Director General, Department of Family and Community Services and Santorno and Anor (No 2)

[2015] FamCA 410

FAMILY COURT OF AUSTRALIA

DIRECTOR GENERAL, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & SANTORNO & ANOR (NO 2) [2015] FamCA 410

FAMILY LAW – CHILDREN – Best interests of the children – With whom the children live and spend time– Where previous final orders granting sole parental responsibility to the Secretary, Department of Family and Community Services – Where children in the care of the Department – where the Department has brought further proceedings to reduce the time the children spend with their biological parents – Where issue of capacity to provide for the children’s needs – Where issue of the special needs of the children – Where need to protect children from harm – Where unacceptable risk of harm

Family Law Act 1975 (Cth)ss 60B, 60CA, 60CC

Collu & Rinaldo [2010] FamCAFC 53
G & C [2006] FamCA 994
Marsden & Winch [2009] FamCAFC 152
Mazorski & Albright (2007) Fam LR 518; [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
Prewett & Mann [2013] FamCAFC 130
Rice & Asplund (1979) FLC 90-725; (1978) 6 Fam LR 570
Santarno & Santarno [2011] FamCA 169

APPLICANT: Director General, Department of Family and Community Services

FIRST RESPONDENT: Ms Santorno

SECOND RESPONDENT: Mr Santorno

INDEPENDENT CHILDREN’S LAWYER: Mr Grew

FILE NUMBER: NCC 384 of 2009

DATE DELIVERED: 2 June 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Sydney

JUDGMENT OF: Hannam J

HEARING DATE: 17, 18, 19 and 20 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Anderson

SOLICITOR FOR THE APPLICANT: Crown Solicitor's Office

FIRST RESPONDENT – LITIGANT IN PERSON: Ms Santorno

COUNSEL FOR THE SECOND RESPONDENT: Mr Hill

SOLICITOR FOR THE SECOND RESPONDENT: Elizabeth Fleming & Associates Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Grew

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Verekers Lawyers

Orders

1. That Orders numbered 3, 4, 5 and 6 of the Family Court Orders made on 11 March 2011 be discharged.

2. That the children spend time with the mother on at least six occasions per year for a period of at least two hours.  That the mother’s time with the children is to be supervised by the Secretary, Department of Family and Community Services or her delegate (“the Secretary”).

3. That Orders numbered 1, 2, 7, 8, 9 and 10 of the Family Court Orders made on 11 March 2011 be confirmed to the extent to which they apply to the mother.

4. That Order 2 be subject to the following: that the mother is not to behave in a threatening or aggressive manner including using threatening or aggressive language towards the children, the care workers, the supervisor or the foster parents at any time.

5. That the Secretary arrange for the children, in the context of their foster family, to attend a therapist skilled in providing treatment to children, adolescents and families in accordance with the recommendations contained in the report of Dr E, Child and Adolescent Psychiatrist, dated 14 April 2014.

6. That the therapist referred to in Order 5 above be provided a copy of the report of Dr E, dated 14 April 21014, and any orders made with regard to therapy.

7. All outstanding applications and cross-applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: NCC 384  of 2009

Director General, Department of Family and Community Services

Applicant

And

Ms Santorno

First Respondent

And

Mr Santorno

Second Respondent

REASONS FOR JUDGMENT

introduction

1. Mr (“the father”) and Ms (“the mother”) Santorno have been unable to care adequately for their children, B, who is now 16 and C, who is now 10. In March 2011, a judge of this Court ordered that the Minister for Community Services (“the Department” or “Community Services”) have sole parental responsibility for B and C and also made orders about the time the children should spend with each of their parents.

2. Since those orders were made, the children have lived together with foster carers where they have progressed reasonably well. However, there have been difficulties encountered by the carers with the children’s behaviour and emotional state, which in the opinion of the delegate of the Secretary of the Department, relates to the time the children spend with their parents. As a result the Department has brought this application seeking to reduce the time the children spend with their parents. The Independent Children’s Lawyer (ICL) proposes the same orders as the Department in relation to parental responsibility, where the children live and the time that the mother spends with the children. The ICL also proposes a number of other conditions in relation to the mother’s time with the children and other matters.

3. The mother opposes the application and seeks orders that the children be returned to her care.

4. The father died on 30 March 2015 after the proceedings were adjourned following hearing and judgment having been reserved. A death certificate has been filed. In the proceedings the father had been seeking that the regime of his time with the children be maintained. In the circumstances, matters relating only to the father’s time with the children are not set out in this judgment.

5. The question for me to determine is whether either of the proposals of the parties, or some other orders, in relation to the future parenting of the children are in their best interests.

Background

1. The mother who is 36 and the father who was 48 at the time of the hearing met in around 1997 and began living together in 1998.

2. The first child, B, who is currently 16, was born in 1998. B has intellectual and physical disabilities, including significant hearing loss.

3. In 1999 the first report was received by Community Services in relation to risks of harm to B in the care of his parents.  In total 38 such reports were made concerning the children over the years they were in the parents’ care.

4. In 2004, C, who is currently 10, was born.

5. The parents married in 2005.

6. In May 2005 the Joint Investigative and Response Team (JIRT), a joint police and Community Services agency responsible for investigating allegations of child abuse, commenced an investigation into allegations made by B that the mother’s brother had sexually assaulted him. As I understand it, although the mother’s brother, himself a person with intellectual disabilities, admitted sexually abusing B, the matter was not taken any further by the authorities.

7. In mid-2008, the mother began living in the mid north New South Wales coast and left the children in the care of the father on the south coast. The mother visited the children and the father took them to see her from time to time.

8. In November 2008, the mother commenced a relationship with her current partner, Mr F.

9. In December 2008, the mother spent some time with the children at the father’s south coast home and became involved in an altercation with the father in which each alleged that the other was violent. The father was arrested and taken into custody and an Apprehended Violence Order (AVO) was made for the protection of the mother and children. The father was ultimately convicted of assaulting the mother and a police officer during this altercation. The mother took the children to live with her and Mr F on the north coast. The father relocated to Sydney.

10. In February 2009, the father came to visit the children on the north coast. He took the children home with him to Sydney. Following this visit the mother commenced parenting proceedings in the Federal Magistrates’ Court, as it then was. Pursuant to interim orders, the children lived with the father and spent alternate weekends with the mother.

11. In March 2009, the father claimed that B disclosed to him that the mother’s new partner Mr F touched him “on the bum in the shower”. The father contacted the police in relation to this allegation. A short time later the father claimed that C disclosed that Mr F had also touched her on the bottom and genitals in the shower.

12. An investigation by JIRT was conducted in relation to these allegations of sexual abuse of the children by Mr F, but no further action was taken as the children were unable to give sufficient detail of the alleged incidents. Mr F has at all times denied any improper contact with either child, and the mother accepts his denials.

13. In December 2009, the parents attended the office of the expert psychiatrist then appointed in the matter for an assessment and a physical altercation occurred and the police attended.

14. On 24 December 2009, after spending time with C, the mother did not return C to the father and the father commenced proceedings in the Local Court.

15. The matter was transferred to the Family Court in Sydney and on 16 February 2010, the mother was ordered to return C to the father by 19 February 2010.

16. The mother then attended a counselling service and discussed the order for the return of C. The counsellor noted that the mother said she would not return C, and if she was made to bring C back to the father she would kill C and herself. The counsellor notified Community Services of the mother’s comments.

17. On 19 February 2010 Community Services applied for an Emergency Care and Protection Order for C, which was made on 22 February 2010. On that date, C was taken into care.

18. The Department then intervened in the family law proceedings and on 3 March 2010, the Family Court made orders placing both children in the care of the Minister and made orders for the children to spend supervised time with each of the parents.

19. The first set of parenting proceedings were heard in November 2010.

20. In her Reasons for Judgment delivered in March 2011[1], Ainslie-Wallace J was of the view that neither the mother nor the father were able to care properly for the children and that it was in the children’s best interests that they remain under the sole parental responsibility of the Minister.

    [1] Santarno & Santarno [2011] FamCA 169

21. At the time the judgment was delivered, the Department’s preferred regime of contact between the parents and the children was for a number of hours on six occasions per year for each parent. Her Honour was of the view that this level of contact was “wholly inadequate in the circumstances of the case and especially in light of the relationship between the parents and the children.” The expert psychiatrist at that hearing made recommendations about an appropriate level of contact for the children, which in the opinion of Her Honour

    [at 175] sounded a warning bell that should the parents or one of them attempt to use the time with the children to undermine the placement, it should be reflected in reduced time. This was because he considered the stability of their placement to have the highest priority to ensure the best opportunity for good attachments.

22. Her Honour also said

    [at 177] as I understand [Dr G’s] recommendation for supervision, it was connected with the inability of the parents to contain themselves in front of the children and the risk that they might through things said, undermine or unsettle the children in the placement.

23. Her Honour ordered that the parents should each separately spend time with the children for four hours each month and ordered that the time be supervised for the first six months. In practice this meant that the children were to see one of their parents each fortnight. Her Honour also said [at 179] “the need for supervision and the question of how long will very much depend on the way in which the parents are able to conduct themselves during the time”. The orders provided for the parents’ time with the children to increase to six hours each month and to be unsupervised after six months.

Events following the making of final orders in March 2011

The mother’s partner

1. The trial judge in the original proceedings did not find that the mother’s partner, Mr F, had sexually abused the children or that there was an unacceptable risk of harm to them should they come into contact with him and did not make an order that contact with Mr F not occur.  However, the issue of Mr F’s presence when the children are spending time with their mother has been a matter of significance since the allegations against Mr F were first made in March 2009.

2. From April 2011, as a result of discussing Mr F attending the mother’s time with the children, Community Services made a decision that Mr F was not to attend these visits because the children were not comfortable about it. On 7 April 2011, the Community Services caseworker informed the mother of this decision. 

3. On 11 August 2011, the Community Services caseworker wrote to the mother requesting that Mr F not attend the visits until further notice from the children’s counsellor and that this issue not be discussed with the children at the visits.

4. Following the next occasion that the children spent time with their mother on 13 August 2011, which was unsupervised, B advised his carer that the mother had made a telephone call to the father during the visit, and that B had spoken to his father and that it was a “secret”. On a later occasion in September 2011 when the mother spent unsupervised time with the children, the father alleged that the mother had telephoned him, was yelling abuse at him and he heard B in the background asking to speak with him, but the mother refused.

5. Mr F attended an unsupervised visit between the mother and the children on 8 October 2011.

6. On 15 October 2011, B was reported to be upset and said “Me had to see Mr F. Not want to anymore”. The carer also reported in the following week that B had expressed his anxiety about not having kept the secret that Mr F attended contact. These remarks included “bad secrets make you sick inside” and “mum not right to tell me not to tell”. The father also expressed concerns that during this visit, the mother who was unlicensed had driven with the children in the car.

7. The father commenced having unsupervised time with the children on 22 October 2011.  During a separate unsupervised visit with the mother on the same day, Mr F was also present.

8. On 26 October 2011 B’s teacher advised Community Services that there had been a “noticeable change in [B’s] behaviour” the previous week and that he “seemed anxious and had an uncharacteristically negative approach to tasks”.

9. On 8 November 2011, following another unsupervised visit with the mother, B said that Mr F had been present. The caseworker wrote to the mother and advised her that due to the children’s distress at Mr F attending contact visits, Community Services had decided to reinstitute supervision for future occasions when the mother spent time with the children.

C’s sexualised behaviour

1. On 20 November 2011, C was observed by her carer to be engaged in sexualised behaviour.

2. On 28 November 2011, it was reported to Community Services that C was exhibiting sexualised behaviour at school, and that another child was found straddling C’s lap whilst they sat on a public toilet with their pants off.

3. In February and March 2012, the carer noted that C had exhibited sexualised behaviour at home. For example, in February C was found by her carer in her room with the cat stretched on her tummy and its back legs and tail tucked into her underpants. In March C was found by her carer with the shower hose in her vagina and playing with the cat’s penis.

4. On 29 March 2012, the School Principal outlined to the caseworker that C had behavioural issues at school, including some learning difficulties, inappropriately touching other children, attention seeking and masturbating in class.

5. On 4 April 2012, it was reported that C and another child had been found in the school toilets together and had been touching each other’s private parts, and C had disclosed that “her cousins at H Town touched her like that and she didn’t like it”.

6. C’s carer also observed other concerning behaviours such as C forcing a cat into an up-turned doll’s house.

Mother undermining children’s foster placement

1. Another area of difficulty in relation to the mother spending time with the children is that she became angry about the children referring to their carer as “Nan” and otherwise attempted to undermine the children’s placement with that carer.

2. In January 2012 during a visit the mother encouraged C to tell the youth worker about the carer smacking her. During a visit in February, the mother became angry and yelled at B when he referred to the carer as “Nan” and C became distressed and started to cry at the end of the visit.

3. The carer reported a deterioration in the children’s behaviour and levels of stress after a number of the occasions when the children spent time with their mother. From January to May 2012, similar behaviour was reported following C speaking to her mother on the telephone during this period.

4. At around this time the children’s foster carer “Anne” said that she felt unable to manage the children long-term and asked for a new placement to be found for them.

Father’s behaviour when spending time with children

1. Concerns also arose in relation to the father’s behaviour when he spent time with the children. On 16 March 2011, the father said to B “don’t go near Mr F” and at the time blocked B with his arm. On another occasion the supervisor requested the father not to discuss court issues with the children. The father continued to speak to the children about court proceedings and was verbally abusive to Community Services workers.

2. On 27 April 2011 when the father spent supervised time with the children, the father told B that he was going to jail due to Mr F. B became upset and distressed. Between May and 5 August 2011, the father was incarcerated and the children did not spend time with him. The time recommenced following his release from jail.

3. On 21 November 2011, following a visit with the father, B said to the carer “I don’t have to live with you anymore. My father said that he is going to court, and me live with him.” Following a visit on 24 December 2011, the carer reported to Community Services that B had said “dad said he is going to get rid of mum and her paedophile bloody boyfriend”.

4. On 17 January 2012, after the children spent unsupervised time with extended family, friends and the father, B was crying and said “my head has been filled with shit” and “me went to the park with dad to make plans, the plans were secret and me not allowed to tell. They needed to dig a hole in the ground…to put mum and Mr F in”.

5. On 19 January 2012 B requested that the next contact visit with his father be supervised and on 20 January the father was advised by the Community Services case worker that his future visits with the children would be supervised.

6. On 17 March 2012 C refused to attend a supervised visit with her father. During the visit, the father said to B “why didn’t you tell them you didn’t want to leave last time”. When asked not to direct such questions to B, the father was physically and verbally abusive to B and the supervisor. 

7. Further difficulties were experienced from March to June 2012 when the father spent time with the children. He became aggressive and some visits were cancelled. The children’s behaviour deteriorated after these visits and they were observed to be distressed.

8. In June 2012, C’s counsellor expressed concern about the detrimental impact of C’s regular contact with her parents.

The Department’s application – interim reduction in parents’ time with the children

1. On 19 June 2012, an Application was filed by the Secretary of the Department to reduce the parents’ time with the children to six occasions of at least two hours per year and such time was to occur in the absence of the other parent.  Interim Orders were made by La Poer Trench J on 28 November 2012 in accordance with this application and providing for the parents’ time with the children to be supervised.

1. The mother had six supervised contact visits with the children in 2013, and in 2014, and was noted to be appropriate in her interactions. Both children were observed to value their relationship with their mother.

2. In February 2014, the mother requested that Mr F attend when she spends time with the children. The children said that they did not want him to attend. On 14 March 2014, it was reported to Community Services that C had disclosed to her carer that Mr F had touched her private places and also touched B. JIRT decided not to pursue investigation as it was a historical matter (it appeared to relate to the March 2009 alleged incident) and as the children were already in care with only supervised contact with their parents.

3. The children were placed together with a new foster carer in June 2013. They are reported by the Department as having a positive, secure attachment relationship with their current foster parents. C had been observed to have settled in her behaviours, and the new school had not reported observing any incidents of sexualised behaviour. On 10 October 2014 however, the carer reported an incident of inappropriate sexual play between C and another child residing in the same home. This child has now been placed elsewhere.

4. The current foster carers have a long term commitment to the children. Planning for B’ future when he turns eighteen has begun which includes the involvement of the Department of Ageing, Disability and Home Care.

5. B is currently placed with a special unit at school, but does some mainstream classes and also sees a counsellor once per month. The children receive a high level of support from their Anglicare caseworker and have developed a close relationship with her.

The mother’s application for the children to be returned to her care

1. In her Response the mother sought orders to discharge all of the 11 March 2011 orders and that “custody of both children be awarded to the mother immediately”. Under cross-examination the orders sought by the mother became clearer. Her primary application was to have the children living with her and for her to have sole parental responsibility for them but she said she would be prepared to accept a “supervision order” if the Court imposed it or the Department sought it. The mother’s second preference was for orders providing for her to spend more time with the children. In particular, the mother sought that the regime under the previous orders be reinstated, that is, that she spend four hours with the children once a month, increasing to six hours unsupervised once a month. The mother felt that the current regime of two hours every two months was “not fair” on the children or on her.

2. The mother said that she did not reside with Mr F but was engaged to him and proposed to get married to him in the future. The mother agreed that her application was for the children to live with her and Mr F.  When asked how she would deal with B’s belief as to Mr F (that Mr F had sexually abused him) the mother said she would ask Mr F to move out and if it meant ending the relationship she would do that.

3. At the time of the hearing the mother was residing on the mid-north coast, a 1200 kilometre return journey from the children’s foster home.  She said that the visits with the children “have gone smoothly”.  The mother said that the only issue for the children seems to be the limited time that they have with her and their expressed wish to return home with her.

4. Generally the mother’s plan for the future, including where she would live was not firm and she raised for the first time under cross-examination the possibility of moving to Queensland or to the south coast.

5. The mother agreed that in the previous proceedings she said she was prepared to do parenting courses but had not done so following the previous judgment.

Dr E’s report

1. The orders sought by the Department respond to observations concerning the children’s behaviour and emotional state, particularly following spending time with each of their parents. The Department also relies to a very large extent on the expert report prepared by Dr E in April 2014. Dr E is a consultant psychiatrist who has an Honours degree in medicine, a PhD in psychological medicine, is a fellow of the Royal Australian and New Zealand College of psychiatrists and has a certificate of advanced training in child and adolescent psychiatry. He is a member of a number of professional organisations related to psychiatry and has been published in peer refereed journals and written chapters in books. Dr E regularly presents at professional conferences and to a range of audiences, lectures annually for the New South Wales Institute of Psychiatry and has regularly supervised psychiatry trainees and psychology masters students.

2. Dr E interviewed each of the children, both alone and with their parents and foster parents, the foster parents, each of the parents and their partners. He also had access to various documents annexed to the letters of instruction and letter from the ICL for the purposes of this report.

3. Overall, Dr E was of the view that both children have psychological/psychiatric and developmental issues “related to the relational immaturity and relational style of each child, the relationship of each child with their biological parents, and the specific issues of developmental delay in B, and sexualised behaviour in C.” He said that “because of these issues these children have special needs in terms of parenting that would challenge the average parent, let alone the vulnerable parent”.

4. Dr E set out in his report that B had neurodevelopmental difficulties and had formed the impression that B had a mild intellectual disability. The doctor then had an opportunity to read psychometric testing of B conducted in late 2014 after he had completed his report, prior to giving evidence. At the hearing, the doctor said that the testing demonstrated that B had more disability than he had opined in his report. He said that B, on the basis of those results, had a moderate range of disability. He reiterated at the hearing that B needs more complex and “better than average” parenting.

5. Dr E described B as having an anxious-avoidant attachment style due to “relative parental incapacity by suppressing his own immediate needs, becoming self-reliant with regard to those needs, being compliant and focusing on the needs of the parent.” He said that such a child with this attachment style “suppresses his own negative emotions and shows false positive emotion to the parent.” As a result of this attachment style, the doctor was of the opinion that

   [B] requires assistance at a relational/behavioural level to balance compliance with assertiveness, at an emotional level to increase his awareness, and acknowledgement and tolerance of and appropriate expression of negative emotion, and at a psychological level to develop a “differentiated self”.

6. Dr E described B’s needs as complex and requiring “consistent, thoughtful and wise attention from an adult with strong developmental awareness and good reflective functioning”. He expressed concern that B’s developmental needs would likely be neglected in the care of his parents. In commenting upon the parents’ capacities, the doctor did have particular concerns about the relationship between B and his father. However, he was also of the opinion that with the mother, B is in the habit of meeting her “perceived need with pre-emptive expressions of partisan commitment” to her and to living with her, which were at odds with his own opinions and preference expressed privately.

7. Dr E expressed the view that C has significant emotional and behavioural difficulties which show themselves in particular in relational difficulties with peers and adults. He was particularly concerned about C’s sexualised behaviours and said that they “form part of a broader pattern of needy, provocative, intrusive, controlling and immature behaviour towards both peers and adults”. He also said that C “lacks capacity for self-soothing and self-regulation of emotion and she carries significant risk of progressing in adolescence or adulthood to an emotional disorder such as a depressive disorder, or to “behaviours associated with dysregulated emotion such as self-harm, an eating disorder, or substance misuse disorder.”

8. Dr E felt it likely that C’s relational, emotional and behavioural difficulties “have resulted from her experience of instability, risk and relative neglect during her early life”, and the subsequent development of an anxious-ambivalent attachment style. He explained how this attachment style develops when a caregiver is inconsistently available to meet a child’s needs and that the child learns to amplify signals of need to have the parent focus on the child to meet that need. The doctor felt it likely that during C’s development the mother had been an inconsistent and unavailable caregiver. He also felt that as the mother is also “capable of being very warm, loving and empathic when focused on [C] and that C was likely rewarded by this positive engagement from her mother” which only reinforced C acting in a provocative and challenging manner to gain further positive engagement. C has in the doctor’s opinion learnt to use this exaggerated and challenging behaviour to influence the behaviour of others. It has been positive for C in that it has caused adults to attend to her and meet her needs but is burdensome for those adults. The doctor described, for example, C’s previous foster carer becoming “worn out” by C’s demanding behaviour. He was of the view that the mother or the father could find C challenging to raise.

9. Dr E opined in his report that C’s sexualised behaviours were related to her difficulties with emotional regulation and anxious-ambivalent attachment style. While he was not convinced that C had been harmed sexually he said “at a minimum, I would hypothesise that she has witnessed sexual or sexualised behaviour, and has come to understand the intimate quality and coercive and provocative power of such behaviour in relationships.”

10. The doctor had a number of concerns about the parents’ capacity, which is dealt with later in these Reasons, and overall was of the opinion that the Secretary of the Department should continue to have parental responsibility for the children and that they should continue to spend time with each parent on a regular but infrequent basis along similar lines to the regime in place at the time of the hearing.

11. The doctor had initially recommended that from age 17 for B and 16 for C that each child be able to spend additional time with one or both parents and or dispense with supervision in certain circumstances. However, under cross-examination, the doctor had changed his opinion and expressed what he described as “a more conservative view” that the children remain under the parental responsibility of the Minister until 18 and not be given the choice that he had previously recommended they be given at 16 or 17. Other than changing his mind and taking a more conservative position the doctor remained of the view that neither of the parents have the capacity to care adequately for the children given their special needs and confirmed his opinion in relation to the risks to the children if they were to live with their mother and she were to have parental responsibility for them.

12. I accept Dr E’s opinions and attach significant weight to them having regard to the doctor’s expertise and lack of challenge to those opinions under cross-examination.  There is no evidence to contradict his opinions other than a letter from the mother’s general practitioner.  In this letter the mother’s doctor opines that the mother “is fully capable, physically and mentally to look after her two children”.  This doctor does not have the expert qualifications of Dr E, was not cross-examined and it appears that her only knowledge of the mother is as her treating doctor.  She was not treating the mother when the children were in her care and appears to not ever have met the children. The doctor appears not to have had access to any other documents relevant to the case and may not even have been aware that her letter was being used for the purposes of family law proceedings as it makes no reference to such proceedings and is addressed “to whom it may concern”.  For these reasons I attach no weight to her opinion as to the mother’s parenting capacity.

THE LAW

Re-opening final parenting proceedings

1. As is clear from recent Full Court decisions, such as Prewett & Mann[2], there is no doubt that the principles established in Rice & Asplund[3] and the subsequent line of authority apply to proceedings such as these where a party is seeking to have final parenting orders reconsidered.

   [2] [2013] FamCAFC 130

   [3] (1979) FLC 90-725; (1978) 6 Fam LR 570

2. The so-called “rule in Rice & Asplund” arises from the following remarks made by Evatt CJ in that case at 572:

   The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based.  It should not lightly entertain an application to reverse an earlier custody order.  To do so would be to invite endless litigation for…change is an ever present factor in human affairs.  Therefore, the court would need to be satisfied by the applicant … there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material …

   Evatt CJ continued:

   These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision.  It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served.  These principles apply whether the original order is made by consent or after a contested hearing.  The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.

3. As further explained in Prewett & Mann (supra) at [9]:

   The rule is a manifestation of the best interests principle and founded on the notion that continuous litigation over a child or children is generally not in their interests (Langmeil & Grange [2013] FamCAFC 31). The application of the rule is connected to the nature and degree of change sought to the earlier order (SPS & PLS (2008) FLC 93-363).

4. In this matter the Department is seeking to vary only the orders in relation to the time the mother spends with the children. However, the mother is seeking to reverse the earlier order in relation to parental responsibility and the children’s residence.

5. The way in which the rule is to be applied was set out by the Full Court in Marsden & Winch[4], where it was said at [50]:

   The court must look at:

   (1)The past circumstances, including the reasons for the decision and the evidence upon which it was based.

   (2)Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.

   (3)If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself.  Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.

   [4] [2009] FamCAFC 152

6. So far as the Department’s application is concerned, the previous parenting decision was based upon evidence concerning the parents’ demonstrated incapacity throughout the children’s lives. This included evidence from the Department of 38 risk of harm reports in relation to one or both of the children, commencing when B was a child, the evidence from Dr G in relation to the children’s difficulties, their relationship with their parents and the parents’ capacities and other best interest factors and evidence concerning the children’s time with their parents after they had been taken into care. At the time the first judgment was delivered, it was hoped that the parents’ capacity would improve and it was found to be in the children’s best interests for each of the parents to spend time with the children once a month alternating between them.

7. Since the date of the first judgment and especially after the children began having regular unsupervised time with their parents, each of the children showed signs of considerable distress and their behaviour deteriorated. C’s counsellor expressed concern about the detrimental impact upon C of regular contact with her parents.  Following the making of orders which reduced the parents’ time with the children to the level that is now sought by the Department, the children appear to have settled.  They have also formed a positive, secure attachment relationship with their current foster parents who are available to continue to care for them in the future and the Department has no intention to move them.  On this basis, I am satisfied that there are circumstances which require the Court to re-open the proceedings to consider how the best interests of these children should best be met.

Parenting Applications

1. The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in section 60B, form the framework for the part of the Act dealing with parenting.

2. The objects 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.

3. 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).

4. According to section 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of a child as the paramount consideration.

5. Section 60CC sets out the primary considerations (s 60CC(2)) and additional considerations (s 60CC(3) to be considered by a court in determining what is in a child’s best interests.

6. The Full Court in Collu & Rinaldo[5] explained at [335] that there

is a possible overlapping of a number of the considerations in s 60CC of the Act. For example, the first primary consideration in s 60CC(2)(a) of the Act, which deals with a child having a meaningful relationship with both of his parents may overlap with the additional consideration in s 60CC(3)(b) which requires consideration of the nature of the relationship of a child with each parent and other persons. So also any finding as to the nature of the relationship of a child with a parent would be relevant to consideration of s 60CC(3)(d) which requires consideration of the likely effect of any changes in the circumstances of a child including the likely effect of separation from a parent. It is for this reason that there is some attraction in the idea that perhaps the additional considerations in s 60CC(3) should be looked at before consideration of the primary considerations in s 60CC(2)…

[5] [2010] FamCAFC 53

Additional considerations

1. Section 60CC(3) sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.

Views of the children and factors underlying those views

1. C was first interviewed by Dr E alone, prior to seeing her mother. When asked who she would like to live with, C first told Dr E that she would like to live with her mother.  The doctor went onto say “But, when [C] heard this order of preference come out of her mouth, she appeared to hesitate, then said ‘No … ‘[Mr I] and [Ms J]’ [the foster parents] first, then mum, then dad’.”

2. The doctor said that after having seen the mother in circumstances that appeared to be positive, C said “without apparent ambivalence ‘I still want to live with [Mr I] and [Mr J]’.”  She wanted the “workers” present when she saw her mother, as when they are present she felt “safe”.  C also told Dr E she wanted to see the mother more often.

3. I attach some weight to C’s views, despite her immaturity and inability to assess her own needs. She ultimately expressed a preference to live with her foster carers, which in the opinion of Dr E reflects her underlying secure attachment to the foster carers and should be respected.

4. When asked about his view, B told Dr E that he is not able to be truthful with each of his parents about where he wants to live, because he doesn’t want to make his mother sad. His primary desire was for “the judge” to choose rather than to be required to express a view.

5. When asked, if he had to decide what he would do, B told Dr E “without hesitation that he would keep things the same. He said, “them people love us… [It’s a] good home… [We] do stuff… outdoors…[we’re] living in the country, not the city.” When asked about his views on whether he would make any changes to the current arrangements for spending time with his parents, B said to “keep it as it is”, and to keep it supervised.

6. The mother and the maternal grandmother told Dr E that during visits both children always say that they want to live with the mother and will often ask to be taken home with her. The mother said in her affidavit that the children expressed similar views to her. Dr E was of the opinion that it is likely that the mother was truthful but he felt that both children felt pressured to show loyalty to their mother and express a desire to live with her to meet her needs. For this reason I attached little weight to those views expressed to the mother.

Nature of the children’s relationship with each parent and other significant persons

1. In Dr E’s opinion, C has an idealised perspective of her relationship with her mother. He was of the view that this perspective did not appear to arise from or be particularly connected to C’s lived experience or her reflection on any difficult or negative aspect of the relationship. He was also of the opinion that this idealised view of her relationship with her mother is adaptive and “not developmentally harmful” when the level of contact is limited to the “low dose” at the time of the hearing.

2. Dr E was of the opinion that C’s “underlying secure attachment” is to the foster parents. He also felt that the Community Services “care system” more broadly had promoted C’s sense of security and that she also had good relationships with the past and current Community Service workers and contact supervisors. He said that

   …currently, [C] is able to maintain her strong and constructive attachment to the foster parents and the [Community Services] care system alongside her idealised desire to be with the mother, without reflection on the dissonance between these two.

   He went on to say that it was his view that “this dissonance creates insecurity and anxiety in C, which is shown in the changes in C in the lead up to and after contact visits.” For this reason he opined that if

   the “dose” of time with the mother was increased whilst [C] remains in foster care, she is unlikely to have the psychological, emotional and relational maturity to manage this dissonance, and this will lead to insecurity and anxiety, and disruption of her development.

   Dr E agreed with the conclusion of C’s therapist that “contact with her parents at alternate fortnights necessitates ongoing focus on the immediate hurts and defence strategies with insufficient time to recover and reflect on earlier experiences that affected her development”. He expressed the view that “the current arrangement is allowing sufficient time for C to recover between visits, and to develop emotionally, socially and intellectually in the context of more than adequate foster care.”

3. Dr E was of the opinion that both children had a positive relationship with their current foster parents, which was an attachment relationship and was mostly secure. He noted that both of the children acted in a more mature and functional fashion with the foster parents than with their biological parents. It also appeared to him that the children choosing to call the foster parents “mum” and “dad” “reflected their developmentally appropriate desire and need to form parent-like attachment relationships with their current and ongoing carers.”

4. Dr E was of the opinion that B values his relationship with his mother, knows he is loved by her and enjoys time with her. However, he said that B “has a fixed and absolute negative view of the mother’s partner, and fixed and absolute desire not to see or relate to him”. B’ views concerning the mother’s partner, Mr F, have been consistently and strongly expressed in similar terms over many years to others involved in his care, such as foster carers, Community Services workers and teachers. B’ aversion to seeing Mr F was so strongly expressed to Dr E that B said that if the only way to see his mother was with her partner, that he would choose not to see his mother.

5. Dr E’s opinion concerning the “dose” of time B spends with his mother (and father when he was alive), was similar to his views concerning C. He said

   …if the dose was increased by an increase in time with either parent, but particularly the father, this would reinforce [B’s] anxious-avoidant attachment style and disrupt his personality development, in particular, his development of a differentiated itself.

Participation in decision making, spending time with and communicating with the children

1. The mother has not held parental responsibility for the children since they were taken into care in March 2010.  The mother has participated in various meetings concerning the children and has been consistent in spending time with them and travelling a lengthy distance to do so for over five years. She has also been consistent in seeking more time and greater opportunity to communicate with them, and is clearly committed to them.

Likely effect of change in the children’s circumstances

1. If the orders sought by the Department are made, this will not result in any change in the children’s current circumstances, as interim orders reducing the amount of time the children spent with their mother (and father until his death) were made in November 2012. As previously indicated in this judgment, the change brought about under these interim orders where the time with the parents was limited and supervised appears to have worked for the benefit of the children. Their emotional and behavioural problems have settled and the children receive the benefit of maintaining the relationship with their mother, without the risk of harm to their development.

2. A dramatic change in the children’s circumstances would come about if the orders sought by the mother were made. As discussed earlier, there are risks to the children’s development, even if there were to be an increase in the current amount of time the children spend with the mother. There are significant risks to the children’s wellbeing if they were to return to live with their mother, which are referred to in particular when dealing with the need to protect the children from harm and the mother’s capacity to meet the children’s needs. Given the close attachment relationship the children have with their foster carers, it is also likely that the children would be significantly emotionally affected and their development would be disrupted if that significant attachment relationship were to be severed as would occur if the orders sought by the mother were made.

Practical difficulty or significant expense involved in spending time with and communicating with the other parent

1. There is some practical difficulty and expense associated with the mother travelling to see the children under the Department’s proposed orders. This would be increased if orders were made to increase the time she spends with the children. Although at one stage in the proceedings the mother seemed to expect some greater financial assistance from the Department to assist her with the costs associated with seeing the children, in general she is very willing to do anything within her capacity to see the children more regularly. I am of the view that this expense and inconvenience would not be an impediment to her spending more time with the children. Further, in my view, this is not a significant consideration in this matter, where the main focus is upon the mother’s capacity and the need to protect the children from harm.

Capacity to provide for the children’s needs

1. In my view, this is one of the most significant considerations in this matter. It is apparent from the earlier judgment and orders that there were significant concerns about both parents’ capacity at the time that judgment was delivered. The mother acknowledged under cross-examination that she has not undertaken any parenting courses or programs since the last proceedings, even though deficiencies in her parenting capacity had been identified at that time.

2. It appears that the mother’s circumstances have improved and stabilised since the children were taken into care, in that she has maintained employment and a supportive personal relationship for a number of years. Dr E thinks it likely that the mother presented in 2010 with significant lifelong personality dysfunction in the form of borderline and antisocial personality traits but felt that due to her period of “healing and positive functioning” that she did not have a current diagnosis of a personality disorder at the time of the hearing.

3. However, Dr E is of the opinion, which I accept, that the mother is a “vulnerable” parent. The doctor expressed concerns that the mother is at risk of relapse back into more overt borderline or antisocial personality dysfunctions or substance misuse if faced with future stress or relational instability. Particular stresses may include again taking on the care of the children and possibly separating from her partner because of B’s stance towards him.

4. Although Dr E thinks it likely that the mother is capable of meeting the children’s basic needs, if they were to come into her care he was concerned

   …that the mother’s personality vulnerability would disrupt her capacity to meet the children’s special needs and her ability to manage complexities such as…[B’s] relationship with her partner, and [C’s] relationship with her maternal cousins and peers in the context of [C’s] sexualised behaviour and vulnerability to intrusion by or onto others.

5. Dr E’s opinion was that the foster parents provided not only for the children’s basic needs but their more complex “emotional, intellectual and development needs”. The doctor observed that the foster parents appeared aware of the children’s special needs and vulnerabilities, and had taken positive approaches in raising the children. While Dr E observed that changes in the children were in the early stages, he was of the view that the children appeared more mature and functional with the foster parents as a result of the foster parents’ approach to the children’s development.

Characteristics of the children

1. The special and complex needs of each of the children is a significant consideration in this matter. Each of them has psychological, psychiatric and developmental difficulties and B has a moderate intellectual disability. The need to protect the children from harm associated with neglect and the mother’s capacity is particularly heightened by the nature of the children’s special needs.

Family violence

1. Although family violence was a feature in the previous proceedings, particularly violence perpetrated by the father, there is no evidence in this matter that family violence is present in the relationship between the mother and Mr F. There is also no evidence that the children are exposed to family violence within the foster carers’ home.

Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the children

1. In my view the orders proposed by the mother raise a real risk of future proceedings, given the particular vulnerability of the children and challenges that are likely to arise for the mother in parenting them. Given the extreme aversion that B has towards the mother’s partner, there is a real risk that B would not in fact transition to his mother’s care if she were to continue to reside with Mr F which would raise the prospect of future proceedings with respect to him. If the mother were to separate from Mr F, there would also be concerns that her functioning would deteriorate as she seems to receive significant support from Mr F. In addition to the issue of Mr F, on the basis of the mother’s inadequate capacity to care for the children given their special needs, there are real risks that if the children were to live with the mother that they would once again be taken into care, resulting in further proceedings.

2. The Department’s proposed orders involve an appropriate degree of flexibility to allow for changes in the future without the institution of further proceedings. The mother’s time with the children is sought to be “at least” six times per year which would allow an increase in that time if the Department felt it was in the best interests of C and or B.

Primary considerations

1. The primary considerations (under s 60CC(2)) in this case are:-

   (a)The benefit to B and C of having a meaningful relationship with their mother; and

   (b)The need to protect B and C from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.

2. In applying these two primary considerations the Court is to give greater weight to the need to protect the child from harm.[6] 

   [6] Family Law Act 1975 (Cth), s60CC(2A)

Section 60CC(2)(a) - The benefit of a meaningful relationship

1. The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[7] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[8] and has also agreed with the reasoning of Bennett J in G & C[9].  Brown J in Mazorski & Albright (supra) said at [26], after setting out the ordinary definition of “meaningful” and “meaning”:

   What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one (sic).

   [7] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

   [8] (2007) Fam LR 518; [2007] FamCA 520

   [9] [2006] FamCA 994

2. Bennett J discussed the terminology in G & C (supra) and said “the enquiry was a ‘prospective’ one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).”[10]

   [10] McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92 at [117]

3. In my view, having regard to Dr E’s uncontradicted evidence about the nature of the relationship between the children and their mother, and the considerations referred to extensively above, there is a positive benefit to them having a significant relationship with their mother.

4. Although the time proposed is not lengthy or frequent, the focus of the consideration is on the quality of the relationship, having regard to all of the other best interest considerations. I attach particular weight to Dr E’s evidence concerning the current “dose” of time with the mother and the advantages this amount of time offers the children without compromising their wellbeing.

Section 60CC(2)(b) – need to protect

1. The factor of particular relevance in this regard is what Dr E describes as the risk of neglect of the children “in a relative sense” in the mother’s care given their special needs. Dr E was also concerned that the mother may have been minimising her past substance abuse and her past personal and relational dysfunction and felt that she was at risk of relapse when faced with future stress including taking on the care of the children. This, Dr E was concerned, would disrupt her capacity to meet the children’s special needs. The level of risk of harm through neglect if the children were to live with their mother full time is in my view unacceptable.

2. Another potential risk factor that arises in the care of the mother relates to Mr F. I am not satisfied on the evidence before me that an unacceptable risk of harm relating to sexual abuse arises should the children be exposed to Mr F if they were to live with the mother. However, given B’s particular stance and aversion towards Mr F the relevant risk is one of emotional harm. Although the mother said under cross-examination that she will separate from Mr F if she is required to do so, I have concerns about the likelihood of her complying with stated intention even if it were contained in an order.

3. It is to be remembered that when mother spent time with the children after the previous final orders were made she was informed that Community Services had made a decision Mr F was not attend when she spent time with the children in April 2011. She was also requested in writing in August 2011 not to have Mr F attend the visits and for the issue not to be discussed with the children at the visits. At this stage unsupervised time between the mother and the children was about to commence. On an unsupervised visit on 8 October 2011 Mr F attended and the mother told B to keep this attendance secret. Mr F also attended unsupervised visits with the mother and the children on 22 October 2011 and 8 November 2011. After this occurred supervision was reinstated.

4. If the mother were to have the children live with her, there would be no supervision or monitoring of her circumstances to ensure that the children did not come into contact with Mr F.

Parental responsibility

1. The usual starting point in relation to parental responsibility, the presumption for equal shared parental responsibility, does not apply in this case because the father is deceased.

2. Both the Department and the mother seek sole parental responsibility.

3. Having regard to the special needs of these children and the requirement for consistent decision making in relation these needs, I am of the view that sole parental responsibility should be aligned to residence. In other words, if it is found to be in the best interests of the children to reside with the mother she should have sole parental responsibility.

conclusion

1. B was born with an intellectual disability and both children had a difficult start in life. As a result they have complex emotional, psychological and developmental needs. Due to the instability, risk to their wellbeing and relative neglect they suffered while in their parents’ care they were placed in the care of Community Services shortly after the parents separated. When orders with respect to the parents’ time with children were made in March 2011 there was a real concern that the parents may undermine the children’s placement in foster care but it was hoped that the parents’ capacity may improve over time. Unfortunately, the effects of the parents’ behaviour upon the children, especially when unsupervised, did undermine that placement, which eventually broke down. The children were then placed with carers with whom they have formed a close and mostly secure attachment and who seems particularly well suited and capable to meet the children’s needs. The expert’s opinion is that the current amount of time the children spend with the mother is sufficient to maintain their relationship with her as an important person in their lives while not compromising their wellbeing. There are risks to their emotional and psychological wellbeing if this time were to increase. If the children were to live with their mother full time given their special needs there would, in my view for the reasons explained, be an unacceptable risk of psychological and developmental harm as a result of neglect. For these reasons I am of the view that it is in the best interests of the children for the orders to be made largely as sought by the Department. In addition, I make some of the orders sought by the Independent Children’s Lawyer and not opposed by the other parties, which are also in my view in the best interests of the children.

1. The orders that I make are set out of the forefront of these Reasons for Decision.

The preceding one hundred and thirty one (131) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 2 June 2015.

Legal Associate: 

Date:  2 June 2015