Ms ZM v Department of Human Services (DoHS)
[2010] NSWDC 228
•7 October 2010
CITATION: Ms ZM v Department of Human Services (DoHS); Ms HC and Mr PC; Mr NC [2010] NSWDC 228 HEARING DATE(S): 28 - 30 September 2010; 1 October 2010.
JUDGMENT DATE:
7 October 2010JURISDICTION: Civil JUDGMENT OF: Knox SC DCJ DECISION: 1. I allow the appeal in part.
2. I vest parental responsibility for SMC with Mr PC and Mrs HC while SMC is a child.
Contact
Conditions of contact
3. That provided the mother participate in counselling in accordance with sub-paragraphs D and F of the immediately preceding paragraph of these orders, providing the releases referred to in sub-paragraphs E and F that she have contact with SMC:
(a) for three hours for a period of 3 months commencing 8 October 2010 every third Saturday and Sunday in Narooma and to remain in the Narooma township area during that period and for three hours on Christmas Day by agreement or unless agreed between 2 pm and 5 pm;
(b) for five hours for a further period of 3 months commencing 8 January 2011, every third Saturday and Sunday in Narooma;
(c) That after six months commencing 8 March 2011, for two days every second weekend as well as
i. Three hours on mothers day;
ii. The full day on the mother’s birthday; and
iii. Three hours on SMC’s birthday
(d) That after twelve months for a full weekend every second weekend as well as;
i. Three hours on mothers day;
ii. The full day on the mother’s birthday;
iii. Three hours on SMC’s birthday; and
Iv. For three hours every Christmas Day by agreement or unless agreed between 2 pm and 5 pm;
(e) After 2 years, commencing 8 March 2014, every second weekend and half of each NSW Education Department school holiday period as well as.
i. Three hours on mothers day;
ii. The full day on the mother’s birthday;
iii. Three hours on SMC’s birthday; and
iv. For three hours every Christmas Day by agreement or unless agreed between 2 pm and 5 pm;
4. That the mother be permitted to telephone SMC once weekly at fixed or pre-arranged times provided the mother meet the cost of those calls and that the calls do not extend for longer than 15 minutes and such additional alternate days or times as may be agreed between Ms ZM and Mr PC and Mrs HC.
5. That Ms Helena Martin, registered psychologist, be provided with a copy of these reasons by DoHS within seven days.
6. That the mother not physically chastise nor physically discipline the child while she is with her nor permit anyone else to do so.
7. That the mother and Mr PC and Mrs HC discuss any issues arising out of that contact and any other issues with Ms Mildwater in February 2011.
8. That whenever Ms ZM has contact with SMC in accordance with these orders, SMC is to remain in her full-time care and responsibility; further that no other person should be brought into contact with SMC other than with the prior agreement of Mr PC and Mrs HC.
9. When SMC concludes the first year of her high school, that Mr PC and Mrs HC, Mr NC, Ms ZM, together with any spouse or partner either of them may have at that time for the preceding twelve month period, attend with a registered psychologist to discuss:
i. The future parenting of SMC;
ii. The future schooling of SMC;
iii. The future contact between SMC and any other significant adult figures in her life.
10. That prior to such conference the parties or any of them release to the other details of any medical or psychological issues which might affect their capacity to either parent or have contact with SMC.
11. That the parties discuss what information should be released to SMC at the conclusion of that conference.CATCHWORDS: Appeal from consent orders - Parental responsibility - Parenting and care arrangements LEGISLATION CITED: Children and Young Persons (Care & Protection) Act 1998
Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005
Family Law Act 1975 (Cth)CASES CITED: Gianoutsos v Glykis [2006] NSWCCA 137; 162 A Crim R 64
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] ALR 334
Louise v Belinda [2009] NSWSC 534
M v M [1998] HCA 68
DoCS and Rochel Grant [2010] CLN 1PARTIES: Ms ZM
Department of Human Services (DoHS)
Ms HC and Mr PC
Mr NCFILE NUMBER(S): 10/1684 COUNSEL: Mr Herrald (for the Appellant)
Mr Anderson (First respondent)
Ms Lyndon (Second respondent)
Mr NC (Self-represented, Third respondent)
Ms Chandra (Independent Child's Legal Representative)
JUDGMENT
Issue
1 This is an appeal from consent orders approved in the Children’s Court on 25 November 2009 vesting parental responsibility for the child, SMC (born in 2005) in the Minister and then subsequently jointly in the Minister, the father (NC) and his parents (Mr PC and Ms HC), SMC’s paternal grandparents. The issues involved in the proceedings are effectively the parenting and care arrangements to be made for SMC for her future.
Procedural background
2 Final care orders were made on 25 November 2009 (Exhibit A: Tab 18). Those orders were made pursuant to a care application bought by DoHS pursuant to section 61 of the Children and Young Persons Care and Protection Act (NSW) 1998 (“the Act”). These orders were made following the preparation of a care plan referred to throughout these reasons.
3 Ms ZM, the appellant, has filed an appeal to the District Court seeking that parenting responsibility be restored to her. Pursuant to section 91 of the Act, these proceedings are considered to be a re-hearing. The application is brought as an appeal against orders made as a result of a care application made by the Minister rather than a rescission or variation application.
Leave
4 Leave is not required under s 91 of the Act, but leave was required under the Civil Procedure Act (NSW) 2005 because the appeal was commenced out of time. The appeal was filed about 20 days out of time due to the intervening Christmas period. That leave was granted in March 2010 pursuant to the Uniform Civil Procedure Rules (NSW) 2005 pt 50.17-50.20.
Family background
5 The evidence filed shows the following background details for the relevant family members and their circumstances:
The child
6 The child SMC (D.O.B. 2005) is aged five and a half. She currently resides with Mr PC and Mrs HC in a house in Narooma on the South Coast of NSW. She attends Narooma Primary School. SMC previously attended kindergarten in Narooma. It could be inferred that she has developed some familiarity with, and stability in, her current circumstances. It is also clear that she has a very good appreciation of her mother who is clearly an identifiable person to her.
7 All the evidence indicates that SMC is a well-behaved, bubbly, intelligent little girl who has reached appropriate milestones in her life. She has no physical or emotional disabilities nor special needs.
8 The mother’s evidence, as well as all other evidence, is that SMC is settled, happy, familiar and comfortable in the home of Mr PCand Mrs HC. She has obviously had a substantial familiarity with them and their home and environment.
The mother (appellant)
9 The mother, Ms ZM, was born in 1984 and is aged 26. Ms ZM resides in Queanbeyan in a two bedroom apartment and works as a receptionist / sales assistant. She proposes that if parental responsibility is vested in her that she remain living and working in Queanbeyan where she has established herself. She originally proposed that she would move to Narooma if her application was unsuccessful, but upon reflecting on this, agreed that it could be disruptive to SMC to see her mother around the community whilst not living with her. At the conclusion of the proceedings, the mother indicated that she would remain living in Queanbeyan.
The father (third respondent)
10 SMC’s father, Mr NC, was born in 1982 and is aged 28. Mr NC resides in Canberra and works as a television traffic co-ordinator. Mr NC attended Narooma High School where he obtained the H.S.C. SMC stays with her father at his home in Canberra for a whole weekend once monthly. He sees her almost fortnightly between visits to Narooma or, alternatively, when Mrs HC brings SMC to Canberra.
Relationship between the father and mother
11 Mr NC and Ms ZM commenced a relationship in about 2004. SMC was born in 2005 during a period in which they had separated. Mr NC and Ms ZM resumed cohabitation and then separated again when SMC was a few months old.
12 On 17 November 2005, terms of settlement were reached and approved under the Family Law Act (Cth) 1975 as consent orders of the Milton Local Court. The terms of settlement provided for SMC to reside with her mother and for the father to have defined contact with SMC, namely, for SMC to spend alternate Fridays to Tuesdays with Mr NC and to have additional holiday contact as agreed.
Paternal grandparents
13 The paternal grandparents, Ms HC (aged 59) and Mr PC (aged 58) were married in 1973 and presently live in Narooma. They are both healthy. SMC was placed in their care on 25 September 2009, giving them de-facto parenting responsibility while the Minister still had parental care for SMC. Prior to those orders, they had frequent contact with SMC including one six week period when Ms ZM was making transitional arrangements. Prior to that, Mr PC and Mrs HC had SMC living with them for four nights every second weekend from when she was about three months of age.
14 Mr PC and Mrs HC have two sons, one of whom is the father of the child in these proceedings, namely, the third respondent, Mr NC. The other son is JC who is 24 and resides in Canberra where he is attending university. By occupation Mr PC is a National Parks manager. Ms HC was a pharmacy assistant but is now the full-time carer of SMC.
Maternal grandparents
15 Ms HH (aged 47) is Ms ZM’s mother and is the maternal grandmother of SMC.
16 It is clear from the material provided and tendered during these proceedings that Ms ZM and Ms HH have had a somewhat volatile relationship. Exhibit D sets out some matters of email correspondence outlining the nature of their relationship. This correspondence does not give me confidence that Ms ZM would be able to necessarily avail herself of support from Ms HH on any consistent basis. It is also clear from the correspondence that SMC’s care, particularly in the context of Ms ZM’s relationship with Mr RM (outlined below), has been a primary subject of disagreement.
17 Mr DB(aged 58) is the maternal step-grandfather of SMC. Mr DB has been present in court for much of these court proceedings.
18 SMC’s maternal grandparents live in Burrill Lake on the South Coast of NSW and have had a long association with SMC.
Other figures in SMC’s life
19 In May 2008 Ms ZM commenced a relationship with Mr RM. They moved in together at Mollymook, with SMC, in about September 2008. They re-located to Canberra in June 2009 but separated on or after 5 September 2009 according to Ms ZM but possibly later given other evidence. They split up because of a “disagreement about little things” rather than any suspicion of the cause of injuries to SMC or reaction to her presentation, nor the events which had been reported by the hospital (outlined below). There is presently no relationship between them.
Relevant distances between SMC’s family
20 It takes two and a half to three hours to travel between Narooma and Queanbeyan by car. It takes one and a half hours to travel between Narooma and Burrill Lake (where Ms ZM’s parents live).
Changes in SMC’s life
21 When SMC was in Ms ZM’s care there were a substantial number of changes to SMC’s accommodation and other arrangements. These were detailed in the course of the evidence tendered and given during these proceedings.
Risk of harm: Observations of injuries to the child
22 In early 2009, Ms HC reported that SMC had a black eye, which she photographed. When she asked SMC about the bruising, SMC told her that Mr RM had caused the bruising.
23 The Department received several ‘risk of harm reports’ in relation to SMC from 7 June 2009 as follows:
(1) 7 June 2009 - SMC was present during a verbal dispute between Ms ZM and her mother, Ms HH.
(2) 2 and 5 August 2009 – it was reported that SMC had large bruising resembling finger marks on her bottom. SMC referred to her mother having smacked her.
(3) 11 August 2009 – SMC presented to Canberra Hospital with a 2cm laceration to her forehead. The wound required stitching. SMC had other facial bruising and swelling including a swollen lip and nose as well as bruising along her jaw and neck and abrasions to her chest and back. The account provided was that SMC had fallen.
The hospital report indicated that SMC would not answer when asked about the bruises on her body. When asked about the scratches, she said they came from a fight with the cat. Ms ZM referred to the bruising and marks on SMC’s belly as ‘finger-prints’.
An examination found that there was older bruising and abrasions that were consistent with non-accidental injuries. The report from the Canberra Hospital indicated that the injuries to SMC were inconsistent with the mechanism of injury provided.
(4) On 7 September 2009, the Bateman’s Bay Community Service Centre received a report that SMC had facial bruising, including a bruise on the cartilage of her left ear, a bruise behind her left ear, a large bruise on her right cheek, a bruise under her left eye and a bruise on her left cheek.
On 8 September 2009, SMC was examined by the Child at Risk Health Unit. Dr Bragg’s assessment indicated that SMC’s bruising may have been due to non-accidental injuries and that bruising on her neck were consistent with strangulation. The precise observation of Dr Bragg was (exhibit A – Tab 15) of a ‘strangulation injury’. When the marks were re-examined, Dr Bragg confirmed that the bruise marks resulted from pressure / or attempted strangulation (exhibit A – tab 16 at paragraph 65).
The ‘Risk of Harm’ reports received by the Department between 7 June 2009 and September 2009 were tendered through Ms Parsons (a DoHS manager). Those reports became Exhibit 6B (i.e. tab 6B to Exhibit A, Tab 6 - the affidavit of Ms El Chami-Batch sworn 3 September 2009.
Photographic evidence
24 The Police photographs of the injuries SMC suffered in 2009 were tendered through Ms Parsons and became exhibit B. Those were taken by Dr Bragg of the Child Risk Health Unit in Canberra.
25 Photos were taken by Ms HC and the injuries were extensively reported by the medical and professional staff attached to the Canberra Hospital.
26 No apparent medical reason could explain the injuries suffered by SMC. Dr Bragg made 2 reports considering the nature, intent and causes of the bruising.
27 SMC was assumed into care by the Department and placed into foster care where she remained until 25 September 2009. A referral was made to JIRT.
Criminal proceedings against Mr RM - assault
28 Mr RM was charged with aggravated assault. That matter was heard by Magistrate Van Zuylen at Queanbeyan Local Court over May – August 2010.
Descriptions given by SMC
29 During the assault proceedings against Mr RM, SMC gave evidence of various assaults by Mr RM on her including being held up by the ears by him and him attempting to place a pillow over her head. That had earlier been reported by her in her record of interview.
30 The bruising and injuries to SMC were consistent with SMC’s disclosures regarding Mr RM and his actions towards her. SMC told Mr and Mrs HC, when they inquired as to her bruising, that Mr RM ‘elbowed’ her when she was naughty.
31 In the criminal proceedings before Magistrate Van Zuylen, SMC stated that the incident that lead to her having the lacerations on her forehead arose from RM having pushed her over (see exhibit F, 12 May 2010, p.7) and that she had told her mother about it. Further, during her evidence, she stated that RM had picked her up by the ears (exhibit F, 12 May 2010, p. 16) and held her up in the air. That caused her a lot of pain.
Evidence of SMC of attempted suffocation / strangulation
32 In the course of her record of interview with Detective Sergeant Samantha Harrison at the Canberra Hospital on 27 October 2009 (exhibit L), SMC confirmed not only that the dark spots on her ears came about by Mr RM ‘picking me up by my ears’ (p. 5) but also stated that he hurt her in other ways (at p.6):
‘and even when I say goodnight and give him a cuddle, he squeezes me and he chokes me… in the middle of the night… he squeezes my neck.’
33 SMC also said that ‘RM put me on my bed after picking me up by my ears’ and tried to hurt her by ‘not making me breathe’. He did that by putting ‘the pillow over my head and… squeezed it down’ (exhibit L, p. 8). Further, SMC stated that Mr RM tried to choke her when she was at the farm in her room and put his hands around her throat. She couldn’t breathe and ‘he said he was going to kill me’ (exhibit L, p. 10).
34 Against that background, Magistrate Van Zuylen found that the injuries SMC suffered were not the result of an accident but that he could not find beyond reasonable doubt that Mr RM inflicted the injuries.
35 Mr RM’s evidence is set out in the relevant exhibits.
AVO
36 Ms ZM indicated that she had seen some of the bruising but that she believed the injuries were accidental. However, an AVO was subsequently taken out against Mr RM to protect SMC.
37 DoHS carers and other responsible officers took the view that the cause of the incidents of abuse were not established. Further, that there had been no real or effective acknowledgement by Ms ZM that the incidents had occurred when SMC was under her care.
38 When SMC was asked about various bruising and scratches, she said that those had occurred after there was an altercation with a cat. She gave an account of a scar on her arm arising from a fall out of a tree but would not answer hospital staff questions about bruising to her face and ears. The bruising was of particular concern to the interviewing doctor, Doctor Bragg (see affidavit of Robyn Scott, caseworker, 17 September 2009, paragraphs 36 and 37). There was also the interview conducted by Detective Sergeant Samantha Harrison who asked SMC “If anyone did something to hurt you would you tell someone?” After initially not answering, SMC responded “No.” SMC was further pressed as to why she wouldn’t tell someone and replied “Because I don’t want to get into trouble.”
39 Those responses need to be viewed with reference to the accounts given by Ms HH and Ms HC. Ms HC said that on occasion SMC was terrified about returning to the home of Ms ZM when Mr RM was present. Ms HC gave one account of SMC not wishing to return to her mother when Mr RM was present.
Care of child following reports to DoHS
40 DoHS removed SMC from her mother’s care and placed her into departmental foster care from 7 – 25 September 2009. During this time, SMC had supervised contact with her maternal and paternal relatives.
41 A Kinship Carer Assessment was carried out by Departmental caseworkers on 23 September 2009, following which it was recommended that SMC be placed with Mr PC and Mrs HC. On 25 September 2009, SMC was placed with her paternal grandparents. She has remained in their care ever since. Ms ZM had supervised contact with SMC monthly for two hours at Queanbeyan Community Service Centre. That was arranged on DoHS’ view that there had been no acknowledgement by the mother that the injuries suffered by SMC occurred whilst SMC was in her care.
2009 Children’s Court orders: Care Plan
42 A Care Plan was prepared and signed by the parties on or after 23 November 2009. Mr PC and Ms HC as well as the father, Mr NC agreed with the care plan. Ms ZM signed the plan but with the qualification that she did not agree with the proposals contained in it. Ms Jacqueline Parsons of DoHS indicated that the care plan meeting was an emotionally stressful experience for the mother. Ms ZM’s mother, Ms HH, also signed the plan but did not agree to it.
43 The Children’s Court Orders were made following that care plan on 25 November 2009. They provided for SMC to remain with PC and HC (under the care of the Minister) until November 2010, during which time, Ms ZM would have two-hours supervised contact with SMC monthly.
Counselling
44 SMC was referred to Ms Sharon Mildwater, a child protection social worker from the Narooma Community Health Centre for counselling and to assist SMC in the transition to her care arrangements, whatever they may be.
Evidence adduced at District Court Appeal Proceedings
45 Pursuant to section 91(2) and (3) of the Act, fresh, additional and updating evidence was filed. The effect of this evidence is set out below.
46 These proceedings are essentially a rehearing with fresh evidence – see Gianoutsos v Glykis [2006] NSWCCA 137; 162 A Crim R 64.
47 Given the seriousness of the issues raised – particularly the issues of abuse on SMC, the relevant standard of proof, as stated in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] ALR 334 is clear and cogent proof of serious allegations.
Ms Jacqueline Parsons – DoHS Manager
48 Ms Jacqueline Parsons gave evidence at the hearing on 28 September 2010 in amplification of her affidavits of 18 May and 4 June 2010. Ms Parsons is the overall manager with responsibility for the unit and has overseen the caseworkers who have worked on this matter.
Clinician’s report – DoHS response
49 A clinician’s report was prepared by Ms Buckingham (Exhibit A – tab 29: see below). DoHS, through Ms Parsons, has considered and accepts that report.
50 Ms Parsons said that the Department’s view was that supervised contact should increase overtime but, in the absence of an explanation or acceptance of responsibility for SMC’s injuries and bruising (particularly the bruising to her bottom which SMC attributed to her mother having smacked her), supervised contact was in the best interests of the child. DoHS proposes that, over time, as SMC grows older and can express herself better, unsupervised contact could be phased in.
51 Ms Parsons indicated that DoHS proposed that their involvement be phased out such that after 24 November 2010, the Department would only be involved in the capacity of providing financial assistance and out-of-home care assistance to the paternal grandparents. Effectively, however, DoHS would no longer have parental responsibility in any capacity. DoHS is of the view that contact between SMC and her mother could be negotiated between the mother and SMC’s father and paternal grandparents.
52 Ms Parsons acknowledged that it was the view of all four grandparents and the father that DoHS should not participate after November 2010. However, Mr Anderson of counsel for DoHS has confirmed that the Department will continue to make services available as part of “Out of Home Care” arrangements.
DoHS proposals as to the frequency of contact between SMC and her mother
53 Ms Parsons said that the position of the DoHS on contact was that contact between SMC and her mother should take place once per month. That proposal was regarded as being far more frequent that the normal arrangements DoHS fosters in its policy on contact between a child in care and their natural birth parents - which is one of 4 – 6 times per year. Ms Parsons indicated that that limited level of frequency of contact is done to ensure that child maintains an awareness of who their natural parent is, but to ensure stable arrangements for the child involved and to avoid unnecessary disruption to established care patterns and arrangements.
54 In my view, that limited contact is inappropriate in this case. The contact between mother and daughter should be expanded to maintain an adequate and ideal relationship between SMC and her mother – particularly given the history of care and contact which has already been in place throughout the child’s placement with the paternal grandparents and her awareness of her mother.
Ms Sharon Mildwater – Child Protection Social Worker
55 Ms Sharon Mildwater, a child protection social worker from Narooma Community Health Centre of the Department of Health gave evidence on 29 September 2010. Ms Mildwater has provided counselling services for SMC upon referral by DoHS caseworkers. Ms Mildwater was engaged to supply support to both SMC and the C’s for the transitional arrangements.
56 Ms Mildwater indicated in her evidence that she is supportive of SMC transitioning into the full-time care of Mr PC and Mrs HC. Ms Mildwater indicated that she would be willing to continue assisting Ms HC and SMC with those transitional arrangements.
57 In a report dated 8 April 2010 (exhibit A tab 29B), Ms Mildwater stated that there had been requests for assistance by Mr PC and Mrs HC in terms of managing behavioural difficulties exhibited by SMC when she came to live with them in the September. Those symptoms included ‘disregulation, disassociation, aggression and secondary night-time enuresis (bedwetting)’. Those behaviours are common to children who have experienced trauma. But the disregulation and nighttime bedwetting could also be associated with separation from a natural parent. Ms Mildwater also noted in that report that SMC was experiencing sadness about her removal from her mother’s care.
58 Ms Mildwater indicated in cross-examination by Ms Lyndon that SMC is settled in her present home and schooling environment. Ms Mildwater also agreed with Ms Lyndon’s proposition that the behavioural problems exhibited by SMC have reduced significantly. She appears to have relied on recent conversations to that effect with Ms HC in coming to that view.
59 In relation to the issue of increased contact between SMC and her natural mother, Ms Mildwater stated that the purpose of contact is to repair and maintain the relationship between the parent and child. The proposed frequency of contact is based on the individual needs of the child with reference to their age and the impact contact has on them. Ms Mildwater stated that SMC has indicated that she missed her mother and likes having contact with her. However, for Ms Mildwater, this has to be balanced against the impact such contact has on SMC’s day-to-day life and her relationship with her grandparents – and inferentially the disruption that the contact may have to these elements of her life. Ms Mildwater recommended monthly contact for a period of four hours, to be reviewed as SMC matures and her needs change.
60 In cross-examination by Mr Herrald, Ms Mildwater maintained the 4-hourly contact monthly would be appropriate with the view to SMC to her mother. Ms Mildwater indicated that she has not seen intense grief in SMC arising from the separation from her mother and that she has encouraged Ms HC to assist SMC’s expressions of emotion in regards to missing her mother.
61 Ms Mildwater did concede that she has not been able to have a session with Ms ZM or observe and assess her interaction with SMC and further, that she has not had contact with SMC since May 2010. In cross-examination by Mr Herrald, Ms Mildwater agreed that she accepted the referral on the basis of information provided by DoHS, that Mr PC and Mrs HC would provide ongoing care for SMC, and also told the Court that she had not been told of any prospects of restoration of the child to her mother.
62 Ms Mildwater is of the view that it would be preferable that Ms ZM undertake individual counselling to develop her ‘attunement’ with her child and learn behaviours that she can undertake to strengthen her relationship with SMC.
63 Ms Mildwater stated in her evidence that she will be available to provide ongoing counselling, including practical sessions, to allow SMC the opportunity to deal with the issues arising from her childhood experiences so far as well as to provide Mr PC and Mrs HC as well as Ms ZM assistance into the future, arising out of transition or any other arrangements.
Ms Janette Buckingham – Children’s Court Clinician
64 Ms Buckingham, a registered psychologist and experienced Children’s Court Clinician, prepared a detailed report which is dated 4 August 2010 (exhibit A, Tab 30). That report details her assessment of Ms ZM, Ms HH, SMC and incidents relevant to these proceedings.
65 The report relates the account given by Ms ZM of the violence committed upon Ms HH by Ms ZM’s father, including a vicious assault with a baseball bat. The report relates Ms HH’s multiple suicide attempts and the fact that Ms ZM endured a threatening and abusive childhood. Her brother in fact found her mother attempting to gas herself. This was clearly a distressing upbringing and a traumatising environment (see report, page 12). Ms Buckingham states that Ms ZM coped with this in many ways by absenting herself from situations of violence to block out the traumatic nature of the events she and her brother witnessed.
66 Both the report of Ms Buckingham and an ancillary report of Ms Mildwater dated 8 April 2010 (exhibit A, tab 29B) make it clear that SMC is experiencing sadness and confusion about her removal from Ms ZM’s care.
67 Those reports also confirm that SMC has settled well with Mr PC and Mrs HC and although she misses her mother, she is extremely happy living with them. There is no evidence to the contrary. SMC has clearly gained a sense of security and belonging from the knowledge that she can remain living with Mr PC and Mrs HC. Mrs HC continues to lack trust in Ms ZM’s parenting abilities, essentially because of Ms ZM’s own unfortunate upbringing and the cycle of abuse she experienced in her own family.
68 The report notes that Mr PC and Mrs HC and NC are confident that there will be no further need for Ms ZM’s contact with SMC to be supervised once the matter has been resolved in court and any remaining adult antagonism dies down.
69 To the extent that these orders can provide for arrangements into the future, Ms Buckingham notes that Mr PC and Mrs HC are only proposing to care for SMC for the next six to seven years when they will be in their mid-sixties. At that stage, SMC will be aged about 13 and at the end of either her primary schooling or after her first year of high school. Depending on her maturity and stage of development, her wishes as to her future, particularly her schooling and accommodation, will be of greater importance than is the case now.
Ms Helena Martin - Psychologist
70 Ms Martin is a registered psychologist who has had three counselling sessions with Ms ZM which have amounted to approximately a five hour period of overall contact with her. A further three sessions are proposed.
71 Ms Martin provided a report dated 27 September 2010 (exhibit H). Her experience and background is particularly in the context of child protection. Ms Martin’s report was predicated on her strongly held belief that a child belongs with natural parents. That view was also influenced by her view that Ms ZM had not been afforded that opportunity.
Ms ZM - Appellant
72 Ms ZM did not provide any affidavit evidence over the period since the matter has been in the court system from March 2010 notwithstanding the provisions of rule 50.20 of the UCPR. As the parties had all travelled to Sydney and given the relative urgency of the matter, the hearing proceeded. Ms ZM gave oral evidence over 2 days. She clearly took a number of measures to prepare herself for the hearing.
73 Ms ZM presented as an intelligent, confident and articulate young woman.
74 It is clear from the material handed up in these proceedings that Ms ZM has had exposure to significant incidents of domestic and personal violence during her own childhood. She left home in her mid-teens (probably when she was about 15) and lived for 6 months at a youth refuge. Her brother also left the family home and went to live with an uncle. It is clear from the clinician’s report that Ms HH was suffering from mental illness or other related conditions at that time and on some occasions attempted to commit suicide. Ms ZM stated that on one occasion, her brother had found Ms HH after she had tried to ‘gas herself’. Ms ZM agreed that her relationship with her mother was one that ‘always has its moments - sometimes we get on, sometimes we do not.’
Proposed arrangements
75 Ms ZM made a number of arrangements for the care of SMC should SMC be restored to her or should she be granted extended periods of contact with her. Those arrangements include renting out a two-bedroom flat – SMC’s bedding and belongings have been placed in one of those rooms. She has also taken steps to enrol SMC in the West-Queanbeyan Primary School and secure a placement for her there.
76 The present contact arrangements between SMC and Ms ZM take place in the DoHS office at Queanbeyan in the presence of a Department officer. There would clearly be some artificiality in those arrangements. Ms ZM has also had to cope with a restriction DoHS officers have put on her from having telephone contact with SMC. DoHS officers also apparently denied Ms ZM contact with SMC on Mothers day and on her birthday – absences which have been felt keenly by Ms ZM.
77 Ms ZM presently has relatively frequent contact with her mother and step-father at Burrill Lake. During her evidence Ms ZM also stated that she and Mrs HC have worked together in an amicable manner to support SMC, the most recent example of which was during the court proceedings against Mr RM. Ms ZM’s evidence is that there is no reason why such arrangements cannot continue.
Contact proposal
78 Ms ZM was asked about SMC’s contact with her paternal grandparents in the event that SMC was restored to her care. She stated that she would consider it ideal for the arrangement to go back to what it was before, namely for Mr PC and Mrs HC to have SMC every second weekend but between a Saturday and Sunday rather than between a Friday and a Tuesday.
Ms ZM’s evidence as to allegations of abuse
79 In regards to the ‘Risk of Harm’ incident reports, Ms ZM gave evidence about the conflict between her and her mother that was witnessed, at least in part, by SMC. On that occasion, Ms ZM called the Police to her mother’s residence as Ms HH had refused to give back SMC or the keys to Ms ZM’s car. That dispute between Ms ZM and her mother lasted, on Ms ZM’s evidence, for about an hour and part of it was witnessed by SMC.
80 In regards to the bruising on SMC’s bottom in the shape of a hand-print, Ms ZM stated that she knew that SMC had a bruise on her bottom, but not that it looked like a hand-print. Ms ZM gave evidence that she used behavioural techniques to discipline SMC, for example, withdrawing the promise of rewarding activities if SMC behaved inappropriately. Ms ZM stated that she had, on rare occasions, physically chastised SMC, but that she had never used sufficient force to leave a bruise.
81 In regards to the abuse alleged against Mr RM, Ms ZM expressed her surprise that SMC had not mentioned the incidents to her. However, Ms ZM stated that SMC later told her that Mr RM had told SMC that if she told her mother about the abuse, he would hurt her.
82 Ms ZM also gave an account of SMC being taken to Canberra hospital with lacerations to her forehead and bruising around her face and neck on 11 August 2009. Ms ZM gave evidence that RM was outside in the carport of his home with SMC getting ready to go out whilst she was inside. Ms ZM observed SMC coming inside with a lot of blood on her forehead and dirt in the wound. Ms ZM stated that SMC was put in the shower to clean the wound before taking SMC to Canberra hospital. Mr RM gave an account to both Ms ZM and hospital staff that SMC had been running around the carport and slipped in the gravel. That account was consistent with the account SMC gave Ms ZM at the time of the incident.
83 In respect to the hospital notes that mention the fall from a 20cm wooden step, Ms ZM stated that Mr RM was not sure if SMC had lacerated her forehead on the gravel or on the wooden skirting beam. Ms ZM had indicated the height of the beam to hospital staff.
84 During the criminal proceedings against Mr RM, SMC gave evidence that Mr RM had pushed her over at the car park.
85 Ms ZM said that she was not aware of any old bruising and no-one had informed her of such at the hospital. Ms ZM had pointed out to hospital staff other marks on SMC’s body, including a red mark on her chest and grazing.
86 Ms ZM said in her evidence during these proceedings that it was very rare that RM was alone with SMC. In cross-examination, it became clear that that evidence, if correct, inferentially implies that occasions of violence either occurred on those rare occasions, alternatively, when Ms ZM was present or, alternatively, were perpetrated by other people.
Counselling
87 It is to Ms ZM’s credit that she has undertaken counselling with a psychologist, Ms Helena Martin, in Queanbeyan. Ms ZM indicated that she sought counselling for the purpose of obtaining insight into her failure to observe the injuries that were being inflicted upon SMC. In particular, Ms ZM wanted to ascertain if her neglect in this regard related to matters from her childhood and whether her father’s abuse towards her mother had de-sensitised her to incidents which may otherwise have alarmed her. In her evidence on this point, Ms ZM stated that she would be ‘hyper-vigilant’ if SMC was returned to her care.
Attitude to mediation and future counselling
88 One of the issues of concern is the part Ms ZM will play in SMC’s life and in aspects of her upbringing in the event that Mr PC and Mrs HC retain the parental responsibility of SMC. Ms ZM initially said that she would move to Narooma if her application is unsuccessful, although, upon reflecting on that, agreed that that would be disruptive to SMC and said that she would remain in Queanbeyan.
89 Ms ZM said that she did not recall any offer of mediation through DoHS. The proposal that she should meet with Ms Mildwater took place in circumstances where Ms ZM was told by DoHS workers that she could not ask questions about how SMC was getting on. Ms ZM expressed her objection to this and in light of this fact, I do not believe Ms ZM’s failure to meet with Ms Mildwater should be viewed adversely to the appellant.
Relationship between Ms ZM and Ms HC
90 When Ms HC rang Ms ZM inquiring about SMC’s bruising, Ms ZM responded with an aggressive and inappropriate response via text message. In her own words, she was being ‘defensive’. The effect of that text was to deny any suggestion or insinuation that SMC had been mistreated under her care.
91 Ms ZM accepted that her response had been inappropriate and, in cross-examination, stated that she was not critical of the care the C’s provide to SMC. Ms ZM agreed that HC and PC have always had a close relationship with SMC. She also agreed that in the event that SMC was not to be restored to her, it was her wish that SMC stay living with the C’s.
92 That is consistent with the past history whereby, on occasions, Ms ZM arranged for SM to stay with the C’s for 6 weeks in mid 2009.
Mr NC – Third Respondent
93 Mr NC has provided statements and gave evidence on 1 October 2010.
94 Mr NC relied in the most part on the evidence in his affidavits/statements.
95 Mr NC presented as an intelligent young man. Subject to one area outlined below, I found him to be a most credible witness. He described SMC as a bubbly little girl who is fun to be around, a ‘really good kid’. His ambition for his daughter is for SMC to grow up happy, healthy and safe. He is in a long-term relationship with Ms KS who also works for the same media group. Ms KS has had contact with SMC however, upon DoHS’ recommendation, this has not been for significant periods of time and Ms KS does not stay at Mr NC’s apartment when SMC spends the weekend with her father.
96 NC described himself as a ‘sporty’ person who plays tennis and ‘footbag’ in which he is the Australian champion. He has introduced SMC to tennis. His parents also play tennis. He plays with SMC at a court in his complex in Belconnen and also in Narooma. He has also been significantly involved in SMC’s upbringing in terms of her education – reading her weekly readers and other books with her.
97 Mr NC described his relationship with SMC’s mother as basically non-existent but states that he tries to be amicable with Ms ZM and in this regard is always going to act in SMC’s best interest. He said that if that means restoring a relationship with Ms ZM, he will do that.
98 In terms of the injuries suffered SMC, Mr NC gave evidence that he noticed bruising to SMC after picking her up from Belconnen shops from Ms ZM and Mr RM. He noticed bruising to her face. He texted Ms ZM to inquire how the injuries occurred. Ms ZM apparently called him and said that the bruising was a mystery but that one looked like a ‘cartoon’ mark and she suspected the cat may have done it. Other than asking Ms ZM how the bruises occurred, Mr NC conceded that he didn’t follow up on the matter any further, save for asking SMC how she got the bruises, to which SMC replied she didn’t want to talk about it. Mr NC was cross-examined on this issue and stated that he found her refusal to discuss the bruising with him ‘suspicious’. He agreed that he did not pursue this any further in terms of seeking medical treatment for her himself. These responses give me some concern in terms of his (then) priorities in terms of not taking SMC for medical attention regardless of the cause of, or responsibility for, her injuries.
99 Mr NC was also cross-examined by Mr Herrald about the fact that when she was examined at Canberra Hospital, old bruising was noticed. Mr NC conceded that he had SMC for the weekends immediately preceding these observations. Mr NC stated that he could not recall seeing any bruising on SMC on those occasions and that he could not recall texting Ms ZM in relation to queries about any bruising to SMC on these weekends.
Ms HC– Second Respondent
100 Ms HC provided a statement made 15 October 2009 and gave evidence at the District Court proceedings. It is clear that Mr PC and Mrs HC have had a long relationship with SMC which has been to her benefit. They have stood in the role of parents over different periods of time prior to September 2009 and totally for the last twelve months. There is no evidence other than that their involvement has been beneficial to SMC and that it is likely to continue to be so.
101 From the commencement of proceedings, the paternal grandparents made clear that it is their position that Ms ZM’s contact with SMC should be supervised. That position has now changed and they agree to unsupervised contact. Subject to feedback from Ms Mildwater as to the effect of the contact, the progress of SMC’s relationship with her mother and the impact of the contact on SMC, the frequency of that contact could, and in my view, should, increase to unsupervised contact.
102 In her evidence on 1 October 2010, Ms HC expressed an attitude to contact which is consistent with the contact proposals I have outlined in the orders below.
Ms HH
103 Ms HH provided one affidavit dated 22 March 2010 and gave evidence on 1 October 2010.
104 Ms HH has been having SMC stay at her house every second weekend over the last year. Ms HH gave evidence about her relationship with her daughter, including the exchange of emails with Ms ZM. She wants to maintain a relationship with SMC but there are currently some difficulties with Ms HC – which may resolve over time – and there is a volatility in her relationship with Ms ZM.
Law
105 The relevant provisions of the Act are addressed in my conclusion and findings set out below.
106 Counsel for the Department, Mr Anderson, relies on the comments of Justice Forster in Louise v Belinda [2009] NSWSC 534 at [53] – [55]:
53 While in an ideal world, it may well be best for a child to be cared for by his or her natural parents, in my opinion, that submission states the role of section 9(d) too broadly. As I see it, section 9(d) is not intended to promote either living with natural parents or living with carers. Absent considerations to the contrary, it promotes stability, absence of change and the maintenance of the status quo.
54 In my opinion, the section is ambulatory. In the case of a care application made under section 60 of the Act, it has the effect of requiring the court to be reluctant to remove a child from its natural parents unless there is a compelling reason to do so. On the other hand, where an application is made not under section 60, but under section 90, for the rescission or variation of a care order, the sub-section has a different effect. In that case, the least intrusive form of intervention would normally mean not interfering with existing care arrangements. Needless to say, the force of the requirement imposed by section 9(d) will vary from case to case, and a court will undoubtedly have regard inter alia to the strength of the respective bonds that a child may have with his or her natural parents and his or her foster carers.
55 In the present case, his Honour failed to apply the principles required to be applied by section 9(d) of the Act, to which section he makes no reference in his judgment, either expressly or by inference. Instead, his Honour appears to have discounted the significance of the length of time during which the Children were in the care of the Foster Mother by attributing part of that period to delays in the court system, stressing that such delays were not the fault of the Mother. That misses the point. It is not a question of fault on the part of the Mother, nor does it matter why the period was as long as it was. What matters (at least in this particular respect) is the length of the period as a fact. Here it was over three years.
Submissions
DoHS
107 DoHS as well as Mr NC and Mr PC and Mrs HC support the retention of parenting responsibility by Mr PC and Mrs HC jointly with Mr NC with the following contact arrangements detailed below.
Parenting responsibility and contact
108 DoHS submits that SMC should remain in permanent residence with Mr PC and Mrs HC with them having the parental responsibility, with Mr NC, for her. Mr Lyndon for Mr PC and Mrs HC concedes that, in at least the Family Law jurisdiction, there are acknowledged problems with multi-party parental responsibility. However, DoHS submits strongly that there should be a sharing of parental responsibility between Mr PC and Mrs HC and Mr NC.
109 DoHS proposes that there should be contact with the father, Mr NC:
- Every second weekend
Contact with her maternal grandparents, Ms HH and Mr DB
Contact with the mother, Ms ZM
DoHS involvement would effectively cease after a 12 month period which expires 24 November 2010. From that point, should SMC remain with Mr PC and Mrs HC. DoHS indicate that they will continue to provide financial support and out-of-home care.
Mother’s submissions – Ms ZM
110 The mother through her counsel urges the return of the child to her in accordance with the consent orders originally made under the Family Law Act.
111 The mother’s case proceeded on the basis that there was no evidence establishing Ms ZM’s connection to the injuries apparently suffered by SMC. Additionally, although numerous concerned family members reported incidents of bruising to SMC, explanations have been provided – for example, SMC falling over on gravel etc.
112 These reasons were not accepted by DoHS and that led to actions being taken by DoHS which, on the mother’s case, were inappropriate and unjustified.
113 Mr Herrald submits that Ms ZM has been unfairly prejudiced in that events have proceeded which have interfered with her parenting of SMC and have prevented Ms ZM from establishing that she is a proper person to care for SMC into the future.
The Independent Child’s legal representative
114 Ms Chandra is the independent child’s legal representative who has acted in these proceedings on behalf of SMC. Ms Chandra supports the retention of SMC’s parental responsibility with Mr PC and Mrs HC with increased contact to Ms ZM including telephone contact and the retention of the current contact arrangement with Mr NC. Ms Chandra submits that, with certain qualifications, the parental responsibility be shared long term between Mr PC and Mrs HC and NC.
Written submissions
115 Written submissions were forwarded by Mr Anderson, counsel for DoHS (exhibit Q) and amplified by Ms Kress, his instructing solicitor, in court on 5 October 2010 as well as by Mr NC (exhibit P), Ms Lyndon, solicitor for Mr PC and Mrs HC (exhibit M), Ms Chandra, the independent child’s lawyer (exhibit O) and Mr Herrald, solicitor for Ms ZM (exhibit N). I have taken those submissions into account and the evidence on which those various submissions are based.
Consideration
116 Whatever the situation, I have to deal with the arrangements for SMC as they have unfolded over the last 12 months, during which time there has been an established, effective and stable regime for SMC.
117 Clearly the safety, welfare and well-being of SMC is the paramount consideration pursuant to section 9(1) of the Act.
118 The Clinician’s report which is dealt with elsewhere in these reasons referred to Mr PC and Mrs HC being able to care for SMC for the next six or seven years. Mrs HC confirmed in her evidence that she and her husband are prepared to care for SMC beyond that period to the extent circumstances can be predicted. I note that at that stage they will be in their mid-sixties and having to provide for a girl who will then be aged 13 and on the cusp of being a teenager with all the changes that that brings.
119 I am also required to consider the least intrusive intervention in SMC’s life consistent with the paramount concern to ensure her safety, to protect her from harm and to prompt her development - see section 9(2)(c) of the Act.
120 There is a specific requirement to make an early decision about the permanent placement of SMC which is the reason why these orders will be made as quickly as possible after the hearing. Further, orders will be made for the early commencement of the new contact arrangements to reflect the current situation as I have found it to be and the capacities and needs of the relevant parties.
121 Given the ages of the paternal grandparents and the wishes of Mr PC and Mrs HC to be involved in SMC’s care over the next six to seven years or longer if so required, it seems to me to be in SMC’s best interest that she remains with them in the environment and relationships that she has established in Narooma for that period. However, she should maintain close contact with her mother on the structured basis that is set out in these orders.
122 At the conclusion of SMC’s first year in high school, there should be a conference of all the interested parties including any significant adults in SMC’s life at that time. In the case of both NC and Ms ZM, that should include any persons with whom each of them have had a permanent relationship with for at least 12 months at that time.
123 SMC’s wishes at that time can then be taken into account in the course of a structured conference including all the people who have had a real and significant input into her upbringing over the intervening years.
SMC’s care by Mr PC and Mrs HC
124 Mr PC and Mrs HC have had a long and extensive history of care for SMC – having frequent contact with her from the age of three months and effectively having full-time custody of SMC since September 2009. Those arrangements appear to have been for SMC’s benefit. Mr PC and Mrs HC appear to have acted in a manner that has been in SMC’s best interests. All the evidence is that SMC has thrived in this environment. The mother acknowledges that SMC has a strong bond with Mr PC and Mrs HC.
125 In that time, it is clear that Mr PC and Mrs HC have provided a loving and stable family environment for SMC. She is familiar with, and comfortable in, the Narooma environment. Mr PC and Mrs HC also facilitate contact between SMC and her father, Mr NC, who visits SMC at Narooma from time to time and who has SMC stay at his home in Canberra on a monthly basis. Mr PC and Mrs HC have also facilitated contact between SMC and her mother and are happy to continue that. However, they have concerns about how that will be co-ordinated or increased in the absence of clear orders to instruct that contact.
Incidents of abuse
126 Clearly SMC displayed marks on her bottom consistent with being slapped. These were independently observed. Ms ZM denied that she ever hit SMC to any extent sufficient to leave bruises. That was not the case here and Ms ZM’s denials should be viewed in light of the fact that there clearly were marks evident to others. That incident and the bruises would not of themselves warrant the child being removed from her care.
127 However, the other incidents and marks left on SMC are, very clearly, of a different nature. The bruising and marks to SMC’s ears and throat as well as other areas of her body were serious, extensive and obviously caused over a long period of time. It is clear that SMC suffered injuries which were of significance such that they were at least of concern to the health professionals at the Canberra Hospital and others who completed the Risk of Harm Reports. Bruising and lacerations to the face, neck and abdomen were highly suggestive of injury inflicted with significant pain. SMC’s injuries were independently noted by staff at Canberra Hospital as well as others. It is of obvious and continuing concern that Ms ZM did not observe or act on those injuries.
128 Ms ZM was in a personal relationship with Mr RM when injuries were suffered by SMC. Whilst there is no final identification as to who, or what, was responsible for those injuries, they undoubtedly would have had a significant impact on SMC. I accept that she voiced the fears and concerns she did and over the period of time that she did. I also accept that Ms ZM has witnessed and experienced traumatising events throughout her upbringing, being the recipient or at least observer of abuse as a result of her mother’s relationship with her father.
129 It is difficult to accept Ms ZM’s denial that she knew there were problems with SMC after the weekend of 5/6 September 2009 or that her observations of SMC’s physical condition was limited to a scratch on her nose and minor bruising on the right side of her face. Ms ZM must have been aware of the concerns expressed by the medical and professional staff attached to the Canberra Hospital especially Dr Bragg. The observations of her mother (affidavit exhibit A-11), Mrs HC (affidavit exhibit A-13) and NC (affidavit A-14) were to the same effect.
130 I do not accept that SMC was never left with Mr RM other than when Ms ZM went for job interviews. I note that Mr RM was unemployed for part of the relevant period and at that time Ms ZM was working. SMC also gave an account during her interview of being left alone with Mr RM.
131 Another area of concern to me arises from the fact that Ms ZM was offered the opportunity to look at the photographs of the injuries suffered by SMC but declined to observe them. Her evidence in Court on 29 September 2010 was that she did not refuse that opportunity out of denial but that she would prefer to have some discussions with SMC about the incident before inspecting those photographs. I do not accept that explanation in circumstances where there is other evidence where Ms ZM stated ‘I haven’t seen the photos and I hope I never have to.’
132 Ms ZM also accepts that had there been more pressure applied of the kind that was clearly applied to SMC in terms of pressing a pillow over her face, SMC may well have died. Of particular concern are those marks which were observed to be consistent with attempted strangulation.
Ms ZM’s relationship with Mr RM
133 To the extent that the subsequent record of contact between Ms ZM and Mr RM is of relevance, it is clear that the relationship was one of some volatility and that Ms ZM continued in it. Of primary importance, however, is that Ms ZM failed to take any real responsibility for the injuries SMC received. However, I should emphasise that I have not heard from Mr RM and all I have is the transcript of the proceedings before the Local Court Magistrate in Queanbeyan in relation to the aggravated assault charges brought against him. He was acquitted on those charges although His Honour did find beyond reasonable doubt that the injuries suffered by SMC were not accidental. It was the responsibility for those incidents which could not be established.
134 Either Ms ZM must have been suspicious about the extent of the bruising and other marks on SMC or she did not examine or care for SMC closely enough. Either way, her actions or inaction is of particular concern.
135 However, I do not think that Ms ZM can be criticised for her actions thereafter. To the extent she has been permitted, she has pursued her contact opportunities to see SMC. There were extensive restrictions on her contact being limited as it was to supervised contact in artificial surroundings. She has also pursued her case to recover SMC and has established herself in terms of accommodation and employment such that she would be able to care for her in the future.
Unacceptable risk
136 Ms ZM asserts that she will protect SMC from abuse from any future partner. There has been no contact between Ms ZM and Mr RM since September 2009. There is an AVO in place to protect SMC from Mr RM. I do not accept that the overheard voices during the telephone call commented on by Ms HH were indicative of a continuing relationship at that time.
137 Provided:
(a) that AVO or equivalent remains in place;
(b) no person other than Ms ZM is responsible for SMC’s care while she is with Ms ZM;
(c) Ms ZM continues to have counselling as provided;
(d) SMC is returned to Mr PC and Mrs HC at the conclusion of any contact; and
(e) contact is staged in the manner set out in these orders
I do not think there is an unacceptable risk of harm to SMC in the contact I propose.
SMC’s future
138 SMC’s mother, father and her maternal and paternal grandparents clearly love SMC. The ultimate issue for me to determine, however, is who will be the best carer(s) for SMC for the remaining years of her childhood.
139 The focus of the hearing has been, in many respects, on the issues of abuse to SMC, when it occurred, the extent of it, by whom it was observed and what actions were taken by SMC’s respective parents and grandparents to redress the injuries and identify the cause of them. While these are important issues, of at least equal importance is the part Ms ZM is to play or should play in SMC’s future life.
Care of SMC by her mother
Concerns regarding care by the mother
140 My concern after reviewing all the evidence, in particular the clinician’s report, the psychologist’s report of Ms Helena Martin and observing Ms ZM give her evidence, is that Ms ZM may well have a tendency to shut out unpleasant situations with which she is confronted and not deal with them. Whether this arises from her past experiences as a child, being conscious of, and an observer at the very least, of the assaults her father perpetrated against her mother and her mother’s subsequent alcohol and mental health problems, is a matter of conjecture. Nevertheless, the situation is that there may well be a risk that a child in her care full-time may be exposed to circumstances of violence and that Ms ZM would not recognise nor redress that problem. That risk would be minimised if SMC was seen by others either during or immediately after contact and those others knew her and the situation and people she saw during those periods of contact.
141 I also have significant concerns about Ms ZM’s capacity to care for SMC full-time given her failure to provide any explanation as to the red marks SMC suffered which SMC attributed to her mother having smacked her. In the same way, I have reservations about the mother’s conduct in leaving SMC with Mr PC and Mrs HC for ongoing periods of 6 weeks with only weekly phone contact and no personal contact in that time.
142 Further, I am concerned by the implication by Ms ZM that the injuries suffered by SMC may have occurred whilst SMC was on contact visits with NC, that is, on the weekends of 8-9 August, 22-23 August and 5-6 September 2009. Mr NC’s evidence in that regard was to categorically deny that any incidents by which SMC may have suffered injuries occurred whilst SMC was in his care or that he observed any such matters after he collected SMC from the home of Mr PC and Mrs HC. Mr PC and Mrs HC similarly deny the possibility of any such incidents occurring whilst SMC was with them.
143 These concerns do not give me any confidence that Ms ZM is, at this stage, a person who would properly or consistently provide full and adequate parenting of SMC in a manner that would be in SMC’s best interests unless there are others around who know SMC well enough to monitor her safety. That is particularly the case when the alternative she offers is compared to the undoubted (and uncriticised) level of care which has been provided by Mr PC and Mrs HC for SMC over a long period of time.
144 These concerns are not, however, such as to justify a finding of an unacceptable risk of harm to SMC in having contact with her mother - see M v M [1998] HCA 68 and DoCS and Rochel Grant [2010] CLN 1 at [39] – provided the conditions I have specified are complied with. The matters I have set out are of sufficient concern to warrant the staged approach to contact I have set out in the orders. The orders also reflect the need for SMC to maintain a stable, secure and predictable relationship with both parents.
Mr NC
145 Mr NC is an impressive and intelligent young man who SMC clearly identifies as her father and an integral part of her wider family structure. He has maintained an involvement in her life.
146 While Mrs ZM was undergoing at least some of the changes in residence she had before the events of August 2009, SMC went to live with Mr PC and Mrs HC – not NC – for a substantial period. He has never had the full-time care of SMC for long periods and remains untested in that regard. As I understand the evidence, he does not have experience in the ‘nitty-gritty’ of parenting decision-making nor the long term care of a child. His experience as I understand it has been limited to contact weekends and then with the considerable support of his parents at least when contact takes place in Narooma. It seems that Mr PC and Mrs HC senior are in Canberra visiting Mrs HC’s mother on the occasions when SMC has contact in Canberra.
147 However, my overall impression on the evidence is that Mr NC has left the parenting of SMC to his parents. I did not detect any antagonism in his relationship with his parents – just the reverse. However, I would not regard the evidence as to his current situation being such that SMC could be immediately placed in his care. His current relationship with Ms KS is relatively recent and her relationship with SMC is not clear at this stage and there is no relevant evidence on that aspect of her life should she come to live with Mr NC. It appears to me to have been relatively minimal. That is not meant critically – the instruction by DoHS to minimise Ms KS’s contact with SMC at this stage and ahead of the proceedings was both sensible and understandable.
Division of parenting responsibility
148 I have considered whether to make orders under section 79 of the Act dividing areas of parental responsibility between Mr PC and Mrs HC and SMC’s father, NC. Joint responsibility between all three is strongly urged upon me by DoHS, Mr PC and Mrs HC and Mr NC and reiterated in written and additional submissions.
149 There is always potential for disagreement between three-party parenting arrangements involving parties of different ages who live separately and, in this case, at some distance from each other. There is little real likelihood that NC will reside permanently in the Narooma area and will continue to see SMC as essentially a contact parent-figure.
150 I also have the concerns about Mr NC that I have outlined earlier. As has been submitted by Mr Herrald on behalf of Ms ZM, the injuries said to have been observed by him prompting his communication with Ms ZM must have been of sufficient concern over the course of his travels with SMC that weekend to demand some medical or other attention being obtained for the little girl in that condition. Contrary to his submissions and those of both DoHS and Mr PC and Mrs HC, I consider that his actions constitute a failure to detect or act on signs of neglect which must have been apparent to him.
151 It is important to ensure there is no ambiguity in terms of who has final parental responsibility overall – particularly where Mr NC will not be present on a day-to-day basis to deal with issues as they arise. All those factors in my view lead to a situation where the parenting responsibility for SMC should be vested solely in Mr PC and Mrs HC senior.
152 I originally proposed in the course of submissions with the parties that, in the event that one or both of Mr PC and / or Ms HC die or become permanently incapacitated preventing them or either of them from caring for SMC, then Mr NC should have the parental responsibility in lieu of either or both of them. That was suggested, in part to avoid any uncertainty or ambiguity in any future situation which might arise given the ages of the parties.
153 However, DoHS’ counsel, Mr Anderson on instructions from DoHS, submit that such a order would be an order for ‘future parental responsibility’ and one which is not competent under s 79 of the Act. While I do not necessarily agree with that submission, the matter is not free from doubt – in particular given the provisions of s 69Z of the Family Law Act. To avoid uncertainty I will not make such an order.
Role of natural parents
154 Both NC and ZM have a filial relationship with SMC – relied on to different ends by the respective legal representatives – as that term was referred to in M v M [1988] HCA 68. However, I do not regard that relationship in the case of either of them to warrant a variation to the orders I propose to make. Contrary to the submissions made by DoHS, I consider that both parents, not just Mr NC, should be placed in the position of being able to assume more responsibility for SMC after discussion with Mr PC and Mrs HC senior.
Contact by Ms HH
155 Ms HH clearly loves SMC and her relationship with her granddaughter is of great importance to her for a number of reasons. She took the action she did – and when she did - to advance SMC’s interest over that of Ms ZM; further, she did at some considerable cost to herself in terms of her relationship with Ms ZM.
156 However, her relationship with her daughter, Ms ZM, is fraught and her relationship with Mrs HC has apparently now broken down for reasons which were not given but might be implied.
157 Against the background of the dispute between Ms ZM and her mother that SMC observed, and further evidence about the volatile and tense nature of Ms ZM’s relationship with her mother generally, one of the issues in the proceedings is whether there can be any resolution of that conflict, and if so, what steps are appropriate to bring that about or to suspend or limit contact such that it does not re-occur to the detriment of SMC.
158 Ms HH’s contact with SMC should be during those periods that SMC is with Ms ZM. That would not occur in any event for at least three months. It is one area where the parties could benefit from some in-depth discussion and counselling to reach a position which is in SMC’s best interests. Although I did not hear from Ms HH’s partner, Mr DB, he seems to have been alone in having acted maturely during the course of the disturbance between Ms ZM and Ms HH in Burrill Lake when the police were called.
159 Ms ZM should exercise what contact she has without SMC being brought into contact with any other person other than Ms HH and Mr DB and then only with them after there has been discussion with Mr PC and Mrs HC and a counsellor as envisaged by these orders. Both Ms HH and Mr DB have an established relationship with SMC but it is important that there is no more friction between Ms ZM and Ms HH in SMC’s presence.
Other persons
160 Before Ms ZM brings the child into contact with any other person in her life, Mr PC and Mrs HC should have the opportunity to meet that person over some months and, if they think it appropriate, that person should also meet with Ms Mildwater or some other person nominated by her or a childwork professional nominated by the DoHS. That should be discussed in accordance with the tenor of these reasons.
Duration of order
161 The applications proceed on the basis that the orders will continue until SMC is 18. The relevant provisions of the Act in relation to the length of orders include a definition of the term ‘child’ to include a person who is under the age of 16 years. The difficulty with predicting the future in that regard is that, clearly, there will be substantial changes in SMC’s life and all those involved with her life and upbringing over at least the next 11 years, and certainly once she becomes a teenager.
162 The best that can be done with the evidence before me is that these orders should continue while SMC is a child. However, once the next six or seven years has elapsed – that is when SMC has finalised primary school or year 7 of high school – and when she is aged 13 or thereabouts – her situation is likely to change. As I have already noted, Mr PC and Mrs HC senior will then be in their mid-sixties. SMC’s wishes and needs may then be more pronounced. She is the child of two confident, intelligent and articulate individuals. Mrs HC equally impresses me as someone who will be bringing up SMC in the same way. At that stage, there is a strong likelihood that both Mr NC and Ms ZM may well have re-partnered and may well have other children. All those, as well as other circumstances, need to be taken into account in considering the arrangements to be made for SMC’s future.
163 Against that background, it seems important that there be an expectation that all the significant adults in SMC’s life at that stage be involved in a properly structured discussion to advance her best interests at that time. I emphasise that, consistent with the orders I will make, if there is no agreement, then the parenting responsibility for SMC should remain with Mr PC and Mrs HC senior unless otherwise varied by an application made under s 90 of the Act.
Conclusion and findings
164 I do not consider that restoration of the child to the mother would be in SMC’s best interests.
165 In terms of section 72 and section 83(7)(b) of the Act, there is, in my view, no reasonable possibility of restoration of the child to the mother’s care. I find that the permanency planning of the child has been appropriately and adequately addressed in the care plan and evidence given during the course of the hearing.
166 In my view, the child’s best interests would be best served by the child remaining in the parental responsibility of the paternal grandparents with:
(a) the same contact regime for SMC to see Mr NC or, subject to the arrangements for contact to Ms ZM as detailed below, such additional or alternate periods as may be agreed between him and Mr PC and Mrs HC senior;
(b) a staged and expanded regime of contact to Ms ZM, as detailed in these orders. The arrangements should include time in the Narooma area as well as Ms ZM’s home at Queanbeyan.
167 The arrangements embodied in the orders are the least intrusive intervention in SMC’s life and reflect the overwhelming obligation to protect her from harm and promote her development.
Counselling
168 I recommend that Ms ZM, Mr NC, Ms HH, Mr PC and Mrs HC attend counselling with a registered psychologist on at least four occasions over the next four to five months concluding on 28 February, 2011 to address:
A. The care arrangements which were in place in August / September 2009 when the ‘Risk of Harm’ reports were made in relation to SMC.
B. The responsibility for the contemporary and future arrangements to ensure that there is no repetition of harm being inflicted on SMC.
C. The arrangements to ensure the best interest and stability of SMC in terms of short-term and long-term:
i. Accommodation;
ii. Education;
iii. Development of her interests;
iv. Contact with her mother and maternal grandmother;
D. Within two weeks of these orders, the mother attend on Ms Martin or any other registered psychologist to discuss the evidence and findings in relation to what abuse has occurred to SMC, the impact on SMC, the circumstances in which that abuse occurred and measures which can be taken to detect or avoid such abuse in the future.
E. That the mother authorise Ms Martin to release any details of issues of concern to Ms Mildwater.
F. That the mother attend therapeutic counselling with a registered psychologist in relation to issues concerning:-
i. her childhood;
ii. her parenting expertise;
iii. any abuse suffered by SMC and circumstances in which such abuse has occurred or might occur
and authorise that counsellor consulted by her to release to Ms Mildwater any such information as may be relayed by Ms ZM consistently with the issues raised in this judgment.
Orders
1. I allow the appeal in part.
2. I vest parental responsibility for SMC with Mr PC and Mrs HC while SMC is a child.
Contact
Conditions of contact
3. That provided the mother participate in counselling in accordance with sub-paragraphs D and F of the immediately preceding paragraph of these orders, providing the releases referred to in sub-paragraphs E and F that she have contact with SMC:
(a) for three hours for a period of 3 months commencing 8 October 2010 every third Saturday and Sunday in Narooma and to remain in the Narooma township area during that period and for three hours on Christmas Day by agreement or unless agreed between 2 pm and 5 pm;
(b) for five hours for a further period of 3 months commencing 8 January 2011, every third Saturday and Sunday in Narooma;
(c) That after six months commencing 8 March 2011, for two days every second weekend as well as
i. Three hours on mothers day;
ii. The full day on the mother’s birthday; and
iii. Three hours on SMC’s birthday
(d) That after twelve months for a full weekend every second weekend as well as;
i. Three hours on mothers day;
ii. The full day on the mother’s birthday;
iii. Three hours on SMC’s birthday; and
Iv. For three hours every Christmas Day by agreement or unless agreed between 2 pm and 5 pm;
(e) After 2 years, commencing 8 March 2014, every second weekend and half of each NSW Education Department school holiday period as well as.
i. Three hours on mothers day;
ii. The full day on the mother’s birthday;
iii. Three hours on SMC’s birthday; and
iv. For three hours every Christmas Day by agreement or unless agreed between 2 pm and 5 pm;
4. That the mother be permitted to telephone SMC once weekly at fixed or pre-arranged times provided the mother meet the cost of those calls and that the calls do not extend for longer than 15 minutes and such additional alternate days or times as may be agreed between Ms ZM and Mr PC and Mrs HC.
5. That Ms Helena Martin, registered psychologist, be provided with a copy of these reasons by DoHS within seven days.
6. That the mother not physically chastise nor physically discipline the child while she is with her nor permit anyone else to do so.
7. That the mother and Mr PC and Mrs HC discuss any issues arising out of that contact and any other issues with Ms Mildwater in February 2011.
8. That whenever Ms ZM has contact with SMC in accordance with these orders, SMC is to remain in her full-time care and responsibility; further that no other person should be brought into contact with SMC other than with the prior agreement of Mr PC and Mrs HC.
9. When SMC concludes the first year of her high school, that Mr PC and Mrs HC, Mr NC, Ms ZM, together with any spouse or partner either of them may have at that time for the preceding twelve month period, attend with a registered psychologist to discuss:
i. The future parenting of SMC;
ii. The future schooling of SMC;
iii. The future contact between SMC and any other significant adult figures in her life.
10. That prior to such conference the parties or any of them release to the other details of any medical or psychological issues which might affect their capacity to either parent or have contact with SMC.
11. That the parties discuss what information should be released to SMC at the conclusion of that conference.
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