MD and HD v Director General of the Department of Community Services

[2008] NSWDC 267

CITATION:	MD and HD v Director General of the Department of Community Services [2008] NSWDC 267
HEARING DATE(S):	8-12; 22-25 September; 12 -14 November, 2008
JUDGMENT DATE:	20 November 2008
JURISDICTION:	Civil
JUDGMENT OF:	Knox SC DCJ
CATCHWORDS:	Civil - Child care - Drug abuse by mother - Drug abuse by father - Urinalysis testing - Mother's frustration of urinalysis testing - Separation of siblings
LEGISLATION CITED:	Children and Young Persons (Care & Protection) Act 1998
CASES CITED:	Re E (a child) [2008] UK HL 66 McKenzie v McKenzie [1970] 3 All ER 1034 O’Toole v Scott (1965) 65SR (NSW) 113
PARTIES:	Marie D Helen D Director General of the Department of Community Services Separate Representative for the Children Paul W
FILE NUMBER(S):	67/08
COUNSEL:	Ms M Falloon Ms S Leis Mr G Moore Ms K Reynolds
SOLICITORS:	Ms A Findlay Ms H Muggenthaler Ms K Renshall Mr M Whelan

JUDGMENT

1 This case concerns an appeal by a mother and maternal grandmother against care orders made for the mother’s four children aged 9, 8, 4 and 3. Those orders provide for the two elder children to live with the maternal uncle (the mother’s brother) and for the two younger children to live with the paternal grandparents. Those arrangements have been in place since February 2007.

Applications

2 DOCS, the father of the children, and the paternal grandparents ask that those arrangements continue. Their application, which was the subject of a number of refinements and modifications during the hearing, is set out at Annexure A.

3 The mother and grandmother seek that the children live with them. The maternal uncle supports the mother and grandmother, but in the alternative asks for the current arrangements to continue.

Parties

4 The parties are as follows:

Children
ED, aged 9.
ND, aged 8.
HW, aged 4.
JW, aged 3.

Mother: Marie D, aged 38.
Father*: Paul W, aged 34.
Paternal grandfather: Michael W, aged 67.
Paternal grandmother: Andrea K, aged 60.
Paternal step-grandfather: Graham K, aged 55.
Maternal grandmother: Helen D, aged 61.
Maternal uncle: John D, aged 36.

Paternity

5 * There is no issue that Paul W is the father of the younger two children. The precise position as to the paternity of ND is unclear. The birth certificate specifies a father however the identity of another individual was suggested during the hearing. No father is shown on the birth certificate for ED.

6 No paternal figure for either ND or ED has ever played a part in their lives or in these proceedings.

Current arrangements

7 The mother’s appeal was against orders made in the Local Court on 8 October 2007 (Her Honour Magistrate Wynhausen).

8 Those orders reflect the current arrangements, which are that the two elder girls, ED and ND, are in the care of their maternal uncle John D where they have been since 20 February 2007. He lives in a three bedroom house in western Sydney and works three days per week. He is helped by his mother who stays over for a few nights during the week to help him. She also assists him with cooking, cleaning, and the household duties. The girls attend a local primary school. They are in composite classes - ED is effectively in Grade 3 and ND is effectively in Grade 2.

9 The two younger girls, HW and JW, have been with their paternal grandparents, Mr and Mrs K, since 6 February 2007. Mr and Mrs K are aged 56 and 60 respectively. They live in eastern Sydney. Mr K works in the Department of Health in the public hospital system.

10 HW (aged 4) and JW (aged 3) are in pre-school. They intend for both girls to attend the local primary school, whereas the D family want all four children to attend another eastern Sydney school together.

11 Both applications were further refined and altered during the course of the hearing. I invited the input of the expert, Ms Goldberg, on the terms of the applications and proposals.

Contact arrangements

12 The girls see each other alternate weekends when they are together for Saturday through to Sunday.

13 On one fortnight all four children are with their maternal uncle, John, at the home he occupies on a Saturday and Sunday. On some occasions the grandmother, Helen D, is present. On the weekend of the next fortnight, the two elder girls go to stay with the two younger girls at the home of Mr and Mrs K.

Father’s contact

14 The father sees the four girls on a regular basis at the home of his mother and stepfather - the home of Mr and Mrs K. That contact is predicated on the condition that he is not affected by any substance.

Mother’s contact

15 The mother has not seen the children on any regular basis since some time in 2007. When she saw the children for the purposes of the assessment in July, 2008, she had not seen them for about 12 months.

Maternal grandmother’s contact

16 There is substantial contact between the maternal grandmother and ED and ND at John’s home. The grandmother also sees HW and JW every second weekend when they are with their elder sisters at John D’s home.

Transport arrangements

17 Mr John D transports ED and ND to the home of Mr and Mrs K on one weekend. Mr and Mrs K transport HW and JW to his home on the alternate weekend.

18 This seems to have been an arrangement that has worked relatively well. Some initial tensions appear to have been resolved, which is a tribute to those involved given the ages and interests of the girls, and the distances and times involved. Mr and Mrs K in particular may need some assistance with those arrangements in the future.

Need for full investigation and finality

19 There have been substantial changes in the lives of these four young children since they were removed from the mother in February 2007. It is important that the proceedings be finalised for a number of reasons, not the least of those being that contact between those concerned with the children should take place free of the perceived need for some of the parties to position themselves in relation to the ongoing litigation. There also needs to be clear orders providing as much certainty as possible and catering for as many foreseeable events where there may be conflict between the various parties.

20 It was clear early in the hearing that unless issues affecting the entire D family were both investigated and explored in the context of final court proceedings, that the outcome of the proceedings would never be accepted - let alone implemented. The family consider the four children were removed from the family home illegally. Members of the family are also extremely suspicious of the motivations of others – for example, the use of descriptions of ‘parent’ or ‘half-sister’, which have attracted allegation that these classifications indicate an intention to marginalise or diminish the family’s connection with the children.

Attitude of D family

21 The D family (other than John D) also clearly felt that they had been marginalised, if not excluded, from the children’s lives. John D adopted aspects of the family’s concerns. The family also consider, strongly, that generalisations have been made about members of the family that are both hurtful and harmful, and which have had the effect of setting members of the family against others involved with the children. The D family consider that the children could have been allocated into the care of John D and that it was unfair and discriminatory that they were given to Mr and Mrs K.

22 Mr and Mrs K have similar concerns and have also felt, acutely, the need for certainty in their care arrangements for HW and JW, stability for those children, and that they not be placed in any situation of risk.

23 There needs to be a stop to litigation concerning these children. In the event that an attempt is made to re-open the matter or that future proceedings are contemplated, aspects of the hearing are set out in detail. Given Ms Marie D’s propensity to complain and attribute blame to others - even on those matters that were the subject of expert evidence - those reviewing any present or future complaints may be assisted by a more detailed account of what has occurred in these proceedings than would normally be the case.

Conduct of the proceedings

24 The mother’s case - and inferentially that of the grandmother - is that there has been a conspiracy against them or members of the family by at least the police and probably some DOCS officers including bribery of the police by Mr and Mrs K. There was also a strong suggestion during the case, given the questions put on behalf of various members of the D family, that DOCS had favoured Mr and Mrs K as carers over the D family and particularly that the preference was demonstrated at the time the children were removed. Further, that the police have also acted to prefer Mr and Mrs K to members of the D family.

25 I indicated to the parties that unsubstantiated and serious allegations, particularly when repeated (and there is a likelihood that they have been repeated to young children) can indicate a mindset indicative of irreconcilable hostility. It may also suggest incapacity to appreciate the needs of children for a stress and tension-free environment. The conduct of the proceedings suggest that that message was not necessarily appreciated by some of the parties.

Representation of parties

26 Mrs Helen D, the maternal grandmother of the children, said at the outset of the hearing that she wanted an interpreter. She had never had an interpreter in any of the proceedings, and one of her complaints was that the events surrounding and following the removal of the children took place without her having an interpreter present. She also clearly had linguistic difficulties when she commenced her cross-examination of one of the expert witnesses, Ms Goldberg. Ms Goldberg’s report also contained comments about her passivity and tendency to be overawed in situations. I therefore gave leave to her daughter, Joanne D, a sister of the mother in the proceedings, to appear as a McKenzie friend (McKenzie v McKenzie [1970] 3 All ER 1034) and to cross-examine on behalf of Mrs Helen D in accordance with the principles in O’Toole v Scott (1965) 65SR (NSW) 113.

Ms Joanne D

27 Ms Joanne D did not file any affidavit material nor did she give evidence.

28 It later transpired that she sought to be a witness in the proceedings. There were therefore further delays to ensure that her cross-examination did not include arguments based on assertions of fact by her of the evidence she was to give. Ms Joanne D then said that she would not be giving evidence in the case nor would the affidavits she had sworn be read.

29 I restricted some of the cross-examination by Ms Joanne D in areas where I did not regard the questions posed as either being relevant or appropriately asked of witnesses given either their competence or what they had observed or reported.

30 It may be that Ms Joanne D will have a continuing role in the children’s lives. Although she did not give evidence given her role in presenting the case for her mother and sister, she presented as an articulate, intelligent, and resourceful person. She has a Diploma in Event Management. She is engaged to be married in the near future. She indicated in court that she is prepared to be assessed by DOCS for her suitability to care for the children.

31 Ms Joanne D also said that she would be prepared to be assessed by DOCS as a person to be involved in the children’s occasional care. If assessed as suitable by DOCS, she would be prepared to be involved in the transport and occasional care of the children. However, there are clearly some issues to be resolved between her and Mr and Mrs K, particularly, but not limited to, her ability to control her sister, Marie and her brother, Con. Those issues were not ventilated given that she was neither a party nor a witness. It would be appropriate if she was involved in later family mediation sessions.

Self-represented parties

32 The procedures involved in the hearing and with each of the witnesses was outlined both to the mother, Ms Marie D, Mrs Helen D and Ms Joanne D. Copies of extracts of the transcript of the proceedings and revised plans were made available to them at various times.

Proceedings and delays

33 There have been considerable public monies and resources devoted to this family and the resolution of the matter including the expense there has been in terms of legal aid funding – as well as the costs incurred on a private solicitor/client basis by Mr and Mrs K in addition to court time and costs. It was therefore of concern that the proceedings were delayed and then elongated.

34 Ms Marie D said on a number of occasions that she did not have many of the statements that had been served on her by the Crown Solicitor on instructions from the Department of Community Services. Further delays were also caused by non-compliance with directions given about Ms Marie D and Mrs Helen D specifying precisely what orders or arrangements they sought. Those proposals changed during the hearing.

Mother’s participation and presentation

35 I directed that Ms Marie D attend court on time both to ensure that the matter could proceed properly and efficiently and to ensure that preliminary discussions could be held on the orders that were sought by the various parties to save the time and costs of elongated court proceedings.

36 Ms Marie D did not comply with these directions. I brought that non-compliance to her attention as being matters that could indicate a lack of organisation on her part as well as an inability to meet timetables. In turn, that could be taken into account by the court as matters reflecting on her capacity to meet the demands of parenting. Despite those comments, there was no alteration in her behaviour. If anything her behaviour deteriorated and members of her family seemed unable to control or influence her.

Urine analysis testing

37 At the outset of the hearing an issue was raised as to whether the mother had attended for urine analysis and, if so, what had been the results of that testing. Ms Marie D said that she had had difficulties obtaining those test results. She also said that her urine samples had been the subject of tampering and interference by unspecified individuals. Mr John D also said that the reason the results had not been obtained was because of the mother’s logistical difficulties due to the hearing. Notwithstanding the adjournments of the matter, the mother has at no stage produced any results of randomly conducted urinalysis.

38 An appointment was then made with Macquarie Pathology for Ms D to be tested on Friday, 12 September 2008. Ms D was informed that she did not have to attend but, if she did not in circumstances where she had initially consented, an inference might be drawn against her. The nature of the inferences that would be sought were outlined to her by the representatives of the parties.

Mother’s failure to complete urinalysis

39 The mother failed to attend court on the afternoon of Friday, 12 September, 2008 after attending the pathology service on Macquarie Street. It became clear that the mother went home to the home of the maternal grandmother who thought that she was ‘going cold turkey’.

40 In the event that the mother’s application is re-ventilated at any time in the future it is appropriate that a transcript be set out of what actually occurred. The following is an extract of the evidence given by the relevant supervising caseworker, Ms Amber French.

41 (Transcript 356-357):

Q. I just wanted to make sure. I'd better put it on the transcript what occurred …That was that at 2.10 at this time there was no appearance by the mother. …the situation was that DOCS officers went with the mother from court to the Macquarie Pathology Services?

A. Yes.

Q. In which street?

A. Macquarie Street.

Q. Macquarie Street, that's what I thought. They went to those premises with her. She went into a cubicle with one of the employees of the service?

A. Yes.

Q. That employ called for the assistance of another employee, a second employee?

A. Yes.

Q. Saying what was heard to the DOCS caseworkers that, "She" - Ms Marie D - "had dropped the second sample cup, or dropped the sample bottle."

A. Dropped the first sample cup, yes.

Q. The first bottle. They then asked her to provide a second sample?

A. Yes.

Q. And provided her with the container for that to be deposited?

A. I think she was given the opportunity to have a glass of water before--

Q. Have a glass of water to facilitate the urine, passage of urine?

A. --trying to provide another sample, yes.

Q. It was said that she had dropped the sample container?

A. The first one. I don't know that there's been a comment on the second one.

Q. Righto. Okay. She then went downstairs to have a cigarette?

A. Upstairs to have a cigarette, yes.

Q. Upstairs to have a - she was in the basement area of the pathology unit?

A. Yes.

Q. And didn't return. The DOCS workers split up trying to locate her?

A. Yes.

Q. And they rang her on a number of occasions, and sent her an SMS asking her to attend court.

A. On the first occasion they spoke to her on the telephone, and she said she would be coming back down.

Q. Yes.

A. On the second occasion the phone rang out. On the third occasion the phone appeared to be switched off. They then waited an extra 5 to 10 minutes, until the last point in time where the pathology services would accept a sample, and they sent her an SMS advising that they would be returning to court.

Inferences to be drawn

42 Against this background all parties (other than the maternal grandmother and Mr John D) ask for a strong inference to be drawn against Ms Marie D that not only did she frustrate the urine analysis testing, but also that she refused to attend again for such testing. Further, in those circumstances that an overwhelming inference should be drawn against Ms Marie D that the results of any such testing would have shown some kind of substance abuse/consumption by the mother. I agree that those are proper inferences to be drawn in all the circumstances of this case and the evidence advanced thus far. I have no doubt that the mother was, and has been, aware of the likelihood that any urinalysis testing of her would be adverse to her.

43 Counsel for DOCS then foreshadowed that a further arrangement would be made for Ms Marie D to attend the same pathology service for drug testing in the following week. A notification would be given to Ms D’s sister, Ms Joanne D, who undertook to notify Ms Marie D of the appointment.

44 An appointment was made and notified to Ms Joanne D. She was unable to contact the mother (her sister) as her phone was turned off. The result is that Ms Marie D did not attend for further urinalysis nor were any earlier results produced on her behalf.

45 It does not appear that any member of the D family was able to control or influence Marie D in this area or her general behaviour.

Subsequent appointments: Mother’s failure to attend

46 The mother did not appear on the resumed hearing on 23 September 2008. With the agreement of and request of all the parties the hearing proceeded in the mother’s absence. Reasons were given for that decision. A medical certificate from the Prince of Wales Hospital was ultimately tendered (exhibit 7). It did not specify what the medical condition was from which the mother was said to be suffering. The remaining parties sought that the doctor be available for cross-examination.

47 On 25 September 2008, Ms Joanne D said that the mother wished to be present to cross-examine the witnesses and to give evidence. It was ordered that Ms Marie D be given a copy of the transcript so that she could consider her position over the period over the period of any adjournment.

48 Ms Joanne D said she would notify the mother that a further urinalysis appointment would be made for the mother when she returned to court or in the intervening period.

Resumption of hearing

49 The hearing resumed on 12 November 2008. The mother attended later that morning and part of the afternoon. An affidavit was filed by Ms Amber French sworn 10 November 2008 (exhibit 12) setting out the numerous attempts to communicate with Ms Marie D in the intervening period. That included the appointments made for urine analysis for Ms Marie D. Ms Marie D did not attend for any of those sessions. There was no satisfactory evidence as to why she did not, nor did she provide any urine analysis results for the intervening period or at all.

50 An affidavit of Ms Grace Abdurah (exhibit 13) was filed setting out DOCS’ attempts. I find that that was done deliberately by Ms Marie D to frustrate the drug testing which had been organised. Further, that that was done in the knowledge that Ms D would have tested positive to illegal substances. These actions are indicative of the measures she is prepared to undertake to avoid detection of her drug-taking. Her attitudes and behaviour need to be factored into the arrangements made for her to have future contact with the children.

Mother’s non-involvement in the proceedings

51 At the conclusion of the proceedings on 12 November 2008, the following exchange occurred (T727-728):

APPELLANT: I have never abused, neglected my children ever. My kids have always been my first priority and it has always been well documented.

HIS HONOUR: All right. Well, that's what we will hear from you tomorrow when you give your evidence. Could I emphasise this, Ms D, if you are not here the matter will proceed.

APPELLANT: I will be; don't worry about that.

HIS HONOUR: Mr Graham K will give his evidence tomorrow. I anticipate that will be finished in about an hour. That's all it should take. I will then ask you to present your case. If you are not here; the court officer will call the matter three times outside. If you are not here--

APPELLANT: I've got to wait out--

HIS HONOUR: --for any reason - for any reason the matter will then finalise. Do you understand that?

APPELLANT: Yes, I understand.

HIS HONOUR: If you are here you will be giving your evidence in the witness box tomorrow. If you do not come back at 2 o'clock tomorrow, the same procedure will follow. If you are not here for any reason at 2 o'clock the matter will proceed in your absence. If you are here we will proceed with you in the witness box. Is that clear?

APPELLANT: Yes.

52 Ms Marie D did not appear at court at all on 13 November 2008. Ms Helen D said that Marie did not return home the previous night and had turned her phone off. I proceeded with the hearing in her absence. No party submitted to the contrary.

Removal of the children from mother and grandmother’s home

53 The children were removed from the mother’s family residence and her care on 5 February, 2007. A copy of the removal order was tendered (annexure B, affidavit of Constable Todd sworn 6 February 2007). A substantial issue in the proceedings concerned the circumstances that were in existence at the time of the hearing and whether the removal was justified. The reasons and justification for the removal were said to be based on the dangerous situation in which the children were in at the home.

54 It should be noted that, at that time, the children were aged 8, 6, 4, and 17 months.

Acts relied on to justify removal

55 The police had been called to the maternal grandmother’s house on prior occasions. The police had taken out a restraining order against Mr Con D. The maternal grandmother sought to have that removed. On 5 February 2007 the police were called to the maternal grandmother’s home on two occasions. A 000 call made to the police by Marie D (exhibit 20) was played. Prior to that there had been a substantial number of complaints made about the family apparently including complaints about the mother and her capacity to care for the children.

56 (a) The basis for the removal of the children put forward by the police and DOCS was as follows:

57 (b) The mother appeared to be drug affected;

58 (c) The house environment was chaotic;

59 (d) There was inadequate sleeping and bedding arrangements for the children;

60 (e) The maternal uncle had mental health issues;

61 (f) The mother had a long history of drug abuse and was likely to relapse into drug usage.

62 (g) These aspects are disputed by the D family.

Mother’s case

63 The case of the mother and maternal grandmother was that the removal of the children was both inappropriate and unnecessary. Further, that it was an overreaction by the police and consequently DOCS.

64 The police were called to the home on two occasions the day of the children’s removal. The first was on the basis of reports of serious domestic disturbances. The police were called by the mother based on an apprehension or fear of the mother’s brother, Con D. Apparently Con had on an earlier occasion gone to the police station with a samurai sword. He said that he did that so that he could get medication to assist him for his sleeplessness. It was put by members of the family that Con took that action as a method of precipitating some kind of assistance. Both his actions and the perceived justification or reasons for it are of considerable concern.

Issue: involvement of Con D

65 The following matters, which are set out in some detail they are major issues in the proceedings, concern the contact that the maternal uncle, Con D, might have with the children, whether that contact or association should or should not be supervised, if so, by whom, and whether members of the family had the capacity for, or preparedness to ensure, that supervision. Con D, is aged 28. He has been diagnosed with bi-polar depression since an accident some 7-8 years ago when he lost an eye.

Actions of Con D

66 On or just before the day the children were removed, Con D had apparently broken the garage door at those premises and some other fittings in the home as well as altering wires and pipes. The maternal grandmother knew that Con had not taken his medication for over a month; and moreover, that he was not in any state to determine if he had taken his medication for his bi-polar depression.

67 When the police arrived at the premises where the children were, they found a plastic bag containing amphetamines of some description, together with weapons in a granny flat at the rear of the house. The items located at the rear of the premises were set out in the photographs – exhibit 2. The weapons included butterfly knives, a flick knife, a baton, and handcuffs, as well as ammunition. The family dispute that and claim that those items were already at the police station.

68 There was also a pistol that appeared to be a replica pistol although that was not known to the police officers at the time. That pistol, together with associated ammunition that was found on the premises, formed part of the concerns that the police had about the children’s welfare.

69 It is clear that the children, or that some of them, were aware of some of these items and their location – see interview with Ms Francine Clough and the children.

70 Those items apparently belonged to Con D. He apparently said he had been forced to take his medication and had “been out of it for the last six hours”. He was removed, charged, and taken to the police station. He ultimately pleaded guilty and was convicted of possession of the items specified above.

71 On 27 July 2006, Con D told his treating psychiatrist Dr McDonald that he, Con, was “scaring the shit out of the kids” and that he was involved in extensive marijuana abuse. At that time he was having frequent contact, including excursions, with the girls.

72 The maternal grandmother admits that there have been three occasions when Con had not taken his medication; two of those occasions resulted in his hospitalisation apparently for about three months. He has been in hospital on six or seven occasions since 2000.

73 Con D has also been subject to various restraining orders not to live at the Maroubra premises. The maternal grandmother says that Con will be able to live elsewhere including the western Sydney home presently occupied by John D. However, given the maternal grandmother’s obvious maternal concerns about Con, there is a risk that in the event he has a relapse or a significant medical or psychiatric issue, he will either be invited back into, or allowed to come back to, the Maroubra family home at a time when the children are there.

Maternal grandmother’s account

74 The maternal grandmother disputed telling the psychiatric nursing staff at the Prince of Wales Hospital that she had located a machete and balaclava in Con’s room at the house. She also denied saying to the DOCS worker, Francine Clough, that Con D had destroyed items in the home. She also denied making various comments, critical of both Con and Marie D, said to have been made by her to Mrs Kennett, a clinical psychologist who conducted a placement assessment of her home.

75 I accept that those comments were made and also that Con made death threats against his family with a samurai sword and has also been suicidal. In my view, the maternal grandmother’s refusal to deal with Con’s behaviour demonstrates her inability to accept or confront the realities of her children’s behaviour and the consequential dangers and risks to her granddaughters from either of those children. Her preferred undertaking to ensure that Marie and Con do not attend the home while the children are there must be viewed against that background.

Medical records: Con D

76 Medical records relating to Con D were tendered (exhibit 19). The content and nature of the behaviour referred to make it clear that he has a substantial history of psychiatric and associated behavioural problems. A diagnosis of him was made by Dr Hulme, psychiatrist, of schizoaffective disorder with a background of cannabis abuse as well as medication non-compliance. He also has episodes of acute psychosis characterized by paranoid delusions. Similar reports were tendered from Dr O’Donnell.

77 That history and condition, as well as its consequences, must have been known to the D family, particularly his mother. Mrs Helen D’s denial of those problems is a matter of particular concern as are the medical reports (as late as 22 February 2008) which state that he has a history of poor compliance with medication, a history of relapses in mental health and that when he is unwell, he is at risk through misadventure and violence.

Police observations of the children immediately prior to removal

78 Constable Todd reported that at the time the children were taken from the mother, the children were sharing a room and the mother slept on the floor. JW slept in a cot in the lounge room. HW did not have any permanent bedding or sleeping arrangements. Constable Todd said there was “an incomprehensible amount of hazards throughout the living areas including passage-ways” including boxes, plastic bags, and clothing to chest height. The kitchen was in a state of “utter disrepair”. He said it was not possible to see the kitchen sink through the piles of dirty dishes and stacks over the benches. There were pots on the stove that contained food which appeared to be more than a day old. Constable Todd said that the food and associated material was a lot older than consistent with that associated with a dinner party that evening – the explanation given by the mother and maternal grandmother.

79 The mother and the maternal grandmother disputed the presentation of the house. Moreover, that she, Marie, was only living at the house because she was required to be there by a court order. Their case was that the house was in this state because the mother was in the process of moving. It was intended at that time that the children would be moved at that stage while the house was being renovated and extended. That accounted for the presence of a large number of removal boxes. I do not accept that account. In my view that was a manifestation of the disorder in the lives of the children and the mother’s care of them, which was a consequence of her drug addiction. Further, that Mrs Helen D was aware of that disorder.

80 The children gave an account to Ms Francine Clough of their bedding and sleeping arrangements as well as their observations and understanding of what had occurred. At least two of the granddaughters saw the mother assault the maternal grandmother on one occasion. The psychologist’s report of Barbara Kennett refers to the effect on the children. As was said in Re E (a child) [2008] UK HL 66 per Baroness Hale at [5-6], the events should be viewed, as well, through the eyes of the children.

Syringe/needles

81 The DOCS officers recalled that Mrs Helen D said that one of the children had found a syringe in her mother’s room the day before and came out chewing on the package containing the syringe.

82 Constable Todd observed the children who were present in the house. He initiated the DOCS removal process calling in the DOCS officers. He said that he was told by the maternal grandmother, Mrs Helen D, that one of the children was chewing on a packet which contained a needle.

Children’s perceptions and awareness

83 When the child ED was interviewed on 6 February 2007 she told the care workers:

“Mum called the police because Con kept attacking mum with her babies, HW and JW, in her hand. Mummy and Con were fighting then Paul, mummy’s boyfriend, came between them. Then I went to bed and the police came”.

84 Ms Francine Clough – the DOCS worker who also attended on the day – gave evidence of an interview with the children when the following conversation took place:

37. FC: “I was reading that you found a needle in the house.”

38. ED: “Con put it under Mum’s bed to get her in trouble. JW took the needle and put it in her mouth. Aunty went screaming through the house and took the needle off JW. There was blood on it.”

…

80. FC: “Was it you or EW who found the needle?”

81. ND: “JW put a needle in her mouth, she took if out of a packet, it had a lid on it, she found the needle under my bed, and she walked down the hallway with it in her mouth. Grandma saw it and said Oh My God.”

85 These accounts were disputed by both Marie and Helen D.

Children’s perception

86 It was clear from the interview conducted with the children by the then caseworker, Francine Clough, that the elder children were well aware of some of the issues leading to their removal from the maternal grandmothers home.

87 The notes of the interview (Exhibit 4) indicate that ND at least considered that she had been smacked by the maternal grandmother over her face with a broomstick; that the uncle Con had attacked the mother and smacked the younger two children, HW and JW; that they were aware that the mother had called the police; that there were altercations between the mother and the uncle (Con) in which Paul W had also become involved. ND also recalled that during the arguments Con had got a knife “and was going to stab mum in the heart”.

88 The children were also aware that the police were being called. When the police arrived they were either in the bedroom or the lounge room. At least ND was aware that the police had found a knife like a sword, which was stored to her knowledge in a cupboard in her uncle Con’s room. Various other comments made it clear that at least ND was aware of a needle having been placed under the mother’s bed and that her sister JW had taken the needle and put it in her mouth. She thought that HW had found the needle in the packet and then she had given it to JW a few days before the children were removed from the home.

Past history: Allegations and reports to DOCS

89 There had been earlier reports to DOCS of harm to the children and issues of violence between the mother and various other members of her family including the maternal grandmother.

90 There were other allegations of drug withdrawal by ND at birth, as well as mental health issues connected with the mother’s alleged prostitution, stealing and neglect of the children. A report was received from the DOCS helpline suggesting domestic violence in the home.

91 During 2004 and 2006 there were other issues raised including the mothers use of heroin during the pregnancies she had with both HW and JW as well as ongoing heroin use by both parents. In 2007 and 2008 one of the children was said to have sustained burns after visiting the mother and the father, and there were further incidents of domestic violence.

92 At the time the police attended the home occupied by the mother and children, it was a three and a half bedroom home with a granny flat at the back where the mother’s brother, Con, lived. The maternal grandparents shared a room, the mother’s sister had a room, and there was one and a half rooms consisting of a sunroom available for the mother as well as the four children (mother’s affidavit 20 March 2007).

93 The police accounts and the DOCS officers’ account were not accepted. The family did not – and probably never will – accept that the children were properly removed or with justification. The earlier local court proceedings were conducted against the background of a concession by the family that the new regime of care was properly established. It is clear the police were called in response to a Triple 0 call from the mother, which followed a pattern of conduct of the mother, Marie, and Con. I find that the police and DOCS acted properly and appropriately.

Mother’s position

94 The mother seeks that the children be restored to her and that they will continue to live with her and her mother, Helen D, in Maroubra.

95 The mother has had limited contact with the children since February, 2007. She has not been involved, nor sought to be involved, in any mediation sessions concerning the children nor in the resolution of some of the issues which have arisen over the last two years.

Mother’s absence from the children

96 The mother did not see the children nor make contact with the department after October 2007. The mother did not give any satisfactory evidence as to her reasons for not seeing the children.

Drug usage: Mother

97 The mother admits to marijuana and heroin use from 1992 onwards. She went on a methadone program in about 1994 but returned to the use of heroin from late 1995 to early 1996. I am satisfied that the mother was, at least in her adolescent and post-adolescent years, effectively indulging in dysfunctional and anti-social behaviour in a number of respects and that the maternal grandmother was unable to control her then or now.

98 Marie D suffers from hepatitis C, apparently from her period as an intravenous drug user. She admitted using heroin when she was pregnant with ED and recommenced on the methadone program thereafter. She relapsed again prior to ND’s birth and recommenced the use of heroin. She was also using heroin at the time of HW’s birth in December 2003. She remains on the methadone program – although she denied that in court.

99 The mother was convicted of one count of possess, supply cocaine in January 2006 to which she pleaded guilty. The mother has a record of prior convictions going back to 1988 for various drug offences including possess and supply of prohibited drugs. Members of the family continue to assert that what was involved was not heroin but was icing sugar. No evidence was produced to support this assertion. In the absence of such evidence, and given the mother’s clear conduct during this hearing, the aspect of concern is that overall attitude is indicative of a tendency to minimize the mother’s involvement with drugs.

Father

100 Paul W is the father of HW and JW. He is aged 34. He lives in eastern Sydney and he is currently employed. He gave evidence of the troubled relationship he had with the mother and their various accommodations, as well as aspects of their litigation.

101 The father accepts that HW and JW will, for the foreseeable future, stay with his mother and stepfather. He has conceded that he is not currently in a position to have the children restored to him. In the light of the evidence before me, that is a sensible concession. He wishes to ultimately apply for parental responsibility but accepts that he will have to do the following:

(a) attend and successfully complete drug and alcohol counselling as agreed between himself and the Director General;

(b) complete a parenting education course;

(c) obtain appropriate accommodation to have contact with the children;

(d) Attend individual counselling as recommended by Ms Goldberg in her report of 3 July 2008.

102 He has also given the following undertakings:

(a) That he will endeavour to abstain from using illicit drugs and excessive consumption of alcohol;

(b) That he will comply with the conditions of contact set out in Order 9;

(c) That he will accept and comply with reasonable directions given by the officers of the Department of Community Services;

(d) That he will not physically chastise any of the children;

(e) That will endeavour to comply with the conditions in the Notations set out in paragraph 12;

(f) That he will not in the presence of any of the children denigrate Marie D, Helen D, John D, Joanne D, Andrea K, or Graham K.

103 In the meantime his contact with HW and JW will continue once per month supervised by DOCS and the parents. He has a good relationship with his mother and stepfather. He has a good relationship with John D. That was apparent in the evidence of both of them.

104 The Separate Representative submits – I think both accurately and appropriately – that he has a stronger contact with the children than the mother. That is probably a reflection of the fact that he has had more constant contact.

105 Mr Paul W said he has seen incidents of violence by the maternal grandmother towards the elder girls ED and particularly ND. That involved hitting them with a slipper. He did not remonstrate with the maternal grandmother because the children involved were not his. Paul W said that he had never seen Con D get violent with, or threaten anyone. He used to work in the building industry with Con D.

106 The father has been the subject of random and organised urinalysis testing. He has provided samples which indicate some marijuana usage but nothing else. He denied any methylamphetamine usage.

Drug usage: father

107 The clinician, Ms Goldberg, noted that Mr Paul W’s current presentation suggests “sores and other signs of abuse”. In addition, the documents reviewed indicate that although he has started urinalysis only a small percentage of urinalysis results have been provided by him.

Drug usage: both parents

108 In addition to their individual histories of drug abuse, it is clear that both the mother and the father have had a substantial history of drug usage and abuse. In September 2004, a Risk of Harm Report was investigated by DOCS, which highlighted the substantial drug (heroin) habit of both parents affecting their capacity and level of violence. The maternal grandmother worked with the parents and provided support to them during this period.

Relationship with DOCS

109 The mother refuses to communicate with DOCS and the relevant caseworkers saying they cannot be trusted. I do not accept that her reasons for that have any validity. Mr and Mrs K consider that the relevant DOCS caseworkers, Grace and Amber, have managed the situation very well.

110 The mother’s suspicious nature has been the subject of comment by Ms Goldberg (see below). In my view, that suspicious nature was confirmed by numerous events which occurred during the hearing. Her suspicions were, and are, unjustified.

Maternal grandfather

111 The maternal grandfather – Nick D – did not give evidence nor attend court. He was apparently involved in looking after the children during these proceedings. He is aged 65. He is on a disability pension and had dystrophy (paralysis) of his left arm. He was not been interviewed by either Ms Goldberg or by any other DOCS or other professionals.

112 Mrs Helen D is on a carer’s pension to support her husband. His capacity to care for the children or to control the behaviour of Con and Marie D is unclear.

Maternal grandmother’s awareness of mother’s circumstances

113 Mrs Helen D’s case is based on a joint application with the mother. Further, it is an integral part of the grandmother’s case that she and Ms Marie D are effectively to be the joint carers for the children.

114 This is of concern given that it is clear that the maternal grandmother is, and has been, aware of her daughter’s circumstances in relation to her drug abuse and consequential lifestyle for a long period. There has also been a poor history between the two women, and earlier reports indicate that Marie D complained that her mother, Helen D, used to beat her with anything that was available. Mrs Helen D admitted to ‘tying Marie to the bed to control her’.

115 The maternal grandmother stated in court on Friday, 12 September 2008 (transcript page 363):

‘When before Christmas (December 2007) they said to me to go and visit my daughter and tell her if she want to see her girls for Christmas or New Year's, ring to them. Alice said to me, "I can't go where your daughter is." 26 December, I go up in the Cross on the Storrier accommodation. I saw my daughter. She was not about to get up to open for me the door. I asked downstairs to open for me the door. My daughter lie on the bed like a dead person.’

116 That was apparently the fifth time DOCS had given the maternal grandmother details of where the mother had been found in similar circumstances.

117 The maternal grandmother apparently accompanied the mother to the methadone clinic. She considered that the mother had given up her heroin usage on at least three occasions but that abstinence had not lasted. It is of concern that she would make a joint application with the mother for the children against that background and in these circumstances.

Change of case

118 The maternal grandmother’s case changed during the proceedings from one of a supporter for the mother to a joint application to one of excluding the mother from the home. At the conclusion of the proceedings, Mrs Helen D proffered undertakings that she would ensure that Marie (and Con) would not remain at the home nor have unauthorised contact with the children.

Maternal grandmother

119 Mrs Helen D lives in eastern Sydney. The mother and all four children were living in this home when they were removed by the police and DOCS officers in February, 2007.

120 Apparently the maternal grandparents spent $160,000 to expand their house to accommodate the grandchildren. That renovation has recently been completed. It is a substantial home where the girls would have their own accommodation and facilities.

Behaviour during proceedings

121 During the course of the proceedings both the mother and the maternal grandmother interrupted on numerous occasions despite directions to the contrary. Those interruptions and her other comments were clearly made out of a sense of antagonism towards anybody else who presented a contrary view to hers and a preparedness to promote her views wherever possible.

122 During the evidence of Ms Goldberg, Mrs Helen D called out during that evidence, including shouting out “liar.” Helen D is extremely voluble, particularly when she becomes frustrated, and repeatedly demonstrated a preparedness to force her views on issues and to dredge up her perception of past and perceived wrongs regardless of overwhelming evidence to the contrary. It is clear that negotiation with her is likely to be extremely difficult on any subject where she has an emotional investment, particularly involving her children and grandchildren. This is another reason why the orders need to be made with as much particularity as possible and specifying what actions should occur in as many situations as can be anticipated.

123 Notwithstanding the assistance afforded to Mrs Helen D both by the court and by counsel for the other parties and despite directions to the contrary, she continued to interrupt the evidence to make outbursts on numerous occasions.

Background to the relationship

124 Mrs Helen D stated to a clinical psychologist, Mr Kennett, on 16 March 2007 (document 13) that she had been encouraging the daughter, Marie, to apply for a Department of Housing unit as she, Helen D, realised that she could not care for her grandchildren if their mother was living in the house. Mrs Helen D said at one time that Marie had “wanted to sell the girls” and had punched her mother (Helen D) when she stopped her.

Mrs Helen D: capacity and preparedness to control Ms Marie D

125 Notwithstanding the mother’s clear and continuing awareness of her daughter’s behaviour – and the causes of it - Mrs Helen D remains highly defensive on the subject of her daughter’s drug usage and consequent conduct. I do not accept that she will be able to control her daughter’s behaviour nor that she will limit her daughter’s contact with the granddaughters in the event that Ms Marie D attends her home when the girls are present.

126 This is in marked contrast to the position of Mrs K who has controlled, and, I believe, will control, her son’s contact if she has any suspicion of drug taking or inappropriate behaviour by him. She is supported in that by Mr K.

127 Given the overall flavour of the evidence and the difficult situation that is faced in sensitively handling the needs of these four children, I do not consider that Mrs Helen D should be placed in a position where she would be able to influence decisions about the children and, in particular, in negotiations with other persons such as Mr and Mrs K.

128 There is also an issue as to Mrs Helen D’s preparedness to provide medication or follow medication protocols and regimes for the children. That is strongly disputed. Helen D relies on her past record of caring for her children and grandchildren.

Tensions: D family and Mr and Mrs K

129 There have clearly been tensions between members of the D family, especially Helen D and John D. That has arisen from a number of incidents including when JW was in hospital, apparently with an acute asthma attack. Mr and Mrs K asked Helen D to leave the hospital, which she regarded as insulting and belittling to her status as a concerned and involved grandmother.

Mother’s suspicious nature

130 Ms Goldberg reported that the mother had a very suspicious nature, which she utilised to deny any reflections on her own shortcomings. The relevance of this is in relation to the mother’s preparedness to work with others to parent her children and to ensure that the problems that may arise are overcome. I do not regard the mother as having that capacity, nor is she motivated to look for arrangements that are in the best interests of the children.

Complaints and consequences

131 Mrs Helen D and Ms Marie D made a complaint against the police following their investigations. An investigation was conducted through the Police Integrity Commission and internally through the New South Wales Police Service. That complaint was dismissed.

132 The mother also made a complaint to the Ombudsman’s Office about the actions of DOCS and others. No action was taken in relation to that complaint.

Mother’s allegations

133 The mother has made a series of unsubstantiated allegations against the paternal grandmother, Mrs K, on the basis that she suffocated a child and was receiving psychiatric care. She said she made those allegations on the basis of what she was told on one occasion by Mr Paul W.

134 It appears that Mrs Andrea K has suffered a miscarriage at a much earlier stage in her life and that thereafter she consulted a psychiatrist. Those circumstances, though obviously distressing, do not of themselves reflect on Mrs K’s parenting capacity. What is of concern is that those issues were raised and pursued in the way that they were by members of the D family.

135 There are also allegations against DOCS, not only that the Department did not adequately investigate her (numerous) complaints, but that they and the Police appeared to conspire against her. One such allegation was that one of the case workers, Ms Francine Clough, had in fact been demoted as a result of these events, whereas it appears that Ms Clough has not only been promoted but that she took a rotation into a policy area of the Department. Ms Clough, who gave evidence and was examined and cross-examined, was a very impressive witness who in my view showed considerable patience and tact. I did not detect any impartiality or lack of objectivity on her part.

136 In my view the mother’s constant allegations support the view that she is delusional and is prepared to make unsubstantiated allegations including, for example, that the police officers were involved in a conspiracy with the DOCS officers, that Mr and Mrs K bribed the police and that all attempts to undertake an analysis of her urine were the subject of conspiratorial manipulation.

137 Those matters, as well as the other matters arising out of the mother’s history and behaviour, make it clear that the mother’s contact with the children should only be on a supervised basis and the subject of very specific undertakings and orders. As I have said earlier, it is important that there is an end to the litigation involving these children and the cessation of constant and unsubstantiated allegations against anyone who does not accede to Ms D’s views

Use and abuse of governmental resources

138 Very substantial governmental and community resources (which, in this field, are particularly scarce) have been made available to this dysfunctional family. That is in addition to the (again scarce) legal aid and court resources that have been invested and which, in my view and unless there are significantly changed circumstances, not be re-allocated unless it is clear that any costs order made can be met.

139 It is unfortunately likely that there will be future involvement with the police and other related services. It is therefore important that those agencies be aware of the background to those matters and my finding that I would not be prepared to act on the allegations of Ms Marie D unless there was independent verification of any of her statements. Lest this be thought to be a recently developed personality trait, I note from the Drug and Alcohol Assessment Program notes (exhibit 20) that in 1989 it was noted that the mother ‘tells blatant absurd lies which she will not retract [and] conducts a sociopathic lifestyle.’

140 I will be directing that these remarks be circulated so that those who receive such allegations in the future is aware of Ms Marie D’s behaviour and tendencies. It is my view that any such complaints by her regarding the children should not be acted on unless they are independently verified.

Greek heritage: religious and cultural upbringing

141 Mrs Helen D considers herself very religious and is anxious that her granddaughters are brought up within the Greek culture and with respect for their religion. Her main objectives in this regard are to be able to take the children to a Greek Orthodox church either near her home or near the home of her son, Mr John D.

142 When living in eastern Sydney, ED attended Greek dancing weekly and Greek language lessons three times a week. Mrs Helen D proposed the same for the other three children.

143 The current arrangement for the children being brought into contact with their Greek religious and cultural background is that that occurs once per month when all four girls are together. Mr and Mrs K support that cultural and religious exposure but only on the basis that it occurs in relation to HW and JW once per month. Mr and Mrs K are bringing HW and JW up within the Anglican religion.

Maintenance of Greek heritage and religious observation

144 The children are clearly aware of the part-Greek heritage. They are exposed to a strong Greek culture whenever they are with John D and particularly when the maternal grandmother is present. The elder girls speak Greek and the two younger girls are exposed to the Greek language when they are present for contact visits.

145 That should continue as long as it is constructive for, and accepted by, the girls. It can be anticipated that this may need adjustment as the two elder girls grow older and develop other interests.

146 There has clearly been some tension about the baptism of the children and the names they have either been given or used. Those difficulties appear to have passed - although they are raised by members of the D family over the years.

147 In my view, it is appropriate that that cultural awareness be maintained through the children’s contact with their maternal grandmother and family – including for example, contact on the elder two girls Greek Orthodox name days which, at least in relation to ED, she shares with her grandmother. However, those arrangements should be a second priority to ensuring the stable arrangements and routine for the children.

John D

148 Mr John D works as a storeman/forklift driver. He has adjusted his work to part time to care for the girls. He is aged 36 and is single. He has lived in his current home for the last four years. He drops the girls off at school most days.

149 Mr John D was the subject of an assessment report as to his status as a carer. That was carried out in February 2007 by Francine Clough from the Eastern Sydney Community Services Centre. Both in the course of that, and other, assessments John D was regarded as an appropriate and proper carer for the two elder girls. The option for ED and ND staying with him in the short term was considered appropriate. There does not seem to be any criticism of his care of the girls, just the reverse, the DOCS and other assessments of him present the picture that he has been successful in coping with the transition from the life of a single man to caring for two pre-adolescent girls and coping with the other two girls on regular weekends.

150 The girls have lived with him for 18 months. He has to deal with the girls’ occasional requests to return to eastern Sydney and has sought counselling in relation to that. He also seems to have juggled the competing pressures he has experienced from members of his family and, as he perceives it, from Mr and Mrs K, successfully. He says, and I accept, that he has put a lot of effort into developing his relationship with the children and Mr and Mrs K. He has a sunny, open disposition and seemed to demonstrate considerable flexibility and generosity in his approach to issues that have, and may, arise. He was, understandably, concerned that Mr and Mrs K took an approach to the insertion of a gate which he considered was a breach of the orders and arrangements. He rose above that - which is to his credit.

151 Mr John D has been able to successfully fulfil all the parenting requirements for the two girls but wants some assistance on female issues when the girls move into adolescence. He has done parenting courses and was able to apply the lessons he has learned to his situation and the girls.

Accommodation

152 Mr John D also has an understandable reluctance to return to living in the eastern Sydney family home if it means his siblings, Con and Marie, are to be excluded from that home. He originally moved to western Sydney to accommodate the girls the maternal grandmother.

153 My assessment of him over the hearing and his evidence was that he was well aware of the dysfunctional aspects of the wider family, particularly his sister’s behaviour, that he coped with them but that, despite his obvious loyalties to his family, he would put the interests of all four girls first.

154 He is also aware of the issues relating to his brother, Con, and has some astute insight as to when his brother is agitated. He has made assessments as to when Con should and shouldn’t see the girls.

Andrea and Graham K

155 Ms Andrea K is aged 60 and Mr Graham K is aged 55. Both have indicated that they are in relatively good health. What issues there are do not, in my view, affect their respective parenting capacities.

156 It is reported (in the report of Ms Goldberg) and I accept and find that Mr and Mrs K have rearranged their lives in order to meet the needs of HW and JW. Ms Andrea K, who retired ten years ago, is now fully involved with the child caring and with the kindergarten since HW started there.

Mrs Andrea K

157 Mrs Andrea K was very conscious that although the case is being managed well in her opinion by the DOCS caseworkers, the DOCS remains the official custodian of the girls and this is a great motivator for all the adults to continue cooperating together for the benefit of the four girls.

158 Mr and Mrs K want to share the decisions with contact about HW and JW with DOCS. Mrs K has provided all four girls with photographs of themselves together. She has also shown HW and JW a photograph of their mother, Marie D.

159 Mrs Andrea K has a very close relationship with the two children. During JW’s recent hospitalisation, Mrs K slept by JW’s bed at the hospital.

160 Her evidence is that all four girls have a very close relationship and are very excited to see each other each weekend. They have spent a week together.

161 Mrs Andrea K impressed me as a competent and capable woman who had thought deeply about her responsibilities. She had taken steps for the children’s interests which indicated she is prepared to put their interests ahead of others - for example, she ensured that her sister (who is a smoker) stopped smoking in the house or indeed in the presence of JW after JW’s asthma became apparent.

162 Mrs K denied that she had stopped any contact between the children and the D family although she clearly conceded that there have been situations of stress and distress in the early days. Mrs K seemed to me to be regretful of the situation with Mr John D whom she regarded as a caring parental figure and an honest individual who was concerned about all four children.

Mr Graham K

163 Mr Graham K, who was previously employed full time as a Liver Transport Nursing Co-ordinator, has cut back his hours and has taken himself off the roster. He now works only as a business manager in a 9 to 5 capacity and is now much more available for his hands-on role with the girls.

Religious upbringing

164 Mr and Mrs K take the children to their local Anglican Church each fortnight. They support the girls being able to develop their Greek religious and cultural heritage. Mrs Andrea K is a former nurse and nurse consultant. She has had that experience for some 30 years although she has been retired for about 10 years. She regards herself as the grandmother and fulltime maternal carer for HW and JW. She also looks after three other grandchildren aged between 2 and 4-1/2 with whom HW and JW have regular contact.

Medical condition

165 JW suffers from asthma for which she was hospitalised on 9 August 2008 and needs a ventilator. She also had a syncope (cardiac) arrest. JW also has a speech impediment and has speech therapy.

166 JW has three specialists looking after her - a consultant paediatrician (Dr Tsoumi), who is also the director of child medicine at the Sydney Children’s Hospital, and Dr Camphausen (cardiologist), and Dr Morton, an asthma specialist from whom a report was tendered.

167 Mr and Mrs K have arranged for JW to see Dr Tsoumi every 12 weeks, Dr Camphausen twice in the last three months, and Dr Morton every 6 weeks. In addition, Mr and Mrs K take JW to the family general practitioner, Dr Elaine Yoang of Botany.

168 In my view, having reviewed all the material and the evidence presented there is absolutely no substantiation for any medical or other concern about the care and regime that Mr and Mrs K have established for these children.

Relationship Mr and Mrs K and Mr John D

169 Initially there was little communication or trust between Mr and Mrs K and Helen D and viable, if somewhat strained, communication between John D and Mr and Mrs K. That changed over the last year. Mrs K readily agreed that she and her husband regard John D as a good parent for ND and ED, that he is an honest person, and that he is able to look after HW and JW when they are with him on contact visits. The main difficulties that were between them were in relation to the erection of a gate/fence to Mr John D’s property but those appear to have been resolved. I accept that, notwithstanding past tensions, those three adults have worked at developing and improving their relationship.

170 Not withstanding the stresses of the hearing, I am confident that Mr and Mrs K and Mr John D have the capacity to respect each other, and that that will operate for the benefit of the children and the ongoing arrangements between them.

171 Mr and Mrs K’s primary concerns remain that Mr John D should be present at all times when HW and JW are at the D home, that the girls not be exposed to Ms Marie D or Mrs Helen D on their own without Mr John D being present, and further that all medication requirements be observed.

172 Mrs K was the subject of a detailed questioning by Ms Joanne D obviously on the instructions of both Mrs Helen D and Ms Marie D (at times) including that she (Mrs K) had manipulated the situation with either DOCS or the police, or indeed her own records. On one occasion Ms Marie D was urging Ms Joanne D to question Mrs K suggesting she had falsified her diary and other records. Nothing was put or produced to substantiate this allegation. I regard this as a further manifestation of Ms Marie D’s paranoid delusional nature and her preparedness to make unsubstantiated allegations. I regard it as a further reason why her contact with, and attempts to influence, the children should be closely and carefully monitored at all times.

Clinician’s report: Ms Greta Goldberg

173 Clinician’s reports were prepared from Ms Greta Goldberg dated 21 June 2007 and 3 July 2007.

174 Given that there have been indications of dissatisfaction with her reports and conclusions, it is appropriate that her qualifications be set out as follows: a Doctoral candidate researching Generational Transmission of Chronic Post Traumatic Stress Disorder across families; Masters Degree in Clinical and Experimental Psychology; Honours Degree in Psychology; Diploma of Education; Bachelor of Arts majoring in Psychology. She has professional affiliations including membership with the Australian Psychological Society, APS College of Clinical Psychologists, and APS College of Forensic Psychologists, amongst others. Her experience includes specialist consultancies in Forensic Psychology, including treatment of court referred adults and adolescents, as well as Clinical Psychology including family therapy, child psychology, adolescent behavioural and learning problems, and child abuse treatment and assessment.

175 Ms Goldberg provided two reports following assessments of the children on different occasions. Those reports were dated 31 May 2007 and 3 July 2008. Ms Goldberg had not only interviewed the children and/or the parties to the proceedings but had read a substantial number of the affidavits and various reports and notifications which had been made involving all aspects of this family.

Observations: HW and JW

176 Ms Goldberg’s report also indicates that both HW and JW are well settled in their current placement although they miss their father, and to a lesser extent their older siblings. The report notes that some of the difficulties between the paternal grandparents and the maternal family have begun to resolve and that there may be further benefits gained by the occasional family therapy sessions.

177 Ms Goldberg considered that Mr and Mrs K felt some understandable over-anxiety and over-protectiveness towards the two girls, especially in relation to the contact they have with their father, Mr Paul W, and issues of drug abuse involving any parental figure.

178 Ms Goldberg thought that the mother’s interaction with the children was as though “she was virtually a stranger to them.”

Mr and Mrs K: paternal grandparents

179 In Ms Goldberg’s opinion, Mr and Mrs K have impressive parenting skills and that they have taken every care and attention with HW and JW who have been living with them. Moreover, the girls appear to be stable and to respond to the care, affection, and warmth and the bond that they have with their paternal grandparents.

180 It is clear from Ms Goldberg’s reports and her oral evidence that Mr Graham K may at least have issues of being over-protective of the two younger children. Given the circumstances of the last twelve months, that is understandable. Having said that, I think it important that a cordial relationship be maintained between Mr and Mrs K and in particular Mr John D. The children in their respective pairings have been indeed fortunate that there are three people who have displayed considerable maturity and insight in their dealings with each other as well as the children, notwithstanding some situations of tension and competing loyalties.

Observations of father

181 Ms Goldberg noticed that there was considerable intimacy and empathy between the father and the two younger girls although the father’s situation is clearly one of high emotion for him, which might become distressing for the girls. She noted that there does not seem to be any consistent or long-term record of the father caring for the girls on his own. On the one occasion the children came to stay with him, that was unsuccessful. The report noted that the father did show some capacity to restrain himself and contain himself and to consider the needs of the children.

Recommendations

182 Ms Goldberg recommended that the children remain in their secure placements but with the added benefit of allowing graded and supervised and monitored contact with each parent.

183 Ms Goldberg noted that this is difficult given the problems that the mother has and her tendency to blame others and deny her own personal responsibility. The recommendation is made that the adults be obliged to attend together for conjoined family therapy on a regular basis.

184 Ms Goldberg also suggested that, as the two elder girls ED and ND become older, they should be included in these family sessions. In the event that the mother was unable to attend family therapy or to remain drug free then supervised contact should return to a minimum of one hour per fortnight during the time that all four children are together. Similarly, if the father was unable to comply and remain drug free then supervised contact should also be explored.

185 Ms Goldberg’s report also noted that each of the four children has settled quite well within their respective current placements and despite any preference (occasionally confused) for being moved back to the eastern Sydney area. The girls, ED and ND, have a settled lifestyle with their uncle John and have a positive routine both at home and at school as well as socially.

186 The report notes that moving the children back to the home of the maternal grandmother with her unresolved issues of the mother’s involvement and access and contact with them that such an option would be de-stabilising.

Position of the mother

187 Ms Goldberg notes that the mother has a particular position in her own family whereby her family members were observed to tolerate her weaknesses and deviations; nevertheless they are supportive towards her although in an ambivalent and critical way. That is in conformity with my own observations of Mr John D and Ms Joanne D during the hearing.

188 The report notes that the mother does not have a great deal of insight into the part she plays in maintaining her emotional isolation. Ms Goldberg also noted that the mother is completely lacking in confidence, self-awareness, and self-regulation. She also has the need to prove others wrong and to prove herself right. In addition, the report notes that the mother is not ready at this stage to meet or prioritise the physical, emotional, and psychological needs of the children.

189 Ms Marie D’s reactions to the children’s behavioural and developmental problems appears to be guided by her own somewhat suspicious nature and her interpretations as well as her lack of ability to implement strategies for the appropriate management of the children’s behaviour and of her own conscious preoccupation with her own rights and needs.

190 Ms Goldberg was of the firm view that in order to ensure their future emotional, psychological, and physical well-being and development, the girls should not reside in the sole custody of the mother in the immediate or short term. Any change in the longer term should only by their own wish when they are old enough to confidently choose this option.

191 Ms Goldberg’s report noted that, if restoration and/or custody to the mother is not considered viable, it would be appropriate for some level of contact to be maintained by the mother with each of the children provided she remains drug free and free from alcohol abuse.

192 The contact with the two elder children should be supervised by the Mr John D for a minimum period of twelve months and then to a graded increase in unsupervised contact with the older girls provided the mother remains living in the maternal grandmothers home.

193 Ms Goldberg also noted that every time an arrangement for contact is made for the mother with the girls, and Ms Marie D does not appear, the children are disappointed. That disappointment is likely to be internalised with a deleterious impact on the children.

Counselling for the mother

194 Ms Goldberg’s view is that the mother’s increased contact with the children would need to depend on her satisfactorily completing individual psychological counselling on a long term basis. Thereafter her introduction into the life of the children should be supervised, monitored, and graded by involving her with all four children in the fortnightly visits at the home of Mr John D. She accepts that that should be for a single two-hour activity involving all four girls.

Mother’s courses

195 The mother has apparently initiated some individual counselling sessions but has attended only a few. I see no evidence that would support that the mother has the personal resources to accept or commence or continue any ongoing levels of treatment.

Observations: Mr John D

196 Ms Goldberg confirms what is clear from the evidence in that ED and ND have a very good and close relationship with Mr John D. Moreover, that relationship provides them with stability and certainty.

197 Ms Goldberg also noted that Mr John D has excellent parenting capacities and no difficulty in prioritising the needs of the children above his own. He appears to have managed to maintain the role of a friend and ally as well as a parent to each of the girls, and in turn each of them respects him. He has also demonstrated an excellent capacity to understand the children’s behavioural and developmental needs and has organised and implemented strategies for their management.

198 The report goes on to detail some of the matters which would be enormously frustrating for anybody, let alone somebody in the position of a parent including behavioural problems such as ND being reluctant and antagonistic to the idea of having to wear glasses and consequently breaking 35 pairs of glasses. Even in those circumstances, John D has shown that he is persistent and caring and continues to support the children.

199 He has a strained relationship with his sister although he seems to have been personally supportive of her. My assessment of him is that he is very much aware of her history and problems but is able to be objective of her, while being loyal to her.

Children’s wishes

ED

200 Ms Goldberg reported that the elder child ED maintains strong positive relationships with all parties involved.

201 She attends a local school in western Sydney although is anxious to go back to school in eastern Sydney. She has said that she misses her mother. She has said that she does like living with her uncle who keeps them interested and they are always occupied reading, listening to music, and doing activities as well as homework with him.

ND

202 ND also attends the same school as her sister but has also indicated a preference for the other school as she has said that she wants to live with her mother and grandmother.

203 The wishes of both these two girls were confused because at other stages they said that they wanted to live with their uncle John where they were very happy. Both girls are clear that they had not had contact with their mother for some considerable period of time but remain positive in considering their mother and in their recollections of her.

HW and JW

204 Both HW and JW are too young, in my view, for their views to be given any real weight. However, their clear identification is with Mr and Mrs K and their interests are in a regime of stability and love, which is provided to them by Mr and Mrs K. They clearly get on with their elder sisters but there is an age difference, which means that they have, and will develop, different interests meaning that they should not be forced together for long periods. I accept Mr K’s evidence that HW and JW are exhausted after periods of contact with their elder sisters resulting at least in part from trying to keep up with the older girls.

Mother’s testing

205 Ms Goldberg said that she would not recommend that there be any restoration of the children to the mother for a period of at least six months and then there should be a period during which the mother’s stability and compliance with matters such as drug testing and personal counselling could be monitored. Ms Goldberg did not consider that the younger two children should be restored to the mother at all.

Treatment of parents

206 Ms Goldberg considered it important to ensure that both the natural mother and father should be treated in the same manner in terms of their ongoing supervision and prior to any unsupervised contact with the children. Those conditions should be that both parents should provide clean urine analysis for a period of three months and thereafter participate in joint family therapy. In the case of Ms Marie D that should include her family and the older two daughters.

Contact: All four girls

207 Ms Goldberg also thought that it would be advantageous for the children if the four girls could be together for longer periods of time particularly in circumstances where there is a strong bond between the children.

208 Ms Goldberg could not see any problems if the care plan continued in relation to the two elder daughters in eastern Sydney provided the mother only resided there once her issues of unsuitability had been clarified. Similarly, Ms Goldberg thought that there would be no difficulties in longer contact periods provided all four children were together and if Mrs Helen D was able to look after the children for periods on her own provided again she complied with the orders that were made.

209 In my view there should be a phasing-in of extended contact for the two younger girls in particular. That should be for no longer than three days in the first year, a week in the second year, and ten days in any subsequent years. Further, that that should not commence until JW is aged 6 with the specification that any person in whose care JW is for any period over 12 hours should comply with any medication regime recommended by Mr and Mrs K.

Law

210 These applications need to be considered under the provisions of the Children and Young Persons (Care and Protection) Act 1998.

Matters to be considered

211 The object of the Act, which guides decision-making in this area, is provided by section 8. Section 8 sets out the principles to be applied in decisions concerning children, namely, the safety, welfare and wellbeing of the child must be the paramount consideration. Here also a relevant question is the need (recognised by paragraph 9(d) of the Act) to determine what order will protect the children from the least intrusive intervention in their lives consistent with the paramount concern to protect them from harm and to promote their development.

212 The basis of the applications of the children’s representative, the paternal grandparents and DOCS is that pursuant to section 71(e) the children would be likely to suffer serious psychological harm if they were removed from their present situations or if they were to live with either of their parents or their maternal grandmother as a consequence of the environment in which they would then be placed, including the parenting arrangements which would be then made for them.

213 The Department relies on the following provisions on section 70(1) of the Act:

(b) the parents have serious difficulties in caring for the child and, as a consequence, the child or young person is in need of care and protection,

(d) subject to subsection (2), the children’s basic physical, psychological or educational needs would not be likely to be met, by their parents or primary care-givers,

(e) the children would suffer serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which they would be living,

Submissions: maintenance of the girls together and within the family unit

214 The maternal grandmother’s case – and inferentially that of the mother and as a first alternative submission by Mr John D – is that the four children should be together. I disagree. While that may be a preference with all other things being equal, here other things relevant to the children’s welfare and best interests are not equal. The two pairings of the children are at different ages and stages. They have different fathers, father figures and have had substantially different care arrangements with which they have become familiar over the last three years. They also have very different needs, for example, the needs of JW for a firmly controlled medication regime.

Findings

215 I find that:

(a) In my view the orders sought by DOCS, the father, the paternal grandparents and the maternal uncle (in the alternative) are appropriate and are in the best interests of the children. I consider that it is the girls’ individual and collective interests that the current situation continue and be regulated by the arrangements as set out in the attached orders – annexure A.

(b) The children have individually and collectively adjusted to their current parenting arrangements and their separated situation. They seem to be progressing well at school and have age appropriate interests. They have a good relationship with each other, both within their pairings and individually. They each and all have a good relationship with the adults in their lives, and, although there have been some tensions in those relationships, the children appear to have coped with them.

(c) The children are fully aware of the respective places and importance of the adults in their lives. They are fortunate indeed that they have in John D and Mr and Mrs K, people who have changed and devoted their lives to the children. Those three people have enabled the escape of the children from the life and lifestyle led by Ms Marie D.

(d) Each of the mother and father at the present time and for the foreseeable future have serious difficulties in parenting the children.

(e) The current arrangements will support the girls’ relationships with each other as well as their identity as sisters. The arrangements will facilitate the contact and involvement by HW and JW with their maternal family including their uncle and grandmother, as well as their maternal families, culture, and religion.

(f) The proposals in relation to HW and JW will also ensure their relationship with their father and their paternal grandparents and that those paternal grandparents will properly supervise the father. In the event that the father appears on any of the specific occasions foreshadowed in these orders or at any other time and appears to Mr and Mrs K or any other responsible person to be under the influence of any drug, then his contact for that period should cease immediately.

(g) It would assist the children to maintain their frequent and regular contact with each other and to share experiences such as Greek/religious and cultural occasions, which will enable them to appreciate that they are part of a common background.

(h) Given all evidence, I find that at the time of the removal of the children they were in need of care and protection.

(i) Both the police and DOCS officers were entirely justified in taking the actions that they did.

(j) Mr and Mrs K did not act - as submitted by some members of the D family - to separate the children but rather to advance the interests of HW and JW.

(k) The circumstances of the children at the time of their removal were known to both Ms Marie and Ms Helen D and, not only warranted their removal, but also indicated an inability to care for the children or to provide for their welfare at that time. The separation of the children resulted directly from the dysfunctional behaviour of members of the D family – especially Marie D known to and tolerated, by Mrs Helen D

(l) Mrs Helen D has been for many years well aware of the circumstances of the mother and her unfitness to provide a regular or appropriate parenting figure for these children. The mother and the maternal grandmother were until the latter stages of the hearing, joint applicants for the care and parenting responsibility of the children. Given all the evidence and what occurred during the course of the trial in terms of the mother’s refusal to attend for drug testing, the mother’s application that the children be restored to her and that her capacity to care for the children or any of them cannot be sustained.

(m) Ms Marie D has had a long history of drug abuse, which she is effectively unable to control. Nor is her family able to control or influence her when she is so affected.

(n) The actions of Ms Marie D in the light of all the evidence and what has occurred during the hearing, shows that she is a person who is not prepared to abide by orders made. Moreover she is prepared to attack those who take any actions against her including a variety of authorities properly concerned with investigating such matters. I consider that this is further evidence of her intransigence, her suspicion of others and her refusal to cooperate with responsible persons including John D and Mr and Mrs K as well as the relevant DOCS authorities. That does not augur well for her continued involvement with the ongoing welfare of these four young girls and a regime should be established which limits and regularizes her contact with the children. If those orders and undertakings are breached, contact with HW and JW should cease.

(o) The children are considerably upset when the mother does not see them in accordance with arrangements made and that children are likely to internalize those feelings into feelings of rejection and worse. The contact orders therefore limit the mother’s contact to specified periods only at three monthly intervals as set out in the attached draft. If the mother does not attend at those sessions there should be no make-up or substitute periods.

(p) The children are clearly aware that there is something amiss with their mother. They will have to be told the real reason for her dysfunctional and anti-social behaviour in the near future – at least as far as the older two girls are concerned. That explanation should occur with the confines of a family therapy/mediation session.

(q) In the event that the mother appears at any home occupied from time to time by the children otherwise than on any of the specific occasions foreshadowed in these orders or at any other time and appears to either the maternal grandmother, John or Joanne D or any other responsible person to be under the influence of any drug, then that contact should cease immediately.

(r) The maternal grandmother, Helen D, loves the grandchildren and will do what she considers is best for them. However, she also has divided loyalties to the extent of putting the interests of her two children, Marie D and Con D to the fore when they are in need, for example, for accommodation. While this is understandable, if there was as situation where either of those children were seeking accommodation in her home when the grandchildren or some of them were present, I do not accept that Mrs Helen D would put the interests of the grandchildren first – certainly to the extent that she may not remove either Marie or Con from the home if that was needed. Moreover, the maternal grandmother is a forceful personality who in my view will do whatever it takes to achieve a result that she thinks appropriate regardless of the views of other proper authorities. Orders will need to be made which give clear and sufficient directions as to the way her involvement with the children’s lives should be conducted.

(s) Mrs Helen D was either aware of, or deliberately ignored, her daughter’s past and continuing drug addiction. She pursued this application jointly with her daughter, in a manner that included making a series of unsubstantiated allegations - which were often malicious and destructive - against a variety of individuals and agencies. The investigation and refutation of those allegations has not only prolonged these proceedings, it has also needlessly exacerbated the tensions between the parties.

Increased contact regime

(t) Provided the current contact regime or some increases to it are maintained successfully and without incident and once JW is aged at least 6, there should be extended school holiday contact. An ideal objective would be a regime where all four girls spend at least one third of school holidays with each of the households of Mr and Mrs K and John D. The girls should be together on all these occasions. Such arrangements should cater for the specific and age- appropriate interests of the different girls and the needs of the respective parenting figures, Mr John D and Mr and Mrs K.

Ongoing therapy

(u) I accept and endorse Ms Goldberg’s recommendation that the adults in each family group attend for a minimum of three months of family therapy counselling sessions. Whoever conducts those sessions should be provided with a copy of Ms Goldberg’s report and a copy of the reasons. These may be advantageous in having their first family session conducted with reference to the context and effect of these reasons.

Family therapy sessions

(v) I also accept and endorse Ms Goldberg’s recommendation that, after a period of three months of family therapy by the adults in the D family, ED and ND should be invited to also participate in further family therapy sessions; further, that the introduction of Ms Marie D into the family household of the D’s should be carefully supervised, monitored and graded beginning by involving her with all four children during the fortnightly visits at John D’s home. Mr John D should be present through those visits.

(w) The contact that the mother has in these situations should be limited and supervised, for example, participating in a single two-hour activity with the four girls in child-appropriate play. If this kind of arrangement seems to work well for a further period of three months, there could be an additional contact between mother and the older girls in Helen’s home for a four-hour period. This contact would need to be monitored and supervised, again with Mr John D being present.

Mediation

(x) Pursuant to the suggestions I made at the end of the first hearing days, DOCS organised for Unifam mediators to attend court to hear the final submissions of the parties. That was requested so that those mediators could have a better idea of the underlying issues that has made the resolution of this case difficult. I would request that those mediators explain these reasons to the parties and in a period of no more than one, or at the most, two days, mediate a protocol for the resolution of future disputes in accordance with the tenor of these orders.

(y) Having regard to the comments I have made about the disproportionate community and other resources this family has consumed during this litigation and the prior events that mediated process should then come (firmly) to an end.

(z) In the event that there are any further disputes, the matter would normally be determined in the Children’s Court to which this file, containing a copy of these remarks, will be remitted.

Undertakings

(zi) The orders to be made are set out in the draft minutes – annexure A. Noted as part of those orders are undertakings to be given by the mother and the father and the maternal grandmother. Comments were made throughout the proceedings consistent with those undertakings. However, the precise undertakings have not been given. The matter will be re-listed for 10 am on 20 November so that those undertakings can be given. Until they are given there should not be any contact between those persons and the children in accordance with these orders or at all.

Costs

216 On 11 September, 2008, Mr Moore, counsel for DOCS, foreshadowed an application for costs. Ms Falloon subsequently withdrew that application on instructions from DOCS on 14 November 2008.

217 Ms Renshall, solicitor for Mr and Mrs K, also foreshadowed such an application. Mr and Mrs K’s applications were ultimately reduced to writing. A similar application has also been made by counsel appearing for the parties funded by the Legal Aid Commission, namely, the separate representative and Mr Paul W.

218 If such applications were to proceed, some of the relevant issues that may need to be considered are that these are child proceedings which have arisen in peculiar circumstances, and that this is the first and only hearing following the Children’s Court proceedings. This Court at this stage has not been dealing with repeated applications.

219 The financial situation of the respondents and indeed, all parties to the proceedings and those supporting or subsidising them will clearly need to be considered. Further, that any costs orders may have an impact on the parties’ future relationships.

220 Other matters which may be relevant are the conduct of the hearing by the behaviour of Ms Marie D who for most of the proceedings was supported in her application by Ms Helen D, and, in the alternative, by Mr John D as well as whether there has been a prolongation of those proceedings.

221 In the event that those costs applications are agitated, then short dot-point submissions should be filed and served addressing those and any other matters before the application(s) are re-listed.

1. The matter is stood over to 20 November 2008 at 10am to accept the undertakings as set out in the attached draft before the orders are made.

2. Upon receipt of the undertakings, I make orders in accordance with the terms of the attached minute annexure A such orders to take effect from 21 November, 2008 when the undertakings referred to in the orders are given by Marie D, Paul Winter and Helen D.

3. I reserve liberty to the parties to apply for a hearing or dismissal of the application for costs by Mr and Mrs K, or the Separate Representative. In the event that any party seeks to agitate such an application, I direct that they file and serve a dot point outline of submissions prior to those applications being re-listed.

4. I direct the parties to attend a family mediation conference to be conducted by Unifam mediators to negotiate a protocol for the resolution of future disputes in relation to:

a. Issues arising out of these reasons and orders; and

b. The future contact arrangements for the girls

5. A copy of these reasons and orders is to be placed on the Childrens Court file and forwarded on a confidential basis to the Officer in Charge of the Maroubra Police Station with the notation that if there are any further disputes or complaints involving the children, then the attention of the investigating officers be drawn to my comments.

6. A copy of these reasons and orders is to be forwarded to Ms Greta Goldberg and the Unifam mediators and, on a confidential basis, to any specialist medical practitioners to whom the children are referred.

A.

IN THE DISTRICT COURT
OF NEW SOUTH WALES
AT SYDNEY

Marie D

Helen D

John D

Minister for Community Services

Andrea K

Graham K

Paul W

Heidi Muggenthaler as Independent Children's Lawyer for:

ED (born 1998)
ND (born 2000)
HW born (born 2003)
JW born (born 2005)

In relation to:
HW born 2003 and JW born 2005:

1. That the Orders of the Children's Court made 8 October 2007 be set aside.

2. That, except as provided for in Order 3, all aspects of parental responsibility for HW and JW to the age of 18 be allocated to Andrea K and Graham K jointly.

(a) That parental responsibility for contact be shared jointly between the Minister for Community Services and Andrea K and Graham K; and

(b) That parental responsibility for religion be allocated to Andrea K and Graham K jointly with John D.

Mother’s contact

3. That, provided the mother gives the undertakings referred to in these orders, contact between HW and JW and their mother Marie D shall occur once every 3 months for a period of 2 hours, such contact to be supervised by an officer of the Director General or by a person nominated by the Director General.

4. That the contact in Order 4 shall take place when HW and JW are having contact with ED and ND in accordance with these Orders.

5. That the contact in Order 4 is conditional upon the mother:

(a) Not attending contact whilst under the influence of drugs or alcohol;
(b) Obeying all reasonable directions of the supervisor;
(c) Not denigrating Graham K, Andrea K or Paul W or generally;
(d) Confirming that she will be attending contact by telephoning a caseworker of the Department of Community Services at Eastern Sydney Community Services Centre at least 72 hours prior to contact occurring.

6. That for the purpose of implementing contact in Order 4, the Director General shall notify the mother in writing of the date for contact addressed to her in eastern Sydney.

7. That the Director General when supervising contact between the children and the mother shall instruct the supervisor to wait for the mother at least 15 minutes after the time contact is to commence and if the mother has not arrived after 15 minutes the supervisor will return the children to their carers.

8. That in the event that the children HW and JW have contact with Helen D, such contact would occur in the presence of and be supervised by John D, save and except when Helen D takes the children to a Greek Orthodox Church.

Father’s contact

9. That, provided the father, Paul W, gives the undertakings referred to in these orders, the children shall have contact with him:

(a) once every month for a period of 2 hours, such contact to be supervised by an officer of the Director General or by a person nominated by the Director General; and

(b) on Fathers’ Day for a period of at least 3 hours, supervised by Andrea K and/or Graham K.

10. The contact in Order 9 is subject to the father:

(a) providing the Director General with the results of drug urinalysis screening, weekly for a period of 3 months, and thereafter for a period of four years if and when requested by the Director General;

(b) not attending contact whilst under the influence of alcohol or drugs;

(c) obeying all reasonable directions of the supervisor;

(d) not bringing any other person to contact with the children without the prior permission of the Director General.

11. That for the purpose of Order 11(a) the Director General shall notify the father of the Pathology Service where the urine sample is to be given and the Director General shall pay for the urinalysis.

12. Andrea K and/or Graham K may by agreement with the Director General supervise contact between HW and JW and their father once each fortnight for a period of not less than 2 hours, in lieu of the Director General supervising such contact, provided that the father has met conditions set out in order 11 to the satisfaction of the Director General and given the undertakings referred to in these orders.

13. Unsupervised contact between the father and the children shall be considered when the father has to the satisfaction of the Director General:

(a) attended and successfully completed drug and alcohol counselling as agreed between himself and the Director General;

(b) provided clean urinalysis and/or hair analysis for a period of four years;

(c) completed a parenting education course;

(d) obtained appropriate accommodation to have contact with the children;

(e) Attended individual counselling as recommended by Ms Goldberg in her report of 3 July 2008.

In relation to:
ED born 1998 and ND born 2000

14. That the orders of the Children’s Court made on 8 October 2007 be set aside.

15. That subject to Order 17 all aspects of parental responsibility for ED and ND to the age of 18 are allocated to John D.

16. That parental responsibility for residence and contact are allocated jointly to John D and the Minister for Community Services.

17. That ED and ND have contact with their mother, Marie D once every 3 months for a period of 2 hours, such contact to be supervised by an officer of the Director General or by a person nominated by the Director General.

18. The contact provided for in order 18 shall take place when ED and ND are having contact with HW and JW in accordance with these orders.

Future unsupervised contact with mother

19. Unsupervised contact between the mother and any or all of the children shall not be considered unless the mother has to the satisfaction of the Director General:

(a) Engaged in weekly individual psychological counselling with an experienced Clinical Psychologist who has been briefed by the Director General for a period of at least 12 months, the purpose of the counselling being to assist the mother to address her negative attitudes and behaviours and to improve her emotional self-regulation skills.

(b) Attended for a minimum of 3 months weekly family therapy counselling with Helen D and John D and Joana D together with ED and ND.

(c) Attended and successfully completed drug and alcohol counselling as agreed between herself and the Director General.

(d) Completed a parenting education course.

(e) Obtained appropriate accommodation to have contact with the children.

(f) Provided the Director General with the results of drug urinalysis screening once per week for a period of 3 months and thereafter for the duration of these orders if and when requested by the Director General.

Sibling Contact

20. That ED, ND, HW and JW are to have contact with each other on not less than two occasions each month on Saturday and Sunday for not less than 28 hours, subject to and consistent with the children’s extra-curricular activities, such contact to be alternatively at the residence of John D and the residence of Andrea K and Graham K, and, in default of agreement, from 11am Saturday until 3pm on Sunday.

21. John D and Andrea K and Graham K shall ensure that the children have contact with the D family for not less than 3 hours on the following significant occasions each year:

(a) Greek Easter Sunday;
(b) In the absence of agreement, Christmas Day each alternate year commencing 2008 and each alternate Christmas Eve commencing 2009;
(c) Mothers’ Day.

such contact to be subject to Order 6.

22. John D and Andrea K and Graham K shall consult together in order to make arrangements for the children to have contact with each other for not less than one week during December-January school holiday periods, such contact for the next two years to occur in the care of Andrea and Graham K.

23. In addition to the school holiday contact in order 23 above, John D and Andrea K and Graham K shall endeavour to make arrangements for the children to have additional school holiday contact with each other, including overnight, taking into account the children’s wishes, activities and ages.

Section 82 reports

24. Pursuant to Section 82 the Minister shall prepare and file a report twelve months from the making of these orders as to the following:

(a) Particulars of the quality of the contact between the children.

(b) Particulars of the quality and frequency of the contact between the children and their mother.

(c) Particulars of the quality and frequency of contact between HW and JW and their Father, including any proposal for unsupervised contact.

(d) Any other matters including outstanding issues of medical treatment or medication regimes or educational issues for the children.

Such report to be provided to the Children’s Court and, subject to the case management procedures of that Court forwarded to the District Court, for the attention of His Honour Judge Knox if appropriate and if he is available and in the absence of objection by any party.

Undertakings

25. Pursuant to Section 73 (1) (a) of the Act the Court accepts undertakings from Paul W as follows:

(a) That he will endeavour to abstain from use of illicit drugs and excessive consumption of alcohol and will abstain from such usage and consumption for three days before having contact with the children.

(b) That he will comply with the conditions of contact set out in Order 10.

(c) That he will accept and comply with reasonable directions given by the officers of the Department of Community Services;

(d) That he will not physically chastise any of the children;

(e) That he will endeavour to meet the requirements of order 13;

(f) That he will not denigrate Marie D, Helen D, John D, Joanne D, Andrea K or Graham K.

26. Pursuant to Section 73(1) (a) of the Act the Court accepts undertakings from Helen D as follows:

(a) That she will not permit unauthorised contact, other than in accordance with these orders, between the four children and Marie D or Con D.

(b) That she will do all things within her power to promote and encourage contact between the children and to that end she will co-operate with Andrea K and Graham K.

(c) That she will not physically chastise any of the children.

(d) That she will not denigrate Paul W, Marie D, John D, Graham K, or Andrea K.

(e) That she will observe any medication regime in accordance with order 31(b) as instructed by John D.

27. Pursuant to Section 73(1) (a) of the Act the Court accepts undertakings from Marie D as follows:

(a) That she will satisfy the conditions set out in order 19.

(b) That she will comply with orders for her contact with the children.

(c) That she will not denigrate Andrea K, Graham K, Paul W, Helen D or John D.

(d) That she will not physically chastise any of the children.

28. Pursuant to Section 73(1) (a) of the Act the Court accepts the undertakings of John D as follows:

(a) that he will comply with the contact orders.
(b) that he will not permit unauthorised contact between any of the children and Marie D or Con D.
(c) that he will not denigrate Andrea K, Graham K, Paul W, Helen D or Marie D.

29. Pursuant to Section 73(1) (a) of the Act the Court accepts the undertakings of Andrea K and Graham K as follows:

(a) That they will comply with the contact orders.

(b) That they will not denigrate Marie D, Joanne D, Helen D, John D or Paul W.

(c) That they will do all things within their power to promote and encourage contact between the children and to that to that end they will co-operate with Helen D and other members of the D family.

30. The undertakings, relating to keeping the front door of John D’s property chain-locked whilst HW and JW are in those premises, given by John D and Helen D pursuant to Section 73 of the Act at Bidura Children’s Court on 13 December 2007, are continued.

31. Any person having care of the children at any time pursuant to these orders shall ensure that:

(a) any prescribed medication required by a child is available and administered as required;

(b) any person having care of a child is aware of any current treatment plan for the child and knows how to administer medication to the child and with what frequency, and in particular John D shall ensure that Helen D is instructed in this regard;

(c) each person having parental responsibility pursuant to these orders is informed of any accident or injury to a child requiring hospital admission;

(d) in the event that a child is hospitalised, the hospital is informed of the names and contact details of any other person or persons having parental responsibility for the child.

32. In the event that HW or JW is hospitalised, then Andrea K or Graham K shall as soon as is reasonably practicable inform John D.

Supervision

33. Pursuant to Section 76 the Court orders that ED and ND be placed under the supervision of the Director General and the Department of Community Services for a period of 12 months, the reason for and purpose of that supervision being to support the placement of the children with John D and to ensure that sibling contact occurs appropriately.

34. Pursuant to Section 76 the Court orders that HW and JW be placed under the supervision of the Director General and the Department of Community Services for a period of 12 months, the reason for and purpose of that supervision being to support the placement of the children with Andrea K and Graham K and to monitor contact arrangements.

35. Pursuant to section 90A, Helen D and, without admissions, John D and Andrea K and Graham K, are prohibited from physically chastising the children.

36. Pursuant to section 90A, Marie D is prohibited from being at any place where the children are present, other than for the purposes of contact pursuant to these orders.

37. Pursuant to section 90A, Con D is prohibited from being at any place where HW and JW are present, except on family occasions and on such other conditions as approved by the Director General.

38. Pursuant to section 90A, Con D is prohibited from being at any place where ED and ND are present, except on family occasions when supervised by John D.

39. Reports of the Children’s Court Clinician and these reasons may be released to mediators appointed to assist the parties and to any person providing counselling or medical services to any of the children.