Re Helen

[2004] NSWLC 7

Local Court of New South Wales

CITATION:	Re Helen [2004] NSWLC 7
JURISDICTION:	Children's Court
PARTIES:	Director General of Department of Community Services; Re Helen
FILE NUMBER:
PLACE OF HEARING:	St James Childrens Court
DATE OF DECISION:	01/29/2004
MAGISTRATE:
CATCHWORDS:	Parental responsibility - contact orders
LEGISLATION CITED:	Children and Young Persons (Care and Protection) Act 1998 s44, s82
CASES CITED:	Hughes K & M, In the Marriage of (1980) FLC 90-869 Sedgley, In the Marriage of (1995) FLC 92-623
REPRESENTATION:
ORDERS:

Reasons for Judgment

In these proceedings, commenced by the Director-General of the Department of Community Services, it is common ground that the subject child, “Helen”, should be placed in the parental responsibility of the Minister until she attains the age of eighteen years. The issue to be determined relates to contact and, in that regard, two proposals are offered to the Court. The Director-General handed up a minute of orders providing for Helen’s face-to-face contact with her mother, supervised, for a minimum of two hours on six occasions per year together with at least monthly telephone contact. In order to accommodate Helen’s particular needs for the first twelve months after orders are made, the minute provides that such face to face contact occur not merely in alternate months but on a monthly basis. It should be emphasized, as Ms. Collopy submitted, that the pattern of contact proposed by the Director-General, particularly for the first twelve months, represents a very significant concession to Helen’s particular needs and circumstances and great deal more contact than might otherwise have been anticipated in the case of a long term placement. Further, it was stressed on behalf of the Director-General that his contact proposals represent a minimum which he might not be adverse to increasing from time to time should circumstances suggest that course.

By contrast, the Mother, in an amended minute of proposed orders handed up on 8th December, 2003, seeks face to face contact for a minimum of three hours on each alternate Sunday or, after a period of two months from the date of orders, for six hours on one Sunday per month. Having heard the evidence, I can say that there is little to support the first leg of that proposal. Further, the Mother proposes that the face-to-face contact take place from [………] Church at [……] where she worships and where Helen is comfortable and well known and she proposes that the contact be supervised at the discretion of the rector of that parish. The Mother seeks reports pursuant to section 82 as to Helen’s progress and welfare during contact and in her out of home placement after six and, again, after twelve months. In addition, the Mother seeks an order for weekly phone contact.

In support of her proposals, [the Mother] relied on her affidavits sworn 21st August and 7th November, 2003 and on the affidavit of Margaret Mary Spencer, a community health worker, which was sworn on 7th November, 2003. The Director-General relied on the affidavits of Sue Bauer, acting manager casework, affirmed on 8th April, 21st July and 12th November, 2003 and on the affidavit of Briony Foster, a child protection caseworker at Chatswood JIRT, sworn on 13th May, 2003. Plans were filed on 30th April, 2003.

The Court had the benefit of a number of annexures to affidavits including three reports, dated 16th July, 28th October and 10th November 2003, signed by Diane Murrell of the foster care team in the Department of Community Services. There is a “consultation report” prepared by Ms. Spencer, a short medical report and, more importantly, a report and update from Chatswood Joint Investigation Response Team [JIRT]. There are a number of access reports and, strangely enough, a document in the way of a confession signed by Doug McDougall and annexed to one of Ms. Bauer’s affidavits. Ms. Foster’s affidavit of 8th April, 2003 annexes a report by Christian Community Aid Service. There is, annexed to the affidavit of Ms. Bauer of 12th November, 2003, an undated report which relates to Helen’s referral to Barnados Find-a-Family programme together with a copy of a published article entitled “Establishing Permanency for children – the issue of contact between children in permanent foster care and their birth families” credited to “Barnardos Staff”.

Pursuant to an assessment order made on 14th May, 2003, there was a Children’s Court Clinic report of 24th June, 2003 prepared by Miroslav Zivanovic. Mr. Zivanovic interviewed Helen twice and administered a number of tests. He made a home visit to her foster placement, observed a contact event and interviewed Helen’s school counsellor and foster carer as well as interviewing, assessing and testing [the Mother]. He read ERISP interviews of the Mother and Doug McDougall, various access reports and the initial affidavits filed in these proceedings.

At the hearing, Ms. Collopy appeared for the Director-General of the Department of Community Services, Ms. Wearne appeared for the Mother and Ms. Hall appeared in Helen’s interests. Ms. Bauer, the Mother, Mr. Zivanovic and Ms. Spencer gave evidence and were cross-examined.

Helen was born on 5thMarch, 1994. She is the only child of [the Mother]. Her father’s identity is unknown except that he may have been a Sri Lankan sailor. Helen lived with her mother until she was assumed into care pursuant to section 44 of the Children and Young Persons (Care and Protection) Act 1998 on 26th March, 2003. For most of the time, Helen’s grandmother, [the Grandmother], was a member of the household and, I think, the dominant member of the household, until she died on 25th December, 2002. She and Helen were very close but the relationship between [the Grandmother] and [the Mother] may have been quite complicated. According to Mr. Zivanovic, [the Mother] reported to him that she had long experienced difficulty in establishing her own independence and freedom from her mother whom she described as progressively becoming more and more depressed, moody, hard to live with and a hoarder. How, in turn, [the Grandmother] may have described her daughter is not recorded. They lived a very isolated life, apparently surrounded by squalor and clutter.

[The Mother] is identified as developmentally delayed in a number of areas including cognitive, communication and socialisation skills and is on the mild to borderline range of intellectual disability. Mr. Zivanovic and Ms. Spencer both accept that she has an extremely limited capacity to care for Helen and is vulnerable, in particular, to allowing others to take control and, according to Ms. Spencer, would be unable to model or protect the child from various forms of exploitation. She has been a hoarder with a tendency to isolation and in the past has struggled, sometimes unsuccessfully, to meet her daughter’s needs. These various matters may explain the particular place which the grandmother had occupied in Helen’s life and the catastrophe which [the Grandmother’s] unexpected death represented for the surviving family of two. In addition, both mother and grandmother were born in the United Kingdom and there are no relatives living in Australia and few, if any, close and involved relatives living in Britain.

From Helen’s point of view, the circumstances of [the Grandmother’s] death were ghastly. According to [the Mother], her mother retired for a nap on Christmas afternoon and then called out, saying she was suffering chest pains and needed an ambulance. [The Mother] told Ms. Spencer that she was frightened and panicked and, although she could see that her mother was in trouble and needed help, felt paralysed with the fear of having to grant access to the home to whoever might answer her call for help which was something her mother, at earlier times, would never allow. She told Ms. Spencer that “All I could see around me was the mess and there was no room to move…I didn’t know how I could let them in…” Helen was present during all this, screaming for help, while [the Grandmother] was making gurgling sounds but [the Mother] was unable to do anything and, eventually, [the Grandmother] fell silent. [The Mother] and Helen were frightened and helpless and “felt empty” and “fell apart” when [the Grandmother] died and, in fact, mother and daughter remained in the home with the body, not able or knowing how to summons help, until they were discovered some two days later. Eventually, aid arrived in the shape of Doug McDougall who contacted police and supported mother and daughter until two of [the Mother’s] sisters arrived from the United Kingdom to arrange their mother’s funeral.

The place of Doug McDougall in their lives is an important feature of Helen’s upbringing while in the care of her mother. Mr. McDougall was over seventy years of age when he and [the Mother] first met. He was a tenant at Department of Housing units at Gladesville in 2002 where, for a brief time, [the Mother] and Helen occupied another unit in a short lived and unsuccessful attempt to manage independently of [the Grandmother]. Mr. McDougall and [the Mother] became friends and, ultimately, there was a degree of sexual intimacy between them although she says that she did not consider that they had a sexual relationship. He used to help her around the house, carrying the shopping upstairs or fixing electrical appliances and, no doubt, he was company for her. It was to Mr. McDougall that mother and daughter turned after the death of [the Grandmother].

In March, 2003, the child disclosed to a friend, Melissa and, later that day, to Senior Constable Clarke and Briony Foster of JIRT that, on a number of occasions, Mr. McDougall had taken Helen or into his room and used her sexually. She disclosed that he had touched her breasts and her genitals, invited her to touch his genitals and she told Melissa that he “rubs up and down and rubs under my skirt.” She told the JIRT officers that Mr. McDougall “would pull his penis out of his pants” while she touched it so that, on occasions “it grew longer” and, on one occasion it “became slippery.” Helen made it clear that these behaviours had occurred on a number of occasions over a protracted period and, alarmingly, that they had occurred with the knowledge of [the Mother] and sometimes in her presence and with her participation. Helen disclosed to Ms. Clarke and Ms. Foster that Mr. McDougall “would touch and squeeze [the Mother’s] breast while touching Helen on the arm” and then “progressed to touching Helen’s breasts also” while [the Mother] looked on. On about six occasions, mother and daughter were lying on a bed together with Mr. McDougall when behaviour of this description took place. He later told police that he had never penetrated Helen but said that he would press his penis up against Helen’s vagina “like you would do in a normal sexual relationship.”

In general terms, these allegations have been confirmed by [the Mother] and, I believe, by Mr. McDougall. As I understand it, Mr. McDougall has died and no prosecution was undertaken against [the Mother] which I think had to do with the Crown’s assessment of her developmental delay and diminished responsibility. It is clear to all the parties to these proceedings, including [the Mother], as it is clear to the Court, that Helen was in need of care and protection and cannot reside with or in the care and parental responsibility of her mother in the future. Helen has been in short term foster care since March, 2003 and the case was established by consent and “without admissions” on 9th April, 2003.

Both the circumstances of their isolation and mode of living and [the Mother’s] intellectual status and poor functioning may have contributed to the difficulties faced by Helen. Her developmental status is described by Mr. Zivanovic in his assessment report. She presented to him as “a physically healthy and well developed child of above average height and weight.” She was assessed as “functioning at the borderline range of mild intellectual disability.” As an infant, her expressive and receptive language were delayed, she didn’t speak much until she was three years of age, was tongue tied and apparently had trouble understanding what people were saying to her. After surgery, these problems saw Helen placed in a special school for two years and then she entered the mainstream school system in Year 2 at [ ] Public School.

When Mr. Zivanovic saw her in 2003, Helen was quite shy and withdrawn at first but later developed appropriate levels of confidence and rapport. She impressed Mr. Zivanovic as having moderately to severely delayed expressive and receptive language skills with difficulty in articulating her thoughts and in comprehending complex instructions. The various tests which Mr. Zivanovic administered indicated that Helen possesses “low average potential for learning” with “slightly depressed verbal skills comparative to non-verbal [performance] skills.” Her reading skills were seen as “commensurate with her assessed level of potential [reading age 9 – 34th. percentile] while achievement in spelling and numerical reasoning were measured to be approximately 15 months and 31 months respectively below age/grade level.” According to Mr. Zivanovic, the strong indications were that Helen required individualised weekly remedial classroom tuition in basic skill areas of reading, writing and spelling.

Mr. Zivanovic administered tests to gain an estimate of the degree of trauma which Helen may have been suffering at the time he saw her. The tests results, which he assessed as valid, showed trauma to be “within normal limits”. “Helen reported no excessive feelings of anxiety [– generalised anxiety, hyperarousal and worry]; depression [– feelings of sadness, unhappiness and loneliness]; anger [– angry thoughts, feelings and behaviours]; post-traumatic stress [– intrusive thoughts, nightmares, fears, memories of painful past events and avoidance of painful feelings]; or dissociation [– one’s mind going blank, emotional numbing day dreaming, memory problems and dissociative avoidance].”

Apparently, Helen had been able to settle in well in her short-term foster placement and had made friends at school and, according to the counsellor at her school, was well mannered and behaved in the classroom. Sadly, her present foster placement where, according to Mr. Zivanovic, she has formed a very close attachment with her foster parents and their daughter, Thea, and has thrived, is not available long term and the Department of Community Services intends to seek a long-term placement through Barnardos Australia.

Mr. Zivanovic reported in the assessment report that Helen and her mother share a mutually very close bond and attachment and Helen “has expressed a desire to be reunited with her mother in the near future.” Even in her happy short term placement, she told Mr. Zivanovic, she missed her mother and was worried about [her Mother] being on her own. According to Mr. Zivanovic, “Helen exhibited a keen interest in seeing her mother for extended supervised day visits during the coming school vacation period and more frequently during school terms if arrangements could be made.”

The section of the assessment report entitled “Observation of Contact Visit between [the Mother] and Helen” records the child expressing delight at seeing her mother, rushing towards her to greet her, exchanging a warm embrace and fondly kissing [the Mother]. “Helen was keen to give her mother a self-portrait that she had drawn for her mother to hang up at home as a reminded of her love for her.” It is reported that, “several times during their seated conversation at McDonalds,” where the contact visit was taking place, “Helen would rise and give her mother a spontaneous hug around the neck.”

Mr. Zivanovic is adamant that Helen’s primary attachment is with her mother and that, not surprisingly given her age and history, such attachment is already firmly established and is unlikely to change even if, in addition to it, she manages to form another very strong attachment to foster carers. He foresees further changes in the child’s life including a departure from her present short term placement, a possible bridging placement, perhaps, although one would hope not, an unsuccessful placement which has to be changed, changes of schools and loss of friends and he believes that, through it all, Helen should be able to depend on her primary attachment to her mother as an aide to her own feelings of identity, security and self-worth. Furthermore, he thinks that Helen will be anxious about her mother’s welfare, particularly in her own absence, and needs frequent contact to satisfy herself that [the Mother] is coping. Mr. Zivanovic told the Court that, in those various circumstances, it is imperative that the child maintains sufficient contact with her mother. Perhaps it is significant that Helen’s present short-term foster carer is something of an advocate for the child’s increased contact to her mother.

Mr. Zivanovic’s expert view is that the importance of sufficient contact between mother and daughter would be less were Helen’s attachment not already set or were she an infant with no clear memory and experience of her mother. He would see contact as problematic were [the Mother] a person who poses a threat to her daughter’s emotional, physical or moral welfare but, despite what has gone on in the past and having in mind the protections and supports which care orders will provide, I am satisfied that no such threat persists. Further, Mr. Zivanovic would see contact as problematic, despite Helen’s need for it, were [the Mother] a person prepared to destabilise or undermine her daughter’s placement. Fortunately, there is no suggestion that [the Mother] has any such intention or desire. No doubt with great difficulty and pain, [the Mother] has accepted Helen’s need for out of home care and has recognised her own inability to provide an upbringing for her daughter. She has consented to this case being established and to a long-term order granting parental responsibility for Helen to the Minister. There is nothing in the evidence to suggest that [the Mother] will seek to subvert the arrangements which the Minister puts in place and the reports of those who have supervised and monitored contact events indicate an intention on the Mother’s part to be positive in that regard.

Far from accepting the view that continued exposure to and involvement with [the Mother] might distract Helen from the business of settling down and forming useful and affectionate attachments to foster carers and others in such new placement as the Minister might provide, Mr. Zivanovic told the Court that, in his opinion, such future placement is likely to be undermined unless there is sufficient mother/daughter contact and unless it is recognised that Helen comes to a new placement complete with a number of characteristic including a strong primary attachment to her mother. He sees those matters as demanding of “sufficient” contact and forecasts significant resentment and resistance to her new circumstances on Helen’s part, leading to defiance and rebellion, if so important a factor in her emotional makeup is ignored.

In cross-examination, Mr. Zivanovic agrees that Helen’s “top priority” will be to establish new and useful relationships in her long term out of home placement but he emphasised that the recognition of her already established and, he believes, permanent primary attachment will not inhibit the establishment of those new relationships. Rather, he insists, the lack of appropriate recognition of Helen’s existing attachment to her mother, just like a refusal to accept, recognise and properly allow for any innate or any other deep-seated and permanent characteristic of the child, far from easing Helen’s blending into a new family will actively work against it.

Of course, everyone involved in this case advocates contact between Helen and her mother and the Director-General’s proposals involve significantly more contact, at least for an initial period, than would be accorded many other children about to be placed in long term out of home care. Mr. Zivanovic recommended to the Court that there be at least fortnightly contact for a period of a year and then a reassessment to gauge Helen’s wishes and needs at that point. He expressed the view that contact periods of two hours or so are inadequate and that staging contact events in a shopping centre is less than ideal if one is adequately to recognise a relationship of importance and complexity and he suggested a half day as an appropriate duration of a contact event. Taking that evidence and the access reports into account, I agree with his views in regard to the venue in which contact should take place. Helen has become accustomed to contact taking place outside the confines of Departmental premises and I think she has benefited from that experience. At her age, she is likely to find any such restriction increasingly irksome. It seems to me that the proposal that the contact be associated with [ ] church and the friends which mother and daughter have made is a good one which should be taken up. Should the Minister decide to enlist the aid of members of that congregation, I think that Helen’s contact to her mother, which, because of her school commitments, really must occur on a Saturday or a Sunday, will be facilitated to everyone’s benefit.

Margaret Spencer’s evidence was allowed after objection. The thrust of the objection was that she was too much the advocate of [the Mother’s] position but I found Ms. Spencer to be a very erudite and thoughtful witness and a very highly qualified one. To a large degree, it appears that her opinions and assessments as to [the Mother’s] shortcomings as a caring parent and the disabilities, difficulties and challenges she has faced and as to Helen’s percepts and needs are not too dissimilar from those advanced by the Director-General but there is an issue in relation to contact.

Like Mr. Zivanovic, Ms. Spencer believes that Helen’s attachment to her mother is significant and is already formed and will not be broken by moving the child or by creating a contact regime in which its importance and significance is insufficiently recognised. She agrees that to do so will merely prompt resentment or rebellion and will inhibit Helen’s progress in her new placement. If her attachment to her mother is not respected Ms. Spencer believes that Helen’s attachment to her new family will probably fail.

Ms. Spencer characterised the Director-General’s contact proposals as inadequate because they involve a reduction of face-to-face contact over time to some twelve hours per year. She though that, even if such limited and short periods of contact might serve the needs of some children for whom the preservation of a clear memory of a parent might be sufficient, they would be inadequate for Helen’s whose attachment is already fixed and for whom contact is “not merely about memory but about relationship.”

Ms. Spencer’s opinion, like Mr. Zivanovic’s, is that “contact, if it is ‘good contact’, does not threaten a new placement.” This opinion contradicts the assertion in the paper “Establishing Permanency for Children” published by Barnardo’s Australia and annexed to Ms. Bauer’s affidavit that “visits that are too frequent can interfere with a child’s attachment to their new family….”. Ms. Spencer’s view is based on a child’s ability to attach to more than one person in more than one situation and she maintained that, if a primary attachment is not properly recognised by sufficient contact, that failure might easily lead to the failure of the new attachment and, indeed, the placement. She specifically rejected the proposition, put to her by Ms. Collopy, that, were Helen to see less of her mother, her need to spend time with [her Mother] would diminish.

Part of that need, Ms. Spencer said, has to do with her pronounced need to be confident that her mother is coping and doing well. Mother and daughter have been through a lot together what with their heavy reliance on [the Grandmother], the circumstances of her death, the isolation and squalor in which they lived, the behaviour towards them of Mr. McDougall and their forced separation.

Of course, as Ms. Spencer reminded the Court, a child’s contact with a primary attachment figure must be good contact or else other damage to the child might be expected. But, in the present case, there is no danger, I think, that, given proper help and supervision, the contact between mother and daughter will be damaging to Helen. In that connection, Ms. Spencer thought it was significant that there has been no attempt by [the Mother] to undermine Helen’s placement and that there appears to be no unresolved issues, in [the Mother’s] mind or in Helen’s, as to the reasons why the child had come into care in the first place and remains and will continue in care.

She agreed with Mr. Zivanovic that [the Mother] is not likely to try to undermine Helen’s placement in out of home care.

Exhibit “1” is an e-mail to Ms. Bauer from Carol Boland, a psychologist from the Department of Health at North Sydney Child Protection Service. With regard to Helen’s ongoing contact with [the Mother], Ms. Boland wrote, “while we have no way of predicting the specific effects on Helen of a reduced level of contact…it is always in the child’s best interests to maintain regular contact unless the contact is experienced as traumatic or puts the child at risk. In Helen’s case there is ample evidence that she enjoys her current levels of verbal and physical contact with her mother. It could be very reasonably argued that this regular contact is contributing to the lack of symptoms Helen is experiencing in the [short term] placement.” In expressing these sentiments, Ms. Boland, who was not called and did not appear, was dealing with the period during which Helen would be in short term care or making the transition to a long term placement but the view is instructive in terms of the benign and constructive effect of the child’s contact with her mother. There is certainly no suggestion that contact to [the Mother] represents a threat to Helen’s stability.

When she came to address the Court, Ms. Collopy reminded me that there will be a final order involving long term out of home care and that there is no prospect of a restoration. That position appears to be common ground and is supported by the evidence. To that end and although no formal application has been made, the Department has approached a number of agencies, including Barnardos Australia, to sound out the prospect of a long-term placement for Helen. Barnados, which, Ms. Bauer commented, appears to be an agency with one of the more “restrictive” contact policies, has indicated that, nevertheless, it could handle Helen’s placement even in the event of contact orders based on the Director-General’s minute but she thought it would baulk at the contact proposed by Ms. Wearne.

Annexed to Ms. Bauer’s affidavit are copies of e-mails addressed to Ms. Bauer from Diane Murrell of the Department’s Out of Home Care team at Manly. She outlined the contact policy of agencies, including Barnardos Australia, as being “in the range of 4-6 visits per year” and stressed to Ms. Bauer “the need for access to be set at a reasonable and sustainable level” as “an important factor in locating a long term family for Helen” and she mentioned another case where final orders had been made but “the case is about to be returned to Court with a psychologist’s recommendation that the level of access be reduced.” I am unaware of the bases of that recommendation or the ultimate fate of the case.

In a further e-mail, Ms. Murrell told Ms. Bauer that, having raised Helen’s case with Barnardos Australia, she had been told that that agency “could not consider a referral where there was a fortnightly level of contact.” It is difficult not to feel that perhaps Ms. Murrell was mistaken in what she understood Barnardos to have told her. Given the sentiments expressed in Barnardos’ paper “Establishing Permanency for Children…” about the need to give individual consideration to the appropriate level and type of contact in each case, there surely cannot be a “one size fits all” policy adopted by so prominent an agency.

Ms. Murrell went on to remind Ms. Bauer that, although she shares the fear of the agencies that recruitment of carers might be significantly complicated depending on the level of contact orders, the Department remains “the agency of last resort” and, if pressed, would have no choice but to seek a permanent placement for Helen.

Annexed to Ms. Bauer’s affidavit of 12th November, 2003 is a memorandum signed by David Jenrick, programme manager, adoption and permanent family care, Barnardos Find-a-Family. The memorandum indicates Barnardos’ agreement with the contact regime for Helen proposed by the Director-General but points, in general terms, to its experience and opinion “that manageable and sustainable contact between the child and [their] birth family be at a level which does not undermine the security and permanence of the child’s placement.” “It is important,” Mr. Jenrick wrote, “that the frequency of contact is established at a level that is manageable for all parties. The age, developmental level and emotional resilience of the child need to be taken into account. In any contact plan the needs of the child must be paramount but it is also important that the plan is practically manageable for every one involved. Due to the nature of Helen’s relationship with her mother, it seems suitable for the contact to reflect that of the proposed care order [ie the Director-General’s proposal] however, future contact orders will need to reflect the individual needs of Helen’s placement in permanent care and therefore require a degree of flexibility.”

As I understand the Director-General’s case, the principal opposition to the contact proposals put by Ms. Wearne on behalf of the Mother arises out of the fear, expressed by Ms. Collopy, that Helen will be hard to place and it will be difficult to find an agency prepared to take on the task if she is allowed that sort of contact regime. Ms. Collopy submitted to the Court that, already, the Director-General is proposing [comparatively] liberal contact arrangements in recognition of the child’s primary attachment but is anxious not to diminish the chances of finding a good placement.

The Court hardly needs to be reminded by Mr. Jenrick that in setting an appropriate level of contact, the best interests of the child are paramount. I think, with respect, that he is correct when he writes that the age, developmental level and resilience of the child are to be taken into account although I think that a number of other factors including the child’s background, history and experiences, the nature and quality of his or her primary attachment and other attachments, the circumstances of the child coming into care and the child’s percepts with regard to that, the child’s wishes and the willingness of the natural parent or parents to act responsibly and, in particular, to refrain from

undermining the placement are also critical. The principles and objects of the Act including the paramouncy of the child’s best interests are fundamental.

That said, if contact orders are to be made, it is for the Court rather than for an agency or even the Director-General to consider the various factors involved and arrive at a decision as to what contact orders are in the child’s best interests.

I think that the proposition that the suitability of a contact regime to particular attitudes of foster parents or prospective foster parents or its compliance with a pre-existing policy of an agency are matters deserving of the same weight as those other factors which are personal to an individual child has to be viewed very carefully. Obviously, “practical manageability” from the point of view of the carers is important if only because it is in everybody’s interests that the supply of suitable foster parents be maintained. It is in Helen’s interests that a suitable placement be found as soon as reasonably possible.

It is the policy of many agencies to refuse referrals until after final orders have been made by the Court and, in the present case, Barnardos Australia appears to have followed that practice. No attempt at recruitment of carers for Helen has been undertaken. Concomitant with the Department’s usual inability, due to that policy, to tell the Court anything much about the prospective foster carers of a child and what will be their attitudes to contact and their needs so far as “manageability” is concerned, is the paucity of evidence which might be balanced against the factors calling for a liberal contact regime. In the present case, as I have noted, there is plenty of evidence, including the evidence of the Children’s Court clinician, which suggests a particularly liberal regime of contact between Helen and her mother. The argument against a regime as liberal as that proposed by Ms. Wearne has to do, in Mr. Jenrick’s words, with “manageability for everyone involved” which I think really means manageability from the point of view of the foster carers and ease of recruitment. The agencies may foresee additional difficulties in finding long term placements in cases where contact orders fail to coincide with the agencies’ policies. But, in the present case, because no recruitment has been undertaken or attempted, there is a paucity of evidence to weigh up and balance against the voices calling for liberal contact.

I am unable to say what will be the attitude of the long-term foster parents who are eventually selected for Helen as to her contact with her mother. They may be bitterly opposed to the continuance of any relationship between the two or they may be lukewarm about it but have difficulty, for any number of reasons, to committing to a particular contact regime. On the other hand, they may, like Helen’s short term foster mother, have or come to have an altogether more positive attitude towards contact. They may see it is a positive for Helen and as an aide to her successful attachment to their family. If they are people who are unable to accept and embrace some of Helen’s important characteristics and some of her fundamental needs, then perhaps they are the wrong people for this particular child and alternate carers should be sought. Perhaps, when it is Helen’s turn to be placed with a foster family, she should come as a nine-year old girl with various qualities, needs, talents and attachments, to be accepted in toto or not at all.

Until I have some evidence as to their identity and know something about them, I am unable to agree, as Barnardos’ paper “Establishing Permanency for Children…” suggests, that “too much” contact between a Helen and her mother will increase her foster carer’s uncertainty and insecurity and it seems to me that a candidate subject to those uncertainties and insecurities might not be the man or woman for the job.

Just as there can be no evidence as to the identity of the prospective foster carers, there is little evidence that suitable foster carers – those who will accept the child for who she is and will be prepared to comply willingly with those contact orders which the Court will have made, cannot be found. As I understand it, they have not yet been sought. The evidence is that, consistent with its general policy, Barnardos Australia has not yet searched for a family for Helen. So, the evidence on which the Court must rely to support the contention that a more liberal contact regime than that which is advanced by the Director-General will imperil the recruitment of foster parents for Helen consists largely of the Department’s foreboding and the learned paper “Establishing Permanency for Children…” annexed top Ms. Bauer’s affidavit.

With respect, there is a great deal in that paper with which the Court would agree, particularly the view that there are significant differences in the needs for contact between infants on the one hand and, on the other hand, older children whose primary attachments are already fixed and the importance, expressed in the paper, of ensuring that contact does not prompt disruption, conflict, placement breakdown and further litigation. But the evidence in the present case is that appropriate contact between Helen and her mother will enhance rather than put at risk the child’s attachment to foster carers. I think, too, that the paper fails to substantiate its assertion that an undefined “inappropriate amount of visiting can make it impossible to find families willing to take a child to become a permanent member of their home…” and, at any event, it is not the intention of the Court to make orders for “an inappropriate amount of visiting” but rather to make orders which answer Helen’s need and entitlement with regard to contact with her primary attachment figure.

In the course of argument I was referred by Ms. Collopy to the decision of Baker J. in Hughes’ case, 1980 FLC 90-869, where his Honour was prepared to deny access to a father where there was a real prospect that he would flout the conditions governing the access or the access would undermine the stability of the child with the custodial parent. It does not seem to me that there is any reason why either of those circumstances would apply to the present case. Ms. Collopy referred me, too, to the decision of the Full Court of the Family Court of Australia In the Marriage of Sedgley where the need for peace and tranquillity in the custodial parent’s household was seen as more compelling than the child’s need for contact but, in that case, the unsuccessful applicant for contact was guilty of a variety of disruptive behaviours regarding the child of a type unlikely to be seen in Helen’s case.

I was referred to the decision in the Matter of Jordan, Joshua and Michelle[No 2] reported in 2003 Children’s Law News Number 4. Initially in that case, Zdenkowski CM had made conditional orders for the children’s weekly contact to their mother together with other orders providing for contact every two or three weeks to their paternal grandfather and aunt and, in addition, orders for some undefined contact with the maternal grandmother and the father. At the initial hearing, the proposed orders had not been challenged by the Director-General who, some five weeks later, sought to vary the orders so as to reduce the children’s contact on the ground of “the unavailability of a long term placement for these children whilst the current contact orders are in place.”

It was argued that the children’s contact commitments were onerous and presented difficulties, inter alia, in recruiting long term foster carers but the application failed because his Worship found that a relevant change in circumstances had not been established. It is significant to the present case because it so clearly illustrates the dilemma which to be faced in a case such as Helen’s. I respectfully agree with Zdenkowski CM in his view about the difficulties often faced by the Department and agencies in securing long term placements in particular cases while there may be a risk that a diminution of contact may lead to a rupturing of the fragile bonds of mutual affection between children and their natural parents who are unable to care for them. I agree with him, too, that this dilemma needs to be addressed by policy makers, the Director-General and agencies recruiting foster carers. I should note, though, that the evidence of Mr. Zivanovic and Ms. Spencer suggests that, at least in many cases and in the present one, the proper recognition of existing bonds and attachments will enhance the quality and stability of a long-term placement rather than threaten it.

It is important to note, too, that not in every case where there is to be a long term out of home placement will the degree of contact which I think is necessary for Helen be appropriate. It seems to me that in Helen’s special and particular circumstances which I have tried to enumerate in these reasons, there are particular factors which, in my opinion, render the level and type of contact proposed by the Director-General as insufficient.

I think the best approach in a case such as this may be for the Court to identify the range of contact arrangements which will properly answer the needs of the individual child or young person, taking into account his or her age, developmental level, background, attachments, life experiences, personality, talents, emotional resilience, deficits and wishes. Then, when the appropriate range or spectrum of contact arrangements has been identified, the Court should consider the safety of the child or young person, the circumstances which brought him or her into care, the fitness and willingness of the parents to cooperate in the contact process and the degree to which the parents might support the child in the placement or act to undermine it. Those are matters which, in some cases, may impact adversely on the viability of contact. Finally, if the details of the placement are known or can be predicted with reasonable certainty, the Court should consider the circumstances of the placement and the needs of the foster carers. Clearly, there may be instances where proposed foster carers may be so unreasonable and heedless of the proper needs of a child for contact with a significant attachment figure that the contact order should be made and fresh placement arrangements then be made to accommodate the contact order. That might happen when a proposed foster carer is so bitterly opposed to contact with a particular parent that he or she simply refuses to facilitate contact which the Court has decided is necessary or where a proposed foster carer has difficulty tolerating a child’s contact with family members of a particular racial background or religious persuasion. Or it might happen where a child has a strong and important attachment figure living in Sydney with whom he or she needs very frequent contact and an otherwise good placement is available in a geographically isolated spot such as Bega or Brewarrina. Or there may be a proposed foster carer who fears irrationally that any contact between a child and a parent will pose a threat to the child’s successful introduction to the foster family.

Sometimes, as in the present case, it will be argued that the scarcity of viable placements and the difficulty of recruitment of foster carers should influence the Court in the type of contact orders which it should make. But, that influence should apply, firstly, only where there is compelling evidence as to the unavailability of a suitable placement capable of accommodating the child’s or young person’s need for contact as determined by the Court and, secondly, only where the level of contact which the proposed placement can and will support falls within that range or spectrum of contact choices which the Court can still regard as an appropriate response to the child’s needs. As to the first, I doubt that the Court should be much influenced in its decisions as to contact by the existence of a policy maintained by the agencies or even by the Department of Community Services unless that policy has been measured against and tailored to suit the particular contact needs of the individual child or young person, the subject of the particular proceedings. Secondly, the Court is unlikely to endorse the making a long term placement without reference to the child’s or young person’s contact needs as determined by the Court and it should not be assumed that those contact needs are of less than critical importance for the welfare of the child or will be met adequately by a contact regime tailored primarily to the feelings and desires of carers or potential carers or the perceived needs of the agencies.

In the present case, I think that Helen’s best interests require that she be in the parental responsibility of the Minister and live in out of home care until she attains the age of eighteen years. The evidence establishes that it is in her best interests and, indeed, that she needs to maintain and enhance her relationship with her mother, her primary attachment, and that she needs and wants to have face to face contact with [her Mother] perhaps fortnightly and, certainly, not less than monthly. That contact should, of course, be subject to her wishes and should be supervised, at least in the foreseeable future, and I think the responsibility for arranging that supervision and appointing supervisors should be in the hands of the Minister except that the contact should not be restricted to Departmental premises and should take place on a Sunday so that, hopefully, it can commence at the church at [ ] where mother and daughter are comfortable and familiar and are among friends. I agree with Mr. Zivanovic that a couple of hours contact is inadequate to Helen’s needs and I think the contact should be of six hours duration on each occasion. Helen should be entitled, in addition, to phone her mother at reasonable times. At her age, she is well able to make these arrangements for herself and I think she should be entitled to do so. Although the evidence on the point is sketchy and there appears to be a reliance on a policy which, to date, has not been measured against Helen’s particular needs and wishes, I accept that some difficulties in finding a placement are anticipated and I have taken that prospect into account because, plainly, it is in Helen’s best interests to settle down in an appropriate long term placement as soon as practicable.

There should be a report furnished to the Court at the expiry of six and again twelve months dealing with Helen’s contact as well as her progress in out of home care. It might be appropriate, once a report is to hand, that the Court make some adjustments, one way or another, to Helen’s contact regime but, of course, that is for another day.

Accordingly, I make the following orders:-

1. Order, subject to the following orders, that the child ‘Helen’, born 5th March, 1994, be in the parental responsibility of the Minister until she shall have attained the age of eighteen years;

2. Order that subject to the said child’s wishes, Helen have contact to her mother for six consecutive hours on not less than each alternate Sunday or, at the discretion of the Minister, not less than one Sunday being the first Sunday in each month PROVIDED [a] that the said contact be supervised and that such supervision be undertaken by officers of the Department of Community Services or be the nominee or nominees of the Minister, [b] that consideration be given to involving a member or members of the congregation of [………..] Church, in the supervision of contact, [c] that, if not inconvenient, the contact commence at 10am at [ ] Church, and [d] that the said Mother be consulted in the selection of a venue or venues for the said contact;

3. Order that the said child have reasonable telephone contact with her mother and be entitled to telephone her mother at all reasonable times and be accorded reasonable privacy for the purpose;

4. Order that the said Mother be entitled to copies of Helen’s school reports and class photographs and that the Minister assist the mother, if required, in that regard;

5. Order pursuant to section 82 that reports as to Helen’s contact with her mother and welfare in out of home care be furnished to the Court at the expiry of six months and, again, twelve months from this date.