COLEY & COLEY

FAMILY COURT OF AUSTRALIA

COLEY & COLEY

[2020] FamCA 877

FAMILY LAW – PARENTING – Where the mother suffers from severe alcohol abuse – Where the child lives with the father – Where the child has expressed fear of living or spending unsupervised time with the mother – Where the child suffers heightened anxiety prior to supervised time with the mother – Where the mother is fixated on alleged sexual abuse of the child – Where this Court has made findings that, on the balance of probabilities, this sexual abuse did not occur – Where the child is exposed to the mother’s views – Where the mother has frequently been unable to attend supervised contact – Where it is not in the child’s best interests to have regular or unsupervised time with the mother – Orders for the child to spend supervised time with the mother on three occasions a year.

Family Law Act 1975 (Cth) s 60CC

APPLICANT:

Ms Coley

RESPONDENT:

Mr Coley

INTERVENER:

Department of Communities & Justice

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

1401

2015

DATE DELIVERED:

19 October 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

1 October 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Snelling

SOLICITOR FOR THE APPLICANT:

City Lawyers And Consultants

COUNSEL FOR THE RESPONDENT:

Ms Sproston

SOLICITOR FOR THE RESPONDENT:

Sharon Moss Legal

COUNSEL FOR THE INTERVENOER:

Mr Moore

SOLICITOR FOR THE INTERVENER:

Crown Solicitors Office

SOLICITOR ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Norris

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

IT IS ORDERED

That the father have sole parental responsibility for the child X born … 2011 (“the child”).
That the child live with the father.
That the child have supervised contact with the mother for two hours on no more than three occasions in each year, on a day which falls on a weekend, at a supervised contact centre in the RR Region of New South Wales which is acceptable to the father, and in the absence of agreement, at SS Centre at Suburb TT, provided that:
(a)The mother is to nominate the contact centre and advise the father of the details;
(b)Both parents are to attend any intake session and sign any documents required by the contact centre;
(c)The mother shall advise the father in writing of the date and time of the scheduled contact, giving not less than 30 days’ notice; and
(d)Within 48 hours of any scheduled contact, the mother is to provide to the father, by email, confirmation that she will attend.
That for the purpose of the contact pursuant to these Orders the parties do all things necessary to ensure the child’s time with the mother occurs on the closest weekend to align with the following special occasions:
(a)Mother’s Day;
(b)The child’s birthday;
(c)Christmas Day.
That for the purpose of the mother’s providing notice to the father, he provide her with an email address.
That the mother is restrained from contacting the child other than in accordance with these Orders.
That the mother provide to the father an email or postal address to which he can forward any communication from the child.
That the father provide the mother with a postal address to which the mother can forward any communication to the child provided that the father shall be entitled to read any such communication and determine whether it should be given to the child.
That the father advise the mother in the event that the child suffers any serious injury or medical condition.
That the father provide the mother with the child’s school reports.
That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.

IT IS NOTED

That the father and the maternal grandparents attended a conference convened by the Department of Communities and Justice on 17 September 2020 and reached an in principle agreement that the child’s time with the maternal grandparents will no longer be supervised, that the child will spend an overnight with her maternal grandparents once each month as agreed and that while the child is spending time with the maternal grandparents they will not allow her to have any contact in person or by any other means with the mother. If the mother attends their location while the child is with them they will direct her to leave and if that is not possible then they will leave with the child. Further, the child will spend time with the maternal grandparents on special occasions and during school holidays overnight for 2 or 3 days as agreed, with interstate travel as agreed and overseas travel with the written agreement of the father.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Coley & Coley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1401 of 2015

Ms Coley

Applicant

And

Mr Coley

Respondent

And

Department of Communities & Justice

Intervener

REASONS FOR JUDGMENT

These proceedings relate to the parenting of the child, X who was born on … 2011 and is now nine years old.
The Secretary of the Department of Communities and Justice (“DCJ”), as the department is now known, intervened in proceedings in September 2018, and an Emergency Care and Protection Order was made placing the child in the care of DCJ on 21 November 2018.
The DCJ and the father, Mr Coley, sought an order that the child be placed in the care of her father with supervised time with her mother, Ms Coley, and her maternal grandparents.
An Independent Children’s Lawyer (“ICL”) was appointed for the child.
The interim applications were heard on 26 November 2018.
In summary, the DCJ alleged that the mother, because of a history of alcohol abuse, was not capable of caring for the child and the mother alleged that the father’s two sons of his first marriage had sexually abused the child.
In the reasons delivered on 4 December 2018, I summarised the risks alleged in the following terms:
·The mother’s allegation that the child has been sexually abused by her half-brother/s.
·The risks to the child posed by the mother’s abuse of alcohol.
·The risks to the child posed by the mother’s encouragement of the child to disclose abuse, and her continued presentation of the child to authorities with allegations of abuse.
·The risk to the child of the mother’s persistence in gathering evidence to prove that the child has been abused.
·The risk that the mother’s behaviour will cause psychological harm to the child.
·General neglect including, but not limited to, poor school attendance.
There was no allegation that the father posed any risk to the child.
With the exception of the allegations of sexual abuse, the risks which were enunciated on 4 December 2018 are the same risks which are present now.
On 4 December 2018 I made orders and delivered reasons which had the effect of placing the child in the care of her father and providing for the mother to spend time with the child supervised by the DCJ. The orders also provided that the child would not be brought into contact with her alleged abusers.
Those reasons traverse the evidence of the effect on the child of her mother’s alcohol related difficulties.
On 27 September 2019, the mother fell from a balcony, suffering extensive injuries. She was hospitalised and spent a period in T Hospital, being discharged on 29 January 2020.
The matter was again before the Court in March 2020 when the anticipated final hearing had been postponed because of the mother’s extensive injuries and the DCJ and the father sought, inter alia, to discharge the orders that prevented the child having contact with her older half-brothers. At this time, there was no possibility of further dates being allocated because of the COVID-19 pandemic.
On 9 April 2020, in circumstances where all of the evidence in relation to the alleged abuse was before the Court, and a single expert, Dr U, had prepared a comprehensive report, I made orders discharging the requirement that the child have no contact with her half-brothers. Those reasons should be read in conjunction with these.
It was agreed that no further affidavits would be filed and that no cross-examination was required by any party and that the final determination would be made after submissions.
At hearing, the DCJ sought the discharge of all orders requiring his involvement and did not consent to any continuation of supervision by his officers. It was the position of the DCJ that ongoing supervision was a matter for the parents.
The father sought orders for “identity contact” between the mother and the child on three occasions each year in a supervised centre.
The mother sought a regime of increased time with the child, starting with video communication each Sunday and progressing through supervised time at a contact centre once each month and leading to unsupervised time each alternate Sunday for six hours. The contact centre that the mother nominated does not operate on weekends.
The ICL sought orders for “identity contact” on six occasions each year.
The mother’s applications for unsupervised time and for video communication were opposed.

WHAT IS THE MOTHER’S STATE OF HEALTH?

It was not in dispute that, in 2020, the mother has spent only one occasion of supervised time with the child. That occasion was organised and supervised by the DCJ in January 2020 when the mother was at T Hospital after suffering very serious injuries in a fall from a balcony.
Subsequent visits were cancelled by the DCJ because the mother was unfit to participate.
Dr U examined the records produced by the hospitals after the mother’s fall. He summarised:
Supplied medical records dated 15 November 2019 indicate that staff had informed [the mother] that she was not to consume alcohol for 12-months given her increased risk of seizures. Supplied documentation and medical records indicate that she had not attended group sessions, which were recommended to her whilst at E Hospital. Notes stated that on 25 November 2019, 'Mr CC' brought her 'a bottle of wine' and whilst 'she admitted to drinking the bottle, she denies she 'has a drinking problem'. Medical records from 19 December 2019 indicate that [the mother] has not completed knee extension exercises and that she had 'wriggled forward towards the door of her room in the chair' to draw the staff’s attention and was 'firmly told it was not safe to do so'. Medical records from 19 December 2019 indicate that [the mother] 'minimized alcohol use history actively misleading intent'. Notes indicate that her past psychiatrist (Dr DD) withdrew as her treating doctor as he felt she had misled him about extent of drinking following two M Hospital admissions. Ms Coley was treated by Dr EE (27 December 2019 to 11 January 2020) due to alcohol relapse. Her medical notes referred to her drinking as a 'situational crisis'.
When the mother was discharged from rehabilitation, she bought and drank a bottle of vodka which resulted in her being admitted to G Hospital that evening with a blood alcohol level of 0.40.
On 13 February 2020, after Dr U visited the mother at her parents’ home for the preparation of his report, the mother left in a taxi and was later located by her parents at a hotel.
The DCJ tendered a bundle of documents which had been produced on subpoena relating to the mother’s subsequent admissions to hospital between March and September 2020 and her involvement with police.
On 7 March 2020, police were called to an incident between the mother and an unnamed person at that person’s home. The mother was reported to have been drinking. After an argument, the person locked the mother outside and she attempted to gain entry by throwing a fire extinguisher through the window. The police observed the mother to be heavily intoxicated. A provisional Apprehended Domestic Violence Order (“ADVO”) was taken out against the mother.
On 8 March 2020, police were called when the mother refused to pay for a meal in a restaurant. Police noted that the mother was “well affected by alcohol and abusive towards police”.
On 30 March 2020, the mother was taken to hospital by ambulance after she fell down three steps, landing on a tiled floor. The ambulance noted that the mother had drunk “1.5 bottles of wine this morning”. The ambulance notes state “Parents now sole carer, and unable to cope with [the mother]”. On examination, the mother was found to have an acute fracture of her elbow and lacerations to her temple. She was transferred the following day to another facility but was not accepted. The hospital notes record:
…[the mother] was transferred to GG Centre but has not been accepted and her mother is not an option for accommodation. At present [the mother] is NFA [no fixed address] (and during session with writer reports she has no income) and is awaiting a social work review.
The notes record a diagnosis of alcohol use disorder and the treatment plan of referral for drug and alcohol relapse prevention.
The mother was again admitted to hospital on 10 June 2020 after falling when using a four wheeled walker. The mother admitted to having drunk two glasses of wine and a sleeping tablet but the hospital noted that she smelt strongly of alcohol. She was complaining of pain in her right elbow, with observed bruising, and bilateral leg pain. The mother remained in hospital overnight.
She was again admitted to hospital on 20 June 2020. The hospital notes record “fall secondary to [alcohol] – multiple [emergency department] attendances this year with similar”. The triage notes record that the mother had presented on eight occasions to the emergency department in 2020. The nursing notes state “[patient] is drunk…”
On 21 June 2020, the notes record:
Tells me that she fell over this evening ‘because her legs don’t work properly’
Denies hitting her head – but might have hit her head yesterday following a different fall
She was discharged the following day. The discharge summary reports:
Fall whilst intoxicated.
Unable to recall events.
Pain left elbow.
…
Confirmed fracture on CT
…
Long arm cast applied.
(As per the original)
On 23 June 2020, the ambulance attended the mother’s home. The ambulance records state:
Met by partner and directed to this 40yof who was lying left lateral in bed and appeared to be in post ictal state. She had been incontinent of urine. Partner states that since 3am she has had 4 tonic clonic seizures of unknown duration and self resolving each time. It was after the fourth one that he called triple zero. Shortly after our arrival she had another seizure which lasted for 1 minute and self resolved… She was not verbalising with us but after approx 15 mins she sat up in bed and then proceeded to walk with us outside - Still not verbalising but obeying our commands. [Patient] had a large projectile vomit… just after we got her onto the stretcher. Just as we loaded her into the ambulance she had another seizure…
(As per the original)
The mother was found to have an acute subdural haematoma and was transferred to FF Hospital.
On 25 June 2020, the psychiatric registrar noted:
[The mother] was transferred to FF Hospital from G Hospital after she presented there following what was felt to be an alcohol withdrawal seizure with head injury and subsequent [subdural haematoma] found on imaging. [The mother] has a background of long term alcohol misuse disorder. She has had multiple presentations in the context of falls and head injury while intoxicated or in withdrawal. [The mother] had a serious head injury following a fall last year – with multiple other injuries.
On arrival at the ward this morning [the mother] became behaviourally disturbed and there was concern she may at [sic] risk of absconding…
On assessment, it was felt that [the mother] was quite acutely confused (she was not oriented to time or place)…
The registrar noted:
…she described grandiose, somewhat bizarre delusions of having a powerful, influential boyfriend who ‘came from outer space’ – difficult to assess whether she said this through misinterpretation/confusion as opposed to firm delusional held belief.
The nursing notes refer to the mother having hallucinations and being abusive to staff.
On 26 June 2020, the notes record “ongoing confusion” and that the mother had mistaken the nurse for her daughter.
It is not clear from the documents which were tendered whether the mother was discharged from hospital on this occasion or whether she left of her own accord.
The hospital notes on 4 July 2020 refer to the mother’s being transferred from G Hospital with unclear presentation “?fall whilst intoxicated” and that she was awaiting a bed in the brain injury unit.
The hospital notes on 4 July 2020 refer to the mother telling nursing staff that she wanted to go home as her daughter was sexually abused. Later the notes refer to the mother absconding.
The person named as the mother’s emergency contact was telephoned and the mother was with that person. The notes record:
…passed the phone to the patient. Patient informed [the registered nurse] that daughter was abused and she needs to be with her. Emphasized to patient that she needs to go back to the hospital, patient responded that she is not coming back then hung up the phone.
Suburb G police were contacted and were unable to locate the mother on 4 July 2020. The police reported that they had been to the mother’s home but no-one was there.
On 5 July 2020, the hospital notes record a phone call from the mother’s “partner” who did not know where she was. He reported that the mother became angry with him the previous night and left. The police were again contacted. The police records note that the mother was to be scheduled and returned to FF Hospital.
At 13.10 the mother’s partner again phoned the hospital to say that the mother was at home with him. The notes record:
…also admitted that he had lied all along and that patient and himself were at his house since absconding yesterday and didnt [sic] answer the door to police.
At 13.30 the mother’s partner called the hospital to say that the police and an ambulance had arrived to bring the mother back to the hospital. The mother’s partner told the hospital the mother had been drinking “last night and again today”.
Police notes record that while waiting for the ambulance the mother “grabbed a bottle of wine and attempted to drink. Police intervened and took the bottle”.
On 5 July 2020, the hospital notes refer to the mother’s being hospitalised in custody of police and noted concerns about her cogitative function. The notes record, “Unable to carry out neuro assessment as [patient] unable to follow instructions.”
She was discharged on 20 July 2020.
On 30 July 2020, the police were called to a residence. The occupier told police that he wanted the mother removed from the premises. The police noted:
Police observed [the mother] who was laying [sic] in the yard of the premises. It was obvious to police that [the mother] was heavily affected by intoxicating liquor. As a result of her intoxication an ambulance was contacted. Paramedics attended and conducted an assessment…[The mother] voluntarily agreed to attend [Prince of Wales hospital] as a result of her intoxication. She was then conveyed by ambulance.

On 13 September 2020 the mother called an ambulance, reporting that she had been having seizures. She was taken to hospital and the notes indicate that she told the hospital that she was not having seizures, that her last seizure had been two weeks ago and that she needed help because she was having a “domestic violence incident” with her partner Mr CC.
The notes on admission record:
states she feels safe at home “because its [sic] safer than on the street”
states no friends/family or elsewhere she could go
The notes record that the mental health team advised that the mother should not be admitted but “patient is unable to return home a partner Mr CC states he does not want her there.”
The mental health assessment notes record a discussion with Mr CC:
…who reports he called police because [the mother] was “playing up”. He states she has a big problem with alcohol. Unsure how much she has had today because he has been at work. Mr CC reports [the mother] just turned up at his house in March and asked to stay. He states now his friends are saying to him that he has to get rid of her because she is killing him. Mr CC states, “you cant [sic] reason with her”. Mr CC states [the mother] stopped taking her medication 1 week ago… Mr CC states [the mother] doesn’t get on with her family and they do not have any contact. Mr CC states she cannot come back to his house.
On 21 August 2020 there was a telephone conversation between the mother and an officer of the DCJ. In the course of the conversation the DCJ officer said to the mother “I’m worried about you because you sound really upset. Is there someone who could come over and stay with you this afternoon?” and the mother replied “Who? My sexual abuser? My sexually abused daughter?…”
The DCJ officer said to the mother “I am worried about you. You are not making sense” and the mother replied “You fucking idiot. You’ve taken my daughter off me.” The mother then told the DCJ officer “you are on speaker right now and they can all hear you.” The mother said that “Someone is listening in this conversation right now” and “my lawyer is here right now.” The DCJ officer noted that the mother then proceeded to talk in a high pitched voice, and then in a low pitched voice, pretending to be different people who were friends of the mother. The DCJ officer noted:
At 3:16pm, I rang 000 for an ambulance to attend the home, explaining that [the mother] sounded very intoxicated, was slurring her words and not making sense and then was unresponsive when I was trying to talk to her and I didn’t know what had happened to her.

THE MOTHER’S CURRENT SITUATION

In an affidavit sworn on 29 September 2020, the mother deposed that she currently shares a three bedroomed house in Northern Sydney. She does not disclose the identity, or relationship to her of the other occupant or occupants. She deposed that there is a room prepared for the child at her house.
The mother deposed:
I am happy to go back to any of the [named] Hospitals to help me get over my bad habit. I believe there is antabuse (antibuse) treatment that is an alcohol-abuse deterrent used together with counselling and support, it works by blocking the breakdown of alcohol, causing unpleasant side effects (vomiting, upset stomach) if even a small amount of alcohol is consumed. I have private health insurance so I could arrange admission when they have a place. I take full responsibility and I want to stop drinking wine for good.
The mother deposed that she is presently using a four wheeled walker or two crutches which makes it difficult for her to travel by public transport. She does not have a car.
In her affidavit sworn 29 September 2020, the mother deposed:
When the child was 3 and I left [the father], for 3.5 years I did not drink at all. I had treatments at HH Hospital, M Hospital, JJ Hospital. When I was going to see the child previously or when she was with me, I had not a drop of wine, because there was no need for me to have wine to numb my pain and I was always overwhelmingly happy to see her.
I do not accept that evidence. the child turned three years of age in September 2014 and it was at about this time the parents separated. On the mother’s account, she was then sober until about March 2018.
The Magellan Report which was prepared in September 2018 noted the following matters:
On 28 October 2014 a safety assessment was conducted which revealed the child was residing with her maternal grandparents as [the mother] was attending an inpatient program. [The mother] disclosed a long standing addiction to alcohol spanning between 10-12 years.
On 5 November 2014 a further safety assessment was conducted by the DCJ as the child had been returned to her mother’s care. The DCJ noted:
At this time [the mother’s] alcohol use was not seen to be affecting her capacity to parent as she was receiving treatment. Alcohol abuse by carer was substantiated as the primary issue in this case.
On 6 December 2014, the police attended at the mother’s home at the request of the father. The police were told by the father that, when the father arrived, the child was standing in the rain outside the flat, wearing only her underwear. The father checked inside the flat and found the mother lying inside the house unresponsive.
On 7 December 2014, the DCJ received a notification that the mother had been located unresponsive in her home and that the child was present and unsupervised. Police were called and the child was taken to the maternal grandparents. The DCJ noted:
A case plan was developed with [the mother] about managing her alcohol use and the requirement that she attend a day program and continued to observe her safety plan should she relapse.
On 5 February 2015, the DCJ received a notification that the mother had presented to E Hospital with a blood alcohol level of 0.46. The mother told DCJ staff that she had relapsed after two months of sobriety. The mother insisted that she had consumed only a small amount of alcohol and when challenged regarding the blood alcohol readings taken at the hospital could not provide an explanation.
On 25 February 2015 the DCJ met with the mother and requested that she attend an inpatient program for no less than nine months. The mother said she would consider this.
On 2 March 2015 when the mother was again contacted by the DCJ she said she was unable to locate an inpatient program and did not think she met the criteria in any event.
On 5 November 2015 the DCJ received a report that the mother had been located in her home, unresponsive, and that the child, then aged four years, was unsupervised.
There is no evidence to substantiate the mother’s claim that she attended in- patient rehabilitation for extended periods of time.

THE CHILD’S CURRENT SITUATION

The child continues to see a psychologist, currently Ms B.
She sees a speech therapist, Ms LL, and has been assessed by an Ear, Nose and Throat specialist, Professor KK.
Dr MM has conducted a paediatric assessment and provided documentation to the child’s school to secure ongoing targeted support for the child.
She is receiving regular dental check-ups.
The child is attending regular swimming lessons on Thursdays and has commenced football in an Under-9 team. She trains on Wednesdays and plays on Saturdays.
The child attends NN Primary School and is dropped off by her father on his way to work in the morning and collected by him in the afternoon. The school has developed an Individual Education Plan for the child.
The DCJ has no concerns about the child’s welfare in her father’s care.

CONSIDERATION

There is no dispute that the child will continue to live with her father and that he will have sole parental responsibility.
The issue to be determined is whether, and in what circumstances, the child will have any contact with her mother.
The primary considerations, set out in s60CC(2) of the Family Law Act 1975 (Cth) (“the Act”) 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.
In this case, it is the need to protect the child from psychological abuse as a consequence of her mother’s fixed belief that the child has been sexually abused together with the need to protect the child from the mother’s behaviour when she is affected by alcohol that is paramount.
Counsel for the mother asks, rhetorically, what are the risks? Counsel posed the following questions:
·What harmful outcome is potentially present in this situation?
·What is the probability of this outcome coming about?
·What risks are probable in this situation in the short, medium and long term?
·What are the factors that could increase or decrease the risks?
·What measures are available whose deployment could mitigate the risks that are probable?
I propose to answer those questions after first considering the matters prescribed in s60CC(3) and having regard to the evidence already discussed.

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;

Dr U saw the family in October 2019 and in February 2020.
The child told Dr U “I want to live with my dad forever. Did you write forever? Make sure Judge reads forever”.
Dr U noted:
the child's greatest wish is to reunite with her maternal and paternal family members as 'one big family’, including [the father], her paternal and maternal grandparents, Ms W, Mr Y, Z, [her half-siblings mother], her paternal aunt Ms AF and her cousins. She also stated that she wanted to live with her father 'forever'. It is noted however, that the child did not include her mother in this list.
The child has told a number of professionals that she is afraid of her mother and does not want to see her.
At the conclusion of the contact visit on 28 February 2019 the child said to the supervisor “she didn’t scream and say give me back my daughter and all that.”
On 5 March 2019 Ms B, the child’s psychologist, telephoned the DCJ. The DCJ’s notes record, “the child said she was scared when she has seen her mother. Scared her mother would be angry at her”. Ms B said to the child “Do you want to see her again” and the child replied “No, I never want to see her again... I never want to live with her again”. The notes report that she spoke very clearly and strongly.
On 4 April 2019 when the child was being taken for a visit with her mother she said to the supervisor words to the effect “I’m a bit scared; suppose she shouts and screams; will you stay with me”. The supervisor noted, “As we drew closer to the venue, the child again said she was ‘a bit scared’…”
In the course of the visit the supervisor noted that the mother said to the child words to the effect “I don’t know why we’re not together but I do know it’s not because of me and I hope the lady told you that, she said she did.” The supervisor noted:
[the mother] was encouraged to remain positive toward conclusion of contact however she began to openly cry and on one occasion held the child appearing to ensure she (the supervisor) observed this. This was shut down by way of redirection and [the mother] was asked to leave the contact room prior to the child and the Supervisor’s departure. She continued to cry, appeared to attempt to steady herself and left at the door with the child saying “by mummy”…
On 11 April 2019 the supervisor collected the child to take her to a visit and the child said “I’m a bit scared, how come we’re going”. As they were driving to the venue the child again told the supervisor she was “a bit scared”. In the course of the visit the mother remarked that she had been in the city “just seeing some people” and the child said words to the effect “what people; do I have to live with you again. That’s never going to happen…” Later the mother was noted to say, as the child played, “this is fucked”, referring to the supervision. The mother later said, referring to the child who, according to the supervisor, was quietly playing “you should write down that she is disassociating”. Later in the visit the mother said to the supervisor “do you know about my ex-husband, he’s very high up; it’s my fault for reporting it”. The supervisor immediately shut down the conversation.
On 29 April 2019 Ms B emailed the child’s teacher asking for an update. Ms B stated:
Tonight, in her session with me, the child presented as quite jumpy and hypervigilant. She was easily distracted by any noise outside the room thinking it was mum coming to get her and was unable to refocus until the noise went away or she checked it was not mum.
The child’s teacher replied on 30 April 2019 in the following terms:
Thanks for contacting me with your concern; the child’s behaviours are of a concern to me as well.
Your description of the child is only something I see on a Thursday, when the child usually has a visit with her Mum. At times her visitation visit with her Mum is cancelled and you can see the relief on the child [sic] face when you tell her she doesn’t have to see her Mum. I also see the look of fear on her face when she is collected to visit with her Mum, it nearly breaks my heart. The child is very panicked and close to tears.
Ms B wrote a report on 21 June 2019 when the child had attended 12 sessions with her. Ms B stated:
The child engaged well in therapy from the beginning, and seemed to value the 1:1 time and the freedom of being able to direct the play in the therapy room. Despite immediate engagement, the child was quite different in her presentation from when she was in her mother’s to her father’s care. The child presented in a more hyperactive state when in the care of her mother, causing her to be more impulsive and difficult to direct in the therapy room. …
Whilst the child was in the care of her mother, her themes in play were indicative of the child being in a heightened fear state. Her character had nightmares and a lot of fear with visitors to the house. Some aggression in play include her character being tied up with a rope. Characters causing the fear in paly were unidentified and were either ‘meanies’ or bullies. Most notably the child refused to allow her mother into the therapy room at the end of the session, a reasonable part of effective therapeutic intervention for a child of the child’s age to promote consistency and follow up with treatment strategies.
The child appeared adamant that she did not want to include her mother in counselling. She stated that she did not want her mother to enter the counselling room and pleaded this case. While it was not clear what the child’s reasoning was, [the mother] was not invited into the counselling room on these occasions as to maintain a safe place for the child to continue to engage in therapy.
…
Since being the care of her father, the child has started to discuss being afraid of her mother for the first time in therapy. Reasons given include her being afraid of [the mother] being ‘angry’, ‘mean’ or because she should ‘come and take me away’.
At a supervised visit on 26 September 2019 the child told the supervisor, when she was picked up, “if I don’t feel safe, I just come to you any time”. As they travelled towards the venue for the visit the supervisor noted “the child asked three time if we were near and each time said she was scared and once said she did not want to go”. In the course of the visit the supervisor noted:
Within the contest [sic] of the imaginary play – the child spoke jokingly about going on a holiday – to a scary forest – [the mother’s] demeanour clearly changed and she looked at the Supervisor.
[The mother] said she didn’t want to go to even a pretend scary forest.
The child immediately changed the game story and said it was a joke.
[The mother] appeared to fixate on this and the child tried to change the conversation again saying “scary place” – “safe place” – the child tried to continue the play.
[The mother] was observed to look at the Supervisor again and said words to the effect: the child, why would you go to a scary place; I don’t want to. Do you remember if you need to tell anyone anything you can tell Ms AC, she will help you – remember what you learnt from pre-school – you can dial 000, never go anywhere without an adult and always a girl.
The supervisor noted that the child “appeared a little disgruntled” with the mother’s comment and said “I’m safe there”.
At the conclusion of the visit the mother hugged the child and said “Make sure if you need to tell anyone anything, you tell Ms AC”.

The nature of the relationship of the child with:

each of the child’s parents; and
other persons (including any grandparent or other relative of the child);

On 18 February 2020 Dr U observed the child and her mother at the home of the maternal grandparents and reported:
The child began to find excuses to enter the kitchen to seek comfort from the maternal grandparents. She was observed to give her grandfather hugs and sought both grandparents for comfort throughout the observation. The child appeared to seek safety, security, and comfort from her grandparents. Conversely, she was notably hypervigilant in the presence of her mother.
Dr U reported:
The child understood that she no longer lives with her mother, because Ms Coley had ‘hurt’ her and that ‘she gets people in trouble for no reason’. The child was somewhat confused by her memories of her mother's behaviours in 2017 and 2018. She reported having assisted her mother in cleaning dishes and ‘I didn't know what I did wrong... she smacked me on the face’. The child also recalled her mother telling a friend's mother to ‘get away from my daughter’ when the lady was trying to get the child home in 2018.
Dr U stated that, in contrast to the very affectionate relationship he observed between the child and her paternal family and her maternal grandparents:
…the child was notably guarded whilst interacting with her mother, but nevertheless sought to engage with her. The child evinced protectiveness towards her mother, particularly when [the mother] walked around the house without crutches. The child's interactions with her mother was akin to parentification, whereby the child assumes a protective, adult role to their parent.[The mother’s] interactions with the child was characteristically permissive, whereby she did not assert parent-child boundaries with the child. Additionally, [the mother] tended to detach and disengage from her interactions with the child. She was not emotionally attentive to the child's needs.
Dr U stated:
The child demonstrated generally secure attachment behaviours with her father, Ms W and maternal grandparents. Her attachment with her mother appeared insecure and somewhat disorganised.
He reported:
Increased parental alcohol use is associated with decreased level of attentiveness, decision making, and less emotional attunement to children. It is clear that [the mother’s] excessive alcohol use, mental health, and sustained brain injury from her recent fall has impaired her engagement with the child.
Dr U stated:
If the child were to have remained in [the mother’s] care, then she would have been exposed to greater psychological harm, due to her mother's substance use and associated behaviours, neglect, police involvement.
Dr U observed the child with the father and noted an affectionate relationship.
He reported that the child expressed her affection for her maternal grandparents and for her paternal family.

The extent to which each of the child’s parents has taken, or failed to take, the opportunity:

to participate in making decisions about major long‑term issues in relation to the child; and
to spend time with the child; and
to communicate with the child;

The mother’s attendance at contact visits with the child, arranged and supervised by the DCJ, has been infrequent and irregular. The mother was entitled to weekly visits.

Ms AD, a caseworker with the DCJ, deposed that the mother spent time with the child on five occasions between 19 February 2019 and 31 October 2019. In relation to the visits Ms AD deposed that the mother cancelled two visits due to sickness, and one visit due to a friend dying. The mother did not attend one visit. Ms AD cancelled five contact visits either because she formed the impression that the mother was intoxicated or experiencing poor mental health after speaking to her on the telephone on the day of the visit or that the mother did not confirm that she would be attending. Only one visit was cancelled due to there being no supervisor available.
On 2 May 2019 Ms AD sent a message to the mother advising that the DCJ would be cancelling her visits with the child until the mother met with the DCJ. The message indicated that the mother had not attended the last three visits with the child and it was not fair to the child to tell her that she was seeing her mother if she was not. The mother did not attend a meeting with the DCJ until 9 July 2019 when she said she would like to continue with the weekly visits with the child. The DCJ informed the mother that they would reinstate the visits but that if multiple visits were missed then the situation would have to be revaluated.
Thereafter, there were weekly visits in July 2019, one visit in August 2019 and one visit in September 2019 before the mother was injured and hospitalised.
The DCJ took the child to visit her mother at the rehabilitation hospital in January 2020 and Dr U saw the child with the mother on 18 February 2020 for the preparation of his report.

The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

either of his or her parents; or
any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

At the present time, the child has not spent time with her mother since the interviews conducted by Dr U in February 2020.
In reasons for judgment delivered on 9 April 2020, I set out the evidence of the mother’s attempts to have the child disclose that she had been abused. That evidence is found at paragraphs 82 and following of the reasons.
That evidence demonstrates that the mother, unsupervised, will continue to coerce a disclosure of sexual abuse from the child.
In those reasons I stated, at paragraph 88:
In relation to the material on the mother’s phone, the records of the NSW police state:
In relation to the video, and photos of the Genitals of [the child], the content would be considered child abuse material…
In relation to the other material located on the phone as described, the sheer amount and nature of recordings gives rise to concerns for the welfare of young persons experiencing this within the family home.
Whilst protectiveness of parents is encouraged, it appears that [the mother] is fixated with her child being abused and is subjecting the child to regular questioning, challenging her answers, engaging in leading conversation, taking overt/covert video and voice recording and touching the childs [sic] genital areas whilst recording.
Investigators have concerns that this behaviour may have serious implications on the mental health of the young person, being that it may groom her to believe this normal, may embed fictitious memories in her mind and, if an assault has occurred she may be confused between [the mother’s] words/memories and her own. She may also be discouraged from disclosing to investigators due to the relentless questioning and non acceptance of her answers by [the mother].
The concerns expressed by the police accurately describe the material recorded on the phone and their conclusions about the effect on the child are valid.
The mother’s behaviour in supervised sessions with the child has also raised concerns.
In relation to a scheduled contact visit on 28 February 2019 the contact supervisor noted that when she arrived to collect the child:
The child asked immediately if she had to go to see [the mother] and said “I didn’t know, I wish it was cancelled”.
The supervisor acknowledged the child and reassured her she’d be safe and accompanied at all times. At that visit the mother was “encouraged not to be overly graphic verbally” when the imaginative play involved the toy and ambulance. “[The mother] challenged the direction saying “but it’s fatual [sic]”. She was directed again and was compliant.” The child was noted to have enjoyed the visit and not wanted it to end. The mother, at the end of the visit was observed to be emotional and crying. At the end of the visit the child said to the supervisor words to the effect “she didn’t yell or anything”.
For a supervised visit on 21 March 2019 the supervisor collected the child from school and noted “The teachers at the child’s school told the worker that the child gets very nervous when she knows she is having a visit.” During the journey to the supervision centre the worker noted “the child said a few times during transport that she was nervous to see her mum as sometimes her mum gets cranky and yells at her.”
Ms B recorded:
During a session on 29 April 2019, the child stated: “Dad loves me by protecting me from danger, feeding me, caring for me. Mum loved me differently. Mum loved me by being mean…”
During the above session, the child appeared consumed by the fear that her mother was coming to ‘get’ her that she was evidenced to be hyper-vigilant, jumpy and distracted by noises outside the room. She opened the door several times to confirm her mother was not there. This level of anxiety was evidenced to be debilitating for the child: she had tremendous difficulty holding her attention and focusing, more so than any other time during the counselling.
…
Her teacher has reported seeing the child “stiffen up”. During counselling, the child has described that at these times her heart is raising and that she is scared and starts repeating ‘what if’ questions associated with her mother’s behaviour, for example ‘what if she tries to take me away?’.
Ms B concluded:
The child’s anxiety needs to be monitored and if symptoms worsen or her anxiety appears to interfere with her ability to learn at school, consideration to be given for a paediatric review.
Under the heading “Access to mother” Ms B stated:
Ideally the child would benefit from a positive and safe relationship with both her parents and family. Given the child’s level of expressed fear concerning her mother, it is my opinion that regular contact with her mother at this time may inhibit the progress that would be expected from counselling, and may hinder her overall development. During session on 25 May 2019, the child reported that she was no longer feeling scarred because she ‘hadn’t been thinking about mum’. She had not seen her mother in over a month when this statement was made. It is my opinion that stability of contact arrangements with reduced frequency is likely to be associated with increased stabilisation for the child.
Based on my interaction with the child and both her parents and trauma-informed research, I believe that visits between the child and her mother present as a destabilising factor for the child, that causes her heightened anxiety.
On 24 May 2019 Ms B telephoned the DCJ expressing concerns about the child’s hypervigilance and her capacity to learn due to her heightened states. She said that any loud noise outside the room or a female voice would make the child anxious and say that it was her mother. She also said that the child was concerned about her mother “overpowering and hurting the contact supervisor” and taking the child.
On 27 May 2019 the DCJ emailed the head of the child’s primary school asking for an update in relation to the child. The Principal replied:
The child has been doing so well! She is confident and happy. The positive difference to her demeanour has been remarkable. I understand the importance of connecting with her mum but this break has been very stabilising.
On 18 January 2020, when the child was taken to visit her mother in the rehabilitation facility, the supervisor noted:
The child said clearly [to her mother] “I wish I could see my brothers, I miss them,” [The mother] was vitriolic in tone with her response and said something like: well that’s because of me, things were going on that weren’t ok, I stopped that. The child looked confused and looked querying [the mother’s] reply. The child said “at least I get to see my sister”.

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;

It is acknowledged that the parties cannot afford the costs of private professional supervision.
The facility nominated by the mother in her proposed orders is an office of the DCJ, not a supervised contact centre.
The only contact centre which has indicated an ability to supervise time is that run by SS Centre at Suburb TT.
Because the father works full time and the child is at school, contact will have to take place on Saturday or Sunday.
The orders will provide that the mother have the responsibility to organise the contact.
If she is not capable of organising contact, then she is probably not in a fit state to spend time with the child.

The capacity of:

each of the child’s parents; and
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;

Dr U stated:
The child has previously experienced chaotic and disruptive living arrangements due to her mother's mental health and substance use. Her basic, educational and emotional needs were not adequately met whilst in her mother's care. The child is currently attending school regularly, her basic and emotional needs are met in her father's care, and she has stability on a day to day basis. If the child's circumstances were to change, she is likely to experience another disruption, which is likely to affect her learning, emotional state, and attachments to her caregivers.
He described the mother’s parenting as significantly impaired and her future parenting ability as “further impacted by her ongoing substance abuse”.
He stated:
Given [the mother’s] lack of insight and denial of alcohol abuse, it is likely that she will continue to prioritise alcohol over her own safety and functioning, much less the child's needs.
Dr U recommended:
This clinician recommends as a matter of priority, that [the mother] is readmitted to T Hospital to complete her physical rehabilitation and from there, then admit herself into a residential drug and alcohol treatment service for a minimum of nine months (for example, UU Centre). The clinician recommends that [the mother] seeks a comprehensive neuropsychological and psychiatric assessment and ongoing intervention for her mental health. As stated above, the clinician observed symptoms that may suggest a diagnosis of substance induced psychosis. [The mother’s] recurrent substance use in spite of her near-death incident remains highly concerning.
Dr U concluded that, if the mother does not re-enter treatment, ongoing contact with the mother needs to be professionally supervised.

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

It is evident from the hospital records that, for a significant period of time, medical professionals have been trying to persuade the mother that she should stop drinking.
Dr U, in his report that has been available to the mother since February 2020, made strong and clear recommendations in relation to assessment and rehabilitation.
Yet none of those professionals has succeeded in persuading the mother to take action to address her drinking.
Whilst the mother readily acknowledges in her affidavit, that she is prepared to undertake residential rehabilitation, she has taken no steps to do so and there could be no confidence that she will do so.

CONCLUSION

I propose to state my conclusion within the framework of the questions posed by counsel for the mother.

What harmful outcome is potentially present in this situation?

There are a number of potential harms.
The child has consistently told supervisors that she is afraid of her mother and, objectively, the mother’s past behaviour would have caused the child to be fearful.
The child’s psychologist and her teachers have commented on the stress and hypervigilance which the child exhibits around visits to her mother.
Ms B, the psychologist, regarded contact with the mother as destabilising for the child and suggested that reduced frequency of contact would be beneficial.
The child’s teachers and the father have noted that the child became more settled and relaxed in the period when she did not have contact with her mother.
It is notable that all of these observations occurred when the child’s time with the mother was being professionally supervised.
The risk of supervised contact which is more frequent than the child can tolerate is that her stress and anxiety will subsume her ability to function in her day to day life and schooling.
The mother’s unreliability poses another risk in that, if the child is continually prepared for visits with her mother that do not occur, she will continually be stressed in anticipation and then either relieved or disappointed.
Different risks emerge if the child’s time with the mother is unsupervised.
It is likely that the mother will continue to talk to the child about the mother’s fixed and continuing view that the child has been sexually abused by her half- brother, her belief that the father is a paedophile and her general fears for the child’s well-being. Even in the presence of supervisors, the mother has not been able to restrain herself from these behaviours.
This risk is posed both by unsupervised face to face contact and by Skype or FaceTime contact as proposed by the mother. Such electronic contact is essentially unsupervised.
Further, with electronic contact, there is no preliminary assessment of the mother’s sobriety or her mental state by an experienced supervisor who can determine whether the mother is in a fit state to interact with the child, leading to the concern that it is likely that the child will be exposed to the mother in a state of intoxication where not only is the mother unable to keep the child safe, but she is also unable to keep herself safe.
Such exposure would be harmful if the contact were electronic and devastating if the contact were face to face.

What is the probability of this outcome coming about?

All of the risk factors that are outlined above are likely to occur.

What risks are probable in this situation in the short, medium and long term?

The risks outlined remain in the short, medium and long term.
I reject the submission made on behalf of the mother that “The child is of an age where she is able to report, should any serious issue cause her concern”.
The child is nine years old. She is not able to protect herself either from her mother’s drunkenness or from her mother’s interrogation of her.

What are the factors that could increase or decrease the risks?

The mother’s successful participation in rehabilitation for a significant period of time followed by a significant period of hair follicle testing demonstrating abstinence is the only circumstance which could ameliorate the risks which I have enunciated.
Absent evidence of the mother’s continued and continuing sobriety, limiting the extent of the contact the child has with her mother, as proposed by the father, will safeguard the child while allowing, subject to the mother’s physical and psychological availability, for the child to maintain a relationship with her mother.

What measures are available whose deployment could mitigate the risks that are probable?

There are no measures available, having regard to the current state of the mother, which can mitigate the risk, other than limited, strictly and professionally supervised contact in a contact centre.

I certify that the preceding one hundred and sixty-three (163) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 19 October 2020.

Associate:

Date: 19/10/2020

[2020] FamCA 877

19 October 2020

Key Legal Topics

Areas of Law

Family Law