Director General, Department of Family and Community Services and Adams & Anor
[2012] FamCA 73
•15 February 2012
FAMILY COURT OF AUSTRALIA
| DIRECTOR GENERAL, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & ADAMS AND ANOR | [2012] FamCA 73 |
| FAMILY LAW - CHILDREN – Where the Department of Family and Community Services has a longstanding involvement in the matter – Where the Mother has a physical disability –Where the eldest child has health problems which require a high level of care – Where a diagnosis of Munchausen Syndrome, or Munchausen Syndrome by Proxy, cannot be made – Where the Mother suffers from a personality disorder. FAMILY LAW - CHILDREN – With whom a child spends time – Where there are concerns as to the Mother’s ability to provide adequate care for the children – Supervised care – Children to live with the Father - Children to spend supervised time with the Mother. FAMILY LAW - CHILDREN – Parental Responsibility – Father to have sole parental responsibility of the children, save for the issues of residence and the time the children shall spend with the Mother – Father and the Minister of Family and Community Services to have joint parental responsibility in relation to residence and the time the children shall spend with the Mother until each child attains 12 years of age – After the children turn 12 years of age, the Father to have sole responsibility in relation to all issues. |
| APPLICANT: | Director General, Department of Family and Community Services |
| FIRST RESPONDENT: | Mr Adams |
| SECOND RESPONDENT: | Ms Condon |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Ferguson, Solicitor |
| FILE NUMBER: | LEC | 443 | of | 2008 |
| DATE DELIVERED: | 15 February 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Bell J |
| HEARING DATE: | 8 to 10 February 2012 (Judgment delivered 15 February 2012) |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Hartstein of Counsel appearing for the Applicant |
| SOLICITORS FOR THE APPLICANT: | Crown Solicitor’s Office |
| COUNSEL FOR THE FIRSTRESPONDENT: | Mr Priestley of Counsel appearing for the First Respondent |
SOLICITOR FOR THE FIRST RESPONDENT: | Paul Denmead & Co |
| SOLICITOR FOR THE SECOND RESPONDENT: | Mr Hunter, Solicitor, of David Hunter Solicitor, appearing for the Second Respondent |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Ms Ferguson, Solicitor of CJ Legal Solicitors appearing for the Independent Children’s Lawyer |
Orders
IT IS ORDERED THAT:
That all previous orders be discharged.
Parental Responsibility
That:
a) The Father, Mr ADAMS, born … May 1973 ("Father") have sole parental responsibility for all aspects of the long term and day to day care, welfare and development of the children, C ADAMS, born … March 2007 ("C"), and O CONDON born … August 2010 ("O") (collectively, “the children”) save for the issue of residence and time that the children shall spend with the Mother, Ms CONDON born … February 1984 ("Mother").
b) Parental Responsibility for residence and the issue of time that the children shall spend with the Mother be exercised jointly between the Father and the Minister for Family and Community Services NSW ("Minister") for each child until each child attains 12 years of age, thereafter to be exercised solely by the Father.
Live With
That the children live with their Father.
Spend Time With – In Person
That:
a) The children spend supervised time with their Mother as may be agreed between the parties and in the event that an agreement cannot be reached, then the children shall spend time with their Mother:
i.for a period of up to 3 hours once per fortnight supervised by the delegate of the Director-General, Department of Family and Community Services ("Director-General") or an agency or person nominated by the Director-General;
and, if available:
ii.for a period of up to 3 hours in the alternative fortnight, supervised by either:
1.A professional contact supervision service ("Service") (subject to the Mother and Father both being able to pay half or either the Mother or Father being able to pay all of the cost of the Service"); or
2.A person or persons as nominated by the Mother and approved by the Director-General and the Father for supervision of the Mother’s time with the children; or
3.Contact Centre 1 ("Centre") or like Centre agreed between the Mother, Father and Director-General, and in the event that the Centre is to supervise the children’s time with the Mother then the time the Mother shall spend with the children shall be the time that the contact Centre can provide up to a maximum of 3 hours.
That for the purpose of Order 4(a)(ii)(3), the cost of such supervision shall be paid for by the Mother and Father in equal shares and the Mother and Father will do all acts and things required by the Centre or Service for use of the Centre or Service.
That for the purpose of Order 4, the Mother shall provide all food and beverages and other needs for the children during the time they spend with her.
Spend Time With – By Telephone
Unless otherwise agreed, the children shall communicate by telephone with the Mother each Sunday evening (NSW time) between 6 pm and 7 pm with the Father to facilitate and monitor this communication by telephoning the Mother on her landline during the said time.
Supervision by Director-General
That:
a) The Director-General, through her delegate, will prepare a report 12 months from the date of these Orders in respect of:
i.the welfare of the children,
ii.the time spent by the children with the Mother, and
iii.the need for supervision of the time that the children are spending with the Mother.
For the purpose of Order 8(a), the Director-General's delegate will provide a copy of this report to each of the Mother and Father.
Following receipt of the report referred to in Order 8(a) herein, the arrangements for the time the children spend with the Mother as referred to at 5 herein will be reviewed by the parties.
Exchange of Information and Restraints and Injunctions
That unless otherwise agreed the Father and Mother communicate by text or email in respect of issues relating to the children.
That the Mother and the Father inform each other within 7 days of any change to their contact telephone numbers.
That the Father shall:
a) Keep the Mother informed of the names and addresses of any treating medical or other health practitioners who treat the children and authorise those practitioners to provide the Mother with information that they are lawfully able to provide about the children; and
b) Inform the Mother as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the children. This Order authorises any treating medical practitioner to release the children’s medical information to the Mother.
That the Father authorise, by this Order, the schools or day care centres attended by the children to give the Mother information about the children’s educational progress and other school related activities and supply her with copies of school reports, photographs, certificates and awards obtained by the children (at the Mother’s cost).
That the Mother and Father shall:
a) Respect the privacy of the other parent and not question the children about the personal life of the other parent;
b) Speak of the other parent respectfully;
c) Not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.
The Mother is restrained from:
a)Commenting on the children’s diet in their presence or hearing.
b) Commenting or discussing the children’s health in their presence or hearing, other than to establish if either child is unwell while spending time with her.
c) From seeking medical treatment for either child, other than in the case of an emergency.
In the event of either child becoming unwell whilst spending time with the Mother the children shall be returned to the Father or his nominee forthwith, and he be responsible for obtaining medical assistance if required.
That the Father continue to facilitate C's attendance on the Child Psychologist
Mr H, or his successor, until determined by Mr H to be in the child's best interest.
That the Father and Mother abide by any medical instruction, including requirements for an Epipen.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Director General, Department of Family and Community Services & Adams and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: LEC 443 of 2008
| Director General, Department of Family and Community Services |
Applicant
And
| Mr Adams |
First Respondent
And
| Ms Condon |
Second Respondent
REASONS FOR JUDGMENT
This is an application on the part of the Director-General Department of Community Services, formally Department of Human Services, in relation to two children, being the offspring of the first respondent, one Mr Adams, and the second respondent, Ms Condon. Very briefly I wish to give a chronology of what has taken place.
The father was born in 1973. The mother was born in February 1984. She regrettably suffered a serious head injury when she was about 14 or 15 months of age whilst in the possession of her mother, and I think at a TAFE college. The accident caused her to be gravely disabled. She has little or no use of her left arm, and walks with a limp. She has evolved into quite a small woman.
She had a most dysfunctional early childhood. Initially there was evidence, I think that was told to Ms P, a family consultant, that she was taken from her mother and put in care when she was about eight years of age. The respondent mother has indicated this is not quite correct; that she became supervised, in effect, by the Department when she was about eight, and that she on occasions went into so-called respite care, and it was not until she was about 15 or 16 that she was taken by the Department and placed into foster care.
She alleges that during the period of her younger years, she was sexually abused and generally I find she had a particularly miserable existence. She only, on one occasion for a period of approximately eight months, when she was with people who she looks upon as I think Nan and Pops, did she have what she indicates, as a reasonably happy childhood. She still has a relationship with them, and it was an endeavour on her part to see if they could possibly assist in supervising that caused me to consider how close she was to these people, who unfortunately are at present – I think my memory serves me correctly – fostering, and they have little or no time for other children.
As a result of a relationship between the father and the mother – that is the first and second respondent – C was born in March 2007. The mother regrettably, as a result of her injuries, as I understand, suffered severe pain for the last two to three months of her pregnancy. This was caused by, as I understand, the child – the foetus – pressing on her spine. She underwent extensive care at hospital and she also received various analgesics, including opiates like morphine to assist her through this period.
She was hospitalised for about two weeks after C was born, and the father – and I may say in passing that there was never any established relationship between the father and the mother. There was a relationship. He had separated from her, but he came after she – the child – was born. He commenced to live with the mother for a period to assist. The paternal grandmother also assisted in the care of the child, C.
The father attempted to gain employment in a government position, but this was unsuccessful, and the father says that the parties separated finally in or about the month of December 2007; the mother says in or about September 2007. He had subsequent to this time, periodic day contact with C and endeavoured through the Local Court to have more specific time made out for his contact, and that was ordered, I think, on 22 August 2008.
A family report was prepared by Ms P, to whom I have hereinbefore referred, in which she sets out various matters which concerned her, and she made certain recommendations at that stage that the child remain living with the mother. Subsequent thereto, an order was made by the late Federal Magistrate Slack and the order was that the child was to live with the mother; spend time with the father each Tuesday from 3.00 pm to 6.00 pm; each Saturday from 10.00 am to 4.00 pm, and thereafter – until May 2009; thereafter 10.00 am, Friday, until 4.00 pm, Saturday. There are other orders made in relation to the child’s diet.
I may say in passing that Dr M, a paediatrician, has given evidence as to C’s difficulty with food, and I accept without any reservation his evidence which indicates, notwithstanding she did have some difficulties, it has improved, and he is satisfied that the child is being adequately looked after
diet-wise at this stage.
A further order was made in August for the appointment of an independent children’s lawyer and thereafter there have been allegations and contra‑allegations by the parties, contravention applications have been made, and notwithstanding this, the parties got together and the mother became pregnant with the child, O.O was born in August 2010. Once again the mother had a difficult pregnancy and similar symptoms occurred to what I have hereinbefore referred to.
The children – C was put into the care of the Director, as I understand, in or about the month of March. An application was made in the Children’s Court by the Director but it was dismissed in or about April 2010. Whilst the mother was in hospital with O, who was a premature baby with very high needs, it became very concerning to the Director, in that the mother tended to be unable to adequately look after the child, particularly insofar as feeding was concerned. I refer to the evidence in this case, particularly the reports from the Department, wherein there was a concern about her being able to adequately look after the child, O, as well as the child, C.
I note that Dr N – whom I will be touching upon further today – a child psychiatrist, at page 10 of the extract of his evidence, refers to the fact that the mother had difficulty with feeding O. It may be suggested that she evinced little or no interest, since it shows that she on occasions preferred to go outside for the purposes of smoking rather than feeding the child. Admittedly, O needed a great deal of care.
The father, the first respondent, in effect rejected O, indicating that he was of the view at that stage that he was not the father of the child, and as a result thereof he had little or no contact with O until, I think, early 2011, when, after a paternity test had shown that he was 99.6 per cent, or thereabouts, likely to be the father. He subsequent to that has taken the children – the child has been released into his care, as was C, and since that time he has indicated a great deal of remorse and regret that he did not in fact recognise O at an earlier stage, as he finds her a great joy.
Subsequent thereto, the mother has had contact with the children, and notwithstanding that there have been great criticisms of the Department of Communities (Child Safety Services) in the press, I must say that in this case that I am staggered at the amount – staggered and very impressed – with the amount of work that the Department in New South Wales have done in assisting the mother to have contact and develop bonding with her children. There has been an enormous amount of assistance for this mother, and it has continued and is continuing.
Ms A has given evidence of the tremendous amount of time, money and expense which has been expended upon these children and the mother, and I do not for one moment criticise the Department. I think they have done a remarkable job. They are concerned about the mother, and the father, as I said, is now the possessor, if I may say it that way, of the children, and the mother has been having comparatively extensive contact supervised by the Department. She also receives assistance in running the house. Her disabilities are such that she finds that difficult – not impossible, but difficult, particularly, I think she said, vacuuming and making her bed.
I have touched upon Dr N. Dr N was a most impressive witness. He is a Sydney psychiatrist, a specialist in adult and child psychiatry. As a result of the overtures made, he himself journeyed from Sydney to Town L to Town G, where the mother resides, to carry out his report. I must say that the mother resides in her own house – this is in passing – since as a result of applications made by herself she receives a substantial amount of money because of the disabilities that she has suffered, and the guardian in New South Wales manages her finances. She tells me that she has $50,000 there, and they give her an allowance of $100 per week, and they retain her pensions, which amount to something like $340.
I must say that unfortunately the mother has been caught out frequently in not telling quite the truth, and it staggers me that in fact the Department would only allow her $100 per week to maintain herself and the children when she is there. However, Dr N was particularly impressed with the cleanliness of the house. He said it was immaculate, and his in-depth report has been of great assistance to me, perhaps not to the mother.
I refer particularly to once again a transcript, that I have referred to, in his evidence, and refer and incorporate at page 10, lines 8 to 45, and I incorporate that. If I may generally refer to that. He is concerned that the mother – that there are numerous risks in the mother having possession of these children. He says – I am just referring to these paragraphs:
“Firstly there are concerns raised over her providing adequate care and control of the children at various stages of the children’s development experiences.”
He goes on to refer to the difficulty with O’s feeding. There were concerns raised about the aspect of her management of her older daughter. There were concerns about appropriate behaviour management; management of her medical presentations; concerns by a number of sources about her medical treatment and whether she was actually having the symptoms that the mother was responding to.
As has been pointed out by Mr Hunter, who was on behalf of the respondent mother, who has said everything he possibly could on behalf of his client in his submissions, the matters which I have to really look at are set out in his case information document, which are under the heading Issues For The Judicial Determination. The question of the much discussed Munchausen Syndrome, either by proxy or Munchausen Syndrome, does not really arise now since
Dr N, who, as I said, was very impressive, indicated as a result of other matters that he had considered, he was of the view that he could not definitely say that she suffers from Munchausen, but he is quite satisfied that she suffers from a personality disorder.
This is not only his opinion in his report, and his evidence, but this is reinforced as a result of material which he has received from the Department, consisting basically of reports of the various supervisors of the contact that the mother has. They are large in number, and I must say I was particularly impressed with Dr N when Mr Hunter waved these enormous number of documents around. Dr N very quickly – it was put to him that it showed that the mother had improved, and he very quickly said, “I have read the lot, and in my opinion whilst there may be some areas” – and I am paraphrasing what he says – “of improvement,” he considers there are also concerns about other matters, in particular the attitude of the mother towards the father and the attitude of the mother towards the father’s feeding of C. C has had difficulty with diet, but as I have said before, it appears now to have been considerably improved.
Clearly on the evidence before me, and, as I said, notwithstanding Mr Hunter’s in-depth submissions, I could not be persuaded that the children reside with the mother. The question that then arises is – but I further am of the view, and this is supported as early as the first report of Ms P, which was, I think, 2009, some three years ago – in fact over three years ago. She was of the view that the parental responsibility could not be shared, and I am of that view as well, and also I am of the view that there could never be shared parenting time.
The next question is the question of contact. The children are entitled to contact. The evidence from Ms P initially was that – C in particular, O being very young, enjoyed the time with her mother. But as a result of the self-same documents to which I have referred that Dr N considered, she is of the view now that there is a grave concern that the mother has shown the attitude of disapproval of the father and that has not improved. As a result thereof, she – correct me if I am wrong here, but I think she said that it was to be cut down to some once a month for a period of no longer than about three hours; for the children to be supervised by either professionals or a contact centre.
I initially considered that this appeared to me to not be in the best interests of the children. C does love her mother. Obviously the mother loves C and O, and she does her limited best for them. She regrettably has not improved in Dr N’s opinion, and I refer once again to his evidence, and particularly, I am referring to Ms P’s first – particularly in her report of 9 February at page 14, and Dr N’s evidence, and also his concern that she has a history of longstanding dysfunction; see page 5 of the extract.
And of course the next difficulty is how are we going to supervise – it must be supervised. On the evidence before me I am more than satisfied that that is the case. How are we going to do it? There is evidence from Ms A that it is costing, I think, once again, something like $600 per week for the amount of supervision and assistance in the house that this lady is receiving from the Department. It cannot continue, according to Ms A, on that basis. She will endeavour to ensure that there be, I think – correct me if I am wrong – contact be supervised by the Department for a period of about three hours every fortnight until the children are 12.
Whilst she cannot bind the Director, she is hopeful that that would be the case, and regrettably, I am of the view, taking into consideration those matters which I am required to do under section 60CC of the Act, requires me to indicate that I must limit the contact of the mother to such time as the Director is able to supervise. Should the Director be – for a period of a minimum of three hours per week. Should the Director be unable to do so, I am still of the opinion, notwithstanding Ms P’s subsequent evidence that there should be some three hours per week contact between the children and the mother, and that if in fact the Department cannot handle that, that it would have to be either supervised by a person approved of by the Department, or at a contact centre in the Town L area.
I am mindful of the section 60CC factors to which we have to look. I am of the belief that it is essential that there is a meaningful relationship between the children and the mother, and it should be encouraged. I see no reason on the evidence before me that the father is doing other than a very good job, the best he can possibly do, on limited finances and his present wife – who I have not touched upon since she did not give evidence because she was in the final stages of labour and there was by consent – she was not to be called.
I am of the view that the children have to be protected. Whilst I am having to find that they should be protected from physical or psychological harm, I do not believe this is very great, but it is consistent, and in particular I’m worried that the mother’s attitude towards the father has not sufficiently warmed to enable me to consider that there would be no psychological harm, particularly in relation to C.
I am of the view that the father is able to facilitate and encourage a close and continuing relationship between the children and the mother, but I am a bit worried about the mother, insofar as facilitating a relationship between them and the children. I do not believe it is absolutely essential for me to consider all the other matters under section 60CC. I am of the view that I have set out what I consider to be the matter that concerns me in particular and is supported by the evidence of Dr N, as well as Ms P.
I have to take into consideration the matters set out in section 60CC(4), and I have done so, and I believe that whilst there is no intentional failure to fulfil the responsibility, regrettably as a result of her functional disorders, her personality disorders, and her physical disabilities, she is unable to comply as well as she would like and as well as the children require, with those matters as set out in that subsection.
I am mindful of the case of Rosa. I think that the contact is not all that could be desired, but unfortunately it is the only thing that I think can be left to do for the children and the mother, and the practicality of the contact is quite good, because both the parties live in Town L, a comparatively short distance away from each other.
In those circumstances I will call upon the Director to produce to me a draft order at their earliest convenience, taking into consideration those matters that I have suggested. Generally the orders as presented by the Department are, I consider, in the best interests of the children, but I would like them to fine tune the question of contact.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 15 February 2012.
Associate:
Date: 15 February 2012
0
0