B v Director-General, Department of Human Services

[2010] NSWDC 276

CITATION:	B and Anor v Director-General, Department of Human Services and Ors [2010] NSWDC 276
HEARING DATE(S):	12/10/2010-15/10/2010, 20/10/2010-21/10/2010, 25/11/2010
JUDGMENT DATE:	10 December 2010
JURISDICTION:	Civil
JUDGMENT OF:	Murrell SC DCJ
DECISION:	See para [37]-[39] of judgment
LEGISLATION CITED:	Children and Young Persons (Care and Protection) Act 1998
CASES CITED:	Department of Community Services v Grant and T, S and F Reid (2010) CLN 8 A v Director General Department of Human Services (District Court of NSW, 2 July 2010, unreported) Re Liam (2005) NSWSC 75
PARTIES:	N (First Appellant) A (Second Appellant) Director-General, Department of Human Services (First Defendant)
FILE NUMBER(S):	2010/00099649
COUNSEL:	Mr T. Allen for the Director-General
SOLICITORS:	Mr Grant as Independent Solicitor for the Child

Background to the Appeal
1 T’s father appeals against findings and orders that were made by the Children's Court on 17 December 2009. Under those orders, T’s maternal grandmother has parental responsibility for T, her paternal grandmother has limited contact, and her father has limited supervised contact. The father seeks to increase the frequency and duration of his contact with T, with a view to ultimate restoration (T365.15-20, T367.8-15).

2 T is 4 years old. Until early 2009, she lived with her mother in a granny flat at the rear of premises occupied by her maternal grandmother and the maternal grandmother’s de facto partner. The maternal grandmother played a central role in T’s care. T had contact with her father. However, in December 2008, he was imprisoned until December 2009.

3 T’s mother has a history of mental health problems, gambling and homelessness. In January 2009, the maternal grandmother felt unable to cope with the mother's erratic behaviour. She forced the mother to vacate the granny flat. T continued to live with the maternal grandmother. In February 2009, the mother returned to the home of the maternal grandmother and removed T. Within days, the mother was assaulted. The Department of Community Services took T from her care and made a care application. On 26 February 2009, the Children's Court made interim orders placing T under the sole parental responsibility of the Minister. Since February 2009, T has lived with her maternal grandmother. T attends preschool. She is well settled and securely bonded with the maternal grandmother, who is her "psychological parent" (T86.32).

4 In December 2009, the Children's Court found that there was no realistic possibility of restoration of T to the father: 83 (7) of the Children and Young Persons (Care and Protection) Act 1998. The Children's Court ordered that:

(1) T be placed under the sole parental responsibility of the Minister until 18 years of age.
(2) For a period of 12 months, parental responsibility be jointly exercised by the Minister and the maternal grandmother.
(3) Thereafter, except for contact, parental responsibility be the sole responsibility of the maternal grandmother.
(4) At the expiry of 12 months, the responsibility of contact be jointly exercised by the Minister and the maternal grandmother.
(5) Within 12 months, a section 82 report be provided.
(6) The father have supervised contact with T at least four times a year for two hours (s 86(1)(a)).
(7) The paternal grandmother have contact with T at least six times a year for two hours (s 86(1)(a)).
(8) The parents be prohibited from attending T’s preschool and other activities without consent (s 90A).

5 The mother, the father and the paternal grandmother represented themselves on the appeal.

6 The mother did not lodge an appeal against the orders of the Children's Court. Her entitlement to be heard on the appeal did not afford her the status or rights of a party: s 87(3) of the Act. Initially, she seemed to support the father's appeal. At one stage, she indicated that she sought restoration of T. I was prepared to dispense with formal requirements and hear any appeal by the mother concurrently with that of the father but, without explanation, the mother failed to appear on the final 3 days of the hearing.

Issues

7 (1) Whether there is a realistic prospect of restoration of T to either parent.

(2) Whether an order allocating parental responsibility should be made and, if so, to whom.
(3) The appropriate order in relation to minimum contact by the father.
(4) The appropriate order in relation to minimum contact by the paternal grandmother.
(5) Whether the mother should be denied contact with T.

Relevant Statutory Provisions

8 The following provisions of the Children and Young Persons (Care and Protection) Act 1998 are relevant.

Section 9 (1): The safety, welfare and well-being of the child are the paramount considerations.
Section 9 (2) (c): The course to be followed is the least intrusive intervention consistent with protection from harm and promotion of development.
Section 71: Sets out bases upon which the Court may find that a child is in need of care and protection.
Section 72: A care order may be made if the child was in need of care and protection at the time of the circumstances that gave rise to the care application.
Section 79: If a child is found to be in need of care and protection, the Court may allocate parental responsibility.
Section 78: A care plan is to be presented by the Director – General.
Section 80: Before making a final order allocating parental responsibility, the Court must consider the care plan.
Section 83 (7): In the context of a final care order, the issues of permanency planning and realistic possibility of restoration need to be considered.
Section 86: Contact orders.
Section 90A: Order prohibiting action.
Section 91: An appeal to the District Court is by way of a new hearing and the District Court has all the functions and discretions of the Children’s Court.

The Mother

9 The mother was slight and strangely attired. She presented as intelligent, but abnormally intense and obsessive. Some of her questions to Dr Banks were bizarre (for example T120.34-122.25).

10 The mother has a history of mental disorder, financial instability and homelessness. The mother suffers from long-term psychological problems of complex aetiology. She believes that she suffers from attention deficit disorder and Aspergers Syndrome. Dr Tucker, a treating psychiatrist, saw evidence of neither disorder. Dr Tucker referred to a complex post-traumatic stress disorder, episodes of major depression, panic attacks, obsessiveness, anorexia nervosa and excessive use of stimulants (Exhibit F, Annexure A). In February 2010 the mother threatened to commit suicide (Exhibit J). In September 2010, Dr Banks spoke by telephone with Dr Tucker, who "remained most concerned at her (the mother's) increasing deterioration coupled with the profound short and long-term effects of her prescription medication regime" (Exhibit D, par 74). Dr Banks was also concerned about the level of stimulant consumption and its long-term impact on the mother’s behaviour (Exhibit D, par 61, par 69 and par 70, T131.20). When Dr Banks saw the mother in May 2009 and September 2010, she was emotionally labile and inappropriate. Her behaviour extended from the cooperative, through the uncommunicative and passive-aggressive to the deliberately hostile and evasive (Exhibit C, page 9; Exhibit D, par 23, para 2, para 68 and para 69).

11 The mother has been unwilling to disclose her address. In February 2010, she was reportedly homeless (Exhibit J). The father understands that she remains homeless (T348.26).

12 The maternal grandmother described an apparent gambling problem (T40.17-20, T40.40-41.20). In evidence, the father stated that the mother had a “very strong gambling addiction” (T349.27).

13 As the mother has had limited contact with T, there is no established relationship of mother/daughter. Further, the mother’s manner of interaction is not conducive to the building of a strong attachment. Dr Banks observed a “fragile, limited attachment”, with the mother behaving towards her four-year-old daughter in “sibling-relationship terms.” (Exhibit C, p 11 par 4; Exhibit D, par 49 and par 72). He observed that the mother's egocentric behaviour and short attention span meant that positive, child-centric interaction with T was inconsistent and unsustained (Exhibit C, p 7 and p 10; T134.49-T135.4, T135.15-19). In September 2010, the mother arrived more than four hours late to the interview with Dr Banks, and left before completing the interview and psychometric assessments (Exhibit D, par 21 and par 36). Similarly, in nine supervised contact visits, the mother arrived on time only twice, and failed to appear on four occasions (Exhibit M).

14 The mother suffers from complex, long-standing psychological and behavioural problems for which she is not receiving effective treatment. Dr Banks stated that the mother's emotional state represented "a profound risk" to T (T 131.28-29; Exhibit C, p 10; T96.20, T96.40). He concluded that there was no realistic prospect of T living with her mother (T94.42-45). The father opposed restoration of T to the mother because of the mother's mental health, doubting that the mother could care for T unassisted (T349.50-350.2).

15 In 2009, when the Department seized T from the mother, T was in need of care and protection inter alia because of the threat of serious psychological harm in the domestic environment in which she was living: s 71(1)(e). Consequently, I find that she is in need of care and protection: s 72.

16 The mother does not have an established mother/daughter relationship with T. She is pathologically unreliable and incapable of sustained appropriate interaction with T. Her continued involvement with T would cause emotional harm to T. There is no realistic prospect of restoration. Unless the mother’s circumstances change (and there is no suggestion that they will change), contact with the mother is contrary to T’s best interests. There is no realistic possibility of restoration to the mother.

The Father

17 The father lives with the paternal grandmother. Currently, he does not work. He attends TAFE. In connection with a mental disorder, he receives a disability support pension.

18 The father has a history of mental health problems, associated with illicit drug use and violence. In September 2007 the father was abusing amphetamines (Exhibit EE). He enrolled in a Salvation Army rehabilitation program but left after nine days (Exhibit T). Currently, there is no evidence of drug abuse (Exhibit E, Annexure B).

19 Since 1998, the father has been treated for schizophrenia through the Sydney West Area Health Service (Exhibit Q). When floridly psychotic, the father experiences delusions and auditory hallucinations. The father’s condition depends, inter alia, on whether he is receiving appropriate treatment, whether he is complying with treatment, and whether he is using drugs (Exhibit P). There have been several hospital admissions. In 1998, he was admitted voluntarily to Bungarribee House (a psychiatric unit at Blacktown Hospital), from where he was transferred to Yaralla (a high security ward at Cumberland Hospital) because of aggressive behaviour. In 2007 he was admitted twice to Yaralla in a floridly psychotic state. For many years, he has been prescribed antipsychotic medication (Exhibits P, Q and T). Unfortunately, he has not always complied with his medication regime. In cross-examination, the father conceded that, when left to his own devices, he has attempted to cope without medication. He noted that, since his release from custody in late 2009, he has been compliant (T354.39-41, T355.10-13).

20 The father sees Ms Lee, a counsellor, on a fortnightly basis. Recently, he has undertaken courses on anger management and parenting/separation. After a hiatus of five years, in April 2010, the father returned to see Dr Greenaway, a psychiatrist. Dr Greenaway has observed no symptom of psychosis. Dr Greenaway expressed the view to Dr Banks that the father's return to treatment may be motivated by a desire to succeed on the appeal (Exhibit LL, par 32).

21 There is a history of violence towards family members. In 2002, the father was convicted in relation to contravention of an apprehended violence order obtained by a former girlfriend (Exhibit HH). There were reports of assaults on his mother and damage to household items. In 2003, there was fire damage to the family home, but criminal proceedings were discontinued because of the father's mental problems (Exhibits U and V). In 2005, there were reports to police of violence by the father towards the mother (Exhibits BB and CC). In July 2007, threats by the father to his mother and observations that he was lighting fires in the rear of the family property, lead to the father's hospitalization at Yaralla (Exhibits T, Z, AA). In 2008, there was a conviction for malicious damage (Exhibit HH). In December 2008, he was admitted to Blacktown Hospital following aggressive and abusive behaviour (Exhibit Q). He had not taken medication for a year. The diagnosis was "situational crisis and aggression". He was released on antipsychotic medication. In August 2009, the father was convicted of assault, malicious damage, stalk with intention to cause fear, and contravention of an apprehended violence order. He was sentenced to imprisonment until December 2009 (Exhibit HH).

22 As to the significance of incidents reported to police, the father was generally dismissive, maintaining that the incidents had been exaggerated and/or fabricated (for example, T300.38, T302.13-15), although he did concede that he had verbally and physically abused his mother "to a certain extent" (T361.25). In his November 2010 assessment, Dr Banks concluded that the father “sought to minimise the documented events", showing “minimal insight in respect to his past conduct” (Exhibit LL, par 11). In relation to the father’s aggression towards his mother, Dr Banks stated that “the point at which a male is perpetrating violence against his mother, that it is a particular tell-tale sign in terms of the severity of the anger condition, and the inability of that individual to manage or regulate their aggressive emotions” (T92.32-36). The behaviour demonstrated that the father lacked personal and interpersonal boundary management (T92.26).

23 In March 2010, Ms Lee, the father's counsellor, reported that the father had "gained insight and strategies for addressing personal and situational anger inducing moments" (Exhibit E, Annexure B). However, there is evidence of ongoing difficulty with anger management. Veronica Anderson, a Departmental caseworker, gave evidence that, when she had “disagreed with (the father) or challenged (him) on something, (his) voice does become loud and quite aggressive” (T178.40-43). During supervised contact on 15 September 2010, another caseworker twice advised the father to refrain from discussing inappropriate matters with T. Soon after, she announced that the supervised access visit was over. The father raised his voice and blamed the caseworker when T began to cry. He became “agitated, breathing heavily, demanding (the full name of the caseworker) so that he could make a complaint.” (Exhibit K, 15/9/2010, p 3) The caseworker pressed the emergency duress button and received assistance from other caseworkers, including Marcia Stone, who noted that the father was “speaking in a loud, aggressive tone,” as T hid, “cowering” in a corner of the room (Exhibit K, 17/9/2010; T173.5). The father said that Ms Stone's evidence was “totally manufactured” (T170.40). Dr Banks saw the incident as a display of rigidity of thought “that happens within an aggressive profile of conduct” (T99.18-19). On 26 October 2010, towards the end of an assessment by Dr Banks, the father became agitated and angry towards Dr Banks. The father then departed Dr Banks rooms. Dr Banks observed that the conduct showed that "effective control of (the father's) emotions remains a considerable challenge to his daily functioning" (Exhibit LL, par 37).

24 In March 2009, Dr Pelichowski, a psychiatrist with the Sydney West Area Health Service cogently summarised (Exhibit Q) the position as follows:

"(The father) suffers from schizophrenia, intermittent substance abuse and intermittent disturbance of mood. He is pleasant and cooperative when well but can be very dangerous and aggressive during relapse."

Currently, the father is psychologically well. Dr Greenaway considered that the father is "in the earlier stages of stability" (Exhibit LL, par 32) and supports the father having supervised contact with T. Ms Lee said that the father "has the capacity to parent in a greater capacity beyond his current limitations" (Exhibit E, Annexure B).

25 Since his release from prison in December 2009, the father has had supervised contact with T. Reports describe the father as attentive and affectionate towards T (Exhibit M). In his October 2010 assessment, Dr Banks observed that the father behaved affectionately and appropriately with T (Exhibit LL, par 24). The father has established a savings account for T (Exhibit E, Annexure B). However, as stated by His Honour Judge Lakatos SC in A v Director General Department of Human Services (District Court of NSW, 2 July 2010, unreported) at [204] in the context of a s 90 application:

"Courts have held that the issue in such cases is not whether the parents seeking the return of parental responsibility have made honest and significant steps in addressing the issues which precipitated the removal of their children. Rather the matter should be approached from the perspective of the child and the potential risk to him or her …"

26 Despite the positive situation that has prevailed over the last 12 months, Dr Banks advised that the father's conduct should be assessed over the longer term, rather than focusing on the recent past. He described the father as having a "chronic and relapsing condition" that requires ongoing psychiatric treatment to maintain stability (T85.13). He expressed the opinion (Exhibit LL, par 33) that:

"In the event (that the father) could demonstrate a period of sustained vocational skill development (outside of incarceration) and/or employment, independent living and within those elements, ongoing compliance with multiple forms of authority and reasonable codes of conduct, then the Court could place weight on the possibility that a greater level of contact frequency and duration with (the father) may be in (his daughter’s) best interests."

27 Over the past 12 months, the father has been compliant with treatment and has been psychologically well. Generally, the father's contact with T is positive. The father is highly motivated to "be a large part of (T’s) life" (Day 7, T29.36-40). In relation to anger management, he has made progress, although there is a considerable distance to go. In the context of ongoing concerns about anger management, Dr Banks recommended that the father's contact with T be supervised. Dr Greenaway also recommended that contact be supervised (Exhibit LL, par 32 and par 37). I accept the opinion of these experts. In the context of the father's history of violence, there needs to be a significantly longer period of sustained stability in order to satisfy the Court that unsupervised contact with T poses no real risk to her. Contact should continue to be supervised by the Director-General. The Court cannot order supervised contact that is more extensive than that which the supervisor agrees to provide: s 86 (2), Re Liam (2005) NSWSC 75 at [48]. In any event, Dr Banks does not recommend an increase in the level of the father's contact.

28 The Minister expressed concern that, if the father was granted unsupervised contact with T, he may permit the mother to have contact with T, giving rise to the risk that the mother would abscond with T. As the Court is of the view that the father’s contact should be supervised for other reasons, there is no need to consider this submission.

29 There is no realistic prospect of T being restored to the father in that "restoration is not a real, practical or sensible possibility which might be achieved within a viable timeframe": Department of Community Services v Grant and T, S and F Reid [2010] CLN 8 at [71]. The father is “in the earlier stages of stability” but suffers a “chronic and relapsing condition” (Exhibit LL, par 32; T85.13). T’s primary attachment is to the maternal grandmother, a close relative with whom she has been living all her life. If there is a significant change in relevant circumstances, the father may make an application under s 90 to vary the care order.

The Paternal Grandmother

30 The paternal grandmother is staunchly supportive of her son. She minimises his problems. She is convinced that he is “a changed man” (T106.22).

31 The paternal grandmother is willing to work with the maternal grandmother for T’s sake. She appreciates that T is not much interested in occasional, short, supervised contact. She would like contact to be unsupervised, more frequent and for longer periods, so that she and T can share interesting activities.

32 Dr Banks expressed two concerns. He voiced a concern that, if granted unsupervised access to T, the paternal grandmother may be unable to protect T from the father, particularly if the father ceased compliance with his medication (Exhibit LL, par 31, T98.31-44). He said that the paternal grandmother "appeared to be very dependent on, compliant with and potentially submissive to (the father) ... he exercises considerable control over her, and/or alternatively pays little heed to her requests or directions… " (Exhibit LL, par 29). Nevertheless, he supported unsupervised contact with the paternal grandmother, provided that she was prepared to acknowledge that she must not facilitate contact (including telephone contact) with the father during her contact sessions (Exhibit LL, par 36). He gave evidence that unsupervised contact would pose no "unacceptable risk" to T. Consequently, the Director-General conceded that, if the paternal grandmother gave appropriate undertakings, she should have unsupervised contact with T (Day 7, T21.24-27)

33 Second, Dr Banks was concerned that, if there was to be simultaneous contact between T and her father and paternal grandmother, there would be little quality interaction between T and her paternal grandmother because the father would dominate the interaction (Exhibit LL, par 34).

34 The preference of the paternal grandmother was to exercise contact every month for two hours so as to maintain frequent contact with T (rather than have longer but less frequent contact) (Day 7 T9.14). She was prepared to give the undertakings sought by the Director–General (Day 7 T27.47-28.3).

35 Ultimately, there was little contention about the nature and extent of minimum contact between the paternal grandmother and T. There should be an order stipulating that the minimum requirement for contact is two hours a month (unsupervised).

Orders

36 I have considered the s 78 care plan presented by the Director–General.

37 I make orders in accordance with paragraphs 1, 2 and 3 (i) and (iii) of the minute of order provided by the Director-General (Exhibit JJ). In effect, the appeal is dismissed and orders (1)-(6) and (8) summarised in paragraph 4 above are confirmed.

38 In addition, pursuant to s 86(1) (a), I make an order stipulating that the paternal grandmother may exercise contact with T for a minimum of two hours once a month (unsupervised).

39 The Court accepts the following undertakings from the paternal grandmother until T attains 18 years:

(1) During unsupervised contact visits, the paternal grandmother will not allow the father or the mother to have contact with T (in person, by telephone or otherwise) without the prior written approval of the Director-General.
(2) If the father or the mother attempt to have contact with T during unsupervised contact visits by the paternal grandmother, the paternal grandmother will forthwith notify the Director-General.