Britton and Dole and Ors

[2008] FamCA 1270

FAMILY COURT OF AUSTRALIA

BRITTON & DOLE AND ORS [2008] FamCA 1270

FAMILY LAW – CHILDREN

Rice v Aspund (1979) FLC 90-725
Edwards (2006) FLC 93-306

Family Law Act 1975 (Cth)

APPLICANT: Ms Britton

FIRST RESPONDENT:  Mr Dole

SECOND RESPONDENT:  Ms Simon

INTERVENER: Director-General, Department of Community Services

FILE NUMBER: NCC 3532 of 2007

DATE DELIVERED: 29 October 2008

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Ryan J

HEARING DATE: 29 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms O’Rourke

SOLICITOR FOR THE APPLICANT: Legal Aid Commission NSW

FIRST RESPONDENT: No appearance

SECOND RESPONDENT:	In person
COUNSEL FOR THE INTERVENER:	Mr Anderson

SOLICITOR FOR THE INTERVENER: Crown Solicitor’s Office

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Denise Clark

Orders

1. That the application in a case filed by the Director-General of the Department of Community Services on 26 September 2008 is dismissed.

2. That the mother's amended response to an application in a case filed on 28 October 2008 insofar as it sought Orders s 2 and 3 is dismissed.

3. Pending further Order, that for the purpose of changeover in accordance with Orders 5(b) dated 4 August 2008 the Director-General of the Department of Community Services shall deliver the child … to the mother at D CSC and the mother shall return her to the same place.

4. The mother's application for Order 2(a) contained in her amended response filed 28 October 2008 is listed for hearing before me for two days commencing 10 am on 12 November 2008.

5. That in the event Ms Simon seeks to intervene in these proceedings, she shall file and serve an application and affidavit no later than 4.00 pm on 6 November 2008.  In the event Ms Simon seeks, in accordance with the above Order, interim Orders that the child lives with her, that application is listed for hearing at the same time as the mother's application above referred to.

6. All parties and the Independent Children's Lawyer have leave to issue subpoena for the production of documents.

7. In the event a party or the Independent Children's Lawyer proposes to call evidence other than on affidavit that a proof of evidence must be given to the other parties.

8. The directions hearing listed for 11 November 2008 is vacated.

9. Liberty to all parties and the Independent Children's Lawyer to apply on 24 hours' notice.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: (P)NCC3532 of 2007

MS BRITTON

Applicant

And

MR DOLE

First Respondent

And

MS SIMON

Second Respondent

And

DIRECTOR-GENERAL DEPARTMENT OF COMMUNITY SERVICES

Intervener

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. On 4 August 2008 I delivered reasons and made Orders in the mother's review application of orders made by a Judicial Registrar whereby her three year old daughter was placed into the care of the Director-General of the Department of Community Services.  Although partially successful on the key issue the mother failed to persuade me that it was in the child’s best interests to be returned to her.  Summarised, the effect of those orders was that the child would remain in foster care and would thereafter spend time with the mother thrice weekly, initially supervised and subject to certain conditions after 1 September 2008 at the same frequency, increased from two to three hours but relevantly on an unsupervised basis.  The orders enabled the mother, upon settling into accommodation, which was, we understood, to be provided by a community agency, to apply to vary my orders, in essence, to enable her to seek the child’s return to her on an interim basis.

2. Before the mother made the anticipated variation application the Director-General of the Department of Community Services applied to vary my orders so that the order for unsupervised time between the mother and the child was discharged.  The effect of this application would be that the mother and the child would continue to see each other thrice weekly for two hours on a supervised basis.  In response to the Director-General's application the mother filed an amended response to the application in a case seeking the child’s return to her, dismissal of the Director-General's application, or a variation of the arrangements with the Director-General being required to deliver the child to the mother.

3. After exploring the next steps to be taken in the litigation, and upon my indication that I would make available two days, on 12 and 13 November 2008, to permit a more fulsome exploration of the child's and parties' circumstances, the mother adjourned to that date her application for the child’s return to her.  She pressed her variation to the arrangements for her and the child to see each other.  During submissions, I raised the notion that a changeover point other than G CSC for D CSC may moderate some of the risks.

4. In relation to the Director-General's application the mother submits the Director-General does not demonstrate a relevant change in circumstances.  In the alternative, that it is in the child’s best interests to continue unsupervised visits with her mother.  In support of the first proposition, the mother relies upon what is commonly referred to as the rule is Rice v Aspund (1979) FLC 90-725. This is the decision of the Full Court made well prior to the 2006 parenting amendments. It is clear that post the 2006 amendments there is now well settled authority that the rule remains operative. Edwards (2006) FLC 93-306. The point of the rule is that a party seeking to change a parenting order, whether made by consent or after a hearing, must show that there is a new factor or a change in circumstances sufficient to warrant re-consideration of the earlier parenting orders. Although the cases to which I have made reference refer to the application of the rule after the making of final orders, there is nothing in the oft quoted statement of principle from the decision in Rice v Aspund stated at 78,905-78,906 which would suggest the rule is limited in its application to orders made on a final basis. Logic demands its application to orders, whether made after a hearing or by consent, whether final or following an interim determination. The Independent Children's Lawyer did not address the mother's Rice v Asplund submission, but adopted the mother's alternate submission, that is, that it is in the child’s best interests to continue unsupervised visits. 

5. I incorporate into these reasons my orders of 4 August 2008. 

   IT IS ORDERED:

   1.I allow the Mother’s Review Application filed 13 June 2008.

   2.Pending further order that Orders 1 and 2 made by [G] Local Court on 23 November 2007 are discharged.

   3.That the Minister for Community Services shall have sole parental responsibility for the child […] born […] February 2005.

   4.That the child shall live as directed by the Director-General.

   5.That the mother shall spend time with the child as follows:

   (a)no less than three occasions weekly for two hours on each occasion at times agreed with the Director-General and upon terms and conditions imposed by the Director-General;

   (b)commencing 1 September 2008, provided the mother has commenced Domestic Violence counselling and given clear results to any request by the Director-General for drug urine tests, three unsupervised occasions weekly of three hours duration at times agreed with the Director-General.

   6.Upon the mother moving into accommodation arranged through [a community organisation] and assessed by the Department of Community Services, the mother may apply to vary Orders 4 and 5 above.

   7.That the mother is restrained from bringing the child into contact with [Mr A].   This is an order for the child’s personal protection.

   8.The mother is restrained from bringing the child into contact with [Mr Dole].   This is an order for the child’s personal protection

   9.The mother is restrained from bringing the child into contact with [Mr Simon].   This is an order for the child’s personal protection

   10.On a without admissions basis, the mother is restrained from consuming any illegal drugs or drinking alcohol to excess.

   11.On a without admissions basis, the mother attend on an urinalysis screen with a secure chain of custody within 24 hours of being requested by the Department of Community Services and provide the results to the legal representative for the maternal grandmother, the Director-General and the Independent Children’s Lawyer.

   12.Liberty to all parties to apply on 24 hours notice.

   13.That further consideration of this matter is adjourned to 9.30 am on 11 November 2008.

6. My reasons today are to be considered in the context of my reasons given on 4 August 2008.

7. I shall firstly consider whether there is a relevant change in circumstances.  Counsel for the Director-General emphasised three matters, but throughout the submissions highlighted six which, it is submitted, considered individually but certainly collectively, are sufficient to warrant reconsideration of the arrangements for the child to spend time with her mother.  These are:

   a)That on one occasion the mother failed to provide a drug screen within the 24 hour time period the orders require.  It is common ground between the parties that on 16 October 2008 Ms S, who is the Department's case worker responsible for the child’s care, requested the mother to do a urine test.   The mother said she would, but she did not complete it until 20 October 2008.  The results of this and the preceding four tests were all clear.  The point is, from the Department's perspective, that there are drugs the presence of which will disappear after 24 hours.  Thus the four day delay could be an indication that the mother failed to comply with the 24 hour request because had she done so, a positive result may have been provided.  The mother submits that she was lax but the Court would not be concerned about her failure to strictly comply in circumstances where the other four results have all been negative.

   b)That the mother has been seen driving a car in which, on one occasion, an unrelated child was a passenger.  The significance of this is that the mother is disqualified from holding a driver's licence in New South Wales and, indeed, has never had one. On an earlier occasion Ms S had spoken with the mother about the importance to the Department that the mother ensures the child is only driven in a car in which the driver is appropriately licensed.  The Department submits this exposed the child, who was a passenger in the mother's car, to an unacceptable risk of harm and, by inference, if the mother has unsupervised visits with the subject child, the Court would infer there is a similar risk to the subject child.  The mother says there is no evidence that the child has been a passenger whilst the mother was driving.  As a consequence, the submission is that the inference is unavailable.  I do not accept the latter submission, and lean more towards the Director-General's position that the Court would infer there is a possibility the mother may drive a car in which the child is a passenger.  It follows, the Director-General submits, that here is further evidence of the mother's cavalier approach to her parental responsibility towards the child and the generally irresponsible approach to her obligations as a member of the community to abide the community's rules.

   c)It is submitted that the mother has breached an order restraining her from bringing the child into contact with Mr A.  The evidence in support of this is found in Ms S’s affidavit.  There is evidence of the mother facilitated telephone contact between the child and Mr A whilst the child has been spending time with her mother. However the evidence does not reveal that the child has had face to face contact with him.

   d)That the community housing agency has not provided the mother with the degree of supports the Court understood from the evidence given on 1 August 2008 would be made available to her.  Linked with this is the assertion that the mother's accommodation arrangements post 4 August 2008 remained chaotic and that was seven weeks before the organisation made accommodation available for the mother.  As to the latter, I do not share the Director-General's concerns that the organisation took a little longer to make the accommodation arrangements for the mother than the organisation’s worker hoped.  The availability of community housing is limited, and I am satisfied that the organisation has done the best it could to make accommodation available within the broad range of time hoped for.  It is more concerning that the degree of support from the organisation to the mother is less than was anticipated.  It appears the reason for this is linked with the mother not being in organisation supported accommodation. It also appears, as Ms O'Rourke submitted, that the organisation’s worker and DoCS workers have taken some time - and I make no criticism of either - to clearly establish which agency would be responsible for providing particular supports.  From the evidence it appears the community organisation is now providing the mother now with a level of support consistent with the evidence given by the case worker on 1 August 2008.

   e)As I have commented, particular submissions were made concerning the time taken to secure the mother's accommodation.  There is nothing further to say on that point.

   f)Finally, the Department, through Counsel, expressed its continued concern that the mother is not as co-operative with the case workers as they hoped for, and which would be expected, given her stated desire that she would do anything necessary to secure the child’s return.  Although not stated in these terms, it was submitted that the mother's failure to establish a sufficiently co-operative and trusting relationship with the Department has increased the risk to the child if the child is unsupervised in her mother's care.

8. These matters must be assessed against the risk assessment I conducted in my judgment of 4 August 2008.  Considered against my findings, I am satisfied that collectively, these matters are sufficient for the Court to consider again whether the child’s time with her mother should be supervised or unsupervised. I observe that even if this was not the case, the Court has now received a 42 page report from Dr L, who was appointed the Court's expert, to investigate the child’s situation.  That report provides significant additional evidence of itself sufficient to warrant reconsideration of the child's living arrangements.

9. Turning briefly to Dr L’s report, which all parties referred to at some length this morning, its main recommendations appear to be these:

   a)That long term, the child should not be placed in out of family care.

   b)The existing arrangement for the child of living in foster care is inappropriate and steps should be taken immediately to remove her from foster care.  The child should be promptly placed with her foster maternal grandmother, Mrs Simon, the rationale for this being that, in Dr L’s view, the child is not at risk with Mr and Mrs Simon; they are strongly committed to the child’s wellbeing; and the child needs the opportunity to develop a primary attachment, in this instance with Mrs Simon.

   c)That the child’s relationship with her mother should be maintained and if there is clear evidence of sustained pro-social behaviour by the mother, eventually the child should be returned to her.  For at least the next 12 months, the child’s time with her mother should be supervised and following a review assessment in about 12 months, assuming positive results, a strategy developed linking unsupervised visits with the child’s ultimate restoration to her mother.

10. The report was released last Thursday which means the parties have only had limited time to consider its ramifications.  The Director-General was in a position to give a broad outline of its current long term plan for the child but, for obvious reasons, has not yet formulated a clearly defined plan for the Court's consideration.  In general terms, counsel advised that within two years the Director-General would hope to see the child restored to her mother's care.  Within that period, the Director-General would continue to support the mother's developing living skills and the child’s relationship with her.  It is important to note that the Director-General's plan for the child does not involve removing her from foster care and, in particular, does not involve at any point placing her with Mr and Mrs Simon.  It is the Director-General's opinion that Mr and Mrs Simon are inappropriate carers for the child and present an unacceptable risk to her.  This arises from the mother's prior allegations of child sexual abuse by Mr Simon; Mrs Simon placing undue pressure upon the mother to withdraw the child sexual abuse allegations; and the mother and Mrs Simon’s difficult personal relationship which, it is submitted, has features consistent with domestic violence. Thus the point which cannot be overlooked is that the Director-General's plan for the child does not address a key plank of Dr L’s evidence, namely the importance to the child, of being able to primarily attach, in his view, to Mrs Simon or, on any view, to somebody.

11. The mother seeks the child’s return.  At my request, Dr L’s report was provided to Mrs Simon.  It was my hope that having read it, Mrs Simon would become involved in the proceedings.  The reason for this is so that the Court could have available to it the options referred to at paragraph 117 of Dr L’s report.  Whether or not Mrs Simon is ultimately successful is an entirely matter, but it was important for the child that all of the possible options were available to the Court.  Mrs Simon has indicated that she is willing to assume the child’s care in the short term and, as I understand it, if necessary, long term.

12. The Independent Children's Lawyer supports the child’s immediate placement with Mrs Simon and long term return to the mother.

13. As I have commented, the Director-General's proposal does not address the critical issue the mother raises, which concerns Dr L, about the child having no primary carer to whom she can attach. Dr L discussed the mother's history in some detail and, from it; one can see the short and long term damage that can and usually is done to children when they are deprived of an effective primary attachment figure from two years to six years of age.  The damage to a child's emotional and psychological development is pervasive and long lasting. There is no doubt that at this point of time the types of damage that have been done to the mother in her childhood are, albeit in a different way and for different reasons, being inflicted upon the subject child.  This is a real risk which needs to be addressed with priority.

14. Against that risk, for the limited purposes of this exercise, the Court must evaluate the risk to the child if the Court maintains the existing arrangement for unsupervised time with her mother.  I am satisfied that in some respects, the evidence the Director-General relies upon today shows a slightly increased risk to the child if she is with her mother unsupervised than I assessed on 4 August 2008.  It was not within my contemplation on 4 August 2008 that there was a risk to the child that her mother may drive whilst unlicensed.  The point is not so much the presence or absence of a licence, although that is relevant; the point is more that the mother has never had a driver's licence, and as the evidence shows, one would have to be concerned about her driving ability.  The evidence contained in the Director-General's material suggests that there is good reason to be concerned that the mother does not have the necessary skills to drive, whether that is licensed or unlicensed.  The absolute embargo on the mother allowing the child to have contact with Mr A has been breached. 

1. Countermanding those matters are a number of matters which moderate the extent of the increased risks.  These include:

   a)Five drug screens, all of which are clear.  The number of drug screens, combined with the results, and the mother's frequent contact with Departmental workers which generally are free from complaint that she appears drug affected indicates that it is likely the mother remains drug free;

   b)The mother is working with a community organisation to improve her parenting skills and does now have appropriate accommodation;

   c)The mother's interaction with the child continues to be positive and appropriate;

   d)Dr L made a detailed assessment of the mother and child’s relationship, and I incorporate into these reasons paragraphs100 and 101 of his report.

2. Dr L says this is a difficult case.  With these observations I agree.  At this point in time I do not know whether or not Mr and Mrs Simon will assume the child’s care.  This is a significant variable.  It may be, as the Director-General submits, that the two day hearing on 12 and 13 November 2008 will reveal that the child would be exposed to an unacceptable risk if she is placed in Mr and Mrs Simon’s care.  The point of this is that there is an urgent need for the child to address the attachment issues discussed in Dr L’s report.  In the short term, the risk to the child of continuing emotional and psychological damage if she is unable to maintain a relationship with her mother, the mother being at this point the only available person to whom the child has at least a reasonable attachment is, in my view, the gravest risk to the child.

3. Overall, the risks to the child, taking into account the additional evidence provided since 4 August 2008, suggests that the Director-General's application should be dismissed and the child able to continue to have three three hourly unsupervised visits with her mother.  This involves a continuing risk to the child of the type referred to in my judgment of 4 August 2008 but that risk must be balanced with the risk of emotional and psychological harm to which I have earlier made reference.

4. Overall, the benefits to the child of maintaining the thrice weekly three hourly visits for the child with her mother, unsupervised, outweigh the detriments.  I accept the essential premise of the mother's submission that the quality of the interaction between the mother and child is likely to be superior in a more normal setting, namely the home setting, than doing the best that it can in the proffered supervised setting. Apart from anything else, there is obvious advantage of the mother being able to more effectively tend to the child's needs in the home setting than she can in a supervised setting.

5. The proposal that the Director-General arranges for the child to be delivered to the mother's home has an obvious advantage.  In particular, it minimises the prospect that the mother may feel compelled to drive whilst the child is with her. The Director-General submits it does not have the resources to comply with such an order.  Although I have some difficulty with that submission, given that the Director-General collects the child from foster placement; would propose to supervise her whilst with her mother; and then return her to the foster placement I do not propose to cavil with the Director-General's stance.

6. In my view there is some utility in changeover still taking place at a Departmental office where presumably skilled child protection workers can see the mother before the child goes to her.  It provides an opportunity for the child protection workers to form their own assessment as to the mother's state of sobriety, for example; her emotional stability; and to be satisfied that the unsupervised visit should proceed. If the changeover venue is D CSC rather than G CSC, the changeover point is within 10 to 15 minutes of the mother's home and, as I understand it public transport, which is lacking near to the G office, is more readily available at D. 

7. On balance, I am satisfied that it is in the child’s best interests to change the venue from G to D and to otherwise dismiss the Director-General's application.  For similar reasons other than as I have indicated, I am satisfied that the mother's other application for variation, being the ones I have considered today, should be dismissed.  For these reasons, I make the orders identified at the start of this judgment.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan

Associate: 

Date:  4 March 2010