Byrne and Smith and Anor (No.2)
[2009] FMCAfam 1115
•23 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BYRNE & SMITH & ANOR (No.2) | [2009] FMCAfam 1115 |
| FAMILY LAW – Parenting – drug and alcohol issues – expert evidence about CDT testing – urine testing – hair testing – protecting children from harm – intervention by Direct-General of the Department of Community Services – children placed in care of paternal grandmother. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA |
| Hogan& Hogan [2008] FMCAfam 1219 |
| Applicant: | MS BYRNE |
| Respondent: | MR SMITH |
| Intervenor: | DIRECTOR-GENERAL OF THE DEPARTMENT OF COMMUNITY SERVICES |
| File Number: | SYC 3151 of 2008 |
| Judgment of: | Altobelli FM |
| Hearing dates: | 21-25 September 2009 |
| Date of Last Submission: | 25 September 2009 |
| Orders Made: | 30 September 2009 |
| Delivered at: | Sydney |
| Delivered on: | 23 October 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Carr |
| Solicitors for the Applicant: | Athena Touriki Solicitors |
| The Respondent: | Self Represented |
| Counsel for the Intervenor: | Mr Moore |
| Solicitors for the Intervenor: | Crown Solicitor |
| Counsel for the Independent Children’s Lawyer: | Ms Gillies |
| Solicitors for the Independent Children’s Lawyer: | Hamish Cumming Family Lawyers |
ORDERS MADE ON 30 SEPTEMBER 2009
THE COURT ORDERS BY CONSENT THAT:
Orders be made today without delivery of reasons.
The time for filing of an appeal not commence until written reasons for judgment are delivered.
THE COURT NOTES THAT:
Written reasons for judgment are expected on or before 30 October 2009.
THE COURT ORDERS THAT:
That the Minister for Community Services (“the Minister”) have sole parental responsibility for the long term care, welfare and development of the children [X] born in 2002 and [Y] born in 2003 (“the children”).
That Ms S (“the paternal grandmother”) have sole responsibility for the day to day care, welfare and development of the children.
That the children live with the paternal grandmother.
That the children spend time with the mother on a minimum of twelve (12) occasions per year, such time to occur as follows:-
(a)In Tasmania unless otherwise agreed;
(b)Supervised by a person or agency nominated by the paternal grandmother and approved of by the Director General of the Department of Human Services (“the Director General”) or her delegate;
(c)That the mother be solely responsible for any cost associated with supervision.
(d)Unless otherwise agreed the children’s time with a parent will not be more than once per month, will be scheduled to minimise disruption to the children’s education, and will be for no longer than one week during school holiday periods and four days and three nights during school terms.
That the children spend time with the father on a minimum of
12 occasions per year, such time to occur as follows:-(a)In Tasmania unless otherwise agreed;
(b)Supervised by a person or agency nominated by the paternal grandmother and approved of by the Director General or her delegate;
(c)That the father be solely responsible for the cost of such contact.
(d)Unless otherwise agreed the children’s time with a parent will not be more than once per month, will be scheduled to minimise disruption to the children’s education, and will be for no longer than one week during school holiday periods and four days and three nights during school terms.
That the paternal grandmother provide the following Undertakings to the Court in a form prepared by the Independent Children’s Lawyer in consultation with the Intervenor:
(a)To not allow the father to reside in the home where the children may from time to time reside without the written consent of the Director General or her delegate; and
(b)To not allow contact between children and the father except as provided for in these Orders or as otherwise approved of by the Director General or her delegate in writing; and
(c)To not denigrate the parents or either of them in the presence or hearing of the children or at all; and
(d)That she will engage with support services for herself and the children as directed by the Director General or her delegate; and
(e)To keep the Department of Human Services (“the Department”) informed of her residential address and contact numbers;
(f)To notify the Department in the event that either parent attempts to spend time with the children other than in accordance with these Orders or approved of by the Department.
That the parents and each of them be, and hereby are, restrained from:-
(a)Consuming alcohol and/or illegal drugs during their time with the children or in the 24 hours prior to such time;
(b)Denigrating the other parent, their family and/or partners in the presence or hearing of the children;
(c)Denigrating the Department in the presence or hearing of the children;
(d)Doing any act or saying anything which may undermine the children’s placement with the grandmother.
(e)Allowing any other person to do any of the above whilst in the presence or hearing of the children.
The Independent Children’s Lawyer not be discharged for a period of six (6) months from the date that reasons for judgment are published and in that period the Independent Children’s Lawyer take all reasonable steps to facilitate the children spending time with the mother and father in accordance with these orders.
If any issue arises in relation to the interpretation, implementation or enforcement of these orders within 24 months of the date of publication of reasons for judgment in this matter such that the matter needs to be relisted, the matter is to be relisted before Federal Magistrate Altobelli on seven (7) days notice if reasonably possible.
IT IS NOTED that publication of this judgment under the pseudonym Byrne & Smith & Anor (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 3151 of 2008
| MS BYRNE |
Applicant
And
| MR SMITH |
First Respondent
| DIRECTOR-GENERAL OF THE DEPARTMENT OF COMMUNITY SERVICES |
Intervenor
REASONS FOR JUDGMENT
Introduction
This is a tragic case about two children, [X] aged 7 and [T] age 6. The main issue is about protecting them from the physical or psychological harm that they might be exposed to whilst in the care of either their mother or father. Both the father, who is 39 years old, and the mother, who is 41 years old, have issues relating to the consumption of drugs and alcohol. The children are presently in the care of the Director-General of the Department of Community Services (NSW). Section 60CA of the Family Law Act (“the Act”) requires me to have regard to the best interests of these children as the paramount consideration, in deciding whether to make a particular order. In a case like this one, the best interests of the children may be served by adopting the least of the worst options.
Background
Matters of background are set out in the Reasons for Judgment I published in this case on 15 April 2009 following an interim hearing on 26 March 2009. The citation is [2009] FMCAfam 338. I incorporate those reasons into these reasons for judgment. It is important to note that the issues in this case were clearly identified and highlighted in my earlier judgment. Each of the parents was, in effect, given a second chance and given the opportunity to provide evidence to the court at a final hearing about matters relating to them. The interim orders provided for the father to spend time with the children on a supervised basis once per month on a Saturday and Sunday, between 10am and 4pm. He was required to give undertakings regarding alcohol consumption during and prior to the time spent with the children. The mother was to spend unsupervised time with the children on a gradually increasing basis, beginning with two hours per week for five weeks, then five hours per week for six weeks, then 8 hours on Saturday and Sunday each week thereafter, with the changeovers to be supervised by a service arranged by the Director-General. The children were in foster care during this period. Both parents were required to give written undertakings as a condition of these orders. The mother was also ordered to undergo urinalysis, hair testing and CDT testing as requested by the Independent Children’s Lawyer and comply with all referrals to support services as directed by the Director-General. The mother was restrained from consuming alcohol for 24 hours prior to and during spending time with the children.
By the time of final submissions on day five of this hearing, the parties to this case sought the following orders. I provide a summary only.
The applicant mother sought an order for sole parental responsibility, for the children to live with her, and to have supervised contact with the father. She proposed that the Independent Children’s Lawyer (ICL) remain appointed for a further period of 12 months during which both parents would continue to undertake urinalysis, hair and CDT testing as required by the ICL.
The respondent father proposed that the children live with him in Tasmania, that he have sole parental responsibility, and that the mother have supervised contact in Tasmania.
The Director-General proposed that the Minister for Community Services have sole parental responsibility for long-term matters, that the paternal grandmother have sole parental responsibility for day to day matters, that the children live with the paternal grandmother, and spend time with each parent in Tasmania.
The Independent Children’s Lawyer proposed a further interim order whereby the parents have equal shared parental responsibility, the children live with the mother and have contact with the father. There were a number of important conditions and restraints in this proposal relating to where the children would go to school, ongoing engagement by the mother with support services, ongoing monitoring of drug and alcohol issues etc. Late on the final day and during submissions the mother indicated through her counsel that she adhered to this proposal.
There was considerable expert evidence in this case, all of which will be discussed below. It was apparent that some matters were not in contention because the evidence overwhelmingly established these things. For example the case of both parents was conducted on the basis that each had struggled with past drug and alcohol consumption issues, though each argued there were no current and no future issues in this regard. Also, even the mother’s case was conducted on the basis that her relationship with Mr B, which she says ended in July 2009, was not one which was in the best interests of the children. Indeed the evidence indicates that it was a relationship that involved the consumption of drugs and alcohol and was violent at times. From the children’s perspective it was a destructive relationship. That is the conclusion I draw from the available evidence. Under the circumstances I need go no further about this, as the mother’s case conceded that the relationship was not in the best interests of the children.
As the main issue in this case was making an order that protected the children from harm, and as I have indeed found that it was necessary to protect the children from harm, and it is necessary to place the children in the care of a non-parent, this means that there are several non-issues. Both parents, for example, raise issues against each other about family violence, parental attitudes and capacity, willingness to encourage and facilitate ongoing relationships etc. In a case where I find that neither is a suitable carer for the children, these matters do not need much attention and indeed will not receive much attention in these reasons. The mother raised historical issues about decisions made by officers of the Director-General during the period when the children were in the Minister’s care. The relevance of such matters is so minimal as to not require attention in these reasons.
Chronology
I was provided with a chronology by counsel for the Director-General. I reproduce the same below as it is a useful overview of the key dates and events in this case. I am satisfied that each of the events referred to are supported by the evidence, and, to that extent, I make findings in this regard. Most of the events were not challenged by either parent, in any event.
1968 Ms Byrne (“the mother”) born – currently aged 41
1970 Mr Smith (“the father”) born – currently aged 39
2000 Parents commence residing together as flatmates
May 2001 Mother states parties commence defacto relationship.
02/03/2002 Father states that the parents agreed to enter into a committed relationship.
March 2002 [X] (“[X]”) born – currently aged 7 years & 6 months
2003 Family relocate to Brisbane. No date is given, however father states the parties relocated shortly before the birth of [Y].
June 2003 [Y] (“[Y]”) born – currently aged 6 years & 3 months
Late 2003 Father states the family relocated back to [B]
10/07/2005 Children first become known to Department of Community Services.
2006 Father states the family relocated to Hobart. Mother and children return to Sydney in or about late 2006 and the father follows shortly thereafter.
May 2007 Parties separate. Father relocates to Darwin.
August 2007 Mother commences relationship with Mr B
September 2007 Mr B commenced cohabiting with mother and children
11 December 2007 Mother contacted by intake caseworker Ms D and is referred to drug and alcohol counselling.
Early 2008 Father relates to [J] (near Lismore)
13 February 2008 Mother allegedly approaches principal of [B] School and discloses that Mr B is violent and has a drug problem.
18 February 2008 Mother contacted by caseworker Mr M and during telephone calls admits that she has not followed through with referral to drug and alcohol counselling
17 March 2008 Mother further contacted by caseworker Mr M. She informs him that she is engaged with services and declines a referral to the early intervention program.
9 April 2008 Mother contacted by caseworker Ms M and referred to domestic violence counselling.
4 May 2008 Father allegedly assaulted by Mr B
5 May 2008 Father removes the children from [B] School and returns with them to [J]
14 May 2008 Mother states that Mr B vacated her home and that she considered the relationship to be over at this point. Mr B subsequently returns to New Zealand.
16 May 2008 Parents participate in a Legal Aid Family Law Conference. Interim agreement reached providing, inter alia, that the children would return to the care of the mother provided that she enters into undertakings including that the children not be brought into contact with Mr B.
29 May 2008 Mother files Initiating Application (Family Law) in Federal Magistrates Court together with signed undertakings.
23 July 2008 Interim orders by consent (as agreed at mediation). Orders signed 16 May 2008.
25 August 2008 Mr B returns to Australia and resumes a relationship with mother
September 2008
(note: chronology suggests this occurred in August 2008)Father states that he received a call from [Y] who stated words to the effect of “Why won’t you let mummy have [Mr B] back? We love [Mr B], we want [Mr B] back”. Father states that as a result of the phone call he agreed to Mr B retuning to the mother’s home
1 September 2008 Mother and Mr B attend [B] School seeking to enrol his daughter. School principal raises concerns that the mother is in breach of family law orders.
25 September 2008 Mother attends function at [B] School whilst intoxicated and when asked by staff to cease consuming alcohol, she threatens self harm and departs the school without the children. Police and Department of Community Services contacted.
Helpline staff attend [B] School and contact father who consents to a temporary care agreement and children placed with family friends.
Mother located by police and transported to hospital for assessment.
29 September 2008 Father’s undertakes urinalysis which subsequently tests positive for cocaine, marijuana and alcohol 6 October 2008 Mother commences at [H] (residential drug and alcohol rehabilitation facility). Discharges herself after approximately two days.
14 October 2008 Children placed with Departmental foster carers [names omitted]. 14 November 2008 Mother makes complaint to police in relation to her fears of the father
4 February 2009 Children assumed into the care of the Director General of the Department of Community Services (as it then was) pursuant to section 44 of the Children and Young Persons (Care and Protection) Act 1998
6 February 2009 Director General intervenes in proceedings.
Interim Orders by consent, providing inter alia that the children be placed in the parental responsibility of the Minister for Community Services.
Order for the appointment of an Independent children’s lawyer.
8 March 2009 Family Report authored by Dr Julianne Greenfield
16/03/2009 Interim hearing
15/04/2009 Further interim Orders following defended hearing.
Order appointing George Klein as single expert
21/04/2009 Date of Paediatric assessment report undertaken by out of home care clinic at [S] Hospital
Mid-June 2009 Mother relocates from [B] to [N] and obtains accommodation close to children’s foster placement.
30/06/2009 Children’s foster carer informs Department that the children reported seeing the mother and Mr B outside the mother’s residence when they were driving past.
10/07/2009 Mother’s first appointment with George Klein. She reports to him that she consumed more alcohol the night prior following Mr B turning up at her home with “a load of grog” resulting in her consuming approximately 10 standard drinks.
19/07/2009 [Y] undergoes emergency surgery at [S] Hospital for ruptured appendix 26/07/2009 [Y] discharged from hospital
13/09/2009 Expert report in relation to mother authored by George Klein
15/09/2009 Expert report in relation to father authored by George Klein
21/09/2009 Matter listed for final hearing
Evidence – Overview
The affidavit evidence relied on by each of the parties in this case comprised:
a)Affidavits filed on behalf of the mother:
i)Ms Byrne (mother), sworn 10 March 2009, 26 March 2009, 7 September 2009; and
ii)Dr W, sworn 25 March 2009;
b)Affidavits filed on behalf of the father:
i)Mr Smith (father) sworn 4 September 2009;
c)Affidavits filed on behalf of the Director-General:
i)Ms F, sworn 4 March 2009, 7 September 2009;
ii)Dr P, sworn 18 September 2009;
iii)Ms H, sworn 24 March 2009;
d)Evidence of the Independent Children’s Lawyer:
i)Family Report prepared by Dr Greenfield, released 9 March 2009;
ii)Reports of Mr Klein, dated 13 and 14 September 2009.
Oral Evidence was given by:
a)Mr George Klein, behaviour scientist;
b)The mother;
c)The father;
d)The paternal grandmother;
e)Dr W, the mother’s treating physician;
f)Ms H, the principal of [B] School;
g)Dr Greenfield, the Regulation 7 Family Consultant;
h)Ms F, an officer of the Director-General.
I also had available to me a considerable volume of exhibits. All parties also agreed that the exhibits presented at the interim hearing could be taken into account in the present proceedings.
Applicable Law
In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(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.
At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) 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
(b) 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
(c) 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.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
Parenting and drug addiction
In Hogan and Hogan [2008] FMCAfam 1219 (14 November 2008) I made the following general observations:
32. In a case where it is alleged that one or both parents, or any person involved in the care of a child, are addicted to drugs, this is highly relevant because, potentially:
a) It might undermine or even destroy the meaningful relationship that exists between child and parent (s.60CC(2)(a)); and/or
b) It creates a need to protect the child from physical or psychological harm from being subjected to, abuse, neglect, or family violence attributable to the drugs (s.60CC(2)(b)); and/or
c) It adversely impacts on the nature of the relationship of the child with the drug dependent person (s.60CC(3)(b)); and/or
d) It impairs the capacity of that parent or person to provide for the needs of the child: (s.60CC(3)(f)); and/or
e) It demonstrated a poor attitude to the child and to the responsibilities of parenthood (s.60CC(3)(i)); and/or
f) It might lead to situations of family violence (s.60CC(3)(j)).
33. From a social science perspective, parenting and drug addiction are a potentially dangerous mix for the child. Drug dependence creates a pre-occupation that is inconsistent with responsible parenthood. The compulsion for drugs is not inconsistent with parental love, but is often inconsistent with the ability to meet the needs of children. Choices are often made that compromise the ability of parents to protect their children. Funding and maintaining a drug habit creates instability in family life. Children can often become secondary priorities, and thus vulnerable to harm. Routines are often disrupted. Sometimes drug dependency leads to exposure to criminal behaviour and the criminal law. Even if a parent is physically present for a child, drug dependence often leads to emotional unavailability for children, which is sometimes the most damaging impact. In short, parental capacity is grossly compromised. (See generally Barnard M., Drug Addiction and Families, London: Jessica Kingsley; 2007.)
34. This research is background material to my judgment. It is not evidence. It is not material in respect of which I take judicial notice, and I make no findings of fact as a result of this material. It is background material, and it assists in understanding the expert evidence provided by the Family Consultant. One also lives in hope that parents might learn from it.
I believe these general comments apply as much to this case as they did in Hogan. Alcohol addiction is a form of drug addiction.
The Expert Evidence About Drug and Alcohol Consumption Issues
As indicated above, the main issue in this case was the extent to which the children needed to be protected from harm as a result of being subjected to, or exposed to, abuse or neglect arising out of the consumption of alcohol and/or drugs by the parents. The expert evidence about the parents’ recent consumption of alcohol and drugs was considerable and included:
a)Biomedical data consisting of blood alcohol breath testing results, blood samples for liver function and Carbohydrate Deficient Transferrin (CDT) test results and urine drug screen test results; and
b)
Two reports of Mr George Klein, Behavioural Scientist, dated
13 September 2009 in relation to the mother, and 15 September in relation to the father; and
c)The oral evidence given by Mr Klein on 21 September 2009; and
d)The affidavit evidence of Dr P, Consultant Pharmacologist, sworn 18 September 2009; and
e)Exhibit INT2, a letter dated 21 September 2009 from Ms S, Senior Toxicologist, Victorian Institute of Forensic Medicine.
The reports of Mr Klein provide a useful summary of the bio-medical data relating to each of the parents.
In relation to the father, blood alcohol when measured by breath analysis at interviews was nil. Subject to a few irregularities that are not relevant in the present context, the recent blood test results provided no biomedical evidence of excessive consumption of alcohol. CDT testing was within limits. In relation to urine testing Mr Klein notes at page 11 of his report:
Mr Smith also advised that he had been providing urine samples for drug screening until about 3 months prior to initial interview and that he had provided 25 samples on a frequency of at least twice per week over several months. This author notes the summary of urine drug screen test results provided by Ms F in her affidavit dated 4.3.09. In summary, Mr Smith is reported to have provided 26 samples between 29.9.08 and 13.1.09. Of these, samples for 29.9.08 (cannabis, cocaine and alcohol), 1.10.08 (cannabis), 3.10.08 (cannabis), 9.10.08 (cannabis) and 10.10.08 (cannabis) were positive for intoxicants. [It should be noted that a person may return a positive result for cannabis in urine drug screen for up to 6 weeks or longer after cessation]. Samples for 7.10.08, 15.10.08, 17.10.08, 20.10.08, 22.10.08, 24.10.08, 28.10.08, 2.11.08, 4.11.08, 27.11.08, 1.12.08, 9.12.08, 10.12.08, 15.12.08, 21.12.08, 23.12.08, 28.12.08, 31.12.08, 9.1.09 and 13.1.09 were all returned negative. It is further reported that
Mr Smith failed to attend for testing on 8.10.08, 27.10.08 and 31.10.08.
In relation to the mother, blood alcohol when measured by breath analysis at interviews was nil. Mr Klein examined the liver function and CDT test results and noted that out of the 15 CDT test results undertaken between 14 January 2009 and 29 July 2009, elevated test results were reported for samples collected on 14 and 30 January 2009, 18 February 2009, 26 June 2009, 10 and 28 July 2009. In relation to these results Mr Klein comments at page 13 of his report:
In the absence of additional clarity about the sensitivity and specificity of these tests and assuming that the results are indicative this author would infer that the results suggest excessive intake of alcohol in January and February and again in late June and July of 2009.
It is apparent that Mr Klein’s comments above are guarded. The explanation of this is found in the passage of the report at page 13 of his report:
This author notes correspondence from Dr A, QML Pathology to Dr W dated 10.6.09 in which it is noted that QML laboratories utilise high performance liquid chromatography (HPLC) as opposed to immunoassay utilised by Sullivan and Nicolaides laboratories. Dr A comments that QML “has performed a series of assays on this patient [Ms Byrne] and on no occasion was a genetically-determined tranferrin variant noted”. It is further observed that the most recent test on 8.5.09 “was relatively reassuring with respect to the possibility of recent or ongoing excessive alcohol use” and that “the subject had undergone testing at intervals no greater than a fortnight” with most recent results falling “below the 95th percentile for the teetotaller and lightly drinking population”. Dr A adds that the 2 previous results “were a little above the 95th percentile for that population but were within the range best classed as high normal and were not indicative of a probable recent or ongoing excessive alcohol use”. Dr A notes a disparity between QML and Sullivan and Nicolaides in relation to results from samples collected on 1.5.09 where the former laboratory found a result of 1.5% and the latter found 3.1% [above normal range]. Dr A was “not certain of the interpretation of S&N’s quoted reference range”. However he reiterates that HPLC “as performed by QML is the reference method” and he comments that “on no occasion was a result indicative of probable recent or ongoing excessive alcohol us found…the transferrin pattern is normal – there is no genetic anomaly which might otherwise have accounted for apparent difference between the methods”.
This is a significant issue which will be discussed in further detail below. In short, however, the CDT tests varied based on whether the immunoassay method was used, or high performance liquid chromatography (HPLC). The former showed elevated results, the latter did not.
In relation to urine drug tests for the mother. Mr Klein notes at pages 13 and 14 of his report:
This author also notes results from urine drug screen test from samples collected on 7.5.08 and 19.1.09. Both tests report nil detection of methadone metabolites, opiates, sympathomimetic amines, benzodiazepines, cannabinoids, barbiturates and cocaine metabolites. It is noted that the latter test was deemed to be dilute ie creatinine was measured at 0.8 mmol/L below the threshold of 1.8mmol/L and it is noted that “this may indicate sample dilution in some individuals”. In her affidavit Ms F of NSW DOCS provided the following summary of urine drug and alcohol screen test results pertaining to samples provided by
Ms Byrne. Samples for 9 occasions were negative - 29.9.08, 1.10.08, 27.10.08, 29.10.08, 28.11.08, 3.12.08, 30.1.09, 5.2.09 and 23.2.09. Samples for 6 occasions were negative but low in creatinine concentration suggesting possible dilution - 13.12.08, 22.12.08, 24.12.08, 5.1.09, 7.1.09 and 14.1.09. Ms Byrne is reported as failed to attend on 11 occasions - 27.11.08, 1.12.08, 5.12.08, 8.12.08, 10.12.08, 9.1.09, 15.1.09, 19.1.09, 21.1.09, 22.1.09 and 2.2.09.
A common feature of the urine testing for both the mother and father is a failure to attend for testing – for the father three times (the last time 31 October 2008), and for the mother eleven times (last time 2 February 2009). A significant feature of the father’s results was positive results for intoxicants, the last of which was 10 October 2008. A significant feature of the mother’s results was the low creatinine concentrations suggesting possible dilution, the last of which was on
14 January 2009. These dates are significant when one considers that the proceedings were initiated in this court in May 2008, and the parents both consented to an order that neither consume alcohol to excess or non-prescription/illegal drugs at all whilst caring for the children.
Dr P’s affidavit annexes her report dated 16 September 2009. She is a consultant Pharmacologist with the NSW Police Service Clinical Forensic Medical Unit in Sydney. Her report, though short, is significant. She states at page two:
Information received includes CDT test results for Ms Byrne collected on 14/1/2009, 30/1/2009, 18/2/2009, 1/5/2009, 13/5/2009, 11/6/2009, 10/7/2009 and 28/6/2009. All of these were tested at Sullivan Nicolaides Laboratory allegedly using immunoassay techniques.
Two further sample was obtained, one on 2/4/2009 the other on 1/5/2009, which were analysed at Symbion Laverty Pathology. These were allegedly analysed using HPLC.
Samples were also taken from Mr Smith on the 15/1/2009, 15/6/2009, 30/6/2009, 14/7/2009 and 30/7/2009 and these sample [sic] were tested for CDT by Hobart Pathology.
There were two reports provided from the pathology laboratory, one from Dr K and one from Dr A.
Based on my specialised knowledge, and relying on the above information, my opinion is as follows:
1. All of Mr Smith’s CDT results were within the normal range. This there is no firm indication that he was consuming excessive amounts of alcohol.
2. I agree with Dr A that HPLC is viewed as the “gold” standard in analytical techniques and that immunoassay methods are not as accurate or specific. There is evidence for this in that
Ms Byrne had a samples [sic] taken on the 14/1, 30/1, 18/2 and 1/5 which all analysed by immunoassay and indicated levels above 3 (between 3.1 and 3.5) whereas a sample taken on 2/4 and analysed by HPLC, only indicated a level of CDT of 1.8. Furthermore, one sample taken on 1/5/2009 and analysed by immunoassay indicated a CDT level of 3.1 whereas another sample taken on the 1/5 and analysed by HPLC indicated a CDT level of 1.5.
These results indicated that routinely, immunoassay methods indicated CDT levels above the reference range whereas samples taken in the same time period but analysed by HPLC fall well within the reference range.
Given this discrepancy I would be of the view that the immunoassay result are not specific enough for CDT to be able to draw any sort of conclusion about Ms Byrne’s pattern or extent of drinking.
3. IN summary there are no reliably results to confirm that either Ms Byrne or Mr Smith were abusing alcohol during the period of testing.
In short the CDT test results for the mother showing elevated results were unreliable because they were carried out using immunoassay techniques. The “gold” standard in analytical techniques was HPLC, and this testing relating to the mother was unremarkable.
In his oral evidence Mr Klein was referred to Dr P’s evidence, accepted this, and stated at page 3 of the transcript of the evidence: “I would have to say this report is very sobering indeed”. Indeed he later conceded that having regard to this, he had seen no biomedical evidence of problematic consumption of alcohol or other intoxicants. Mr Klein explained that he believed HPLC had “only been recently adopted in Australia”
This evidence may well cast doubts on the reliability of CDT tests using the immunoassay technique as opposed to HPLC. I acknowledge that I was highly critical of the mother at paragraphs 38-41 of my reasons in the interim parenting proceedings ([2009] FMCAfam 338). This criticism was based on CDT test results which must be regarded with great caution now. CDT testing which is based on HPLC remains a useful test. Indeed Dr P’s affidavit refers to a letter dated 10 June 2009 to Dr W, the mother’s treating doctor, from Dr A, Director of Toxicology at QML Pathology, and to an information sheet produced by Dr A for doctors using QML. The latter explains how CDT testing using HPLC works:
For in excess of ten years prior to the week commencing 9th March, 2009, we performed CDT testing using a commercial immunoassay – Tina-quant. The interpretation ranges were quoted by the supplier but were extensively investigated by ourselves and modified to accurately fit the Australian population.
From Wednesday 11th March, 2009 onwards, we perform the assay using high-performance liquid chromatography (HPLC), a method which is held to be the reference method. Prior to the change-over, we compared a number of samples assayed using both assays as well as using the method used by Concorde Hospital Laboratory (which is the same as that used by Sullivan, Nicolaides & Partners here in Queensland).
HPLC yields results which are lower than the older method (because it does not include any trisialotransferrin in the quantitation) and it also indentifies abnormalities in the transferring protein itself which may change the interpretation of results. These changes in the past were not detected.
The threshold levels which we recognise are:
CDT Percentage
Immunoassay Method
HPLC Method
Low CDT
below 2.7%
below 1.7%
Borderline
2.7-3.0%
1.7-2.5%
Elevated CDT
above 3.0%
above 2.5%
A low CDT level is seen in 95% of patients who are abstainers or who take only a “light social intake” of alcohol averaging no more than an average of 20 grams of alcohol a day averaged over the 2-3 weeks up to the time of sample collection.
Similarly it does not respond to a single heavy drinking “binge” lasting a day or less.
Note too that a small percentage of light drinkers and abstainers have levels above the “low CDT” range and this is not pathological in its own right. This is a variant of normal. However it is exceptional for a subject who is not drinking to excess to have a CDT level which falls within the “elevated CDT” range.
Now turning to subjects drinking to excess, we are still determining the exact percentages applicable to the new assay but I can speak with authority on the older assay. It is likely that HPLC will have figures which are comparable to the old.
Approximately 50% of heavy drinkers (subjects taking an average of 60 or more grams of alcohol a day averaged over the previous 2-3 weeks) will have an elevated CDT. However some subjects are much more tolerant of alcohol than others and we see occasional males who can consume up to 100 grams of alcohol a day before they produce an elevated CDT. This probably reflects the known differing tolerances to alcohol and different rates of alcohol clearance within the normal population.
I am also aware of some subjects, predominantly females and occasional young males who develop an elevated CDT with consumptions of alcohol of below 60 grams a day but above 20 grams a day. This group appears unusually sensitive to the effect of alcohol on the liver.
It is significant that CDT testing does not necessarily identify binge drinking, and will not identify a single heavy binge lasting a day or less. Mr Klein’s report records that the mother told him she had consumed 10 standard drinks on the night prior to her initial interview with him on 3 July 2009. In his oral evidence Mr Klein clarified this and indicated it was the night before the second interview on 10 July 2009. She reported to him that she had been drinking with Mr B until one or two in the morning of the day of the interview. Mr Klein agreed in his oral evidence that this was binge drinking, that the mother gave a history of binge drinking commencing at university, and that he regarded this as problem drinking for the mother. Binge drinking would not necessarily be detected by CDT testing. There are no CDT tests using HPLC relating to the period 9-10 July 2009 but, interestingly, the results of samples collected on 10 and 28 July 2009 using immunoassay do reveal elevated results, and the expert evidence does seem to indicate that the tests would capture consumption in the prior two to three week, though average alcohol use, but not a single heavy drinking binge.
Thus, despite the supportive biomedical evidence relating to the mother it is clear, firstly, that it does not exclude the possibility that the mother was binge drinking and, secondly, there is clear evidence that the mother did binge drink between 9 and 10 July 2009. Indeed her binge drinking session concluded on a day when she was providing a blood sample for a CDT test and also seeing Mr Klein, both for the purposes of these proceedings.
Both parents also gave hair samples for the purpose of testing. Certificates of Analysis prepared by the Victorian Institute of Forensic Medicine were provided as part of the Director-General’s case. The mother provided an 8cm length of hair that enabled segmental analysis in seven segments. The father provided a 13 cm length of hair and a segmental analysis in seven segments was also undertaken. In each case hair samples were taken on 3 September 2009, were received by the Institute on 7 September 2009, and the Certificates are dated
17 September 2009. The analytical results indicated that common drugs of abuse (including amphetamine and methamphetamine) were not detected. It was common ground that the hair testing effectively covered the seven month period prior to 3 September 2009. This is consistent with my understanding of hair testing evidence: Roth & Roth [2008] FMCAfam 781. Exhibit INT2, a letter from the Institute confirmed that the drug ethanol was not amongst the common drugs of abuse tested, and that the institute does not have a validated method which detects ethanol and related metabolites of ethanol in hair. For all practical purposes this means that hair testing will not detect extensive alcohol consumption.
Mr Klein was, of course, asked to provide an opinion about drug and alcohol issues relating to the parents.
In relation to the mother he was firstly asked about whether she was suffering from a current dependency on alcohol or any other drug. He could not provide a definitive response to this question having regard to the mother’s denials and the biomedical data. However he stated at p.18 of his report:
There is a clear and lengthy history of very problematic drinking with a range of serious to severe adversities attending such drinking. Ms Byrne was quite candid that she has been a very problematic consumer of alcohol. She would appear to have a hight susceptibility to reinstatement of problem drinking given a combination of significant stressors. If, as she claims, she has been drinking in a very controlled and limited manner, this would suggest some level of successful self regulation of her drinking. But, as she acknowledged, when Mr B came to her home she consumed a large quantity of alcohol on the night before initial interview.
Secondly he was asked to comment on a number of factors assuming he found the mother to be suffering from a current dependency:
Level of impairment that this has on her daily functioning: In the absence of clarity regarding current dependence upon alcohol this author will comment on most recent history of problem drinking. This author would find it difficult to clearly disentangle the impact of problem drinking from the impact of depression on Ms Byrne’s daily functioning. It would appear that in 2007 and 2008 Ms Byrne was compromised in regard to her work performance, leading eventually to the termination of her employment. She would appear to have been compromised in relation to her judgment in late September 2008 in respect of the judgements she made about what was and what was not appropriate for a school function.
Impact, if any, on the mother’s parenting capacity and her ability to meet the physical, psychological and emotional needs of the children: From her own narrative and more clearly from the record of incidents documented by NSW Police service, when affected by alcohol, Ms Byrne has failed in respect of her own vigilance and care around the exposure of her children to unsafe or at least very undesirable situations whilst intoxicated; and this has happened repeatedly.
Risk, if any that is posed to the children or either of them by this dependency both currently and in the future: If Ms Byrne were to re-instate regular problem drinking it is anticipated that her general coping would deteriorate and she would struggle to support herself psychologically. If her children were in her care they would be at risk of exposure to harm through a lack of vigilance on Ms Byrne’s part whilst intoxicated and potentially through the persons with whom she associated.
Prognosis in both the short and long term: Ms Byrne’s prognosis for recovery from substance abuse impresses as positive if her account of her recent alcohol use is accurate and she continues to access and make use of professional and peer supports in addition to the support she receives through her church involvement. However, she impresses as a person still in early recovery, who remains ambivalent about drinking and about key relationships with people who are problem consumers of intoxicants.
Mr Klein was asked to recommend as to whether the mother should abstain from alcohol, and whether she had the capacity to achieve and maintain this. He states at p.19:
This author would strongly discourage Ms Byrne from continued consumption of alcohol. Given her long history of problem drinking, with intensification of drinking in recent years, there is a risk of escalation from very controlled drinking ‘rituals’ to escalation under stress or under the influence of others to heavier drinking.
He was finally asked to comment on whether the services and supports that the mother is currently accessing were sufficient to adequately address any identified dependency. He indicated that it was unclear whether these supports were sufficient to either contain abuse or achieve abstinence but they were plainly helpful.
Mr Klein was, of course, cross-examined about these matters. He was an impressive witness whose evidence I accept. Indeed there were no submissions that I should do anything but accept his evidence. In so far as Mr Klein relied on extraneous material such as police records etc, there was no attack on the reliability of these records. It should be noted that he had clearly conceded that the biomedical evidence did not support a finding of problematic consumption of drugs and alcohol at that time. Nonetheless in cross-examination by counsel for the mother his clear recommendation was still that the mother should abstain from alcohol use from this point on. He was invited by counsel for the mother to explain why. He stated at p.6 of the transcript:
With Ms Byrne’s history, my clinical experience is that people remain vulnerable to reinstatement of more problematic intensity of alcohol use, given certain stress levels or pressures. So I would describe Ms Byrne as a person who is in the process of transitioning into abstinence.
In cross-examination by counsel for the Director-General Mr Klein was given the opportunity to comment on any matters arising out of subpoenaed and other material not available to him at the time of the report. He indicated that a report of Dr W made reference to the mother’s consumption of methamphetamine, a matter that the mother did not tell him about, and something that was also not noted in the records of the [L], [H], and by Ms C, all of whom had been consulted by the mother at times to assist her with her dependency issues. The mother’s evidence was that she had used ice (methamphetamine) 10 times between June 2007 and May 2008. For reasons that I set out below I find that the mother did not tell Mr Klein about this. He was asked to explain in general terms some of the effects on people that consume ice. He stated at p.9 of the transcript:
Methamphetamine is used extensively within the gay and bisexual community, and in the heterosexual community, and it’s used a lot for sexual activity. It’s a popular aphrodisiac. It’s taken over from cocaine in that regard, and people like it because they become highly aroused very quickly, the arousal remains very intense. I’m aware that dexamphetamine is somewhat less intense, although people when I first went to [N] Hospital were using what they called speed for very similar purposes. Methamphetamine is also associated with more problematic psychiatric sequelae, so there are higher levels of persisting psychotic illness amongst illicit methamphetamine users. We have a man who has recently been discharged from involuntary care at [N] Hospital, who developed a very aggressive schizophrenia form illness as a result of his use of methamphetamine, and psychosis that persists for more than two years is relatively common, although not in the majority. Less severe forms of – just returning to how people are when they’re acutely intoxicated – people may become much more prone to rumination, they may become more obsessional, more aggressive, more violent. There is – you know, I think everyone is aware of some of the exotic sexual behaviour that people engage in. You have heard about the stockbroker who was having sexual intercourse with rabbits. You have heard about people being locked in the emergency department for two days and masturbating until their genitals are raw. It is a drug that makes people ..... in their behaviour. But when – once people stop, they can experience problems with unstable mood; they can experience a lot of social anxiety. There are some well-described cognitive problems as well. There was some work done by Nora Volkow – Professor Volkow at the National Institute of Drug Abuse in America. It shows brain imaging of people who’ve been abstinent from methamphetamine for up to a year with problems in their frontal lobe area. There is hypo-activity. The frontal lobe is under-active, and clinically people may present as being – in this state they may present as being unable to be very self-directed in terms of, for example, their recovery work. They may be more compulsive if they’re presented with stimuli that trigger craving for amphetamines. They may be more compulsive about reinstating their use. So there is a whole thread of concern around the longer term effects of methamphetamine on people’s cognitive functioning. So it’s a drug that has lots of problems.
The mother had also told Mr Klein that she had taken ecstasy, or MDMA. He was asked to comment on the effect of ecstasy on consumers. He stated at p.10 of the transcript:
Well, it’s notionally an amphetamine, but strictly speaking, it’s not described by pharmacologists as an amphetamine. It’s significantly mood elevating. It makes people feel confident and happy. It supposedly increases feelings of affiliation towards others. People like to dance all night while affected by MDMA. It’s not, as far as I know, a common aid to sexual activity, but it could just be my naivety or what drug users tell me. It’s more associated with recreational activity in dance venues. It’s mood elevating.
Mr Klein did state, however, that the reported use of ice by the mother did not suggest habitual use, but it certainly did affect cognitive processing, judgment, ability to care for and supervise children.
He was asked to comment further on the mother’s prognosis at p.13 of the transcript:
Ms Carr: So far as the prognosis for a good recovery is concerned, I take it with alcohol and drug abuse, one of the key ingredients for a good recovery is an acknowledgment that you have got a problem?
Mr Klein: Yes.
Ms Carr: And a commitment to be abstinent or to change?
Mr Klein: When people are dependent on intoxicants, they are at war with themselves. One part of their brain, commonly referred to as the limbic system, and in particular the nucleus accumbens, is like a computer that has got a virus in it. It is the so-called pleasure centre, and people want these substances even when they are fully aware that they are very harmful to them. So people fight themselves in recovery. So, to answer your first question, the answer is yes, people need to understand that something bad is happening, and they need to develop a desire to be free of the compulsion to consume. Wanting to be free of the compulsion is actually more important than wanting to stop, because it is recognising the compulsion that helps people transition, in my experience. Commitment is more problematic, because this isn’t about willpower. It is hard to control the nucleus accumbens; it is old, it’s powerful, it’s very naughty. It’s there to make sure we have sex and we eat. These plants and drugs have been around for a long time. They have insinuated themselves into the nucleus accumbens, and so it’s hard to get recovery by willpower alone. What you need to do is hang around good people who support your recovery. You need to become really cluey about your triggers, as they are called in colloquial language; the things that are more likely to make you crave. You need to develop strategies for managing your craving, and people often get better at that with practice.
In relation to the father Mr Klein was also asked a number of specific questions. Due to insufficient data he could not say whether the father was suffering from a current dependency. The biomedical evidence did not support a finding of recent abuse. He makes some important comments at p.13 of this report:
Mr Smith would appear to have been engaged in problematic consumption of alcohol in the past. While he did not volunteer this in his history, this author notes observations made of him in the following data sources:
· Two convictions for driving under influence of alcohol in 2004
· Police incident report in November 2004 where both Mr Smith and Ms Byrne acknowledged an episode of heavy drinking at a function
· Police incident report in January 2007 where both parties were noted as affected by alcohol
· Police incident report in May 2008 when Mr Smith removed his children from school and was noted to smell of alcohol
·
Affidavit of Ms F dated 4.3.08 – paragraph 48 where
Mr Smith is reported to have disclosed that [at an unspecified time in the past] he was intoxicated and sexual activity while Ms Byrne was “passed out” and the children were asleep in another room
· Affidavit of Ms F dated 4.3.08 – paragraph 60 where the smell of alcohol is reported to have been noted on Mr Smith during a contact with the children on 12.12.08.
It is this author’s view that during assessment Mr Smith minimised his past alcohol use and possibly his past use of cannabis.
He was asked to comment on the father’s insight into any substance abuse issues. Mr Klein states at p.14:
As is stated above Mr Smith may have significantly minimised his past alcohol use and possibly his cannabis use. He does impress as someone who has ceased regular intoxication in response to the removal of his children into foster care and his desire to re-engage.
He was also asked to recommend whether the father requires any form of intervention. He states at pp.14 & 15:
It would appear that Mr Smith has been resistant to counselling in the past. It is unclear if he would be more responsive to counselling at this time. It is this author’s view that he would benefit from engagement with services that provide at least psycho-educational assistance to people who have had their children removed and especially people who have lost care of their children either directly or indirectly because of their own substance use or the substance use of their partner or both.
He may elect to explore counselling again after attending such programs.
If the children are placed into his care this author would strongly recommend that he participate in individual and/or group services where assistance is provided to people who have been problem substance users, especially when such persons have children in their care.
…
The indicators of success of any intervention undertaken by
Mr Smith pertaining substance use and parenting would be:
· Mr Smith remaining abstinent from intoxicants,
· Mr Smith’ acknowledging and taking responsibility for his past behaviour and its impact,
·
Mr Smith being able to clearly understand the impact of
Ms Byrne’s past behaviours on the children,
· Mr Smith being observed independently to have organised his life and lifestyle so that he could authentically act as the primary caregiver and nurturer to his children as opposed to delegating these responsibilities to others,
· Mr Smith exhibiting care in his associations and attachments with regard to the activities engaged in and the potential impact of those activities on his ability to care the children and meet their needs.
During the father’s cross-examination of Mr Klein, he was challenged about the recommendation for abstinence. Mr Klein said:
I would strongly discourage you from continuing to consume alcohol, given the documented history that I have. The great problem with these substances is not that people cynically and recklessly consume them, but that they don’t always see the impact of the intoxicant on their behaviour. It’s state-dependent. People don’t always have insight about how the substances affect them, and so they often believe, quite innocently, that they can be controlled consumers. But with the history that I have seen, I suggest that you abstain, or at least think about developing a lifestyle where you could abstain from alcohol, having a lifestyle where other rewards crept in to take the place of alcohol.
The Evidence of the Family Consultant
Dr Julianne Greenfield was the Regulation 7 Family Consultant appointed to prepare a Family Report in this case. Her report is dated
8 March 2009 and was based on observations and interviews held between 12 and 25 February 2009. At the time of preparing her report she had sighted only a limited range of the documents filed in the case. She gave oral evidence in the interim proceedings before me on
26 March 2009 and by that date she had been given access to much further documentary material. In evidence on 26 March 2009 she provided an oral addendum to her report.
Dr Greenfield gave evidence in the final hearing on 24 September 2009. I am satisfied that by the time she concluded her evidence she had been granted access to all relevant documentary evidence.
The recommendations set out in the report need to be set out even though they are dated. Many significant events took place between
8 March 2009 and the hearing. Dr Greenfield recommended:
· That the children remain in the care of Mr and Mrs O in the short term.
· That if at all possible they are not placed with another foster carer until they are restored to the care of either of their parents.
· That ultimately the children are restored to their mother’s care.
· That there be orders clearly setting out the timing and criteria (preferably in quantitative rather than qualitative terms) for the restoration of the children to their mother’s care.
· That there be shared parental responsibility for the children between the parents, with protocols in place for facilitated discussions between the parents as necessary by a community organisation.
· That the children spend regular time with their father.
· That the time the father spends with the children be supervised until such time as he is providing urine samples free of illicit substances.
· That handovers takes place at a contact centre.
· That the father is not to exercise contact if he is inebriated, smelling of alcohol or if it is otherwise apparent that he has been consuming alcohol.
· That (in the absence of safety concerns) the father be allowed to take the children to visit their paternal grandparents in Tasmania during non-term time.
· That the children are not to come into contact with Mr B.
To provide some context for these recommendations an extract of
Dr Greenfield’s evaluation is set out below:
77. Clearly there have been, and still are, some serious safety issues associated with the parents’ use of alcohol and illicit substances. At the time of the children’s removal from their mother’s care her parenting capacity, and functioning generally, was so low as to warrant their removal. Luckily they have been placed in a family that seems to be very well suited to these children. Both parents have praised the foster carers. Their information about the children’s care comes from their observation of the children (looking healthy, happy and having lost a little weight) and the children’s reports. The children have formed an excellent bond with the foster parents… Given the disruptive year the children had in 2008, and the fact that they have made a good connection with their foster carers, this assessment finds that the children should not be removed from their current placement until they are restored to the care of one of the parents.
78. From my assessment and from the reports of the foster mother, the children are very attached to their mother and it is she who they are missing most. Indications are that they are experiencing some distress at the uncertainty of their situation and being separated from her. Having family law proceedings, with their parents competing for their residence, may also be contributing to their unease.
79. [Y] was somewhat avoidant of talking about his parents. He did not want to put them in the projective ‘story’ with animals representing family members. When I asked [Y] whether he was missing his mother, he made it quite clear that he did not want to answer any more questions. I understand this as his strategy to avoid painful reminders of his loss of the every day mother, the mother with whom he lived and who cared for him, notwithstanding her problems.
80. [X] was quite upfront in articulating her wish to live with her mother, whom she is missing.
81. Ms Byrne seems to have a good understanding of what DoCS requires of her in order to have the children restored to her care. She produced a spread sheet documenting (among other things) all the appointments she has attended for counselling and assistance with her alcohol abuse since November 2008. It would appear that she is highly motivated to come to grips with her alcohol dependency.
82. The most difficult thing for Ms Byrne is going to be the separation from Mr Smith. Although she is not totally committed to the rationale for doing it, she understands that she will not have the children restored to her care unless she can demonstrate to DoCS that the children will not come into contact with this man. She has resolved to do it and has a plan of action in place and a cut off date for the separation. This is tied up with the sale of her unit.
83. My assessment is that Ms Byrne is making good progress, and needs to maintain and consolidate that progress before having the children restored to her care.
84. Mr Smith by contrast did not demonstrate that he has sought help to address his drug and alcohol problems. The only course he has attended was as a result of an assault charge. He did not mention that he was attending counselling of any kind. He did however acknowledge that he had had problems with alcohol, which he was addressing himself. He aims to be a ‘moderate’ drinker.
85. I do not think that the father is in a position to care for the children, nor do I assess that the children would be as happy in his care as in their mother’s care. The father’s proposal is heavily dependent on the input of his mother, the paternal grandmother, and with a terminally ill husband, she is not in a position to be depended on to assist with her son and grandchildren. It would not be fair for her, nor would it be fair for the children. His proposal also suffers for not having adequate arrangements for the mother to spend time with the children. Travelling to Tasmania is too far a commute for the children to have regular contact with her.
86. Currently indications are that both of these parents are highly motivated to maintain a relationship with their children, evidenced by their reliability in attending contact visits, even when those visits involved inconvenience and distance.
87. It would appear that Ms Byrne is taking positive, well documented steps to seek help for her alcohol dependency, whereas the father does not acknowledge the need for him to do so.
Between the date of the report and the date of the hearing the foster parents caring for the children indicated that they could not continue to care for the children beyond 2 October 2009. The reality was, therefore, that if the children were not restored to their parents, alternative foster carers would need to have been found.
The evidence indicates that the mother did physically end her relationship with Mr B in July 2009. The evidence also indicates that the paternal grandmother’s husband died as a result of his terminal illness in April 2009, and thus she became able to care for the children and indeed volunteered to become their main carer by the time of the hearing in September 2009.
By the time Dr Greenfield gave evidence on 24 September 2009 the Director-General’s proposal had crystallised to one involving the children living with the paternal grandmother in Tasmania and having contact with both parents. Initially the Director-General’s proposal was that the mother have contact three or four times a year, and the father once a month. By the time of final submissions, however, I sense the Director-General’s position about the frequency of the mother’s contact had softened, but this was not known to Dr Greenfield at the time she gave evidence. The Director-General’s position in the event that the children were not placed with the paternal grandmother was that they should be placed in foster care.
Dr Greenfield was extensively cross-examined by all counsel and by the father. The main points emerging from her evidence are as follows:
a)She did not regard it in the best interests of the children that they be immediately returned to the mother’s care. Whilst she was “cautiously optimistic for the mother’s recovery from alcohol and substance abuse”, she still felt that “the mother has some way to go” (transcript Dr Greenfield p.7 lines 44-45; p.28 lines 42-39).
b)As for the mother’s relationship with Mr B, she described the mother’s indication to her on 25 February 2009 that the relationship would not continue as “a head decision but her heart decision was that it was very difficult to let go of that relationship” (transcript p.8 lines 18-20). I note that subsequent events confirmed this. The relationship ended not earlier than July 2009.
c)Dr Greenfield felt that the children could be returned to the mother’s care in six to nine months provided she could successfully continue the transition phase towards disposing of her problems with alcohol. This depended on what treatment programs the mother was willing to undertake, as well as satisfactory alternate care arrangements for the children (transcript pp.8-9).
d)
In relation to the paternal grandmother in Tasmania,
Dr Greenfield noted that whilst the children had certainly spent time with her, at the end of the day they were not very familiar with her. In addition she felt that the paternal grandmother harboured negative views about the mother which might be problematic in terms of facilitating an ongoing relationship between the children and their mother. This problem was potentially exacerbated based on what the mother had told Dr Greenfield in interview i.e. that she would not go to Tasmania because of the hostility she perceived would be there. There was also a concern based on the paternal grandmother’s age – 68. Moreover the geographical distance between the mother and the children would be a practical concern. All of these concerns were clearly articulated in the context that the children were primarily attached to their mother (transcript pp.10-12). Nonetheless
Dr Greenfield did seem satisfied that the grandmother would be able to protect the children from, eg, the father’s ongoing issues with drugs and alcohol, if the children were in her care (transcript p.14). It was also a positive thing that the children would be placed with a blood relative, and have access to an extended family network (transcript p.15).
e)Dr Greenfield articulated strong concerns about changing the existing foster care arrangement because of the disruption it would cause in the children’s lives. She was clearly disappointed that the existing foster care arrangement would be coming to an end on 2 October 2009. When asked to comment on the possibility that the children might even have multiple foster carers after 2 October Dr Greenfield stated: “…even one set of foster parents is going to be disruptive for the children. It would be terrible…if they had to have more placements” (transcript p.16 42-43). It should also be noted that Dr Greenfield described as “a nightmare” for the children a scenario where they were returned to the mother but then had to be removed again from her (transcript p.30 line 8).
f)Dr Greenfield articulated a concern (that had been expressed to her by the father) that if the children were not returned to the mother she might self-harm, decompensate and go backwards in terms of her recovery (transcript p.17).
g)Her preferred alternative for this case involved restoring the children to the mother’s care with supports and monitoring in place and with the children remaining at their current school, and with good contact with the father (transcript pp.17-19).
h)Dr Greenfield was of the opinion that if the children were not in the care of either parent and were living, for example, in Tasmania, the frequency of contact would need to be at least once a month for a weekend (transcript pp.19-20).
i)The option that Dr Greenfield accepted as “the second least-worst option” especially if the court found that her preferred option was not in the best interests of the children, was that the children live with the paternal grandmother (transcript p.20).
j)Dr Greenfield did not believe that the father’s contact with the children needed to be supervised, provided he undertook or was ordered not to consume alcohol before contact (transcript pp.44-46).
I found the evidence of Dr Greenfield very helpful. Clearly this is a difficult case, even for someone with Dr Greenfield’s extensive experience. The children are strongly attached to, and miss their mother. I formed the strong impression that Dr Greenfield felt much like I did during this hearing – that a best interests outcome for the children involved considering the least worst options because the best options were not available on the facts. The unavailability of the continued current foster placement, and the adverse impacts on the children of future foster placements were obviously a big concern for Dr Greenfield. I cannot accept, however, Dr Greenfield’s preferred alternative of returning the children to the mother’s care, with supports and monitoring in place, and on the basis that they remain at the same school. As Dr Greenfield so clearly identified in her evidence the mother is not ready yet. Whilst I would like to share Dr Greenfield’s cautious optimism about the mother’s recovery from alcohol abuse, for the reasons that I set out elsewhere in this judgment, I am not confident about this. In any event the evidence does not allow me to conclude that the supports and monitoring that need to be applied are either available or will be availed of by the mother. I believe Dr Greenfield envisioned a role for the children’s school in monitoring and support that was unrealistic.
I do accept, however, her evaluation of the father as not being suitable to have the full-time care of the children. I also accept her recommendations about the frequency of contact that the children should have with their parents if they are placed with the paternal grandmother in Tasmania i.e. once per month for a weekend. I cannot accept, however, Dr Greenfield’s evidence to the effect that the father’s contact does not need to be supervised. Lack of supervision is inconsistent with the evidence about the father’s consumption of and attitude towards alcohol. It must be remembered that I had the benefit of seeing both the mother and the father give their evidence at length.
I accept that what was put to Dr Greenfield as the “second least worst option” (transcript p.20 line 35) is placement with the paternal grandmother, notwithstanding the concerns that she herself identified with this.
The Mother’s Evidence
The mother’s desire for the children to be restored to her care is entirely understandable. The mother in this case was in the privileged position of having been given a ‘second chance’ as a result of the interim hearing and the orders made at that time. As the reasons for judgment in the interim hearing ([2009]) FMCAfam 338) record, the position of the Director-General was clear, as were the issues. The mother knew, in my opinion, precisely what she had to demonstrate at the final hearing in order to address the clearly articulated concerns about her. She had five months to do so. It was a second chance. Paragraphs 36 and 37 of the reasons were clearly directed at the parents. I have already acknowledged that my criticism of the mother, based on what now appears to be incorrect CDT test results, was inappropriate and, indeed, unfair. If ever there was a chance for the mother to redeem herself in the eyes of the court, and for the benefit of her children, the stage was set for her to do this at the final hearing. Whilst events before the interim hearing are still relevant, of particular significance is the extent to which the mother sought to address her drug and alcohol issues, and her relationship with Mr B, before the final hearing.
I record my impressions of the mother as a witness. She was unimpressive. She was often defensive, argumentative and unresponsive in cross-examination. Of great concern to me was the flippancy with which she often responded to quite serious assertions. This led me to believe that she often minimised the significance of the very important matters that were being put to her. Her flippancy was not limited to one or two occasions. It happened so frequently as to almost become the hallmark of the mother’s evidence.
By her answers to questions the mother also came across as being an opportunistic person in the sense of conveying through her evidence that she would do anything and say anything that brought about the return of her children to her care. The clearest example of what I have described as opportunism was Exhibit INT1, the undertaking she gave to the Court dated 29 May 2008 where she states:
1. I shall not associate with Mr B.
2. That I shall not bring the children [X] born in 2002 and [Y] born in 2003 into contact with Mr B.
3. I agree to undergo within twenty-one (21) days a psychiatric evaluation in relation to any risk by me of suicidal behaviour.
4. I undertake that I shall maintain all recommended medical treatment prescribed by my treating medical professionals, including that I will maintain any medication regime prescribed to me.
The mother tried to distance herself from this undertaking, at times asserting she did not realise the significance of her undertaking, at other times saying she did not understand it, and even trying to create the impression that responsibility lay with her lawyers. I accept none of this. The mother is, when not under the influence of alcohol, an intelligent and articulate woman. I find she fully understood the undertaking she gave to the court, but gave it opportunistically on the basis that that is what was needed to have the children returned to her by the father. The evidence unequivocally indicates that she breached this undertaking by associating with Mr B till at least July 2009, and also bringing the children into contact with him. The manner in which the mother disclosed in her affidavits the nature of her relationship with Mr B, and how and when it purportedly ended, is very selective indeed.
The mother’s situation in this regard is compounded as a result of the consent orders made by FM Sexton on 23 July 2008. The operative part of those orders state:
1. Subject to and upon the mother giving the following undertakings:
1.1 That the mother shall not associate with Mr B;
1.2 That the mother shall nor bring the children into contact with Mr B;
1.3 That the mother agrees to undergo within 21 days a psychiatric evaluation in relation to any risk by the mother of suicidal behaviour;
1.4 That the mother shall maintain all recommended medical treatment by her treating medical professionals including maintaining any medication as prescribed to her;
That the children of the parties, [X], born in 2002 and [Y] born in 2003 live with the mother.
…
3. Neither party shall consume alcohol to excess or non-prescription/illegal drugs at all whilst the children are in their respective care.
…
5. Each party shall undergo urine analysis test for class A drugs at frequency no greater than one test every four week period, at the request of the other party. Such test to be completed within 24 hours of receipt of notification of request and the test results to be provided to the requesting party within 48 hours of receipts of the results.
Orders 3 and 5 should have clearly signalled to both parents the significance of drug and alcohol consumption in the case. After this date, however, the mother concedes a number of drug and alcohol related incidents. Thus:
a)The mother said that she had consumed a cone of cannabis at Christmas time in 2008;
b)On 9 July 2009 (after the children had been removed from her) the mother conceded that she had drunk three and a half VB longneck beers in a drinking session with Mr B and that this took place within 24 hours of her having contact with the children. The mother insisted that she drank the equivalent of “10 units of alcohol” on the night in questions and not “10 beers”. She said that each 750ml longneck bottle contained 2.8 units of alcohol. If she indeed only consumed three and a half longneck bottles, it would in fact only be about 10 units of alcohol. Given the mother’s history of alcohol consumption-related problems over a period of 22 years (according to her) there must be some doubt as to whether she could have stopped drinking that fourth bottle. What is truly remarkable about this incident is that it occurred the day before she saw Mr Klein, the court appointed expert, and it occurred within 24 hours of having contact with her children. Drinking and being with Mr B was clearly contrary to the consent orders of 23 July 2008.
c)The mother agreed in cross-examination that her consumption of alcohol was clearly out of control between August and September 2008 and this culminated in the event at the children’s school when the mother attended a film night for the students and their families in a heavily intoxicated state. These events are graphically described in the affidavit of Ms H sworn 24 March 2009, and whilst the mother has minor differences as to what actually happened that night, I am far more inclined to accept the more objective and independent version of Ms H, even if it is partly hearsay. The mother agreed that this was the end of a three day binge for her, and that she had also consumed an ecstasy tablet at this time as well. This event, of course, resulted in the children being placed in the care of the Director-General.
These events do not give me confidence that the mother will abide by future court orders. They do not give me confidence that she will do anything other than continue to act opportunistically until the children are returned to her care. If returned to her care, these events give me no confidence about the mother’s ability to protect the children whilst in her care. Regrettably all of the above casts a real shadow of doubt about the mother’s credibility in general.
For example I find that the mother did not tell Mr Klein about her consumption of ice. She agreed in cross-examination that she took ice with Mr B 10 times between June 2007 and May 2008. She asserts that she told Mr Klein this. There is no reference to this in Mr Klein’s report. In his oral evidence Mr Klein agreed that if the mother had told him this, he would have regarded it as important. Mr Klein found the mother to be a person who was given to a lot of disclosure, indeed frank disclosure, even at times when it was not in her strategic interest to do so. Thus he conceded that it is not inconceivable that she would have told him but his notes do not reflect this. I found Mr Klein to be a very caring person, sensitive to the needs of the mother and inclined to give her the benefit of the doubt. I also unequivocally accept his expertise and professionalism and I find it inconceivable that he did not record what the mother says she disclosed to him. I find that, on the balance of probabilities, the mother did not tell Mr Klein about her consumption of ice during the relevant period. I find that she then sought to mislead the court about this fact. Her consumption of ice was clearly relevant and significant and she failed to disclose this because it was not in her interests to do so. She was, again, acting opportunistically.
I also have serious doubts about the mother’s evidence that she has decided to totally abstain from alcohol, rather than to control her drinking. In cross-examination she indicated that she decided to commence a course of antabuse. Mr Klein described this as disulfuram. Antabuse is a substance which causes the person taking it to become physically sick if alcohol is consumed. The mother said that she made this decision in mid August 2009, but had still not commenced taking it as at the date of the hearing because it made her drowsy. She agreed, however, that she had not raised this with Ms C, her counsellor, until 18 September, the Friday before the hearing. She said she had been first informed about antabuse whilst at the Langton Clinic in September 2008, a year before the hearing. It was put to her that she had now decided that she needed chemical assistance to help her abstain. Her response was to the effect that it would be much simpler not to drink at all – an unresponsive answer. It was again put to her that in order for her to be totally abstinent, she accepted that she needed some chemical assistance. She replied to the effect that she would report back in two months time. The mother was given two opportunities to convince the court that she now recognised that she needed chemical assistance to become abstinent. She declined both opportunities, and instead provided unresponsive and flippant answers. When it was put to her that antabuse was a convenient plan raised just before the final hearing, her response was to the effect that it was just the last piece of the puzzle, again a partly unresponsive answer. The mother’s evidence leaves me with little alternative but to conclude that she has not yet committed to abstinence.
In her affidavit of 7 September 2009 the mother gave detailed evidence of her attendances on the following services:
a)Dr W for depression and alcohol counselling;
b)Dr C, a psychiatrist;
c)[L] for alcohol counselling;
d)Alcoholics Anonymous for alcohol counselling;
e)SMART program (Ms C) for alcohol counselling.
This is commendable. When she was cross-examined about her engagement with these services she was often evasive and unresponsive, once again. It was by no means clear to me why she did not chose abstinence at a much earlier time than just a few weeks before this hearing. Clearly she chose a strategy whereby she would try to control her drinking even though, I find, she was well aware of the availability of antabuse as an aid to achieve abstinence for about one year before the hearing.
I find that the mother could give no clear and acceptable explanation as to why, for example, she did not persist with Alcoholic Anonymous. It is more likely than not that they required abstinence, something the mother was not prepared to do.
Documents were produced on subpoena by the [L] and became Exhibit 2R1. An individual therapy note dated 6 November 2008 records the mother stating that she felt that DOCS had overstated the degree that alcohol interferes with her ability to parent properly. This is a remarkable statement to make just a few weeks after the incident at the school when the children were removed from her care. The mother herself admits that she was in a three day binge leading up to this incident. It shows real lack of insight and appreciation of the extent of her problem at that time.
Dr W, the mother’s treating doctor, provided a report and gave oral evidence. His updated report dated 25 August 2009 became Exhibit A2. He first saw the mother on 11 February 2008 and was her treating doctor as at the date of hearing. It is clear from his report that he has been working with the mother about her alcohol issues for all of the time she had been consulting him. Notwithstanding that, he did not know that the mother intended to use antabuse. Indeed I formed the impression that he was somewhat surprised by this. Moreover she had not told him about taking ice, even though this happened during the period he was treating her.
The mother’s counsel submitted in closing submissions that the mother was an honest witness. I do not agree with this submission. Her desire to get her children back permeated all the evidence she gave, and her evidence clearly indicated to me that she would do anything and say anything that would achieve that result except abstain from alcohol. This is a tragedy of monumental proportions for this family. I simply cannot be reasonably satisfied that the children will be safe in their mother’s unsupervised care.
The Father’s Evidence
The father’s evidence at times was quite paradoxical. At times he impressed me with his candour. He willingly made important concessions that were clearly not in his interests e.g. about long periods of no contact with the children caused by his decisions to move away for work purposes. He conceded that the children had a stronger attachment to their mother than to him. He conceded that he was not good with managing money, and that he had not supported the mother in her role as a parent when she was struggling with drugs and alcohol. He was honest in his evidence to the extent that when confronted with certain inevitable facts or conclusions he would admit or concede these matters.
At other times, however, his evidence lacked credibility. I do not accept all of the mother’s evidence about the family violence allegedly perpetrated by the father against her, but I certainly do not accept all of the father’s denials in this regard. Given the primacy of the safety issues in this case, it is not necessary for me to make findings about family violence between the parents. Nonetheless I find the father’s denials unconvincing. His evidence also significantly minimised his own drug and alcohol issues and demonstrated a stunning inability or refusal to engage with the available support services to assist him with these and parenting issues. I do not accept his oral evidence that he would embrace abstinence. It came far too late in the proceedings, was inconsistent with his own affidavit evidence, and in any event I have the gravest doubts as to whether he has the capacity to do so. He attended at supervised contact unsteady on his feet and smelling of alcohol. He was willing to mislead the Director-General’s departmental officers at times.
Overall the father’s evidence indicated to me that he continued to struggle with consumption of alcohol, and that abstinence was not a priority in his life. He lacked insight about the needs of his children and was unable to prioritise those needs above his own. I have real concerns about the safety of the children whilst in the father’s unsupervised care.
The Paternal Grandmother’s Evidence
The paternal grandmother’s initial role in this case was to provide a letter of support in relation to her son’s proposal. This was based on the father and children sharing the paternal grandmother’s home for a period of years, and with her providing active assistance in the care of the children. As the case progressed it became apparent to her that the Director-General would not support a proposal in which the father was present in the same home as the children. The paternal grandmother then agreed that she would be prepared to care for the children, as part of the Director-General’s proposal, and with her son only having contact. Thus her role evolved during the course of the hearing, and this in itself became an issue to be explored in cross-examination.
The paternal grandmother was an impressive witness. I was left in no doubt about her sincerity and honesty. Where there were flaws she did not try to hide them. I was left in no doubt that, notwithstanding her age, she had the physical and emotional capacity to care for these children on a full-time basis. I was left in no doubt that she could protect the children from harm and provide them with the stability that has been missing from their lives for many years. I completely reject any evidence or criticism of the paternal grandmother arising out of her cross-examination by counsel for the mother about incidents involving either neglect or harm caused to the children whilst they were with her. I have no hesitation in preferring the evidence of the paternal grandmother over that of the mother. I accept her evidence that if, for example, she saw the father drinking in the presence of the children, she would stop him immediately and require him to leave if he did not. Having closely observed both the father and paternal grandmother I have no doubt that she means it, and that the father would comply. This evidence does provide reassurance to me, particularly in the context that at other times I formed the impression she did not fully appreciate the extent of her son’s drug and alcohol issues both in the past and present. Nonetheless I also am confident that the grandmother will abide by orders of the court. This is certainly not a confidence I have as regards the parents in this case.
A significant issue about the paternal grandmother was her attitude towards the mother and the extent to which this attitude would get in the way of her facilitating an on-going relationship between the mother and the children. The paternal grandmother made it very clear that she would not have the mother in her home. She described herself as deeply hurt by things the mother said about her, but hopeful that she would get over this hurt, and gave an assurance that she would not denigrate the mother in the children’s presence. It is necessary to provide some context to this hurt.
The mother wrote to the Director-General and made a number of allegations about the paternal grandmother. The allegations and the response to them are set out in Exhibit INT3, the Assessment Report for Authorised Relative and Kinship Carers, a document which I accept accurately sets out the matters referred to therein. The mother alleges that the paternal grandmother:
a)Had been sexually, physically, verbally and emotionally abused by her father;
b)Had a brother who was a chronic alcoholic, had five adult children who were chronic alcoholics, four of whom were habitual users of cannabis;
c)Was, together with two of her children, overweight and had a poor diet;
d)Suffered from poor health due to smoking and alcohol consumption;
e)Is a dangerous driver;
f)Has a temper and has hit the children in the past.
There were other allegations that are not relevant. It was quite clear that the first allegation was the one that caused her the most pain. None of the family knew about the abuse the paternal grandmother had suffered as a child. It is likely that at some time she must have confided in the mother about these things. As a result of the mother’s disclosures she had to tell her children. The Assessment Report describes, and I find that, the paternal grandmother found this extremely distressing and it resulted in her having to manage painful memories.
I would not allow cross-examination about the first allegation, but did allow reasonable cross-examination about the others. Whatever she experienced at the hands of her father when a child is irrelevant in this case. The cross-examination about remaining issues demonstrated to me that she was not a perfect parent. I have not yet seen one in my
28 years in the law. She handled the questions with grace, dignity and honesty. She was clearly a deeply hurt woman who was hopeful of recovery but who would nonetheless do her best to keep her feelings towards the mother to herself and, subject to not permitting the mother into her home, would abide by the court orders for contact with the mother, and do her best to facilitate and encourage a close and continuing relationship between the children and their mother.
The allegations that the mother made about the paternal grandmother reflect more on the mother. I have previously described the mother as an opportunistic person who would do anything and say anything in order to get the children back. These allegations were yet another example of this. Raising in these proceedings maters about the children’s grandmother’s own childhood, which were clearly irrelevant but designed to cause maximum distress, was yet another desperate attempt by the mother to extricate herself from her own problems, to which the grandmother had not contributed.
In the final analysis the paternal grandmother emerged as the person who could best keep the children safe, ensure their ongoing meaningful relationship with the parents, provide stability, and was most capable of providing for the children’s physical, emotional and intellectual needs. I am very conscious of her age but my observation of her was that she was an enormously energetic woman who appeared to be in good health, and who had much to contribute to these children. I acknowledge the probability that she may not be able to care for the children for all of their minority. It is quite possible that the children’s residential arrangements may need to be revisited in future years. In a case where neither the mother nor the father are suitable carers for the children at this present time, one can only express the hope that either or both of them will deal with the issues they confront so that, in future, the children might be restored to their care. In the meanwhile however, the choice confronting this court is, realistically, the paternal grandmother or a foster carer or carers. There is no doubt in my mind that the paternal grandmother is the one best able to meet the needs of the children in the short to medium term.
Dr W’s Evidence
Dr W provided evidence by way of written report and oral evidence in support of the mother. The mother has been consulting him since
11 February 2008 and he has been treating her in relation to depression and alcohol consumption issues. His most recent report was a Care Plan dated 25 August 2009 and this was Exhibit A2. His diagnostic formulation was that the mother was suffering from recurrent depression. I formed the impression, however, that he was down-playing issues relating to the mother’s drug and alcohol issues in his report. Given the significance of this issue for the mother, and the mother’s own evidence about her involvement with Dr W, it was unusual I thought that his report was not clearer. In his oral evidence it became clear that he did not know that the mother had decided to try antabuse. It also became apparent that even though his most recent report minimised reference to the mother’s alcohol consumption issues, his clinical notes confirmed that this was raised frequently and consistently in their consultations. The mother did not tell him about her binge drinking on 10 July 2009 nor did she tell him about her ice usage during any period when she was consulting him. He was generally optimistic that the mother could achieve abstinence if she wanted.
Dr W’s report satisfies me that there are no serious psychiatric issues relating to the mother and that her depression is not a factor which is, of itself, a concern in this case. His evidence did not help me, for example, to be more confident that the mother was sincere about her commitment to abstinence. Indeed the fact that she did not tell him about the binge drinking and ice consumption makes me even more doubtful about the mother’s assertions in this regard.
The Order that is in the best interests of the children
Having regard to all of the evidence in this case, and to the matters set out above, what is in the best interests of these children?
The need to protect these children from physical or psychological harm that might arise from being exposed to abuse, neglect, or family violence (s.60CC(2)(b)) is the main issue in this case. Both parents are a risk to the children. I am not satisfied that the evidence demonstrates that either parent has adequately come to grips with their drug and alcohol issues. Both minimised the extent of their past issues, but the father did to a greater degree than the mother. I cannot accept the evidence of either parent that they will embrace abstinence – it comes too late and is clearly inconsistent with their previous actions and stated attitudes. I am not satisfied that either parent has adequately engaged with the services they have been referred to or actually attended. Neither parent could demonstrate to me that they took up the ‘second chance’ that I gave them at the interim hearing. In short, and regrettably, I cannot entrust the responsibility for protecting these children to either parent. This is a great tragedy for the children and their parents.
In the circumstances of this case it means that the next best alternative is the paternal grandmother. Even though I have some concerns about her, these do not extend to whether she will protect the children from harm, love and care for them, and provide them with the stability that has been missing in their lives.
I recognise that this means that the children’s meaningful relationship with their parents will be affected. I will give each parent the opportunity for monthly supervised contact. I have no doubt that the father will take advantage of this, at least from time to time. The mother stated in her evidence she would not travel to Tasmania. I do not accept her evidence in this regard, and it is, regrettably, yet another example of her opportunistic and even manipulative attitude evident in these proceedings. It is ultimately her choice. The children need her. I hope and trust that she will take advantage of the orders I make. On the evidence before me there was no basis for her fears of travelling to Tasmania.
Certain things follow as a consequence of the finding I have made in relation to the safety and wellbeing of the children. It follows, for example, that the nature of the children’s relationship with each parent has changed as a result of their drug and alcohol issues. The emotional pain suffered by [Y], for example, is poignantly depicted at paragraph 79 of Dr Greenfield’s report. The mother must take responsibility for this. It was her own actions that created this and not the actions of either the father or the Director-General’s departmental officers. The capacity of each parent to provide for the needs of the children is seriously undermined by their own actions. Their poor attitudes towards the children and to the responsibilities of parenthood permeate their actions and inactions for the past two years of the children’s lives. I know that I am being very critical of the parents. I take no pleasure in this. For the sake of the children I trust that they can both deal with the issues that affect them and in the meanwhile continue to engage in services that support them, whilst also maintaining their relationship with the children.
I am satisfied that the paternal grandmother can provide for the children all of the things that the parents cannot.
There was an issue in this case about the frequency of contact. The Director-General originally proposed that the children’s contact with their mother only be on three or four times annually. Dr Greenfield was aghast at this suggestion. In any event as the case evolved and it became apparent that the Director-General’s position was that the children be placed in the care of the paternal grandmother, the significance of these issues waned. As I indicated earlier in my reasons, I had a real sense that the Director-General’s resistance to monthly contact by the mother was a token one by the end of this case.
The orders for contact that I will make will, if taken advantage of by the parents, give them the opportunity to be a regular part of their children’s lives. It needs to be supervised as I clearly have ongoing concerns about how they are each dealing with the alcohol dependency issues. In the circumstances of this case I cannot make orders defining precisely how contact is to be supervised. It will have to be a matter to be determined as between the Director-General and the grandmother. Given the geographical issues that arise in this case my order will be more descriptive than prescriptive.
I will require the grandmother to provide to the court certain undertakings that will provide reassurance not just to the court, but to the parents and the Director-General as well. These are largely to address the issues of concern in the grandmother’s evidence. I will also impose restraints on the parents that are necessary to protect the children.
The hearing ended on 25 September 2009, and the orders were made on 30 September 2009. With the consent of the parties these reasons for judgment have only been published today. As the children’s foster care arrangement was going to change on 2 October 2009 I felt, and the parties agreed, that it was necessary to avoid any further disruption to the children’s lives. I propose to not discharge the Independent Children’s Lawyer for six months from today to ensure that the contact orders are implemented.
If there are problems with the interpretation, implementation or enforcement of these orders in the next 24 months, I think it is in the best interests of the children that the matter be relisted before me if this is reasonably possible. This is not intended to fetter the Director-General’s right to take action under state law, if it becomes necessary to do so, but it does seem both a child-focussed requirement, and one that avoid the duplication of proceedings.
I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate:
Date: 23 October 2009
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