K & T
[2005] FMCAfam 476
•20 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| K & T | [2005] FMCAfam 476 |
| FAMILY LAW – Children – application for resumption of contact – mental health issues – children’s best interests. |
| Family Law Act 1975 (Cth) |
| Applicant: | NDK |
| Respondent: | ABWT |
| File Number: | MLM 688 of 2003 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 20 July 2005 |
| Date of Last Submission: | 20 July 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 20 July 2005 |
REPRESENTATION
| Counsel for the Applicant: | Ms M.T. Green |
| Solicitors for the Applicant: | Victorian Aboriginal Legal Services |
| Counsel for the Respondent: | Ms A. Glaister |
| Solicitors for the Respondent: | Aboriginal Family Violence Prevention & Legal Service |
| Counsel for the Child Representative: | Mr Hale |
| Solicitors for the Child Representative: | Hale & Wakeling |
ORDERS
That all previous Parenting Orders be discharged.
That the children, RWK and DMK reside with the father and he be responsible for the said children’s long term and day to day care, welfare and development.
That the father shall provide to the mother at the Victorian Aboriginal Legal Health Service or to a P.O. Box nominated by her:
(a)copies of the children’s school reports and photos (save for any information identifying the children’s school);
(b)Information concerning any serious medical matters concerning the children.
That the mother be at liberty to forward to the children (care of the Victorian Aboriginal Health Service), letters, cards and presents.
That the mother have no contact with the children.
That the mother be restrained from bringing a further application seeking contact orders unless at the time of filing the said application she also files:
(a)a current psychiatric assessment from a suitably qualified psychiatrist;
(b)details of all medical practitioners, social workers, counsellors and the like upon whom she has attended in the past two years;
or obtains leave of the Court.
It is ordered that the mother shall provide to the psychiatrist providing an assessment pursuant to 6(a) hereof a copy of the Family Report dated 14 July 2005.
That until further order the mother be restrained from attending the school at which the children attend.
That the appointment of the Child Representative be discharged.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLM 688 of 2003
| NDK |
Applicant
And
| ABWT |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application concerning two children R and D, aged eight and seven years. The parents before me separated in 1998 when the children were young. Following separation the children lived with the mother until 2000 when the Department of Human Services became involved on the basis of allegations of physical abuse centring around allegations of cigarette burns. It seems that those allegations were not substantiated and it may be that those allegations arose because the children were suffering from ringworms.
In any event, as it transpires, the children were placed in care for a period and have then had some period of time in the shared care of the parties until 2001. The children were then placed in the care of the father as a result of a judgment of Morgan J. Orders for supervised contact by the mother were put in place. The children have been living with the father since then.
The mother, father and children were the subject of a family report, an assessment by an experienced family report writer. In that assessment the relationship between the parties and children is discussed.
The mother set out to the family report writer the practical difficulties that have impeded contact, such as a lack of a place of abode and lack of assistance. She set out in some detail to the family report writer her very sad personal history, which involved being taken from her own mother's care at three or four years of age and being placed in the care of the state, and her statements that she has received less than appropriate care during the time that she has been in the care of the state, including being sexually abused, and her statement that she continues to be stalked by one of the people who was involved in her care when she was a minor.
Her demeanour in court today indicates very clearly that she is a very troubled individual. Her difficulties manifest themselves in her emotive, highly animated, extremely intense and angry outbursts, both in the back of the court and in the witness box.
If what she says of her past is correct, it is not surprising that it manifests itself in the behaviour that I saw today and what appears to have been demonstrated to the family report writer. Sadly, this has resulted in her having little or no insight into her own behaviour and, it seems, no real capacity to modify or restrain her behaviour as may be necessary.
This was clear in the courtroom and was also clear to the family report writer when she set out her discussion in her report. In particular the report writer said:
22.Ms K and R played Uno together. Whilst playing she asked R what he calls A, his father’s wife. R paused, looked at Ms K and said ‘A’. The mother said that he should remember that she has told him he only had one mother. A short while later, Ms K started to tell D why the children were removed from her care, that their daddy had lied, and that they only had ringworms, not cigarette burns. She said was responding to D’s question about why she hadn’t seen them. The counsellor asked her to not talk about this subject with the children. Ms K then told R that she had not been charged with the allegations. She told the children that their father had stopped her seeing them five years ago. She appeared very angry talking about this and when asked again to stop, became angry towards the counsellor saying that her children had a right to know the truth. Both children looked shocked and D particularly appeared very uncertain. Ms K did not appear aware of the children’s discomfort.
23.When Ms K was saying goodbye she gave R a hug and was crying. R stayed and patted her. She also gave D a hug and she left crying. Following this time together, R informed the counsellor that the mother had told him that his father was not his father.
EVALUATION
24.The two children R and D appear settled and well cared for living within their father’s family unit. Both the children’s parents are aboriginal and Mr T maintains strong links for his family with his community. The children had not seen their mother for about five years until this assessment — since the ages of three and two. D the younger child did not appear to recognise his mother.
25.Ms K has a tragic history which impacts on her in many ways. Ms K’s presentation on the first interview day and loss of self-control — her lack of awareness of how her behaviour may impact on other people, especially children in the waiting area — is of concern. The mother’s emotions appear volatile and also unpredictable. She showed some anger in front of her children and this was unsettling for them. The status of the mother’s mental health and emotional state needs to be assessed — a psychiatric assessment would be of assistance to the court — and particularly in order to evaluate her capacity to commit to any treatment. Mr T pointed out that this has been a part of previous orders.
26.The most concerning aspect of the mother’s behaviour was her inappropriate revelations to the children regarding past aspects of the family history — for example, telling the children that their father had lied and whispering to R that his father is not his real father. Ms K put pressure on R regarding what he calls the father’s wife and R clearly understood that he could not tell Ms K the truth. The mother looked angry at one point when talking to the children about the past — she did not want to stop speaking to the children about the allegation of cigarette burns and said that the children had a right to know the truth. The mother is unable to separate out her own issues from what is appropriate for the children to know, D had no understanding about what the mother was talking about and looked shocked. The concern for the children is, that if the mother is not able to restrain herself in a supervised setting located at the court itself, what might she say to the children, firstly in a supervised setting away from the court, and secondly if she were unsupervised with the children.
The family report writer went on to state in paragraph 27:
27.…The mother appears to lack any understanding about the emotional impact on the children of re‑entering and leaving the children's lives. If the mother were able to show to the court that over the five year period since her last contact she has made some progress in her own life towards some stability and commit to a regular contact regime, then contact may be appropriate for the children. However this does not appear to be the case. It is not Mr T who is preventing Ms K from achieving contact with the children but Ms K's own behaviour.
From the evidence before me at the hearing I am satisfied that this is largely true.
It is interesting to note that despite the many allegations made by the mother against the father, one can see directly from the children that at least in one respect the father has not sought to supplant the mother's role. The children openly said in the family report writing interviews that they call the father's new wife A. They did not suggest that they called her ‘mother’. Sadly, the mother seems to have retorted to this by telling them that they should remember that they only had one mother, rather than being satisfied that it seems obvious the father has ensured that the children grow up with an appropriate recognition of the role of A, his current partner, in their present lives.
From seeing the mother in the witness box in the courtroom today, I do not believe that any judicial officer could be satisfied that she would be able to contain herself sufficiently to allow the children to have any form of contact with her, either on the telephone or in person, that would ultimately be to the benefit of the children. The children would simply be exposed to the angry outbursts and tirades relating to her own very sad past, which children of this age are not emotionally ready to deal with, nor should they have to put up with or be expected to deal with. This shows the very real lack of capacity of the mother to be able to separate her own needs from the needs of the children.
The father gave evidence and presented as a caring father. He is involved in the Aboriginal community. He works with Aboriginal artefacts and organises a dance troupe. The children have been in his care for five years and presented as capable and happy children to the family report writer. There is nothing in the material before me to indicate that the father has been anything but an appropriate father for the children, caring in their welfare and development.
To the extent that it was put to the father that he frustrated contact or did not participate in contact arrangements made through the Aboriginal Health Service, I accept the evidence of the father that he did attempt to participate and facilitate that relationship.
It is unfortunate that the mother is now in a state where she feels that even the Aboriginal Health Service is unable to provide her with any assistance and that she believes her previous solicitors are conspiring with other persons directly or indirectly involved in the case to prevent her from seeing her children.
Her lack of insight into the children's needs has led her to make outrageous suggestions such as a request that the children should be placed in the care of Department of Human Services so that she and the father can have contact. I can see no basis for that being in the children's best interests in the current circumstances of this case.
When considering the specific matters under section 68F(2) I note that the children are young and that their ability to have some insight into the difficult situation confronting the mother and their own circumstances, to the extent that it impacts upon the question in this case, is limited. I have little doubt that they would like to have a relationship with a mother who is able to spend time with them and meet their needs and allow them to be children and share their childhood with her. Sadly, at this stage in the mother's development I do not see that she has that capacity.
The children clearly have a positive relationship with the father. They have little or no relationship with the mother at this stage. I do not see that on the evidence the mother is yet at a stage where she could reasonably foster the relationship of the children with her. I do not see that the father would prevent that relationship being developed if the mother would participate in a reasonable way in the future.
The next factor is the likely effect of any changes on the child's circumstances. It appears to me there is a very real risk that the trauma and difficulty of the children having to have contact with the mother in her current circumstances and given her current demeanour would be likely to be a significant emotionally scarring event for the children into their future. If the mother's condition does not improve, it will be some time before these children are realistically mature enough, both in age and development, to be able to properly understand the issues that their mother must confront.
The next factor is the practical difficulty and expense of contact. In this case there are agencies which would be able to assist with some supervised contact if it were to be ordered. It does not appear to me to be a significant factor.
The next factor is the capacity of each parent to provide for the needs of the children. For the reasons I have set out above make it apparent that I do not think that the mother has the emotional or intellectual capacity at present to meet any of the needs of the children.
The next factor is the children's maturity, sex and background, including the culture and traditions of Aboriginal people and Torrens Strait Islanders. In this case the children are from Koori parents. They continue to live with their father who is a Koori man who is obviously involved in his cultural tradition and in the Aboriginal community in his region. He operates a small business with respect to Aboriginal artefacts and organising an Aboriginal dance troupe. Whilst the matter was not specifically explored, there appears to be no doubt that he would ensure that the children are able to grow up with an appropriate connection with their cultural traditions.
The next factor is the need to protect the children from physical or psychological harm, and there is no evidence before me that I would accept that the children are currently exposed to abuse or ill treatment. As set out above, I have real concerns that exposing them to the mother (until such time as she is able to control or modify her behaviour) would expose them to psychological harm.
The next factor is the attitude to the child and responsibilities of parenthood. Again I have real concerns for the reasons set out above that the mother has an appropriate attitude.
On the issues that are required in this case, matters (i) and (j) do not appear to be significant factors, save that any interaction would clearly have to be supervised by a third person, given the risk of the violent outbursts from the mother with respect to the father.
It is preferable that I make an order that is least likely to lead to the institution of further proceedings. In this matter the child representative has drafted an order that provides for the children to be in the sole care of the father, for information relating to them be sent to the mother via the Aboriginal Health Service and that the mother not bring a further application unless she has a current psychiatric assessment from a suitably qualified psychiatrist and provides details of her medical practitioners, social workers and the like, or alternatively has obtained the leave of the court.
In the context of this case, this appears to me to be an appropriate restriction. The father and the children ought to be able to move on with life without having court proceedings constantly over their heads. Similarly, given the mother's very sad history and obvious difficulties, it is appropriate that if she is able to address those issues with the assistance of a psychiatrist or counsellor or other suitable professional, to the extent that she is able to put forward a reasonable plan for reintroducing herself to the children in a way that will meet their needs, then she should have the opportunity to look at that in the future and make application if need be.
The only other fact or circumstance that should be addressed is that the mother had sought time to have a psychiatrist’s report prepared in August. It has been clear for six months that such a report has been required. The child representative indicated earlier in the matter that he had made a number of attempts to facilitate the preparation of such a report. An appointment was obtained in G but the mother refused to travel there, she says as a result of her traumatic childhood in the care of the department. It appeared to me that the matter had gone on for a significant period and it must have been obvious to all concerned from the outset that the mother would need, at the very least, some form of psychiatric assessment. I was not of the view that the lives of the father and the children should be placed under the further pressure of continuing court proceedings in the particular circumstances of this case. If and when the mother does address those factors, she can apply again in the future.
In the circumstances, I find that it is in the best interests of the children that I make orders in terms of those drafted by the child representative. I do not propose to make an order restraining the father from denigrating the mother or discussing the proceedings with the children as I am not satisfied that there is a real risk that he would do so, nor that he should be necessarily hampered in this regard, as it is likely that as time goes by the children are going to want to hear more about their mother and why it is they cannot have a more normalised relationship with her. Dealt with sensitively, it is appropriate that as time goes by the children have at least some information as to the fact that their mother has suffered much in the past and at this stage is not able to deal with the difficulties that confront her.
In the circumstances I therefore make the orders in the draft.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
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