Aston and Frost and Anor

[2010] FamCA 277

FAMILY COURT OF AUSTRALIA

ASTON & FROST AND ANOR [2010] FamCA 277

FAMILY LAW - CHILDREN - with whom a child spends time - at the commencement of the hearing consent orders were made for the Minister of Community Services to have sole parental responsibility - children live in foster care - entrenched family violence perpetrated by the father on the mother - neglect of children - physical abuse of children by the mother - neither parent is capable of adequately caring for the children on a full time basis - orders made for the children to spend supervised time with each parent separately once a month for four hours

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 61DA, 61DB, 64A, 65AA, 65DAA, Pt VII,

Goode and Goode (2006) FLC 93-286

APPLICANT: Ms Aston

RESPONDENT: Mr Frost

INTERVENER: Director General, Department of Human Services

INDEPENDENT CHILDREN’S LAWYER: Ms O’Rourke

FILE NUMBER: (P)NCC 1864 of 2007

DATE DELIVERED: 16 April 2010

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: The Hon. Justice Ryan

HEARING DATES: 18 December 2008, 23& 30 July, 24 August, 19 October 2009 and 22 March 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hartley

SOLICITOR FOR THE APPLICANT: Hannaway Lawyers

SOLICITOR FOR THE RESPONDENT: Flintoff Lawyers

COUNSEL FOR THE INTERVENER: Mr Moore

SOLICITOR FOR THE INTERVENER: Crown Solicitor’s Office

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms O’Rourke

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. Excluding orders made in these proceedings on 22 March 2010, all prior orders made in relation to the children G born on … December 2001, J born on … December 2003 and M born on … August 2005 are discharged.

2. That the above named children shall spend time with the mother as follows:

   (a)Commencing forthwith and for nine weeks, on one occasion every three weeks for a period of two hours supervised by a person or agency nominated by the Director General of the Department of Human Services or her delegate.

   (b)Thereafter unless otherwise agreed between the mother and the Director General of the Department of Human Services, once every month for a period of four hours supervised by a person nominated by the Director General of the Department of Human Services.

   (c)At such other times and upon such other conditions as the mother and the Director General of the Department of Human Services agree.

3. That the above named children shall spend time with the father as follows:

   (a)Commencing forthwith and for nine weeks, on one occasion every three weeks for a period of two hours supervised by a person or agency nominated by the Director General of the Department of Human Services or her delegate.

   (b)Thereafter unless otherwise agreed between the father and the Director General of the Department of Human Services, once every month for a period of four hours supervised by a person nominated by the Director General of the Department of Human Services.

   (c)At such other times and upon such other conditions as the father and the Director General of the Department of Human Services agree.

4. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

5. All outstanding applications are dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Aston & Frost and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC 1864 of 2007

MS ASTON

Applicant

And

MR FROST

Respondent

And

DIRECTOR GENERAL OF THE DEPARTMENT OF HUMAN SERVICES

Intervener

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. These proceedings concern three children, G who is eight, J who is six and M who is four and a half (“the children”).  In their parents’ care the children were exposed to entrenched domestic violence by their father of their mother and serious neglect by both parents of them.  Their mother was also physically abusive.  The state child welfare authority became involved with this family in mid 2006.  When a raft of supports and interventions proffered by them failed to result in a significant improvement in the children’s circumstances, reliant upon state legislation in August 2009 the Department of Human Services removed the children and placed them in foster care.  A few days later this Court made interim orders which allocated parental responsibility for the children to the Minister for Community Services. 

2. When the hearing commenced it was the parents’ joint position that orders should be made in favour of the father for the children to live with him.  During opening addresses the parties and Independent Children’s Lawyer sought time to discuss the situation.  This resulted in an agreement between all parties and the Independent Children’s Lawyer for final parental responsibility orders in relation to all children in favour of the Minister of Community Services.

3. In addition to this key agreement there was agreement in relation to a raft of other matters.  There remained one area of disagreement, namely the frequency with which the children would spend time with their parents.  For the Director General it was submitted the Court should make orders for the children to spend time with their mother and father, separately, once every month for four hours.  The parents and Independent Children’s Lawyer agreed that the children would spend four hours each month with each parent but submitted this should be configured so that there were fortnightly visits of two hours duration with each parent separately.  There was no dispute that these visits would be supervised, at least initially. 

4. In accordance with departmental practise, in about four months, when children have been in out of home care in their current placement for about six months, a review will be undertaken which, amongst other matters, will consider ongoing arrangements for the children to spend time with their parents.  As far as this review is concerned, it was agreed that irrespective of the outcome of the review the Minister of Community Services would not unilaterally, that is without a Court exercising Family Law Act jurisdiction’s imprimatur, or the consent of the relevant parent, reduce the amount of time the parents spend with the children. So as to make it clear, the Minister may come to an agreement with the parents, or either of them, to enhance the arrangements for the children to spend time with the mother or father through the review process, but would only further restrict time if the adversely affected parent agreed or pursuant to an order made reliant upon the Act.

5. In order to appreciate the nuances of the competing proposals it will be necessary to briefly discuss the parents’ and children’s circumstances, particularly how it is that there is no dispute the parents are unable to adequately care for the children and why long term foster care arrangements are accepted as being in the children’s best interests. 

6. I indicated to the parties at the end of the hearing, that in the light of their concession that the Minister would have parental responsibility for the children and, without the evidence thus being tested, it would be unnecessary and probably unhelpful, for the Court to undertake the type of in depth analysis of the facts which would have been warranted if the critical issue of the children’s primary living arrangements remained contentious.  It will be necessary to summarise key aspects of the evidence as doing so demonstrates that it is likely the children will remain together in foster care for a very long time.

Orders by consent

1. Set out below are the orders and notations made by consent at the commencement of the hearing:

   BY CONSENT IT IS ORDERED:

   1.The Minister for Community Services is allocated sole parental responsibility for [G] born […] December 2001, [J] born […] December 2003 and [M] born […] August 2005 until each child attains 18 years of age.

   2.That the children live with such persons as nominated by the Director General of the Department of Human Services (“Director General”) or her Delegate.

   3.That on or before 22 July 2010 the Director General will conduct a review of the time that the mother and the father spend with the children, such review will be directed to:

   (a)the frequency of the time;

   (b)the duration of the time;

   (c)the need for the time to be supervised.

   The review will involve:

   (i)Consultation between the Director General and Officers of Uniting Care Burnside

   (ii)Consultation between the parents and offices of Uniting Care Burnside.

   (iii)Consideration of reports of the parents’ time spent with the children.

   (iv)Consultation with a Clinical Psychologist.

   (v)The preparation by Uniting Care Burnside of a case plan, such case plan will be in writing and a copy shall be provided to the Mother, Father and Independent Children’s Lawyer.

   4.That the Director General is to notify the Mother and the Father as soon as possible of:

   (a)one of the children being admitted to hospital or being diagnosed with a serious illness;

   (b)a change in the children’s foster care placement and the reason for that change or substantiated abuse in care allegations;

   (c)any proposal that any one of the children change their current school or pre-school;

   (d)the results of [J’s] paediatric cardiology review.

   5.That the Director General provide the Mother and the Father with:

   (a)copies of the children’s school/pre-school reports;

   (b)NAPLAN test results and awards/merit certificates;

   (c)any cards, letters and/or pictures the children make for the Mother and/or the Father.

   6.That the Mother and the Father are permitted to write to the children and this correspondence will be forwarded to the children provided this correspondence is sent or given to Uniting Care Burnside and its content is deemed appropriate.

   7.The parents are at liberty to attend school functions and events and are restrained from approaching one another at such events provided that the Mother and/or the Father are not to spend unsupervised time with the children.

   THE COURT NOTES:

   8.The parties are not prevented by application of Rice and Asplund from making further application to the Court provided such application arises out of matters rained in the review of the “spends time” arrangements.

Brief factual background

1. I am grateful to the Independent Children’s Lawyer and counsel for the Director General for their detailed case outline documents and chronologies which drew together the salient facts from a large volume of material. 

2. In 1962 Mr Frost (“the father”) was born.

3. In 1971 Ms Aston (“the mother”) was born.

4. On 14 August 1992 the parents commenced living together. 

5. G was born in December 2001.

6. J was born in December 2003.

7. M was born in August 2005.

8. On 14 January 2006 the parents separated for the first time.  Separation occurred in the context of domestic violence by the father to the mother after which Police applied for an Apprehended Violence Order on the mother’s behalf and the father was charged with assault.

9. On 24 March 2006 the parents agreed upon interim consent orders in a Local Court.  Summarised these orders provided that G and J, who were then five and three respectively, would live with the father and M who was about 19 months, would live with the mother.

10. In April 2006 the parents reconciled.

11. On 22 July 2006 the parents discontinued the Local Court parenting proceedings.

12. In response to a notification that the mother had been observed kicking J, Department of Community Services (DoCS) workers visited the parents’ home in late September 2006.  During their interview the mother admitted hitting J and G.  The DoCS worker observed G, who was not yet five, swearing at his mother.  DoCS made a suite of arrangements, including linking the family in with the local Family Support, for the parents to attend a local psychologist and day care arrangements for the children.  Approximately four weeks later DoCS again visited the parents’ home on which visit they tried to encourage the parents to take up the referrals recommended and ensure the children attended day care.  The mother was reluctant for the children to attend day care and the father denied he required therapeutic intervention.  It was his opinion that any therapeutic assistance should be directed to the mother.

13. The father alleged that in February 2007 the mother assaulted J by kicking him in the stomach.

14. In March 2007 the father alleged the mother assaulted J by pulling and/or scratching his face.

15. On 15 March 2007 the parties separated.  The father remained living in the family home with the children and the mother left.

16. Following a home visit in late March 2007 DoCS assessed the children as being at high risk of psychological harm from ongoing verbal abuse and, if the parents were together, a high risk of physical abuse and exposure to domestic violence.

17. In June 2007 the mother returned to the family home.  Although the parents were cohabitating they did not resume their personal relationship. 

18. On 15 June 2007 the mother filed an application for parenting orders in the Federal Magistrate’s Court.  Essentially she proposed that she have parental responsibility for the children and that they live with her.  It was her application that the children spend substantial time with the father.

19. The father filed a response to the mother’s application on 20 June 2007.  In short, he proposed that the children reside with him and he have sole parental responsibility.  It was his application that the children spend time with their mother supervised for three hours each Saturday.

20. The proceedings were transferred to this Court on 25 June 2007.  At the same time the Federal Magistrates Court made interim orders for the children to live with the father.  The children were ordered to spend time with their mother, in relation to J and M, each Tuesday and Saturday between 9.00 am and 5.00 pm and for G each Saturday and Sunday between 9.00 am and 5.00 pm.  The mother was restrained from physically punishing the children.

21. The first day of this Div 12A hearing was conducted on 22 October 2008. 

22. On 18 December 2008 an order was made appointing Ms S a single expert witness.

23. Ms S’s report was released on 23 July 2009.  In essence, Ms S recommended that DoCS become actively involved with the family both legally and clinically.  Ms S identified the complex issues in this case and recommended that the children urgently required a “direct experience of living in a stimulating, non-violent, nurturing and respectful household and an appropriate placement in educational facilities.” She said:  “Without such intervention, the consequences for these boys are very grave and one could predict that the older two boys in particular may well follow in the anti-social, violent and misogynist behaviours/attitudes of the father.”  It was her recommendation that:

    ·J be enrolled in an educational facility and assessed for early intervention.

    ·M should be enrolled in pre-school five days a week.

    ·Placement of the children into foster care recognising “the entrenched and dysfunctional nature of the parent’s personality and the family dynamics, little will be achieved by sending them to parenting courses; counselling; therapy etc.  Neither parent has the capacity to change through such interventions.”

24. On 19 August 2009 the children went into foster care.

25. On 24 August 2009 interim orders were made in this Court in favour of the Minister for Community Services, in particular that the Minister have parental responsibility for the children.

26. On 25 August 2009 the children were moved from a short term foster placement into a proposed long term foster placement.

27. Commencing 26 August 2009 the parents started supervised visits with the children, twice weekly for one hour on each occasion per parent.

28. On 27 August 2009 J and M were re-enrolled in pre-school.  G, who was then aged seven years and eight months was assessed as having a reading age of 5.10 years.  In relation to all three children it had been apparent to Ms S and it is not in dispute that they were significantly delayed, with aspects of their delay a function of neglectful parenting.  That said, J has other developmental delay issues which arose from him being autistic and his parents’ failure to provide him with the opportunity for early intervention by appropriate health professionals.

29. On 2 September 2009 further interim orders were made including, that the parents’ time with the children reduce to individual visits once a week for one hour.  The reduced periods of time commenced on 27 September 2009.

30. On 13 November 2009 J had surgery in Sydney to repair a narrowing of his aorta. 

31. On 15 January 2010 the children were moved to new long term foster parents.  This is where it is hoped and intended the children will remain. 

32. On 27 January 2010 Mr D, who is a psychologist employed by DoCS, assessed the children in their foster placement including, in relation to the frequency and duration of contact with their parents.  This was a follow up assessment he undertook in September 2009.

33. G and J commenced the 2010 school year at L Public School.  This is where G has always attended school and was J’s first year at school.  J is provided with a Teacher’s Aide three days per week.  G’s reading age was assessed as having increased by one year in the space of six months.  There is no doubt that this is as a direct consequence of the nurturing care he has received following his removal from his parents.

34. In February 2010 J commenced occupational therapy.

35. In February 2010 G commenced fortnightly counselling with Child Protection Counselling Services.

36. On 22 March 2010 the parties entered into consent orders as earlier set out.

The mother’s circumstances

1. The mother resides with her uncle and his wife in their home on the north coast of New South Wales.  This is about a 10 minute drive north of Y.  The mother is in receipt of a disability support pension as are her uncle and aunt.  The mother comes from a large family with her mother and some siblings resident in the Y area.  Because the mother does not have a driver’s licence or a motor vehicle she is reliant upon one of her brothers to assist her with transport.  Years ago the mother had work as a process worker. It is unlikely she will have meaningful paid work again.  The mother has not re-partnered.

2. As part of the Court investigative process, the mother undertook a cognitive assessment.  This revealed an overall IQ of 73 which is accepted as being in the mild range of developmental delay.  Ms S said: 

   However, clinically [the mother] presents as much more cognitively disabled than this.  This may be due to the combination of her poor verbal skills and her extreme passivity/dependence.  As well, there may have been some ‘practice’ effects which increased her actual scores on this test.  She told me she did the same test a year ago at Centerlink and was able to predict some items in advance.  On the Schonell Reading Test [the mother] performed at a seven year old level.

3. It is likely that the impact of the mother’s developmental delay has been exacerbated by the way the father treated her.  The father who is a dominating, controlling and intimidating presence in the mother’s life was relentlessly denigratory of her and often physically violent.  When the family was seen by Ms S, the mother slept in a back room in the house while the father and children shared a bed in the main bedroom.  In the father’s discussions with Ms S she observed:  “He does not even pay lip service to any positive features in her.  His denigration of her seems total and to a degree rarely encountered even in domestic violence situations.”  To Ms S the mother was:  “Accepting that she will continue to be assaulted in the future, and also accepting that her sons have a right to mistreat her.  She is virtually without a sense of self worth.”  These are harsh words but sadly consistent with the facts as Ms S understood them and I accept them to be.  The mother has a highly dependent personality which, when combined with her developmental delay, has made her vulnerable to exploitation, manipulation and abuse.

1. There is no doubt the mother loves her sons dearly and it was with a heavy heart she conceded the children should remain in foster care.  In her case outline document, the mother accepted she lacked the capacity to provide for the children’s physical and educational needs and could provide for their emotional needs for only limited periods.  It was submitted on her behalf, and the Court accepts, that the numerous reports of the mother’s supervised contact with the children attached to the affidavit of Ms F demonstrated, that when the children are protected from the father’s undermining and anti-social influence, they are capable of enjoying her company for limited periods.  It is also clearly the case that when the early contact reports are compared with the later contact reports the quality of the mother’s interaction with the children and theirs with her was materially superior.  The reasons for this are numerous.  They include that the children are settling into a healthy home environment, the father’s malevolent influence over the children’s relationship with their mother is diminishing and the mother is adapting to spending time with the children in a supervised setting for limited periods. 

2. The mother does not have criminal antecedents nor a prior history of significant substance abuse.  The mother has hit the children inappropriately and may have called them bad names. 

The father’s circumstances

1. The father lives alone on the north coast.  He comes from a large family most of whom live in Y.  The evidence suggests the father has not had paid work for a considerable period, the most recent being as a fruit picker prior to G’s birth.  Presently, he receives social security benefits and it does not appear he has plans for future paid employment. 

2. When he was about 12 years old the father was placed in a juvenile detention centre for three months and sometime later another juvenile centre in western Sydney.  He left school in either the first or second year of high school and does not have formal qualifications.  He has three convictions for stealing at age 14, and in the same year three break and enter offences and malicious injury.  There are further stealing convictions in 1981, conviction for goods in custody in 1987 and common assault [of the mother] in 2006. 

3. Since about 2006 the father has taken anti-depressant medication.  In addition to the subject children the father has two adult children who reside with their mother overseas. 

4. There is no doubt the father is more capable than the mother and he was primarily responsible for running their home and making decisions about the children.  The mother while jointly responsible for the children’s care and, relevantly, their lack of care, was actually reliant upon the father to make decisions for the family and the children.  To a very great extent that the children did not receive educational and social support, were neglected and deprived of the opportunities which children need to thrive, is the father’s responsibility.  His lack of attention to the children’s needs is not a reflection of a general inability for reasons akin to the mother, but is reflective of a lack of awareness and/or willingness to provide the children with the sort of opportunities they needed.

The general law in parenting applications

1. Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64A).  They arise in proceedings conducted under Pt VII of the Family Law Act 1975 (Cth). Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns eighteen, each of the child’s parents has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B as: “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children.” Essentially the presumption relates to parental decision-making and does not determine where or with whom a child will live. By virtue of s 61DA(2) the presumption does not apply where there exist reasonable grounds to conclude that a parent, or a person who lives with a parent of the child has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DB). Thus if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements. The process for doing so is found in s 60B and s 60CC.

2. Section 60B sets out the objects of Pt VII and the principles which underline those objects.  In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensures that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed.  The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective, points the way to an optimal outcome.  Where there are no countervailing factors, the s 60B principles may be decisive.  Section 60B is set out below.

   1.The objects of this Part are to ensure that the best interests of children are met by:

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

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

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

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

   2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

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

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

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

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

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

   3.For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)to maintain a connection with that culture; and

   (b)      to have the support, opportunity and encouragement   necessary:

   (i)         to explore the full extent of that culture, consistent                   with the child’s age and developmental level and the   child’s views; and

   (ii)      to develop a positive appreciation of that culture.

3. In deciding the arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s 60CC.  Section 60CC(1) contains two primary considerations.  The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)).  The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)).  Because these two factors are referred to as “primary considerations” this means they must be considered in every parenting case and are to be considered as having particular importance. 

4. Having considered the primary considerations, the Court must take into account the thirteen additional considerations set out in s 60CC(3).   Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case.  Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities:      s 60CC(4).  In deciding the appropriate parenting order, the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence: s 60CG.  Ultimately the weight attached to each factor is a matter for the Court’s discretion.

5. The sequence of determining parenting orders is important.  If the Court is satisfied that a child’s parents are to have equal shared parental responsibility, it must consider the practicability (s 65DAA(5)) of the child spending equal or substantial and significant time with its parents (s 65DAA).  In the context of s 65DAA 'consider' means to consider positively the making of an order.  Goode and Goode (2006) FLC 93-286. The notion of equal time requires no explanation and is decided first. If equal time is not ordered, substantial and significant time must be considered. This concept is defined in s 65DAA(3) and occurs where:

   (1)The time the child spends with the parent includes both:

   (i)         days that fall on weekends and holidays;  and

   (ii)        days that do not fall on weekends or holidays; and

   (2)The time the child spends with the parent allows the parent to be involved in:

   (i)         the child’s daily routine; and

   (ii)        occasions and events that are of particular significance to the                  child; and

   (3)The time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

6. The child’s best interests remain the overriding consideration.

7. Where neither concept delivers an outcome which promotes the child’s best interests the court then determines the parenting applications as outlined above. Similarly, where the Court has decided against ordering that the parents have equal shared parental responsibility s 65DAA considerations do not apply. 

Applying the law to the facts

1. Attached to the affidavit sworn by Ms F are a plethora of reports about the children as well as supervised contact reports on the family.  Those reports which emanate from educational facilities and therapists who have worked with the children make depressing reading.  This is because the consequences to the children of the manner in which they were parented have been severe. 

   
   

   Mr D is a Senior Specialist Psychologist employed by the Department of Human Services.  He completed two assessments on the children, the first in early October 2009 and the second in January 2010.  Mr D has seen the children on contact with their parents, at school and has interviewed the parents and foster carers.  In his first report, Mr D summarised the children thus: 

   The children’s behaviour has been seen as chaotic, disorganised and deprived in most respects.  All three have appeared to have some delay in their development being at least a year behind their peers in terms of interpersonal, academic, and social skills.  However, they appear to have rebounded to some extent during their time in care with their school reports noting a general improvement in their demeanour and skills development.

   Mr D’s observations are consistent with those made by educational authorities and Ms S.  He concluded, as do the other authors and agencies: 

   That [J] is the most in need-child, the one they [school teachers] worry about mostly, the one with more behavioural problems, namely, in terms of disruptive behaviour, aggression, immaturity/isolation, and social withdrawal. 

   So as to put these observations in context it is illustrative that at school G is considered by his teacher to be a child without emotion.  He is considered by school staff as being a high risk candidate for teenage depression and suicidal ideation. 

2. In his first report Mr D said:  “I consider their [the children’s] stability of care to be the most crucial ingredient which in the longer term will help support and maintain the children through this difficult adjustment period and through to their middle-childhood periods, and hopefully beyond.” The difficult adjustment period to which Mr D made reference was the children’s adjustment to long term out of home care.  It was his opinion that the children’s then foster carer had the necessary skills to not only meet the children’s physical needs, but also to assist them “to cope with the impact of previous adversity” and loss.  He expressed the opinion that the children would be able to adjust to a regular routine of contact with their parents, fortnightly for an hour’s duration each.

3. Although the circumstances are not entirely revealed in the evidence, the foster parent whom Mr D assessed in his first report physically abused at least two of the children.  This resulted in the children’s removal and placement with their current foster family. 

4. The children had been in their current foster placement a short time when Mr D conducted his second assessment. This assessment had as its focus his recommendations for the children’s contact with their parents if the children remained in long term foster care.  To this end, he attended supervised visits between the children and their parents on 27 January 2010.  He observed that the children “tended to lose interest in their mother rather quickly, although she appeared happy and content with the visit.”  During the children’s time with their father an altercation between G and his father developed.  Mr D said:  

   I believe that the children will exhibit behaviours that both parents would find very difficult to deal with. [G] the eldest child repeatedly reprimanded [J] for his behaviour and appeared to take on somewhat of a controlling parent role and was quite punitive toward him.  [G] appears to be the most angry, the most vocal, and physical of the three boys.  [J] is impulsive, reckless and has less capacity for restraint and certainly is unable to think about the consequences of his behaviour before he acts.  This is due, of course, to his intellectual delay and evident hyperactivity.  He has a very limited attention span and continually pushes the limits.  … The youngest boy, [M], was the most self-contained.  For the most during both contacts (i.e. with mother and his father), he tended to play on his own.  [M] and [J] both gave their father a spontaneous cuddle at the end of their contact.  [G] was more restrained.

5. It was Mr D’s recommendation and opinion that the boys:  “Appear to be tolerating the visits with both parents fairly well.”  Thus he recommended a continuation of weekly visits for, I infer, no more than an hour.  However, it is noteworthy that he requested access to the notes from the contact supervisor and proposed to pay another visit to the children’s foster family “to see how the children are dealing with the regular, weekly access visits.”

6. Mr B is the children’s case worker at Uniting Care Burnside.  That is, he is the person in that agency actively involved in overseeing the children’s circumstances.  For example, he has direct involvement with the various therapists, medical practitioners, personally attended the children’s school and is in regular contact with their teachers and has personally attended and remained in regular contact with their foster carers.  That he has a good working relationship with the children is evident from the minutes of his meeting at L Public School on 3 February 2010 with the school principal and G and J’s teacher.  When J saw Mr B he ran to him and hugged his legs.  Mr B is reported as telling J he would see him soon.

7. Mr B’s evidence was to the effect that the children’s foster carers were concerned that the current regime of fortnightly contact for the children with each of their parents is disruptive for the children.  After each visit the foster parents’ observation is that the children are unsettled and largely out of control for the next 24 hours.  The foster parents consider that monthly visits would be less disruptive but that they could cope with the children if the children’s visits with their parents occurred no more frequently than every three weeks.  The submission made by the Director General was to the effect that the Court would give considerable weight to the foster parents’ concerns about their ability to cope with the boy’s difficult behaviour following contact, because if the foster carers are placed in a situation which they identify they have difficulty coping with, the risk that the foster placement may fail logically would be increased.  With this submission I agree. 

8. It must be remembered that these children, whilst they can be well behaved, have seriously challenging behaviours.  It is not a situation where one day in 14 the foster parents are faced with difficult and challenging behaviours by the children. This is the general situation. The point being that the generally difficult situation increases exponentially after each visit to the parents.  This is a weighty consideration.

9. It is the Court’s experience that it is often difficult to find out of home foster care for three children together.  Regrettably, it is necessary to observe that it is the Court’s assessment there is little prospect either parent would be viable long term carers for these children in the future.  In this regard, I place particular weight upon Ms S’s assessment of their parenting capacity.  In doing so I am bolstered by Mr D’s opinion on this matter which is to similar effect.  My point being, that it would be catastrophic for these children if their current placement, which is working well, were to be placed under such stress that it failed.  These are findings to which I attach considerable weight. 

10. It was strongly submitted by the Independent Children’s Lawyer that the parent’s cooperation with the Department of Human Services and Burnside in the implementation of the children’s transition into long term foster care demonstrated capacity and goodwill on their part.  Thus, it followed that arrangements for the children to spend time with their parents could be made with some confidence as to implementation and compliance.  I agree with their subsequent submission that a proper amount of time for the children to spend with their parents is important in relation to the children’s sense of identity.  Reliance was placed by the Independent Children’s Lawyer on the recommendation as to the frequency of contact by Mr D in his second report.  It was further submitted by the Independent Children’s Lawyer:

    That given the unique aspects of the case, where the unacceptable risk is identified as one of longstanding neglect, as against direct immediate unacceptable risk, that consideration be given towards the children maintaining a ‘meaningful relationship’ with their parents, subject to the children not being exposed to physical or psychological abuse and family violence.

11. With respect to the submission, the evidence established that the children’s removal from their parents was necessitated for reasons which included more than the children being neglected.  These children, as I have already found, were exposed to severe domestic violence and were physically abused.  The children do not have healthy relationships with their parents.  While their relationships with their parents are important, such benefits as the children receive from their relationships with their parents are relatively modest when compared to the importance to the children of establishing meaningful relationships with their current foster carers.  On balance, even if the children would like to see their parents more frequently, I propose to order an incremental reduction in the frequency of the children’s contact with their parents with orders ultimately made for monthly visits. 

1. The duration of the visits is somewhat difficult to determine.  Both parents submitted that visits of four hours in a supervised setting were too long.  This is because of the artificial nature of the setting and the difficulties which the parents have maintaining the children’s interest.  So that it is clear, supervision is not limited to indoor premises and has been occurring in places such as parks where, with a little imagination, it should not be difficult to keep the children interested.  For reasons which are self evident, the mother, who is a more passive person, may find visits of four hours duration more than she can reasonably manage.  Nothing in my orders will require the mother to accept visits that are four hours long and it may be that in discussion with Mr B and the departmental case worker, she elects to reduce her visits to her suggested two hours.  The father, of course, may make the same election.  However, as far as he is concerned, I am satisfied that with a little forward planning and effort, he ought to be able to maintain the children’s interest for periods as long as four hours.  The level of supervision has not been so strict that it has intruded into the children’s visits with their parents and to the extent that the parents suggest their time with their children is made more difficult because of supervision, I reject the contention. 

2. Accordingly, for the next nine weeks, the children will spend supervised time with their parents each three weeks for two hours each.  Thereafter, the frequency of the visits will become each fourth week for four hours on each occasion. 

3. As time passes it may become appropriate for the parties to consider the extent to which supervision is required.  I do not consider that the children would be ready for unsupervised time with their parents until 2011 at the earliest.  Both parents would need to demonstrate to the Department’s satisfaction that their ability to cope with the children has dramatically improved.  In the mother’s case, this would include that the risk she might hit or verbally abuse the children had greatly lessened.  In the father’s case, that he would be unlikely to expose the children to awful remarks about their mother or to family violence.  Both parents would have to commit to maintaining their support for the children’s foster placement and if, trusted with unsupervised visits with the children, if it became apparent the relevant parent undermined the children’s foster care arrangements, supervision might need to be reinstated. 

4. At the end of the hearing the Independent Children’s Lawyer applied for an order the effect of which would be to restrain the Minister from removing G or J from L Public School.  This issue arose because the foster parents were finding it difficult to spend between three and four hours each day driving the children to and from school.  The school was particularly concerned about G and how he might react, at this time of great change in his life, to further change.  In relation to both G and J the school commented the children had been accepted into the school community and both boys were well settled.  G’s teacher was the same teacher he had for kindergarten and the first time he completed year 1.  G was in the habit of discussing personal matters with his teacher and she explained that she considered herself to be akin to his “other mother”.  Perhaps because G’s home life while he lived with his parents had been emotionally so poor his school teacher and principal considered that they had become his other family.  They were also concerned about how G would cope with enrolment in a larger school.  L Public School has less than 40 children.  The current school population accepts G and many children are fond of him.  Although not explicitly stated, I infer that they intended to convey that G may find it difficult to make friends in a new school which might make it difficult for him not only at school, but also at home.  I agree.  However, I also appreciate the difficult situation for the children’s foster parents with such extensive travel.

5. There is no doubt that the Department of Human Services is aware of the advantages to G and J being able to remain at L Primary School at least until the end of this year.  It was submitted on their behalf that the Court would not make an order as sought by the Independent Children’s Lawyer and thus descended into “micro management” of the children’s future circumstances.  While I am satisfied that I have the power to make the orders sought by the Independent Children’s Lawyer and do not agree that orders of this type are properly described as “micro management”, on balance, and purely because of the strain which it is clear driving the children to and from school places upon the foster parents, I will not make orders as sought by the Independent Children’s Lawyer. However, I commend the submissions made by the Independent Children’s Lawyer to the Department and trust that whatever can be reasonably done to help the foster parents maintain G and J’s enrolment at L Public School for the remainder of this year will be done. 

6. For these reasons I make the orders identified at the start of this judgment.  I am satisfied that the orders are in the children’s best interests.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan

Associate: 

Date:  16 April 2010