdrawn behaviour and anxiety which probably reflects an ongoing fluctuating depression. As I have indicated elsewhere, at this stage all three children are vulnerable to ongoing maladjustment into adulthood, especially [C].
Unfortunately stability was not brought into their lives by the transfer to FACS’ care. Indeed it may have made things worse in some respects. They have all had three placements in the eight months since then, and [C] has been separated from her siblings by the last of these placements, in her case into a therapeutic setting. Any subsequent change of circumstances must be carefully considered because the risk that an ill-chosen change will further compound each child’s problems is extremely high.
As I indicate elsewhere, all three children need a stable and appropriate parenting environment which understands their individual emotional needs, as well as access to appropriate therapy. They are also all probably underperforming at school, again particularly [C], so an optimal placement should include an educational environment which has the capacity to provide this as well. I would note parenthetically that it is quite possible that all the schools they have attended have in fact done as well as could have been contemplated under the circumstances.
It was noted by the expert that “depending on how FACS assess him as a placement, it may also be prudent that the FACS authority for the children’s placement remain in place”. The father was not assessed as a viable placement option by the Department and, indeed, the father has now refused to engage with the Department.
The single expert reports:
All three children have undergone a great deal of disruption throughout their lives, but particularly since their mother’s accident in July 2011 and especially over 2015, which accelerated when the Family Court directed that the children’s living arrangements be under the control of FACS on an interim basis. In addition, there is abundant evidence that they have been exposed to poor parenting, most evidently at the hands of their mother who has had the majority of their care by a small margin, but possibly also at the hands of their father, although there seems to be less confirmation of problems in his case despite there having been many opportunities for conclusions in this regard to have been considered by FACS.
All three children also show evidence of ongoing psychological difficulties. This is most evident in the case of [C] who has a longstanding problem of oppositional defiant behaviour to which has been added significant separation anxiety since at least 2015, and she is at very high risk of developing a personality disorder or major mental illness. Both [B] and [D] also show evidence of difficulties, [D] with a mixture of low-grade disruptive behaviour and anxiety which could easily develop into a form of disruptive disorder, and [B] with more withdrawn behaviour and anxiety which probably reflects an ongoing fluctuating depression. As I have indicated elsewhere, at this stage all three children are vulnerable to ongoing maladjustment into adulthood, especially [C].
Unfortunately stability was not brought into their lives by the transfer to FACS’ care. Indeed it may have made things worse in some respects. They have all had three placements in the eight months since then, and [C] has been separated from her siblings by the last of these placements, in her case into a therapeutic setting. Any subsequent change of circumstances must be carefully considered because the risk that an ill-chosen change will further compound each child’s problems is extremely high.
As I indicate elsewhere, all three children need a stable and appropriate parenting environment which understands their individual emotional needs, as well as access to appropriate therapy. They are also all probably underperforming at school, again particularly [C], so an optimal placement should include an educational environment which has the capacity to provide this as well. I would note parenthetically that it is quite possible that all the schools they have attended have in fact done as well as could have been contemplated under the circumstances.
The existing circumstances are reflective of the one option that is in reality viable. Any change to such arrangements would be significantly disruptive to the children’s present most tentative placement with the mother.
Parental capacity is at best problematic. The expert opines that at the time of interview:
I note that there have been many home visits to [Ms Haura’s] residence over the years, including when her three oldest children were young. It would appear that she generally is a good housekeeper and that she keeps the common areas of the home in good shape although there are also indications that she is less able to control the way her children look after their bedrooms, and I note that they have been observed to be not only messier but there have also been sexually inappropriate drawings on [B] and [C’s] bedroom wall which were not immediately dealt with.
Despite the vast quantity of material comprising home visits and other corroborative material, there does not seem to be corroboration that [Ms Haura] is a physically abusive mother. It is possible that she has smacked the children on occasions but there does not seem to be evidence that this would be regarded as excessive, although if it did occur it was probably generally inappropriately impulsive. Indeed there are a number of records in recent years of her expressing her frustration at [C’s] behaviour in particular and it seems that her response to this has not been one of lashing out but rather one of wanting to withdraw from parenting and giving up.
There is also a very substantial body of material that indicates that although [Ms Haura] may be a good homemaker and possibly a conscientious and hardworking employee, she has a profound incapacity to be appropriately vigilant around the children and to provide comprehensive supervision. Not only her current three children at a very young age, but also her older three children at a somewhat older age, have all been found roaming in the community having managed to get away from home. In a number of cases their mother was not even aware that the children were absent. In the case of her older girls, mostly they were engaged in minor delinquency in the [EE Town] community, often very late at night and even overnight occasionally, and there is reason to believe that these girls were also engaged in precocious sexual activity. In the case of the children who are the subject of these proceedings, they have been loose in the community from an alarmingly early age, probably with [C] providing leadership despite being the middle child. While many harms could have arisen from these often quite distant forays, apart from the sexual assaults on [C] and [B], it is probably remarkable that more harms have not befallen the children. Indeed it is quite possible that one reason for this is that one of [C’s] strengths is an independent spirit which is associated with a strong capacity for self-preservation and a degree of protectiveness of her siblings. The history of the sexual assaults is also of concern in that the prior grooming which took place also probably indicates poor judgment and supervision by [Ms Haura].
When confronted with these facts, [Ms Haura] only concedes that her capacity to supervise the children has been impaired since her injury in July 2011 and heavy medication thereafter. She fails to acknowledge that numerous of these concerning incidents occurred prior to this date with the subject children, and indeed with her three older children 15-20 years earlier. When pressed, she is inclined to attribute the notifications to the Department as being vexatious by [Mr Annissa], however it is clear that this is not just an insufficient explanation, but wholly inadequate as the majority of these incidents were reported by otherwise disinterested members of the community and the police. Moreover, I am concerned that the problems that the children have, particularly [C], can be attributed to neglect in a much broader sense – that is, not just a lack of supervision but an ineptness with the fundamentals of timely and empathic care and control of the children which are central to parenting. Well intentioned though she may be, in my view she was probably ineffective with her first three children and she has probably been more so with her second three as she had less support from a partner.
In my view all of the children have elements of an anxious or disorganised attachment to their mother, but particularly [C]. Although [Ms Haura] presents herself as a very strong advocate for the children, there seems to be abundant evidence that her capacity to be consistently attuned to the children’s needs fluctuates a great deal, and that the same things happened with her three older daughters. In the absence of clear evidence of an addiction disorder, I felt there was more positive evidence of borderline personality traits or even a borderline personality disorder. I also note that her parenting has also been closely professionally supported and supervised for quite extensive periods in the past to no obvious effect, at least in terms of being able to manage the children, but despite this the parenting environment she provided probably continued to deteriorate. For this reason I could not predict that there is any prospect of [Ms Haura’s] vigilance improving with any form of therapy, nor that other less evident but still very serious parenting deficits can be repaired soon enough for restoration.
It appears from the materials I have seen and from my interviews that [Mr Annissa] has been a major influence in the children’s lives up until the ADVO came into force in May 2015. Although there was a short and somewhat unsatisfactorily explained period when he withdrew from seeing the children for about three months in early 2013 (I note the incompatibility between his letter to the school and his account of a shoulder injury), he lived with the children for much of the time up until the separation despite the parents having separate homes but often being united in one home, and since then the children were either spending five days a fortnight with him during school terms or on a week-about arrangement up until May 2015.
[Mr Annissa] also gave what I thought was a more nuanced account of each of the children, particularly the distinctive features of their personalities and their interests. He also gave what seemed to be a fairly comprehensive account of running a fair but firm regime in his home, appropriate boundaries and consequences for misbehaviour, and home cooking for the children. He seemed to be quite child centered although probably more of a disciplinarian and perhaps rather rigid and inflexible. He is clearly not a spontaneously warm man, but in my view he does love the children and they him, perhaps [C] the most strongly. However I would note that the material available to me does not suggest that the extent of his diffidence fell outside acceptable limits and certainly compared with the mother, I felt that his approach to parenting on the face of it seemed to be far more appropriate. It seems surprising that the Department does not seem to have made any significant attempt to evaluate him as a carer for the children, even prior to May 2015 when the Department was pouring very substantial resources into supporting the children in their mother’s home despite no evidence that this was being particularly effective in terms of continuing reports of risk. Moreover, although the names of notifiers have generally been redacted, it is quite possible that the reports of risk he made were often well founded.
Bearing in mind the apparent lack of appraisal of [Mr Annissa] as a placement option, in my view FACS should embark on this as a matter of urgency prior to the Family Court hearing, including a comprehensive review of their files as well as the usual elements of their formal parenting assessment.
Should the Court place the children with their father, in my view he would be greatly assisted by comprehensive support from FACS, perhaps even in the form of the children remaining in the Department’s care but residing with him.
It is again noted that the father has disengaged with the Department and has not been assessed as a viable option for placement.
Both parents identify with their indigenous heritage and background, perhaps the mother more so than the father. The father demonstrates some dislike for the mother’s tribal matriarchal society.
The mother, whist the children have been with her, has shown the capacity, particularly in her choice of schools, to assist the children in engaging in their aboriginal culture and she will continue to do so. The father will, given the opportunity, also do so to the extent that his time with the children permits.
Parental attitudes to the children were commented on by the expert as follows:
The Department’s and police records in relation to the subject children and to [Ms Haura’s] three older children raise significant concerns about [Ms Haura’s] attitude to parenting. Despite [her] employment …, she seems to have had a lot of difficulties managing both families of children, particularly in the area of supervision. I would note that lack of supervision is usually the tip of an iceberg in the sense that it is a parenting deficit which is readily apparent because the children are in the public eye when they are found unsupervised in the community. What goes on behind closed doors is often less apparent, but generally parents who lack the capacity to properly supervise their children to the extent that they are loose in the community, also are deficient to varying degrees in other important areas of parenting, particularly in terms of having a consistently attuned relationship with their children. The material I have seen suggests that this is the case in relation to [Ms Haura].
The type of neglectful behaviour which has characterised the mother’s parenting is commonly seen in addiction disorders, generally either alcohol addiction or drug addiction of some form. I indicate elsewhere that there does not seem to be clear confirmatory evidence of either in [Ms Haura’s] case. I would have thought that if present, it would have been readily evident by now bearing in mind the number of contacts which the Department have had with [Ms Haura] and the number of home visits that have been conducted. I also note there is another form of addiction alleged in this case which can also lead to neglect, which is addiction to gambling. This can be an all consuming obsession to which everything including children are secondary, and I am concerned that this may be an undiscovered issue in this matter, although again I would have expected that some suggestive evidence would have been found before now. Another reason for which I think there is better support is that [Ms Haura] has significant borderline traits to her personality which has made her very inconsistently attuned to the children, and at times quite self-absorbed and disinterested in them from infancy, while at other times being very demanding that their needs are met by others. She has also probably been quite intense, over-involved, indiscreet and inappropriate at times, such as exercising telephone contact with [C] while she was with the Minister for Community Services.
[Mr Annissa] is more difficult to gauge in this regard. He seems to have been very strongly committed to the children, to the point that he has probably threatened [Ms Haura] with taking the children away from her on a permanent basis on a number of occasions, particularly when they were young. He is not a demonstrative parent – indeed he is rather understated in most matters including interaction with the children - but I formed the view that he has a strong commitment to them and to their material wellbeing and education. There is some confirmation of this but it is not comprehensive.
Again both parents’ shortcomings are clear. The history does not provide any optimism absent Departmental supervision and engagement.
There is ample evidence of “family violence” in the broad sense. The expert opines:
A review of the police and FACS materials indicates that [Ms Haura] made a series of complaints about aggressive and very threatening behaviour by [Mr Annissa] from prior to the pregnancy with [B] until shortly after the separation. When the police attended these incidents, while [Ms Haura] reported verbal abuse as well as threats, including that he would shoot her and also that he would keep the children if they separated, she did not specifically allege physical violence. Indeed there is one incident where she was taken to hospital with a cut to her head which they both conceded was an accidental occurrence during a verbal argument and that [Mr Annissa] had himself offered to call the ambulance prior to the police attending. On the basis of this, I formed the view that their relationship was very volatile and that it was likely that [Mr Annissa] had made threats of killing [Ms Haura] and retaining the children, but that he did not put these intentions into action. Indeed I also formed the view from the contemporaneous documents that their relationship continued to have this quality up until May 2015, although there were probably fewer incidents, and that the children were exposed to this. I would not exclude that [C’s] statement which formed the basis of the ADVO had at least a kernel of truth to it.
Each parent has alleged that the other is a harsh disciplinarian of the children, and as I have indicated it is probably the case that [Mr Annissa] is capable of becoming very threatening and aggressive, and [Ms Haura] is an extremely volatile person. However I would not include in this what appears to be his very firm but probably acceptably fair parenting style. This and the manifest animosity of the parents towards each other has undoubtedly had a marked effect on the children and undermined any security they might have in their respective parent’s homes.
The detailed evidence before the Court is clearly supportive of the single expert’s conclusions as to the relationship based conduct of both parties.
There is no current family violence order.
As to the mental state of the parents the expert says:
This issue may be seen in narrow terms of diagnosable mental illness or personality disorder, the treatment and prognosis of any condition, and whether the presence of the condition has an impact on parenting capacity. A second and broader issue which is also relevant to parenting concerns certain personality attributes which do not constitute a diagnosable disorder. The most important dimensions to this appear to be aggressiveness, impulsiveness, immaturity and self-centredness. People with such aspects to their character are more likely than other parents to put their interests above those of the children, either thoughtlessly or deliberately.
The Department and [Mr Annissa] have been concerned that [Ms Haura] may have been abusing prescription pain medications. [Ms Haura’s] account is that she stopped these in mid 2014. The documents obtained under subpoena from Medicare appear to indicate that in fact she was still being prescribed some Panadeine Forte as recently as mid 2015, although I would note that if the prescriptions were her only source of this, she was probably only taking one tablet every few days, and her account is that by this time it was for dental pain. I also note that she had only been given one prescription of Tramadol and three prescriptions of Oxycodone in the period 2011-2012, and if she was not obtaining these from anywhere else, then again it is likely that she was only taking one tablet every few days. If this is an accurate record of the amount of these medications that she was taking, it does not appear to me that they provide an addiction explanation for the level of apathy and inertia that she was experiencing. It is likely that the cause was something else, possibly the depression which [Dr FF] observed in early 2012, or possibly related to gambling. This history, as well as the other materials I have seen, also do not seem to provide a basis for regarding alcohol or drug abuse as being a significant problem.
[Mr Annissa] also alleges that [Ms Haura] has had a significant gambling problem which has caused her to be frequently unavailable to the children, particularly after school and at other times when they should be in her direct care. He also alleges that she disposed of large sums awarded to her in two compensation payments by these means. He alleges that this has also caused financial hardship for the children. [Ms Haura] denies that she has had a significant gambling issue or that she funnelled her compensation payments into this. I note however that the police Events include a number of instances over an extended period when she has pawned items which she has either stolen from outside the home or taken from the home without the knowledge of the owner. This can be a collateral feature of a gambling addiction, however otherwise there seems to be no clear confirmation of this as a problem.
In my view the psychiatric report which was provided by [Dr FF] in support of her compensation application after her neck injury is probably of limited utility in that it is probably reasonably reliable in terms of her self-report of her parenting and general activity and mood at the time, but it is quite deficient in terms of past history. I also note that the police and FACS records would indicate that many of the parenting and supervision problems which [Dr FF] attributes to the accident in fact were present to a concerning degree well before the accident occurred and that the idealised picture he presents of her pre-morbid functioning is undoubtedly incorrect, as was the similar recounting provided by [Ms G], whose four children were subsequently removed from her care. I would note however that I think it is likely that [Dr FF] is correct that she was quite depressed then and also that misuse of pain medications was not a major contributing factor. The Medicare Australia records certainly seem to bear this out unless she was procuring these drugs from some other source.
[Ms Haura] presented as being rather perplexed about what has happened and she sees herself as the innocent party. I note however that the record of attention that she has drawn by the police as well as FACS is on one hand alarming and voluminous, but on the other hand is either denied by her or is blamed on the malicious actions of others, primarily [Mr Annissa]. Indeed her attitude towards the services that have been provided to her is that they have been insufficient and that she and her children have deserved more. This sense of entitlement and lack of responsibility for what has happened to all of her children in my view represents an adverse parenting aspect which is indicative of personality dysfunction, probably of a borderline type. Mood instability of a depressive type, addictive behaviour (she is at least a recovered alcoholic) and intense self-absorption are also features present in her case. Moreover, research shows that this personality structure is associated with poor parenting of the type the children have experienced, and it only yields to counselling, albeit slowly, if the individual takes responsibility for their actions, which [Ms Haura] does not.
[Mr Annissa] presented as a self-sufficient, taciturn and emotionally reserved person. I note the mother’s allegations of threats of violence as well as the associated Police Events. I formed the view that he is capable of outbursts such as this, and I also note what appeared to be an incident of vindictive keying of another person’s car. I think he is a person who internalises his feelings until they can explode. On the other hand I note that by and large his record of violent behaviour is confined to his teenage years and I think it is likely that he has largely outgrown that behaviour. He also appears to be a quite determined person who doggedly pursues his own agenda with only limited concern for others. I note that he basically did not hold a driver’s licence for about 15 years yet he continued to drive and indeed he was employed in driving positions. Although he usually readily conceded when apprehended that he was unlicensed, this clearly did not dissuade him from continuing to do so. Apart from the PCA offences there does not seem to be evidence that his driving in itself represents a risk to the children.
I found it difficult to appraise the mother’s allegation of his heavy marijuana use, however I note that the police have had suspicions on one occasion that he may have been procuring drugs but they were unable to lay any charges. The available test results do not appear to be compatible with regular use over the approximately 13-month timeframe of the testing but in my view it is likely that he did use marijuana at least once over that period. The material available to me suggested that he has probably used marijuana more than he is prepared to admit, but there does not appear to be persuasive evidence that this has caused a functional impairment in his capacity to maintain employment or look after the children. If he does use marijuana heavily, probably the major risk to the children in the future would be if the children copied him. I see this as the greatest risk in C’s case, but it probably also applies to the other two. Overall I do not think there is sufficient evidence to support a diagnosis of mental illness or personality disorder.
Each of the above considerations is indicative of the Department remaining significantly involved with the mother and the children.
Parental Responsibility
The above discussion is clearly indicative of significant parental dysfunction. It is clearly in the best interest of these children that the Department have a significant and ongoing involvement in their lives and indeed hold responsibility for them.
The ICL seeks an order that the Department hold long term parental responsibility. The mother and the Department seek that it moves automatically from the Department to the mother after two years save for cultural and religious issues that could vest in the mother immediately. The circumstances of the children and each of the parents at that time would be completely unknown and by reason of the matters discussed above in all probability most uncertain. There is no immediately apparent long term pathway for the children just a recent return placement of the children with the mother and a lack of engagement by the father.
It is not in the children’s interest that the presumption as to equal shared parental responsibility apply. It will not. Parental responsibility will be with the Department. The Department can facilitate the mother (and indeed the father) engaging the children in religious and cultural events.
Otherwise, in a circumstance where the Department will hold parental responsibility and the discussion above provides significant and concerning reservations as to both parents, the live with and spend time with arrangements for the children with both parents should be a matter in the discretion of the Department.
Orders will be made accordingly.
I certify that the preceding one hundred and fifty-six (156 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 25 August 2017.
Associate:
Date: 24 August 2017
Key Legal Topics
Areas of Law
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Family Law
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Administrative Law
Legal Concepts
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Judicial Review
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Jurisdiction
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Remedies
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Procedural Fairness
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1
2