Falcon and Falcon and Anor
[2010] FamCA 396
•24 May 2010
FAMILY COURT OF AUSTRALIA
| FALCON & FALCON AND ANOR | [2010] FamCA 396 |
| FAMILY LAW – CHILDREN – Parental Responsibility – With whom a child lives – Children are currently in foster care – Children’s father is deceased – Mother seeks orders for the children to be restored to her care – The Court is not satisfied that the mother is capable of caring for the children on a full-time basis – Minister for Community Services to have parental responsibility for the children and the children to remain in foster placement |
| Family Law Act 1975 (Cth) |
| Aldridge & Keaton [2009] FamCAFC 229 B & G & Minister for Health Family & Children’s Services (NT) [1998] FamCA 1945 Dennett & Norman [2007] FamCA 57 Director-General, Department of Community Services & Tran & Anor [2009] FamCA 1070 Faulkner & McPherson v Rugendyke; Dept of Community Services (Intervenor) (1995) 19 Fam LR 507 Fenton & Barrett & Ors [2009] FamCA 569 Goode & Goode (2006) FLC 93-286 Hennessy & Rhys [2007] FamCA 160 McCall v Clark (2009) 41 Fam LR 483 Potts & Bims & Ors [2007] FamCA 394 Schmidt & Schott & Ors [2008] FamCA 447 Stone & Stone & Anor [2008] FamCA 1026 Tran & Ferguson [2009] FamCA 1026 |
| APPLICANT: | Ms Falcon |
| 1ST RESPONDENT (DECEASED): | Mr Falcon |
| 2ND RESPONDENT: | Ms Halva |
| INTERVENOR: | Director-General, NSW Department of Human Services |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Callander, Legal Aid NSW |
| FILE NUMBER: | NCC | 3514 | of | 2007 |
| DATE DELIVERED: | 24 May 2010 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Justice Austin |
| HEARING DATE: | 27, 28, 29 & 30 April 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Boyd |
| SOLICITOR FOR THE APPLICANT: | Mr Sharkey, A W Simpson & Co |
| COUNSEL FOR THE 1ST RESPONDENT: | Not Applicable |
| SOLICITOR FOR THE 1ST RESPONDENT: | Not Applicable |
| COUNSEL FOR THE 2ND RESPONDENT: | Not Applicable |
| SOLICITOR FOR THE 2ND RESPONDENT: | Not Applicable |
| COUNSEL FOR THE INTERVENOR: | Mr Anderson |
| SOLICITOR FOR THE INTERVENOR: | Ms Poon, NSW Crown Solicitor's Office |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Davies |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Callander, Legal Aid NSW |
Orders
All former parenting orders relating to the children B, born on … February 2005, and C, born on … February 2007, (“the children”) are discharged.
Parental responsibility for the children is allocated to the NSW Minister for Community Services (“the Minister”).
The parties and the Minister shall take all reasonable steps to ensure that the children spend time with the mother as follows, or as otherwise agreed:
3.1Each alternate Sunday from 11.00 am until 3.00 pm, commencing on Sunday 30 May 2010.
3.2Following compliance with Order 3.1 hereof for a period of 6 months, and subject to compliance with Orders 6 and 7 hereof, then in lieu of the time spent pursuant to Order 3.1 hereof, every fourth weekend from 3.00 pm on Saturday until 3.00 pm on Sunday, commencing on the second Saturday following the last occasion of time spent by the children with the mother pursuant to Order 3.1 hereof.
3.3Following compliance with Order 3.2 hereof for a period of 6 months, then in addition to the time spent pursuant to Order 3.2 hereof, for a period of 3 consecutive days in each NSW school holiday period, commencing at 11.00 am on the second day following the last day of school term and concluding at 11.00 am three days later.
3.4On Mother’s Day from 11.00 am until 3.00 pm.
3.5On Christmas Eve from 11.00 am until 3.00 pm.
The parties and the Minister shall take all reasonable steps to ensure that the children communicate with the mother as follows, or as otherwise agreed:
4.1By telephone each Wednesday between 6.00 pm and 6.30 pm, and for that purpose the children shall telephone the mother on the telephone number provided by the mother to the Minister, and the mother shall ensure that she is able to receive the children’s calls at that number at that time.
4.2By telephone on the children’s birthdays between 6.00 pm and 6.30 pm, with the telephone calls to be implemented in the same manner as provided for in Order 4.1 hereof.
Unless otherwise agreed, for the purposes of implementing the time spent by the children with the mother, the Minister shall cause the delivery of the children at the commencement of the time to be spent with the mother to the mother’s home, and the Minister shall cause the collection of the children at the conclusion of the time spent with the mother from the same place.
Within 14 days of the date of these orders, the mother shall do all such things and sign all documents as may be necessary so as to commence or resume therapeutic treatment with the following persons or organisations, for as long as is deemed necessary by those persons or organisations, but in any event, for a period of not less than 6 months from the date of these orders:
6.1Ms R, or some other appropriate counsellor at the E Family Support Service Inc, for the purpose of counselling in respect of parenting skills improvement and self-esteem improvement.
6.2Ms M, or some other appropriate counsellor at the Women’s Shelter E, for the purpose of counselling in respect of anger management, domestic violence and conflict resolution.
6.3Mr W, or some other appropriate counsellor at the Community Health Service of the E Hospital, for the purpose of counselling in respect of drug and alcohol dependence and abuse, and relapse prevention.
For the purposes of implementation and compliance with Order 6 hereof:
7.1 The mother shall meet any cost associated with such treatment.
7.2The mother shall inform the Minister of the names and contact details of the persons and organisations providing her with such treatment.
7.3The mother shall waive any confidentiality, and irrevocably authorise in writing, the persons and organisations providing her with such treatment to make copies of files, notes, reports, and other documents available for inspection by the Minister.
The mother and paternal grandmother are restrained from consuming alcohol during any period in which the children spend time with them, and also during the period of 24 hours immediately preceding such time.
The mother and paternal grandmother are restrained from smoking tobacco or nicotine products, either indoors or within a motor vehicle, in the presence of the children.
The Minister, mother, and paternal grandmother are restrained from causing or permitting the infliction of corporal punishment upon the children.
The mother and paternal grandmother are restrained from denigrating the other in the presence or hearing of the children, and from permitting the children to remain in the presence or hearing of another person denigrating the other.
The Minister shall, at the Minister’s expense, authorise and request the principal of any school or pre-school attended by the children to provide to the mother copies of all academic reports for, and photograph of, the children.
The Minister, mother, and paternal grandmother are restrained from causing or permitting the children to be known by any surname other than “Falcon”.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations that 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 these particulars are included in these orders.
Any and all outstanding applications are dismissed.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
Notation
(A)Although no express provision is made within these orders, the Minister intends that the children will spend time and/or communicate with:
A.1Their half-sister S N, by arrangement between the Minister and the foster carers of S, and
A.2 The paternal grandmother, at the discretion of and under the circumstances designated by the Minister.
IT IS NOTED that publication of this judgment under the pseudonym Falcon & Falcon & Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC 3514 of 2007
| MS FALCON |
Applicant
And
| MR FALCON |
1st Respondent (Deceased)
And
| MS HALVA |
2nd Respondent
And
| DIRECTOR-GENERAL, NSW DEPARTMENT OF HUMAN SERVICES |
Intervenor
And
| INDEPENDENT CHILDREN’S LAWYER |
REASONS FOR JUDGMENT
Introduction
These proceedings concern parenting orders in respect of two children, namely B, born in February 2005, and C, born in February 2007, (“the children”).
Despite their tender ages, the children have endured enormous emotional upheaval in their short lives.
The mother and father separated in November 2007, following an incident of violence between them, whilst the children were present in the former matrimonial home. Following the parents’ separation, the children lived predominately with the father but spent time with the mother. The parents reconciled in July 2008 for a period of a few weeks but then finally separated following the mother’s assault of the children’s older half-sister, which assault again occurred whilst the children were present in the former matrimonial home. The children lived with the father and paternal grandmother following the final separation and had no interaction with the mother of any sort for many months. The children’s older half-sister continued to reside with the children until December 2008, when she was placed by the New South Wales Department of Human Services (“the Department”) into foster care, following which the children had no interaction of any sort with her either. The children began spending time with the mother on a supervised basis as from April 2009, but continued to live predominately with the father and paternal grandmother. The father died some months later in June 2009 and thereafter the children remained living alone with the paternal grandmother. In November 2009, the paternal grandmother relinquished the care of the children to the Department and arrangements were made for the children to be placed into foster care, where they have remained ever since. The children have had no interaction of any sort with the paternal grandmother since that time. They continue to spend time with the mother, and arrangements have been made to permit them to spend time with their half-sister at the home of her foster carer.
The children have therefore suffered either the actual or effective loss of their mother, half-sister, father and paternal grandmother – all within less than the last two years.
Understandably, the tragedy of those fractured relationships has settled heavily upon the children. They have been seriously emotionally disturbed. The uncontradicted evidence of the Family Consultant is that it is extremely likely that the children will require a significantly higher level of care and nurturing than would typically be required for children of their age who had not experienced such losses.
Given the death of the father and the disengagement of the paternal grandmother from both the children and the litigation, the pivotal issue in the case became the capacity of the mother to offer the children the standard of care and nurture that their emotional disturbance requires. The mother’s case was that she was up to the task and that the children should live with her, but the Director-General of the Department considered otherwise. The Director-General pressed for allocation of parental responsibility for the children solely to the Minister with a view to the children remaining in foster placement until the attainment of their majority, which position ultimately enjoyed the support of the Independent Children’s Lawyer.
Absence of the father
The proceedings were commenced by the mother filing an Application on 26 November 2007. The father filed his Response on 25 March 2008 and participated in the proceedings until the time of his death in June 2009.
Absence of the paternal grandmother
The paternal grandmother was not joined to the proceedings as a respondent. Nor did she successfully seek the Court’s leave to intervene in the proceedings. However, by interim parenting orders made on 17 March 2009 with the consent of the mother, father, Independent Children’s Lawyer, and the Director-General of the Department (“the Intervenor”), considerable day-to-day responsibility for the children was foisted upon the paternal grandmother. From 17 March 2009 the paternal grandmother has been referred to as the second respondent to the proceedings, even though she did not formally participate in the proceedings as a party until some months later.
At the time of his death in June 2009, the father and the children were living with the paternal grandmother. Following the father’s death, the paternal grandmother filed a Response on 24 June 2009 and thereafter participated as a party in the proceedings, contesting proper parenting orders with both the mother and Intervenor.
On Friday, 13 November 2009, at about 4:00 pm, the paternal grandmother unexpectedly arrived at the E office of the Department with the children. She left the children at the Department’s office with an explanatory letter and then departed.[1]
[1] Affidavit of Ms A filed 1 December 2009, par 8
The letter left with the Department is in evidence.[2] The letter, which was handwritten and signed by the paternal grandmother, reads in part:
I have read, and reread, the transcripts from you, [Y] and [Z]. If anything was going to make me pull the plug on this, it was these lying, back stabbing reports!!
…before I have a breakdown, from all the scrutiny, and all the running around, I am giving you the boys today: 13-11-09 before you get a chance to “take them”, as planned.
…I know you have “[X]” ready to take them, so here they are, I don’t want to see them until they are older, that’s if this “old, 70 year old,” is still here!!
…I love them dearly, they are [the father’s] sons, and my grandsons, however, I can’t take anymore of this rot…
…Please send someone to collect their clothes before Wed. They will be in boxes on front veranda, else I will give them to charity!!
…I am going away for a week, so there will be no contact! and I don’t want to see “any of you ever again”.
[2] Affidavit of Ms A filed 1 December 2009, Annexure A
Some days later, on 17 November 2009, two caseworkers from the Department travelled to the paternal grandmother’s home. They noticed that the paternal grandmother’s car was parked at the front of the house, that some of the windows of the house were open, and that the paternal grandmother’s dogs were running around. When they knocked at the door there was no answer. The caseworkers then collected the children’s belongings, which had been left on the front porch, and departed the premises.[3]
[3] Affidavit of Ms A filed 1 December 2009, par 17
The paternal grandmother has had no interaction with the children since leaving them at the E office of the Department on 13 November 2009, although she did send to the children birthday money and Easter eggs.[4]
[4] Affidavit of Ms A filed in Court on 27 April 2010, par 48
Confusingly, several weeks later on 1 December 2009, the paternal grandmother filed an Amended Response proposing fresh orders in respect of the children. It is obvious from that document though that the paternal grandmother was intending to merely preserve a relationship with the children. She sought only orders directed to the children spending time with her on one weekend per month and her notification about their medical and academic progress.
However, on 17 February 2010, the paternal grandmother filed a Notice of Discontinuance. The Notice indicated that the paternal grandmother discontinued her Response filed on 24 June 2009, but the Notice did not mention discontinuance of the Amended Response filed on 1 December 2009.
The Court corresponded with the paternal grandmother’s solicitors by email seeking clarification as to whether the paternal grandmother was intending to discontinue only her original Response, or alternatively, all Responses filed by her in the proceedings. The paternal grandmother’s solicitors replied by email, and that email is in evidence.[5] The paternal grandmother’s solicitors clearly informed the Court that the paternal grandmother intended to discontinue her entire participation and intended taking no further part in the proceedings. That representation was consistent with the contents of the letter written by the paternal grandmother to the Department in November 2009.
[5] Exhibit M1
There was no appearance by, or on behalf of, the paternal grandmother before the Court when the trial commenced on Tuesday, 27 April 2010.
It was abundantly clear that the paternal grandmother had disengaged from the proceedings and the trial therefore proceeded in her absence.
Proposal and primary evidence of the mother
The mother filed her Initiating Application on 26 November 2007 and an Amended Application on 13 July 2009.
However, when the matter came before the Court for trial on 27 April 2010, the mother did not seek parenting orders as set out in either of those two documents. Instead, she petitioned the Court for orders set out within the Case Outline document filed by her counsel on 21 April 2010. The orders sought by the mother were, in summary, as follows:
1.All previous orders regarding the children be discharged.
2.Parental responsibility for the children should be allocated solely to the Director-General of the Department until 31 December 2011 (a period of about 20 months), and thereafter solely to the mother.
3.The children live with the mother.
4.The children spend time and communicate with the paternal grandmother in the manner agreed between the mother and paternal grandmother, but failing agreement:
4.1From 9:00 am on Saturday until 4:00 pm on Sunday on one weekend each calendar month.
4.2 By telephone each Thursday evening.
In final submissions the mother tendered a Minute of Order directed to the separate issue of the restraint of the children’s involvement in further counselling without the observance of certain safeguards.[6] The mother also orally sought an additional order restraining the change of the children’s surname in the event of allocation of parental responsibility for them to the NSW Minister for Community Services (“the Minister”).
[6] Exhibit M2
In support of her proposal, the applicant mother read the following affidavits in evidence:
a) Affidavit of the mother filed 27 November 2009;
b) Affidavit of the mother filed 29 January 2010;
c) Affidavit of Ms M filed 27 November 2009;
d) Affidavit of Ms R filed 27 November 2009;
e) Affidavit of Ms R filed 1 February 2010; and
f)Affidavit of the maternal grandmother filed 7 January 2010.
Proposal and primary evidence of the intervenor
Following an invitation by the Court some months before to intervene in the proceedings, the Intervenor filed both a Notice of Intervention and a Response on 2 February 2009.
The Intervenor thereafter filed Amended Responses on 17 March 2009 and 28 October 2009.
When the matter came on for trial before the Court on 27 April 2010, the Intervenor pressed for the parenting orders set out within the Further Amended Response filed on 28 October 2009, but in final submissions tendered a Minute of Orders[7] which supplanted the orders set out in the earlier Further Amended Response. The Minute of Orders did not represent a significant change and, in summary, those orders provided for:
[7] Exhibit DHS4
1.Discharge of all former parenting orders relating to the children.
2.Allocation of parental responsibility for the children solely to the Minister.
3.The children to spend time and communicate with the mother:
a.For a minimum of six occasions per year, for a duration of at least two hours on each occasion, with such time to be supervised.
b.At other times agreed between the Intervenor and the mother.
c.By telephone and by letter as agreed between the Intervenor and the mother.
4.Injunctions against the mother precluding her consumption of alcohol prior to the children spending time with her, smoking tobacco around the children, and physical discipline of the children.
5.Injunction restraining the mother from denigrating members of the paternal family in the children’s presence.
The only changes were a slight increase in the minimum number of annual visits by the children to the mother, elevated from four to six, and the deletion of any orders providing for the children to spend time with the paternal grandmother. The reason for the latter change, when explored, was the paternal grandmother’s disengagement from the children. The absence of an order that the children spend time with the paternal grandmother was not intended to mean that there be no such time spent, but rather, the time spent by the children with the paternal grandmother would depend upon the paternal grandmother displaying an interest and negotiating an appropriate regime with the Intervenor.
Similarly, although there was no order prescribing how, the Intervenor acknowledged that it was intended that the children would continue to periodically see their half-sister.[8]
[8] Exhibit DHS4, Notation 7
In support of the orders proposed by the Intervenor, the following affidavits were read in evidence:
a)Affidavit of the caseworker Ms O filed 2 February 2009;
b)Affidavit of the caseworker Ms A filed 17 March 2009;
c)Affidavit of Ms A filed 14 July 2009;
d)Affidavit of Ms A filed 13 November 2009;
e)Affidavit of Ms A filed 1 December 2009;
f)Affidavit of Ms A filed 2 February 2010;
g)Affidavit of Ms A filed in Court on 27 April 2010;
h)Affidavit of Dr K, Psychologist, filed 24 November 2009; and
i)Affidavit of Mr H filed 13 November 2009.
The Intervenor also tendered two written reports relating to observations of time spent by the children with the mother on two discrete occasions in 2009,[9] but those documents were not used in the examination in chief or cross examination of any witness and were not the subject of any submission so their relevance and/or probative value was questionable.
Absence of evidence about the children’s foster placement and the consequences of such absent evidence
[9] Exhibits DHS2 and DHS3
Apart from the briefest of details about the constituent members of the foster carer’s family and their general location,[10] the Intervenor adduced no evidence at all about the factual circumstances pertaining to the children’s care by the foster carer. That was a source of aggravation to the mother, because her personal circumstances were the subject of fastidious examination in the litigation, and her parenting capacity was effectively being compared to a carer delegated by the Intervenor about whom the Court knew virtually nothing. The mother contended that such a predicament precluded, or at least impaired, the Court making comparisons of the parenting options for the children pursuant to the criteria specified as being relevant to their best interests under s 60CC of the Family Law Act (“the Act”).
[10] Affidavit of Ms A filed 13 November 2009, par 12
The forensic strategy of the Intervenor not to adduce such evidence is a deliberate one. It is the usual policy of the Intervenor, and has been the subject of comment in other proceedings (see Tran & Ferguson [2009] FamCA 1026 at [246-249]). The comments made by Rose J in that case echo the concerns of the mother in this case, but also recognise the special difficulties that confront the Intervenor as a litigant in proceedings before this Court under the Act. One can well imagine that if the Intervenor was practically bound to call evidence from her delegated carers, or invite their intervention as parties, in every family law case in which the Intervenor was a party then very few persons would be prepared to accept delegation as carers and the foster care system would grind to a halt.
It is clear that the decision of Rose J in Tran & Ferguson is currently the subject of appellate scrutiny. Rose J subsequently determined a stay application in relation to His Honour’s earlier orders, pending an appeal by the Intervenor (see Director-General, Department of Community Services & Tran & Anor [2009] FamCA 1070). In the judgment concerning the stay application (at [11-14]) His Honour called into question the Intervenor’s continued reliance upon earlier authority, decided in 1995, in light of the wholesale changes to Part VII of the Act subsequently enacted. Those material amendments occurred on both 11 June 1996, through the Family Law Reform Act 1995, and 1 July 2006, through the Family Law Amendment (Shared Parental Responsibility) Act 2006.
The earlier authority to which Rose J referred was Faulkner & McPherson v Rugendyke; Dept of Community Services (Intervenor) (1995) 19 Fam LR 507. The decision of the Full Court in that case has since been applied in other cases (see B & B & Minister for Health Family & Children’s Services (NT) [1998] FamCA 1945; Stone & Stone & Anor [2008] FamCA 1026 at [1019-1041]). The decision in Faulkner remains binding, at least until such time as the Full Court pronounces its decision in the pending appeal of Tran.
In Faulkner (at 512-513), the Full Court held that the person designated as the Director-General of a child welfare agency is a person to whom the Court may grant certain rights under parenting orders, recognising that such a person would not exercise those parental rights personally, but rather, would delegate those functions to a responsible third party.
The Full Court furthermore ruminated upon the legal effect of granting to the Director-General “custody” of a child, but not “guardianship” of the child, which concepts have since been repealed from the Act. Importantly, the Full Court observed (at 513) that:
This Court was concerned as to whether an order which is limited to custody confers upon the Director-General rights which are broad enough to empower him [or her] to place the child in the daily care and control of a third party unknown to and unapproved by the Court. However as this matter was not argued before us we do not regard it as necessary or desirable that we should express any final conclusion in respect of it.
The answer, however, appears to be provided, again, by the State Act which creates the persona of the Director-General.
…The same section gives the Minister wide powers in relation to the means by which such accommodation, care and maintenance may be provided, including the placement of the protected person in the custody of a person in charge of a non-Government organisation or in the custody of any person approved by the Minister, being a person who is willing to undertake that custody.
It appears to us that if a court exercising jurisdiction under the Family Law Act grants custody of a child under that Act to the Director-General, who is a creature of the State Act, it must be taken to do so in full knowledge of the effect, under the State Act, of such an order, including the effect of the sections to which we have referred.
[emphasis added]
Inferentially, the Full Court would have no reservations about the unlimited extent of the Director-General’s powers in respect of a child in the event that “guardianship”, as distinct from merely “custody”, was granted. The distinction was important in the context of that case because the judge at first instance had only been petitioned to grant custody, and not guardianship, of the subject child to the Director-General (see Faulkner at 512).
Traditionally, when the Court granted “guardianship” of a child to the Director-General, it did so in expectation that the Director-General would thereafter make appropriate arrangements under his or her statutory powers for the subject child to live with and be properly cared for by delegated persons, with no order needed from the Court about whom should have “custody” of the child.
By analogy, the same situation would apply following the allocation to the Intervenor of “parental responsibility” for a child, now that the concept of “guardianship” is repealed from the Act. Following the amendments to Part VII of the Act wrought by the Family Law Reform Act 1995, the Full Court observed in B & B: Family Law Reform Act 1995 (1997) Fam LR 676 at paragraph 9.24, about the meaning of “parental responsibility”, that:
This definition [of “parental responsibility” found within s 61B of the Act] provides little guidance [as to its meaning], relying as it does on the common law and relevant statutes to give it content. It would appear to cover guardianship and custody under the previous Part VII and may be wider.
[emphasis added]
Those observations of the Full Court were adopted by a differently constituted Full Court in Goode & Goode (2006) FLC 93-286 (at [33]), following the raft of amendments enacted to Part VII of the Act by the Family Law Amendment (Shared Parental Responsibility) Act 2006.
There is a degree of conflict on the authorities about the extent to which the Court, following the allocation of parental responsibility for a child to the Minister, then relinquished its determination of proper parenting arrangements to the unilateral discretion of the Minister.
In B & G, Warnick J considered that the Court should usually pronounce separate “contact” orders, following an order allocating parental responsibility for children to the Minister. Acknowledging that the orders made by the Court in that case had the effect of placing the children in the residential care of the Minister, His Honour said:
In usual circumstances specific contact orders would be the preferred course.
[emphasis added]
Of course, “contact” orders now equate under the Act with orders that require a child to “spend time” or “communicate” with another person.
Two things may be observed about those comments by Warnick J. Firstly, His Honour’s comments were confined to “contact” orders and did not extend to “residence” orders, as was the terminology then applicable under Part VII of the Act. Inferentially, His Honour would not have envisaged, at that time in statutory history, trammelling the Minister’s discretion about who would be the residential carer of the children following the grant of their parental responsibility to the Minister. Secondly, whilst recognising that it may be left to the discretion of the Minister in unusual cases, the Court should take the usual step of making orders providing for the time that the subject child should spend with other persons, notwithstanding that the child is, or will be, living in foster care arranged by the Minister.
In Stone, Le Poer Trench J more recently considered that Faulkner was authority for the proposition that once parental responsibility was allocated to the Director-General the Court should not encroach upon the powers and responsibilities of the Director-General by then specifying supplementary parenting orders – even those providing only for the child to spend time with another person (at [1038]). However, His Honour concluded that the amendments enacted to Part VII of the Act since Faulkner was decided cause that authority to be less prescriptive, and that making such supplementary parenting orders is now probably permissible (at [1038-1039]).
Le Poer Trench J went further than Warnick J was prepared to some years before. Following the allocation of parental responsibility to the Director-General, Le Poer Trench J then proceeded to make supplementary orders designating with whom the children were to live, albeit on certain conditions.
Rose J later took the same course in Tran. His Honour made discrete orders specifying the person with whom the child would live, after having already allocated parental responsibility for the child to the Intervenor.
In Stone and Tran the Court considered that there was no statutory impediment to the Court allocating parental responsibility for the children to the Minister and then further ordering that the children live with some other specified person. It is clear from the reasons offered in both cases that the foundation for the approach taken is the current formulation of the statutory provisions found within Part VII of the Act. Perhaps, as was mooted, the changed legislative landscape permits Faulkner to be distinguished. Although the Act defines, in a wide and inclusive way, “parental responsibility” (s 61B), the Act also defines a “parenting order” so as to differentiate between an order dealing with the allocation of parental responsibility (s 64B(2)(c)) and an order specifying the person with whom children should live (s 64B(2)(a)).
The approach in Stone and Tran has not been uniformly adopted though. There are numerous recent instances of the Court following the approach taken by Warnick J to Faulkner, by allocating parental responsibility for children to the Minister, but then making separate orders limited to only the time spent by the children with other persons (see for example Fenton & Barrett & Ors [2009] FamCA 569; Schmidt & Schott & Ors [2008] FamCA 447; Hennessy & Rhys [2007] FamCA 160).
Consonant with the opinions expressed in the authorities, the desirability of the Court making supplementary orders – at least in respect of with whom the children should spend time – following the allocation of parental responsibility for the children to the Director-General is implicitly acknowledged as correct by the Intervenor in this case. So much is evident from the parenting orders proposed by the Intervenor. Although she seeks the allocation of parental responsibility for the children to the Minister, she also seeks that orders be made by the Court expressly providing for the time that the children are to spend with the mother.
The authorities are replete with references to the “Intervenor”, “Minister”, and “Director-General” – all of which are intended as references to the statutory figure-head of the relevant state child welfare agency. In this case the Intervenor, who is the Director-General of the NSW Department of Human Services, sought allocation of parental responsibility to the Minister. When pressed as to whether any allocation of parental responsibility should properly be made in favour of the Intervenor or the Minister, counsel for the Intervenor submitted for the latter rather than the former. The mother and Independent Children’s Lawyer did not take issue with either the distinction or the Intervenor’s preference.
Accordingly, returning to the grievance ventilated by the mother, the absence of evidence about the circumstances of the foster carer, proposed to be used by the Intervenor for the care of the children in the event of an allocation of parental responsibility for them to the Minister, is to be expected. Although the lack of evidence may render the Court’s task more difficult, it is not a proper basis to pay the Intervenor’s parenting proposal no heed. The Court is properly entitled to proceed upon the basis that the arrangements made for the care of the children by the Minister pursuant to her statutory powers would be resistant to reproach. In the event that parental responsibility for the children is allocated to the Minister the Court should then ordinarily make definitive orders for the time that should be spent by the children with the mother.
Proposal of the Independent Children’s Lawyer
The Independent Children’s Lawyer did not begin the trial with a settled position. According to the Case Outline document dated 21 April 2010 relied upon by the Independent Children’s Lawyer, she indicated two alternative preliminary views about the case. The first was that the Court should make interim parenting orders, of 12 months duration, providing for the children to spend substantial time with the mother to test whether the mother could meet specific parenting goals and thereafter assume principal care of the children on a final basis. The second was for parental responsibility for the children to be allocated to the Intervenor and for the children to remain living in foster care.
During final submissions the Independent Children’s Lawyer tendered a Minute of Orders,[11] the general effect of which was a proposal that parental responsibility for the children be allocated to the Minister until they attain their majority, and that the children spend frequent time with the mother. There was therefore concurrence between the Independent Children’s Lawyer and the Intervenor about the allocation of parental responsibility, but disagreement about the extent of the arrangements for the children to continue spending time with the mother. The disagreement extended to the frequency, duration, and the need for supervision of such occasions.
[11] Exhibit ICL2
Unlike the Intervenor, the Independent Children’s Lawyer sought specific orders providing for the children to spend time and communicate with the paternal grandmother, conditional upon her expressing a wish for that to occur.[12] The Independent Children’s Lawyer wanted it noted that the children would spend time with their half-sister,[13] and an express order that they be able to communicate with her.[14]
[12] Exhibit ICL2, Orders 11-12
[13] Exhibit ICL2, Notation
[14] Exhibit ICL2, Order 12
The Independent Children’s Lawyer did not elicit evidence from any independent witnesses, but did compile a tender bundle of documents, with the consent of the parties, pursuant to procedural orders made by the Court on 1 December 2009. The tender bundle was admitted into evidence.[15]
[15] Exhibit ICL1
The Independent Children’s Lawyer and the parties also relied upon the evidence of the Family Consultant, Mr D, which was adduced in the form of the following assessment and reports, upon which he was cross examined:
a) Children and Parents Issues Assessment dated 1 July 2008;
b) Family Report dated 10 February 2009;
c) Family Report dated 23 September 2009; and
d) Family Report dated 12 February 2010.
Background Facts
The mother and father met and began living together in 1999.[16] They married in 2000.[17]
[16] Family Report dated 10 February 2009, par 3
[17] Affidavit of the mother filed 27 November 2009, par 1
The two children were born to the relationship of the mother and father in February 2005 and February 2007. They are now aged just 5 and 3 years respectively.
The mother has an older child from an earlier relationship, who is the maternal half-sister of the children. That child is S, born in June 1995. S had been living with the mother, father and children until September 2007, when she departed the household to live with a maternal aunt. In December 2007, S returned to live alone with the mother, following the separation of the mother and father.
The mother and father separated on 11 November 2007 following an incident of violence between them.[18] Following the separation the children lived with the father.
[18] Affidavit of the mother filed 27 November 2009, pars 1-5
These proceedings were commenced by the mother on 26 November 2007. Only several weeks later, on 13 December 2007, the mother and father entered into consensual interim parenting orders concerning the children, which provided in part as follows:
1.The children [C] born […] February 2007 and [B] born […] February 2005 spend time with the mother as follows:
1.1Each Monday, Wednesday and Friday from 9:00 am to 6:00 pm.
1.2Commencing Saturday 22 December 2007 each alternate Saturday from 9:00 am to 6:00 pm.
1.3On 25 December 2007 from 9:00 am to 2:00 pm.
2.The children live with the father at all other times.
The Independent Children’s Lawyer was appointed on 4 February 2008.
On 12 March 2008, further consensual parenting orders were made, including the following order:
1. That Order 1.1 of the Interim Orders dated 11 December 2007 be amended so that when the child [B] attends pre-school the mother spends time with the child [B] from 12 noon to 6:00 pm each Friday with the mother to collect the child from pre-school at 12 noon.
Again, on 22 April 2008, further consensual parenting orders were made, including the following:
1.The children [C] born […] February 2007 and [B] born […] February 2005 live with the mother each week as follows:
1.1 From 9:00 am to 6:00 pm Monday;
1.2 From 9:00 am to 6:00 pm Wednesday;
1.3 From 9:00 am Friday to 9:00 am Sunday.
2.At all other times the children are to live with the father.
Those orders were only implemented for a period of months. In July 2008, the mother and father reconciled for a period of about three weeks.[19] The relationship finally broke down in late July 2008 as a consequence of the mother’s assault upon S.[20] The mother departed the former matrimonial home and moved in with her parents, before finding her own rental accommodation shortly afterwards.[21] The father remained in occupation of the former matrimonial home, living with S and the children.[22] They were later joined in that household by the paternal grandmother.[23]
[19] Family Report dated 10 February 2009, par 4
[20] Family Report dated 10 February 2009, par 29
[21] Exhibit ICL1 tab 34.10
[22] Family Report dated 10 February 2009, par 4
[23] Family Report dated 23 September 2009, par 7
The mother was soon charged by police with assaulting S and an Apprehended Violence Order was obtained for the protection of S against the mother. The children were living in the same household as S and the father, and they had no interaction with the mother either.[24]
[24] Family Report dated 23 September 2009, par 7
In December 2008, S was removed from the care of the father by the Department and has lived in foster care ever since, having no interaction of any sort with either the children, mother, or father.[25] The children remained living with the father and paternal grandmother.
[25] Family Report dated 10 February 2009, pars 4, 29
The Intervenor intervened in the proceedings in February 2009, following an invitation by the Court being made in August 2008.[26]
[26] Affidavit of Ms A filed 17 March 2009, par 13
On 17 March 2009, further interim parenting orders were made with the consent of the mother, father, Intervenor, and Independent Children’s Lawyer. Those orders provided in part as follows:
1.That the Minister for Community Services (“the Minister”) have parental responsibility for the children [B] born […] February 2005 (“[B]”) and [C] born […] February 2007 (“[C]”) ([B] and [C] collectively “the children”).
2.That the children spend time with the father [Mr Falcon] as follows:
a.In the event that the children are living with the paternal grandmother:
i.Supervised time, supervised by the paternal grandmother, and with the paternal grandmother to be primarily responsible for the children’s care whilst they are spending supervised time with the father;
ii.Unsupervised time for periods of no more than 2 hours in any 24 hour period.
b.In the event that the children are not living with the paternal grandmother, the children spend time with the father as arranged by and at the discretion of the delegate of the Director General of the Department of Community Services (“the Director General”).
c.The father’s time spent with the children shall be subject to the following conditions:
i.The father is restrained from consuming any alcohol for the period 4 hours prior to being in the presence of the children, and at anytime whilst he is in the presence of the children; and
ii.The father is restrained from transporting the children in a motor vehicle when he is the driver of that vehicle; and
iii.The father shall accept the supervision of the Director General in relation to his parenting of the children. This supervision includes following the directions of the Director General’s delegate to engage with support services.
4.That the children spend supervised time with the mother for no less than 2 hours each fortnight. Such time spent with the mother is to be arranged by and at the discretion of the delegate of the Director General.
a.The mother’s time with the children shall be subject to the following conditions:
i.The mother is restrained from consuming any alcohol for the period 4 hours prior to being in the presence of the children, and at anytime whilst she is in the presence of the children; and
ii.The mother shall accept the supervision of the Director General in relation to her parenting of the children. This supervision includes following the directions of the Director General’s delegate to engage with support services.
5.That the children spend supervised time with their half sister, [S] born […] June 1995 for no less than 1 hour each fortnight. Such contact to be arranged by and at the discretion of the delegate of the Director General.
At the time those interim orders were made on 17 March 2009, the children had had no interaction of any sort with the mother since August 2008.[27] The orders made on 17 March 2009 provided for the children to spend supervised time with the mother for not less than two hours each fortnight, arranged at the discretion of the Intervenor. The orders also made provision for the reintroduction of the children to S by fortnightly short visits, which were to be supervised.
[27] Family Report dated 10 February 2009, par 12.
The children remained living in the combined care of the father and paternal grandmother until the death of the father in June 2009, after which time the children remained living solely with the paternal grandmother. That arrangement prevailed until the paternal grandmother surrendered the children to the Intervenor on 13 November 2009 in circumstances which have already been explained earlier in these reasons.
The Intervenor arranged for the children to be placed into foster care and they have remained living with the same carer ever since.
The children have continued to spend supervised time with the mother on a fortnightly basis pursuant to the orders made on 17 March 2009, although in mid March 2010 that regime was unilaterally varied by the Intervenor to permit the children to spend time with the mother on approximately a weekly basis. More recently still, in April 2010, the Department unilaterally permitted the children to spend time with the mother on a few occasions without supervision, including one occasion of overnight time. The children have also continued to spend time periodically with S at the home of S’s foster carer.
The matter came on for trial before the Court on Tuesday 27 April 2010, following its adjournment with a “not reached” marking on 1 December 2009. The evidence and submissions were completed on Friday 30 April 2010 and judgment was reserved.
Summary of Parenting Law
Orders in respect of children are regulated under Part VII of the Act. The meaning of a “parenting order” is defined (s 64B).
When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).
The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). That parental responsibility pertains to the major long-term issues concerning the child (ss 65DAC, 65DAE), being matters such as education, religion, culture, health, name, and living arrangements (s 4).
However, the presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.
In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).
If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.
The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286.
Best interests of the children – primary considerations
Section 60CC(2)(a)
By reason of his untimely death, the children are unable to have a meaningful relationship with the father. But even before his death, the Family Consultant experienced difficulty in determining whether the father was significant in the children’s lives. The same difficulty was experienced with respect to the mother.[28] The Family Consultant was unable to positively determine that the mother, father, half-sister, paternal grandmother, or maternal grandparents, were significant adults for the children.[29]
[28] Family Report dated 10 February 2009, par 7
[29] Family Report dated 10 February 2009, par 7
At a point in time when the children resided with the father and paternal grandmother, B identified C, the father and the paternal grandmother as his domestic group.[30] B did not immediately include either the mother or S as part of his family unit.[31] At the same point in time, it seems that C was more attached to his older brother B than anybody else in his life. His behaviour demonstrated a wish to be with his brother in preference to other adults in the family.[32]
[30] Family Report dated 10 February 2009, par 46
[31] Family Report dated 10 February 2009, par 46
[32] Family Report dated 10 February 2009, par 55
Those observations were made by the Family Consultant in February 2009, at which point the children had had no interaction of any sort with the mother for the preceding six months. Although they were reintroduced to the mother following the making of interim parenting orders in March 2009, the time then spent by them with the mother was restricted to visits of two hours duration each fortnight, subject to supervision. By the time the Family Consultant saw the children again in September 2009, the children had been seeing the mother pursuant to that interim regime for approximately six months, and the Family Consultant then concluded that the children had an “extremely complicated” relationship with the mother.[33]
[33] Family Report dated 23 September 2009, par 29
B’s comments about his mother vacillated in tone. At times he spoke very positively of her and at other times he spoke extremely negatively about her. The disparity in his expressed opinions was so great that the Family Consultant found it difficult to conceive that he was in fact talking about the same person.[34] The Family Consultant also had the opportunity to observe B interact with the mother. His behaviour fluctuated in much the same way as his comments. He was observed to react with joy and affection but then be detached and negative. B’s relationship with the mother appears to be characterised by some degree of ambivalence.
[34] Family Report dated 23 September 2009, par 30
C’s speech development and level of concentration was insufficient to permit his formal interview by the Family Consultant in September 2009. The discussion that did ensue made it clear though that C knew who the mother was, although he did not mention the mother in the context of where he lived and who comprised his family unit.[35] He was observed by the Family Consultant to interact with the mother positively and responsively during the formal observation session.[36]
[35] Family Report dated 23 September 2009, par 31
[36] Family Report dated 23 September 2009, par 32
C was only 18 months of age when the mother ceased having a day-to-day involvement in the children’s lives in or about August 2008.[37] The Family Consultant said that the effective absence of the mother from the children’s lives after August 2008 coincided with a critical period in C’s development, when he would be expected to strengthen his psychological attachments and learn to explore the world independently from a primary care giver. The Family Consultant considered that C has suffered a significant disruption in his primary care, and that is likely to have a significant deleterious affect on his long term development.[38] Although C’s attendance at a day care centre has assisted him to learn to socialise with his peers, material produced on subpoena and inspected indicated to the Family Consultant that C is still experiencing considerable trouble with peer relationships and that he has a propensity to use violence when frustrated.[39] The conclusion is inescapable that C’s development has been impaired by a lack of depth in relationships with his caregivers, and in particular the mother.
[37] Family Report dated 23 September 2009, par 33
[38] Family Report dated 23 September 2009, par 34
[39] Family Report dated 23 September 2009, par 34
The Family Consultant had a third opportunity to consult with the children in February 2010. By then, the children had been living in a foster care placement for approximately three months. The Family Consultant spoke with the children’s foster carer, who reported that both children mentioned their deceased father frequently and only occasionally mentioned the mother, paternal grandmother, and S. Occasionally, the children might ask for the paternal grandmother at times when they sought comfort, but the carer found that they were quickly distracted and consoled.[40]
[40] Family Report dated 12 February 2010, par 9
The Family Consultant elaborated the contents of his three Family Reports when he was cross examined. He said that it is harmful for children to be exposed by their care givers to behaviour which involves chronic drug or alcohol abuse and domestic violence. He considered that the children had been exposed to behaviour of that sort by the mother and father in the past and that the behaviour now exhibited by the children, which he described as both maladaptive and dysfunctional, is consistent with their exposure to such parental conduct.
The Family Consultant said that both children are at a crucial stage of their development and need to develop an attachment to the person who is to provide them with primary care into the future, but that is particularly so in the case of C.
The Family Consultant was asked to express an opinion about the attachment relationships that currently exist between each child and the mother. In respect of C, the Family Consultant described his relationship with the mother as highly disrupted. Although there were elements of strong attachment between C and the mother, there was also evidence of very poor psychological attachment. The Family Consultant considered that B’s relationship with the mother was far less disrupted than that between C and the mother, and was more typical of a parental relationship enjoyed by a child of B’s age. However, the Family Consultant recognised that there were still some difficulties in that relationship. In respect of each child, the Family Consultant expressed the clear view that the attachment with the mother was insecure.
The Full Court has had occasion to contemplate the meaning of s 60CC(2)(a) of the Act, which provision requires the Court to primarily consider the benefit to a child of having a meaningful relationship with both of that child’s parents. Two authoritative observations have been made which are of relevance to these proceedings.
Firstly, a meaningful relationship is one which is important, significant and valuable to the child, which concepts are evaluated qualitatively rather than quantitatively (see McCall v Clark (2009) 41 Fam LR 483 at 507-510).
Secondly, the Court is required to adopt a prospective focus in its assessment of such relationships. In other words, the Court is required to consider the benefit to the child of having a meaningful relationship with both of the child’s parents into the future (see McCall v Clark at 509-510).
I conclude on the evidence that the relationships the children now have with the mother hold significance for each of them, but the evidence does not demand a finding that their relationships with the mother are presently critical to them. To date, the importance and value of those relationships to the children has fallen considerably short of what it could or should have been.
The Family Consultant expressed the view that it was manifestly in the children’s best interests to have a meaningful relationship with the mother in the future. I accept that evidence, and the other evidence of the Family Consultant to which I have referred in reference to s 60CC(2)(a) of the Act.
Given that the children should retain their relationship with the mother, and be afforded the opportunity to cultivate that relationship with her into the future, the task for the Court becomes the formation of a parenting regime that will permit such an outcome, consistently with the children developing a secure psychological attachment with their primary carer.
Section 60CC(2)(b)
The potential need to protect the children from physical harm through subjection or exposure to abuse at the hands of the mother arises in this case from the occurrence of past events, and in particular:
a)The mother’s assault of the father, in the presence or hearing of the children, on 11 November 2007;
b)The mother’s assault of S, in the presence or hearing of the children, on 30 July 2008; and
c)The reports of the children to various independent persons that they have been physically assaulted by the mother.
The opinion of the Family Consultant, which I accept, is that the children have suffered substantial psychological harm as a consequence of their exposure to the family violence that occurred within the former matrimonial home. The mother was moved to concede in cross examination that she accepted that such domestic violence may well have had a negative effect upon the children. The evidence demonstrates that the children learned violent behaviour to resolve conflict in their lives. Independent observations by the pre-school director and foster carer indicate that the children have had real difficulty socialising and managing their behaviour.[41]
[41] Family Report dated 10 February 2009, par 51; Family Report dated 12 February 2010, par 8
There is no prospect of the children being exposed, as witnesses, to incidents of violence between members of their family in the future. The mother’s commission of family violence towards the father and S can not recur, because the father is deceased and S is in the care of the Department for the remainder of her minority and she refuses to have any sort of interaction with the mother. Consequently, although the children have already suffered psychological harm through exposure to those past incidents of violence between family members, there is no risk of perpetuation of the source of such harm.
However, the occurrence of those physical assaults in November 2007 and July 2008 is said to demonstrate a propensity to violent conduct on the part of the mother, which creates a future risk of physical harm to the children. The chain of reasoning is that the mother has a tendency to react violently and in the event that she is provoked or aggravated in some way there is a risk that she will react in a physically violent way towards the children. The reports by the children of their physical abuse by the mother is contended to be evidence that is capable of persuading the Court that the actuality of the children’s physical abuse transcends mere risk.
I will deal separately with the evidence relating to each of those incidents.
There is no doubt that the mother seriously assaulted the father on 11 November 2007. That is because the mother was charged by police with a series of offences arising out of the incident, to some of which charges she subsequently entered pleas of guilty and was convicted. The mother was formally convicted before the E Local Court on 6 May 2008 with the offences of “Use Offensive Weapon with Intent to Commit Indictable Offence” and “Common Assault”. In respect of each conviction she was concurrently sentenced to good behaviour bonds of two years duration, pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW).[42]
[42] Affidavit of Ms A filed 17 March 2009, Exhibit DR-1, Tab 4
The statement of facts tendered by the police to the E Local Court at the time of the mother’s sentence on those offences incorporated the following:[43]
The accused [Ms Falcon] and the victim [Mr Falcon] have been in a domestic relationship for eight years…
About 4:45 pm on 11 November 2007 Police were called to [the matrimonial home] for a domestic assault occurring. Police had received information that the accused had a knife and was threatening to kill the victim.
Upon arrival Police observed the accused and the victim outside the front door of the premises with the accused on top of the victim, both were restrained until a search for a weapon was conducted.
Police observed the victim to have large scratch marks to his neck and red marks on his face. The victim was also complaining about soreness to his ribs. Police observed the accused to have bruising above her right eye. The victim also had a small laceration to his upper left leg.
[The victim reported to police that] the accused was holding the knife lowered in her right hand. The victim stated that he slapped the accused across the face in self defence. The knife then struck the victim in the left leg near his hamstring.
This caused immediate pain and a small laceration to the victim’s leg. The accused then yelled, “You fucking bastard, now I am really going to…[remainder of passage omitted from document].”
The accused admitted to being in possession of a butter knife and swinging the butter knife towards the victim, however denied assaulting the victim any further.
Both the accused and victim had been drinking alcohol and both were affected.
[43] Exhibit ICL1, Tab 34.9
The mother’s sentences required her subsequent involvement with the NSW Probation and Parole Service. On or about 22 May 2008, the mother reported to an officer of the Probation and Parole Service that:[44]
…she assaulted partner with butter knife. Gave a background history of verbal abuse from partner. Agreed she had been drinking beforehand but denied that alcohol was a significant factor in offence. Has 2 children to r’ship with victim, both with him at present. States there is a Parenting plan in place and cross AVOs with standard conditions. Future of r’ship unclear – she suggested that they would both need to make changes.
[44] Exhibit ICL1, Tab 34.10
At the time of the mother’s convictions before the Court on 6 May 2008 for the offences arising out of the incident on 11 November 2007, the Court also made reciprocal Apprehended Domestic Violence Orders against both the mother and father in favour of one another.[45] Those orders were made for a period of two years, to expire on 5 May 2010. Neither order is now relevant or enforceable by reason of the death of the father. For completeness, it should be noted that the parties reconciled their relationship briefly in July 2008 whilst those AVOs were current.
[45] Affidavit of Ms A filed 17 March 2009, Exhibit DR-1, Tabs 2 & 3
When she was cross examined about the incident on 11 November 2007 the mother conceded that both children were present in the house at the time of the incident, although she is now unable to remember whether either child was in the immediate physical presence of her and the father at the time of the assault.
Similarly, there is no doubt that the mother assaulted S at the family home on 30 July 2008. On or about 9 August 2008, she was charged with the offence of “Common Assault” arising out of that incident. She later entered a plea of guilty to, and was convicted of, that offence.
The statement of facts tendered by police to the E Local Court at the time of the mother’s sentence for that offence included the following:[46]
The accused appears to have a problem with controlling her alcohol intake.
On Wednesday 30th July 2008, the [FALCON] family went to visit family in [U]. At that location both the accused and [the father] consumed an amount of alcohol. [The father] drove the family home and left a short time later with one of the children…Around 5:25pm on Wednesday 30th July 2008 the accused asked the victim to wash her hair. The victim did not want to do this as there was no hot water. The accused became angry at the victim and yelled at her to get out. The victim ran to her room and curled herself into a ball on her bedroom floor. The accused entered the bedroom and hit her across the top of her knees a number of times. The accused then tried to drag the victim out of her bedroom by grabbing her on her upper arms and dragging her to the hallway. The accused left the bedroom of the victim and went to the front door where she consumed further alcohol.
The victim left the house and ran to the front gate. She opened the gate and got into [the father’s] vehicle. She informed him of what had occurred. [The father] then went into the house and found the accused drinking alcohol. He told her to leave which she did without incident. The following day [the father] brought the victim to [E] Police Station where statements were taken in relation to the matter.
On Saturday 9th August, 2008 [U] Police attended the accused’s parents’ address and placed her under arrest.
[the mother stated] “I smacked her on the bottom because she wouldn’t wash her hair and that’s it”. The accused was clearly intoxicated when being spoken to by Police and stated that she had been drinking since 2pm this date. Due to her level of intoxication she was not interviewed or asked any further questions about the matter. The accused was then charged with the matters now before the court.
[46] Exhibit ICL1, Tab 34.8
It would appear that those criminal proceedings were not finally concluded before the E Local Court until early March 2009.[47] During the remand period of those charges, the mother continued to consult with officers of the Probation and Parole Service. The files of the Service reveal that on 10 February 2009 the mother discussed the assault on 30 July 2008 with an officer of the Service in the following terms:[48]
Offences discussed. Fully admits guilt to Assault on daughter and concurs with the police facts. Holds with what she told police about it being a smack on the backside. Had been drinking during the day but not at time of offence. Daughter now in DOCS care and offender not allowed contact. Claimed this hurt but understands the situation. Daughter has been a handful and offender took exception to being called a bitch by the 13 year old.
[47] Exhibit ICL1, Tab 34.7; Affidavit of Ms A filed 17 March 2009, pars 20-21
[48] Exhibit ICL1, Tab 34.10
Also during the remand period, on 15 September 2008, the E Local Court imposed an interim Apprehended Violence Order against the mother in favour of S and the children.[49] The interim order was later converted to a final order by the Court on 20 January 2009.[50]
[49] Affidavit of Ms A filed 17 March 2009, Exhibit DR-1, Tab 8
[50] Affidavit of Ms A filed 17 March 2009, Exhibit DR-1, Tab 12
The terms of the interim AVO were more restrictive than the terms of the final AVO. The terms of the interim AVO made on 15 September 2008 were not inconsistent with the interim parenting orders made by this Court on 17 March 2009. Nor were the terms of the final AVO inconsistent with the interim parenting orders made on 17 March 2009. The final AVO made on 20 January 2009 was for a period of 12 months and therefore expired on 19 January 2010.
The mother was cross examined about the circumstances of her assault upon S. She conceded that at least B was present in the house at the time of that assault, although she was unable to say whether B witnessed the incident. Given that C would then have been aged only about 18 months of age, I impute that he also would have been present in the house.
B has made allegations to the Family Consultant of abuse by the mother of both himself and his brother.[51] The mother denies that abuse.
[51] Family Report dated 10 February 2009, par 46; Family Report dated 23 September 2009, par 31
More recently, both children have reported to officers of the Department that they have been the subject of physical abuse at the hands of the mother. Following the children spending unsupervised time with the mother, for the first time overnight, between 16 and 18 April 2010,[52] the children were interviewed separately on 20 April 2010.[53] In each of their interviews the children made allegations of being physically assaulted by the mother during the time spent with her the preceding weekend. The allegations were subsequently put to the mother for her comment, and she emphatically denied the allegations.[54] Consistently with her denial of the allegations to the Department caseworker, Ms A, the mother repeated her denials of the allegations when cross examined.
[52] Affidavit of Ms A filed 27 April 2010, par 37
[53] Affidavit of Ms A filed 27 April 2010, pars 38 and 39
[54] Affidavit of Ms A filed 27 April 2010, par 40
Additional oral evidence was adduced by the Intervenor from Ms A about a further incident that occurred on 25 April 2010. On that date, a delegate of the Department was conveying the children by car to another scheduled visit with the mother. Both children, but particularly C, became highly distressed in the car and demonstrated by their comments and conduct that they did not wish to visit the mother. The children made allegations to the delegate about being physically abused by the mother. That incident was unknown until leave was granted to adduce the evidence orally during the course of the hearing. That was the first time the mother had heard the allegation. By the time that evidence was adduced the mother had already been cross examined and she was not recalled to answer the allegations. There was really no need because the allegations could only have related to incidents occurring on or before 18 April 2010, which was when the children had last seen the mother, and the mother had already denied allegations of her physical abuse of the children on and before that date.
There are two reasons why I repose no weight in the allegations made by either child of their physical abuse by the mother. The first is the apparent reliability of the mother as a witness, and the second is the undisputed unreliability of representations that have been made by the children.
The mother was cross examined at length during the hearing. She listened attentively to the questions posed to her and seemed to give considered answers. At times she paused at some length to ponder her answers, but the pauses seemed only intended to ensure her accuracy. She did not baulk at making concessions which were clearly not in her interest. I gleaned the distinct impression that her thought processes were unsophisticated and that she was generally doing her level best. She was a credible witness and I do not doubt the veracity of her evidence. I accept her denials of the children’s allegations of physical abuse as being truthful.
By comparison, the various statements attributable to the children are inherently unreliable, for numerous reasons.
The Department caseworker, Ms A, and the Family Consultant both agreed in evidence that the children are capable of manipulative behaviour. The Family Consultant offered several stark examples.
In consultation with the Family Consultant in February 2009, B alleged his physical abuse by the mother and lifted his shirt to display an injury to his hip as physical evidence of the abuse. It was clear to the Family Consultant that the child’s injury was a minor graze which had been recently suffered.[55] Given that the child had not been with the mother for the preceding six months, it was impossible for the injury to be associated in any way with the mother, as the child was saying or implying. The child was being deceitful.
[55] Family Report dated 10 February 2009, par 46
When observed with the mother in September 2009, the Family Consultant witnessed B interact warmly and positively with the mother for some 25 minutes. At the conclusion of the session the mother asked the child for a cuddle and the child declined. When asked why, the child said in a calm and unemotional voice “I hate you”.[56] The child’s detached and hurtful statement to the mother was dramatically different from the manner in which he had just been behaving. Either his statement was untruthful or his behaviour was disingenuous. It had to be one or the other, and the Family Consultant clearly thought that it was more likely that the statement was untruthful. Either way, the child was being manipulative.
[56] Family Report dated 23 September 2009, par 30
The Family Consultant discussed the children with their foster carer some six months later in February 2010. The carer reported to the Family Consultant that C would openly lie to her and say things such as “you punched me in the stomach” or “you hit me with a garden hose”, which things the carer said had certainly not happened. The carer also reported seeing C deliberately strangle himself to the point of causing his skin to redden and then say that another child had hurt him and caused that injury. The carer also reported that she had witnessed B hurt himself and then falsely accuse another child of hurting him.[57]
[57] Family Report dated 12 February 2010, par 8
The Family Consultant regarded the carer’s reports as accurate and reliable – there is no rational reason to conclude otherwise. The Family Consultant concluded that such behaviour by the children was “extremely significant”, given that they had made similar accusations against the mother and paternal grandmother.[58] There is a degree of commonality in the allegations made by the children against various adults over time.
[58] Family Report dated 12 February 2010, par 24
In the interview conducted by Ms A with B on 20 April 2010, the transcript of which is in evidence,[59] he elaborated his allegations of the mother slapping him. He spoke of her causing red marks on his skin. That is reminiscent of C displaying reddened skin to the foster carer as corroboration of the false allegations made by him about being hurt by other children,[60] and also of B complaining to the foster carer of red marks over his body as corroboration of his assault by the mother.[61] B also alleged being smacked by the mother on the face and on a sore finger, which is similar to allegations he previously made against the paternal grandmother in an interview with Ms A.
[59] Affidavit of Ms A filed 27 April 2010, Annexure R
[60] Family Report dated 12 February 2010, par 8
[61] Family Report dated 12 February 2010, par 9
Ms A was present when B was interviewed some months before on 13 November 2009 at the Department’s offices. There is a transcript of the interview in evidence.[62] In that interview B made allegations about the paternal grandmother physically assaulting both himself and his brother. He said that the paternal grandmother hit him on the fingers, and also alleged that she had smacked both children on the face. He also alleged that the paternal grandmother had hit them both with a hose. The reference to being hit with a hose is reminiscent of the false allegation made by C against the foster carer to the Family Consultant about her hitting him with a garden hose.[63]
[62] Affidavit of Ms A filed 1 December 2009, Annexure H
[63] Family Report dated 23 September 2009, par 8
It is possible, but implausible, that three adults – the foster carer, mother, and paternal grandmother – would have all independently physically assaulted the children in such common ways. That implausibility, combined with the known mendacity of the children’s statements to the foster carer and Family Consultant, raises the most serious doubts about the reliability of the children. I do not accept their veracity and repose no weight in their representations of physical violence being perpetrated upon them by the mother, or the paternal grandmother for that matter.
That is not to say however that the mother has not occasionally chastised the children in a physical or frightening way. The mother admits having smacked S on the bottom and B on the hand,[64] and when she was interviewed by Ms A on 20 April 2010, the mother conceded that the children’s challenging behaviour had led her to yell at them and clap her hands together.[65]
[64] Family Report dated 10 February 2009, par 18
[65] Affidavit of Ms A filed 27 April 2010, Annexure T
Although I generally accept the mother’s evidence, I infer that she has not completely accepted responsibility for the assaults she perpetrated upon the father and S. Notwithstanding her pleas of guilty and convictions for the assaults, in consultations with the Family Consultant, she alleged that she was the victim in the incident concerning the father in November 2007,[66] and denied the version given by S in relation to the incident in July 2008.[67]
[66] Family Report dated 10 February 2009, par 21
[67] Family Report dated 10 February 2009, par 18
As a component of the support offered by the Department to the family, the mother was referred to Ms M, a psychologist at the Women’s Shelter E, for counselling in respect of anger management.[68] The mother successfully completed the four sessions allocated during May and June 2009. Although the mother has been offered further counselling should she desire it, the mother has declined the offer as she does not consider that she requires any more.[69]
[68] Affidavit of Ms M filed 27 November 2009; Affidavit of Ms A filed 14 July 2009, pars 17-19
[69] Affidavit of Ms A filed 13 November 2009, par 51
Further counselling sessions for the mother about anger management would cost her nothing, other than her time. Having regard to the mother’s history of violent conflict with the father, her physical abuse of S, her past resort to physical chastisement of the children, and her more recent inability to control the children without yelling and clapping her hands together, I am not satisfied that four individual counselling sessions have cured the mother of a predisposition to physical confrontation. It would be facile to conclude otherwise. There is no evidence to suggest that the mother has been seriously challenged in any provocative way since her receipt of that counselling to test her resolve to employ her new anger management skills. I have little doubt that the mother is now a changed person, but I am not convinced that the change is so pronounced and permanent that the Court and the other parties can happily relinquish their residual concerns.
There remains a risk that the children could be physically abused by the mother, but the risk is a relatively slight one. It is not such an unacceptably high risk as to warrant supervision of the children’s time with the mother. To ameliorate the risk that does exist, the mother should continue with the anger management, domestic violence, and conflict resolution counselling that Ms M considered would be helpful to her. I am persuaded that that is the only measure the Court need reasonably take to ensure the protection of the children from physical harm that could be caused by their subjection or exposure to abuse by the mother.
Best interests of the children – additional considerations
I am not persuaded on the evidence that the mother is ready to resume full-time care of, and responsibility for, the children. She does not have the emotional capacity for such a task. To her credit, the mother admitted as much during her cross examination. She agreed with the proposition that she needed more skills to cope with the children. For example, she conceded that although she had not yet availed herself of further counselling for anger management with Ms M she does not assert that she has defeated that problem in her life. The mother also agreed that she would need assistance in order to give the children the high quality parenting of which the experts spoke. She was directly asked whether she was yet ready to handle the children with the consistently good parenting that they required, to which she honestly replied that she did not know. She was then moved to concede that her parenting capacity is not yet at the level necessary to deal with the demands of the children. She was clearly unconvinced herself about her ability to cope. She could not be drawn on whether she believed that the children should remain in foster care.
The mother agreed that the children misbehaved and pushed boundaries. She had experienced that in their visits with her quite recently. She had encountered difficulty coping with them. To exert control she had had to resort to yelling at them, or alternatively she gave in to them and thereby relinquished effective control of the situation. She admitted “snapping” at B a few times because he had been hitting C. Those difficulties confronted and overwhelmed the mother’s parenting capacity in only relatively short visits by the children.
There is uncontradicted evidence in this case that the children require high quality parenting by reason of their unfortunate experiences. That was the opinion of B’s paediatrician, Dr P, in July 2009,[106] and also of the Family Consultant in February 2010.[107] In the same vein, the psychologist to whom the children were referred by the Department, Dr K, remarked in August 2009 that the children needed insightful empathic parenting. That need arises from numerous factors of cumulative effect, including the deficient past parenting received from the mother and father, the losses of the mother, father, half-sister, and paternal grandmother from their lives, together with the disruption to their attachments those multiple losses have brought.
[106] Affidavit of Ms A filed 13 November 2009, Annexure T
[107] Family Report dated 12 February 2010, par 33
I am not satisfied that the mother can provide the children with the level of care and nurture the experts envisage is required.
Even the mother’s current counsellor, Ms R, conceded that it was very difficult to know whether the mother had the parenting capacity to provide the children with the special care they need. Ms R was familiar with Dr P, and was deferential to his opinion about the children’s needs. Ms R believed that she could offer the mother the support she would need to parent the children on a full-time basis. I am certain that Ms R is well-intentioned, but I am not persuaded that the mother will be able to successfully perform that parenting role in an indefinite basis, even with Departmental and/or other supports in place.
The mother has proven to my satisfaction that she now has the capacity to parent the children for short periods. The Department caseworker and manager were actively considering restoration of the children to the care of the mother until only weeks ago, before reversing their decision. The Intervenor must therefore have some degree of confidence in the parenting capacity of the mother.
The residual concerns about the mother’s capacity to handle the children for even relatively short periods are satisfactorily addressed by requiring her further participation in counselling directed to alcohol abuse relapse prevention and acquisition of parenting skills to reinforce the improvements she has made in her life.
Section 60CC(3)(g)
There is nothing about the maturity, sex, lifestyle, or background of the mother and children of relevance which has not already been addressed elsewhere in these reasons.
Section 60CC(3)(h)
Neither the mother nor the children identify as indigenous Australian.
Section 60CC(3)(i)
I am satisfied that the mother is now possessed of an appropriate attitude to the children and to the responsibilities of parenthood. Her efforts to improve over the last 15 months are testament to her attitudinal change.
Section 60CC(3)(j)
The issue of family violence has already been addressed under s 60CC(2)(b) of the Act. There is nothing more to add.
Section 60CC(3)(k)
The reciprocal AVOs previously made between the mother and father, which are in force until 5 May 2010, are no longer efficacious because of the father’s death.[108]
[108] See paragraph 107 of these reasons
The AVO made on 20 January 2009 against the mother in favour of S and the children expired on 19 January 2010.[109]
[109] Affidavit of Ms A filed 17 March 2009, Exhibit DR-1, tab 12
Section 60CC(3)(l)
Making orders that maintain the children’s existing residential arrangement and provide for them to spend time and communicate with the mother is the outcome which is least likely to lead to the institution of further proceedings. For reasons earlier discussed, the children are well settled in their new placement and it would be unsettling and probably harmful to the children if they were removed from their foster placement and placed into the mother’s care. Furthermore, I am not confident that the mother has the ability at this point in time to cope with the children and their potentially difficult behaviour for more than short bursts. Making orders that provide for removal of the children from their current carer and placement with the mother indefinitely is fraught with risk and carries with it the greater chance of breakdown and the need for further litigation.
Section 60CC(3)(m)
There are no further facts or circumstances to usefully add to the preceding discussion.
Parenting orders
It is impossible to apply the presumption of equal shared parental responsibility in this case because the father is deceased. As a consequence of the mother being the sole surviving parent, she retains sole parental responsibility for the children pursuant to s 61C of the Act (see Aldridge & Keaton at [114]), pending the Court’s order to allocate parental responsibility for the children otherwise. The Court is at large with respect to the allocation of parental responsibility for the children and that determination is informed by the best interests of the children, which interests demand a different outcome from the mother retaining sole parental responsibility for the children.
The Intervenor and Independent Children’s Lawyer both submit for the allocation of parental responsibility solely to the Minister on a permanent basis. Even the mother concedes that parental responsibility should not be allocated to her at this point. She advocates for the temporary allocation of parental responsibility to the Minister and the transfer of that responsibility to her solely after the elapse of some 20 months. The parties are therefore uniformly of the view that parental responsibility for the children can not presently be allocated to the mother. I accept that view as correct.
Whether the allocation of parental responsibility for the children to the Minister is temporary or permanent is linked to the issue of the children’s residential arrangements.
The mother placed heavy reliance upon the objects of Part VII of the Act and the principles underpinning those objects in pressing her case for the children to live with her. She correctly pointed out that the Act expressly seeks to ensure that children enjoy a meaningful involvement in their lives by their parents (s 60B(1)(a)), and that they receive adequate and proper parenting (s 60B(1)(c)). Her point was that she can provide adequate and proper parenting, even if it does not reach an optimal standard, and that the proposal of the Intervenor certainly did not ensure her meaningful involvement in the children’s lives.
The mother furthermore submitted that the Act mandated a principled approach to the case, requiring recognition of the children’s right to be cared for by her (s 60B(2)(a)), and even if not living with her, to spend time with her on a regular basis (s 60B(2)(b)). The mother’s argument was that her proposal fulfilled those principles, but that the proposal of the Intervenor certainly did not.
There is undoubtedly some force in the mother’s arguments. The objects and principles set out within s 60B of the Act set the tone for the implementation of the provisions of Part VII. In particular, they provide the context in which the factors in s 60CC are to be examined, weighed and applied (see Goode at [10]).
However, that assessment of the legislative structure only takes the matter so far. Section 60B expressly recognises that the objective of a meaningful involvement in the lives of children by their parents is only to be achieved consistently with the children’s best interests, and that the stated principles are not achievable if they are contrary to the children’s best interests. The children’s best interests always remain the paramount consideration (see Goode at [10]).
I accept the evidence of the Family Consultant that the children do not have secure psychological attachments to a primary care-giver. It is a consideration of serious significance in these proceedings. The Family Consultant spoke of the deleterious consequences of such a situation. If unrepaired, it will hamper the children’s emotional development. They will encounter difficulty forming and maintaining peer relationships throughout their lives. It will pre-dispose them to mental ill health. It will rob them of self-esteem and confidence. It will also impair their own parenting capacities.
Self-evidently, the situation needs to be rectified, and swiftly. The Family Consultant said, which I accept as correct in the absence of challenge, that it is feasible for the children to begin forming the necessary attachments with a primary care-giver from this point on. But there is no time to waste. There is no time to delay in the hope that the mother might continue her progression towards acquisition of the necessary parenting skills to capably handle the children, particularly with no guarantee of ultimate success. That was the submission of the Independent Children’s Lawyer, adopted by the Intervenor, which view seemed to be shared by the Family Consultant.[110]
[110] Family Report 12 February 2010, par 35
The Family Consultant said that the primary care-giver need not be a biological parent. Any capable parental figure can fulfil the role. The foster carer has been fulfilling that role since November 2009, and the Department intends that carer as the long-term placement for both children. All indications are that the children are content and settled in that carer’s household. I am persuaded that it would serve the children’s best interests not to be removed from that environment. Their stability with a carer whom the Intervenor regards as a person possessed of proven high quality parenting skills is a preferable option to another residential disruption that would be necessitated by them now being moved to live with the mother.
Any transition of the children’s residence to the mother would not be seamless. The children would lose the relationships they have so far developed in the carer’s household. They would be removed from their existing school and pre-school and therefore dislocate their peer relationships. The mother’s care of the children would be the subject of consensual intervention by officers of the Department and her counsellors, which would maintain an air of artificiality about the residential arrangement. The Family Consultant said in evidence that the relationship between the children and the mother stretching back to their re-introduction under the interim orders made in March 2009 has involved an element of anxiety for the children. Having regard to the evidence of the mother, that observation would also be true of her. She remains apprehensive about her ability to cope with the children, although her anxiety may be exacerbated to some degree by the unresolved litigation.
If the proposed residential placement of the children with the mother proved too difficult for her to cope, which remains a real possibility, then the situation could only be rectified by another removal of the children into foster care. That is not a risk worth taking, when a perfectly satisfactory long-term residential placement for the children is already in existence. I do not accept the mother’s submission to the effect that “foster care is a last resort in hopeless cases”. Often it may be, but it is not necessarily so.
I conclude that the children should remain living with their present foster carer. To effect that outcome, parental responsibility for the children is allocated to the Minister. No additional order is made about with whom the children should live, conformably with the authorities previously discussed.
Attention must then turn to the orders that should be made for the children to spend time and communicate with the mother. As previously mentioned, the authorities suggest that the Court should ordinarily proceed to make such ancillary orders notwithstanding the allocation of parental responsibility to the Minister, which is recognised in this case by all parties seeking such orders.
The Family Consultant was steadfastly of the opinion that the children would benefit from retaining some form of meaningful involvement of the mother in their lives. Given that he also emphasised the importance of the children’s establishment of a secure attachment to a primary care-giver, he was asked to proffer a view about balancing those two objectives. The Family Consultant clearly considered that the establishment of a secure attachment to a primary care-giver assumed greater importance, but he expressed several views about attaining the correct balance, including comments to the following effect:
(a)The time spent by the children with the mother on a long-term basis should be more than sessions of two hours duration each fortnight,[111]
(b)The time spent by the children with the mother on a long-term basis should include both weekend time and holiday time,[112]
(c)The formation of a secure attachment with the primary care-giver should not be impeded by absences from the care-giver which are too frequent,
(d)A formative proposal of the Independent Children’s Lawyer, which would have had the children spending unsupervised sessions of several hours duration each fortnight with the mother, escalating after 12 months to a full weekend each month, was “within the range”.
(e)Overnight and unsupervised time would be appropriate, subject to the Court’s conclusions about any risk posed by the mother to the children.
(f)The proposal of the Intervenor, which would have the children spending as little as six sessions per year with the mother, each of only several hours duration, was too restrictive and would be insufficient to preserve a meaningful relationship between the children and the mother.
[111] Family Report dated 23 September 2009, par 37
[112] Family Report dated 12 February 2010, par 40
The Family Consultant was understandably reluctant to be pinned down to specifics about the frequency and duration of an ideal level of interaction between the children and the mother, presumably because those are matters upon which reasonable minds may differ. Nevertheless, it is not an easy task to readily reconcile all of the Family Consultant’s comments about frequency and duration. I am left with the impression that even the Family Consultant was troubled by such a judgment.
Counsel for the Intervenor fairly conceded in final submissions that the flavour of the Family Consultant’s evidence was that he was more closely aligned with the proposal of the Independent Children’s Lawyer about the time to be spent by the children with the mother than with the proposal of the Intervenor. I agree with that candid assessment.
Earlier in these reasons[113] the submissions of the Intervenor about the need for restriction of time spent by the children with the mother were summarised. As indicated, the resources of the Department are not a compelling consideration. I indicated that I would later deal with the other reasons advanced by the Intervenor for the orders proposed, and I will now do so.
[113] See paragraph 156 above
Weight was placed by the Intervenor upon the guideline published by the Department to its officers about the time that children placed in foster care should spend with family members.[114] I place no weight upon that Department guideline for several reasons. Firstly, by definition, it is only a guideline. Secondly, it is a guideline for officers of the Department discharging the Intervenor’s obligations under state legislation – not a guideline for this Court exercising jurisdiction under the Act. Thirdly, the guideline itself notes that it is but one tool for use by officers of the Department. Fourthly, there is no evidence as to what part the Department’s fiscal policy may have played in the formulation of the guideline – it could be that the restrictive guideline is due in part to management of the Department’s finite financial and human resources. Tender of the guideline was permitted only because it relevantly contextualised the proposed parenting orders formulated in these proceedings by the Intervenor, on the advice of her caseworkers and case managers.
[114] Exhibit DHS1
The remaining consideration relied upon by the Intervenor was the overall best interests of the children. The Intervenor contended that the quality of the relationship between the children and mother must yield to the quality of the attachment that must now be formed between the children and the foster carer as primary care-giver. It was submitted that mixed messages would be sent to, and received by, the children if they were to live with the foster carer and be required to spend time with the mother either too frequently or for prolonged periods.
That is undoubtedly true, at least to the extent that there is any direct conflict between promotion of the relationships enjoyed by the children with both the foster carer and the mother. However, I am satisfied that those objectives are not mutually exclusive. Each objective is capable of accommodation. The challenge is to find the correct blend or balance.
Consistently with the evidence of the Family Consultant, I am led to the conclusion that the regime of time spent by the children with the mother should reflect a closer resemblance to the proposal of the Independent Children’s Lawyer than that of the Intervenor.
For the sake of completeness, it should be made plain that the orders made for the children to spend time and communicate with the mother are subject to any agreement reached privately between the parties from time to time. The orders will prevail in the event of disagreement.
The orders made require the children to continue spending time with the mother on a fortnightly basis, as they have now been doing for the past 12 months pursuant to the interim orders. The sessions however will be of four hours duration, rather than the two hours under the interim orders, or the three hours proposed by the Independent Children’s Lawyer. The children will also spend some hours with the mother on Mother’s Day and Christmas Eve each year.
There is no need for the time to be supervised, for the reasons earlier given.
After the continuation of that regime for 6 months, and provided the mother has been compliant with the requirement for the continuation of her counselling, the children will begin spending time with the mother for a period of 24 hours on one weekend in four. The sessions every fourth weekend commence on Saturday afternoons so as not to interfere with any junior sporting activities in which the children may become involved. That arrangement will replace the restricted fortnightly sessions. Of course, if the mother is non-compliant with counselling then the fortnightly sessions will remain the regime.
After the elapse of a further 6 months, in addition to the time spent with the mother every fourth weekend, the children will then spend three consecutive days with the mother at the commencement of each school holiday period.
The orders require the children’s changeovers between the foster carer and the mother to be facilitated by the Minister. The mother is not licensed to drive and does not have a car. The maternal grandmother drives, but there is no evidence about her availability to readily assist the mother and children with transport. The Intervenor submitted that a delegate of the Department would attend to the travel arrangements, in expectation that the Court would make an order requiring the delegate to transport the children to and from the mother’s home, or at least the town in which she lives, for the purpose of the children spending time with her. It is uncontentious that the mother enjoys a civil relationship with the Department caseworker and the Department delegates that she has met over the last 12 months. There is no reason why the Minister should not arrange the transport of the children to and from the mother’s home, rather than some landmark in the township. The children have been taken to the mother’s home and collected from there in the past.
The children shall additionally communicate with the mother by telephone once per week at a reasonable hour for a relatively short period. The order requires the children to initiate the telephone calls to the mother so as to preserve the privacy of the foster family. Ms A said in evidence that the foster carer would facilitate any communication order made by the Court. The orders proposed by the Intervenor envisage some degree of telephone communication between the children and the mother.
In my view, that program strikes a reasonable balance between the need for the children to quickly establish and maintain a secure attachment with the foster carer, the need for the children to maintain a meaningful relationship with the mother, the need to ensure that any residual risk posed by the mother to the children by reason of her past afflictions is safely managed, and the need to pay at least some heed to the practical difficulties which may be faced by the Intervenor in ensuring compliance with the orders.
The mother proposed an additional order restraining further consultation of the children with a counsellor without the written advice of a medical or psychological professional.[115] The mother’s concern was born out of the Family Consultant’s recommendation that the children not be subjected to any counselling for possible sexual abuse,[116] and the Department’s ignorance of that advice by referring the children to Ms V for just that purpose.[117] Although the referrals were arranged before release of the Family Report, the appointments were not scheduled to occur until after release of the Family Report,[118] so the advice of the Family Consultant was known at the time the appointments were to occur.
[115] Exhibit M2
[116] Family Report dated 12 February 2010, par 36
[117] Affidavit of Ms A filed 2 February 2010, pars 12-14
[118] Affidavit of Ms A filed 27 April 2010, pars 15-19
I decline to make the injunctive order sought by the mother. That is because the Family Consultant was aware that Ms V had employed sandplay therapy for the children, which he acknowledged is a well recognised psychological tool for children, and so there is no indication in the evidence that the children are being subjected to harmful therapy. Additionally, the Family Consultant was seemingly content to defer to the more recent opinion, and disavowed any intention to contradict the views, of another expert. As was argued in submissions, there is nothing inherently unusual in professionals reaching different conclusions in their field of expertise. Just because the Family Consultant considered in February 2010 that the children should not have counselling does not invalidate the opinion of another, such as Ms V, that some form of counselling may be needed by one or both of the children. I am satisfied that the Minister will not unreasonably subject the children to any form of therapy.
An order has been made restraining any change of surname for the children. The mother agitated for the children to retain their surname in the event that parental responsibility for them is allocated to the Minister. She was fearful that the Minister may cause or permit the children to change their surname to reflect the name of the foster family with whom they will live for many years. The mother is anxious for their surnames to be retained so that they are able to preserve a concrete link with her. There is no evidence that any name change has been considered, is intended, or will be contemplated by the Department or the children’s carer. Since neither the Intervenor nor the Independent Children’s Lawyer objected to the mother’s proposed order, the order is made with the acquiescence of all interested parties.
The remaining injunctive orders are made consensually between all interested parties.
For those reasons the orders set out above serve the best interests of the children.
I certify that the preceding two hundred and twenty (220) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin
Associate:
Date: 24 May 2010
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