Samuel and Bryan
[2008] FamCA 1261
•10 September 2008
FAMILY COURT OF AUSTRALIA
| SAMUEL & BRYAN | [2008] FamCA 1261 |
| FAMILY LAW – CHILDREN – With whom a child lives – Family violence – Children in care of the Director-General, Department of Community Services |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Samuel |
| RESPONDENT: | Ms Bryan |
| INTERVENOR: | Director-General, Department of Community Services |
| INDEPENDENT CHILDREN’S LAWYER: | Denise Clark |
| FILE NUMBER: | NCC | 357 | of | 2007 |
| DATE DELIVERED: | 10 September 2008 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Flohm J |
| HEARING DATE: | 21, 23, 24 April 2008 26 to 29 May 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Graham |
| SOLICITOR FOR THE APPLICANT: | Hunter Family Law Centre |
| COUNSEL FOR THE RESPONDENT: | Ms Burns |
| SOLICITOR FOR THE RESPONDENT: | Wood Roberts |
| COUNSEL FOR THE INTERVENOR: SOLICITOR FOR THE INTERVENOR: COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Moore Ms Bangash Mr Sundstrom Denise Clark |
Orders:
That the Director-General of the Department of Community Services, New South Wales (“The Director-General”) is to have sole parental responsibility for H born … October 1995 and W born ... February 1998 (“the children”).
That the children are to live with such person or persons as the Director-General may in his absolute discretion decide.
That Mr Samuel (“the father”) is to spend time with the children as the Director-General may decide, but for a minimum of two (2) hours per month.
That Ms Bryan (“the mother”) is to spend time with the children as the Director-General may decide, but for a minimum of two (2) hours per month.
That the time spent by the children with each parent as set out in Orders 3 and 4 hereof is to be supervised by at least one experienced officer of the Department of Community Services, and by two such officers if possible.
That the Director-General is to conduct a review of the time spent arrangements herein on or about twelve (12) months from the date of these orders.
That the Director-General is to implement any change to the time spent orders herein as may be recommended by such review process.
That the parents be and are hereby restrained from approaching, attempting to approach or in any other way contact the children except in accordance with these orders and/or as may be otherwise approved by the Director-General.
That the parents be and are hereby restrained from denigrating the other parent and relatives or partners of the other parent within the presence and/or hearing of the children or either of them.
That the parents be and are hereby restrained from discussing with the children any adverse aspects of their earlier lives during time they spend with each parent.
That the parents, the Director-General and any other person or persons be and are hereby restrained from causing the children to undergo any further forms of counselling or interview process unless such process is considered necessary by an appropriately qualified and experienced registered medical practitioner.
That the Director-General is to sign all documents and do all acts necessary to authorise the school at which the children may from time to time attend:
(a)to furnish the mother and the father with copies of all school reports;
(b)to make available to the mother and the father order forms for school photographs of the children.
That the Director-General is to provide to the mother and the father as soon as possible after such occurrence, details of any illness or injury to the children requiring specialist medical attention or hospitalisation, including the name and address of the medical specialist or hospital.
That pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That all documents produced to the Court in response to subpoena or tendered as an exhibit in the proceedings be returned at the expiration of fifty-six (56) days from today’s date.
That all outstanding applications are dismissed and removed from the Pending Cases List.
IT IS NOTED that publication of this judgment under the pseudonym Samuel & Bryan is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: NCC 357 of 2007
| MR SAMEUL |
Applicant
And
| MS BRYAN |
Respondent
And
| DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITY SERVICES |
Intervenor
And
| DENISE CLARK SOLICITOR |
Independent Children’s Lawyer
REASONS FOR JUDGMENT
The Applications
The applications before the Court are by Mr Samuel (“the father”) and Ms Bryan (“the mother”). Also a party to the proceedings is the Department of Community Services (“DOCS”) and an Independent Children’s Lawyer who represents the children the subject of these proceedings, being H born in October 1995 and W born in February 1998 (“the children”).
The Parties Proposals and the Orders Sought
In an Amended Application filed on 9 November 2006 the father sought orders that the children live with him and spend time with the mother each alternate weekend, for one half of each school holiday period and on special occasions.
At the time of the hearing the father, although not having filed any further amended application, was seeking orders that the children remain permanently in the current foster placement, with DOCS having sole parental responsibility; that the father spend day-only time with the children for a period once a month at the paternal grandmother’s home, such an arrangement to continue until DOCS’s next review of the children’s progress when the father clearly hopes that his time with the children will be increased. The father was also proposing that the mother spend supervised time with the children on the maximum number of occasions each year necessary for the children to be able to identify her as their mother.
In the mother’s Amended Response filed on 16 April 2008 the mother sought orders that the children live with her under the supervision of DOCS and that the children spend time with the father, supervised by DOCS, for such periods as recommended by DOCS.
At the conclusion of the hearing, the mother maintained her original position that the children be returned to her full time care and that the time they spend with the father occur once a month under the supervision of DOCS.
In an Application in a Case filed 3 December 2007 DOCS set out the orders sought by the Department at that time, being that DOCS have sole parental responsibility for the children to include where the children live. DOCS further sought orders that the mother and the father spend supervised time with the children as arranged by DOCS. At the conclusion of the hearing DOCS’s position had not changed, and with one minor variation supported the orders sought by the ICL.
At the conclusion of the hearing the ICL sought orders that the children remain in their current foster placement on a permanent basis pursuant to an order for sole parental responsibility in favour of DOCS. The ICL’s proposal is set out in full as Exhibit “ICL 1” which I incorporate into this judgment, and includes monthly supervised contact with each parent. The orders sought by the ICL specifically include an order for a review of the children’s current situation within 12 months of this Court’s orders.
The Relevant Background
The father was born in 1954 and was 53 at the time of the hearing. The mother was born in 1966 and was 42 at the time of the hearing. The parents began living together on 14 January 1988 and married in 1990. H was born in October 1995, and the first notification to DOCS in relation to H was in 1997. W was born in February 1998.
The evidence is uncontested, despite the father’s apparent lack of recall of many of the incidents, that the father has been a grossly physically violent man and that during the course of his relationship with the mother beat her, on many occasions very severely. He gave evidence in these proceedings and his presence in the witness box simply confirmed the allegations that had been made about his propensity to anger quickly. He is clearly a man who has an extremely “short fuse” and one would have no difficulty at all in imagining the situations in which he was unable to control the anger that apparently quickly deteriorated into violence. A very significant aspect of this case is that both children witnessed the violent treatment of their mother by their father when the family lived together.
The paternal grandmother, who is put forward by the father as a possible supervisor of the time he spends with the children in the future, impressed me generally as a witness and as a very decent, caring grandmother, but I would not have any particular confidence in her ability to control the father at all times, particularly when he is angry.
It has been argued that a disqualifying factor in relation to that grandmother is that, on the evidence, she was apparently aware that during the parents’ cohabitation the father beat the mother regularly but the grandmother did not interfere to curb her son’s conduct. The ICL says, quite sensibly, that that may not simply be a reflection of the grandmother’s lack of responsibility but rather, given her age - she is in her late 70s - it may be a “generational thing”, i.e. people of that generation were often of the view that they should mind their own business.
As stated earlier, the father was originally seeking an order that the children reside with him but has since changed his position, which is a realistic approach, because the Court would be highly unlikely to make a residence order in favour of a parent who has demonstrated such an angry and violent disposition.
In any event, the violence in the parents’ household came to a head in March 2003 when the father was charged, and I believe later convicted, of physically assaulting the mother. On 20 March 2003 AVO orders were made in the Local Court to protect the mother and the children from the father for a period of two years. The parents physically separated officially in March 2003, although the father says, and the mother does not seriously dispute, that the physical separation whereby the father moved into premises separate from the mother and the children did not occur until about June 2003.
In any event, both parents agree that for the following 12 months until June 2004 they continued their relationship, including their sexual relationship. That continuing relationship apparently involved the father visiting the mother and children at her home and spending overnight periods there, or the mother and/or the children staying overnight at the father’s home.
The AVO appears to have been an order of which, during that period, neither parent took much notice, although the mother alleges in this Court, and the father does not deny because he cannot recall, the violent physical attacks upon her continued between June 2003 and June 2004, including in the presence of the children. In other words, the nature of the parents’ relationship did not apparently change at all, albeit that they maintained separate residences.
DOCS received a complaint on 15 March 2004 that the children had been sexually abused by the mother’s uncle K, and on 6 April 2004 JIRT interviewed the children in relation to this matter.
Very significantly, in my view, the events which triggered the end of the parents’ arrangements and the subsequent deterioration of their relationship was not the physically abusive conduct of the father towards the mother. In June 2004 the mother discovered the father in a compromising situation with her best friend, D, who is now the father’s wife. In June 2004, upon this discovery, the mother moved with the children to an address which the father claims not to have known. He did not see the children between June 2004 and December 2007, apart from interviews in August 2007 for the purpose of an assessment by Ms S, the Court appointed expert.
It is part of the mother’s case in these proceedings that the father’s lack of effort to find the children in that period in excess of three years demonstrates a lack of commitment to the children. The father claims that the fact that the mother did not notify him of hers or the children’s new address signalled she did not want him to have any contact, a position to which he was forced to acquiesce while-ever the AVO was on foot.
Whilst the father’s explanation for his lack of effort to find his children is hardly satisfactory, particularly as the AVO order did expire at some time in the relevant period and which, in any event, would not have prevented him from seeking parenting orders for contact pursuant to the Family Law Act, I am satisfied that as an unsophisticated man who is, according to Miss S, of low intelligence, he genuinely thought there was no way that he could see the children at that time as the mother did not want him to. I am satisfied that his actions (or non-actions) in that period did not reflect a lack of love or commitment to his children, rather it reflected a lack of initiative and a lack of financial and intellectual resources which might otherwise have accessed good legal advice.
It is somewhat hypocritical for the mother to now be presenting a case, part of which is that the father’s lack of commitment to finding and spending time with the children in the 2004 to 2007 period reflects poorly on his attitude to responsible parenting, when the evidence is clearly that the mother did not make any effort in that time to provide either of the children with opportunities to have some form of contact with the father who, prior to her sudden departure with the children from the town of E, they had been seeing almost daily. That is hardly responsible parenting.
It should be noted here that the parents’ divorce, apparently initiated after they physically separated in June 2003, was finalised in October 2004.
Coinciding with the mother’s move with the children away from the father in June 2004 and the cessation of any involvement by the father in the children’s daily lives, the mother began almost immediately to experience difficulty in coping as a single parent. A chronology of DOCS’ involvement with the family was provided to the Court by DOCS officer Ms B, in her affidavit sworn 3 December 2007 at paragraphs 16 to 43. That affidavit was prepared in support of DOCS’ application to assume parental responsibility for the children on an interim basis in December 2004. I incorporate into this judgment DOCS’s summary of significant events between June 2004 and the end of 2007, including the six occasions that the children went into respite care by arrangement with DOCS, the mother’s hospitalisations and also a period when the children were living with the maternal grandmother.
On 3 December 2007 the Family Court, by consent, made an interim order for parental responsibility in favour of DOCS in relation to both W and H. They were then placed into foster care. The children have remained in the one foster placement between December 2007 and the final hearing, DOCS have put in place an arrangement whereby the children see their mother once a week under supervised conditions. An arrangement has also been made whereby the children see their father on a separate occasion each week, also supervised. As will be referred to later in the judgment, H has demonstrated reluctance to interact with her father on these occasions.
The Matters in issue between the Parties
As is made clear by the chronology of background events just referred to and the orders sought by each of the parties that the matters for determination before the Court are:
a)Has the mother demonstrated the capacity to meet the children’s needs, including their emotional needs, if they are returned to her full time care.
b)If the children are to remain with the foster carers on a permanent basis does the mother have the capacity to meet the children’s needs as a parent with whom they spend time and, if so, with what frequency and for what duration, and should those periods be supervised.
c)Irrespective of whether the children remain living with foster carers on a permanent basis or are returned to the full time care of the mother, does the father have the capacity to meet the children’s needs as a parent with whom they spend time and, if so, with what frequency and for what duration, and should those periods be supervised.
The evidence relevant to the issues which I must determine
In circumstances where the father no longer seeks orders that the children be placed into his full time care, but the mother forcefully pursues such orders in her favour, not surprisingly it is the mother’s capacity to meet the children’s needs, including their emotional needs, which has been the predominant issue in these proceedings. Accordingly, it is appropriate that I turn firstly to the evidence relevant to the mother’s capacity.
The mother’s capacity to meet the children’s needs, including their emotional needs
The Court appointed expert, psychologist Ms S, prepared a very comprehensive report on this family dated 7 August 2007. It will be clear from the chronology already referred to that at that time the father had not spent any time with the children for in excess of three years. It will also be clear that the report pre-dated the Family Court order which placed the children into foster care pursuant to an interim order for sole parental responsibility in favour of DOCS. Ms S’s assessment of the mother was based on what was clearly a fairly lengthy interview with the mother in which the mother was provided with an opportunity to provide to Ms S with her account of various significant events and issues. Ms S also provided the mother with an opportunity to provide her own account of her personal history, including her developmental history, her education and employment, and her mental health history.
Ms S makes it clear in her report that she herself had access to the mother’s mental health records, which include a diagnosis of the mother’s mental functioning. The report also makes it clear that Ms S’s has consulted with mental health personnel who have been involved in the treatment of, care of and support of the mother over the years. Ms S also provided the mother with an opportunity to discuss in general terms any criminal history, substance abuse and relationship history. The mother also provided details of medical problems which have beset her physically, and the mother also provided her account to Ms S of the contact she has had with professional services over the years. That material is contained between pages 19 and 41 inclusive of Ms S’s report, and I take that material into account.
I also take into account the material contained in Ms S’s report between pages 65 and 67 inclusive which sets out the child protection history of these children which Ms S has obtained from the DOCS file, and the accuracy of which was not challenged in cross-examination of Ms S. That material sets out the number of notifications there have been to DOCS in respect of each child. It also includes the assertion, not challenged, that there have been in excess of 20 reports concerning allegations of sexual abuse of the children. These reports have all been initiated by the mother who has reported them to counsellors and to police who in turn have made notifications to DOCS, and complaints made by the mother direct to DOCS. The alleged sexual perpetrators of the children include the father, paternal grandmother, paternal grandfather, maternal grandmother, maternal grandfather, the children’s maternal aunt, the mother’s uncle, a 15 year old cousin of the children, a six year old boy, a babysitter of the children and fellow students of the children at school. Ms S has ascertained from DOCS material that the children have been interviewed repeatedly in relation to these allegations.
Reference is also made in Ms S’s report at pages 68 to 70 inclusive of her contact with a Miss J, who has been counselling the mother from about 2003 until just before the final hearing commenced, as I understand it. Ms S has certainly made some observations about what she sees as the unhelpful nature of Miss J’s involvement with the mother. Miss J was not a witness in these proceedings.
Ms S has drawn a number of conclusions in relation to the mother’s capacity to meet these children’s needs, including their emotional needs, those conclusions being at pages 71 to 86 inclusive of her report, which I take into account.
Ms S’s assessment of the mother, given Ms S’s qualifications and the thoroughness of her assessment, is very important evidence on the issue of the mother’s capacity to properly parent the children, and I take into account the following conclusions of Ms S’s written evidence:
a)At pages 71 to 77 of her report Ms S writes:
“In my opinion, this is a case in which neither parent is competent to provide ongoing care for the children, despite their love for them. Both parents have a degree of immaturity which severely impedes good parenting.
There is an extensive child protection history on these children – over 40 reports – which represents dysfunction at the extreme end of the child abuse spectrum. While there were obvious significant child protection issues when the couple was together (neglect, domestic violence), it appears that most of the reports have been made in the last 3 years when the mother had sole care of the children. These reports mainly focus on allegations of sexual abuse of the children by multiple perpetrators – allegations usually reported by the mother – and on the mother’s mental health issues, which have led to an emotionally chaotic home environment for the children.
Both parents have major developmental and personality problems, although the mother seems more severely affected in both areas.
The Mother
The mother, [Ms Bryan], has Mild Developmental Delay. This delay is significant, in that she is in the lowest 1% of the population. This delay is severe enough to impact on her parenting capacity, even if there were no other factors. However, [the mother] also has severe Borderline Personality Disorder, which has required psychiatric hospitalisation on 2 occasions in the last years.
The mother was raised in a dysfunctional family and it appears that she has been the victim of sexual abuse. Although some of her claims about this may on the surface stretch credibility (full and continuous intercourse from age 5 for 11 years without anyone being alerted), [the mother’s] continuing and bizarre pre-occupations about this topic, combined with her Personality Disorder, lend credence to her claims of repeated incestuous experiences in her formative years.
[The mother] is very child-like, both cognitively and emotionally. She is at once very dependent/submissive in relationships but is also very powerful in the way she is able to engage others to her “victim” status. She can be at times submissive and passive, while, occasionally, she can be verbally abusive and violent when stressed. These extremes in behaviour are typical of fluctuations seen in Borderline Personality functioning.
Because of her cognitive deficits, [the mother] becomes highly confused about communications of others. As well, her Borderline functioning often distorts her memory and reasoning of events. As a result, she frequently misinterprets events or comes to genuinely believe things about which there is little factual basis. Unfortunately, her cognitive deficits mean that she is unable to see the implausibility and absurdity of some of her claims:
eg. [The mother’s] mother describes [the father’s] “play” of putting a switched-on vacuum cleaner on the children’s genitals. However, [the mother] sees this as sexual assault of the children and reports this to others continuously. [It is likely that, given [the father’s] presentation, this represents immature (and inappropriate) “play” with the children, much as an immature adult pulling a child’s pants down and laughing would be interpreted rather than viewed as a sexual act.]
eg. [The mother] describes multiple sexual abuses of the children by various perpetrators when she and others were present (eg. in a crowded shopping centre when [the father] “accidentally” ran into the family) without recognition of the implausibility of these scenarios, ie. Sexual abuse of children is usually a secret act.
eg. While [the mother] has made multiple claims since 2004 of [the father] sexually abusing the children while in the marriage, she does not show any recognition of the time delay in reporting these nor therefore attempts to justify these delays.
It appears that, while the marriage was a volatile one at times, which included occasional episodes of domestic violence, [the mother’s] more extreme behaviours (suicidal gestures/threats to harm herself; cutting behaviour; bizarre claims of sexual abuse of herself/the children; her sudden decision not to allow [the father] contact with the children) did not emerge until mid-2004. It was also around that time that a plethora of reports to DOCS were made. This period appeared to coincide with a number of events:
(i)[The mother’s] discovery of [the father’s] relationship with his new partner, an issue which, some three years later, still causes her enormous distress and pre-occupation;
(ii)[The mother’s] involvement with another woman, [Ms T], who resided with [the mother] for some months in 2004 at a time when [the mother’s] suicidal gestures and cutting first emerged. [Ms T] is well known to me as a previous child protection client. [Ms T] is an extremely disturbed woman, with a history of severe Personality Disorder and severe acting-out behaviour, including self harm. [Ms T] has also had her children removed from her care by DOCS. It appears from the DOCS file that [the mother’s] relationship with [Ms T] was an extremely destructive one. It may be that it has been in this relationship that [the mother], who is highly suggestible, has “learned” about self harm, in much the same way that some vulnerable people first learn and begin to initiate for the first time self-harming behaviour in psychiatric institutions when they see this practice with dramatic effect and fulfilment of care-eliciting needs in other patients, after which they begin to “copy” such behaviours. The files contain the first reports of self-harming behaviour in [the mother] commencing when [Ms T] was residing with her.
(iii)[The mother’s] increasingly intensive involvement in her counselling relationship with [Miss J], who, according to DOCS files, was seeing her very frequently. Ms [J] was highly supportive of [the mother’s] claims of multiple sexual abuse of the children made around this time.
While [the mother] blames [the father] for her mental health problems, the picture appears rather one of a woman with an ongoing Personality Disorder but with the onset of more extreme behaviours occurring a long time after their relationship has ended and at a time when [the mother] was having little contact at all with him. Unfortunately, [the mother’s] bizarre claims about [the father] seem to have been amplified and reinforced in this period by her counsellor, who still perceives the situation through the prism of [the mother’s] own delusional beliefs.
[The mother] has made numerous and bizarre claims of abuse of her and the children by [the father] and others. A few of these appear to have some basis in reality, eg. the “choking” episode, which [the father] readily admitted to and was convicted of; the ransacking of [the mother’s] house by neighbours (although COPS reports indicate that [the mother] was highly involved in this conflict and was suspected of also being abusive to/throwing things at these neighbours). Some of the other claims appear to have “the grain of truth” element, eg. the incident in which [the father] threw a chair at [the mother] but was intercepted by the grandmother, an account repeated frequently by both women. However, the COPS report about this incident indicates that it involved a child’s plastic chair and was provoked by [the father’s] frustration at [the mother’s] self-harming behaviour, in conjunction with her relationship with [Ms T]. The COPS report indicates his was a minor incident which the Police viewed as an understandable reaction in [the father] but one in which no actual violence occurred.
However, the majority of [the mother’s] claims of abuse, especially her claims of sexual and physical abuse, are bizarre, implausible and inconsistent, to the degree that they border on being delusional. There are numerous examples of these claims but the more bizarre ones included:
*the alleged abuses of [the mother] and the children by [the father’s] parents, especially his mother. Having now assessed his mother, [the paternal grandmother], in my opinion these claims stretch credibility;
*the claim that, on the accidental contact between [the father] and the children at the shopping centre, [the father], in the presence of [the mother] and her mother and in public, approached and sexually abused [the mother] (this conflicts with even [the maternal grandmother’s] account of this event);
*the claims about [the father’s] partner, [D], sexually abusing both [W] and [the father’s] niece in front of [the mother].
It is likely that the majority (if not all) of the sexual abuse claims about the children are invalid. However, the reports have become so bizarre and contaminated over time that it is difficult to know if any may be true.
These are but a few of the numerous implausible claims of abuse made by [the mother]. She talks of these allegations endlessly, including in front of the children. It is most unfortunate that these bizarre claims have continued to be believed and this false reality has been reinforced with [the mother] by her counsellor, who has been seeing her on an intense basis for over 3 years.
[The mother] also has severe deficits in her own protective mechanisms, both for herself and her children. For a long time, she actively resisted DOCS’ requests that the children not have contact with her father/uncle who had allegedly sexually abused her as a child. While she is now accepting of this ban because she fears she will lose the children if she does not comply, she is ambivalent about it. She does not see why, if [the father] obtains rights to see the children, her father and brother, [Y], also cannot do so. This is despite her claims of her father sexually abusing her for years and of her brother sexually abusing [W]. As well, [the mother] claims that [her brother] had regular intercourse with her as a child but she still entertains him frequently in her house. Her behaviour in this regard represents severe dissociation, which is a feature of Borderline Personality Disorder.
While it is acknowledged that [the mother’s] more dramatic behavioural symptoms (self harm actions/threats and cutting) are not currently present, she is still quite emotionally unstable, with distorted thinking. She is currently under psychiatric review and is on medication. However, this review will soon terminate and she will be monitored in future by non-mental health personnel. As well, DOCS is contemplating closing the case. In my opinion, these agency terminations – with the cessation of monitoring responsibilities – will likely decrease the protection of the children.”
b)At pages 79 to 80 of her report Ms S writes:
“It is little wonder that, given the sheer force of [the mother’s] delusional thinking over a prolonged period about abuse of them, that the children, from time to time, have taken this on board and have also “disclosed” that this abuse occurred. However, the children’s “disclosures” are not as fixed as [the mother’s] and their disclosures fluctuate markedly over time, between “parroting” [the mother’s] beliefs on occasions while, on other occasions, denying the abuse has occurred. The children’s “disclosures” of these assaults are, in my opinion, quite implausible. As well, there is little evidence that the children are showing the behavioural accompaniments one would expect in children who have been multiply sexually abused by a wide variety of perpetrators over a prolonged time. They do not present as sexually corrupted children – rather, they present as frightened children who have been traumatised by their exposure to their mother’s delusional beliefs.
Unfortunately, [the mother] does not filter any communication of her distress or delusional thinking to the children, who have been living in a virtual “vortex of madness” for the last few years. [The mother] is overly enmeshed with the children, in that she has few appropriate boundaries with them and cannot see their needs as being separate to her own. The children are exposed to [the mother’s] bizarre delusions CONSTANTLY. They are told about them; they hear their mother talking about them to others; and they were not protected from their mother’s suicidal threats or cutting behaviour at the times these occurred.
It is also apparent that the mother talks constantly about her own (medical) illness to the children in fairly primitive terms, with little protection of the children from this. Additionally, [the mother’s] constant referral to her daughter as “slow” in front of the child is also an example of [the mother] not being able to filter information to them.
These children present as being HIGHLY TERRIFIED about their mother’s safety and well-being because she constantly engenders this fear in them. As a result, they are insecurely attached to her. [W], in particular, is in a very parentified role with his mother and ruminates constantly about her well-being. This causes him to have high levels of anxiety which markedly interfere with his development and education. His focus in life appears to be protecting his mother, rather than focusing on his own normal developmental tasks. It is an intolerable position for a young child.”
c)At pages 81 to 82 of her report Ms S writes:
“In my opinion, these children present as being significantly emotionally abused by their mother and destructively enmeshed in her delusional system.
I have little doubt that [the mother] would be shocked by claims that she has emotionally abused her children. Because of her cognitive deficits and the sheer intensity of her delusional thinking, she has no insight whatsoever about her behaviour. She genuinely believes she is a good mother and sees the evidence in her clean house and provision of adequate food. As well, she genuinely loves and is strongly attached to her children. However, because of her false beliefs and her incapacity to see the children’s needs as separate to her own, she has no idea of the damage and trauma that she has perpetrated on them (and continues to perpetrate on them).”
Ultimately Ms S recommends that the current foster placement for the children be confirmed on a permanent basis rather than the children being returned to the mother.
Ms S gave evidence in these proceedings and was cross-examined and, not surprisingly, most vigorously by counsel who appeared on behalf of the mother. At no time did Ms S resile from her conclusion about the mother’s parenting capacity contained in her written evidence. I accept the oral evidence given by Ms S on this issue, which includes the following:
a)The evidence that it is quite plausible that the mother has a long history of sexual abuse as a child from which she was not protected by adults in the maternal family, including her own mother. MS S draws that inference from, inter alia, the mother’s present preoccupation with the issue of child sexual abuse.
b)Ms S’s evidence that she has had extensive experience with the condition borderline personality disorder; that earlier in her career she treated patients with that disorder and has trained other psychologists on the effect of that disorder in adults on their children. She points out that the mother’s diagnosis was first made when she presented to Hospital in 2004 and Ms S agrees the mother fits all the criteria for that condition. Ms S said that some sufferers of that disorder do also suffer depression and need medication for that. She points out that medication for depression will not alter the personality disorder because “personality is character”. Ms S says the mother suffers from borderline personality disorder, depression and developmental delay, and that makes the mother hard to treat. Depression may be responsive to medication but her developmental delay makes it difficult to treat the personality disorder. She said cognitive behaviour programmes designed to address personality disorders are complex, and require a lot of cognitive understanding by the subject to be successful. They require a lot of homework, and this is unlikely to be successful with the mother who is unlikely to advance in the education programmes available. Ms S points out that the mother has had a massive amount of professional intervention over the last three years with “good” people assisting her and giving her advice, and the likelihood of a successful education programme is not high.
c)Further, Ms S says that she continues to view supervision of the mother’s time with the children as crucial because of the risk that the mother will emotionally abuse them. The mother has generally been unable to filter information she provides to the children although she has improved recently in this regard. The mother has talked to the children about the father and his abuse. She has talked to the children about her own problems and has not been able to set up boundaries between herself and the children. In Ms S’s opinion, without supervision the mother would regress to that.
d)Ms S expressed surprise there had been so few incidents of concern about the mother’s behaviour during the contact visits she has had with the children since they have been placed in foster care. She says they are so inconsistent with her own assessment of the mother that she queries the qualifications of the supervisors. Ms S says she finds it hard to believe that the mother has changed as comprehensively as is asserted, saying it makes no clinical sense that she has changed so much. Ms S has no explanation for the marked discrepancy between the mother she saw and the recent contact supervisor’s report to DOCS on the mother. When asked whether or not she, Ms S, could have made an error in her assessment of the mother, Ms S said that would have to mean that all the other mental health experts involved with the mother and their diagnoses have also been made in error. Ms S concedes that generally her condition does not mean that the mother cannot learn new behaviours, but that she has severe borderline personality disorder and developmental delays. The latter exacerbates the borderline personality disorder. Ms S believes that the supervisors have been telling the mother what she can and cannot talk about, and if the records are accurate it indicates the mother can sustain that for at least a short period of time. Ms S’s evidence is that she has difficulty in coming to terms with the fact that the mother has had a complete personality and parenting change in the short period which has elapsed since her own assessment.
e)Ms S provided oral evidence in response to the Court raising the possibility that any positive change in the mother was early days, when viewed in the context of the mother’s difficulties since at least 2004, if not before, and the Court’s concern that it not make orders which depended on the mother’s current apparent improvement lasting. Ms S’s exchange with the Court on that very significant issue is contained in the transcript of proceedings of 28 May 2008 on page 3, lines 8 to 48 as follows:
Her Honour: One thing that occurs to me is that the very last thing that I would wish to do would be to restore the children to the mother if I thought that her mental functioning and stability, which she may be showing now, is not likely to last. In other words to take them from the placement they are in now and return them to the mother only to find, or hear, that some months down the track, even if it is 12 months down the track, the mother has once again been self-harming, hospitalised etc. Given that I would wish to avoid that, can you tell me about the likelihoods and stressors etc. that I should take into account if I accept the mother is functioning well at the moment, albeit without the care of the children. What guarantees are there that she is going to remain stable, if I find she is stable now?
[Ms S]:Look, I don’t think there are any guarantees, and borderline personality is, you know, colloquially described as “unstably stable” because the fluctuations in functioning are part of the disorder. The sorts of stressors which may trigger self-harm are usually related to issues about relationship breakdown, that something has gone wrong in the person’s relationship with their partner, their spouse, their professional person upon whom they are dependent, but that is usually the most frequent precipitant of that and, you know, I think that one couldn’t predict that. I think that you need to take into account that it is very early days.
Her Honour: Yes, I am very aware of that.
[Ms S]:In recovery, and that, since 2004, these fluctuations have been quite cyclical in nature, and quite prolonged. It hasn’t just been one incident of self-harm. [The mother] has been put into hospital, she has repeatedly self-harmed, so it is quite severe and I think, as I said, I don’t think there are any guarantees that this won’t be an issue for the future.
Her Honour: Is the propensity to self-harm a characteristic of the condition of the borderline personality disorder, or the depression? And I ask that because we have all had – your experience, and me hearing about, severely depressed people trying to commit suicide.
[Ms S]:I don’t think the incidents of self-harming have been serious attempts at suicide. I think they have been, in a sense, I don’t mean to take away the seriousness of it, but it is very much a cry for “help me, help me, I am in emotional pain”. I think certainly, you know, depression may be part of that, but self-harming is one of the criteria for borderline personality disorder.
Her Honour: It is a well identified part of the condition, is that right, self-harming?
[Ms S]:Yes, it is.
f)Ms S’s evidence that in her view the mother does not have the capacity to protect her children, citing the mother’s assertion that her own father had intercourse with her between the ages of 5 and 16, and that this same man had also touched H, but the mother wants the children to see him now, albeit she says that she would supervise those visits.
g)Ms S’s evidence in relation to the impact upon the mother of the various serious abuses that have been committed upon the mother herself, a person suffering from a severe borderline personality disorder. Ms S agreed that the mother’s reaction to those abuses of herself is now part of who she is. Ms S is of the view that whilst the father was on the scene the mother maintained a level of stability, but after their final physical separation that was not the case. Ms S says that the mother has been able to rally significant support for the view that her efforts to self-harm have been an attention seeking device, but Ms S is not satisfied that these will not occur again in the future.
h)Ms S’s evidence in relation to the combination of the mother’s severe borderline personality disorder, depression and developmental delays and the impact of that combination on good parenting. Ms S said it depends on the severity, but the risk of poor parenting increases if there are two or three of those conditions present. It also depends on the level of support of the other parent. Ms S says the mother has a severe borderline personality disorder which does not vary in it’s severity. Her emotional stability will vary from time to time, depending on her stress levels, but the disorder is part of who she is. It is a disorder which may be brought on by an environmental condition, depending very much on early attachments. In this mother’s case there has been sexual abuse from an early age, lack of support by her own mother, and emotional deprivation. Ms S says it may be that the depression is not a separate entity, but may be part of the borderline personality disorder.
i)Ms S’s evidence that she is comforted by the fact that the mother has had access to the number of services she has, but queries whether she can continue to access them in the long term. Ms S says those professional services make the mother feel better, but she queries whether any of them can change the mother’s behaviour or parenting.
As can be seen, albeit that some minor concessions were made orally by Ms S, the strong challenge to Ms S’s written evidence by the mother’s counsel did not result in Ms S resiling from the severity and entrenched nature of the mother’s mental condition, a combination of severe borderline personality disorder, depression and developmental delay. During her oral evidence Ms S clearly confirmed that the mother, albeit a loving mother with good intentions, is an emotionally abusive parent who is damaging her children.
In accepting Ms S’s evidence on this issue I wish to make it clear that I have taken into account the mother’s affidavit evidence which states inter alia that having read Ms S’s report she has seen the error of her ways in relation to her interaction with the children, a change clearly stated in her written material but not as reassuringly demonstrated in her oral evidence. I also take into account the evidence of the maternal grandmother, about the state of the mother’s current functioning; the evidence of Miss F who is the mother’s support worker from C Organisation who provided an affidavit and was cross-examined; the evidence of Ms M, a psychologist; the report of Dr O , the mother’s general practitioner; and the evidence from Miss A, a paralegal involved in the preparation of the mother’s victim compensation claim.
I do not think there is any doubt that the mother’s ability as a housekeeper is exemplary and that she has, with some exceptions, generally been complying recently with the taking of medication for her depression, although that has not always been the case. Overall the mother is making a real effort, I am satisfied, to comply with a course of conduct, including her interaction with the children, which she has been instructed will maximise the chances of her children being returned to her.
I accept the evidence that there have been no further incidents reported of the mother self harming since the end of 2007. I have also, of course, taken into account Ms S’s own evidence that the children both wish to return to live with their mother, and Ms S’s evidence that the children are primarily attached to their mother. However, given the mother’s long history of mental/emotional instability and the way in which this has impacted upon her life and the lives of her children, manifesting itself more obviously since the father ceased to be a part of hers and the children’s daily life, any indicators that the mother is demonstrating a change for the better in her capacity to provide for her children’s needs, including particularly their emotional needs, must be seen as “early days” improvement.
Ms S is a clinical psychologist who is particularly experienced in this area of mental dysfunction and the particular condition of borderline personality disorder. Ms S has no confidence that any improvement will either stand the test of time or that it should be seen as a fundamental change in the mother’s functioning as opposed to a demonstration that the mother has been capable of following some instructions over a limited period of time. Ms S, aware of the reports of those supporting the mother and reporting to this Court since the children were placed in foster care, expresses no optimism on behalf of the children that they could be returned to their mother’s full time care. She cautions the Court against such a move on the basis that it would simply not last, and that what would have been sacrificed in the meantime is the stability of the children’s current foster placement in circumstances where such placements are difficult to find for older children, particularly children with special needs.
In my view Ms S’s firm evidence, both written and oral, must be given substantial weight by the Court. The basis for her recommendations are carefully explained. To ignore Ms S’s evidence and to go against her recommendation in relation to where the children live would leave this Court with a strong feeling of disquiet. I do not intend to make orders which return the children to the mother’s full time care.
The frequency and nature of the periods the children spend with each parent
Before determining this issue the Court must firstly turn to the Paramount Considerations set out in s.60CC(2)(a) and (b).
(a) The benefits to the children of having a meaningful relationship with
each parent.
H and W, like all children everywhere, will benefit from a meaningful relationship with each of their parents. The challenge for the Court in this case is to determine whether or not that outcome can be achieved and, if so, how. It seems to me that in this case, as in many others, that determination will be assisted by firstly considering the other primary consideration as well as the additional considerations.
(b)The need to protect the children from physical or psychological harm from being subjected to abuse, neglect or family violence.
The preceding material in this judgment will have made it clear that I am satisfied the children have been subjected to abuse by their father in being exposed to family violence by the father when the parents lived together. The preceding material also makes it clear that the children have been subjected to neglect and possibly abuse, but certainly emotional abuse, whilst in the care of the mother. I wish to make it clear that my finding in relation to the mother’s emotional abuse of the children is not relevant to s 60CC(2)(b) as emotional abuse is not included in the definition of abuse in this Act, but can be dealt with elsewhere.
In accordance with the requirements of s 60CC I treat those two considerations as the primary or most important considerations.
Additional Considerations
a)The Children’s Views.
The evidence is overwhelmingly to the effect that the children wish to return to live with their mother. The evidence is also clear that H is expressing a view not to spend any time with her father. This view is accompanied by H’s actions in support of that position. W has, from time to time, expressed a view that he does not wish to see his father and that he is, to quote the child, “only being nice to him” by going on contact.
While accepting unreservedly, as does Ms S, that the children genuinely wish to return to live with their mother, it follows therefore that if they are not able to do so they would wish to spend as much time with their mother as possible.
In relation to the children’s expressed views about the father, in light of the background to their relationship with their father since the parents physically separated in June 2004 and what has been, until very recently, the overt influence of the mother on the children’s views of their father, and taking into account the overall chaos and conflict in which the children have lived over the last few years, I am of the view that the children’s express wishes in relation to their father should be examined in the context of an assessment of their relationship with him. I turn now to that issue.
b)The nature of the relationship of the children with each parent and other persons.
The children are primarily attached to their mother with whom they have lived all their life. That fact is not disputed in submissions by any of the parties in these proceedings. I note, however, Ms S’s evidence, already referred to in this judgment that:
“These children present as being HIGHLY TERRIFIED about their mother’s safety and wellbeing because she constantly engenders that fear in them. As a result, they are insecurely attached to her. [W], in particular, is in a very parentified role with his mother and ruminates constantly about her wellbeing. This causes him to have high levels of anxiety which markedly interfere with his development and education. His focus in life appears to be protecting his mother, rather than focussing on his own normal developmental tasks. It is an intolerable position for a young child.”
As to the children’s relationship with their father, once again I turn to Ms S’s report. Ms S spoke to each of the children individually and also saw the children with the father with the father’s current wife and with the paternal grandmother in the course of her assessment of the father/children relationship. This includes the following evidence on page 81 of her report:
“The mother claims that the children have been multiply abused by their father and are terrified of him. Whilst they have occasionally made these claims themselves, their observed behaviour when with him is not consistent with this. Despite [W’s] claims that he “was only being nice” to his father when I saw them together, it was apparent that [W] delighted in this resumed contact with [the father] and misses him very much. That he was so easily able to pick up his relationship with his father after an absence of 3 years indicates both a strong attachment to [the father], good remembrances of him and a complete lack of REAL fear in the relationship. While [H] did not overtly relate to [the father] and his family during the session and fulfilled her mother’s cues in doing so, she showed no fear whatsoever of them.”
When Ms S provided oral evidence to the Court some months after the preparation of her written report, and following a period whereby DOCS had arranged weekly contact between the father and the children, Ms S was aware of the reports of those visits. She acknowledges that those reports, which she accepted as accurate in relation to that issue, reflect that H continues not to want to interact with her father. In Ms S’s view this may be because H is a concrete thinker. She does not realise what has changed. She wants to be with her mother and so she has returned to what her mother used to want over a long period of many years, i.e. that the mother did not want her children to have anything to do with their father. Ms S acknowledges that contact between H and the father is deteriorating and H now will not even join him in the same room.
Ms S says that when she saw the father and H together the child showed no fear of him. She said that whilst H would not speak to the father, there existed a non-verbal relationship between them. Ms S is unsure how to overcome the present difficulty in the relationship between H and the father, apart from recommending that both children be present together in the room when the father enters to show H she does not have a choice as to whether or not she is in the same room as the father. Ms S’s evidence is to the effect that if the children are returned to the mother’s care there will be little likelihood of any active encouragement by the mother of a relationship between H and the father, and H’s estrangement from her father would be a long term issue for that child. Ms S says that apart from what H has been told by the mother, she is likely to have her own very real memories of the father abusing her mother. She is not, however, a fearful child and when assessed with her father Ms S identified no fear whatsoever in H.
Ms S also gave evidence that it is important in the future that any contact supervisor be impartial, to assist H to integrate into the family group that includes her father. The “there is a place to hide” comment made to H by the current supervisor is less than impartial, and is counterproductive.
Further, in her oral evidence Ms S says that when she assessed W and the father W was delighted to see his father. He approached his father and wanted to share past experiences. There was no sign of anything tentative, nor any suggestion that W expected an explosion of bad temper on the father’s part. Ms S also makes reference in her oral evidence to the father’s commitment to the children, which she does not question. Rather, she puts it more in terms of his attachment to the children which she thought was weaker than it might be. Ms S put that down to the father’s personality.
On all of the evidence before me, including the reports of the periods arranged by DOCS for the father to spend time with the children since their reintroduction to him, I am satisfied that W’s relationship with his father and his paternal grandmother has gone ahead in leaps and bounds, and that W very much enjoys the time that he now spends with his father. Provided an arrangement can be put in place which ensures that W is protected from any harm, abuse or neglect, I am satisfied that W will benefit from spending extended periods of time with the father in both the short, medium and long term.
The quality of H’s ongoing relationship with the father is certainly, on the evidence before me, harder to predict. I accept Ms S’s evidence that that relationship has apparently regressed since the time of Ms S’s assessment. I am satisfied that the current poor state of that relationship is likely to be a combination of the child’s memories of her father’s conduct during the relationship, memories reinforced by her mother’s continuing, until recently, denigration of the father to the children, and perhaps the fact that some professionals involved with this family have been unsympathetic to the father’s position and perhaps have not encouraged H as much as they might have done.
I accept Ms S’s evidence that at the time of her assessment H would not speak to the father, but that Ms S clearly identified a non-verbal relationship between them; a relationship devoid of any fear on H’s part. That observation was made upon H and W’s reunion with the father after an absence of in excess of three years. I do not know what the future holds in terms of the father/daughter relationship, but I am satisfied that the situation will be assisted, as Ms S indicates, by an order which requires H to attend with W to spend time with the father. The father has found it impossible to establish any real connection with H. It is clear that the child’s memories of his treatment of her mother are stark.
H attends the weekly contact session with the father, supervised by DOCS, but has nothing to do with him. H’s attitude to the father, and indeed to other matters in these proceedings, must be viewed through the prism of her severe intellectual disabilities. Ms S told the Court that H is in the bottom one per cent in mental intellectual functionings of all 12 year olds, severely developmentally delayed. H attends a special education unit at her high school, and the school provides a great deal of support and assistance for H, including extra teachers. It is unlikely that H will ever be in mainstream education, and in reality is likely to leave school at an early age.
Ms S has described H’s attitude to her father as being affected by her developmental delay in the sense that she “sees everything in black and white”. In other words, she is a concrete thinker. I do not know whether or not she will ever be able to restore her relationship with her father. No amount of inducement by the father or the paternal grandmother to include H has been successful. Ms S does not know whether or not it will ever change. She says the only possibility is that, because H and W are both “marking time” at this moment, desperately wanting to be returned to the care of their mother, that a final determination in this matter may assist H in particular in relation to her relationship with each of her parents. It remains a question mark. It may be that the relationship between H and the father will not be restored.
Notwithstanding that, the father is seeking orders that H join W in whatever contact is ordered and, as I understand the various proposals, no-one is suggesting that H not be included in the periods W spends with the father if those orders are made. W is obviously getting on well with him, and Ms S noticed that the father/son reunions for the purpose of her assessment were observed to be reflective of a great deal of affection for the father on W’s part, and this has been amply demonstrated by the enjoyment and indeed the benefit W gets now from seeing his father. I am sure W would like to spend a lot more time with his father.
c)The willingness and ability of each parent to facilitate and encourage the children’s continuing with the other parent.
I have already referred to evidence wherein it is clear that when the mother moved away with the children in June 2004, and despite the fact that prior to that the children had been either living with the father and/or seeing him pretty much daily until June 2004, the mother took no steps to enable the children to maintain that relationship. Prior to the children’s reunion with their father for the purpose of Ms S’s report the mother made it clear to Ms S that she did not support any ongoing relationship between the children and their father. There is ample evidence before the Court that that view was strongly held by the mother and shared with the children. However since the children have been in a foster placement the mother has demonstrated an apparent change of heart, now telling the Court and others that she supports the children’s ongoing relationship with their father.
I do not know how genuine or sustainable is this new approach by the mother. As Ms S points out, and is obvious on much of the mother’s oral evidence, she is doing everything she can to achieve the result she wants, which is for the children to be returned to her full time care. She has demonstrated herself capable, in the short term, of following the directions of others and demonstrating an attitude which is likely to find favour with the Court on this and other issues. Ms S is not convinced that any change in the mother’s attitude on this and other issues is likely to be sustainable in the long term. I note that the mother seeks orders which support the children spending time with the father in the future, albeit she insists that time be supervised. The reason for supervision is stated by the mother to be because she can see no reason why the father, given his past conduct, should be allowed unsupervised contact with the children when her own relatives, who have also abused the children, should be subject to supervision.
Taking into account all of the evidence, I am not satisfied to the requisite standard that in the event that the children are returned to the mother’s care, or if the mother was in a position to influence their views about the father, that the children would have a meaningful relationship with their father in the future. In W’s case the period following his reunion with his father has achieved a successful re-establishment of a very good father/son relationship. When I take into account Ms S’s evidence that W is extremely concerned about his mother and her state of physical and mental health, I could not be sure that if the mother again sought to sabotage the relationship between W and the father in the future that she would not be able to once again successfully persuade W that he should spend no time with the father.
In H’s case encouragement by the mother and others is crucial to the rebuilding of the relationship between H and the father, if it is to occur at all. I take into account Ms S’s evidence that amongst the reasons for H’s current aversion to the father is likely to be the mother’s influence upon her over the period when H had no contact with the father. Ms S’s evidence is that in the event that the mother is again able to influence H on this issue that H will remain permanently estranged from the father.
d)The likely effect of a change to the children’s circumstances.
The children have been in foster care since 3 December 2007. That foster placement is available to them on a long term basis if the Court orders such an outcome. The children have become accustomed to the routines and structures of that home over a period now of some nine months. H and W have both changed schools since the move to the foster home. They have become accustomed to going to fortnightly respite care with another family and, on an interim basis at least, have been seeing each of their parents once a week pursuant to the supervision of DOCS officers.
Having said that, there is no doubt on the evidence before me that both H and W are hoping that the past nine months has been a temporary arrangement and that they will, as a result of this court case, be returning to their mother’s full time care. The mother, in any event, has asked that if the children are to be returned to her full time care that that not occur before this coming Christmas as there are some medical procedures she has to undertake, and I am assuming, although I am not sure, that the children have been advised that if this Court is going to return them to their mother’s care it will not in any event be until after Christmas.
Accordingly, whilst no doubt familiar with their new routine, I am satisfied it is likely that the children have not settled into the new arrangement as readily as they might in circumstances where they are hoping it is not a permanent arrangement. However, if the orders are made and it becomes a permanent arrangement there will be no change to the children’s daily routines in that foster household, albeit that there may well be a change to the frequency and/or duration of the time they spend with each of their parents.
e)The practical difficulty and expense of the children spending time with and communicating with both parents.
If the children remain in foster care on a permanent basis DOCS will facilitate contact between the children and each of their parents on whatever basis is ordered by the Court and, of course, pursuant to any future review by the Department. In the period leading up to this case the Department has no doubt expended a considerable amount of resources, both financial and in time, to the supervision of the children with each of their parents on a weekly basis. The evidence is clear that that frequency will be difficult for the Department to maintain, and I take that practical consideration into account in my final determination, although of course in balancing all those matters the children’s best interests must always prevail.
f)The capacity of each parent and other relevant persons to provide for the children’s needs, including their emotional and intellectual needs.
I have already discussed in great detail the evidence in relation to the mother’s capacity to provide for the children’s needs, including their emotional needs. In relation to the father’s capacity in providing for the children’s needs as the non-resident parent, but as a parent with whom W and hopefully H will spend time in the future, I take into account all of the evidence including the following:
In her report Ms S said she conducted some tests and the father appeared to be developmentally delayed. Her assessment of the father’s cognitive functioning is set out commencing on page 12 where she says:
“There seemed some cognitive contradictions in [the father’s] presentation and I decided to assess further. Given time restraints, I could only use a “screening” test (Kaufman Brief Intelligence Test: KBIT), rather than a comprehensive intelligence test.
The scores on the KBIT reflected an unusual proforma in that, on the “Verbal” items, [the father] performed on the Borderline Range of ability (lowest 8% of the population), whereas, on the Performance (numerical reasoning) task, he was in the Average Range (lowest 42% of population).
This may partly explain [the father’s] clinical presentation of having some degree of Developmental Delay in social interaction situations, while being competent enough to be a “caller” for [H Organisation], or to be the scorer for the darts competition, etc.”
I take into account Ms S’s conclusion that:
“In my opinion, this is a case in which neither parent is competent to provide ongoing care for the children, despite their love for them. Both parents have a degree of immaturity which severely impedes good parenting.”
In Ms S’s report she states that there is an extensive Child Protection history on these children; over 40 reports which represents dysfunction at the extreme end of the child abuse spectrum. There were obvious significant child protection issues when the couple were together, neglect and domestic violence. Ms S says at page 71 of her report:
“Both parents have major developmental and personality problems, although the mother seems more severely affected in both areas.”
Ms S in her report at 77 says:
“However, the father, [Mr Samuel], has major deficits in areas of his functioning that are likely to impact on adequate parenting. He has some degree of developmental delay (though not as severe as [the mother]). He is child-like, with an excessive dependence on his wife and mother. He is quite lacking in insight and has some odd personality traits, particularly in his restricted range of emotional expression and his rigidity. He presents as being a generally passive and non-confident man, unless he is engaged in his restricted area of interest (motor cars, machinery).”
In her report at page 78 Ms S addresses the issue of the violent relationship between the father and the mother as follows:
“[The mother] has painted [the father] as a violent and abusive man. There is evidence on occasions that he has been violent towards [the mother], eg. the choking episode for which he was convicted of assault in 2003. However, this does not seem to represent the typical “domestic violence” dynamics of a powerful man over a submissive partner. Rather, it appears that [the father] was likely the passive partner in his relationship with [the mother] (as he is now with [D]). However, when frustrated/angry, [the father] appears to act in a child-like and immature manner, impulsively striking out at the object of his anger. This is quite different to the classic domestic violence situation in which the violence is only part of a repertoire of an extremely powerful, controlling and disrespectful person vis-à-vis the “victim”. These classic domestic violence dynamics do not seem present in [the father]. This is not to condone the violence which he perpetrated on [the mother] but it certainly lessens the future risk of harm which may be perpetrated on the children.”
Ms S’s report at page 79 says:
“[The father] appears to have a positive attachment to his children, although he has little insight into their emotional needs and little recognition of what they have suffered over the years. While he is positive to them and superficially relates appropriately to them, his lack of grief about their loss and lack of desperation for contact over the years indicate a diminished strength of attachment, which is likely consistent with his general personality traits.”
In formulating her recommendations, Ms S says at page 84:
“In my opinion, neither parent is able to provide substantial care for these children, despite the parents’ attachment to them and the non-malicious nature of their attachment to the children. It is a very tragic case because there is no doubt that the mother loves her children deeply, despite her cognitive and personality problems.
The paternal grandmother has put herself forward as a full-time carer of the children. While she is certainly more cognitively competent and likely emotionally healthier than the parents, she is very elderly (75) to be taking on the care of two young children. As well, her reduced insight into the past history is quite astonishing for a woman of her intelligence. As such, her capacity to be able to meet the needs of these two vulnerable children is questionable.”
At pages 85 to 86, in formulating her recommendations, Ms S says:
“I do not have concerns about any major risk of harm issues with the father or [D]. However, in view of the factors outlined about him in the body of this Opinion, it would be more appropriate if contact with the paternal family take place in the grandmother’s home (day and holiday visits), with the father and [D] seeing them there.”
Amongst the recommendations in her report Ms S are that contact between the children and the paternal grandmother could occur on a day basis or weekend basis, or holiday basis, at her home and could include visits there by the father and his wife, but that the latter two should not have the children at their home overnight. However, in her oral evidence Ms S specifically amended the recommendations in her report in relation to the paternal family. She said she believes that for the next 12 months each parent should see the children under the same circumstances. She explains why: Ms S frankly admits that she has taken into account the impact on the mother if the father obtains more contact than she does, and if her contact is supervised and the father’s is not.
Ms S says that both children should be the subject of orders to see the father, and that H will benefit by not being able to choose whether she sees the father or not. Ms S says that after 12 months the father could, depending on DOCS’ view, have unsupervised contact and any risk then to the children would only be if they were with him over a long period of time. In Ms S’s view there has been no direct substantial abuse of the children by the father, but she nonetheless recommends that the grandmother be present.
Ms S’s oral evidence, in an exchange with the Court about the impact of children having contact with a parent whose serious violence they have witnessed in the past, that material is contained between line 1 and line 45 on page 1 of the transcript of 28 May 2008 as follows:
Her Honour: Can I just ask you this, Ms [S]. There seems to be a little issue in this case, as between the lawyers anyway, that the father was at times grossly physically abusive of the mother. Is that a conclusion that you have reached also? That there were some terrible hidings in that household?
[Ms S]:Yes, I have reached that conclusion but I also think that it is a little bit different from the usual domestic violence situation. In the usual domestic violence situation there is a sort of encompassing disrespect, denigration, overpowering of the other person. I think those were not the dynamics in this relationship. I think the father’s violence was more related to his child like immaturity, and then when things didn’t go his way he just lashed out, rather than it was part of a broader …
Her Honour: Power play?
[Ms S]: Yes.
Her Honour: Not a power play, more his inability to control a very bad temper?
[Ms S]:Yes, yes.
Her Honour: Let us assume that is the case, but leaving aside the nature of the domestic violence, have you also concluded that the children have witnessed it?
[Ms S]:I think undoubtedly the children would have witnessed some of that.
Her Honour: That is what I thought, and I just ask this question now in the context of the evidence you gave about [H]. There is – whilst experts like yourself can say the children should have a relationship with both of their parents, and if you have just said if there is no active encouragement with [H] she is going to become estranged from her father, is there not a category of cases where children who have been exposed in a family to terrible – by exposed I mean have witnessed – extremely serious domestic violence, or just violence between one parent and another, often don’t benefit from having contact with the violent parent. It seems to be that there are some exceptions to the general rule that children should have a relationship with both parents. Is there not an understanding that for some children it is not in their interests to spend time with the violent parent because of residual memories etc?
[Ms S]:Yes, I think there are some extreme cases. I don’t think [H] falls into that extreme case. And certainly my observation of her was that she didn’t show any fear of the father, even though she said she didn’t want to see him and didn’t talk to him. I think, though, that it is not such a cut and dried thing for children to experience violence and therefore they are terrified. I mean, you have still got [H] clinging to her mother, and yet I think some of the things she witnessed with her mother, particularly self-harm in front of the children, the threats to kill herself in front of the children, must have been equally terrifying to the child, and yet she clings on to the mother. So, I don’t think it is a straight, you know, children experience violence therefore they shouldn’t have contact. I think it is not quite as black and white.
In her oral evidence Ms S agrees that the father has taken no responsibility for physically abusing the mother, and she does not think he has any insight into the impact on his children of witnessing that abuse, and in fact he has no insight of the impact of his conduct generally on anyone.
The mother gave evidence in these proceedings, both in her affidavit and orally, about the various incidents of physical abuse she suffered at the hands of the father. Whilst for reasons already referred to there was an element of exaggeration and implausibility well identified by Ms S in the mother’s provision of history, I have no doubt at all that the father was grossly physically abusive of her and that a number of these incidents were witnessed by the children. There is no effort by those who appear on behalf of the father to deny that background.
While Ms S does not condone the father’s conduct, she attempts to put it into some sort of perspective which I accept is an appropriate part of her role. Ultimately, however, Ms S has painted a picture of a man who is entirely unpredictable when angry. I myself have seen examples of intense anger, barely under control, and at times not controlled at all, during the father’s oral evidence in these proceedings and the “hair trigger” nature of his presentation concerns me greatly in relation to any contact he would have with the children and the abuse to which they may be subjected if he were not supervised by a responsible adult.
The father also has personality traits and developmental delays well covered in the evidence of Ms S which leaves him totally lacking in insight into the impact of his behaviour upon others, and I am satisfied that he would have no understanding whatsoever of the impact upon his children, either emotionally or physically, if he were to behave in an angry or abusive manner towards them. I am not satisfied that the father has the capacity to meet the children’s needs as the non-resident parent with whom the children spend substantial and significant periods of time at this stage. In my view all the evidence points to contact periods taking place in the presence of a responsible adult. It may be at some time in the future when the children are older that they could spend unsupervised time with the father, but in my view that is some way into the future.
An issue in this case is the frequency of the supervised contact with the father, who the supervisor should be and whether that contact continues to occur in premises arranged by and under the supervision of DOCS, or whether it is appropriate at this time or at some time in the future that the contact occur in a family setting with or without the supervision of a responsible adult. In determining those issues it will be a significant part of my deliberation that I have made a finding that the father does not have the capacity to meet the children’s needs, including their emotional needs, even as a non-resident parent spending time with them.
g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents.
Both of these children are children with special needs. All of the evidence, but particularly the evidence of Ms S and the records of DOCS, make that clear.
At page 6 of Ms S’s report she states:
“Reports indicate that [H] has Developmental Delay requiring special educational input. [W] is apparently not delayed but has had a number of behavioural problems, as has [H]. These include running away from school (both children); physical attacks on the mother ([W]); violence towards each other; and the children staying out at night. There are a few vague references in the DOCS’ file to “sexualised behaviours” in the children, though none is detailed.”
Ms S’s oral evidence is that after meeting and assessing H she is quite markedly delayed in her development and thinking. She is at the bottom one per cent of the population with a very low intelligence, very much like a younger child, and that H cannot see “the whole picture”.
The evidence has already been referred to from Ms S’s report which includes the expression, “the vortex of madness” in which the children have been living in the three years preceding the preparation of this report.
The developmental delays with which the children, particularly H, have been born together with the extraordinarily chaotic and emotionally deprived life they have lived, particularly when they have been in the sole care of the mother, clearly make these children children with special needs. Ms S’s recommendations include steps to assist the children.
h)Issues relevant to the right of Aboriginal Torres Strait Islanders
This sub-section is not relevant to these proceedings.
i) The attitude of each parent to the responsibility of parenthood.
The mother and father’s respective attitudes to the responsibility of parenthood have already been discussed in 60CC(2)(b) and 60CC(3)(c) and (f) above. I am satisfied on each parent’s evidence, both written and oral, in these proceedings and Ms S’s written and oral evidence that any deficits in each parent’s parenting of the children and in the attitude to parenting that they have demonstrated is in large part a result of their respective intellectual functioning and mental health issues and personalities. I have no doubt at all that each parent loves these children very much, but their lack of insight for reasons already referred to is such that they genuinely cannot acknowledge that they have been other than responsible parents.
j) Any family violence involving the children or a member of the children’s Family Court of Australia
Family violence has been covered earlier in the judgment.
k) Any family violence order that applies to the children or a member of the children’s family.
This has been covered earlier in the judgment.
l) Order to avoid further litigation.
Earlier discussion would make it clear that, in my view, any order which provides for the children to spend unsupervised time with either parent at this time would not be in the children’s best interests, given the findings I have made about each parent’s impaired capacity to provide for the children’s needs either as a primary resident parent or as a parent with whom the children spend unsupervised time. Accordingly, any order which does not reflect these findings is likely to place the children at risk. Given the involvement of DOCS and other professional bodies with the family I have no doubt that this would come to the attention of the authorities without delay and is likely to lead to further litigation either in this Court or in a State Court.
S.60CC(4) – Consideration of the extent of each parent’s fulfilment of their respective responsibilities as a parent.
This has already been taken into account pursuant to my discussion of 60CC(2)(b) and 60CC(3)(c), (f) and (i).
S.60CC(4A) – The circumstances since separation.
There are no relevant circumstances since separation which have not already been covered in this judgment.
Summary and conclusion
This has been described as a tragic case, a description with which this Court is in complete agreement. The mother has come to Court keen for her two children to be returned to her care, in my view genuinely convinced that she has the capacity to provide for their needs, confident that the improvements she is making in the management of her mental health, day to day functioning and more conciliatory attitude to DOCS and to the father will be successful in reassuring the Court that the children can be placed back with her without risk of further harm, abuse or neglect. The mother also places before the Court the evidence of witnesses who support her position. Regrettably, against a long history of emotional abuse of the children by their mother, albeit abuse unintended by the mother, and which has been well covered in the evidence before me and particularly the evidence of Ms S, any recent efforts by the mother to make changes to the environment in which she wishes the children to live, while she is to be commended, must be seen in the context of a change over a relatively brief period of time and a change which has occurred within the context of the mother trying, and openly expressing that she is trying, to impress those who will return the children to her care, including this Court.
Her mental health and personality difficulties are long standing and entrenched, and it is unlikely in my view, on the evidence of Ms S, that there has been any fundamental change to the mother’s parenting capacity. Having said that, I accept that the mother has demonstrated that she is capable of following instructions for her management of daily tasks for relatively brief periods. However there is absolutely no evidence before me from anyone which would reassure me that the changes she has made are other than paying lip service to a new approach in order to obtain the return of the children, rather than a “new dawn” in terms of her acquiring insight into the impact upon the children of her emotional abuse, albeit unintended, over many, many years; an insight which has been totally lacking in the past and which has damaged her children to quite a considerable extent.
The Court takes no pleasure at all in making such harsh observations about a woman whose own childhood has been traumatic and characterised by many years of sexual abuse by her own father, who has a diagnosed psychiatric illness and personality disorder, who suffers from depression and is intellectually developmentally delayed. But there is no benefit to H and W by living their childhood in a similar environment despite, I stress, the mother’s best endeavours to care for her children properly.
It is urged upon the Court by DOCS, the ICL and the father that if the Court decides that the children’s current foster placement is to become permanent, then there should be a significant reduction in the frequency of the time that the children spend with their mother. Clearly those proposals incorporate Ms S’s view that when the children know that they are not going to be returned to their mother, and that their permanent home is to be with their foster parents, their acceptance of that arrangement will not be assisted by a continuation of the frequency with which they have been seeing their mother to date. I understand Ms S to be saying that is mainly because both children strongly wish to return to live with their mother. The proposal by the ICL and DOCS, which presumably takes into account Ms S’s evidence, is that to continue seeing each parent weekly on separate occasions is too disruptive for the children if it were to continue long term. There is travelling involved, which would probably occur after school, and is yet another commitment on two occasions in each week that the children must accommodate in their weekly schedule.
The Court accepts, of course, that weekly contact with each parent on a separate occasion cannot continue indefinitely. The challenge for the Court is to determine the frequency of a regime that is in the children’s best interests. DOCS and the ICL are proposing contact to each parent every month with that arrangement continuing until the matter has been reviewed by DOCS in approximately 12 months time. It has been made clear to the Court that, with DOCS having parental responsibility for the children, their living and contact arrangements will always be the subject of review and will take into account any changes to the children’s circumstances, including the quality of the mother’s and father’s parenting capacity.
I am mindful of the children’s love for their mother and their very strong desire, which has never wavered, to live with her on a permanent basis. I also take into account the fact that W, in particular, worries constantly about his mother’s health, and the fact that she tries to harm herself. Whilst I accept Ms S’s evidence that this is an inappropriate burden to place upon a child, I am concerned that if the children do not see their mother for many months at a time, as the father proposes, that not only will they miss her very much indeed but will, and W in particular, worry about her and her health and how she is coping without them. I cannot overlook the fact that notwithstanding that there has been somewhat of a “textbook” proposal put forward by the father in relation to “identity contact only” with the mother, it is a textbook proposal that overlooks the joy the children experience when with their mother, the fact that they have been so deprived and neglected during their childhood to date, and that H and to a much lesser extent W, are children with special needs.
I have ultimately come to the view that what has been described as “identity contact only” proposed by the father is not be appropriate in this case, and in all the circumstances I have determined that the children should see each of their parents once a month. I know that will be disappointing to the mother who seeks fortnightly weekend contact with the children if they are not returned to her. In reaching the decision I have made I have also been greatly influenced by the fact that whilst H has a poor or in fact no relationship with her father at the moment and it may never be repaired, W is enjoying immensely the time he spends with his father. On all of the evidence before me, provided W’s contact with the father takes place in the presence of a responsible adult such as the paternal grandmother, W could spend considerably more time and with greater frequency with his father. For W to only see his father once a month may well not be in his best interests.
However, I accept the evidence of Ms S that at least for the first 12 months following this hearing the frequency and duration of contact should be the same with the mother as with the father. This, she says, is because the mother will be devastated in any event by the outcome if the children go into permanent foster care, an impact which will be exacerbated when the mother learns that the children are to spend more frequent time with the father and have an opportunity to spend time in the father’s home, while she only sees them monthly supervised in a DOCS office.
Ms S makes it clear that while she has focussed on the interests of the children, she cannot put completely to one side the impact of such, and I use the colloquial, “double whammy” outcome on the mother, and the fact that it may be too much for the mother to cope with and continue functioning adequately. As Ms S says, that will not assist the children.
As I understand the submissions, there will be regular reviews by DOCS, the first one anticipated to be in about 12 months time, and these will continue to monitor the family. That means there is always the possibility of an increase in the frequency and duration and nature, i.e. supervised or unsupervised, of contact to be arranged by DOCS, and that any contact orders I make at this time should be seen as minimum contact orders. I understand that if I make the orders sought by the ICL and supported by DOCS that they may informally be increased in frequency and duration in the future. However, the Court feels that there should be orders for minimum monthly contact with each parent for the next 12 months.
It must be borne in mind that in determining how much time the children are to spend with each parent, including the giving of consideration to the allocation of time in accordance with options specifically referred to, I must regard the children’s interests as the paramount consideration. Taking into account all of the evidence before me and the findings I have made, I have come to the view that the best interests of these children will be served by making the following orders.
I grant leave to the ICL to make an oral application for the ICL’s costs, and that application is dismissed.
I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Flohm.
Associate:
Date: 26 October 2009
Key Legal Topics
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Family Law
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Administrative Law
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Standing
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