B and D

[2007] FCWA 8

JURISDICTION:

FAMILY COURT OF WESTERN AUSTRALIA

ACT:	FAMILY LAW ACT 1975
LOCATION:	PERTH
CITATION:	B and D [2007] FCWA 8
CORAM:	HOLDEN CJ
HEARD:	6-8 APRIL 2006
DELIVERED:	12 JANUARY 2007
FILE NO/S:	PT 6104 of 1994
BETWEEN:	B

Applicant Wife

AND

D
First Respondent
J
Second Respondent

(Page 2)

Catchwords:

CHILDREN - with whom a child lives - severely disabled child, child in foster care, conflict between mother and carer, whether existing care arrangement should be changed

Legislation:

Family Law Act 1975 s 60CA Family Law Act 1975 s 60CC

Category: Not Reportable

Representation:

Counsel:

Applicant Wife:	Mrs Brownlie
First Respondent:	Self Represented
Second Respondent:	Mrs Parks

Independent Children's Lawyer: Mr Jones

Solicitors:

Applicant Wife:	Shaddicks Lawyers
First Respondent:
Second Respondent:	Edward [Peter] Myers
Independent Children's Lawyer :	Legal Aid WA

Case(s) referred to in judgment(s):

Nil
(Page 3)

1 Before me for determination is the wife’s application filed 21 January 2005 seeking orders for residence and contact, what was then described as for [BD] (“[Ben]”) born on 19 August 1989. The husband filed a Response on 4 October 2005, in which he sought that he continue to have sole parenting responsibilities for [Ben] and that the current arrangements regarding [Ben] stay in place. He also sought that the mothercontinue to have only supervised contact to [Ben].

2 By a Response filed on 13 March 2006, the Second Respondent sought that [Ben] reside with her and that she have sole responsibility for the day-to-day care, welfare and development of the child. She proposed that the applicant wife have reasonable contact with the child subject to the Independent Children’s Lawyer and/or single expert witness’s recommendations and that the First Respondent have reasonable contact with the child at times as agreed between the First and Second Respondent.

3 A summary of the issues provided by the Independent Children’s Lawyer are as follows:

• Residence of the child, [Ben D]

• Contact between [Ben] and his father, [David D]

• Contact between [Ben] and his mother, [Diane B]

• Contact between [Ben] and his brother [Peter D]

Background

4 The husband was born September 1950 and is 56 years of age. The wife who was born in April 1960 is 46 years of age. The parties married September 1988 and separated in October 1991. The decree nisi for the dissolution of the parties’ marriage was granted on 6 January 1995, and the decree became absolute on 7 February 1995.

5 There are two children of the marriage, [Ben] and [Peter D], born on 24 September 1990 (“[Peter] “). After separation, the children resided with their mother. In March 1998 the husband remarried to [Janine]. The husband and [Janine] have had a child of their own named [Rachel]. The husband and [Janine] are now separated.

6 In April 1998 a trial took place before Anderson J in the Family Court of Western Australia to determine with whom the

(Page 4)

children [Ben] and [Peter] would reside. The decision in that matter was handed down on 29 April 1998. It was determined at that time that [Ben] should remain in the wife’s care and [Peter] should reside with the husband.

7 Penny J, in her ex tempore judgment delivered 15 February 2002, provides further background particulars as follows:

“3. … [Ben] is severely handicapped. He has cerebral palsy, which affects all four limbs. He has only 10 percent sight in one eye. He cannot move or eat without assistance. He is severely intellectually handicapped. After the judgment in April 1998, the husband and [Peter] resided with [Janine] and

her children. This did not work, largely because of [Peter]’s behaviour in that environment, and [Janine]’s jealousy of [Peter].
4. The husband and [Peter] in 1999 moved into the husband’s parents’ home on their farm [down south]. Contact has been problematic since the orders in 1998. Further applications were made in 1999, in relation to that issue. [Mrs A], a member of the Uniting Church, became involved in supervising handovers for contact in 1999, and with her assistance, contact seems to have been well handled since that time.

5. In January 2000, the wife filed another application, seeking care of [Peter], while a child protection case proceeded in relation to the husband and [Janine]’s child, [Rachel]. Apparently [Rachel] was taken from [Janine] and placed into foster care for some time. The wife’s application in relation to change of residence was dismissed on the 9th of February 2000. Further orders were made on that day, in relation to the contact the wife should have to [Peter], and the contact the husband should have to [Ben].

6. In April 2000, the husband’s family took over a property in [another town]. This property is [a long drive] from [the other property]. The husband acknowledges that he spends at least three-quarters of the year [at the new property]. Initially when he moved to [the new property], he took [Janine] with him, in the hope of a reconciliation. He left [Peter] behind with his parents. The husband’s father now spends most of his time in [the new property] as well, and [Peter] is effectively parented by his grandmother, a woman who is approximately 70.”

(Page 5)

8 On 13 February

2002 it was ordered by consent that the wife shall have sole responsibility for [Ben] and at the conclusion of publication of her reasons Penny J ordered the husband have sole responsibility for [Peter].

9 By a Form 3 application filed by the husband, heard on an ex parte basis on 28 October 2002, it was ordered that [Ben] reside with the husband. On 25 November 2002, the husband obtained a further sole parental order regarding [Ben] and discharge of contact orders regarding [Peter], also on an ex parte basis. Shortly after this time, [Ben] became too difficult for the husband to manage given the on and off again relationship he was having with [Janine] and the requirements of farming. [Ben] was placed in respite at the [special care facility] and spent much time in hospitals. The Department for Community Development became involved and on 1 April 2004 [Ben] was placed in foster care. This placement option was found for him through the combined efforts and joint funding by the Department and the Disability Services Commission (“DSC”). It was on 1 April 2004 that the Second Respondent commenced caring for [Ben]. The husband consented to the placement and has continued to have some contact with the Department, although there is no prospect of him being willing to resume the care of [Ben].

10 Since [Ben]’s placement in foster care, the applicant has contacted the Department and sought contact and residence of [Ben]. On 21 January 2005, the wife filed a formal application in the Family Court of Western Australia for residence and contact of [Ben]. It is that application that is the subject of these proceedings.

Orders Sought

11 By a Minute of Proposed Orders handed up by the applicant wife at the commencement of the trial, she sought the following orders:

“1.

The Order of 25 November 2002 be dismissed.

2.

The child [Ben D] reside with the mother and she have sole responsibility for his day to day care, welfare and development.

3.

The intervener have contact with the said child as follows:

a. From Friday to Monday one weekend in four.

(Page 6)

4.	The father have contact with the said child as follows:
a)	From Friday to Monday one weekend in four.

5.

To facilitate contact the applicant mother deliver the child at the beginning of contact proposed at 3. to the intervener and at the beginning of contact proposed at 4. to the father, the intervener and the father returning the child to the mother at the end of contact periods.

6.

The mother comply with all medical recommendations for the child’s care.

7.

The mother as soon as is practical (sic) advise the father of any hospitalisation and of any significant illness of the said child.”

12 The husband gave evidence during the course of the trial that he wished to retain sole long-term responsibility and that he supported the carer [Dawn J].

13 By an Amended Minute of Orders Sought, the Second Respondent sought the following orders:

“1.

The child of the relationship being [BEN D] (dob: 00.00.1989) reside with the father or such person as he directs and he or such carers as he nominates, second respondent and she be solely responsible for the day to day care, welfare and development of the said child.

2.

The father second respondent have sole responsibility for the long term care, welfare and development of the child.

3.

The mother have contact defined as follows:

(a)	each alternate weekend from 5.00pm Friday until 5.00pm Sunday
(b)	half of each school holiday period at times and dates as agreed between the parties

4.

The father have contact with the child at times as agreed between the first respondent and the second respondent.

5.

Pursuant to paragraph 3, handover shall occur at a suitable handover centre with the mother to travel to [country town] and the carers second respondent to travel to [country town] at either the commencement or

(Page 7)

conclusion of contact as the parties mother and the
second respondent agree.

6.

The mother shall adhere to all medical procedures as prescribed by the child’s treating medical personnel and shall not feed the child orally unless directed to do so.

7.

The mother shall not change the child’s medical appointments or hospital admission without the consent of the child’s carers.

8.

The mother shall provide all of the child’s necessities while the child is on contact with the mother.

9.

In the event that the child is hospitalised the mother shall be advised immediately and shall exercise contact daily from 9.00am to 12 noon.

10.

Such other orders as the Court deems appropriate.”

14 The Independent Children’s Lawyer’s Minute of Proposed Orders, filed 20 April 2006, is as follows:

“1.

All previous orders relating to the child [BEN D] born
[00.00.]1989 (“[Ben]”) be discharged.

2.

[Ben] reside with the Second Respondent, [DAWN J], and the Second Respondent have sole responsibility for [Ben]’s day to day care, welfare and development.

3.

The Applicant Mother, [DIANE B] , have contact with [Ben] as follows:

(a)	each alternate weekend from 9:00am Saturday until 5:00pm Sunday, or 5:00PM Monday if that Monday is a public holiday and;
(b)	during the school holidays, from 9:00am on the Saturday following the end of the school term until 5:00pm on the Saturday before the school term commences.

4.

For the purpose of handover of [Ben] under paragraph 3, at the commencement of contact the Applicant Mother collect [Ben] from the residence of the Second Respondent and at the conclusion of contact, the Second Respondent collect [Ben] from the residence of the Applicant Mother.

(Page 8)

5.

The Applicant Mother and the Second Respondent ensure that an independent person is present at handover.

6.

The Second Respondent to inform the Applicant Mother of any changes to [Ben]’s current medical care and education.

7.

The Applicant Mother be at liberty to obtain all information relevant to [Ben]’s medical care and education.

8.

If [Ben] suffers any significant injury or illness whilst in the care of either party which requires urgent medical attention, the party with the care of [Ben] at the time is to inform the other party without delay of the nature of the injury or illness and the name and address of any health care professional to whom [Ben] has been referred.

9.

The Second Respondent be at liberty to attend at [Ben]’s school with the consent of the school Principal.

10.

The Second Respondent and the Applicant Mother ensure [Ben] is properly restrained during all car travel.

11.

The First Respondent Father, [DAVID D], have contact with [Ben] as agreed with the Second Respondent.

12.

The First Respondent Father have contact with the child [PETER D] born September 1990 (“[Peter]”) subject to [Peter]’s wishes.

13.

The Second Respondent have sole responsibility for [Ben]’s long term care, welfare and development.

14.

The Second Respondent to inform the applicant Mother of any proposed changes to arrangements affecting [Ben]’s long term care, welfare and development 28 days prior to such change occurring.

15.

The Second Respondent and the Applicant Mother comply with all recommendations of health care workers involved with [Ben].

16.

Each party to keep the others advised of their current residential address and telephone number.

17.

A copy of this order be provided to [Ben]’s school, the Department for Community Development, the

(Page 9)

Disability Services Commission and any other professionals involved in [Ben]’s care and welfare.

18.

The Applicant Mother be restrained by injunction from:

(a) denigrating or permitting any person to denigrate the Respondent Father to or in the presence of

[Peter];

(b) taking [Ben] outside the State of Western Australia.

19.

The Director of Court Counselling be requested to appoint a Counsellor to supervise the aforesaid contact orders for a period of 12 months.

18.1 (sic) The Counsellor appointed shall be at liberty to report to the Judge making this order in relation to matters concerning the supervision of contact;

18.2 (sic) The parties shall attend a Supervision Information Session at the Family Court Counselling Service in the event that they are requested to do so by the Director of Court Counselling or the Counsellor supervising the contact.”

Applicable principles

15 These proceedings are brought pursuant to the provisions of Part VII of the Family Law Act 1975 (“the Act”). Section 60B of the Act sets out the objects of Part VII and the principles underlying that object in the following terms:

“(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
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(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

…”

16 In determining this case I have kept the objects and the underlying principles in mind. Having said that, however, I am directed by s 60CA of the Act to make orders that are in the best interests of the child. Section 60CC(2) and (3) set out those matters to which I must have regard in determining what is in the child’s best interests and I shall deal with those that I consider relevant to this case in due course.

The case for each of the parties

17 I believe a fair summary of the wife’s case is that she was the primary care-giver to [Ben] from birth until July 2002. She states that she is closely bonded to him and that [Ben] recognises her. As part of her case she says that [Ben] ought to be reunited with his brother who wants that to happen. She states in her Papers for the Judge that:

“Any further long term separation from me and his brother would affect [Ben]’s long term emotional wellbeing to his detriment.”

(Page 11)

She is of the opinion that the second respondent does not encourage a relationship between [Ben] and her. It goes without saying, of course, that part of her case is that she is [Ben]’s natural mother.

18 As I see it, a summary of the second respondent’s case is that [Ben] ought not to be removed from the environment that he is presently in and which he has been in for several years. In that environment he is well cared for and is progressing as well as can be expected at the [local] High School. The second respondent doubts whether or not the wife will act in the best interests of [Ben] in her dealings with the various service providers whose involvement is essential to his continuing wellbeing. There is also an issue from her perspective as to whether the wife has the necessary skills and perceptions to care for this severely disabled child.

19 The husband seeks that he continues to have sole parenting responsibility for [Ben] not on the basis that [Ben] will live with him, but that the present arrangements with [Ben]’s carers continue. He, therefore, naturally supports the second respondent. His case may be summed up by quoting the following from his affidavit filed on 9 March 2005:

“13. It is not in [Ben]’s best interest to remove him from an environment he is now used to, where he is loved and happy and secure. [Ben] is vulnerable and reliant on others making his choices for him. Emotionally, it would be detrimental to [Ben] to be upheaval [sic] yet once again and taken to a new home and new school. It takes [Ben] far longer to settle than other children.”

20 As previously mentioned in this judgment, in the Independent Children’s Lawyer’s Minute of Proposed Orders, it was proposed that [Ben] continue to reside with the second respondent and have contact with his mother each alternative weekend and during school holidays. In his written submissions filed subsequent to the trial, Counsel for the Independent Children’s Lawyer submitted:

“13. After considering the further evidence given by the parties and called on their behalf the Child Representative maintains that it is in [Ben]’s best interests to continue to live with Ms [J]ones and Mr [K].

14. When considering who is better able to primarily care for [Ben] it is submitted that the personalities of Ms [B] and Ms [J] are an important consideration.”

(Page 12)

The best interests of the child

21 Although it has been canvassed in previous judgments, I think it is important to outline the extent of [Ben]’s disabilities if for no other reason than to place these reasons for judgment in context.

22 In her report of 6 December 2005, [Ms [T], a Clinical Psychologist who was appointed as a single expert in these proceedings, noted:

“[Ben] was born with severe malformation of the brain resulting in cerebral palsy (spastic quadriplegia), epilepsy and severe intellectual disability. Files also mention synoptic dysphasia and cortical blindness.”

23 In her report, she refers to various aspects of [Ben]’s disability. I only intend in these reasons to note her summary, however, I rely upon the more expanded version in her report. She reports as follows:

• Under the heading “Visual”, she summarised “though [Ben] seemed to enjoy the little bit of light perceived, he appears to have little voluntary control and limited ability in searching out the source”.

• Under the heading “Auditory”, she summarised “the auditory modality is [Ben]’s main way of being aware of his environment. Though he does not seem to localise sounds, he does discriminate, identify and shows preferences”.

• Under the heading “Tactual”, she summarised “the tactual modality was not being used sufficiently, and there appears to be some tactual defensiveness”.

• Under the heading “Olfactory” she stated “the sense of smell is active and he can use it to associate with locations, situations and people”.

24 She then made a general conclusion under the above headings which was as follows:

“Sensorially [Ben] is extremely limited. He has to rely on sound discrimination and, to some extent smell, in order to make sense of his environment. His visual and tactual senses are severely restricted, and are not being used in a functional way.”

She then went on to consider his current functioning. She reported as follows:

(Page 13)

“Motoric Ability

…

In summary, movement is extremely restricted, and what he does have may not be under voluntary control, at least for some of the time. [Ben] does, however, enjoy the sensation of movement and certainly enjoys having his chair pushed and bumped about.

Cognitive Development

…

In summary, [Ben] is profoundly impaired intellectually as a result of his inability to interact with the environment. That does not mean, however, that he is not capable of learning some basic associations. It is also essential to provide him with appropriate stimulation to give him some sense of involvement and wellbeing.

Social Development

…

In summary, though [Ben] does not have either the communication or the ability to socialise and form reciprocal relationships, he recognises familiar people and relaxes in their presence.

…

Communication

In summary, [Ben] does not seem to have any capacity for formal communication at this stage, and no attempts to communicate were witnessed during my observation. His previous experience and the level of his disabilities would make it very difficult for him to develop a language code, though he is capable of communicating his likes and dislikes by reactions, and he is capable of learning associations with sound patterns which would help him predict what may take place next.

Independence

…

In summary, he is completely dependent on outside care for all his physical and life supporting needs.”

25 She then summarised [Ben]’s current functioning as follows:

(Page 14)

“[Ben] currently appears to have some very limited vision or awareness of light, good awareness and discrimination of sound patterns, discrimination of smells, and some awareness of touch, though he does not always like this. He has very limited control of his arms, with even less control on the left. He uses his right arm, however, for self stimulatory behaviour much of the time. Cognition is severely impairs with no form of communication or ability to express his need other than showing discomfort or distress. Mobility is severely limited and he is confined to his wheelchair. He is completely dependent on others for all body functions.”

26 The other matter that I wish to mention to place these reasons into context is that [Ben] was born [in] 1989. In August of next year he will turn 18. As I perceive the situation, therefore, any orders I make will only have a life span of 8 or 9 months. Presumably, [Ben]’s future will then be determined by the Guardianship and Administration Board and not the Family Court of Western Australia. This raises a serious issue as to whether I ought to upset a long standing status quo in the interim.

27 I now turn to a consideration of the s 60CC factors. Firstly, I must consider the primary considerations. The first of these is the benefit to the child of having a meaningful relationship with both of his parents. Sadly, in this case, there has to be some doubt that [Ben] can form meaningful relationships. Although he may recognise familiar people, that does not mean that he forms a meaningful relationship with them. At the moment, for reasons that I will come to, the wife is having no time at all with [Ben]. Under the present regime, it is not in dispute that the husband can see him if he wishes to do so. I agree with the submissions of Counsel for the Independent Children’s Lawyer that normally [Ben]’s mother would have the advantage of her parentage because of s 60B(2) of the Act. I also agree, however, that this section must give way to s 60CA, which requires me when making a parenting order to regard the best interests of the child as the paramount consideration. In my view, in this case, s 60CC(2)(b) is not applicable. This brings me to the other matters which I must take into account known as the additional considerations under s 60CC(3) of the Act. The first of these is any views expressed by the child. It virtually goes without saying in this case that [Ben]’s views are not a relevant consideration.

28 I am then required to take into account the nature of the relationship of the child with each of the parents and any other persons. This is a case in which this consideration is

(Page 15)

problematical. This is because of [Ben]’s profound disabilities. I have no reliable evidence as to the extent of the relationship between [Ben] and his parents or carers. The best I have is contained in the report of Ms [[T], in which she says “he showed obvious response to familiar voices”. She also said “[Ben] certainly recognises familiar voices and I noted that he seemed very comfortable in the presence of his carers”. As I have already mentioned, Ms [T] concluded that “though [Ben] does not have either the communication or the ability to socialise and form reciprocal relationships, he recognises familiar people and relaxes in their presence”. Other than what I have said above, I am unable to make any findings with respect to the nature of the relationship with [Ben] and the significant adults in this case.

29 Having said that, however, although [Ben] was desperately unlucky to be born as he was, he is lucky there are two women who desperately want to look after him. I agree with the submissions of Counsel for the Independent Children’s Lawyer that they are the unsung heroes of society.

30 Next I am required to take into account the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between [Ben] and the other parent. This is a relatively easy matter to decide. The husband does not want much to do with [Ben]’s life except to make sure that he is adequately cared for. The contest is essentially between the wife and the second respondent. The second respondent has indicated that in the event that the child returns to live with his mother, she does not want ongoing contact, which I regard as being an entirely appropriate concession to make on her behalf. I am satisfied that the second respondent would promote contact, but that she and her partner are utterly fed-up with the wife’s attitude towards them and their care of [Ben]. They are making a contribution that they need not make at an expense to themselves and for no financial gain. They deserve to be congratulated, not vilified.

31 I am required to take into account the likely effect of any changes in [Ben]’s circumstances, including the likely effect on him of any separation from either of his parents or any other person with whom he has been living. A separation from either parent is not a consideration in this case as [Ben] has been separated from each of his parents for a couple of years. What is relevant is whether he ought to be separated from the second respondent and her partner.

(Page 16)
32	The first single expert witness in these proceedings was a social worker, Adam Peaty, who delivered a report on 8 June 2005. Although I have taken the whole of his report into account, I only propose to refer to his recommendations. In that report he said as follows:

“The view here is that neither parent has the capacity to properly and consistently provide direct care for [Ben] if he was to live with them. His needs will be best met by remaining in his current foster care placement. The current complicated funding package for [Ben] could be jeopardised if he was to be moved to any other care arrangements. Moving [Ben] would cause him stress and a negative impact upon his health. The current arrangements appear to be the most stable and functional that have existed for [Ben] for many years.

Ideally, the parents should be able to share the responsibility for [Ben] and jointly make decisions for him. Their inability to cooperate precludes that occurring. It is recommended that residency remains with Mr [D] as he will ensure that [Ben] remains with the current carers for the foreseeable future and he seems to have the capacity to work cooperatively with the necessary agencies involved with [Ben]. The issue of who holds legal responsibility for [Ben] when he turns 18 will need to be resolved in the future. The involvement of the Guardianship and Administration Board may be required closer to [Ben] turning 18.”

33 For whatever reason, a second single expert was appointed, namely a Clinicial Psychologist, Ms [T], whose report I have already referred to in these reasons. Once again, I do not intend to quote extensively from her report, but I have taken all the matters contained in it into consideration. She discussed various options, including leaving [Ben] with his current carers. She said:

“The other option is leaving [Ben] in the care of his current Carers. This option provides [Ben] with consistency and continuity. It is also currently working smoothly. Relationship between school and Carers is good, and school is supportive of the Carers. Respite opportunities have also now been found, and the Carers are willing to undertake long term responsibility for [Ben]. In the time he has been with them he has put on weight and has been much more healthy. He has not needed hospitalisations. His epilepsy also seems to have

(Page 17)

reduced from something likely 6 fits a day to 1 per week, the routines and the relationships which has been established after a long period of disruption, and would again jeopardise his health and wellbeing by raising stress levels.”

suggesting that medication has been managed appropriately.

34 She went on to conclude:
“It is, therefore, my opinion that it is in [Ben]’s best interests
to remain in the current situation in order to provide stability,
to maintain current relationships and routines, and continue
the development of a sense of security which has been lacking
for much of his life. It is my opinion that major change would
be disruptive to [Ben]’s well being. At the same time, contact
with mother needs to be re-established in a way that will
benefit [Ben].”

35 All of the expert evidence against which there is no contrary evidence suggests that to move [Ben] from his present carers would be significantly to his detriment.

36 I am required to take into account the practical difficulty and expense of [Ben]’s spending time with and communicating with each of his parents and whether that difficulty or expense will substantially affect his right to maintain personal relations and direct contact with both parents on a regular basis. The emphasis is on the rights of the child. There will no doubt be some practical difficulty and expense as the wife has relocated to [another town]. The said reality is, however, that I doubt that [Ben] is aware whether or not he is maintaining any personal relationship and direct contact with his mother. That is, however, not to ignore the rights and feelings of the mother.

37 I am required to take into account the capacity of each of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs. The husband does not really enter into this equation. Suffice to say, his view is that it is the second respondent who is best able to care for the child’s needs.

38 I am satisfied that both the wife and second respondent can care for the child’s physical needs. The only doubt I have is the surgery that the wife has had to her shoulder which may prevent her from lifting [Ben]. Insofar as the wife is concerned, she has demonstrated in the past an ability to care for [Ben]. Furthermore,

(Page 18)

Dr Silberstein, [Ben]’s paediatric neurologist did not have any worries about the wife’s ability to care for [Ben]. There is no suggestion from any of the professionals called as witnesses that the wife could not be an appropriate carer for [Ben] and, in fact, the Department for Community Development saw no reason why she should not have the physical care of [Ben].

39 The second respondent has been fostering children since 1976. Her experience in this regard is set out in her affidavit filed on 4 April 2006, as is the training she participated in, in order to look after [Ben]. There is absolutely no doubt in my mind that she can care for [Ben]’s physical needs as she has done for a period now in excess of two years. I agree with the submission of Counsel for the Independent Children’s Lawyer that she is one of the heroes of our society whose contributions far too often go unnoticed and unrewarded.

40 There was some question about her physical health. She freely admitted that she had been diagnosed with throat cancer. It was, however, diagnosed at a very early stage and treatment appears to have been successful. The evidence persuades me that it is unlikely that in the future she will be precluded from caring for [Ben] because of any physical disability.

41 I now turn to the question of emotional and intellectual needs. Insofar as intellectual needs are concerned, they are probably of little importance given the gravity of [Ben]’s disability, however, the evidence is that he has improved since attending the Wagin school. It is in the area of caring for [Ben]’s emotional needs that serious worries arise insofar as the wife is concerned. As well may be expected, and I make no criticism of the wife in this regard, she seems unwilling or unable to accept the extent of [Ben]’s disability. I accept without reservation the submission of Counsel for the Independent Children’s Lawyer that [Ben] is lucky to have a parent who cares as passionately about him as does his mother. It was quite clear that she is highly motivated and has a strong emotional attachment to [Ben]. She also appears to involve herself in serious disagreements with other professionals involved in the care of [Ben]. In a report dated 6 April 2006 Mr Stephen Cohen, a Clinical Psychologist called as a witness by the mother, reported:

“Ms [B] has a style that challenges the norms of opportunity. This is confronting for all who come into contact with her, often raising ire and resulting in her being seen as difficult.

(Page 19)

This should not be confused with her commitment or capacity to care for her son. This has not changed since 1993.”

42 In his report dated 8 June 2005, to which I have previously referred, Mr Peaty reported as follows:

“There are two volumes of DCD files which cover 2002 - 2004. The files refer to a history of Ms [B] repeatedly involving DCD in allegations about the care of [Peter] or [Ben] by Mr and Mrs [D], which were not substantiated by DCD, and her refusing to have contact with certain workers as she disagreed with their findings. Her allegations of concern in July 2002 about [Peter] staying with Mr [D] and being at risk of harm from Mrs [D] were unsubstantiated. An investigation into Mrs [D] allegedly hitting her own children found that she had slapped [Rachel], but the incident was not substantiated as abuse.”

He went on to stay:

“There are notes that cover the arrangements that DCD developed with DSC in creating a care option for [Ben] after Mr [D] indicated that he and his wife could no longer provide direct care for [Ben]. There is no obvious indication on the file that DCD encountered major difficulties with Mr [D] in developing the current foster care arrangements for [Ben].”

Later in his report, he reported as follows:

“The files show details of the time Ms [B] cared for [Ben] and [Peter] and more recent times when he has either been in various hospitals or in his current foster placement. There is information in the files to indicate that at times Ms [B] had conflict with DSC workers over different issues and she at times made threats or complaints to DSC about aspects of DSC actions.”

43 The subsequent single expert, Ms [T], reported as follows:
“When asked why she had so many disagreements with
various professionals and providers, she admitted she had a
short temper and was ready to fight for her children’s needs.”

She then went on to say:

“In summary, I felt that she certainly had a strong emotional attachment to [Ben], but much of what she said was not realistic and I am aware that her behaviours in the past have not always been appropriate. She appears to be short

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tempered and emotional and has little time for protocol and people who do not meet her expectations. [Diane]’s behaviours appear at times quite erratic and inappropriate, even though they may be driven by positive intentions.”

She went on to report:

“[Diane] [B] very much wants to take charge of her son, and is very highly motivated. I was however somewhat concerned that she was being unrealistic in what she could and could not achieve. She was also unrealistic as to [Ben]’s abilities, assuming him to be much more competent than he currently is. I am not sure she understands the reason for the direct feeding into the stomach via the peg, or the reason why [Ben] cannot bear weight through his feet. I suggest she very much wants to fulfil her role as mother and she is genuine in this. In her enthusiasm, however, in the past this has led to much conflict with other professionals and other care providers, which in the long run, was detrimental to [Ben]. I note, in particular, the arguments with [previous] Primary School where a large number of people had put together a good IEP, but he was withdrawn before much else could happen and there was much conflict between [Diane], the Teacher’s aide, the teachers and the Principal. I note a letter that was written by the [country] District Hospital in August 2002 in response to some accusations, explaining how difficult it was for them to continue working when parents were at odds with each other taking some offence at the implications of neglect. I note that there have also been difficulties with DSC, and at one point [Diane] attempted to take [Ben]’s name off their records, and then insisted that he be made Level 2, not Level 3. This reduces the potential support DSC can give him, but was probably made with the assumption on [Diane]’s part that he did not have intellectual impairment. [Diane] does not deny most of these altercations.”

44 I am amply satisfied on the evidence that the mother, understandably perhaps, underestimates the physical and intellectual disability of [Ben]. The most outstanding example of this was her desire to take [Ben] [overseas], with the obvious risk to his health that imposed, in order for him to determine whether her proposed fiancé [from that country] was an appropriate person. How a child with such profound disabilities could do that is frankly beyond my comprehension.

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45	I have considered the balance of the matters that I am required to consider under the Act. However, in my view, they have marginal relevance. In my view, [Ben]’s long standing care arrangements are not to be disturbed. In arriving at that decision I have taken into account all of the evidence before me and the written submissions of each of the parties.
46	I again refer to the report of Ms [T]. Further to her comments already referred to in these reasons she went on to say:

“I would recommend that any person whose needs are as complex as [Ben]’s, should be seen as the responsibility of the community and not be left to any particular individual to care for on their own without ongoing supports and safeguards. [Ben]’s situation has been compromised in the past as neither parent could cope emotionally and physically with his situation. It is important that this does not happen again to [Ben].”

47 On publication of these reasons for judgment I will ask Counsel for the Independent Children’s Lawyer, the husband, the wife and the second respondent to attempt to agree a Minute of Proposed Orders that flow from these reasons. In doing so, I must say that I think that it would be appropriate that contact be resumed, but without direct face to face confrontation between the mother and the second respondent.

I certify that the preceding [47] paragraphs are a true copy of the reasons

for

judgment delivered by this Honourable Court

Associate