Neason & Minister for Families and Communities
[2023] FedCFamC1F 174
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Neason & Minister for Families and Communities [2023] FedCFamC1F 174
File number(s): PAC 4035 of 2021 Judgment of: HANNAM J Date of judgment: 22 March 2023 Catchwords: FAMILY LAW – PARENTING – Whether there is a significant change in circumstances to warrant a fresh hearing in respect of parenting arrangements – Consideration and application of the rule derived from Rice & Asplund (1970) FLC 90-725 – Where final orders were made following defended hearing placing the children in the care of the Minister of the Department of Communities and Justice – Where the mother seeks that one child move to live with her and other children commence family therapy – Where the Minister and ICL oppose the mother’s application – Where the children have expressed long held views to not have any contact with the maternal or paternal family – Where the children have been in stable placements for some time – Where there is limited prospect of success of the mother’s application – Where it is not in the best interests of the children to reopen the litigation – Mother’s application to reopen proceedings dismissed. Cases cited: Defrey & Radnor [2021] FamCAFC 67
Jarrah & Neason & Anor [2016] FamCAFC 213
Marsden & Winch [2009] FamCAFC 152
Miller & Harrington (2008) FLC 93-383
Neason & Department of Communities and Justice and Anor [2019] FamCA 649
Rice & Asplund (1979) FLC 90-725
Division: Division 1 First Instance Number of paragraphs: 97 Date of last submission/s: 1 December 2022 Date of hearing: 20 October 2022 Place: Parramatta Solicitor for the Applicant and Third Respondent: Mr Hill, Longman Hill Solicitors Counsel for the First Respondent: Mr Andersen Solicitor for the First Respondent: Crown Solicitors Office Solicitor for the Second Respondent: Did not participate Solicitor for the Independent Children's Lawyer: Mr Macdiarmid, Mark Macdiarmid Family Law Specialist ORDERS
PAC 4035 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS NEASON
Applicant
AND: MINISTER FOR FAMILILES AND COMMUNITIES
First Respondent
MR JARRAH
Second Respondent
MR KK
Third Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HANNAM J
DATE OF ORDER:
22 March 2023
THE COURT ORDERS THAT:
1.The mother’s Initiating Application filed 30 July 2021 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HANNAM J:
INTRODUCTION
This is an application by a mother (“the mother”) to vary the parenting arrangements for four of her six children.
The mother who is 40 and the father (“the father”), who passed away in 2022 aged 60 (collectively “the parents”) share six children.
Final orders (“the 2014 orders”) were made in April 2014 in this Court allocating sole parental responsibility for five of the parents’ children to the Minister for Families and Communities, Disability Services (as she is now known) (“the Minister” or “the Department”). The parents’ youngest child, who was born in 2016, is the subject of a Guardianship order made in the Children’s Court in 2017. The parent’s oldest child (“M”) has attained the age of 18 and is no longer the subject of any parenting order.
The father filed an appeal against the 2014 orders, and the mother filed a cross appeal, both of which were dismissed by the Full Court on 4 November 2016.[1]
[1] Jarrah & Neason & Anor [2016] FamCAFC 213.
In 2018 the mother made application to vary the 2014 orders in relation to the parents’ four middle children, who are also the subject of this application (“the children”). That application was dismissed on 12 September 2019.[2]
[2] Neason & Department of Communities and Justice and Anor [2019] FamCA 649.
In her Initiating Application filed 30 July 2021 the mother seeks orders that all previous court orders in relation to the parent’s third child (who is aged 14) (“R”) be discharged and that this child live with the mother and her husband at the maternal grandparents’ home and that the mother and her husband share parental responsibility for this child equally. The mother also seeks orders that “contact supports be put in place to aid in restoring family contacts” for the parent’s second, fourth and fifth children (aged 15, 12 and 10) (“K”, “U” and “Z”) and that these children be provided with “appropriate strengthening family relationship counselling”.
The mother’s application to vary the parenting orders of these children is opposed by the first respondent Minister and the Independent Children’s Lawyer (“ICL”). Prior to his death, the father indicated to the Court that he too opposed the mother’s application. As it was apparent from the orders sought by the mother that her husband also sought orders in respect of R, the mother’s husband was added as party to the proceedings on 11 May 2022. The mother’s husband has not filed a Response or Application but has filed an affidavit in support of the mother’s case.
On 21 June 2022 the proceedings were fixed for hearing in October 2022 for one day for the threshold issue of whether it is in the children’s best interests for their parenting arrangements to be revisited and each party was ordered to file written submissions in support of their position 14 days prior to the day of hearing.
At the hearing on 20 October 2022 it was indicated by each party that no witnesses were required for cross-examination and each party was content for the application to be determined on written submissions. As the mother had failed to file written submissions 14 days prior to the hearing in accordance with orders, she was given a further opportunity to do so within a further 28 days. The Minister and ICL were also given an opportunity to file submissions in response and judgment was reserved following receipt of those submissions.
The question for me to determine is whether there has been a significant change in the children’s circumstances such that it would be in their best interests for the question of their parenting arrangements to be reconsidered by the Court.
Background
A brief factual overview of the dispute set out by the Full Court[3] is extracted as follows:
[3] Jarrah & Neason & Anor [2016] FamCAFC 213.
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.The child M, who is the first of the parents’ five children, was born in 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. The child 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 “Brighter Futures Program” 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 the child 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 Brighter Futures Program 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.
As a result of the dismissal of the appeal, the order that the Minister hold sole parental responsibility for the children was undisturbed and thus the Minister exercised sole parental responsibility for the children from April 2014. Throughout this period the Minister has placed the children in various placements and initially there was a period of significant instability for each of them. However, by the time the matter came to hearing of this application in October 2022 each child had been in a secure placement for two years and these placements intended to be long-term and endured until adulthood. When this application was heard each child’s stated view was that they did not wish to spend time with the mother.
The “Rule” in Rice & Asplund (1979) FLC 90-725
As is clear from recent Full Court decisions, such Defrey & Radnor[4] there is no doubt that the principles established in Rice & Asplund (supra) and the subsequent line of authority apply to proceedings such as these where a party is seeking to have final parenting orders reconsidered.
[4] [2021] FamCAFC 67.
The so-called "rule in Rice & Asplund" arises from remarks made by Evatt CJ in that case at [78,905-06]:
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, as [counsel] submitted, change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant … 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 …
Evatt CJ continued:
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.
As explained in Defrey & Radner (supra) at [21]:
The rule in Rice & Asplund involves the exercise of discretion and not merely a process of making factual findings. That is because the “rule” is a manifestation of the best interests principle. All s 60CC(2) and (3) matters, so far as they are relevant, must be considered, to the extent that they can be, based on the material before the court. The rule focuses particularly on s 60CC(3)(l) and the preference to make final orders in parenting matters that are least likely to lead to the institution of further proceedings in relation to the child. Axiomatically that is because unless other considerations are more weighty, it is not in the best interests of a child for that child to be the subject of repeated litigation between his/her parents. There is a focus in an application of this kind upon the change(s) in circumstances that outweigh the negative impact of reopening litigation.
The way in which the rule is to be applied had also been set out by the Full Court[5] in Marsden & Winch [2009] FamCAFC 152, where it was said at [50]:
… 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.
[5] The remarks in Marsden & Winch have been applied or referred to without disapproval by subsequent Full Courts in Searson & Searson [2017] FamCAFC 199, Shan & Prasad [2020] FamCAFC 189, Defrey & Radnor [2021] FamCAFC 67 and Stern & Colli [2022] FedCFamC1A 95.
As the Full Court said in Miller & Harrington (2008) FLC 93-383, the applicant is required to establish a prima facie case of changed circumstances[6].
[6] See also Defrey & Radnor at [16].
The Past Circumstances- Reasons for Previous Decision and Evidence
At final hearing in 2013, the father sought orders that the parents have equal shared parental responsibility for the subject children, that the children live with the mother and spend time with him in a graduating regime with an endpoint of each alternate weekend and school holiday time.
The mother proposed orders that would have seen the children live with her and that she have sole parental responsibility for them or, if the Court was not prepared to make that order, that she and the Minister equally share parental responsibility for the children. The mother sought that the children spend supervised time with the father on four occasions per year and that he otherwise be restrained from spending time with or communicating with them.
At hearing, the Minister sought two alternative suits of orders depending on the findings made by the Court. The first proposal would be enlivened if the Court did not make a finding of unacceptable risk of harm to the children from remaining in the care of their mother on the basis of continuing involvement with services provided to her through the Minister. In this case it was proposed that the Minister have sole parental responsibility for the children and determine where and with whom they live, that the mother undertake an assessment of her parenting capacity and cognitive skills and in the event she failed to comply with the requests of the Minister that the proceedings be re-listed. The Minister also sought orders providing for supervised time between the children and the father, communication, and various restraints to protect the children.
In the event the Court determined that there was an unacceptable risk of harm to the children if they were to live with the mother, then the Minister sought to have sole parental responsibility for the children until they reach the age of 18, that the Minister determine where and with whom the child live and various orders in relation to the children spending time and communicating with the parents and each other.
The ICL sought an order that the Minister have sole parental responsibility for the children and determine the children’s residential arrangements. In the event the Minister determined that the children were to live with the mother, the ICL sought orders that the mother undertake an assessment of her parenting capacity and cognitive skills and follow all directions and participate in all services to assist her parenting as determined by the Minister and in the event the mother fails to comply, that the children spend supervised time with her on no more than four occasions per year. The ICL also sought an order that the children spend supervised time with the father no more than four times per year and that the child M not be required to attend this time.
Orders were made by Johnston J on 10 April 2014 that provide in short that the Minister have sole parental responsibility for the children, the Minister determine where and with whom the children shall live, and the times and places and conditions upon when the children spend time with the parents. It was observed by Johnston J that in a strict sense it was unnecessary for the Court to consider the arrangements for the children to have relationships with each of their parents. However, Johnston J accepted the submission that it would be helpful for the Court to provide some guidance as to this matter. In this regard his Honour indicated that it would be appropriate for the children to spend supervised time with the father up to four times per year and with the mother approximately once a month or every six weeks. The father was also restrained from approaching and/or making contact with the children without the prior written consent of the Minister.
In his judgment[7] the trial judge set out in comprehensive detail the various matters including diverse and serious reports to the Department and the admissible evidence in the proceedings that underpinned the allegations that the mother posed an unacceptable risk of harm to the children.
[7] Jarrah & Neason And Anor [2014] FamCA 239 at [243] – [281]
After setting out these concerns, the trial judge made extensive findings[8] which were summarised by Rees J in Neason & Department of Communities and Justice and Anor [2019] FamCA 649 at [21] as follows:
[8] Jarrah & Neason And Anor [2014] FamCA 239 at [314] – [330]
•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 [in late] 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.
Circumstances Following the First Hearing
As outlined, on 10 April 2014 orders were made allocating sole parental responsibility of the children to the Minister who was also to determine where the children were to live. At this stage the children were aged 11, six, five, three and one.
In mid-2014 the children were placed with their maternal grandparents who were authorised foster carers. In late 2015 the children were removed for their maternal grandparents’ care due to allegations of abuse and chronic neglect.
In late 2015 K and R were placed together with a foster carer. On this date U and Z were also placed together with two foster carers.
The children remained in these placements until the placement of K and R broke down in 2017 due to ongoing conflict between these children. At this time K moved to live with U and Z. Following a period of emergency care, R was placed with a new foster carer in mid-2017.
In mid-2017 M (who is now 20 years of age) filed an application to vary the 2014 final orders in relation to her parenting arrangements. It is unclear where M was residing at this time.
In early 2018 the Department received feedback from K, U and Z’s foster carers that these children were experiencing significant distress and disruption due to the contact visits with the mother, father and maternal grandparents. Consequently, in mid-2018 the Department suspended the children’s time (including R who was living in a different placement) with their parents and maternal grandparents for six months. This suspension was then extended for a further six months for K, U and Z.
In late 2018 R expressed a desire to recommence spending time with her parents and maternal grandparents and from about this time arrangements were made for that to happen. R began writing letters to the father before resuming face-to-face time with him from mid-2019 on a bi‑monthly basis.
On 19 December 2018 the Court made orders allocating parental responsibility for M to the maternal grandparents and for this child to live with them.
In mid-2019 it was decided by the Department that K, U and Z’s time with the parents and maternal grandparents would be suspended for a further 12 months and reviewed at the conclusion of that time.
In mid-2020 the children’s views were ascertained by the Department and at that time K, U and Z indicated that they were open to writing letters to the mother. At this stage K, U and Z had not spent any time with the parents or maternal grandparents since early 2018.
Unfortunately, in mid-2020 the placement of K, U and Z ended due to poor health of their carer. U and Z were then placed with new foster carers. Despite some indication that these carers may not be able to continue to provide care for these children, they are now intended to be the long term placement until these children reach adulthood.
In mid-2020 K was placed in a different placement with new foster carers who are intended to be her long term placement until she reaches adulthood.
Since late 2020 R has been residing with a new foster carer in what is intended to be her long term placement until she reaches adulthood.
In summary, since 2020 all four children who are the subject of these proceedings have been living with foster carers in placements which are intended to endure long-term until adulthood.
In mid-2021 during a home visit with their caseworker, U and Z expressed that they would not like to spend time with their parents nor receive letters, photos or presents from them. At this time Z is reported to have stated that she could not remember her parents.
In mid-2021 K expressed that she too did not wish to have contact with or receive updates from her parents. It is to be noted that U, Z and K have not spent time with their parents or maternal grandparents for almost five years, since early 2018.
In mid-2021 a Risk of Serious Harm report was made to the Department that R had disclosed that the father had perpetrated sexual abuse against her. This disclosure led to a Joint Child Protection Response Program (“JCPRP”)[9] investigation which resulted in a substantiation of the allegations of historical sexual abuse in relation to the father. At the time this application was heard a police investigation in relation to possible criminal offending by the mother in relation to this matter was still ongoing.
[9] The Joint Child Protection Response Team is made up of officers from police and the Departments of Communities and Justice and Health and investigates allegations of serious child abuse.
In mid-2021 R expressed that she no longer wished to have contact with either of the parents or the maternal grandparents and consequently this time ceased. It is also recorded that R has expressed that she does not want her parents to receive photographs of her or anything beyond basic non-identifying information.
In early 2022 a caseworker from the Department provided U and Z with Christmas presents from the mother.
In early 2022 a caseworker from the Department provided K with a Christmas present from the mother. At this time K was asked whether she would like an updated photo of the mother, maternal grandparents and M which she declined. K also informed her caseworker that she would not like to write or receive a letter from any of the maternal family members.
In early 2022 the father was diagnosed with a terminal illness and given a prognosis of six months to live.
In early 2022 K was informed by her caseworker of the father’s prognosis. When informed of the father’s prognosis K informed the caseworker that the news was “a shock, but that she was feeling okay” and indicated that she would like to see the father.
In early 2022 U and Z were informed of the father’s diagnosis and prognosis. The caseworker observed that these children did not exhibit any signs of emotional distress on receiving this news but both indicated that they would see the father.
The Department began the process of organising a supervised contact visit between K, U, Z and the father but the Department were informed that the father had 48 hours to live, was nonverbal and slipping in and out of consciousness. For this reason, the contact visit did not go ahead. When informed by caseworkers that they would not be seeing the father, U indicated he had changed his mind about seeing him and K and Z wrote the father a goodbye letter which was provided to the paternal family.
In summary, at the time this application was heard in October 2022 R had not spent time with the mother or maternal family since mid-2021 in accordance with her strongly expressed wishes. This children K, U and Z had not spent time with the mother or maternal family since mid-2018. The child K had informed her caseworker that she was agreeable to receiving gifts from the mother but other than this K, U and Z continued to express that they did not wish to receive any letters or have any contact with the maternal family.
The matters contended by the mother to constitute a considerable and relevant change in circumstances
In written submissions filed on behalf of the mother and her husband, the mother identifies seven factors which she says constitute a considerable and relevant change in the circumstances that favour a change in the children’s parenting arrangements. These factors are:
(1)The death of the father;
(2)The mother marrying and living in a stable home with her husband;
(3)The mother participating in specific domestic violence & abuse courses and a mental health first aid course;
(4)The mother gaining insight into the trauma experienced by the children and her part in failing to protect them;
(5)The return of M to live with the mother and maternal grandparents;
(6)The mother gaining parenting experience through caring for her husband’s children;
(7)The change in the children’s care and contact arrangements including the cessation of the children’s time with the mother.
Many of these matters are interrelated and will be dealt with collectively below.
The death of the father
The mother’s contention that the death of the father is a significant change in the circumstances is somewhat difficult to follow. It is submitted on the mother’s behalf that the father was the main perpetrator of the abuse which lead to the children being taken into care and that the mother herself was the victim of coercive control at the hands of the father. The mother identifies that it was the Department’s concern as recently as 2019 that she remained under the father’s influence and if the children were to be returned to her care she would do his “bidding”.
The mother deposes that from 2016 she had ceased all contact with the father and asserts, as I understand it, that from this time she could not be said to be influenced by the father. The mother deposes that she changed her email address and phone number on several occasions preventing the father from contacting her and an ADVO against the father for her protection. The mother submits that her independence from the father is also evident from the fact that prior to his death, the father opposed her application to revisit the children’s parenting arrangements. Despite asserting that final separation was final and complete many years ago, the mother curiously submits that the father’s death allowed her and the children to “move on make (sic) the best of their future relationship”.
Both the Minister and the ICL contend that the death of the father is not a relevant change in the circumstances to warrant a reopening of the parenting proceedings. The Minister contends that the mother’s contention that she separated from the father and his influence on previous occasions is unconvincing and contends significantly that the father was not the sole perpetrator of abuse. The ICL asserts that the death of the father does not address the central contention of Johnston J that the mother “does not have an adequate level of parenting skills of a sufficient cognitive and ability and insight to enable her to protect the children”.[10]
[10] Jarrah & Neason and Anor [2014] FamCA 239 at [330].
The changes in the mother’s circumstances
The next four matters identified by the mother are said to address the findings made by the Court in 2014 judgment that the mother was considered incapable of change. The mother deposes that in 2016 she moved to live with the maternal grandparents in a large home with six bedrooms and three bathrooms on a large block of land. In 2018, after orders were made that the maternal grandparents have equal shared parental responsibility for M, this child also moved to live in the maternal grandparents’ home. The mother deposes that her sister and her partner also live in a granny flat which is situated on the property.
In 2020, the mother married her husband. The mother’s husband deposes that he has three children to a previous marriage currently aged 12, 15 and 17, who generally spend time with him each weekend. At the commencement of the marriage, the mother’s husband lived with her in the maternal home during the week and maintained a separate residence on the weekend where he cared for his mother and where his children spent time with him. The mother’s husband deposes that in recent times his mother has moved out of this home and he himself is in the process of moving to live with the mother full-time in the maternal grandparents’ home.
The mother’s husband deposes that in the context of his previous marriage there were no incidents of domestic violence or police attention. He deposes that he has been employed with the same employer for the previous 10 years and has strong ties to the local community including to friends and family. The mother’s husband deposes that he is in generally good health and does not take drugs or consume alcohol.
The mother’s husband deposes that he has met the parent’s third child, R on four occasions, including at his wedding to the mother where R participated as a flower girl. The mother deposes that her husband is a great support for her and would like to share parental responsibility for R with her. In his affidavit, the mother’s husband deposes that there is a “lot of love and affection” between him, R and the mother and that he would “welcome the chance to be her step-father”. The mother also deposes that R “gets along really well” with her husband’s children and expresses a desire for her children to be raised in a blended family with her husband’s children.
The mother deposes that since 2014 she has been engaged with numerous services in the community to develop her parenting skills including through participation in courses. The mother deposes to attending no less than 20 parenting courses from 2012 to 2020 and she has also participated in some limited training in Mental Health First Aid and has completed a tertiary qualification at a local institute.
The mother deposes that in 2016 she received psychological treatment and asserts that this treatment assisted her with understanding the effects of domestic violence and the effects of sexual abuse on children. The mother annexes a letter from her psychologist to her affidavit which outlines her treatment which occurred over 10 sessions. This letter makes no mention that the topics of domestic violence or child sexual abuse were discussed during the mother’s treatment.
For a period of approximately 12 months from mid-2018 the mother participated in regular counselling appointments with a social worker. She provides a letter from this social worker in which the social worker outlines that the mother engaged in counselling to address ongoing issues and concerns in relation to domestic violence, grief and loss and maintaining connections with her children. The social worker asserts that with her assistance the mother identified strategies to cope with her fears and worries, and also to manage emotional dysregulation, feelings of anxiety, panic, grief and loss. The mother asserts that this counselling assisted her to deal with her triggers and nightmares caused by domestic violence at the hands of the father.
The mother deposes that she now helps to keep the home in which she lives, neat and tidy and that this home is free from cockroaches. She further asserts that if given the chance, she would be able to maintain the cleanliness of the children’s bedrooms, provide clean bedding and linen and wash clothes. The mother deposes that she has the energy and skills to provide nutritious meals for the children on an ongoing basis and in support of this contention provides a list of meals she intends to cook or purchase for the children.
According to the mother’s affidavit, she has done everything that she can to become a better mother and to protect her children from physical, emotional and psychological harm. She further deposes that when the 2014 orders were made, she was under the control of the father and did not act as a protective parent as she was not aware that the children were being psychologically harmed by witnessing the father’s abuse of her.
It is submitted on behalf of the mother that re-partnering and living in a stable and safe home with her husband is a change in circumstances which was not foreseen at the time of the 2014 orders. It is submitted further that re-partnering with a non-abusive partner is very relevant in this case as the 2014 orders were made in the context of terrible domestic abuse.
It is contended by the mother that her completion of courses in relation to domestic violence and abuse have allowed her to appreciate the reasons the children were removed from her care and to understand her “dysfunctional” relationship with the father which she says, will assist her to avoid making the same mistakes again. The mother also contends that she now has an understanding of the trauma the children have been through and has an appreciation of her part in witnessing and failing to protect the children.
It is submitted on behalf of the mother that she has gained appropriate parenting experience through caring for M who returned to live in the maternal grandparents’ home in 2018 and by providing care for her husband’s children. M was aged 18 when the mother swore her affidavit. The mother deposes to assisting in the day-to-day care of this child and providing financial assistance. In his affidavit, the mother’s husband deposes that the mother spends a lot of time on her own with his children, including taking the children shopping. The mother deposes that she has implemented skills learnt in parenting courses in the care of M and her husband’s children.
It is also submitted on behalf of the mother that M moving to live in the maternal grandparents’ home is a change in the circumstances as it is evidence of “healing” and an indicator that “the future relationship between mother and children is not only possible but probable”. This submission is not expanded upon further but the mother criticises the Department for not being willing to examine the “new dynamics within the household”.
Both the Minister and the ICL contend that the four matters mentioned by the mother which can be characterised as the changes in the mother’s circumstances do not address the major concerns about the mother’s parenting capacity held in 2014 in any substantial way. The Minister observes that due to the mother’s age, it was always likely that the mother would find a new partner. Further, the Minister observes that in 2014 it was found that the mother was unable to parent the children adequately without assistance from the Department. The Minister contends that it is apparent that at the current time, the mother is relying upon her husband and the maternal grandparents to provide assistance to her in the domestic environment. It is to be observed that the children were removed from the maternal grandparents’ care in 2015. The maternal grandparents have not sworn an affidavits which addresses the risks which led to the children being removed from their care, and do not identify how R would be protected in their care.
While it is observed by the ICL that it is to the mother’s credit that she has engaged in various activities including parenting courses and counselling, the ICL and Minister contend that participation in such courses is not sufficient to address the grave concerns held by the trial judge described as follows:
322.In my view, on the basis of the detailed material in the evidence, this Court could have little confidence, that if the mother was given more time and continuing supports, she would be able to improve her practical parenting skills to a level which would enable her to satisfy the reasonable needs of her five children. And in my view their needs will only increase with their development.
The Minister and ICL also observe that at hearing, the single expert held concerns around the mother’s cognitive capacity. The trial judge stated at [318]:
…Ms O expressed a concern about whether the mother has sufficient cognitive ability to be able to protect the children. The first area of this is whether she would be able sufficiently to resist the father’s suggestions given that she feels the need to acquiesce to him. The other area is whether she has the cognitive ability to be able to develop insight into situations which confront the children on an ongoing basis. For example, Ms O’ was concerned that the mother thought that the risk which the father constituted for the children was in terms of her fear that he might abduct them to Queensland, rather than they might be exposed to his unacceptable violent or sexually abusive behaviour, or that the children might be exposed to such risks in the presence of other persons, especially persons who might visit her home. As indicated above, Ms O thought a cognitive assessment of the mother might assist in informing the authorities about whether the mother would have the cognitive capacity to develop such insight.
It is the contention of both the Minister and the ICL that the mother has not presented sufficient evidence to address the concerns about her parenting capacity in any substantial way. The Minister observes that many of the matters identified in the mother’s affidavit including parenting courses and support are the same matters which were the subject of the mother’s 2019 application, which was dismissed. The mother has not presented any evidence in relation to her cognitive ability other than some paragraphs in her affidavit which the ICL notes appear to indicate that the mother believes the concerns around her cognitive capacity related to the fact that she was in thrall to the father. As can be seen from the extract above, the concerns in relation to the mother’s cognitive ability were broader than her relationship with the father.
The change in the children’s care and contact arrangements including the cessation of the children’s time with the mother.
The last mentioned matter is unrelated to those previously discussed. The mother deposes that each of the children’s foster care placements have broken down and the children have moved a number of times. The mother contends that continuously moving placements and consequently moving schools is not healthy for the children and may cause them to feel that they are not loved or wanted.
The mother also deposes that in November 2020 during a conversation with an officer of the Department that the Department agreed to support the mother in seeking to have R return to her care.
The mother asserts that R has been expressing that she misses the mother and her family and has been asking her caseworkers to be restored to the mother’s care. The mother further contends that this child has enjoyed spending time with her, her husband and children and has written letters to the mother stating she would like to “come home”.
In her affidavit, the mother deposes to issues in relation to the care of the other children. In particular, the mother makes complaint about one of the children’s previous carers who she says caused K to believe the mother perpetrated harm against her, repeatedly advised U (who is a boy) that he is a girl and insulted his name and did not allow the children to have family pictures. The mother deposes that M also witnessed this carer slap the three children who were at that time in her care.
The mother asserts that she has tried to have a relationship with the children but the agency have intervened in this relationship. For example, she deposes that gifts she has sent to the children have not been delivered to the children. The mother denies the substance of the complaints made by the children’s carer which led to the cessation of the children’s time with her. The mother also attributes blame to the children’s carer for the children no longer participating in letter writing with her.
As outlined above, K, U and Z have not spent time with the mother since early 2018 in accordance with their wishes. The mother’s affidavit was sworn and filed in July 2021. The following month, R expressed that she no longer wished to spend time with the mother, father or maternal family and has not done so since this time. According to an affidavit sworn by the children’s case manager in June 2022, none of the children have spent time (or expressed a desire to do so) with the mother since the cessation of time in early 2018 and mid-2021. It is noted that each of the children have been in stable placements with carers who are intended to be their long-term carers since 2020.
Written submissions filed on behalf of the mother in November 2022 are confusing and difficult to follow. Further, the submissions contain some fundamental misunderstanding of the applicable law.
In relation to this matter, it is first submitted on behalf of the mother that if the Court had considered it “appropriate” in 2014 to order that the children spend no time with the mother, such an order would have been made.
This is an incorrect understanding of the matters that the trial judge was required to determine. In this regard the trial judge recorded the following:
..In a strict sense it is unnecessary for the Court to consider the arrangements for the children to have relationships with each of their parents. This is because responsibility for the parenting of the children will be placed with the Minister.
Next, in submissions made on the mother’s behalf significant criticism is levelled at the way in which the Minister and her delegates have exercised parental responsibility for the children in particular in relation to ceasing the children’s time with the mother. I understand the mother to contend that the Department has not “shown” why the “Draconian” measure of ceasing the children’s time with the mother was justified.
There is no onus on the Minister to demonstrate to the Court “why” the decision has been made to cease the children’s contact with the mother. The submission that the Minister must abide by the legislative pathway in respect of parenting orders when making the contact arrangements between children and their birth parents is incorrect and the manner in which the Minister exercises her parental responsibility is not relevant in determining this application.
The evidence of the mother in relation to the circumstances of the children is contested by the Minister, who relies upon an affidavit of the relevant caseworker from the Department deposing to the children’s current circumstances which have been set out earlier in these Reasons. It is the Minister’s position that the Department does not support R returning to the mother’s care and as such, denies that there have been conversations between the mother and the service provider in relation to this.
The evidence of the Minister in relation to the wishes of R directly conflicts with the evidence of the mother. The caseworker’s affidavit annexes records of home visits conducted by the caseworker with day to day responsibility for the care of this child, including conversations in July and August 2021 about the child’s view concerning contact with her parents and grandparents. The tenor of those records is that the child did not wish at that time to have contact with the father or face-to-face contact with the mother.
After R expressed that she did not want to spend time with the mother, the case worker sought the opinion of the child’s therapist which is annexed to the caseworker’s affidavit. In summary, the child’s therapist recommended that R is supported in her request to cease contact with her parents. The therapist notes that this child had recently disclosed sexual abuse by the father and the mother’s failure to protect her from harm. She opines that in these circumstances and given the emotional, behavioural and social disturbances which are observed following contact with her parents, it is expected that if the child has no contact with her parents the outcome will be good in terms of protecting this child’s sense of security, safety and the stability of her current placement. In short, the therapist opined it is expected that contact between this child and her parents would likely perpetuate and exacerbate harm from previous abuse.
It is the evidence of the Minister that R is settled in her current placement and has been observed to have a very close relationship with her carer, which is supported by records of casework performed by the service provider. Similarly, each of the other three children are reported to be settled in their respective placements and continue to hold the view that they do not wish to spend time with the mother or maternal family.
Is There a Likelihood of Orders Being Varied in a Significant Way as a Result of a New Hearing?
In determining this, I must consider whether the mother’s proposal (that R live with the mother, that the mother and her husband share parental responsibility for this child and that “family contacts” be put in place for the other children) carries any prospect of success. In my view, there is no real likelihood that the 2014 orders would be varied in the way sought by the mother.
First, I accept the submissions of the Minister and the ICL that the mere facts that the father has died, the mother has re-partnered and the M (now an adult) has returned to live with the mother cannot of themselves be seen as significant changes in circumstances, nor are they matters which were not foreseen at the trial. Similarly, I accept the submissions of the Minister and the ICL that the mother’s participation in courses and access to services, and the insights she may have gained from such participation, is insufficient to address the grave concerns held by the trial judge in relation to her parenting capacity.
While it is contended by the mother that it is R’s wish to move to live with her, I accept the evidence of the Minister that it is the child’s view that she does not wish to have any contact with the mother including by receiving gifts or letter writing.
The Minister submits that R does not currently have a meaningful relationship with the mother. It can be inferred that this submission would also apply to all of the children who are the subject of this application. I accept this submission and find it particularly relevant that R has not spent time with the mother for almost 18 months, and the other children have not had any contact with the mother for almost five years.
I place significant weight on the evidence of R’s therapist referred to earlier that continued contact with the mother would place considerable strain on this child and would likely perpetuate and exacerbate harm from previous abuse. I also place significant weight on the evidence that this child shares a close relationship with her current carer and that she had reported feeling “safe” in her care.
The Potential Detriment to the Child Caused by the Litigation Itself
It is also imperative in child-related proceedings to consider the detrimental impact of the proceedings on the subject children particularly in cases such as this where the children have experienced harm of the most serious nature arising from the actions of both of her parents.
While it is accurately observed by the mother that the children’s circumstances have changed on several occasions following the 2014 orders due to breakdowns in their respective placements, and this is likely to have caused the children further harm, it cannot be said that varying the children’s arrangements including by reintroducing contact with the mother will bring about the benefits that the mother describes in her affidavit.
In all of the circumstances under consideration, I am of the view that it is not in the children’s best interests to reopen the proceedings and expose them to litigation given their vulnerability and the need to protect them from the risk of further emotional and psychological harm.
CONCLUSION
Having regard to the foregoing matters, there is in my view insufficient evidence in the mother’s application to establish a prima facie case of changed circumstances. Further, even if I were to accept there had been changes in the children’s circumstances as contended, these changes are not sufficient to justify reopening the proceedings having regard to the very limited prospect of success of the mother’s application and the potential detriment to the children caused by the litigation itself. Accordingly, I dismiss the mother’s application.
I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam. Associate:
Dated: 22 March 2023
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