London & Carter and Ors

[2009] FamCA 460

FAMILY COURT OF AUSTRALIA

LONDON & CARTER AND ORS [2009] FamCA 460

FAMILY LAW – CHILDREN – With whom a child lives – Grandparents

APPLICANT: Ms London

1st RESPONDENT: Ms Carter

2nd RESPONDENT: Ms Byard

3rd RESPONDENT: Mr London

FILE NUMBER: NCC 526 of 2008

DATE DELIVERED: 9 April 2009

PLACE DELIVERED: Parramatta

PLACE HEARD: Newcastle

JUDGMENT OF: Stevenson J

HEARING DATE: 8, 9, 10, 11 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Mooney

SOLICITOR FOR THE APPLICANT: Whitelaw McDonald & Associates

COUNSEL FOR THE 1ST RESPONDENT: Mr Graham

SOLICITOR FOR THE 1ST RESPONDENT: Hunter Family Law Centre

COUNSEL FOR THE 2ND RESPONDENT: Mr Kelly

SOLICITOR FOR THE 2ND RESPONDENT: Craney Family Solicitors

COUNSEL FOR THE 3RD RESPONDENT: Mr Davies

SOLICITOR FOR THE 3RD RESPONDENT: Winder Lawyers

SOLICITOR FOR THE INTERVENOR: Crown Solicitor’s Office

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Kristina Wooi Lawyer

Orders

1. That the paternal grandmother, Ms London, has sole parental responsibility for B born … January 2004 and Y born … March 2007 (“the children”).

2. That the children live with the paternal grandmother.

3. That the Director-General, of the New South Wales Department of Community Services (“the Director-General) supervise the children living with the paternal grandmother.

4. That for twelve months from the date of these orders, orders 1 and 2 are conditional upon the following:

   (a)The paternal grandmother giving the Director-General’s delegate access to the premises in which the children reside.

   (b)The paternal grandmother permitting the Director-General’s delegate to meet with and talk to the children, including speaking to the children by themselves.

   (c)       The paternal grandmother:

   (i)accepting the supervision of the Director-General  and

   (ii)obeying all reasonable directions of the Director-General.

5. That for six months from the date of this order the children’s mother, Ms Carter, spend time with the children once per month for a period of three hours at such time and place and under supervision as directed by the Director-General’s delegate on condition that the mother informs an officer of the Department of Community Services at the D Community Services Centre at least twenty four hours prior to any time she will be spending with the children that she will attend the visit.

6. That, after six months from the date of these orders, the mother spend time with the children once per month for a period of three hours, supervised by staff employed by the Rainbow Children’s Contact Centre.

7. That for six months from the date of this order the father, Mr London, spend time with the children once per month for a period of three hours at such time and place and under supervision as directed by the Director-General’s delegate, on condition that the father informs an officer of the Department of Community Services at the D Community Services Centre at least twenty four hours prior to any time he will be spending with the children that he will attend the visit.

8. That, after six months from the date of these orders, the father spend time with the children once per month for a period of three hours supervised by staff employed by the Rainbow Children’s Contact Centre.

9. That the paternal grandmother is restrained from:

   (a)bringing the children into contact with the father other than in accordance with these orders

   (b)       leaving the children unsupervised with R London

   (c)       leaving the children unsupervised with Mr H

10. That the maternal grandmother, Ms Byard, spend time with the children:

    (a)       once per month from Friday at 5:00pm to Sunday at 5:00pm

    (b)       each alternate Saturday from 10:00am to 4:00pm

11. That the maternal grandmother is restrained from:

    (a)bringing the children into contact with the mother other than in accordance with these orders

    (b)leaving the children unsupervised with any member of the maternal family

12. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

13. That all material produced on subpoena be returned.

IT IS NOTED that publication of this judgment under the pseudonym London & Carter and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 526 of 2008

MS LONDON 

Applicant

And

MS CARTER

First Respondent

MS BYARD

Second Respondent

MR LONDON

Third Respondent

REASONS FOR JUDGMENT

THE PROCEEDINGS

1. These proceedings concern two little boys, B who was born in January 2004 and is now aged five, and his brother Y who was born in March 2007 and is now two years old.     B’s parents are Ms Carter and Mr London.  Probably they are also Y’s parents, although Ms Carter made a suggestion that one Mr F may be his biological father.  My understanding is that Mr F’s whereabouts are unknown and that he has never been involved in these proceedings.

2. The other parties are the paternal grandmother, Ms London, and the maternal grandmother, Ms Byard.  Originally each grandmother sought orders that the boys live with her.  Immediately before the hearing commenced, however, the mother, the father, and the maternal grandmother all united in support of the paternal grandmother’s application that the children live with her.

3. The Director-General of the Department of Community Services intervened in the proceedings and sought orders to the effect that the children be placed in long-term foster care.  They would spend supervised time with each parent for three hours once per month.  Each grandmother would spend time with the boys for three hours per fortnight, without supervision. This proposal was supported by the Independent Children’s Lawyer.

4. In the event that the children continue to live with the paternal grandmother, the Director-General sought orders that she accept supervision by departmental officers and obey all of their reasonable directions for a period of twelve months.  Each parent would spend time with the children for three hours once per month, under the supervision of departmental officers for six months, and thereafter at Rainbows Children’s Contact Centre.  The children would spend time with the maternal grandmother for one weekend per month from Friday afternoon until Sunday afternoon and each alternate Saturday.  This proposal was supported by the paternal grandmother and also, apparently by the maternal grandmother and the father. The mother conceded that the children should live with the paternal grandmother but she sought to spend unsupervised time with them, while they are in the care of the maternal grandmother.

5. The principal issue, therefore, is whether the children should continue to live with their paternal grandmother or whether they should be placed in long term foster care.  It was abundantly clear on the evidence that these two alternatives are the only viable options for these two little boys, who have endured much to date in their short lives.

Background

1. The mother, who is now 22, began a relationship with the father when she was 15 and he was 18.  The father is now 25 years old.

2. The mother gave an account of their relationship to the single expert, Ms S, which painted a graphic picture of chronic family violence.  She spoke of being “hit around the head area” and “punched in the face” by the father.  She stated that she retaliated in kind. She also outlined a pattern of the father shouting, breaking B’s toys and throwing things.  It seems likely that the mother retaliated by shouting at the father.

3. It was clear that both parents are long term substance abusers.  They both admitted that they drank alcohol to excess and used a variety of illegal drugs during their relationship. The father has the additional burden of mental health problems, which may be connected to his drug abuse.

4. In March 2006 police officers attended the home of the mother and the father on the Central Coast, following an altercation between them.  The mother was arrested, pursuant to an outstanding warrant for failure to complete a sentence of 65 hours community service.  This sentence was imposed following a conviction for malicious damage to property in December 2005.  She served a three week prison term in May/June 2006, during which B lived with his maternal grandmother. 

5. At about the same time the father was ordered by a court to attend a three month residential rehabilitation program.  He and the mother attempted to reconcile when he left the program after two months.  According to the mother, their volatile relationship finally came to an end in November 2007

6. The Department of Community Services became involved with the mother and the father at a very early stage in B’s life.  There have been numerous notifications over the intervening years.  Ultimately B and Y were placed in the care of the paternal grandmother on 31 January 2008, pursuant to a temporary care agreement signed by both parents.  On 28 February 2008 the paternal grandmother commenced these proceedings in the Federal Magistrates Court and, on 16 April 2008, interim orders were made that the children live with her.

7. In January 2008 the mother began a relationship with her current partner, Mr R, who turned 18 years old in November 2008.  They live with Mr R’s mother at T and are expecting a child in April 2009.

8. Pursuant to a court order, the father again entered a residential rehabilitation program on 23 September 2008.  In his affidavit he indicated that he derived some benefit from this program.  He left, however, after fulfilling the requirements of the court order but before he completed the course.  Currently he lives with his sister and brother and hopes to obtain supported accommodation. 

9. The Department of Community Services supported a permanent placement of the children with the paternal grandmother until the release of a report by the single expert, Ms S.  In summary Ms S was of the opinion that B has developed “strong though distorted attachments with both parents and grandmothers” and that “his witnessing violence has been so repetitive and of such early onset that it has unfortunately been incorporated as part of his attachment template”.  Ms S diagnosed that Y suffers from Reactive Attachment Disorder, as he “has reacted to the violence he has witnessed and neglect he has suffered, by developing a pattern of dissociation and extreme passivity in his environment”.  Strong issue was taken on behalf of the paternal grandmother, the maternal grandmother, the mother and the father with Ms S’s diagnosis of Reactive Attachment Disorder and her opinions generally.

Approach To These Proceedings

1. Since the 2006 amendments to the Family Law Act the court is obliged to focus on two primary and several additional considerations in determining what orders are in a child’s best interests.  The first of the primary considerations is the benefit to a child of a meaningful relationship with each parent.  The second such consideration is the need to protect a child from physical or psychological harm resulting from exposure to abuse, neglect or family violence.  Unfortunately for B and Y, the second of these primary considerations could more accurately be expressed as a need to protect them from any further exposure to harm.

2. If a parenting order is made, a court must apply a presumption that it is in the best interests of a child for his or her parents to have equal shared parental responsibility.  This presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of a child or family violence.  The presumption may be rebutted if the court is satisfied that it is not in a child’s best interests for his or her parents to have equal shared parental responsibility.

3. For reasons which appear below, I am comfortably satisfied that the presumption of equal shared parental responsibility does not apply or has been rebutted in this case.  It is clear that B and Y have both been exposed to abuse and family violence as a result of the behaviour of their parents. They have been subjected to instability and conduct which could only have damaged their emotional development.  In addition, it is quite clear that neither parent is in a position to offer full time care to the children.  In fact, neither the mother nor the father sought such orders.  In these circumstances, it is obvious that it would be contrary to the children’s best interests for the mother and the father to have equal shared parental responsibility. 

The Evidence and Witnesses

1. The applicant paternal grandmother, Ms London, relied on five affidavits which she swore in 2008.  In cross-examination she presented as a sincere person who is doing her best for her grandsons in very difficult circumstances.  I have no reason for any reservations as to her credit. 

2. The first respondent mother, Ms Carter, relied on her affidavits sworn on 21 April 2008 and 29 October 2008.  Her case was supported by affidavits sworn by her sister, the maternal aunt, on 24 April 2008 and her partner Mr R sworn on 29 October 2008.  Mr R and the maternal aunt were not required for cross-examination.  The oral evidence of the mother was truncated, because she acknowledged at the commencement of the hearing that she could not pursue her original application for orders that the children live with her.  My opportunity to form an impression of her in the witness box was thus very limited but she gave me no reason to doubt the truth of her evidence.

3. The second respondent maternal grandmother, Ms Byard, relied on three affidavits which she swore during 2008 and an affidavit sworn by her daughter sworn on 1 April 2008.  Neither the maternal grandmother nor her daughter was required for cross-examination, no doubt due to her wise decision to support the application of the paternal grandmother. 

4. The third respondent father, Mr London, swore two affidavits on 28 February 2008 and 13 November 2008.  He was commendably frank in his written evidence about his past substance abuse and criminal history.  He gave very brief oral evidence.

5. The Director-General of the Department of Community Services adduced evidence from Ms M, who is the manager with responsibility for B and Y.  Ms M provided a written proof of evidence (exhibit 3) and elaborated on its contents in cross-examination.  The departmental case worker, Ms D, swore a lengthy affidavit and gave oral evidence in cross-examination.  Both Ms M and Ms D impressed me as highly capable departmental officers, who managed to combine objectivity with sensitivity.

6. The Director-General also adduced evidence from Dr L, a consultant toxicologist.  Dr L analysed urinalysis test results of the mother and the father.  It is not necessary that I analyse these results in any detail in relation to the father, as he accepted that the children’s time with him must be supervised.

7. Dr L was provided with 17 urine samples from the mother which covered the period 21 April 2006 to 27 August 2008.  Cannabis was detected in the sample taken on 27 April 2006 and prescription drugs were present on four other occasions.  Methylamphetamine (‘speed’) was detected on 3 August 2008.

8. A large volume of subpoenaed material was tendered in evidence. I will not now summarise these documents but will refer to the relevant extracts below in the context of the section 60CC considerations.

The Presumption of Equal Shared Parental Responsibility

1. Neither parent sought orders that the children live with him or her.  They both consented to orders that the boys live with the paternal grandmother and spend relatively limited time with each parent.

2. The consequence is that decisions which involve the exercise of parental responsibility will be made by a delegate of the Minister and/or the paternal grandmother.  In purely practical terms it is obviously not in the best interests of B and Y for the father and the mother to have equal shared parental responsibility.  I am comfortably satisfied that the presumption has been rebutted in these circumstances.

3. It is thus unnecessary for me to go through the artificial exercise of considering whether the children should spend equal or substantial and significant time with each of their parents. I will proceed to determine what orders are in their best interests by reference to the section 60CC considerations, bearing in mind the objects and principles which underlie Part VII of the Family Law Act.

The Primary Considerations

Section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child’s parents;

1. The report of Ms S would suggest that B currently has a meaningful relationship with his mother.  Ms S observed:  “[B] smiled on seeing her and hugged her” and “he seemed happy to see his mother and played with her in quite an imaginative and focussed way”.

2. Ms S had no opportunity to observe B with his father, as the father failed to attend two scheduled interviews on 30 October 2008 and 21 November 2008.  It seemed that he was unable to obtain leave from his residential rehabilitation program on the first occasion.  No explanation was advanced for his failure to attend the second appointment.

3. Ms S noted that Y smiled when the mother hugged him at the beginning of her observation session.  She had not previously seen him smile but he did so on several other occasions while with his mother.  She observed that his mood seemed “slightly improved” and that he “vocalised more”.  Nonetheless, Ms S formed the view that the mother’s interaction with Y was “particularly lacking in intimacy”.  Obviously, there was no observation of Y’s interaction with his father. 

4. It thus seems to me that there is a potential for both B and Y to have a meaningful relationship with their mother.  Ms D gave evidence that the children would spend time with their mother for “identification” purposes only, if they are placed in long-term foster care.  The orders sought by the Director-General were to the effect that the children spend three hours per month with their mother, under supervision.  The recommendation of Ms S was that “contact with [the children’s] biological family members should be gradually decreased and conducted under supervised conditions, as benefiting the nature and aims of a long-term foster placement”. 

5. One consequence of placement of the children in long-term foster care would thus be that they would lose any meaningful relationship which they currently enjoy with their parents and other family members.  There would be no real opportunity for the future development of parental and extended family relationships in these circumstances.

6. On the other hand, there would be potential for the continuation of any currently existing meaningful relationship of the children with their mother, if they are placed in the care of the paternal grandmother.  The two grandmothers seem to have achieved a degree of cooperation regarding the boys’ time with the maternal grandmother.  It might be expected that this accommodation would extend to the mother in the future, subject to her remaining drug-free and achieving stability in her life.

7. There was no independent evidence as to whether either of the children currently has a relationship with the father which could be characterised as “meaningful”.  The reports of the supervisors of his time with the boys, however, provide some insight into the father’s motivation and the quality of his interaction with his sons.

8. On 6 February 2008 the supervisor noted that the father played with the boys and appeared to “tire of the game first”.  He told the supervisor that he was feeling ill on that day.  The father participated in a game with the boys, during which Y displayed “obvious glee” in the opinion of the supervisor.

1. On 10 June 2008 the supervisor noted that the father hugged B when he arrived for the visit.  B then remained close to his father, “talking constantly”.  The father picked up Y and cuddled and kissed him, then sat on the sofa with him.  The supervisor observed:  “[Y] sat upright in his arms at first but then leaned forward for a kiss and a cuddle and snuggled in under his dad’s chin, smiling and looking into his face and then he slid off his knee and onto the floor to walk around”. 

2. During this visit the father encouraged B to share toys with Y and praised him when he did so.  He changed Y’s nappy “quite confidently” and fed him a bottle.  At the end of the visit he cuddled the boys and talked to them about “being good for Nan”. 

3. On 17 June 2008 the supervisor observed that the father hugged and cuddled the boys on several occasions and played games with them.  She saw Y put the father’s cap on his head sideways and backwards, at which all three laughed.  At the end of the visit the father again spoke to B about “being good for Nan this week”.

4. During the next visit, on 29 July 2008, the supervisor observed that the father succeeded in involving Y in some games.  At one point he sat on the floor with Y and helped him with a game involving blocks, cars and other toys.  He talked to Y and cuddled him.  Y “smiled and snuggled into his side”.  On several occasions the father asked B to play by himself and explained that he was busy with Y.

5. During the visit on 25 August 2008 B shared toys and potato chips with Y.  The father encouraged him to share with his brother and praised him for doing so.

6. On 9 September 2008 the father succeeded in having Y eat a cheese sandwich before he started to share B’s packet of Twisties.  He helped Y to blow his nose and cuddled him on a number of occasions, while sitting beside him on the sofa.  At one point Y ran into the father’s arms after he said to him “[Y], where’s my cuddle?”. 

7. Also in evidence (exhibit 9) were reports for the period 15 May 2008 to 4 September 2008 by supervisors of the children’s time with their mother.  Throughout these reports there are notes of B showing physical affection to his mother and participating in games with her.  There are also reports of angry, destructive behaviour on the part of B.  In my view, this conduct would be difficult for any person to manage but the mother was unable to set effective limits on  him.

8. The supervisors’ reports describe Y smiling at his mother and playing with her.  On 5 June 2008 a supervisor observed that the mother and Y played a ball game together for approximately 15 minutes.  Y laughed with his mother and crawled toward her when she asked him to come to her. 

9. It thus seems to me that both the mother and the father are making a genuine effort to have a meaningful relationship with their sons.  At the same time, they are both struggling to master their substance abuse problems and, in the case of the father, to cope with mental health issues.

10. For reasons to which I have already referred, the boys are most unlikely to develop a meaningful relationship with either parent if they are placed in long-term foster care.  It is unquestionable that there would be difficulties in maintaining or developing a meaningful relationship for the boys with each parent, if they are in the care of the paternal grandmother, but that potential at least would exist in those circumstances.

    Section 60CC(2)(b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

11. The drug and alcohol abuse history of the mother and the father of itself is   sufficient to establish that the children need to be protected from harm while in the care of each of their parents.  As recently as the Friday before the trial Ms D saw the father sitting outside her office, drinking alcohol from a bottle.  He had only just been released from his residential rehabilitation program.  Ms D said that he “showed no obvious signs of intoxication” but it is concerning that he was observed drinking alcohol in a public place so soon after he left a rehabilitation centre.

12. I have referred already to the account given by the mother to Ms S of the violence in her relationship with the father.  In his affidavit sworn on 13 November 2008 the father admitted that he and the mother “yelled abuse” at each other and physically damaged their home during arguments.  These unacceptable incidents occurred in the presence of B.  The father also admitted that he was charged with a criminal offence after an altercation with the mother in April 2006, during which he “pushed her”. 

13. A much more serious account of this incident was contained in the statement of Senior Constable T (exhibit 23).  Briefly, Constable T reported that the father had a large knife in his possession when police officers arrested him.  He admitted that he had assaulted the mother and breached a domestic violence order.  He said that he had cut his wrists on the previous evening and was contemplating harming himself again.  He was taken to a mental health unit because the officers were concerned for his psychological state. 

14. A very concerning incident took place at the home of the paternal grandmother on 21 December 2007.  The statements of Constables S (exhibit 21) and W (exhibit 22) indicate that they attended her premises, where they were confronted by the father holding a knife and urging them to shoot him.  The officers observed that the paternal grandmother’s security door and telephone had been damaged and that a hole had been smashed in her bedroom door.  The paternal grandmother told the officers that she and the boys had hidden in the bedroom while the father was trying to smash down the door.  This episode must have been terrifying for the children.

15. Also in evidence (exhibit 15) was a statement of Senior Constable H in relation to an incident involving the mother and the father on 15 March 2004.  Although this event is of some antiquity, it illustrates the extent to which the mother and the father are apparently capable of engaging in antisocial, unacceptable behaviour. 

16. On this occasion the mother and the father boarded a bus with B, who was then two months old.  They accosted a group of teenage school students, apparently because the father was accidentally knocked by one of their bags.  They verbally abused the students in offensive terms, despite their apology.  The father then punched one boy in the face.  The mother grabbed one of the girls by the hair and kneed her twice in the face.

17. All of these matters lead me to the inescapable conclusion that the children need to be protected from harm while in the care of their parents.  I acknowledge, however, that both the mother and the father seem to be making genuine efforts to address their substance abuse issues.

Section 60CC(3)(a): any views expressed by the child and any factors (such as the child’s maturity or level of understand) that the court thinks are relevant to the weight it should give to the child’s views;

1. Ms S reported that B told her:  “I want to live with Mum!  Now!”.  For reasons to which I have referred, no weight can be attached to this wish.  In any event, the mother sensibly abandoned her application for orders that the children live with her.

2. There was no evidence that Y has expressed any views as to where he wishes to live.  At two years of age, his wishes would carry no weight in any event. 

   Section 60CC(3)(b): the nature of the relationship of the child with:

   (i)each of the child’s parents;  and

   (ii)other persons (including any grandparent or other relative of the child);

3. Ms S expressed concerning opinions about the nature of the children’s relationship with both of their parents and grandmothers.  She assessed that B has “strong but distorted” attachments with his mother, father and both grandmothers.  This assessment was made in relation to the father, in the absence of any interview with him or observation of his interaction with the children.  History would suggest, however, that the father has a problematic relationship with both children.

4. Ms S reported: 

   “The children have developed significant problems due to their unfortunate experiences.  [B] has developed severe emotional and behavioural problems evident by his emotional lability; his violence, including towards adults, and his impulsivity.  He has internalised and now acts out some of the violence he has seen repeatedly in his short life.  While it is reported that his behaviour has improved since being removed from his parents’ care, this improvement is fragile and quickly broke down in the family interview with his current carer and later with the maternal grandmother.

   [B], unlike [Y], appears to have developed strong [though distorted] attachments to both parents and both grandmothers.  He clearly stated that he wished to live with his mother.  While he can recall some of the violence he has witnessed, he remains relatively inured to this and is not showing many overt post-traumatic symptoms.  Rather, his witnessing of violence has been so repetitive and of such early onset, that is has unfortunately been incorporated as part of his attachment template.  He now acts this violence out in his intimate relationships [eg punching and abusive of both grandmothers and the mother].  The internalisation of this violence as attachment is much more difficult to reverse than are the more overt traumatic symptoms.”

5. Ms S identified a vastly different set of problems with regard to Y. She reported:

   “Reactive Attachment Disorder (DSMIV). 

   [Y] has reacted to the violence he has witnessed and neglect he has suffered, by developing a pattern of dissociation and extreme passivity to his environment.  He is highly indiscriminate in his attachments (ie relates to familiar and unfamiliar caregivers in the same manner), while at the same time being quite avoidant in these and rarely seeking out normal human interaction.  Sadly he is a child who is non-demanding of attention and human intimacy; is precociously self-sufficient; and seems quite inured to both physical and emotional pain.  He also displays deficits in cognitive and reactive [play] development which are likely an effect of his early neglect.”

   Ms S reported further:

   “In a sense both brothers have reacted very differently to the violence and neglect they have been exposed to.  [Y] is highly reactive to and has internalised aspects of the violence, as seen in his very challenging, and at times violent behaviour and his intense emotional reactivity. [This opinion was clearly intended to apply to B, not Y as was stated in the report.] On the other hand there has been a chronic ‘switching off’ of emotions and attachment behaviours in [Y].”

6. I have referred already to the observations made by supervisors of the children’s time with both of their parents.  On 9 September 2008 a supervisor noted Y’s reaction when the paternal grandmother delivered him for a visit with his father, in these terms:

   “[B] saw his dad outside and ran and hugged him.  He was with [Y] and Nan.  [Y] was holding Nan’s hand and he looked down when he saw his dad and gave a shy smile but kept holding Nan’s hand.  [The father] opened the door for them and they came in together, [Y] still hanging onto Nan’s hand.  She picked him up to bring him into the room, he nuzzled into her neck.”

   The supervisor reported further:

   “Nan said she would have to sneak out because [Y] was having ‘separation problems’ from her.  After she said her goodbyes to the boys, [Y] followed her to the door, cried out and reached up his arms to her.  She picked him up, cuddled him and said ‘Nan will be back soon.  Stay here with dad for your visit’.  She attempted to leave and [Y] grabbed her legs and reached up his arms.  She leaned down and took his hands away and said she was ‘going now, I’ll be back later [Y], enjoy your visit with dad’.  Nan walked quickly out the door.”

7. Ms F, the Director of C Childcare and Early Learning Centre, provided a report to Ms D dated 19 November 2008 (exhibit 6).  She stated:

   “1.  Both boys are well settled at the centre.  They are happy, relaxed and calm upon arrival, and happily greet their teachers and their peers.  They are confident in their environment and choose to participate in a range of activities.  They each interact appropriately with their peers. 

   2.  No behavioural problems have been observed with either [B] or [Y].  Both boys exhibit developmentally appropriate behaviour.

   3.  In the opinion of myself and other trained early childhood staff, both boys are meeting developmental milestones…

   4. Both I and other centre staff members have observed a caring, loving relationship between [the paternal grandmother] and both boys.  They are calm and happy in her company, and are always pleased to see her at the end of the day.  The boys always appear well cared for and well dressed.  [The paternal grandmother] has enhanced their attendance at the centre by attending special events held here to enable them to participate….”

8. In cross-examination the department’s casework manager, Ms D, agreed that “there is evidence of an emotional attachment between [B] and [his paternal grandmother]”.  Ms D supported the permanent placement of the children with the paternal grandmother until the release of Ms S’s report. 

9. In a “Placement Assessment Report” dated 21 July 2008 Ms D wrote: 

   “The children appear to be comfortable and at ease in their paternal grandmother’s company and in her home.  Both children approached [the paternal grandmother] for her attention and her affection to which she appears to respond instinctively.  [The paternal grandmother] has maintained clear boundaries on the children’s behaviour and a predictable routine so as to facilitate a sense of security for the children to which they have responded well.”

   This report also stated: 

   “The placement with [the paternal grandmother] allows the children the opportunity to remain within their family and ensures that they maintain meaningful relationships with their parents and extended family members.”

10. I do not question at all Ms S’s expertise or vast experience.  With the greatest of respect to her, however, I wonder whether the amount of time which she was able to spend with the children, their mother and their grandmother was sufficient to enable her to diagnose that Y suffers from Reactive Attachment Disorder.  I do not reject her diagnosis as such but I am very concerned that this opinion sits most uncomfortably with the supervisors’ observations of Y’s interactions with his parents and paternal grandmother.  I am also troubled that the director of the Childhood and Early Learning Centre formed views about the boys’ behaviour and relationship with the paternal grandmother, together with her ability to meet their needs, which seemed to be at odds with the opinions of Ms S.  I am further concerned that Ms S herself observed that Y reached out to his maternal grandmother, Ms Byard, apparently wishing for her to hold him.

11. For these reasons, I do not share Ms S’s views as to the unsatisfactoriness of the children’s relationships with their parents and grandmothers.  Of course, I am very concerned that these relationships have been damaged by the boys’ unfortunate life experiences to date.  In my assessment, however, there is potential for the development and improvement of familial relationships.  In my opinion, the children each have a relationship with the paternal grandmother which is of sufficient quality to equip her with the potential to meet their needs.

Section 60CC(3)(c):` the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

1. In the circumstances of these proceedings, this consideration has no relevance.

Section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i)either of his or her parents;  or

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

1. Ms M, the casework manager, gave evidence that she proposes to place both children in long term foster care if orders are made that the Minister has sole parental responsibility.  Such a placement would be in an area bordered by Wyee, Port Stephens and Maitland.  A referral to the foster care recruitment team was made early in December 2008 but, as at the date of the trial, no potential carers had been identified.

2. In cross-examination Ms M readily agreed that foster placements of children with severe behavioural problems can break down.  She agreed that a series of failed placements would not be in the best interests of B or Y. 

3. Ms D agreed that “of course it would not be in either child’s interest to be moved between carers”.  She said also “DOCS work very hard not to separate children – but there is always that possibility I guess”.

4. Ms S appeared to support a placement which would see B and Y separated from each other.  She said in oral evidence words to the effect: “Normally you would want siblings together but [because of] [Y’s] particular problems:

   ·He needs intensive nurturing from a committed carer to undo his attachment damage and that is difficult with [B] there

   ·[B’s] behaviour is ongoing, so [Y] is still witnessing violence

   ·[B] has assaulted him.”

5. Ms S formulated this prognosis for B and Y, if there is no change to the current arrangements:

   “The outlook for both boys’ ongoing attachment and emotional development is very poor if things continue as they are.  Without proper ‘reparative’ care, their prognosis for developing into functional children and adults is limited.  They need more than ‘good enough’ parenting.  They need ‘parents’ who are intensively intimate with them; who can provide cognitive enrichment; and who are able to provide a strongly moral tone while at the same time able to also provide a gentle and containing environment.  They also need ‘parents’ who can protect them from future exposure to violence and abusive situations.”

6. When addressing Y’s difficulties in oral evidence Ms S said words to the following effect:

   “His non-selectivity means that he will accept anyone.  He has a reduced capacity to initiate contact with others and these problems will become entrenched.  Also his capacity to dissociate is a maladaptive defence, so he would be likely to make relationships with people who abuse or exploit him, like domestic violence victims.  He will need a foster parent who understands these issues – quite an extraordinary foster parent – not ‘good enough parenting’.”

7. Ms S defined a “reparative environment” for Y as a placement which is “loving, stable, predictable, with no violence and a good moral tone”.  In my opinion, he would be very lucky indeed if such a carer could be found and the placement sustained.

   Section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

8. This consideration has no relevance to the present proceedings.

   Section 60CC(3)(f):  the capacity of:

   (i)each of the child’s parents;  and

   (ii)any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

9. Effectively, this consideration goes to the heart of this case.  A principal issue is whether the paternal grandmother has the capacity to provide for the special needs of these two damaged young children.  Ms S was of the view that she lacks this capacity for the following reasons, which I will set out in full:

   “1.[The paternal grandmother’s] own track record of parenting.  Three of her four children have had major behavioural and/or violence and/or substance abuse problems.  Even with her most functional child ([name]) [the [paternal grandmother] gives a history of rejection of this child.

   2.[The paternal grandmother’s] own history of depression which is ongoing and for which she is still being treated.  She is also quite emotionally labile.  She perceives herself as needing to be on antidepressants for the rest of her life.  She is quite self-absorbed about her mental health issues.  She has a history of suicidal behaviour (three separate occasions), although there is no evidence that this is a current issue.  (There was a mental health diagnosis made on one occasion of [the paternal grandmother] having a “disorder of personality” while she does have some borderline personality traits – instability and “splitting” in relationships; affective lability; use of severe dissociations; history of suicide attempts, et cetera – in my opinion, there is probably not enough evidence for a formal diagnosis of borderline personality disorder at this stage although this does not include the possibility that it exists).

   3.[The paternal grandmother] has a history of being involved in violent relationships and having poor protective mechanisms for herself and her offspring in relation to these relationships.  She tends to minimise and deny the violence perpetrated on her ie emotional inurement dissociation.  This is an ongoing issue.  She was the victim of significant violence on two occasions within days of each other less than twelve months ago.  This violence was perpetrated by relatives (son; ex daughter-in-law).  She is still receiving counselling for the “traumatic” effects of the latter assault.  On the other hand, her inurement to her son’s extreme levels of violence and her minimisation of these is striking.  Despite his past violence, [the paternal grandmother] seems unable to set limits on his behaviour and she has repeatedly allowed him back into the family home.  Her capacity to protect herself (and her grandsons) from future violence by others is doubtful.  This was clearly exemplified when she collected [B] but left [Y] with his father during the incident on 21 December 2007, at a time that his father was obviously highly agitated and abusive.

   4.[The paternal grandmother’s] capacity to provide a good moral tone in the household for these children is questionable.  Her lack of anguish/horror at her own son’s antisocial behaviour is striking.  As well if it is the case that she “stole” an expensive toy during our assessment interviews, then this is an indicator of a very poor moral attitude.  She has a history of shoplifting, which she acknowledges, but which she blames on her depression.”

1. There is no doubt that the paternal grandmother’s history as a parent of her children does not inspire confidence in her as a permanent carer of B and Y.  Three of her children developed serious substance abuse problems and her two sons suffered childhood sexual abuse by her father.  Her son, the father, may well have sexually abused one of her daughters. 

2. In the opinion of Ms D, however, the paternal grandmother has embraced the assistance of officers of the Department of Community Services. In the Placement Assessment Report dated 21 July 2008 she stated: 

   “[the paternal grandmother] has demonstrated her preparedness to work with the department after an initial period of suspicion.  She was concerned that an open and honest disclosure of the sexual abuse of her children might prejudice the department’s support of her caring for her grandchildren.  Since that time [the paternal grandmother] has been very forthcoming and prepared to take on any suggested education to enhance her parenting skills ie family support.”

3. I am confident that Ms D correctly assessed the paternal grandmother’s receptivity to ongoing input from DOCS officers with regard to her care of the children.  In any event the paternal grandmother acceded to the alternate proposal of the Director-General, which would see supervision of her care of the children for twelve months.

4. It is true that the paternal grandmother has a history of depression, with at least one admission to a psychiatric facility.  She has made three suicide attempts, the most recent being an overdose in 2006 following the death of her mother.  Currently she takes antidepressant medication and sees a psychologist in private practice on a regular basis.  Over recent years she has sought the assistance of a number of “counsellors”.  It thus appears that she has sought and acted upon appropriate professional advice in the past.  Clearly, she is aware of the steps which she needs to take to cope with her depression.

5. Ms S was concerned that the paternal grandmother has “a history of being involved in violent relationships and having poor protective mechanisms for herself and her offspring”.  The paternal grandmother told Ms S that her partner, the father of three of her children, including the father, was a violent substance abuser.  She left him and took the children to live with her parents when the father was 18 months old.  It thus seems to me that she acted protectively of her children by taking this step. 

6. The paternal grandmother told Ms S that her next relationship was with Mr O, who was not a violent person.  There is no reference in Ms S’s report to any other relationships of the paternal grandmother.  I thus have reservations as to the basis of her opinion that the paternal grandmother has “a history” of violent relationships.

7. The paternal grandmother’s most recent relationship seems to have been with Mr H.  The history of this relationship provides some insight into her current attitude to tolerance of violence at the hands of a partner.  The paternal grandmother’s unchallenged evidence was that Mr H had “some issues with alcohol” and “one incident of anger whereby he kicked a television”.  On the strength of this episode, the paternal grandmother ended their ten-year relationship.  They have since “re-established contact” and have an agreement whereby he drinks no more than three stubbies or one large bottle of beer in her home, if the children are there. 

8. Ms S was also concerned that the paternal grandmother’s two sons were sexually abused by her father.  She seemed to be of the view that the paternal grandmother had failed to protect her sons and, by implication, that she should have taken some unspecified steps to prevent the abuse.

9. The paternal grandmother said that she became aware of this abuse in approximately 1994, when the father and her other son, R London, were about 11 and 15 years old respectively.  She confronted her father and ensured that none of her children were ever again left alone with him.  She said that she had no reason to suspect that her father had sexually abused her sons, prior to the father’s disclosure to her.  I have no reason to doubt her evidence.  I do not regard the sexual abuse of her sons as an indication that the paternal grandmother lacks the capacity to protect B and Y from similar behaviour.  I am more inclined to the view that her sons’ experiences have made her very vigilant to the prospect of child sexual abuse, as she suggested.

10. A matter of concern to Ms S was that the paternal grandmother was the victim of two incidents of violence in December 2007, at the hands firstly of her son, the father, and then the former partner of her other son, R London.  I have referred already to the frightening incident involving the father at his mother’s home.  The other episode took place on Christmas Day 2007, when her son’s ex-partner pushed the paternal grandmother onto a metal barrier and injured her ribs.  Apparently this person’s current partner attacked R and then hit the paternal grandmother in the face with a lump of wood.  The ex-partner was charged with a criminal offence arising from this incident.

11. Since the episode involving the father in December 2007, the paternal grandmother seems to have managed to keep him away from her premises and thus ensure that he sees the children only under supervision.  There was nothing in the evidence which suggested that she has been unable to keep him away from her home, nor to indicate in any other way that she has been unable to adhere to the existing court orders.  It is true that he spent almost three months in residential rehabilitation in 2008 but, otherwise, he appears to have obeyed the orders that he spend time with the children only under supervision. 

12. The paternal grandmother recounted to Ms D an incident involving the father which occurred in about May 2008.  Ms D said that she raised with the paternal grandmother an allegation by the mother that their father had been spending “unauthorised time” with the children, in collusion with his mother.  The paternal grandmother denied that he had done so but admitted that the father had walked past her, coincidentally, while she had been at an ATM.  The paternal grandmother informed Ms D that she told her son that she could not speak to him and asked him to keep walking, which he did.

13. In July 2008 Ms D summarised the concerns as to the paternal grandmother’s capacity to provide long term care for the children and the Department’s then view of her suitability in the following terms:

    “This assessment has identified several issues of concern regarding the abuse of [the paternal grandmother’s] own children during their childhood.  Most of which appear the result of sexual assault by the maternal grandfather, [the paternal grandmother’s] father, and exposure to domestic violence.  It also appears that [the paternal grandmother] acted protectively of the children by leaving the violent relationship with her ex-partner and with cutting contact with the abusive grandparent.  [The paternal grandmother] has acknowledged the deficits in some of the parenting strategies she used with her own children.  She has demonstrated insight and commitment to approach parenting of her grandchildren in line with the currently accepted manner outlined by the department and has read and signed the code of conduct.  [The paternal grandmother] has gained in experience and maturity in the intervening years since her own parenting days and has demonstrated her commitment to working with the department and other services to support and guide her in the parenting of the children.”

14. With all due respect to Ms S, I have some concerns that she formed an adverse view of the paternal grandmother for some reasons which lack justification.  For example, she reported surprise that Y had not seen a paediatrician, despite his physical presentation, after being in the paternal grandmother’s care for six months.  In fact Y saw Dr K in October 2008, a fact of which Ms S may or may not have been aware.

15. Further, Ms S initially commented adversely against the paternal grandmother on the basis of a mistaken belief that B had been placed in childcare for five days per week.  She stated in her report: 

    “I am also quite concerned that she has placed [B] five days a week in childcare, even though she does not work.  While he certainly needs to go to preschool regularly, it seems that [the paternal grandmother] may have problems in sustaining his care full time.  It seems an unusual step to take in the midst of Family Court hearings when one is attempting to ‘prove’ one’s commitment to a young child (though ironically it may be very beneficial for [B]).”

16. The true situation was that the paternal grandmother had placed B in childcare for three days per week.  Ms S became aware of this fact and prepared a supplementary report dated 19 November 2008, in which she acknowledged the error and offered apologies to the paternal grandmother.

17. Ms S commented adversely about B’s determination to go into ‘the toy room’, on the day of her interviews.  She noted that he asked repeatedly to go into this room.  She told him clearly that they would stay in her office, whereupon the paternal grandmother said to him “well, if you ask [Ms S] nicely she might say ‘maybe’”.  In her oral evidence Ms S said that she “was surprised that [the paternal grandmother] undermined her authority” and commented “no wonder he was testing limits”.   

18. The paternal grandmother’s version was that she was concerned that she would be unable to occupy B for the whole time of the interviews and assessments.  She informed Ms D of these concerns and she told her that staff of the Family Court of Australia had indicated that children could use the toy room between interviews.  Ms S said in her oral evidence that she would be “very doubtful” that any member of staff would have conveyed this information.  Ultimately, a written admission that the paternal grandmother’s version was correct was made by the Director-General (exhibit 27).  Ms S’s comments thus seem to me to contain an element of unfairness to the paternal grandmother.

19. In her report Ms S raised the possibility that the paternal grandmother had stolen a “large expensive toy” from the Child Dispute Resolution Section of the Family Court at the end of the interviews.  Ms S expressed the opinion that this alleged theft “may cast some light on issues of her moral attitudes, particularly in the light of her previous history of shoplifting”. 

20. In her oral evidence-in-chief the paternal grandmother firmly denied any theft on her part and gave an entirely plausible explanation for her possession of this toy.  She said that, late in the afternoon of the day of the interviews, she had gone downstairs for a cigarette and met her daughter.  She received from her daughter a large ‘Thomas the Tank Engine’ toy, which she put into her bag.  The matter seemed to rest at that point.

21. All of these concerns and reservations lead me to the conclusion that the paternal grandmother’s capacity to provide for the needs of B and Y is greater than was assessed by Ms S.  I do not suggest at all that she is a perfect placement for them but, on the other hand, it is my view that the paternal grandmother should be considered seriously as a long-term carer.

Section 60CC(3)(g): the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

Section 60CC(3)(h): if the child is an Aboriginal child or a Torres Strait Islander child:

(i)       the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture);  and

(ii)      the likely impact any proposed parenting order under this Part will have on that right

1. These considerations are not relevant to the proceedings.

Section 60CC(3)(i):  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. I am persuaded that the paternal grandmother has a proper attitude to the children and her responsibilities in a parental role.  I am satisfied that she loves B and Y very much and is determined to do her best for them.

2. In the circumstances of this case, it is not necessary that I consider further the attitude and parental responsibility demonstrated by the mother and the father.  It is obvious that they both have many obstacles to overcome, if they are to be considered responsible parents at some point.  Hopefully, however, they have both begun to address their difficulties.  It can only be to the advantage of B and Y if they have two functional, responsible parents.

Section 60CC(3)(j):  any family violence involving the child or a member of the child’s family;

1. I have already made extensive reference to the issue of violence.  There was no suggestion whatsoever that the paternal grandmother has been or is likely to be violent toward the children.  It is clear that both the mother and the father are capable of violent behaviour but their involvement in the children’s lives will be very limited for the foreseeable future.  It is thus unnecessary that I give any further consideration to family violence.

Section 60CC(3)(l):  whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

1. If the children remain in the care of the paternal grandmother, there is always the prospect of further proceedings in the event that she encounters difficulties of sufficient concern to prompt the Director-General to take action.  I would regard that possibility as a safeguard, rather than a detriment, to the children’s best interests.

2. If, on the other hand, the children are placed in long-term foster care there would also be the prospect of further proceedings in the event that the placement/s break down.  It may be that the paternal grandmother would re-agitate her pursuit of residence orders in such circumstances.

Section 60CC(3)(m): any other fact or circumstance that the court thinks is relevant.

1. I am concerned that I know nothing of the actual circumstances in which B and Y would be placed, if I accede to the application of the Director-General.  I do not mean to imply any lack of confidence in those responsible for making these decisions.  As I have indicated already, I was most impressed with the sensitivity and professionalism of Ms M and Ms D.

2. The reality is, however, that a decision in favour of the Director-General means that I will commit B and Y to an unknown fate.  I am conscious of Ms S’s evidence that Y requires “quite an extraordinary foster parent” and I am very concerned that such a carer may never be found.  The position would then be that he receives “good enough parenting”, to adopt Ms S’s phrase, from a stranger rather than a grandmother who loves him.

3. I am very concerned that B may be subjected to a series of failed foster placements, due to his challenging behaviour. I can only imagine how damaging such an outcome would be to his happiness and general well-being.

Conclusion

1. This case is finely balanced and involved difficult issues.  There is no outcome which is guaranteed to be in the best interests of B and Y.  There are risks for the children’s wellbeing in the care of the paternal grandmother and also in foster placements.

2. Having regard to all of the evidence, I conclude that orders that the children live with the paternal grandmother are most likely to be in their best interests.  This decision was by no means clear cut and not reached lightly by me.  There is much more certainty in the arrangements offered by the paternal grandmother for the boys.  I will order that her care of the children will be supervised by the Director-General for twelve months.  I am satisfied that the boys, particularly Y, enjoy a relationship with her which is of superior quality to that assessed by Ms S.  I have referred to the evidence which leads me to this conclusion.  I am loathe to commit these children to the unknowns of long-term foster care, when there exists an option of a loving grandmother who is determined to do her best for them.

3. I am not persuaded that the children should spend unsupervised time with their mother at this point.  In my opinion, her abstinence from drugs is relatively untested but shows promising signs of permanence.  I consider that her stability is marginal at this point and I cannot predict how the birth of her child with Mr R will impact on their relationship.  He is very young and immature, by all accounts, and he may not adapt well to parenthood.  The mother’s own stability would be placed in jeopardy by any breakdown of this relationship, especially as she would be left alone with the care of a very young child.  It is always open to her to negotiate an increase of time with the children with the paternal grandmother, particularly in conjunction with the maternal grandmother Ms Byard, if her life proves to be stable.

4. It thus seems to me that the alternate proposal of the Director-General best meets the interests of B and Y.  I will make orders in accordance with the Minute of alternate orders.

I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson

Associate: 

Date:              9 April 2009