Neason and Department of Communities and Justice & Anor - [2019] FamCA 649

FAMILY COURT OF AUSTRALIA

NEASON & DEPARTMENT OF COMMUNITIES AND JUSTICE AND ANOR

[2019] FamCA 649

FAMILY LAW – PARENTING – The principle in Rice & Asplund (1979) FLC 90-725 – Where final Orders were made after a defended hearing that provided for the children to be placed in the care of the Minister of the Department of Communities and Justice – Where the mother filed an application seeking an order that the children live with her – Where the Department of Community and Justice sought dismissal of the mother’s application based on the principle in Rice & Asplund – Where it is not in the best interests of the children to be involved in further litigation – Where the children expressed wishes for their care arrangements to remain unchanged – Where a change in the mother’s circumstance is not of sufficient significance as to outweigh the disruption and anxiety caused to the children – Application dismissed.

Mahoney & Dieter [2019] FamCAFC 39
Marsden & Winch [2013] FamCAFC 177
Rice & Asplund (1979) FLC 90-725

APPLICANT:

Ms Neason

RESPONDENT:

Secretary, Department of Communities and Justice (NSW)

SECOND RESPONDENT:

Mr Jarrah

FILE NUMBER:

SYC

8178

2018

DATE DELIVERED:

12 September 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

2 September 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Cook

SOLICITOR FOR THE APPLICANT:

Mahony Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Harper

SOLICITOR FOR THE RESPONDENT:

Crown Solicitor’s Office

FOR THE SECOND RESPONDENT:

In Person

Orders

IT IS ORDERED

That the application of the mother filed 19 December 2018 be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Neason & Jarrah has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8178 of 2018

Ms Neason

Applicant

And

Secretary, Department of Communities and Justice (NSW)

Respondent

And

Mr Jarrah

Second Respondent

REASONS FOR JUDGMENT

Before the Court is an application to re-open parenting proceedings filed by Ms Neason (“the mother”), mother of six children, M aged 17, K aged 12, R aged 10, U aged 9, Z aged 6 and A aged 3.
The respondent, who is the Secretary of the Department of Family and Community Services, now the Department of Community and Justice, in these reasons “the Department”, seeks a dismissal of this application.
The second respondent Mr Jarrah (“the father”), opposes the mother’s substantive application and supports the respondent’s application for dismissal.
The oldest child, who is 17 years old, is not the subject of the mother’s application. The youngest child, who was born in 2016, was the subject of Guardianship Orders made in the Children’s Court on 29 August 2017 and is also not the subject of these proceedings.
The four children who are the subject of the mother’s substantive application live in foster care. The respondent has sole parental responsibility for them.
The orders placing the children under the authority of the respondent were made on 10 April 2014 after defended proceedings before Johnston J.
The father appealed against those orders and the mother cross-appealed. Both were unsuccessful.
The mother’s application filed 19 December 2018, seeks an order that the children live with her and that she have sole parental responsibility for them.
In the reasons for judgment of the Full Court, delivered on 4 November 2016, a brief factual overview was set out and is reproduced here:
11.The father was born in 1962 and, at the time of trial, was 52 years of age. He married his first wife in 1984. They have three sons who, at the time of trial, were 29 years, 28 years and 21 years of age ([11]).
12.The mother was born in 1982 and at the time of trial was 31 years of age. She was 15 years of age and in year 9 in high school when she met the father. The mother was 18 years of age and the father was 38 years of age when they commenced a sexual relationship.
13. The mother and father commenced cohabitation in 2001.
14.M, who is the first of the parents’ five children, was born on … 2002. She was 11 years of age at the time of trial.
15.In 2003 or possibly 2004, Ms W, who was approximately 15 years of age, moved in with the mother and father. Ms W gave evidence at trial and was cross-examined. It was her evidence that when she was approximately 15 years of age the father sexually abused her at the parents’ home. She told the mother about the abuse some years later. The primary judge was satisfied that it was more probable than not that the father sexually abused Ms W, albeit it was unclear whether or not this occurred when she was still a child ([92]).
16.The mother and father separated for the first time in late 2005. The mother informed the Department that M had been assaulted by the father which caused police to become involved with the family.
17.By early 2006, the parents had reconciled and were living together. At about the same time, the mother discontinued an application for an apprehended violence order (“AVO”) against the father.
18.The parents’ second child, K, was born in 2007. She was six years of age at the time of trial.
19.The mother met Ms C in a shopping centre following which she commenced spending time with the parents at their home. Ms C was called as a witness in the mother’s case and was cross-examined. The primary judge accepted her evidence that the father raped her in the parents’ home in approximately 2007 (when she was 14 years of age) and that he continued to sexually abuse her until she was 17 years of age. It was at this time (in 2010) that Ms C told the mother about what the father had done to her.
20.Ms D moved in with the mother and father in 2008. She was 14 years of age when she commenced living with them. As the primary judge explained, from her first night in their home, the mother and father permitted her to share a bed with the father’s middle son, who was 10 years her senior. At least from when she was 15 years old and while Ms D lived in the parents’ home she had a sexual relationship with the father’s middle and younger sons. Within two years of moving into their home, Ms D gave birth to a daughter fathered by the father’s middle son. At the time of the child’s birth, Ms D was 15 years of age and the father’s son was 25 years of age. Ms D and the father in this appeal have subsequently had two children together.
21.The parties’ daughter, R, was born in 2009. At the time of trial she was four years of age.
22.By early 2010, a variety of notifications to the effect that M had been sexually abused by a number of people had been received by the Department. Suffice to say at this stage, the notifications identified perpetrators with whom the parents facilitated contact.
23.The parents’ son, U, was born in 2010. U was three years of age at the time of trial.
24.In May 2011 the father, Ms D and her baby daughter (the father’s granddaughter) left the family home for Queensland. The mother and the children remained in Sydney. It is about this time that the relationship between the father and Ms D became sexual. Ms D was 16 years of age and the father was 49 years of age.
25.By October 2011, the father, Ms D and her baby had returned to Sydney following which the relationship between the mother and father rapidly deteriorated. This coincided with incidents when the father was violent to the mother and he physically assaulted M and so distressed the child she “… was screaming and was crawling from the house” ([232]). The violence continued and it is common ground that on 4 November 2011 the mother and father separated.
26.The mother and children moved into separate accommodation in late November 2011. At about the same time, the Department took Ms D’s child into care.
27.On 27 February 2012, M was interviewed by a Joint Investigation Response Team (“JIRT”) concerning an allegation that she had been sexually abused by the father. Although the allegation was not substantiated, the primary judge had more evidence available to him about the matter than was then available to JIRT. For example, M told the Court expert her father “… did something bad to me … had sex to me” ([293]). The primary judge did not accept the father’s evidence that he had not sexually abused his daughter but nor was it found that he had. Rather, his Honour’s assessment was expressed as “a fear” that he had and it was thus necessary for M to be protected from the risk of sexual abuse posed by her father.
28.By mid-2012, under the auspices of its “LL Group” the Department and other agencies were significantly involved with the family, relevantly, in supporting the mother to protect her and the children from the father and to help her meet the children’s day to day needs. As to the latter, this included helping her clean the house and to understand it was important that on an ongoing basis she addressed the terrible want of hygiene in the home and that the children regularly attend school. In essence this was a multifaceted early intervention program designed to assist the mother to keep the children in her care.
29.As part of this program a safety plan was prepared in April 2012 which had as an essential element that the mother not permit the father to have any contact with the children ([260]). An interim AVO had been made in November 2011 against the father for the protection of the mother and children. It was a requirement of the plan that the mother abide by the conditions of the AVO and to inform the Department or police if the father spent time with the children. Neither the mother nor the father abided by the restriction on contact contained in the AVO and the mother failed to inform the Department or police that the father had been in contact with the children. Regrettably the mother refused to co-operate in relation to securing a final AVO against the father and, when she failed to attend for the final hearing, the application for such an order was dismissed.
30.The father and mother’s daughter, Z was born in 2013. The mother and father correctly deduced that her birth would provide the Department with ample proof that far from keeping the father away from the children, the mother had him intimately involved in her and thus their lives. However, in order to maintain the ruse “… the mother simply lied to the Department” about this child’s paternity and it was only as a result of testing arranged by the Department that the truth was revealed ([277]).
31.A few months after Z was born, Ms D (then aged 18 years), gave birth to her second child, ZJ, this time to the father. Both she and the father (who was then 51 years of age) denied their relationship was sexual and, once again, it was able to be established that these denials were simple lies ([62] and [71]). The father and Ms D parented another child, a son, who was born in 2014. Ms D’s three children are in the care of the Department and have restricted supervised time with the father.
32.By May 2013, in light of the ongoing child protection risks, the LL Group ceased their involvement with the family and the Department categorised the family as a child protection case. That is to say early intervention strategies were viewed as having failed and the question to be answered was whether the children could safely remain with the mother. In essence that also became the key question for the trial.
Their Honours stated:
The parents do not challenge his Honour’s findings as to the risks they pose to the children or the manner in which the children had been cared for while in their care. In this respect, the findings made by the primary judge, albeit carefully expressed so as to avoid unnecessary distress, are disturbing and comprise a history of the children enduring prolonged exposure to abuse, neglect, family violence and an unacceptable risk of sexual abuse. More will be said of this later but suffice to say, at this point, that when considered through the prism of the best interests of the children, the evidence compelled the findings be made.
By way of specific example, their Honours stated:
[Amongst the reports of risk of harm made to the Department] was evidence M had been sexually assaulted by a number of different people over the years including, for example, the mother’s nephew who the mother invited to live in the home, even after it appeared he had abused M (M told police he had). Also, notwithstanding that M informed the mother that the father attempted to have sex with her, albeit the allegation was “unsubstantiated”, and the mother having witnessed the father physically assault M, the mother continued to include him in M’s life.
Their Honours set out a further example:
Ms D had threatened to do terrible things to M and yet, the mother’s approach to Ms D and the father having contact with M is exemplified by the following remarks:
274.Despite the intended protections under the safety plan, it became clear that the mother was unable to comply with such requirements. This was because on 21 February 2013 the father informed a Departmental officer that he was able to have contact with the mother and children any time that he wanted and that the mother was in the habit of ringing him and inviting him to come over to her home. Furthermore, there was an incident at approximately this time when M was threatening to self-harm and the mother asked the father to arrange for [Ms D] to come to her home and speak with M even though this would be a clear breach of an AVO that was current at that time to protect M against [Ms D].
The sixth child of the mother and the father, A, was born after the appeal was heard and before judgment was delivered.

THE LAW

The Department relies on the principle first enunciated by the Full Court in Rice & Asplund (1979) FLC 90-725 where the Court held:
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material (passage quoted in Hayman and Hayman (supra), at p. 75,680). These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.
The application of the principle was further explained by the Full Court in Marsden & Winch [2013] FamCAFC 177:
In summary, the best interests issue arises because there are so many changes in the lives of families that the changed circumstances that will permissibly allow re-litigation of a decision must be circumscribed, otherwise there would exist in some cases the spectre of endless litigation finalising only when the child attains 18 years of age and the courts no longer have jurisdiction.
However, even that simple formulation must be subservient to the nature of the application itself. This is the genesis of the “rule” in Rice & Asplund and as Warnick J says it is founded on the notion that continuous litigation over the child or children is not generally in their interests. It is usually hoped that the determination of a controversy concerning children by a court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and children. In addition, recent research demonstrates that conflict between parties is itself harmful to children.
Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
(1)The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2)Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3)If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
(footnotes omitted)
In Mahoney & Dieter [2019] FamCAFC 39, the Full Court stated the rule simply:
...consider the past circumstances, the evidence on which the decision was based and whether there is a likelihood of orders being varied in a significant way as a result of a new hearing.

THE FINDINGS OF THE TRIAL JUDGE

It has now been over five years since judgment was delivered. Commonly, such a passage of time might, in itself, be considered a sufficient change in circumstances as to warrant revisiting the issue of parenting arrangements.
However, in this case, the findings made are of such a serious nature that they need to be carefully considered.
In the trial in 2013, the mother sought, relevantly, orders that the children live with her; that she have sole parental responsibility or, in the alternate, that she and the Department share parental responsibility; that the father spend time with the children on four occasions each year supervised by the Department; that the father otherwise be restrained from spending time with the children and that she be restrained from allowing the father to communicate with or spend time with the children.
The mother was unsuccessful. The Court ordered that the Department have parental responsibility for the children and determine where and with whom the children live. The mother’s time with the children, and the conditions of that time, were to be determined by the Department.
In the reasons for judgment handed down on 10 April 2014, Johnston J found:
·    That the mother had demonstrated that she was unable to parent the children adequately without the assistance of the Department.
·    That the mother did not have sufficient parenting skills to properly attend to the needs of the children.
·    That the mother has struggled with the physical care of the children, including keeping a reasonably clean house, providing clean bedding, attending to washing linen, providing nutritious meals and providing adequate supervision.
·    That there was a serious cockroach infestation in the home and the mother had failed to get quotes for cockroach eradication despite being pressed to do so by officers of the Department.
·    That officers of the Department had observed piles of laundry, piles of unwashed dishes in the kitchen, food scraps on benches and on the floor, furniture piled up in a manner which posed a risk to the children and toilet paper with faeces on the bathroom floor.
·    That the Department had already provided the mother with assistance from the LL Group and had increased the level of support by engaging the T Family Support Service which was then the highest level of support available through the Department. (The mother had commenced her involvement with the LL Group in 2011).
·    That it was not evident that the level of assistance provided by the Department had helped the mother to improve her parenting skills to a satisfactory level.
·    That the mother had not been able to facilitate a proper level of school attendance for the older children.
·    That the single expert psychologist had expressed concerns about whether the mother had sufficient cognitive ability to protect the children in a number of areas, namely:
-    Whether she would sufficiently be able to resist her need to acquiesce to the father.
-    Whether she had sufficient insight into the ongoing risk posed by the father of unacceptable violent or sexually abusive behaviour.
-    Whether the children might be exposed to unacceptable risks from other people who visited the mother’s home.
·    That the single expert was of the view that a cogitative assessment of the mother was necessary to assist in assessing whether her cognitive capacity was such that she could develop the necessary insight.
·    That the Court could have little confidence that, given more time and continuing support, the mother would be able to improve her practical parenting skills to an acceptable level.
·    That the mother failed to protect another child, Ms D from being sexually abused in the mother’s home by the father’s older sons from another relationship and possibly by the father.
·    That the mother failed to protect both Ms W and Ms C from being sexually abused in her home by the father.
·    That when Ms D was 14 years old she commenced living in the home of the mother and the father and from her first night in the home slept with the father’s adult son in his bed. The son was 24 years old. Neither the mother nor the father suggested that was inappropriate.
·    That the mother may have failed to protect the oldest daughter from being sexually abused by the father.
·    That the mother failed to protect the children from the father coming to the home, despite the fact that the Department had developed a safety plan which precluded the father’s coming into contact with the children.
·    That the litigation had been prolonged.
·    That the mother had cogitative limitations and learning difficulties and possibly a mild intellectual disability.
·    That the mother’s clinical history suggested high dependency needs and her diagnostic status was unclear.
·    That in 2012 the children were assessed by the Department to be at high risk of neglect and very high risk of harm.
·    That in July 2012 the mother’s nephew JJ commenced living at the mother’s home. This was a real concern to the Department because M had informed police who were interviewing her in September 2006 that her 7 year old cousin JJ had put his finger in her vagina at her grandmother’s house when she was asleep.
·    That on 19 November 2012 the police responded to a domestic violence incident involving the mother and Mr BG. The mother was involved in a sexual relationship with Mr BG at the time. It was recorded that Mr BG had punched the mother in the face in public and in front of the children. The mother failed to inform the Department about this incident.
·    That on 11 March 2013 a risk assessment report was prepared by the Department. Risk of neglect of the children was scored as “high” and for abuse as “very high”. The report rated the children’s housing as physically unsafe with a urine soaked bed, a room piled with furniture and items, unwashed dishes and food scraps in the kitchen, the back porch covered high with clothes awaiting washing and a serious cockroach infestation.
·    That on 6 May 2013 an officer of XX House, a community based resource centre for women in the Suburb TT area, informed the Department that they had inspected the mother’s home in response to a request from her to provide security. They described the home as a “disgrace” and that “her mother had to go in there and scrub everything”. The officer also described the mother as “incredibly rude and difficult, very demanding to work with”.
·    That in April 2013 the Department was concerned that the mother had not presented Z to a paediatrician and was making various excuses to explain why she had not done so.
·    That M has been diagnosed with a learning disability. A psychological assessment was undertaken in 2008 to the effect that M’s learning difficulties were likely to be the result of a global cognitive delay meaning that difficulties which she was having at school were a result of a significant low level of intellectual functioning. Yet in 2012 M had 62 full absent days and 59 partial absent days from school. Numerous letters had been sent by the school to the parents about M’s absenteeism.
·    That the F Primary School Suburb TT regard both M and K as having high levels of partial absences. The School has classified them as habitually late students.

The trial judge set out the history of reports about concerns for the children to the Department in the following terms:
243.The family has been known to the Department since 24 October 2004 when the Department received a risk of harm report alleging that the parents were drug addicts and not properly feeding M.
244.This report was followed over the years to April 2012 by 49 further risk of harm reports. These reports alleged as follows:
·the mother slapped M in the back of her head;
·domestic violence between the parents;
·presence of a sexual offender resident in the home where the mother and M were living;
·physical violence to M by G, her half brother;
·domestic violence between the parents;
·inappropriate behaviour and sexual innuendo by the father and G towards M;
·alleged sexual abuse of M by a maternal family member;
·parents presenting M for medical examination for alleged sexual abuse;
·father alleged to be growing, selling and smoking marijuana;
·father presented M for medical examination by a general medical practitioner who could find no evidence of sexual assault;
·parents complained to Suburb TT police about sexual assault upon M;
·physical abuse of M by her maternal grandfather;
·sexual abuse of M by her father;
·father punching the mother in her chest in the presence of M;
·M’s cousin JJ put his finger in her vagina;
·drug and alcohol use by G, then 13 years of age;
·G threatening suicide;
·M’s grandparents’ foster child put his toe in her “whoopsie” and made her touch his “willy”;
·G pushed M down the stairs;
·M witnessed two strangers threatening her father and G with a gun;
·threats by a 14 year old boy to shoot the children and burn down the family home;
·sexual behaviour directed at M by a female child;
·M witnessing two older children from next door having sex;
·sexual abuse of M by her paternal grandfather and sexual penetration by a man residing in her paternal grandfather’s home;
·psychological mistreatment of M;
·neglect of the children and exposure to guns;
·physical abuse of M resulting in a broken arm;
·Sexual abuse of SJ by S and production of a gun;
·exposure of the children to domestic violence and controlling behaviours by their father;
·unhygienic and inadequate home;
·mother failed to provide medication to M following an asthma attack;
·M witnessing domestic violence and receiving a blow to her chest from her father;
·K witnessing her father and Ms D having sex
·physical abuse at the maternal grandparents’ home;
·M disclosed “Daddy tried to touch me down there, daddy was naked and tried to get on top of me”. “Daddy was naked and he tried to put his willy inside me” and
·despite the existence of an AVO to protect the mother and children from the father, the father had been in frequent contact with mother and children.
The trial judge stated:
245.While only seven of the reports involved the Department proceeding to a secondary assessment of the risk of harm, and the only risk of harm substantiated was the alleged sexual harm of M by the grandparents’ foster child, the number and somewhat diverse nature of the reports must cause concern in my view, when considered with the admissible evidence in these proceedings.
246.In relation to the substantiated report of sexual abuse of M, this arose from the reports on 22 and 23 April 2008 that the maternal grandparents’ foster child had touched M’s genitals and had her touch his. These reports had been referred to JIRT. JIRT found that the reported harm had occurred. But the JIRT officers were satisfied that the parents were supportive and protective of M and would not let M visit the grandparents until the foster child was placed elsewhere.
In May, June, July and August 2013, reports were received by the Department in relation to the following asserted risks, which the Department assessed and found that they did not meet the threshold of “serious risk of harm”:
·Mother was allowing Ms Q to stay at the home when previously she was alleged to have hit M over the head with a telephone;
·The mother was outside her home smoking whilst holding a baby which was not dressed appropriately for the cold;
·Persons at the mother’s home were making harassing calls to the father as was the mother;
·K said “old Daddy” came to her house and hurt her sister;
·K had said “Daddy won’t kill anyone, no more” and M was said to have said “it is touching, Ms D did it with me”;
·The mother dropped the children off at school at a place where they must walk past the men’s shed opposite the school which is frequented by the father;
·R had a black eye;
·Z should be reviewed for golden staph because the mother had had a golden staph infection recently;
·K and U were injured at [a play centre];
·The mother had brought two of the children into contact with the father at a bowling alley.

WHAT ARE THE CHANGED CIRCUMSTANCES?

Counsel for the mother submitted that there were three areas of significant change:
·The mother is a changed person by virtue of her experience of and attendance at courses.
·The mother asserts that one of the children has come to physical harm in the care of the Department.
·The mother is now completely separated from the father.

THE MOTHER’S EVIDENCE

The mother relied on an affidavit sworn by her on 6 December 2018. Significantly, as will be explained, the mother’s parents did not swear affidavits in the proceedings. Neither was there an affidavit by the mother’s fiancé, Mr KK.
Since this enquiry proceeds on the papers, the evidence of the mother is taken at its highest for the purpose of the determination. However, that does not mean that the mother’s evidence should not be properly examined. Evidence which is inherently unlikely or unbelievable need not be accepted. Where the evidence purports to be a summary of a document, the source document can be examined. The Court is entitled to take into account the absence of evidence.
The mother, in her affidavit sworn 6 December 2018, deposed to the following matters:
·    She has moved to live in the home of her parents in Town MM which has six bedrooms and three bathrooms and a quarter acre yard.
·    She keeps the house “reasonably clean and tidy and no longer had cockroaches”.
·    She has prepared clean bedding for the children.
·    She is able to attend to washing.
·    She is able to provide nutritious meals for the children.
·    She has made enquiries about places for the children at the local public school.
·    She is no longer under the father’s influence.
·    She will not permit contact between the father and the children.
The mother has completed a number of courses which she lists as follows:
AA Group
(a)Magnifying Hope Program
(b)Understanding Kids Parenting Program
(c)3 Choices Program (123 Magic)
XX House
(d)Building Better Behaviour
CC Group
(e)Walking the Talk – R
(f)Walking the Talk - U
(g)Walking the Talk – Z
(h)Keeping Children Safe
BB Group
(i)Circle of Security
(j)Bringing Up Great Kids
(k)Triple P Positive Parenting (Level 4 group)
DD Group
(l)Teen Triple P Positive Parenting Program
(m)Pathways Triple P Positive parenting Program
(n)Out Of The Dark Program
EE Group
(o)Managing Children’s Behaviour Seminar
FF Group
(p)Keeping Children Safe
GG Group
(q)Standard Mental Health First Aider
The mother deposed that she received counselling on 1 December 2016 from HH Group in relation to the effect of domestic violence and sexual abuse on children.
In March 2018 the mother enrolled in a Certificate III course at TAFE with the goal of becoming a support worker for children and families. She has completed that course.
The mother deposed to her concerns about the care provided to K, R, U and Z in their current placements with foster carers. Those concerns are derived from the mother’s interactions with the children at supervised visits.
The mother’s observations in relation to her contact visits with the children are detailed in her affidavit. I will set out her assertions in relation to each child.

The Child K

In April 2016 the mother was informed by the Department that K had broken her arm when she fell over.
K told the mother that another child in her foster placement had broken her arm.
In April 2016 the mother saw K and R sitting in a car near a shopping centre, unattended on a hot day.
In August 2016 K said she wanted to go home with the mother.
In June 2017 K had scratches on her back which K said were caused by the other foster child in the placement.
In October 2017 K told the mother that the other child had twisted her arm behind her back, pushed her hard causing her to fall and break her arm. The mother asserted that the carer then dragged K “by her arm, that had recently healed from the break” into the office.
That in December 2017, K said “I’m a fuckwit. I don’t deserve to live”. K made a number of assertions about the behaviour of the other foster child including that the other child bashed her, pushed her, took her money and toys, threw spoons and knives at her, broke her arm, scratched her and left scratch marks on her body.

The Child R

On 25 November 2015 the supervisor told R that she would never go home, that her new mother would come and get her soon and that she would be seeing her father. R was crying.
That on 22 August 2016 the supervisor told R not to tell her mother anything or the supervisor would hurt R.
That on 21 October 2016 R had a black eye and said that “the girl in the placement did it”.
That on 8 June 2017 R had a black eye and scratches on her back.
That on 24 August 2017 R refused to talk to the supervisor who she said was mean to her. R punched U in the face and the supervisor cut the visit short.
In May 2018 R was hospitalised because she had inserted a Barbie doll “inside her”.

The Child U

On 25 November 2015, U said that his foster carers told him he is not a boy but he is a girl. The supervisor told U that he would never go home with his mother.
On 13 April 2016, U asked to go home with the mother.
On 21 October 2016, U told the mother that his foster carers smoked “green stuff”. U smelt like marijuana.
On 8 June 2017, U smelt like marijuana.

The Child Z

The mother deposed that on 25 November 2015, she observed, while changing Z, that she had red dots all over her arms, face and private parts. She asserted that the case worker failed to take Z to a doctor.
On 19 September 2016, Z wanted to go with the mother after the contact visit and cried when the case worker took her away.
On 21 October 2016 the mother deposed that Z smelt of marijuana and had bruises on her lower back in the shape of finger prints.
Tendered in the mother’s case were three contact reports of time with Ron 17 December 2018, 10 January 2019 and 17 May 2019 which I accept depict a happy family interaction.
There are no reports of recent contact by the mother with K, U or Z.
Tendered in the mother’s case were a series of letters from the Department commencing in May 2018 advising the mother that her contact with all four children was suspended. The Department stated:
I am writing to inform you that your children, K, R, U and Z are each currently experiencing difficulties which has been identified as related to contact visits with their family. Specifically the children’s behaviour at present is indicative that they have anxiety about attending contact visits. The children are being supported in their placements with clinical support and specialist services.
The letter indicated that the position would be reviewed in November 2018. Although contact with R has been re-instated, contact has not been re-instated with the other three children.
Also tendered in the mother’s case is a document titled “RULES OF CONTACT for [the mother]”. Included in those rules is:
You are not to refer to any of the children using derogatory nicknames such as “shitty K” or refer to U as a girl.

CONSIDERATION OF THE MOTHER’S EVIDENCE

The mother deposed that she has moved into the home of her parents, the maternal grandparents, in Town MM.
The trial judge found:
284.In September 2006 during the course of an interview by the JIRT, M said that her [7 year old] cousin JJ had put his finger in her vagina at her grandmother’s house while she was asleep.
285.In April 2008 the Department received a report to the effect that M had reported that the (young male) foster child at her maternal grandparents’ home had touched her on the genitals and made her touch his genitals. M was interviewed by the JIRT officers. She told them that the boy had pulled her pants down and poked a stick in her woopsie (vagina) and her bottom. She said he then put his willy (penis) in her woopsie and he put his willy all over her body. The JIRT officers assessed the allegation as “substantiated”. The foster child was subsequently removed from the grandparents’ care and there was no further contact between M and him.
The children were placed in the care of the maternal grandparents by the Department in May 2014. On 21 August 2015, the Department received a Risk of Serious Harm Report in relation to the children and on 9 October 2015, the children were removed from their care.
There is no evidence from the maternal grandparents in the mother’s case.
There is no evidence about whether they are prepared to allow the children and the mother to live in their home, for what period they would accommodate the mother or what conditions might be imposed by them.
There is no evidence that the maternal grandparents are prepared to have Mr KK also live in the home once he and the mother are married.
There is no evidence from the maternal grandparents about the circumstances in which the children were removed from their care.
Tendered in the mother’s case was a letter from the Department to the maternal grandfather dated 16 July 2018 apologising for an administrative error which attributed the criminal record of a relative using the same name to the maternal grandfather. However, there is no evidence that this was a factor which contributed to the children’s removal in 2015.
Mr KK has not sworn an affidavit in the mother’s case and the mother makes no reference to Mr KK in her affidavit although her counsel tendered the most recent contact supervision report in which there is mention of the mother’s wish to include Mr KK in the supervised visits. The children have never met Mr KK.
The absence of evidence from the maternal grandparents and Mr KK is a serious deficiency in the mother’s case.
In relation to the various courses and attendances to which the mother refers, as set out in paragraph 29 of these reasons, an examination of the material annexed to her affidavit suggests a different picture.
The three courses with LL Group were completed in 2012.
The XX House course was completed in 2013.
The courses at CC Group were completed by April 2014.
The courses with BB Group, DD Group, EE Group and FF Group were all completed between 2016 and 2018.
The course at GG Group which was completed in November 2018 does not relate to children or parenting. The certificate states:
This course teaches adults (18 years and over) how to provide initial support to adults who are developing a mental health problem or experiencing a mental health crisis.
The letter from HH Group dated 28 April 2017, does not support the mother’s assertion that the counselling dealt with the effects of domestic violence and sexual abuse.
The letter from that organisation, tendered in the mother’s case, stated that the mother had been referred for assessment with a view to psychological treatment with symptoms of depression and anxiety. Over a course of ten sessions, cognitive behavioural techniques were used and the mother reported an improvement of her mood, concentration, motivation and an increased interest in life and activities.
The therapy with HH Group is not described in terms consistent with the cognitive assessment recommended by the single expert in the trial and makes no such assessment.

THE CHILDREN

Whether or not a court should be willing to embark upon another parenting hearing is a decision to be made in each particular case, having regard to the circumstances of the subject children.
The experiences of these children, as demonstrated by the findings of the trial judge, warrant very careful and particular consideration.
R was placed with her current carer in June 2017. There are no other children in the same household.
She was referred to a child and adolescent psychiatrist for an opinion in relation to management in March 2019. The report of the psychiatrist dated 25 March 2019 was tendered in the Department’s case. R’s behaviour was described as sexualised, aggressive and unusual.
The psychiatrist stated:
Behaviours of concern... include aggression, injury to other children, such as choking and head butting, apparent limited empathy, dissociation, freeze response, exaggeration of events of stories and apparent fantasy world, inappropriate social interaction, including seeking hugs and kisses from older males...
[Carers] main concerns were around what were described as “sexual behaviour”. From their description, it would seem that much of these behaviours are made without R realising, for instance standing naked in front of people or sitting with open legs, though will desist when reminded. Some of these behaviours may also relate to attachment as she will sit on the knees of strangers and can touch her carers inappropriately. There has been no disclosure of sexual abuse, though occasional non-specific comments by R may suggest this. R has also engaged in other behaviours such as smearing faeces over a wall and wardrobe, chewing toilet paper, hoarding rubbish and toys under her bed, occasionally hitting people, seemingly at random and smearing blood and on other occasions slime. Occasional episodes are described during which R appears unusual, with a scary look and a smile.
Under the heading “Opinion and Management”, the psychiatrist stated:
The development of such behaviours in the context of a past history of significant neglect and abuse, with repeated disruption of important relationships was discussed in detail with her carers and case manager. There is no intervention that can promptly reverse this process and lead to the remission of such behaviours. R is best supported by maintaining safe, nurturing and contained home and school environment, and continued regular attendance at therapy...
K, U and Z are in a long term placement together.
K has been diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”). Her school report for the last semester of 2018 was in evidence. She is described as improving.
On 17 August 2018, a clinician reported to the Department in relation to K:
Contact visits with members of her biological family have resulted in K experiencing significant levels of distress (e.g. voiding in bed, anxiety, verbalizing fears of being removed from her current foster care family/being reunited with her biological family). This distress has occurred leading up to, during, and the days following contact. K [sic] has independently and consistently told the carers in her life that she does not wish to attend family contact or see her biological family going forward.
Since it was decided by [the Department] that K would no longer attend contact with her biological family over the coming months, she has experienced a great decrease in the above behaviours and makes comments such as “every day is a good day now”.

U’ school report was also in evidence. He is described as working hard and improving.
The clinician’s report in relation to U dated 17 August 2018 was also in evidence. The clinician noted:
Contact visits with members of his biological family have resulted in [U] experiencing significant levels of distress during and immediately following family contact. Behaviours of distress include: being quick to cry, expressing fears of being removed from his current foster family’s care, sleep walking, nightmares, becoming forceful with others with his wants, becoming overly clingy with [carers], seeking consistent validation, and experiencing a challenging time with settling. [U] has also verbalized [sic] to his foster carers, as well as clinician, that he does not wish to see his biological family going forward.
The clinician reported that, since the visits with family were suspended, U is no longer experiencing the behaviours described and is thriving.
A report from U’ therapist was tendered. The therapist stated:
Since U was informed that his biological mother... was applying... to have him returned to her care, he has been experiencing on a regular basis nightmares. All of these nightmares have centred on the theme that his biological family come to steal him and his siblings away and then hide them so nobody can find them.
During a session on the 26^th March it became apparent that as a means of coping with how he felt about these events he was not allowing anybody to use the names of his biological mother or grandparents. In the waiting room, U drew a picture of a dinosaur eating a person whom he identified as [the mother].
U told his therapist that he does not want to see his mother, father, grandparents, M or R.
A letter from the clinician in relation to Z dated 17 August 2018 stated:
[Z] has consistently displayed a high level of distress leading up to and following scheduled family contact visits. Behaviours of distress include: difficulties sleeping, physical aggression towards peers and older biological brother, segregating herself from peers at preschool, increases in screaming and tantrum related behaviours, seeking consistent reassurance from carers and becoming clingy towards them, as well as skin picking of the cheek and thumb, resulting in open wounds.
Approximately 1 month ago while in a vehicle [Z] had a panic attack displaying the following symptoms; shaking, shallow breathing, crying, and saying “no” reputedly. [Z] verbalized after this incident that she thought the people she saw were her grandparents and that she would be taken, returned to their care.
Family visits for Z were suspended.
On 25 June 2019, a psychologist reviewing K, U and Z recommended that the visits with family, including the mother, continue to be suspended.

CONCLUSION

These children have significant and complex psychological and behavioural problems and need care which is of the highest quality and consistency.
Whilst the mother is to be applauded for her efforts in improving her parenting skills, the evidence upon which she relies does not suggest that the changes she has made, including the involvement of the maternal grandparents, are such that she would be able to parent the children adequately.
In those circumstances, the possibility of a change in the present parenting arrangements for the children is significantly outweighed by the disruption and anxiety that would be caused to the children if the litigation were to continue.
The mother’s application will be dismissed.

I certify that the preceding ninety eight (98) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees J delivered on 12 September 2019.

Associate:

Date: 12 September 2019