S v Department of Family and Community Services - [2014] NSWDC 86

District Court

New South Wales

Medium Neutral Citation: S v Department of Family and Community Services [2014] NSWDC 86
Hearing dates: 3-6 June; 16, 17 and 20 December 2013; 26-28 February 2014
Decision date: 31 March 2014
Before: Knox SC DCJ
Decision:
Appeal is dismissed

Catchwords: CIVIL law - care and protection
Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 NSW
Cases Cited: Director-General of Department of Community Services; Re Sophie [2008] NSWCA 250
Briginshaw v Briginshaw (1938) 60 CLR 336
Category: Principal judgment
Parties: MS - appellant
DFaCS - first defendant
SS - second defendant
Independent Legal Representative - third defendant
Representation: Mr M Higgins - first defendant
Mr J Longworth - third defendant
Appellant - in person
First defendant - Crown Solicitor's Office NSW
Second defendant - in person
Third Defendant - Verekers Lawyers

File Number(s): 2012/229300
Publication restriction: None children and parties have been anonymised.

Judgment

Proceedings

These proceedings come to this Court by way of an appeal from an order made on 22 June 2012 by a Children's Court Magistrate (his Honour Graham Blewitt AM) sitting in the Children's Court at Port Kembla. There were orders made for supervision, which are continuing to the present. They will expire - the last time for supervision will be June 2014.

The mother's summons commencing the appeal was dated 19 July 2012.

Pursuant to s 91 of the Children and Young Persons Care and Protection Act 1998 ("the Act"), these proceedings are by way of a re-hearing albeit by way of an appeal from a Children's Court Magistrate who made findings on the basis of evidence given and cross-examination. Leave is not required.

Children

This case concerns the four children of Mr and Mrs S: -

(a) M, born 1 March 2003 (11 years old)

(b) C, born 4 August 2004 (9 years old)

(d) G, born 19 May 2009 (4 years old)

Parties

The mother

The applicant mother, MS, was born 10 October 1982 and is 31 years old.

The father

The father, SS, was born 26 November 1963 and is 51 years old.

Paternal grandparents

Other significant figures in the children's lives are their paternal grandparents who are of Macedonian background. The paternal grandfather is aged 75 and the paternal grandmother is aged 73. The grandparents did not give evidence in these proceedings.

Parent's relationship

The mother and father were married on 10 March 2002. They separated briefly in 2009 but resumed cohabitation shortly thereafter - it would appear after some months. There was clearly a lot of stress in their lives at the time. That stress was due, in part at least, to the hospitalisation of the mother and M. The mother and father deny a poor relationship with each other. They sat together amicably throughout the hearing. The father was essentially supportive of the mother's application to the extent of her having regular contact with the children.

The mother remains living in the former matrimonial home which is nearby to the current home of the children. She and the father continue to see each other frequently. The mother does not get on with the paternal grandmother.

Issue

The issue in this case concerns the parenting and care arrangements to be made for the four children of Mr and Mrs S, in particular, whether there is any realistic possibility of the restoration of the children to the mother's care or whether, and if so, what contact she should have with the children.

An integral issue is the mother's condition and behaviour. That includes her parenting capacity and attitude to the children's care - particularly their respective medical care - their education, the treatment of them by the children's respective schools, as well as the mother's behaviour at those schools and the impact of those matters on the children.

Onus and Standard

The decision of the Court of Appeal in Director-General of Department of Community Services; Re Sophie [2008] NSW CA 250 makes it clear - at [48] ff - that the Secretary bears the burden of proof on the balance of probabilities, the discharge of that test is to reflect the standard in Briginshaw where clear and cogent proof is required of serious allegations.

Scope of Evidence

Pursuant to s 91(2) of the Act the proceedings are by way of a new hearing. The transcript of the Children's Court proceedings has been admitted into evidence. The mother was legally represented at those proceedings. She was not represented in these proceedings although she had seen a lawyer in the interim. The father was also unrepresented throughout the present hearing.

At the end of the allocated first four days of hearing of the appeal, a joint application was made for the Clinician to prepare an updated report on events and developments over the last eighteen months and to attend for cross-examination.

Affidavits

Filed by the Mother:

(a) MS sworn 9 April 2013.

Filed by the Father:

(a) SS sworn 31 January 2013, 31 May 2013 and 16 December 2013.

Filed by DFaCS:

(a) Ms Tamara Lacelles-Smith DFaCS Child Protection caseworker affidavit affirmed 31 December 2012,14 May 2013 and 2 December 2013 (exhibit 4).

(b) John Parker affidavit sworn 10 January 2013.

(d) Affidavit of the Principal sworn 3 January 2013.

(e) Report of the Clinician dated 7 September 2011.

Affidavit of Mrs S

The mother filed a 492-paragraph affidavit with a number of annexures on 9 April 2013. She considered that there was no reason for the children to be removed from her care. In her affidavit the mother sought restoration of the children to her care. In the alternative, she sought defined contact orders on the basis of specific undertakings.

The mother further submitted that the children are missing her, and, relying on the father's evidence in that regard, submitted that her separation from the children is artificial and not in their best interests. In the alternative, and if they are not restored to her care, she submitted that they should be able to be in a situation where she can see them on a regular basis. She also disputed that her conduct and care for the children has been anything other than in the best interests of each of the children.

The annexures to the mother's affidavit are from a variety of professional and other journals. The articles are relied on essentially to dispute the existence of Munchhausen Syndrome By Proxy (MSBP) or are used by the mother to submit that, if the syndrome exists, she does not suffer from it, nor does it influence her attitudes to the children.

Evidence advanced by the mother

The mother specifically relies on the reports set out at TB 420-431 from:

(a) Mr Alan Ward, psychologist 8 December 2011;

(b) Dr Nagashi Pai, psychiatrist 9 June 2011;

Aspects of the statements of these professionals' reports are set out below.

At the final day of the hearing in February 2014, Mrs S produced a hard drive she said contained approximately 80,000 photos and videos of her and the children. A selection of the photos and videos were played in Court, which showed the children in a variety of settings. To some extent those images and videos - on the assumption they are appropriate to the dates and relevant stage of development of the children - show divergences between the mother's portrayed account and those of the treating doctors. They show her reactions to the situation of the children, specifically of G's ability to move freely and of M receiving treatment in hospitals for asthma and breathing difficulties and his evident distress and the mother's reaction. Mrs S took these videos in the hospital setting, she said, because the hospital and doctors were not taking her complaints seriously.

Initial causes for concern

DFaCS has had concerns and notifications about the mother from about 2003 following M's birth. A variety of medical and hospital personnel raised those concerns. The initial causes of concern about the mother and her behaviour arose because of the mother's reaction to the asthma of her eldest child M. Those concerns are set out at TB vol 1, p 29 ff. Those reports demonstrated a continuing pattern of conduct and behaviour by the mother which was thought to be harmful to the children, going back to at least 2003.

M's asthma appears to have been the major event which precipitated the conflict between Mr and Mrs S and various doctors and hospitals. Mrs S's submissions refer to two 2007 incidents, one of which resulted in M being airlifted to Sydney Children's Hospital.

It was the finding that M had not been given his prescribed drugs which, on Mrs S's account, "set up a level of mistrust in the hospital for the parents." Difficulties in M's condition and treatment became ongoing, as did the parents' reactions, particularly on Mrs S's part.

Removal of children

The children were removed from the mother in May 2011 following a report from Dr Adam Jaffe (see below) Associate Professor in Respiratory Medicine at Randwick Children's Hospital. Dr Jaffe had seen M after he was taken to hospital by his mother. Dr Jaffe considered that the mother's response to M's asthma was the main contributing factor to the severity of his presentation. Further, that M's continued exposure to the mother could result in M's death or lasting harm to him and that the stresses on M should be reduced by removal from her care.

On 17 May 2011 the father, against that background, and the hearing in the Children's Court, agreed to leave the home with the children and reside with his parents. It is clear (evidence of Ms Lacelles-Smith) that DFaCS were acting on reports from a number of professionals from a variety of institutions and agencies (particularly the Clinician), as well as the report of Dr Jaffe.

Those reports demonstrated a continuing pattern of conduct and behaviour by the mother going back to at least 2003, which was regarded as harmful to the children. Included in that history was that in 2009, M had had over 115 presentations at Hospital for respiratory attacks and that he stated that he wished to kill himself. There were reports about absences from school of all the children.

The mother has had no formal contact with the children since at least either May or September 2011. That lack of contact by the mother was confirmed by the father in the final stages of the hearing.

Decision of Children's Court

On 22 June 2011, the Children's Court Magistrate found that:

(a) There was no realistic possibility of restoration of the children to the mother.

(b) There was no reason that the children could not be placed with the father.

The orders were:

(1) Pursuant to Section 79(1)(a)(iii) that all aspects of parental responsibility for the children M, C, J and G to be allocated to their father, SS, until each child attains the age of 18 years.

(2) Pursuant to Section 76 the children be supervised by the Minister for a period of 12 months from the date of these orders.

(3) Pursuant to Section 73 the Court accepts the undertakings of the father that he will:

(i) Not allow the mother to have contact with the children until they attain the age of 18 years;

(ii) Continue to engage with Community Services fully and to accept referrals from Community Services regarding counselling and therapy for himself and the children;

(iii) Ensure that M's asthma treatment is provided in a timely manner and that his asthma plan is followed as recommended by medical professionals, including reviews by medical professionals as required; and

(iv) He will ensure that the children attend regular appointments regarding medical, dental, optical and the like as recommended by medical/health services.

(4) Pursuant to Section 90A the Court makes an order prohibiting the mother, MS, from having any contact with the children until the children attain the age of 18 years.

Integral to the decision were findings that:

(a) Professor Adam Jaffe (see below) was correct when expressing his concerns that M was in a life-threatening situation if he remained in his mother's care;

(b) M had no allergies that would indicate that mould played a significant part in his asthma allergies;

(c) The need for M to be admitted to hospital for medical treatment in relation to his asthma ceased completely once he was removed from his mother's care. That was indicative of stresses induced by the mother's attitudes and behaviour;

(d) The mother had been advised, even by her husband, to seek psychiatric and/or psychological assessment. She refused to do so at relevant times;

(e) The Clinician's expert psychological report should be accepted, in particular, the assessments of the mother as:

(i) Displaying many signs of having Factitious Disorder by Proxy or MBPS; and

(ii) Suffering from Narcissistic Personality Disorder (NPD);

(f) The mother's condition was a significant factor in the case of M's illness and attacks, which had required hospitalisation.

These findings were made against a background of "irrefutable evidence, which the court accepted, that the children have suffered significantly as a consequence of the mother's behaviour. Given the mother's condition, all four children were determined to be at risk of harm if they continued to live with the mother".

Prohibition on contact

The learned Magistrate also accepted the recommendation of the expert psychologist, the Clinician (see below), that the mother not have any form of contact with the children until they each turn 18 years of age. This was despite unequivocal evidence that the children wanted to see their mother.

Those orders gave parental responsibility of the children to the father on the basis of his undertaking that he would not allow the mother to have contact with the children until they are 18 and other undertakings to ensure the children are taken to proper medical, dental, optical and other medical and health services.

It is clear that the mother has never accepted this decision nor the views of anyone who has been part of giving evidence which she has construed as being against her interests.

Current position of each child

The children are currently attending counselling with two counselling professionals who are associates of Mr John Parker. As at February 2014, the children were seeing a counsellor called Robert Saintz at the school. That was being done about once a week with each child being seen separately. With some exceptions, there has been substantial compliance with the father's undertaking to continue the children's counselling with an appropriate agency.

There are clearly some issues arising in the course of the ongoing counselling sessions as might be expected: see TB vol 1, p 225, for example, reference to J's "massive tantrum session" and the father's apparent lack of authority over the children.

The records indicate that M was presented to the Wollongong, Shellharbour and Sydney Children's Hospitals on over 100 occasions between 9 April 2007 and December 2010 for respiratory attacks and on one occasion he stated he wanted to kill himself.

M became sickly from apparent respiratory problems in or about 2003. Thereafter, the mother became constantly stressed and anxious over his welfare. She presented him to hospitals and doctors on numerous occasions trying to "get him cared for properly in hospital". Her anger has "boiled over" with the medical staff on the basis that they were not treating M properly. Her perceptions that the doctors, nursing staff and hospitals were not treating M properly led to a breakdown of her relations with the hospital and medical staff and allegations, by the hospital staff, of verbal aggression. The mother has frequently criticised the hospital and staff for failing to comply with proper medical procedures and protocols.

M currently attends a Public School where he is in Grade 6.

C has been recognised as suffering mild delay in gross motor skills and expressive language. The mother identified her as having mild cerebral palsy and spina bifida but says that has "gone away" or altered. A diagnosis at a multi-disciplinary screening clinic with a paediatric fellow, Dr Amy Whitaker, and a social worker, identified that C had overall good health with no neurological abnormalities. There was no concern with her intellectual disabilities according to DFaCS. DFaCS gave the children an initial medical assessment when taken into care. It is clear that DFaCS caseworkers considered that Mrs S was exaggerating or inventing the symptoms C was exhibiting and making inconsistent diagnoses.

C currently attends a Public School where she is in Grade 4.

J currently attends a Public School where he is in Grade 2

The mother reported that J had autism, with hydrocephalus and that he had experienced febrile convulsions at birth.

A diagnosis at a multi-disciplinary screening clinic with the same paediatric fellow who had assessed C, Dr Whitaker, and a social worker, identified that J had overall good health with no evidence of autism spectrum disorder.

Again, DFaCS officers considered that the mother's insistent approach and diagnosis of J reflected adversely on her.

A school report indicated significant problems with J including hurting other children, touching them inappropriately, swearing at others, urinating in public and soiling himself. He is thought to have a condition called enurosis, which may be brought about by stress (Dr Brereton, 9/6/2012, Tab 13).

G currently attends a Preschool near her home three days per week.

G was premature at birth with developmental delay, mild hip dysplasia and multiple hospital admissions for suspected and diagnosed pneumonia, bronchitis and tonsillitis. Dr Amy Whitaker assessed her as having a global developmental delay. That is not disputed by the mother.

After extensive treatment over the last year, there are no significant concerns for G at this time.

Concerns and submissions of Applicant Mother

The mother maintains that she is very concerned about the children and that her concerns are legitimate, given the children's conditions. In her opinion, the children, or some of them, have features of autistic spectrum disorder (J), and mild cerebral palsy (G).

M has long suffered from asthma. It is the cause, nature, consequences and treatment of that condition which is at issue. Against the background of the matters set out previously, the mother and the father both consider that their initial concerns about M's asthma, breathing obstructions and related conditions were incorrectly assessed and that alternative causes such as environmental and mould related connections to his breathing difficulties were wrongly dismissed. Instead, their case is that DFaCS and related health professionals wrongly attributed M's difficulties to psychological issues particularly in connection with the mother and her behaviour. It was implicit that DFaCS was of the view that the mother had Munchausen Syndrome by Proxy and a Narcissistic Personality Disorder; that they became "fixated" on the mother's psychological status rather than "exploring all possibilities".

The mother's case is that her home had significant levels of mould present which may have been a significant contributing factor to the health problems (including asthma) M was experiencing and an explanation for his subsequent improvement when he was no longer living there. This hypothesis as to the cause of the asthma was rejected by a number of specialists treating M. They saw the mother herself as being the problem and the main cause of M's asthma and breathing difficulties. In turn, that opinion has caused enormous stress and frustration to the mother as no one has believed or supported her. The removal of the children from her care has compounded those problems. It has left the mother angry, depressed and bewildered.

Mother's hostility to treating doctors.

The mother concedes that she has anger management issues - which she attributes at least as to a substantial part - to her treatment by "the system" and those in it, as well as post-traumatic stress disorder. Her case is that her motivations for the care and best interests of the children have been both misunderstood or manipulated against her.

The mother denies having done anything to make M sick. She denies allegations of violent behaviour on her part and says that she has never been excluded from, nor cautioned at, a hospital. She regards the attitude of hospital and medical staff as being motivated by vindictiveness. Her allegations of abuse by various doctors and medical personnel have been widespread and continuing - extending to include allegations of sexual abuse of her by doctors. The subpoenaed records from 2005 (see cross-examination 4 June 2005) record various threats and abuse by the mother to hospital staff on a variety of topics.

The mother accepts that she has been very critical of the medical care for her children and the availability of medical and hospital personnel - especially paediatric personnel. Her altercations with the treating team would appear to have resulted in the children (or some of them) maintaining their symptoms.

Similar criticisms of the mother's reactions come from the teachers and others involved in the children's education - see below: evidence of the Principal.

The mother apparently accepts that her angry outbursts have at times been unreasonable, unjustified and inappropriate. However, she remains very angry with those she sees as being responsible for her present situation of not seeing the children - which she regards as devastating. She has been antagonistic to both DFaCS caseworkers and the ILR for their role in preventing her seeing the children.

Mother's relationship with M

One of the concerns about the mother's alleged over-protectiveness was that she and M slept in the same bed up until he was aged about eight. The mother said that was because of his "apnoeas" and that M's medication was located in that room, or immediately adjacent, which was more convenient to access.

Mr Parker, who saw M on over 40 occasions, reported that M had a "close but disorganised attachment with his mother" and that "M really believes that he would be dead without his mother's help; further, that the father re-enforces this belief" (TB vol 1, p 254 ff).

The mother did not accept that M exhibited sexualised behaviours when he was in her care. She has no direct knowledge of that at the present time but does not believe that of M. She did not investigate those allegations either with Mr S nor the school.

The children are being seen by a local doctor. Occasionally M, and to a lesser extent, J, are both seen by Dr Brereton.

J: sexualised conduct

Sexualised behaviour has also been reported in relation to J. The mother accepted that J exhibited sexualised behaviour at school. However she did not investigate that and later seemed to reject the possibility of that scenario.

The Clinician: Findings

The Clinician's report of 7 September 2011 was conducted on the basis of interviews with Mr and Mrs S, psychological testing, as well as discussions with others and an examination of relevant documentary material. It included a visit to the mother's house.

The Clinician also gave evidence at the hearing.

Mother's Condition

The relevant expert assessment from the Clinician was as follows:

"Ms S exhibits the signs of Narcissistic Personality Disorder, which impacts on all areas of her functioning. Her condition is severe, longstanding, and relatively entrenched. Its impact on parenting is significant, and [the] long term prognosis is poor.

...the mother ...cannot put the needs of others before her own and places her children at risk. Treatment for this condition usually takes years to elicit any change, and requires the initial capacity to form some degree of insight (as stated above). It is this assessor's opinion, that even with treatment, the mother's capacity to rehabilitate in a timeframe to assist her with parenting the children safely is not possible."

Diagnosis

Central to those concerns was what the Clinician described as a manifestation or suggestion of the syndrome in the mother known as Factitious Disorder by Proxy, namely, that the effect of the disorder could be a form of child abuse whereby symptoms of a particular medical condition could not only be deliberately induced by the perpetrator but could also be deliberately exaggerated [TB vol 1, pp 92 ff].

The Clinician's fundamental proposition and opinion is that there should be neither restoration of the children to the mother nor any contact between the mother and the children. The Clinician has changed her view about the desirability of the ongoing placement of the children with the father to a position where she did not support the children remaining with the father. That was because she thought that the father does not have the capacity to put the interests of the children above that of the mother. That changed position was not adopted by either DFaCS or the ILR.

C also indicated that she had seen her mother on her birthday (TB vol 1, p 127). She and the other children clearly believed the mother's account that "the doctors and nurses didn't do their job...the judge was wrong" and that "...Dad said "...that the Coral Tree Centre would...only feed us water and bread." Further, that "Dad said 'if you tell anyone we will be taken off him too'."

The Clinician thought that the father had taken the child (M) with the mother to an appointment with a doctor in May 2012 and presumably on other occasions (TB vol 1 pp 228-231). He, the father, had told the children not to volunteer the information that they had seen the mother.

The Clinician acknowledged that the children, or some of them, wanted to live with their mother. She thought that they suffered from an idealised version of the mother and a lack of either reality or insight into her behaviour. She thought that Mrs S was an extraordinarily powerful and negative influence on the children and that that influence was not capable of being limited by Mr S. She said, on the assumption that they saw their mother, that "the children will grow up to actually exhibit the same sort of severe pathology that we're seeing with the mother" (TB 1277). That is a speculation which I would be reluctant to adopt on the basis of the material before the Court.

The Clinician also based her fears for the children, should they remain with the father, on the matters set out at (p 255) including M's behaviour and the children's comments and behaviours as well as Mr Parker's observations of the father and the children (pp 257-258). The Clinician also relies on her opinion of the DFaCS file opinions (p 235) and the observations of a caseworker called Amelia.

Some of the Clinician's relevant findings are set out at TB vol 1, p 95.

Integral to the Clinician's findings are the following:

"M and his siblings have all had a myriad of medical investigations, emergencies and hospitalisations. M has had the most pronounced number of hospitalisations and investigations, with symptoms both severe and life-threatening that occur without warning and then spontaneously remit; but without medical explanation as to the severity of his condition. The mother's reaction to M's somatic complaints has been observed as extreme and anxiety provoking.

Ms S appears to have consumed herself in M's medical status, seeking sympathy and affirmation by others, rejecting medical advice, and discussing M's health deterioration and probable death with M, the children and the family. There is evidence that she sought sympathy from school families, health providers and online forums, as well as media attention through the local newspaper;

Ms S vehemently rejected any suggestion that M's condition was not as bad as that portrayed, or that she may have contributed to his condition in any way. Of note, when challenged in hospital by specialists, Ms S would then discharge M claiming his condition had improved;

The family dynamics in this matter are consistent with Ms S maintaining control over all family members, even at the time of this current assessment. All members are aware of her beliefs about others, her reactions, and how to behave to gain her attention or not elicit her anger. Mr S has been particularly passive throughout his relationship with his wife, and has managed her behaviour by allowing her to take control or by separating himself from the situation. Of note, Ms S would rarely allow her husband to take over M's care or management, aside from when the condition became life threatening and a fight with medical professionals was needed;

The four children have all displayed marked improvement in their functioning since the intervention to remove them from their mother's care occurred. This also involved their participation in school, the way they relate to teachers and other students, as well as their general health."

The mother's response to these descriptions was to attack the report and to accuse the Clinician of lying in relation to a test she carried out on Mrs S (TB vol 3, p 1294).

The Clinician attended Court on occasions when required - the last being in December 2013 when the matter did not proceed because of the mother's ingestion of prescribed drugs. At that time the Clinician was present outside Court for two days. On the required hearing date the Clinician was unavailable to travel to Sydney from her home but was available to give evidence by phone. Mrs S opposed that course of action saying that she wanted to have The Clinician present in person. Given that requirement would have led to further delay - and the Clinician had previously attended Court, and that she was an expert witness, not a witness of fact - Mrs S's application was refused.

Mrs S seemed primarily motivated in her cross-examination of both the Clinician and Ms Lacelles-Smith to attack and berate them personally rather than to consider issues of whether she, as the mother of the children, was able to provide proper care and attention for them. For example she attacked the Clinician on numerous occasions, despite repeated reprimands, calling her a liar on nine separate occasions, saying that she was "full of shit" and her answers were "crap" and on one occasion threatening her.

As with all the witnesses who gave evidence contrary to Mrs S's interests or her perceptions of those interests, Mrs S repeatedly attacked the Clinician - a professional witness - as a liar and as being initially, and continually, biased against her. Much of the cross-examination of the Clinician by Mr and Mrs S was directed to attacking her rather than her findings. It was clear there had been a total breakdown in any kind of relationship between Mrs S and the Clinician. The Clinician considered that what antagonism there was, was indicative of Mrs S's continuing pathology.

The degree of personal antagonism was such that it gave me concern as to whether there had been a sufficient exchange or elicitation of information on which the Clinician's opinions could be based. Nevertheless, her report remains as the principal expert evidence of DFaCS. I have had regard to the extent to which it is consistent with all the other medical and educational witnesses and departmental caseworkers that have been called. The Clinician relied on Mr Parker's observations of the parenting capacity of the father over recent times. In an interview note of 17 August 2012 (TB vol 1, p 112/133) it was clear that J had seen his mother at her place; further, that he thought he would be taken from the father by DFaCS if he told anyone of seeing the mother.

One matter which took considerable time at this hearing was whether the Clinician had given Mrs S a set of standardised questions prior to the completion of an MMPI test. The results of that test were relied on by the Clinician for her opinions, along with her interviews over some hours and the remainder of the material. She said the MMPI test results was a small part of her total assessment process, which was largely based on clinical assessments and on the historical records. The Clinician also said there was a self-checking format in the MMPI.

The Clinician said that Mrs S told her she had no difficulty in either completing the test or understanding the questions. There was clarification sought by Mrs S in relation to four of about five hundred questions. Mrs S denied this and what she had said to the Clinician.

Other matters of factual discrepancy or differences between the Clinician and Mrs S did not seem to be integral to the Clinician's opinions: rather they were matters of credit. During cross-examination the Clinician reviewed her notes and her interviews with Mrs S. Those were consistent with her report.

Adjourned hearing: December 2013

In circumstances where the mother has complained of the delays which have occurred with the proceedings, it is appropriate to record what occurred in relation to the Clinician's evidence and the additional opportunities afforded to the mother.

The mother sent the Court and the parties a medical certificate (exhibit 3) on 12 December 2013 saying that she was seeking an adjournment. The basis of the certificate was that the mother was unable to travel to Sydney by virtue of her medical condition. The ILR and the DFaCS representatives opposed any adjournment. The father did not.

On 16 December 2013 the mother was called twice from the courtroom at the number she provided and which was confirmed to be her number by the father. There was no response. Subsequently, when it was clear that steps were being taken to ensure that the matter would proceed, the husband was able to contact the mother.

The mother confirmed that she had not arranged for the other medical witnesses that she had indicated she wished to call to be subpoenaed. She said that she had not been well enough to do that. In the circumstances of the adjourned period of five months, the Court does not accept that excuse as being any reason to delay the hearing nor finalization of the matter.

Arrangements had been made for the Clinician to attend Sydney to give evidence. She re-arranged her client list for 17 December 2013 to enable evidence to be taken from her. The mother then said that she was unwell and couldn't concentrate sufficiently to participate in any such hearing. The mother was asked to provide medical evidence to that effect and further, to ensure that any doctor certifying to that effect, was able to attend for cross-examination either in person or by phone.

Arrangements were then made for the matter to be resumed at Wollongong District Court on 17 December 2013. On that date a further application for adjournment was made by the mother. This was despite the Clinician being present for cross-examination in Sydney on 16 December - when the mother did not attend - and 17 December - when the mother was unable to participate in the hearing by virtue of her condition given the prescription drugs she had taken the previous day. The mother was informed of the implications for her case - and, in particular, her capacities for the care of the children which might follow from her presentation.

The father's evidence was finalised on 20 December 2013 and the matter stood over to 26 February 2014 for finalisation. That was the earliest date convenient to the parties and the witnesses who the mother wished to either call or cross-examine. The hearing proceeded for three days during which the mother did not call any other witnesses. She tendered videos of her children on the final day of the hearing.

Reports tendered by DFaCS

Dr Adam Jaffe

(Report 5 May 2011, TB 176-177)

The culmination of the concerns about M were expressed by Dr Adam Jaffe, a respiratory physician, who had been seeing M since he had been referred from the Randwick Children's Hospital in 2007.

Dr Jaffe reviewed the testing of M carried out by Dr Numa (TB 176-177) and considered that M had neutrophilic asthma for which he had been prescribed antibiotics with anti-inflammatory properties - with little effect. Further, the record and course of treatment was such that he has tried, "...nearly every known anti-asthma medication available with varying degrees of success..."[12] Despite all these trials of medication, "...M's asthma remains difficult to manage. He can present with sudden deterioration in the context of a relatively well boy, which can happen both in hospital and outside hospital." In his view, there was no known medication which was capable of controlling M's asthma in his particular circumstances.

Dr Jaffe's examination and opinion, based on his involvement with M, disputed the central aspect of the mother's claim, namely, that the possibility of the mould in the home was the primary cause of M's asthma. It was Dr Jaffe's expert opinion that the mother's response to M's asthma was the main contributory factor with regard to the severity of his presentation. Further, he was strongly of the view that M would benefit from removal from the cause of his major psychological stress, namely, that caused by his mother's response to his illness (TB vol 1 pp 39-40). He said that M's asthma treatment in the care of his mother could result in M's death.

Dr Jaffe also produced several reports which indicated increasing hostility and aggression by the mother towards him and other staff, threats to discharge M during periods when he was unwell and that she did not agree with the assessments of the medical personnel. The hospital, medical and nursing staff had provided reports which suggested an overwhelming pattern of hostile negative and bizarre behaviour, many occurrences of which took place in the presence of the children.

Dr Numa

Dr Numa (report of 31 March 2008: TB vol 2 p 178) was the Director of the Children's Respiratory Care Unit at the Sydney Children's Hospital at Randwick in March 2008. He reported on M's presentation - there had been frequent hospitalisations where he seemed to deteriorate and recover very rapidly. He (M) appeared to have some loss of reactive airway discourse. He was ultimately discharged on a decreasing dose of oral steroids.

Dr Numa noted that "the behaviour of M's mother was of concern. Mrs S presented as highly, probably pathologically, anxious, repeatedly using phrases such as "M is the worst asthmatic the doctors have ever seen" and 'he was 2 minutes away from being a coroner's case'." Although his asthma appears to have been severe at times, it struck me these statements were exaggerations of his clinical condition.

Dr Cooper

Dr Jaffe's opinion was consistent with an earlier report dated 21 December 2009 from Dr Cooper, a respiratory physician from the Sydney Children's Hospital, (TB vol 1, p 152 ff). In that report, Dr Cooper refers to M's sleep apnoea and an attack he had in the hospital following a coughing spasm with a possible breath-holding spell. There were "...frequent spasms where M would cough frequently without taking breaths in-between". Dr Cooper noted that "the events occurred predominantly while the mother was present and were temporally related to when Mum was angry or upset".

The mother refused to accept those descriptions, suggesting that Dr Jaffe was very close to Dr Cooper. She questioned his objectivity and accuracy. The mother also doubted the numerous statements of a variety of witnesses reporting M's comments that "he would die from PC" or that "he would die if he did not get Ventolin". That is consistent with Mr Parker's observations (see below: TB vol 1, p 254) that "...M really believes that he would be dead without his mother's help and that the father reinforces this belief."

Dr Cooper thought that M was "...unusually versed in medical terminology for a 6 year old often demanding Ventolin and voicing concerns of dying if Ventolin was not given". Dr Cooper noted that M's comments echoed similar remarks from his mother about the dire consequences of not having access to relevant medication.

Review: Dr Belessis

M was subsequently reviewed by Dr Yvonne Belessis, a specialist in Respiratory Medicine at the Sydney Children's Hospital at Randwick. As at September 2012, Dr Belessis considered that M's asthma control was improved - although a mild respiratory tract infection remained. M had had no hospital admissions since May 2011 (when the mother's contact had ceased) and had only had 4 days off school since that time. He was better able to participate in physical activities such as karate (TB vol 1 at pp19 ff).

Both Mr and Mrs S consider that that improvement is consistent with the fact that M has moved out of the home and premises where mould was present, rather than being attributable to the mother's absence. Both the mother and the father maintain their views that the suggested mould-induced cause of asthma was not properly investigated.

Dr Brereton

Dr Jeffrey Brereton has been the children's paediatrician for some years. He saw M in February 2011 and considered that he suffered from severe asthma and episodes of respiratory distress. His opinion referred to M's multiple admissions to hospital and that he was on multiple medications. M was also assessed as part of the Ronald McDonald learning programme.

Condition of the mother: Diagnoses of PTSD

The original diagnosis that the mother had Post Traumatic Stress Disorder (PTSD) apparently resulted from her seeing someone being beaten to death by an acquaintance and trying unsuccessfully to revive that person in about March/April 2007. She has told her psychiatrist that she also suffered from flashbacks. She has been prone to hostile, angry outbursts and threatening gestures to the treating team for her children.

The mother has also been diagnosed by her treating psychiatrist, Dr Nagashi Pai, with PTSD in remission and that she had an acute reaction to stress on the basis of the removal of her children in a report dated 9 June 2011. Although the report was tendered in her case, the mother disputed in her evidence that her PTSD was in remission.

Reports referred to by the mother

Mr Ward

Mr Ward considers that the mother has been "...suffering, long term, from the conditions of poor anger control and stress/anxiety" (TB vol 2, 424). Mr Ward who had seen the mother for extended periods in 2011 referred to "...her poor anger control and levels of stress and anxiety as well as her strong feeling that a number of doctors, DFaCS case workers and a clinical psychologist appear to be against her."

Dr Pai

The mother's treating psychiatrist, Dr Pai (Dr Nagesh Pai - psychiatric report dated 9 June 2011) says that she has no cognitive impairments, that she had a reasonable insight into her problems and no symptoms of depressive disorder. As referred to above, Dr Pai considered, at the date of the report, that the mother had PTSD in a state of remission as well as an acute reaction to stress on the basis of the sudden removal of her children.

Dr Pai also reported that "in the midst of her excessive preoccupations in giving her best to her children, she has been excessively critical of the medical care availability and her anger has always been towards the care-givers, particularly with the health professionals, particularly paediatrics".

Mr Burckhardt

Mr Burckhardt, an intern psychologist of the Northfields Clinic at the University of Wollongong, stated that the mother has been undergoing anger management sessions for some time consistent with her presentation of PTSD. It would appear that she has had a large number of sessions with Mr Burkhardt.

Mr Burckhardt saw the mother on five occasions as at 24 June 2011, which the mother said was helpful. That was contrary to the report of the Clinician which reported that the mother said that she received "little benefit from those sessions". The mother denied that she said that to the Clinician.

The Father

The father has filed a number of affidavits dated 17 June 2011, 31 January 2013, 31 May 2013 and 16 December 2013.

The father was essentially supportive of the mother's case and wanted the family to be re-unified. He was both surprised and depressed by the decision taken to stop contact between the mother and the children. He felt as though the "family had been put through the wringer." The decision meant that he effectively became the sole parent. He clearly wants his family back together - a position which would inevitably mean that the mother took over the primary caring and parenting role. He holds out a hope that there would be contact between the children and their mother including face-to-face contact with her. He wanted to take that one step at a time. He said that, as at 20 December 2013, the children wanted to see their mother for at least limited contact and ask him repeatedly when they will see their mother.

A concerning feature is that the children are aware of the Court proceedings and that it has affected them. M, for example, was hospitalised for 3 days with an asthma attack on 3-6 June 2013 for precisely the same days of the Court hearing. M's school was not notified in writing of those absences. The father said he rang the school to inform them of M's absence. The evidence in that regard was challenged.

Mr S thought that the mother was very particular about the children's respective medications. He said the only thing that worried him about the wife's conduct was that she was "fiery" and very protective of the children. He did not think there was anything wrong with the close relationship the mother had with M - "they had a very close bond". It was a closer bond than he had with the mother.

The father agreed in cross-examination that he found it easier to step back and avoid confrontation with the mother by virtue of her "very domineering" personality and that he "did not always feel able to stand up to her." He now acknowledges that it was inappropriate to acquiesce in the mother's verbal aggression towards him and the children. He also acknowledged that he was having some difficulties in controlling aspects of the children's lives. It is not apparent that this dynamic between the father and mother will change.

Father's attitudes

The father was hesitant when asked the specific question in his cross-examination as to whether the children should be restored to the mother's care now. He initially appeared to want a staged re-introduction after the children continue their counselling. That was necessary to give the children hope that they would see their mother and would give the mother a hope to see the children in the future. He wants the mother to be granted supervised contact orders on the same terms as those in place in 2011.

He clearly desires "down the track" to have a restoration of the children to their mother. It is also clear that he thought that the children would want, at least at this stage, to see their mother before they are each 18.

He felt the mother needed a real awareness of anger management techniques and that she had a strong capacity to offend people. He said (affidavit 31/5/13 [56]) that he and other members of the family had been telling the mother that she needed anger management counselling.

The father had filed an affidavit sworn 17 June 2011 (TB vol 3, p 1181), which included the following:

"27. I acknowledge that there was a power imbalance in my relationship with the mother. The mother was very controlling and at times she was verbally aggressive when speaking to the children and me. The mother was very domineering and I did not always feel able to stand up to her. I found it easier to avoid confrontation by stepping back and letting the mother make all the decisions, including decisions about the children's schooling and medical treatment.

28. I recognise now that by stepping back and allowing the mother to make all of these decision I was not actively protecting the interests of my children. I understand that I need to be more assertive to protect the children's interests. I realise that the mother's behaviour has had a negative impact on the children, particularly her tendency to bombard the children with doctor's appointments or to keep the children home from school because of suspected illness. I am committed to being actively involved in the children's school and medical treatment in the future.

29. I have suspected for a long time that the mother has mental health and emotional issues and I always wanted her to get help. I suggested to the mother that she attend an Anger Management course and also speak to a counsellor but she refused."

DFaCS' case

DFaCS opposes the restoration of the children to the mother or her contact with the children. DFaCS' case is that the mother is unable to control her behaviour or attitudes such that her continual presentation of the children to hospital and her attacks on those involved in the children's care - such as their respective teachers - means that she is unable to care for the children or to protect their interests. Further, that the mother would be unable to overcome her predilections in that regard, to comply with any undertakings or prohibitions with her contact with the children.

Prior history of complaints

The tender bundle (TB vol 1, pp 29 -39) refers to a history since 2003 of:

(1) The mother's aggressive behaviour, physical violence and poor self-control;

(2) Her refusal to attend for psychiatric investigations and assessment or to engage in anger management courses;

(3) Concerns about the children's medical conditions - starting with M's asthma attacks - and her associated mental instability in relation to caring for the children including withholding medication, inappropriate and unjustified presentations at hospital for unfounded and unjustified procedures and that she was exacerbating his condition;

(4) Concerns about his absence from school and her presentations at school;

(5) The fact that from about May 2011, the mother had restrictions placed on her contact with the children. That appears to have followed the hospitalisation of M when she accused the hospital and medical staff of misinterpreting what M's condition was and neglecting him.

DFaCS refers to:

(1) The mother's presentation of the children to hospitals on a frequent, unjustified and ongoing basis. The DFaCS' position is that the mother's conduct has been very deleterious to the children's best interests; and

(2) Her conduct towards the schools and teachers and others involved in the children's lives is inappropriate, unjustified and is indicative of a lack of capacity to control herself or to appreciate or act in the best interests of the children.

These matters are at the heart of DFaCS' concerns as to the current condition of the children, in particular, their respective health and developmental needs as well as their educational needs.

DFaCS also considers that the mother's psychiatric and emotional issues are so extensive that undertakings given by her would not be followed at this stage. Further, that there is little point even in a supervision order until the mother and father complete the therapeutic supervision course conducted at the Coral Tree Supervision Programme and certain minimum outcomes are achieved.

The parties' involvement with that programme was suspended while these proceedings were current. It would commence with a live-in, week-long programme for the father and the children, without the mother being present. There would need to be more intensive therapy thereafter.

Ms Lacelles-Smith

Ms Lacelles-Smith affirmed a number of affidavits and an additional affidavit of 31 December 2013. She has had a long history in child protection and as a caseworker remained the children's child protection caseworker until January 2014. She now works for NSW Health as an out of home care caseworker. A new caseworker will be allocated to the S family in March 2014. In preparing her evidence and the material, Ms Lacelles-Smith has consulted with her own supervisors and other caseworkers that have been involved with the S family from time to time.

In oral evidence, Ms Lacelles-Smith said that: -

(a) She first met the mother at Wollongong Hospital. Ms Lacelles-Smith had reviewed the file on Mrs S including all the allegations against her. In essence, the continuing concerns of DFaCS were with Mrs S's inappropriate behaviour including her responsibility for M's condition as well as her behaviour towards the children or hospital staff when the children were present.

(b) She had been to the father's home on a monthly basis over the years of the different court and appeal proceedings. Ms Lacelles-Smith has observed Mrs S to be unkept and unhygienic on a number of occasions.

(c) She had spoken to the hospital and nursing staff and annexed reports from different personnel on different dates. She relied on the history and various patterns of behaviour which were apparent in the reports. She said that DFaCS had acted on Dr Jaffe's report and on the overwhelming history and pattern of behaviour demonstrated from a multiplicity of professionals from a variety of institutions and agencies before removing the children from Mrs S's care.

(d) The Coral Tree Supervision Programme provides for children experiencing behavioural problems, in some cases in a residential environment, with a multi-disciplinary approach run through NSW Health. It is funded by NSW Health. Coral Tree will only provide services once litigation is completed. At that time they would be prepared to take on Mr S and the children.

Ms Lacelles-Smith's affidavit and the attached reports set out histories of contact between Mr and Mrs S and various calls which had been made. Those included risk of harm reports.

It is clear that the mother was, and still is, very antagonistic towards Ms Lacelles-Smith and other caseworkers with whom she has worked. She considers that DFaCS have "ganged up on her" and not given her the opportunity to refute the allegations against her.

Ms Lacelles-Smith last saw the children in late 2012. Her final assessment was that the children were "...functioning well and normally health wise". G is doing well - her global developmental delay had been minimised. Her socialisation has improved. C has no significant health issues but has some trouble with setting boundaries. Socially she will struggle. M also struggles with maintaining long-term friendships. M has only had one presentation to the hospital with asthma related issues from the time he last saw his mother until late 2012. At other times he has needed medication and has consulted with general practitioners.

That position represents a considerable improvement from the position when the children were removed from the mother's care. Ms Lacelles-Smith knows of nothing to change those views, which she has maintained since 2012.

In cross-examination by Mr and Mrs S, Ms Lacelles-Smith was taken to the dates of reports received by DFaCS on 25 October 2005 and 10 March 2008. It was put to her that the children, or some of them, were not in hospital on those specific days. That is a matter for construction of the records - including the various schedules of the numerous times when the children, particularly M, were in-patients of the hospital. It is a matter of strong inference from the hospital records that some of the children were in hospital either on the days preceding that time, or about that time. Certainly there were numerous attendances at hospital by various members of the family consistent with the hospital notes.

Ms Lacelles-Smith considered the supervision of the father with the children should continue until June 2014 with a new caseworker. That would consist of the intervention of the Coral Tree Services and the Child Protection Counselling Service with the children. The objective would be to settle the children and assist the father with an independent psychologist to deal with the children's grief reactions if they were not to see their mother.

Mr John Parker

(Affidavit of 10 January 2013, TB vol 1, p 250 ff)

Mr John Parker is a registered psychologist employed by the Child Protection Counselling Service. He is associated with the NSW Child Protection Service. He was previously associated with the PANOC (Physical Abuse and Neglect of Children) service. He is currently providing counselling to M, C and J.

He has had the following sessions with each child, including:

(a) 38 individual and 2 group attendances with M;

(b) 25 individual and 2 group attendances with J; and

These sessions were prior to June 2012.

Mr Parker did not see G in counselling as he felt she was too young to benefit from counselling at that time. He saw G twice at the father's home.

Mr Parker had not met the mother. His reports and opinions of her were based on what the children and the father had said to him and from the other reports he had received and read including that of the Clinician. He said the children initially felt very comfortable with him, as did the father. However, that changed as the children's behaviour and presentation started to deteriorate. Further, Mr S felt that Mr Parker had taken an adverse view of the mother following, or as part of, his reporting function in these proceedings. Mr Parker's concern about the children became such that he asked DFaCS to intervene.

Mr Parker: observation of children

Mr Parker thought that the contact between the children and their mother should be viewed differently as between the children. The children also see the DFaCS officers as "monsters". They very rarely mention their mother. It was unusual that they do not mention her.

M presented to Mr Parker with very little range of emotion and it appeared that he had very few friends. From Mr Parker's observations, M did not appear to be particularly distressed at the separation from his mother. He did talk about the mother but not very much.

According to Mr Parker, although M has had a close, but disorganised attachment to his mother, he seldom speaks of her as at the date of Mr Parker's report except to mention her ability to play computer games or allow him to stay up late. He does not seem to pine for her nor to miss her emotionally (Affidavit of John Parker 10/1/2013 TB vol 1 p 253). M also said that he is missing the one-to-one attention that he used to get from his mother and resents having to share his father's attention with his 3 siblings. He has said he wishes he was back in hospital where he received "lots and lots of attention from nurses and doctors and mum."

Mr Parker thought that there should be an "all or nothing" contact arrangement between M and the mother. As a second option, there should be some form of contact between M and the mother - perhaps once every three months. Mr Parker thought that M would ultimately leave home to live with his mother in the years ahead.

Mr Parker also gave evidence that:

"M is openly defiant to his father including saying things to him like 'what are you going to do? You can't do anything.' These retorts usually intimidate the father to the extent that he will give in to M and not try to manage his behaviour in any way. M has also spoken abusively and threatened physical violence to other adults at the Centre who have tried to caution him.

I consider that M really believes that he would be dead without his mother's help and that the father reinforces this belief. M is likely to feel that he cannot really succeed without his mother, he will find it difficult to trust others, he will be anxious and angry, feel helpless or useless unless he has her support and possibly blame himself for not being with her any more. This is due to the disorganised attachment he has with his mother. It is important therefore to try to strengthen the bond between M and his father to improve his sense of self. However, this may not be possible unless the father seeks help for himself with the Coral Tree Service being only the start." (TB, vol 1, p 254).

Mr Parker was also of the view that if M did not see his mother he would likely have developed hostility and resentment about that. Further, that he would develop an unrealistic and idealised expectation of his mother and that he had been the victim of incompetent hospitals, doctors and departmental professionals.

In cross-examination, the Clinician agreed with Mr Parker's view that M will likely build up resentment of those who prevent him seeing his mother, however she disagreed that the harm to M would be less if he had limited contact with his mother, than opposed to none at all. The cessation of contact would cause resentment and problems of a lower level than if he was thought to be in contact with his mother, even in a limited way.

C says she is often "bashed" by her brothers and she does not know why. Mr Parker had seen J punch and kick her quite hard with little admonition from their father.

Mr Parker thought that C would not miss her mother if she did not see her. C needs a caring person with whom she can form a close attachment. She has a poor image of herself within the family which Mr Parker thought came from the mother. From Mr Parker's observations of C, she feels that she is either second rate or not the priority in terms of parenting or care. An example of that was the lack of decent clothing and shoes which C wore - which contrasted with her very good levels of personal hygiene and neatness as well as the standard of clothing afforded to the other children.

J does not appear to miss his mother. Mr Parker considered that J should see his mother once or twice per year. In Mr Parker's opinion, J's behaviour appears to be deteriorating and his father does not appear to have any strategies to modify or change this.

If M sees his mother - and the other children do not - the other children may feel they are less favoured when compared with M.

G was very young when the separation with the mother occurred. Mr Parker thought that there would be little benefit in contact between G and the mother. She has blossomed since she last saw the mother in June 2012. G has formed a close relationship with her paternal grandmother. She is developmentally delayed but achieving milestones, which was expected.

Mr Parker: assessment of the father

M's mentions of the father are limited to criticism of his discipline and his control. Mr Parker thought that, prior to June 2012, the father was cooperative and compliant. He was receptive to advice about the children. His supervision and control of the children appeared to be inconsistent. The father appeared to be resistant to - or avoiding - Mr Parker's suggestions for parenting improvements.

The father does not seem to realise the possible seriousness of some of these behaviours and attempts to minimise or normalise them. It is only recently that he has agreed to allow the children to bath separately.

Mr Parker had little or no confidence in the father's ability to control the children and reports that they don't appear to listen to the father. The behaviour of all the children in Mr Parker's waiting room when the father is not there requires other staff to monitor them, as it is feared they may injure each other. There are serious supervision issues in the home, with the father displaying little authority over the children and M seeming to control the family. The children have admitted that they "do not really respect their father as they know he will give in to them if they just keep doing what they are doing". The father has said that he only wants peace and "just wants to get through the day" and is not concerned about the future. Mr Parker's impression was that the father really believes that his wife will return to relieve him of the responsibility for the children.

Mr Parker considered that the father was "passive-aggressive - on the face he appears to be doing what is necessary for example, attending counselling sessions, but he provides reasons why he can't work on any of the family issues". In some ways, the children's behaviour has deteriorated in ways that Mr Parker considered to be "appalling".

Mr Parker had sent numerous letters to the father and tried to call him without success to organise matters in the future. In March 2013, the father had attended his office with the children unannounced, and informed him that he was unhappy about Mr Parker's affidavit. The father also said he did not want Mr Parker to continue as their counsellor and that he would like to attend a private counsellor. Mr Parker accepted that decision immediately.

Mr Parker: conclusions

On the assumption that the diagnosis of severe Narcissistic Personality Disorder in the mother by the Clinician is correct - and to the extent it was found to be relevant by the Children's Court Magistrate - Mr Parker did not consider it would be in the children's interests to have any form of contact with their mother.

Aspects of the disorder, which Mr Parker thought were relevant on the mother's part, were arrogance, attention seeking and manipulation. Mr Parker considered that the mother had very controlling behaviour and a very strong personality type. The removal of the mother's control could lead to severe problems with the children. That was particularly the case when the father did not provide nor substitute a strong personality for that of the mother. If anything, the father tried to avoid talking about the needs of the children. Mr Parker doubted that the father would effectively monitor the children's behaviour.

He considered that a person with that diagnosis might be at risk to herself and/or others. It would also be necessary for M in particular, to know that his illness is not life threatening and his mother is "likely to attempt to maintain the myth" that he is only alive because of her interventions on his behalf.

Prior to June 2011, M was showing progress. He said he had a number of friends and an interest in computer games. He was aware he needed to display other areas of interest to maintain friendships. C was very receptive to Mr Parker's involvement. J was talkative - though isolated socially.

After June 2011, when the mother's contact ceased, all three children initially improved and then started to display aberrant signs: J became more sexualised in his conduct and C appeared to seek closer contact with males.

Mr Parker considered that, if the Court was to determine that face-to-face contact should occur with the mother, it would need to be in a very limited form and under very strict guidelines. Mr Parker's experience was that even supervised contact would be difficult - and should not be permitted. That arose because of the mother's manipulative behaviour and tendencies. It is likely that the children see the DFaCS officers as monsters.

The father could not facilitate this in Mr Parker's opinion, because he does not have the ability to stand up to his wife. The father does not think that she could harm the children in any way. Further, if the Court was to determine that the family was unable to remain together then Mr Parker would not recommend that any of the children be returned to the mother.

Robert Saintz

A report was received from Robert Saintz dated 28 November 2013 (Exhibit 4, Annexure I). Mr Saintz became involved following difficulties with Mr Parker's perceived conflict of interest given his involvement with the children.

Mr Saintz said that as at the end of November 2013 the children were "...anxious at various levels about being re-unified with their mother. They are highly invested in this and not prepared for a negative result. Should the court process require further time, this could possibly exacerbate expectations and/or disappointments."

Mr Saintz went on to ask that "the current situation be seen through their experience and emotional fatigue."

Arrangements were made for the ILR to see the children prior to the resumed hearing on 20 December 2013 to inform them of the current situation. She saw the children on four occasions most recently in June 2013 and on 19 December 2013. The transcript records the results of that interview on 19 December 2013. The ILR did not observe any of the reactions noted by Mr Saintz with the exception of C, who expressed the desire to see her mother when her father came into the room.

Education

The three elder children currently attend a Public School. G attends a Preschool in the same area. The reason for the change of school in 2013 was that the new school was closer to the children's present home. It was hoped they might be able to walk to and from school.

The bulk of the relevant matters of parenting history and concerns arose while the children were at a different Public School nearby the children's former home. Accordingly, DFaCS relies on the evidence of the Principal of that Public School. It was submitted that the pattern of the mother's conduct was indicative of her likely future behaviour and attitudes.

The Principal

(Affidavit 3/6/13, TB vol 1, p 278 ff)

The Principal was the principal of the Primary School at the relevant time. The Principal said the children were not rude but that they did not have strong friendships. The Principal thought C and J had a good relationship with their mother. The father had always been polite and well mannered at meetings with the school. Normally Mr S drops them off and picks them up.

Mr and Mrs S did not give the school counsellors permission to engage with the children. That followed the school's request for documentation to support the mother's assertion of the children's various medical conditions. That documentation was not forthcoming.

The Principal said that the children - particularly M - while at that Public School had a lot of days off school. He had been an unhappy, negative child at school, despite being friendly and cooperative. That was consistent with missed days of schooling at other schools (TB vol 1, p 281 at [12]). Many of those days off were without medical certificates or without justified reasons given by the parents. The Principal was very concerned about the mother's behaviour towards her children, with staff having overheard her swearing at them on various occasions. On those afternoons the mother collected the children, she was heard by students, parents and staff speaking very loudly, aggressively and swearing in the school grounds.

The school records also indicated that on 20 May 2009, M disclosed to a teacher that he was upset about going home, saying things like "mum will bash me and she gives me bruises".

The Principal said that she had heard the mother swearing "all the time" at the school. The mother used the word "fuck" in the majority of her sentences, in the presence of children, including her own, other staff and parents. She frequently used the word "bitch" and other inappropriate language. The mother would be particularly distressed most afternoons. The children appeared to seek approval from their mother by reporting incidents and noting their mother's belligerent response.

The Principal had been required to have numerous meetings with the parents, in particular, the mother, due to the mother's aggressive behaviour. She had sent home letters to the mother warning her of things that are inappropriate to do on school grounds. The mother was neither impressed nor satisfied with the school's management of M in relation to alleged bullying incidents involving M. The mother attended one of M's classes to confront a student arising out of the reports she had received.

The Principal reported from her contact with the children and the school records that the mother continually stated that there are things wrong with her children - for example that M had food allergies, J had Autism and that C had Cerebral Palsy - but would not provide documentation for those complaints or assessments when requested by the school.

The Principal held a meeting on 1 March 2010, in which the mother was advised not to approach M's teachers but to contact the Principal if she had a problem. The Principal had personally informed the mother that staff, parents and students were intimidated by her behaviour. The school had raised with the parents M's references to his death and his statement that he was going to die. The mother denied that.

There was a meeting on 19 May 2010 between the Principal and the mother and father to address the mother's behaviour at school. The mother's language and behaviour was of concern to other parents and teachers. The mother did not accept that her behaviour (or that how she had spoken to M) had been inappropriate. The Principal again asked her to contact her with concerns and not to approach staff or other students.

The Principal: concerns re M

On 22 February 2011, the Principal met with the mother and father in regards to concerns by the mother that M was being bullied. The mother was spoken to again about her inappropriate behaviour at school and informed of other parents' complaints regarding her actions and behaviour on school grounds. The Principal said that all allegations by the mother about violence towards M were investigated and found to not be justified or warranted. When M was enrolled the mother did not provide the school with an asthma plan for him and M did not report to the school at any stage with an asthma attack. The school had a generic asthma plan for the children.

The Principal suggested the mother participate in an anger management course and seek counselling. The mother stated that she did not need such assistance. Following the meeting, the Principal sent a letter to the mother about her behaviour towards staff and parents. The letter notified her that if that behaviour continued her access to school grounds would be restricted.

After 16 May 2011 (after the cessation of the mother's care of the children), M and J continued to have behaviour problems and recordable incidents at school. However, the Principal initially noticed a dramatic change in their behaviour, observing that they appeared to be a lot happier, playing and being openly affectionate with their father when he dropped them off. M, in particular, started to behave like most students and enjoy physical activities. All claims of bullying and daily violence against him stopped. There was really significant progress with the children until June 2012. There is a suggestion in the notes of counsellors that the children may have seen their mother again at about that time.

The Principal: concerns re J

The Principal has observed J to display the following behaviours on a regular basis:

(a) Hurting children by punching and kicking them and other objects;

(b) Swearing at people and refusing to verbally respond to questions, including crawling under desks; and

The Principal thought that there had been deterioration in J's behaviour over the 12 months of his time at the school, although he was a very active boy.

In August 2012 the Principal spoke to J, with Ms Lacelles-Smith (from DFaCS), about his urinating and soiling himself. A toilet schedule was established. Since then there have been no incidents in the toilet block but J has exposed himself to other students and grabbed them inappropriately in the playground.

The Principal: Concerns re C

C was very withdrawn. She appears to be overshadowed by her siblings and seems unhappy.

C appeared to develop a fixation with one of the male teachers who was a friend of, or had a connection with, her mother.

Summary of school's concerns re children

It is clear from the Principal's evidence and the reports tendered that the teachers - and the Principal in particular - remain concerned about:

(a) M's inability to develop and maintain friends;

(b) Inappropriate touching of other students by J on 20-30 occasions over six months. That behaviour has increased. J has few friends;

(d) J's aggressive and sexualised behaviour;

(e) C's future, in particular, that she is being overlooked in the family and the impact this is having on her self-esteem and relationships at school; and

(f) The Principal considered that M was more bonded with his mother; he was the "first child" and the others appeared to be less of a priority for the mother.

The Principal considered that after May 2011, when formal contact between the mother and the children ceased, Mr S became more receptive to ideas or suggestions from the school.

The Principal related one incident where it would seem the children saw their mother at a park. That followed C's birthday in August 2012. The children appeared to be very secretive about seeing their mother and that they were not permitted to tell anyone that they had seen their mother.

The mother attacked the Principal in her cross-examination and submissions. The thrust of her criticisms was that the Principal was biased against her and that she, the Principal, should be regarded as suspect because of her involvement in (alleged) AVO proceedings concerning another parent(s) at the same school. There is no evidence of those matters. I found the Principal to be a reliable and honest witness with considerable integrity.

Independent Legal Representative for the children

The ILR saw the children a number of times during the hearing. Following one of those conferences, the ILR supported the findings of the Children's Court.

The ILR provided draft orders to the Court on 16 December 2013 and again on 27 February 2014 seeking that the orders of the Children's Court be affirmed. The ILR's position is that any order for contact between the mother and the children poses an unacceptable level of risk of harm to each of the children. Further, that the proposed orders, for now, represent the least intrusive intervention in the lives of the children, consistent with the paramount concerns to protect each child from harm and to promote their development.

The ILR also accepts the concerns about the mother's ability or preparedness to comply with any undertakings given her lack of insight into her condition(s) and situation.

There are some differences between the opinions of Mr Parker and those of the Clinician. The ILR submits that the Clinician's evidence should be preferred, as she had seen the children at a much deeper level and for longer. Further, the Clinician had access to a much wider range of material. Mr Parker had seen the children in a counselling context rather than as part of an assessment process. I agree with those submissions.

However, the ILR does not support the Clinician's most recent opinion about the need for a transfer of the children from Mr S. Although there is a risk of Mr S permitting contact between the mother and the children, that risk should be minimised by Mr S's ongoing involvement with both the Coral Tree Service and an independent psychologist.

Submissions

Written submissions were received from both Mr S and Mrs S on 7 March 2014. The submissions were sent together by email from Mr S.

Submissions: Mrs S

Mrs S's written submissions were of considerable length. She submits that parental responsibility and placement remain with the father and that she be granted supervised weekly contact visits.

The main thrust of Mrs S's submissions is that the various reports and evidence of DFaCS, medical professionals - in particular the Clinician - school staff and other relevant persons, are untrue. According to Mrs S, the allegations against her are baseless and false and as a result, she has been deprived of her rights as a mother because of lies and false allegations. Further, she has made a strong suggestion that, when they are 12, the children - at least initially M - will be able to have their "own say...to clarify these false claims" and to "answer to authority then." The mother disputes that M's improvement since being removed from her care and the house reflects on her prior care. Her submissions go on to state that the "facts are I saw M behind their [DFaCS] back many many times, as this was not court ordered..." That behaviour raises concerns given her continual insistence in the submissions of maintaining her view of the medical conditions and diagnoses she has made of the children.

Mrs S extensively details her background and that of her family which, by her account, was very difficult. Her mother disowned her at 6 months of age. Much of Mrs S's submissions focus on incidents from her past life.

In respect of her assertions that the doctors and other professionals are lying, she provides her account of relevant situations. For example, she takes issue with a misdescription of the Clinician's account of a murder witnessed by Mrs S. Mrs S describes her account of what happened at great length. Further, Mrs S provides examples from her childhood and various relationships with family members to show that she is an empathetic person.

Mrs S submits that she always put her children first and that they never went without. The mother provides examples of the care she has provided to the children to contradict reports of DFaCS, for example, in providing speech therapy to C.

Mrs S emphasises that she has never had a criminal conviction in support of her submission that she is not a dangerous person. She states that she has sought anger management counselling and has completed a parenting course. Mrs S also states that she is going to be attending a new psychologist. If that has occurred, there is little or no evidence that it has led to a change in her behaviour. If anything, her behaviour during parts of the hearing suggested the reverse.

Submissions: Mr S

Mr S's submissions were 13 pages in length and contained a thorough analysis of much of the chronology and details of the allegations against the mother both by doctors, hospital staff and the Principal of the school formerly attended by the children.

The father's position is similar to that of the mother - that the children remain in their current placement in his care. The father agrees to any supervision that is imposed by the Court. The father also submits that supervised contact with the children should be granted to the mother on the same terms as the previous contact orders in 2011 although the penultimate paragraph - [27] - submits that "...any supervision is agreed on by the father." It is implicit that that would mean that the father could let the mother see the children at his discretion.

Mr S outlined the nature of the S's family life prior to the commencement of the Children's Court proceedings in May 2011, including the various presentations of M to medical professionals and other related events. Mr S reports that the family participated in many activities that would be described as usual of a young family - visits with relatives and friends, zoos, beaches, picnics and the like. The children had a large backyard in which they played.

By the father's account, M had his first admission to hospital in April 2007. Mr S then summarises issues with medical staff, the pathway to diagnosis and treatment in relation to M's asthma and other apparent medical concerns.

Mr S refers to what he sees as a conflict between Dr Jaffe and Dr Cooper as to the cause of M's asthma - in particular, as to whether there is an emotionally-based cause especially arising from the enmeshed relationship between M and his mother. I do not accept that the differences between Dr Jaffe and Dr Cooper are as substantial or as important as is submitted.

Mr S submits that "the mother does not deny hostility or aggression towards the medical staff but attributes it to her frustration in getting answers and treatments for M." It was at this time, and after the mother approached the former Public School about bullying of M, that "the family's once easy going and carefree lifestyle became stressed and complicated." Mr S admits that Mrs S has a "lack of anger management" but says that "being blamed for M's predicament would have made her antagonistic to the hospital staff."

Mr S then outlines the evidence that has been presented during the course of the proceedings and highlights areas of what he sees as discrepancies or missing pieces in the evidence or between the evidence and what he says actually occurred. That extends to what he submits are errors and inconsistencies in the medical and hospital notes and reports as well as the school records - for example, as to a lack of clarity between full and partial absences of M from school resulting in over-exaggerated absences. On any view, those absences from school were substantial and clearly would have interfered with the level of M's education and attainment. Similarly, the number of presentations to the various hospitals - even if they are minor statistical errors - are concerning.

Regarding the various reports of medical professionals, Mr S submits that "there should be some doubt as to the conclusion reached by the medical professionals as there appears to be no harmony in their findings but a pursuit after a psychological answer to M's condition." Further, that conflicting information about M has been supplied to the mother. He submits that there has been double counting with respect to reported hospital presentations and admissions. The father also attempts to highlight human error in the information passed between professionals, for example the misdescription of the "maternal" grandmother when it should be the "paternal" grandmother. He uses these factual mistakes or inconsistencies to attack the validity or professionalism of those professional reports. Many of those asserted errors and inconsistencies were not put to the relevant witnesses in cross-examination and those witnesses have not had the opportunity to respond to them.

Mr S takes particular issue with the assessment and report of the Clinician. The assessment of Mrs S, according to the father, does not honestly reflect her personality due to the circumstances occurring in her life at the time which caused her great anxiety. Mr S submits that the practice of the Clinician reviewing background literature led her to what he calls "confirmation bias" and also "financial bias" to the paying party. Mr S submits that I should place little or no weight on the Clinician's report because of those and other matters.

DFaCS

The basis of DFaCS' position is that pursuant to s 71(e) of the Act the children are suffering or likely to suffer serious psychological harm if they live with or are brought into contact with the mother. DFaCS relies on the following provisions in s 71 of the Act:

(1) The Children's Court may make a care order in relation to a child or young person if it is satisfied that the child or young person is in need of care and protection for any reason including, without limitation, any of the following:

...

(c) The child or young person has been, or is likely to be, physically or sexually abused or ill-treated,

(d) Subject to subsection (2), the child's or young person's basic physical, psychological or educational needs are not being met, or are likely not to be met, by his or her parents or primary care-givers,

(e) The child or young person is suffering or is likely to suffer serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which he or she is living,

(f) In the case of a child who is under the age of 14 years, the child has exhibited sexually abusive behaviours and an order of the Children's Court is necessary to ensure his or her access to, or attendance at, an appropriate therapeutic service.

It was originally proposed that Coral Tree Family Services would be involved to assist the family. Coral Tree Services is a unit of Northern Sydney Child and Adolescent Mental Health which provides therapy to families where the children are experiencing mental health difficulties. It proceeds on a five-day intensive, live-in programme for children following which there is a referral back to a local clinician. It would be the starting point for the father and the children. However, the Service sent a letter to the father, to Ms Lascelles-Smith and to Mr Parker on 5 February 2013 withdrawing the offer of a family admission due to the current Court proceedings and the associated need for DFaCS investigations to be finalised before effective therapeutic work could occur.

DFaCS intended to refer the father to a Reparative Parenting Program run by Community Service psychologists to assist him with setting boundaries and supporting the children. That did not occur. The father did not engage with that service. He intends to engage with the Coral Tree program once this case is finished.

Contact

Explanation to the children

The ILR submits that there should be no contact between the mother and the children or any of them. The ILR has seen the children four times during the hearing process and has undertaken to see them again to explain the effect of these orders.

Given the ages and developmental capacity of the children, I am satisfied that they are able to have the nature and effect of the proceedings explained to them and I accept the undertaking of the ILR for the purposes of s 95 of the Act particularly, to explain the terms of the orders. That should occur within seven days of receipt of this judgment. It should also involve explaining to the children what the next steps will be, including the terms of any counselling order or order for the involvement of a psychologist.

Conclusions

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

Evidence: History and pattern of reports

The consistent theme in all the reports before the Court, is that professional witnesses in a variety of settings - hospitals, schools, medical and departmental officers - and where those staff have come from a variety of independent institutions, have experienced first hand Mrs S's anger, aggression and comments. Her behaviour has indicated not only a lack of control on her part but also a refusal to accept views which run contrary to those she held and holds. Mrs S also admitted that she had "butted heads" with teachers and hospital staff, a propensity to act in a manner in which she took apparent pride. That lack of control and the fixed nature of her views were also apparent from her conduct in Court.

While there may have been minor miscalculations of the number of admissions or the dates taken into account by the Clinician, there were a very substantial number of admissions displaying a pattern where the medical professionals considered that the admissions were not just inappropriate but reflected adversely on Mrs S.

As with those matters canvassed by Mrs S, many of those errors and misdescriptions are on relatively minor matters. They do not affect the central thrust of all the recommendations and the expert opinions: namely, that the mother's personality, behaviour and actions - in which the father has acquiesced - constitute abuse of the children and represent a real and substantial risk to the children of ongoing harm. The evidence supports those findings.

Mother

As I have said previously, I believe that Mrs S loves her children. It is the way that she shows that care and affection and the consequences of her actions which are the primary causes for concern, as well as the risk of disrupting the children's current position. Clearly Mrs S was stressed by the proceedings as would be expected of any parent faced with the loss of contact with their children. However, the reports make clear that Mrs S exhibited the same sort of conduct before the proceedings commenced towards a variety of individuals and institutions. Further, that conduct has been ongoing and consistent over a long period of time.

The mother was able to appreciate during the hearing the questions put to her and their meaning and import. However, it is clear that, notwithstanding everything that has happened, the mother still sees others as responsible for the position she finds herself in. She refuses to accept that her attitudes and behaviour have in any way contributed to the children's current position. She has little, if any, insight into the impact of her conduct on others.

Mrs S's anger with her mother appears to be continuing and all-consuming and appears to be used as a self-justification for her extreme protectiveness towards her children.

I find that there is a clear nexus between the mother's inability to control her anger and her reactions and her parenting capacity. Her conflicts with witnesses over the course of the trial despite consistent requests to desist from her personal attacks, confirms Ms Lacelles-Smith's opinion that she is not amenable to change.

Her evidence indicated a lack of insight into her behaviour or the motivations of others, or both. She remains angry that she has lost her children but considers that she has learnt to redirect her anger and upset so it is not taken out on others. I did not see any evidence of that during the hearing: rather the reverse. The mother was very hostile to a number of the professional witnesses with little appreciation of her actions that had led to them taking their views. That was her essential response to the multiplicity of allegations against her from the variety of personnel involved. The mother maintained that attitude of hostility in the witness box and at the bar table during the hearing.

Exhibit 2 is a folder of extracts from clinical notes maintained by various hospitals, which set out aspects of the mother's conduct at hospitals towards medical staff. Those notes have been made by a variety of medical personnel over a range of dates in a variety of settings. The mother denies these incidents. The range of incidents covered by the extracts of hospital notes concerning the mother's behaviour in Exhibit 2 - particularly given the time periods involved with the numbers of reporters and the specific nature of the allegations - make it impossible to accept the mother's absolute denials of these incidents. They clearly show that there has been abuse and aggression by the mother to hospital and medical personnel over a long period.

Even accepting that hospital admissions involving children can involve considerable stress on the part of parents, the mother's behaviour was inappropriate and consistent with all the complaints made against her by others. Perhaps more importantly, those reports set against the background of the reports of her conduct at the children's school, confirms the mother's lack of self-awareness and self-control. Where those events, as outlined by the Principal, occurred in the presence of the children, that conduct also indicates a lack of insight into the needs of the children and the impact of her behaviour and some symptoms of what is referred to as Narcissistic Personality Disorder.

It is not for this Court to make a diagnosis of a psychiatric or psychological condition or syndrome such as Narcissistic Personality Disorder, MBPS or PTSD being present in the mother. Those are the findings of the witnesses who are experts in their respective fields. In any event it is unclear which matters would be relied on to establish any of those conditions. What this Court is concerned about are the interests of the children, their care and ongoing safety and well-being and, in relation to the issue of the mother's contact to them, whether her behaviour is likely to advance their interests or, alternatively, to suggest a real risk of harm to the children if they come into contact with them.

Specifically, the records refer to the mother's poor self control, "going off the deep end", her pride and anger, her mood instability, her difficult behaviours and aggression, her breaking of hospital and ward rules, her use of fists to demonstrate punching movements for emphasis and her abuse of, and swearing at, doctors. I found her denials unconvincing that she used the language reported (1/6/2009), namely, that, if the male nurse from the Children's Ward came anywhere near her baby that she was going to "slice him open like a pig."

Similarly unconvincing were her denials that she said about one of the female doctors, apparently a Muslim, that she was going to "...wrap her f... scarf around her neck and pull it hard and kick her in the guts." More seriously, as far as M is concerned, are the accounts of the mother's repeated comments about funeral arrangements for M, in his presence.

I do not accept that the reports were concocted or the result of a conspiracy by, for example, all the medical personnel. Her hostility was particularly and emphatically expressed to those who differed from her (strongly held) views about her children's respective conditions (including what medical conditions they suffered from and the causes) and what had happened to them (in an educational setting). There appears to have been little self-control by the mother and regrettably her verbal altercations in the past were occasionally carried out in the presence of the children.

Mother's inaction

The mother said she was grief stricken by the orders made against her. However she did not do a great deal to collect or present evidence as to improvements to herself or her situation in the twelve months following the Children's Court hearing, or during the lengthy adjournment period necessitated by the mother's application for the Clinician to be present for cross-examination. Those delays were extended by her inability to participate in the proceedings in the week commencing 16 December 2013 as a result of her own actions. Even during that additional period in February 2014, the mother made no attempt to call other witnesses.

The mother's approach in the litigation appears to have been to correct the record as far as she is concerned rather than to focus on what can be done for the children in the future. She has refused to accept the overwhelming effect of the allegations against her and reports of her threats going back to the various threats she made to the hospital staff in October 2005 and continuing and the anger she expressed then, and subsequently, to M. She saw the specific nature of the allegations becoming apparent in the voluminous material the doctors have presented. Despite the adjournments given, she took no action to call any other witnesses in support of her case.

In these circumstances, counsel for DFaCS seeks that a Jones v Dunkel inference be drawn against the mother based on what those witnesses may have been able to say in circumstances where she chose not to call them. That is difficult given the realities of the issues faced by self-represented litigants. However, as I have emphasised repeatedly during the hearing, a court can only operate on the basis of proper and adequate evidence rather than assertions.

Mother's Hostility: professional witnesses

While the mother has conceded she has anger management issues, there were repeated incidents during the hearing where the mother was unable to control herself. Many of those instances reflected her determination to do what she thought was "the right thing by her children" regardless of any contrary views - let alone the overwhelming history of inappropriate conduct by her over the years.

During her evidence, the mother referred to the report of the Clinician as a "disgusting report" which was full of lies. She then went to another psychologist, Mr Ward, to try to refute those claims. While she said she found some of the anger management sessions to be helpful, her primary motivation - at least in seeing Mr Ward - was to refute what she considered to be unwarranted attacks on her. That hostility has now extended to Mr Parker and indeed, any person or institution who she sees as coming between her and the recovery of her children.

The mother was - and remains - very critical of Dr Jaffe and his evidence and opinions. That is unsurprising given that it was Dr Jaffe's report which precipitated the removal of the children. The mother considered that Dr Jaffe was motivated to be vindictive towards her because of her threat to "go public" in terms of her complaints about Dr Jaffe and the hospital. At the end of the first four days of hearing when asked what evidence she wished to adduce, the mother said that she wanted Dr Jaffe for cross-examination. When reminded that she had little evidence to support her case that she had altered her behaviour her response was to reiterate that she wanted to cross-examine Dr Jaffe. She took no steps to have him present for cross-examination.

I find that the mother has clearly influenced the children with her views on treating doctors and hospitals, school personnel as well as their treating professionals - for example, Mr Parker.

It is difficult to see how, with those attitudes, there will be any commitment by her to the behavioural change necessary to ensure there is no repetition of the pattern of dysfunction and hostility that she feels towards virtually all the professionals who were enlisted to help with the children.

The mother, while saying that she recognised that there were serious allegations of sexualised behaviour exhibited by, or towards, the children, had few plans to deal with that. She thought that she would see a psychologist as she has done in the past. Self-represented litigants often experience difficulties in understanding court procedures. However, Mrs S's refusal to take any of the opportunities she had to call evidence in support of her allegations and submissions indicates a refusal to come to terms with the reality of the situations her actions have caused.

The mother is a very strong and forceful character who has little insight into the effect and consequences of her actions. It is the unfortunate and direct consequence of her conduct that the children have been damaged.

I see nothing which suggests that the mother would be able to control herself sufficiently to bring matters of concern about the children to medical and health personnel, nor to educational personnel such that it would be to the advantage of the children. To make it abundantly clear, the mother should have no part to play with the medical or associated treatment of the children nor should she interfere with the children's schooling in any way.

The mother may not accept this decision, just as she has not accepted the Children's Court decision nor the opinions or recommendations of the various experts, witnesses and other professionals set out below. It may be that she will continue to re-agitate her complaints and aspects of her view of the history of the matter.

Release of material

There have already been vast community and public resources devoted to this family which essentially arise from the mother's aberrant and often dysfunctional behaviour. For that reason, this judgment should be available to any treating or advising professionals - medical, hospital, para-medical, educational or legal. For the same reason and to avoid further unnecessary use of scarce resources and costs, these reasons contain more details than would normally be provided following an appeal of this nature.

Father

The father not only supports the mother's application but also accepts her views and descriptions of the children's conditions as well as her hostility to the treating medical and other personnel. There are a number of areas where his affidavit material repeats very similar, if not identical, language and descriptions to that of the mother. It is clear that the father supports the mother's re-involvement with the children as part of his desire to have his family reintegrated and re-established.

I have reservations as to whether the father is capable of managing the children on his own for long periods. He is presently coping with the children within the structure of his parents' home but not without difficulty. His support for the mother's re-integration with the children is evident to the children - possibly in a way that diminishes his own standing, authority and capabilities in their eyes.

The father had, apparently belatedly, come to the view that the mother had serious issues, particularly in terms of anger management and lack of insight - which need to be addressed.

The father is doing his best to care for the children, essentially on his own although with some assistance from his parents. There has been substantial compliance by him with the undertakings given. Two of the children have made comments consistent with having seen their mother in breach of the undertakings but, if so, that appears to have been on one occasion only. Certainly, everyone in the family is aware of the consequences of breach of the undertakings. These have been reiterated to the father as late as 16 December 2013.

I also have some reservations about the father's preparedness or ability to engage with counsellors in any meaningful way. He is also clearly frustrated about changes to the children's lives and the impacts on them as well as on him. He was initially desirous of transferring the children back to the other Primary School (where they were previously) without being aware that is not possible because of area requirements. He disputes that attitude is a proper reflection of his views and accepts that the children should remain in the schools and placements where they are.

I also understand that Mr S is attempting to show that in the context of what are relatively minor discrepancies or human errors in reports and accounts, there are alternative versions of events or other explanations for M's illness - for example that mould explains M's symptoms, or that the mother was frustrated by a lack of progress in the treatment of M.

In my view - even accepting what Mr S submits - these discrepancies, inconsistencies or alternative explanations do not affect the overwhelming body of evidence from all the medical, hospital and school witnesses who have given evidence or whose reports have been admitted into evidence. Nor do they diminish the risk of harm to the children should they be placed in the care of the mother, albeit even with limited contact. This finding is also made in the context of the close nature of the relationship that exists between the mother and the father - I have reservations regarding the independent nature of Mr S's submissions. I also note that Mr S does not make submissions in respect of the other three children.

Absence of support

The mother has had a dysfunctional family background, considering that her mother, in her words, "dumped" her when she was six months old. She refers to her own mother as being extremely violent to her and others. The mother also has a difficult relationship with her sister. She said that she had problems with her father when she was young but now has a good relationship with him. He has helped her with the children.

In cross-examination, the mother was taken to the report of the Clinician (TB vol. 1, pp 68 ff) and her family background - in particular, her sister Lisa (who she described as sexually promiscuous) as well as her mother, who she described as a "junkie whore".

If there is an error or misdescription, it is a relatively small matter in all the circumstances and, of itself, does not justify the attack made on the Clinician's professionalism nor her overall recommendations.

The mother's plans are to live with the father should she regain the children and devote herself to their full-time care. The resources that the mother and father have to call on for assistance with the care of the children include the paternal grandparents and maternal grandfather. Those parties were not called as witnesses. I note that she no longer submits that the children be fully reinstated into her care.

The reports indicate that the mother has no current relationship with her mother and sister, and it would seem no extended family or other support available to her. That was disputed by her but no evidence to substantiate any extended family support network - which she maintains she has - was called by her. The mother has no contact with the paternal grandfather of her children and has withdrawn from most family members since the children were taken from her.

There is no evidence to support Mrs S's assertions of lies, denial of allegations or to verify the close support network of family that she claims she has. That is despite repeated opportunities she has had to call evidence to support her claims. The evidence before the Court should be preferred to her submissions.

Findings required under the Act

Children

These children have been subjected to behaviours and attitudes from their mother, which have left them confused and vulnerable. There was an unhealthy dynamic between the children and their mother which arises because of the mother's powerful influence. It is confusing to them. They are in a new settled environment with their father and paternal grandparents, attending the schools and pre-schools they do. The reservations of the DFaCS and the ILR are that the mother's influence is so strong that it constitutes "vicarious parenting" by her which Mr S has not sought to deal with or minimise.

If the parents are to be believed, the children have not seen their mother for almost two years. They apparently have a concept of their mother which is unrealistic - and may be a basis for any views they have that they will be reunited with their mother. They are clearly aware, for example, that the mother lives nearby and that she sees the father. Regardless of who gave them that hope - and it may well have been from the father acting on his own hopes or as a result of pressure from the mother - the children need to have a realistic view of the mother and knowledge of the potentially deleterious impact on them flowing from her behaviour.

M, on the evidence, had a close relationship with his mother to the point of being enmeshed. That may have reduced in its severity but it is predicted that he will be resentful about any limitation on his ability to see his mother. The Clinician felt that the mother had a significant and powerful influence on the children even though the mother doesn't see them. She thought that was being done vicariously through the father. Further, that the father hoped - as did the children - that the mother would return to live with the children. His views may reinforce the children's views to their detriment.

One of the difficulties in this case is that the mother's problems and lack of capacity makes it impossible for the children to be reunited with her. For that to be brought home to the children would eventually involve a diminution of the mother in the eyes of the children. They are all very young and without the capacity or maturity to make their own independent assessments. However, unless that is done responsibly and progressively, the mother is likely, in any contact with the children, to press her case directly with them. In turn, that would lead to further confusion for the children, particularly in that the mother previously placed pressure on them whenever she saw them. If that continues, there may well be a case for considering a placement of the children in out of home care. At the present time I do not accept that recommendation of the Clinician in her latest evidence.

Other Findings

Since the Children's Court decision, there is no more evidence advanced by the mother to warrant re-opening the issue of the children's placement.

Against the background of the evidence and the matters set out above, I find that there is no possibility of restoration of the children to the mother. Further, that there is an unacceptable risk of harm if the children were to be restored to the mother or if she was able to come into contact with them.

Plan: Restoration

The children are now in an apparently settled regime with their father. That is accepted by all parties.

I find on the basis of the reports of the Clinician and the other evidence - particularly that of Ms Lacelles-Smith - that the children are in need of stability and an ordered upbringing to advance all aspects of their lives. I do not consider that the evidence or assertions advanced by the mother provides any basis to change the finding that there is no reasonable possibility of restoration.

I also find that the current arrangements are the least intrusive intervention in the life of the children consistent with their protection from harm and to promote their development. I find that the permanency planning for each of the children has been appropriately and adequately addressed. Further, that the best interests of the children would be best served in accordance with the DFaCS' permanency plan and that they remain with their father with no contact to them by the mother. Given the likely reaction to this decision, it is also appropriate that that placement be supervised until 14 June 2014 by the Child Protection Counselling Service and any child psychologist they appoint. That supervision should include plans for the father's participation in a restorative parenting program as recommended by the Coral Tree program.

The proposals for the children meet the criteria which I am required to consider under the Act which I have set out earlier in these reasons. I find that the continuation of the existing situation will meet the needs for the safety, welfare and well-being of the children.

Findings on DFaCS proposals

The continuation of the current arrangements will advance the children's proper and safe development and their health and educational needs.

I find that the father has done his best to care for the children with the assistance of his parents. However, I have some reservations about the father's ability to control the children, particularly M. He has responded to the children's (natural) queries about their mother but the only logical inference from the notes made by independent observers is that he appears to have introduced an atmosphere of secrecy into the discussions with the children about the mother and aspects of her conduct. I have some difficulty in accepting the denials that the mother has not at any stage seen the children, certainly before 2012. The children, particularly M, will have ongoing issues about their mother and why they cannot see her. Those matters should be the subject of ongoing family counselling through a professional agency.

Supervised contact services

The issue arises as to whether the mother should have supervised contact with the children and, if so, how often, under what conditions and for what purpose.

Having considered all the evidence and observed the matter and her reactions clearly throughout the trial, I do not consider that she would either accept or observe any restrictions placed on her having contact with the children. It is not possible to properly safeguard the care of the children or any of them if they were to spend any time in her care. Further, that the harm and confusion likely to be engendered in the children by her anger and outbursts would be harmful to them on a deep level, the risk of which would outweigh any benefits to them derived from limited contact. That view is relevant to each of the children and to all of them.

I do not find that it is appropriate for the mother to be left to have contact supervised by the father. In the event that contact is ever granted to the mother in future years, that should only be permitted in very structured and supervised circumstances. I make this comment as it appears to be implicit in at least the mother's submissions, that M's views and wishes will become relevant in any further Court proceedings when he is 12 next year. I emphasise that it would be wrong and very much contrary to the interests of M and indeed any of the children to either be pressured or be given unrealistic expectation of changes to their arrangements.

Orders

(1) The Court notes that pursuant to s 83(7), the permanency planning for the children MS born 1 March 2003, CS born 4 August 2004, JS born 5 October 2005 and GS born 19 May 2009 ("the children") has been appropriately and adequately addressed.

(2) The Court notes that pursuant to s 80, it has considered a Care Plan presented to it by the Secretary in relation to each of the children.

(3) That pursuant to s 91(5) the Appeal filed by the mother on 19 July 2012 be dismissed and the Order of the Children's Court made 22 June 2012 be confirmed.

(4) That pursuant to Order 76(6), the supervision order made on 22 June 2012 be extended to 21 June 2014.

Release of material

These orders are to come into effect seven days from the date of this judgement after consultation between the parties, the Independent Legal Representative and the four children.

Leave is granted for the Crown Solicitor, Independent Legal Representative and the Secretary, Department of Family and Community Services to provide a copy of these orders and reasons to Mr Saintz and any other institution, agency or professional providing full-time care or assistance or counselling for the family or any of them or supervising contact.

Exhibits

I direct that the exhibits be returned to the parties tendering them at the expiration of 28 days from the date of these orders.

**********

Decision last updated: 03 July 2014

Medium Neutral Citation:	S v Department of Family and Community Services [2014] NSWDC 86
Hearing dates:	3-6 June; 16, 17 and 20 December 2013; 26-28 February 2014
Decision date:	31 March 2014
Before:	Knox SC DCJ
Decision:	Appeal is dismissed
Catchwords:	CIVIL law - care and protection
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 NSW
Cases Cited:	Director-General of Department of Community Services; Re Sophie [2008] NSWCA 250 Briginshaw v Briginshaw (1938) 60 CLR 336
Category:	Principal judgment
Parties:	MS - appellant DFaCS - first defendant SS - second defendant Independent Legal Representative - third defendant
Representation:	Mr M Higgins - first defendant Mr J Longworth - third defendant Appellant - in person First defendant - Crown Solicitor's Office NSW Second defendant - in person Third Defendant - Verekers Lawyers
File Number(s):	2012/229300
Publication restriction:	None children and parties have been anonymised.