SEARSON & MANAGAN
[2019] FCCA 3950
•24 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SEARSON & MANAGAN | [2019] FCCA 3950 |
| Catchwords: FAMILY LAW – Parenting – future care arrangements for five children – specially fixed five-day hearing not to proceed - public policy elements deemed to apply - where children exposed to disadvantage and neglect – where children previously removed from Mother’s care – where Mother’s home found to be squalid and unfit for the children – where care of the children has been deficient and disadvantageous – complex history of Department of Communities & Justice involvement – where four of the subject children have special needs –where some investment of parental responsibility with Minister of Department of Communities & Justice necessary – where eldest child has historically been responsible for raising younger siblings to a large extent – where children describe family violence perpetrated by the Mother – significant weight to be placed on children’s views – subject children exposed to significant neglect. |
| Legislation: Family Law Act 1975 (Cth), ss.61F; 69ZK. |
| Cases cited: Harris & Caladine (1991) 172 CLR 84 Ras Behari Lal & The King-Emperor (1993) 1 TLR 50 Other sources: |
| Applicant: | MS SEARSON |
| Respondent: | MR MANAGAN |
| First Intervener: | DEPARTMENT OF COMMUNITIES & JUSTICE |
| Second Intervener: | MS HAURA |
| Third Intervener | MS ANNISSA |
| File Number: | PAC 4410 of 2017 |
| Judgment of: | Judge Harman |
| Hearing date: | 24 June 2019 |
| Date of Last Submission: | 24 June 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 24 June 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Fermanis |
| Solicitors for the Applicant: | Phillip A Wilkins & Associates |
| The Respondent in person |
| Counsel for the First Intervener: | Ms Shea | |
| Solicitors for the First Intervener: | Crown Solicitor’s Office | |
| Counsel for the Second Intervener: | Ms Stolier |
| Solicitors for the Second Intervener: | Kathryn Renshall Lawyers |
| Counsel for the Third Intervener: | Mr Bateman |
| Solicitors for the Third Intervener: | Georgia Flynn Solicitor |
| Counsel for the Independent Children’s Lawyer | Ms Rebeby |
| Solicitors for the Independent Children’s Lawyer | Shedden & Associates |
ORDERS
That Ms Annissa be joined as a party to these proceedings to be described as the third intervener/ paternal grandmother.
The matter is adjourned for call over to 15 November 2019 at 9.30am.
Each party shall file such further Affidavit material as they propose to rely upon by close of business 8 November 2019.
By consent, Orders are made in accordance with the Minute of Order executed by the parties and the Independent Children’s Lawyer marked Exhibit ‘A’ attached hereto.
Direct the solicitor for the First Intervener to provide a typescript of the Minute of Orders made today in word format direct to my Associate by email within 7 days of today’s date.
IT IS NOTED that publication of this judgment under the pseudonym Searson & Managan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4410 of 2017
| MS SEARSON |
Applicant
And
| MR MANAGAN |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
These proceedings relate to future care arrangements for five children:
a)X, born in 2002. As would be apparent, X is presently 17. It is likely, by the time that the matter is heard on a final basis, that X will have attained her majority and have left the Court’s jurisdiction;
b)Y, born in 2003. Y is now 16 years of age;
c)Z, born in 2007, 12 years of age;
d)B, born in 2009, 10 years of age; and,
e)C, born in 2013, six years of age.
The parties to the proceedings are numerous:
a)The Applicant in the proceedings is the Mother of all five children, Ms Searson.
b)The First Respondent so named is Mr Managan, who is the biological Father of Z, B and C.
c)The Department of Family, Community and Disability Services is nominated as the First Intervener.
d)Ms Haura, the cousin of a Mr Haura (who is the biological father of X and Y and a party as of right), is described as the Second Intervener. Ms Haura is a significant and important person to these children, as she is the carer of the four youngest;
e)Mr Haura, who does not appear and never has;
f)The Third Intervener in the proceedings is Ms Annissa, the Paternal Grandmother of the three younger children.
g)The interests of the children are represented by an Independent Children’s Lawyer.
The matter is listed today to commence what was scheduled to be a five-day trial. The parties, whilst there is vast and significant factual controversy, are agreed on one fundamental issue - the matter should not proceed to hearing today, and should be the subject of a mixture of final and interim Orders.
The final Orders that are proposed will do the best that can be done for these young persons in meeting their needs, although that is in no way a slight at the quality of care that Ms Haura provides to them, and I will return to that issue shortly. Ms Haura’s care of the children is a matter of significance and moment, which deserves to be appropriately acknowledged.
The parties have also agreed to a number of interim and interlocutory Orders. That of itself is something which should not be disregarded or lightly overlooked.
The history of the proceedings requires some discussion to both justify the making of Orders by consent and to take the step that is proposed: to not proceed with a specially fixed five-day hearing to determine the matter on a final basis, but to, instead, make a number of interim Orders.
Before discussing those issues, what is fundamentally important and to be acknowledged for these children is the security of placement that Y, Z, B and C will receive as a consequence of these Orders. The Orders that are made will provide for those four children to live with Ms Haura. That is an arrangement that has met their needs well since they entered that arrangement in or about May of 2018, having prior thereto lived their lives in a fashion which could only be described as typified and embodying disadvantage and neglect.
As I have previously discussed, there is real pressure upon this Court to hear and determine proceedings within a limited period - what is often referred to as “disposing” of the proceedings, (although I am loath to use such terminology, it making it sound like this matter is nothing much more than a bag of garbage to be taken out on a Monday night).
The principle of finality is well known within civil litigation. Courts should hear and determine cases as quickly as is possible, or, perhaps more aptly, as quickly as is appropriate. That is the gravamen of the joint position of the parties and the Independent Children’s Lawyer.
It is often remarked, including by heads of jurisdiction, that parenting proceedings should be heard and determined by this Court within six to 12 months of their commencement. That is mere folly. It cannot occur in any case in light of present resources, and as discussed by the Australian Law Reform Commission in their recent report, which notes at paragraph 1.8:[1]
The family law system has been deprived of resources to such an extent that it cannot deliver the quality of justice expected of a country like Australia, and to whose family law system other countries once looked and tried to emulate. There is a chronic lack of funding for the appointment and proper training of judicial resources (including judges, judicial registrars – none of whom are currently employed within the courts, and registrars), court-based social services professionals (including Family Consultants and Indigenous Liaison Officers), and legal aid services (including Independent Children’s Lawyers). As a consequence, children and families are deprived of sufficient time and attention being given to their matter at all stages of the process, with the obvious risks that this entails. Faith in the system is lost. The lack of resources has been a matter of concern at the highest levels for 30 years. In 1991, in Harris v Caladine,[2] Brennan J said:
It seems the pressures on the Family Court are such that there is no time to pay more than lip service to the lofty rhetoric of s. 43 of the Act … It is a matter of public notoriety that the Family Court has frequently been embarrassed by a failure of government to provide the resources needed to perform the vast functions expected of the Court under the Act. But the Constitution does not bend to the exigencies of a budget and, if the humanly familial relations create a mass of controversies justiciable before the Family Court, Justices must be found to hear and determine them.
[1] Australian Law Reform Commission, Family Law For the Future – An Inquiry into the Family Law System, Report (2019).
[2] Harris & Caladine (1991) 172 CLR 84 at [112].
That refrain of “quick disposal” is often used, in combination with the ancient adage that “justice delayed is justice denied”. Indeed, there are some cases where that is so – a great many. The important word within that expression, however, is the word “justice”. That is, after all, what Courts administer and deliver. Justice can be resource intensive. That is a real problem when the system is chronically under resourced, as opined by Brennan J some 28 years ago.
Access to Courts, as Rares J has opined,[3] is a right, not a service. Courts are much more than a means of dispute resolution - they are the judicial branch of executive government by which precedent is set, the common law determined and applied, and the parties, when disputes arise with public policy elements - as this case must assuredly does - a determination of that dispute as quickly as is appropriate within a time and using the amount of time necessary to do justice.
[3] Rares J, ‘Is access to justice a right or a service?’ (2015) 89 Australian Law Journal 777 at [26].
Whilst there is real pressure to seek to “dispose” of proceedings promptly - to meet arbitrary KPIs, (this matter having been listed for trial a little short of its second anniversary before the Court) - I am also conscious of that which fell from Lord Atkin in Ras Behari Lal & The King-Emperor (1993) 1 TLR 50, reaffirmed recently by the High Court in Smith v Western Australia [2001] FCA 19, namely, “Finality is good, but justice is better.”
Certainly, as the Law Reform Commission has recommended, the Court should be focused upon an overarching purpose of achieving justice as quickly and cheaply as possible, and with as little acrimony as possible. It is difficult to understand how greater acrimony could be generated for this family, with the myriad problems with which it presents.
However, quickness and cheapness are not fundamental to justice. Justice is far more. Children’s best interests are much more and deserve and require much more. If a hearing can be quick, then so be it. Two years is about as “quick” as it has been possible to even contemplate conclusion of these proceedings. With adjournment, the conclusion will now be closer to or exceeding three. However, quickness and cheapness must be forgotten and thrown aside in favour of thoroughness and an appropriate and proper holistic address of the needs of these children. Those needs are clear and compelling from even a cursory examination of the evidence.
One matter that has already been the subject of comment to counsel, but to which I now turn, is the assistance given to the Court by an extensive affidavit by a case worker employed by the Department, Mr Nathaniel Bennett. Mr Bennett describes in his affidavit, (paragraph 4), that he completed, a little under two years ago, a bachelor degree in social science. I do not refer to it in those terms to in any way impugn his qualifications - far from it. The extent of his involvement in seeking to address the arrangements of these children would counter any such criticism. In any event, it is not intended.
The Court has some empathy for a case worker in the position of Mr Bennett – or, for that matter, a solicitor in a similar position - with two years of post-qualification experience, engaged with a family with the complexities that this family presents.
Even to produce a genogram such as is produced at page 78 of that affidavit takes some little time and understanding. There is a complex association of individuals that leads to the present address of the dispute in relation to these five children. It is an onerous and perhaps unfair burden to place upon a young graduate entering the workforce - even with supervision, as I have no doubt applies, and rigorously so - to be seeking to address the needs of a family with this breadth of complexity.
The complexity is apparent, however, from Mr Bennett’s well-drafted affidavit. The affidavit highlights a number of aspects of the family. At paragraph 19, it is recorded that the first report in relation to risk of harm for any of these children – at that time, it would seem, only young X, then some months of age – was in 2002. That is 17 years ago. Reports continued throughout 2004 and 2005 (paragraph 20), and 2013 to 2017 (paragraph 22).
In 2018, a number of reports were made, (commencing paragraph 27). On 5 March, a home visit was undertaken by a case worker other than Mr Bennett, and an assessment undertaken that the children, then in the care solely of Ms Searson, were “safe”.
Urinalysis tests of Ms Searson were undertaken at the behest of the Department on 7 and 12 March 2018 (paragraph 28). Nothing of any concern was shown. What is of concern is the subsequent suggestion that the urine for the purpose of those tests was provided not by the Mother but by young X, then 15 years of age or so.
On 4 April 2018, four weeks after the first assessment, a second home visit was undertaken in response to further “risk of serious harm” reports (paragraph 29). At that time, the risk of harm was assessed as high for both abuse and neglect of the children - all five children living with Ms Searson at that point.
A further urine test was undertaken on 22 May, and several thereafter. It is suggested that there was nothing of concern in relation to tests undertaken from 31 May to 13 July (paragraph 17). However, subsequently, concerns arose as a consequence of a hair follicle test, which disclosed the presence of both amphetamine and methamphetamine. The hair follicle test might well be seen to give some inferential support to the suggestion that the samples provided for the earlier clean tests were adulterated or from a person other than Ms Searson. It is difficult to reconcile why a three-month testing period from July 2018, which would cover a period from April to July – certainly, the period when the urinalysis tests were clear - would be in such conflict.
On 22 May, and as a consequence of reports made not only to the Department but to the Police (paragraph 35), Police attended at the mother’s home. Police found the home squalid and unfit for the children. They were removed from that home by Police. As a consequence of Police removal, notifications were made, presumably by Police, to the Department, and as a consequence, an assessment was undertaken on 24 May (paragraph 40) that it was unsafe for the children, or any of them, to return to Ms Searson’s care.
The following day, 25 May (paragraph 41), an Application was made to the Children’s Court for an emergency care and protection Order, noting that this is required as a consequence of the section 43 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) upon removal and thus triggering a period of time in which an application is mandated by reference to section 45 of the same Act.
An interim Order was made by the Children’s Court on 29 May (paragraph 42). It expired on 12 June. During that period, the Department applied to intervene in these proceedings, which had been on foot since 4 September 2017. I do not refer to the earlier filing date to suggest criticism of the Department. The actions that were taken, both by Police, in the first instance, and the Department, in the second instance, were abundantly appropriate. That must be so, based upon the Orders that are made by consent today, (although portions of them are made perhaps not with the Mother’s consent, but certainly without her objection).
Following intervention in these proceedings, the Department did not seek to continue the Children’s Court proceedings, thus obviating against the difficulties which might otherwise have arisen.[4]
[4] Including the provisions of section 69ZK of the Family Law Act 1975 (Cth) applying.
On 18 June, Orders were made by this Court which secured the children’s placement. At that point, all five children were living with Ms Haura.
Shortly prior to the commencement of the Children’s Court proceedings and on 24 May 2018, Mr Haura, as the Father of the two eldest children, and Mr Managan, as the Father of the three youngest children, were notified of the Department’s intention to bring proceedings. Mr Managan was asked to identify persons in his family who might assist as placements, as was Mr Haura. It is unclear whether Mr Managan identified any person, whether himself, his mother or otherwise. Mr Haura certainly was strident in his insistence that the children should be placed with him. That would not appear to have been taken seriously, and understandably so, in light of the little that is known of Mr Haura, including his present incarceration with respect to various home invasion charges possibly connected with drug use.
On the same day, Ms Haura, the cousin of Mr Haura, contacted the Department and offered to take the placement of all children (paragraph 49). That placement with Ms Haura and her partner, Ms D, ultimately occurred. It is unclear whether it was immediately or shortly thereafter, but, in any event, following an assessment by Departmental officers, Ms Haura was found to be an appropriate long-term care placement for the two eldest children and an appropriate short-term placement for the three youngest children subject to some further inquiry, which has now been undertaken. That evidence is before the Court and, on the basis that all parties now agree that an Order can be made that the four youngest of the five children to live with Ms Haura, the Court would also, on the basis of that evidence, be so satisfied.
X has since left that placement. That would appear to have been in or about October 2018 (paragraph 54). She lived initially with a friend for some weeks before moving to her present placement, the home of another school friend and her mother. That person is not before the Court nor is there any evidence from her. That may well be required at some point in the future, although the quelling of the controversy as to future placement and the absence of any Order in that regard may well obviate against its need.
A period of independent living was also trialled with respect to X, with X living in what might be described as a group home or community placement facility. That ultimately did not succeed.
The three younger children, Z, B and C, initially practiced some time with their Mother, although that broke down relatively quickly and three of the children, Y, Z and B, have been clear that they do not desire to continue that relationship at this point. Again, I will turn to that shortly by reference to the report.
In January and April 2019, Z, B and C spent brief periods of four to six days in what might well be described, to adopt the language of Mr Bennett’s affidavit, as respite care placements with their Paternal Grandmother, Mr Managan’s mother. It is suggested that some matters of concern have now arisen therefrom. That evidence is not yet fully before the Court.
The present hearing dates were allocated in late 2018. At the time that the matter was listed, it was understood that one or more of the parties, and thus one or more of the children, were Aboriginal identified. It has been made clear today that none of the parties, and thus none of the children, so identify. Nothing turns upon that issue, save that it is a matter that was not addressed, as section 61F of the Family Law Act 1975 (Cth) would require, by the evidence, but it need not be addressed in the future.
Shortly prior to this hearing, it would seem some three or four weeks ago the parties or then-parties attended family dispute resolution and an interim agreement was reached. That agreement has been somewhat modified today but not significantly.
Two matters of real significance have occurred since the negotiation of that arrangement. Firstly, the children’s Paternal Grandmother, Ms Annissa, has applied to intervene and has been joined as a party. Secondly, the Mother, Ms Searson, on or about 3 June, entered a rehabilitation centre as a residential patient to complete a program of six months or thereabouts. Thus, she is not available now and will not be until late in the year or early next year.
The present circumstances of each of the children is described eruditely in Mr Bennett’s helpful affidavit - X at paragraphs 76 to 79, Y at paragraphs 80 to 84, Z at paragraphs 85 to 92, B at paragraphs 93 to 96 and C at paragraphs 97 to 103. What is clear is that all of these children, as one might expect in light of the disadvantage and neglect they have experienced for most, if not all, of their lives, have a number of presenting problems.
X is described as experiencing anxiety and depression. She is described, disgracefully having regard to her age, as never having been presented to a dentist.
Y is described as being diagnosed with ADHD in 2008, although his medication or treatment for that condition would appear to have been largely neglected. He has also not been to a dentist prior to his present placement.
Z is diagnosed with PTSD and anxiety. That is far from surprising in light of what is described of him in the family report. He is described as acting out, hitting his younger siblings and others at his school, wanting to kill himself, expressing suicidal ideation, experiencing anxiety and having various other similar difficulties.
B is described as presenting with some symptoms of foetal alcohol syndrome, having nightmares or night terrors, has various fears in relation to school and he is prescribed Ritalin, although the diagnosis to which it relates is less clear.
C, the youngest of the sibling group, has a speech delay, sensory aversion to noise (again, entirely explicable in light of his lived experience) and he has now, as of March 2019, been diagnosed on the autism spectrum and/or with hyperactivity.
Significant assistance is provided to Ms Haura in her care of the four younger children, not because of any deficiency in her parenting skills but because she has taken on, with her partner, a very difficult job. These are four children described by all as having “special needs”. One would think those special needs are responsive to and have arisen from their lived experience with one or more of their carers.
The children’s school records are similarly poor.
The Mother, whilst she has stridently denied any engagement with drug or alcohol use, would appear to have experienced some difficulties as typified by:
a)The hair follicle testing report referred to above;
b)Her current placement in a residential rehabilitation facility; and,
c)That reported by her to case workers in November 2018, (paragraph 126), that she has ceased using drugs but as a consequence has turned to heavy use of alcohol.
At paragraph 129, Y is clear that he does not wish to see his Mother. Similarly, at paragraph 130, Z expresses the same view, although curiously expressing a desire, at a particular point in time, to have but one meeting with his Mother so he might ask her some questions. One would think all of these children will have a great many questions to ask their parents. At paragraph 132, B is described as not having seen his Mother since October and having no desire to do so.
In late 2018, Mr Managan, who was then living with his Mother, left her home in Town E and he now lives in Area F, relatively proximate to the children. He has also commenced a relationship with a new young lady. In March, he had requested that some assessment be undertaken as to her suitability to supervise his time or be involved with it. It is unclear whether that has yet occurred but she has not filed evidence with this Court and thus the assessment cannot be undertaken by the Court. Time has been occurring between Mr Managan and his three children - initially supervised by Departmental officers, more recently by Ms Haura and her partner.
It is made clear at the conclusion of the affidavit that some investment of parental responsibility with the Minister is a necessary precondition for the ongoing provision of assistance, particularly practical and financial assistance, to Ms Haura. It is on that basis, no doubt, that Ms Haura consents to an Order to share parental responsibility with the Minister. It is upon that basis that the Court also proceeds to make the Order. These children require all the assistance they can receive, as does Ms Haura, who has taken on the difficult role of their parenting.
The family report begs the question - how did this family take so long to come to the attention of child welfare authorities so as to intervene for the benefit of these children?
As the United Nations Declaration of Human Rights makes clear,[5] the family is the fundamental unit of society. As the International Convention on the Rights of the Child[6] makes clear, childhood is entitled to special care and assistance. Indeed, the preamble goes so far as to make clear that children should grow up in “a family environment of peace, love and happiness”. That is not an experience that these five children have had, at least not consistently or for any significant time.
[5] Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, UN Doc A/810 (10 December 1948) at [16(3)].
[6] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).
Perhaps more fundamentally as regards that to which I now turn, one is guided by the words of Nelson Mandela, “The true character of society is revealed by how it treats its children.” Society is, after all, responsible for these children, not merely their parents. I do not use the term “society” to refer to government agencies seized with responsibility for investigating and prosecuting deficiencies in that care. They are part of society but there is a far broader category of persons and institutions that have failed these children.
The family report makes for stark reading. It is, quite bluntly, depressing and traumatising. It is all the more concerning that such reports and the circumstances they describe are daily reading for Judges of this Court.
The report is thorough and comprehensive, however, and it does provide a real means by which these children might have a voice in expressing themselves to this Court.
There has been no indication that the children desire participation in these proceedings beyond the representation of their interests and participation in such processes as the report. However, it would be disrespectful, should these children or any of them desire greater involvement through a judicial meeting or any other process, for it to be denied to them. There are questions, as young Z has expressed, which require answers, and if the children seek those answers, they are entitled to seek them as they wish.
The family report commences by discussing an interview with X, as one might expect as she is the eldest. Indeed, she is not only the eldest of the children, she was, for a great period of time - certainly since Mr Managan and Ms Searson separated, if not earlier - the “head of the household”, as it were. She was responsible for raising her younger siblings to a large extent.
At paragraph 233, X recalls of her Mother that:
She would sleep for days on end when she was coming down from the drugs.
X said that, for a lot of the time, Ms Searson would not attend to her own personal hygiene. She continues:
So I had to bathe her and I had to cook and clean. I did it all. That’s why I didn’t get to school a lot.
It is tragic that a young child of X’s age – 15 at the time that she left that household – would so describe her lot in life. It is not surprising that she is not doing well at school.
At paragraph 134, X describes that she has always struggled at school, both academically and socially, because of her poor attendance. She describes that her boyfriend - whether he is still on the scene or not is unclear – is or was her only real friend, that he virtually lived with the family so that he could help out, but he also was the subject of Ms Searson’s ill temper.
X described working at McDonald’s from the age of 14 but that most of her money was taken by her Mother, although she had started the job in the hope of saving up to buy a car.
At paragraph 136, X describes that Ms Searson was highly abusive towards Z in particular. She described:
Z copped most of the abuse. It’s lucky that he’s still alive. She would go at him 24/7.
She then describes specific assaults upon the child. At paragraph 37, X describes the following:
X said that when FACS first became involved in February this year she hoped things would change but they didn’t.
Such a simple hope by this child, perhaps even comparable to feeling a sense of relief or rescue at the time of that intervention, but sadly frustrated, (although I do not suggest, necessarily, as a consequence of any action or inaction of Departmental officers). That is explained in some detail in latter paragraphs of the report wherein X was quite clear as to how good her Mother is at, from her perspective, leading folk astray (see, for example, paragraphs 202 to 204 of the report).
X continues, however:
Mum got me to do all the cleaning and got one her mates to do it as well.
That is referring to the first Departmental visit to the home when the home had been was cleaned up. It continues:
She told us not to say anything to the case worker. I was trying to throw out little hints, but the case worker didn’t pick up on them. I told the school counsellor before what was going on, but nothing happened out of that.
The sense of disappointment, if not abandonment, that X must have felt when she was, as she describes, throwing out little hints that no one picked up on must have been extreme.
At paragraph 139, finally X describes how she and her siblings felt when they were removed by Police from the Mother’s home and placed with Ms Haura and Ms D. She describes feeling relieved but also depressed and anxious about the future. She quantifies that as follows:
But there’s heaps of stress off me now so I don’t have to take tablets anymore. I can laugh and do stuff and be with my family, but it has been pretty hard not to care for the kids, particularly C. I miss it. So I ask to help out a bit and I’m trying to look after myself.
Such comments by a 15 year old child in a wealthy, first world nation are heart breaking.
Young Y’s description is no better reading. At paragraph 144, Y describes that his school attendance is poor, but his attendance has improved and, consequently, he has been enjoying school much more since living with Ms Haura and Ms D. It is to be remembered that at an early stage of the proceedings, when Ms Haura initially intervened in the matter, vitriol was certainly directed towards her by at least Ms Searson, that is, vitriol towards Ms Haura and her partner, the persons who have stepped in to provide for the needs of these children.
In relation to school, Y describes:
I didn’t really want to go and Mum didn’t care if I went or not.
Y said this meant he missed a lot of work and it was then hard for him to catch up, so then he did not want to go and so on - a circular description.
At paragraph 146, when asked about his home life with his Mother, Y described it as:
Horrible. She was continually snapping over the smallest things. Z copped so much abuse ... she was never a good mum to us. There were no kisses or cuddles, and my sister, [that is, X], looked after us most of the time.
Y said that, in fact, all he can remember is X caring for him rather than his Mother.
At paragraph 148, Y describes that when his parents, Ms Searson and Mr Managan, separated in January 2018:
Things got way worse. Mum was never there or if she was she would bring strangers home. She would stay away for days at a time and X would care for C and X’s boyfriend’s mum would make sure we had food, but I think that I didn’t have any lunch at school for about five weeks.
That is in stark comparison to how he describes living with Ms Haura and Ms D. He is enthusiastic, describing:
It’s so much better. It’s actual care. Better food and clothing. It has been really good.
He is concerned that the accommodation is a little cramped, but that is the only concern he raises. He is very clear, at paragraph 150, in expressing his wish to remain living with Ms Haura and Ms D.
Z’s interview is perhaps the saddest reading, as one might expect in light of that which has fallen from X and Y placing him squarely as the recipient of most abusive attention from his Mother. It moves one to tears.
Z describes that he had talked to lots of different people about what used to happen at home and he is now quite comfortable doing so. That is perhaps thankful in light of the number of people that he has had to speak to and will continue to have to speak to. At paragraph 153, Z is, in the fashion that only a child could be, very much understating the position:
Mum kept doing the wrong thing. She was hitting me a lot.
He confirms that he “copped it more than anyone else.” He describes one event in particular at Christmas, a joyous event that must have been for him when he went into his Mother’s room to look for presents on Christmas morning and:
She came in and hit my head on a pole and then she kicked me in the right eye with her knee. I had a black eye. The principal called me to the office and asked me who did it, but I couldn’t say “Mum” because then she would have got more angry with me.
At paragraph 154, Z describes his Father also hitting him, but mainly with his hand on his bottom, although occasionally using a belt or a plastic spoon. He also describes his Father yelling at his Mother and then his Mother taking her anger out on Z.
At paragraph 156, in describing his move to Ms Haura and Mr D’ home, he describes, in a most childlike fashion, a fashion that no child should have to, that he prefers it on the very simple basis that, “I feel safe there [emphasis added].”
At paragraph 157, he goes on to describe:
They make us nice food that isn’t burnt. There are more vegetables too, but my favourite food is fried rice. Their house is clean. Mum and Dad’s house was really dirty. And we can play with our friends in the afternoon. At Mum and Dad’s house we had to go to bed really early. Now bedtime is 8.30. We were never able to invite friends over because of how dirty the house was and also because of how Mum was.
Again, he describes his happiness - indeed, his joy - in living with Ms Haura and Ms D, describing, “It’s safe and there are proper rules.”
Young B reports at paragraph 161 that he loves living with Ms Haura and Ms D because:
Our new house is really big and it’s nice and we have lots of toys and because they don’t punch the walls like dad used to. He would punch the walls because mum made him angry when she wanted him to leave. At our old house there were lots of fights and dad would get so angry and we would be terrified. Once when Y broke a broom mum threw him down the hall.
At paragraph 162, B recalled:
Mum would sit on the couch and tell us what to do. X did all the things that mum didn’t want to. Mum made her stand on one leg next to the wall. Dad would get a spoon or a belt and hit us with it. Mum mostly hit Z. When dad hit us he did it with our pants up so that it didn’t hurt as much.
B recalled his Mother would:
Always sleep in the mornings and she would never wake up and X had to help them get to school, then in the afternoon she [Ms Searson] would go out to play the pokies, and when she came home in the middle of the night she would wake us up.
When asked of his preference at paragraph 163, B was clear:
I would choose to live with Ms D and Ms Haura rather than Dad if I could because they look after us properly and they never leave us alone like Dad and Mum did, and that was scary. They are not lazy. We can do chores with them and get pocket money.
B described that he is also happy because “our beds were wrecked” at his old home “and they were a bit ripped and it was four of us sleeping in one room.” This is, after all, a family living in one of the richest countries in the world.
Finally, at paragraph 164, B was asked to rate how happy and safe he felt in each household. With respect to his Mother’s household, he gave it a naught. He described “That was because it couldn’t get any worse.” B said the only difference as far as he could see after his Father left was that Z copped it more from his Mother.
B rated Ms Haura and Ms D as a 10 because:
I feel a lot safer with them and it’s the best home ever. It’s the greatest thing. They don’t steal things. They buy things properly for us. They don’t fight or hit each other. I’ve got lots of toys and we get to visit people. At mum and dad’s we mostly stayed home. And we have lots more food now! I used to have a bit of hungry tummy because we never had breakfast. Now we have cereal and toast and sometimes bacon and eggs.
The Court must react to the pleas of these children through what they report in the family report. Certainly, Orders 1 to 4, which provide for the children’s placements and allocation of parental responsibility, will achieve that. They are entirely consistent with the children’s views.
I do not propose to canvas all of the legislative provisions by reference to the terms and the basis upon which Orders are made in accordance therewith. Suffice to observe that the children’s views would verge upon dispositive by reference to authorities such as Harrison & Woollard (1995) FLC 92-598 and R & R: Children’s Wishes [2000] FamCA 43.
The lived experience of these children of their past care by their Mother, if that term might be used in its loosest sense, is disgraceful. It means that the children’s lived experience must be given some real importance in accessing the weight to be given to their views. They have perceived their past care by their Mother as deficient and disadvantageous, and they express fear of her. That is less so in relation to young C, but perhaps only because of his young age at the time that the parties separated.
The other great matter that is tragic - the rhetorical question which I have described the report raises - was how did things get so bad for these children in this family without any intervention?
Again, that is not intended to raise overt criticism of the Department or the Police, the investigative and prosecutorial bodies responsible for children’s welfare in New South Wales. It is to raise a problem with the entire societal response or absence thereof by those that have surrounded these children. There is, of course, X’s boyfriend and that young man’s family who certainly knew had bad things were and leant assistance (including X’s boyfriend weathering Ms Searson’s anger, as X describes it), but further interventions might have been called by them to the house.
There are the schools that these children attended. Their poor attendance records, their poor performance, their poor behaviour, particularly in the case of Z, their poor presentation - without lunch, unkempt and the like are all classic indicators of neglect and all matters which did not appear to raise any significant concern warranting interventions. Why would one have home school liaison offices, wellbeing units within the Education Department and the like, when they are not used? Some of the children have seen a school counsellor, certainly X.
Some of the children, if not all of them, have, at different times, seen different doctors. Certainly, X was prescribed pills of some sort, presumably to deal with anxiety and depression, and yet that does not seem to have raised any red flags sufficient to cause action. There have been ongoing reports to the Department, although their resources and their distraction by myriad unnecessary reports still warranting and requiring investigation, have meant that action has not come at an earlier time.
The Mother has attended clubs playing poker machines. Surely, somebody there might have had some knowledge that she had children and wondered where they were or why she was spending time at the club playing poker machines rather than meeting their needs. But perhaps the profit motive blinds such folk.
The Department of Housing might have had some involvement, noting that as public housing tenants, there would surely still have been routine inspections of the property. The neighbours of this family, myriad folk, might have raised alarm at some point.
It is not to suggest that society needs to engage in some Orwellian nightmare - a Stasi-like vigilance, each citizen of each other. But how could such disadvantage and neglect have gone on for so long, with all deaf, mute and blind?
These children have been failed by their parents and by society with, in all probability, lifelong impact. The Court is now left, with inadequate resources, to pick up the pieces and do what it can.
If one considers the basic indicia of neglect, whether as enumerated, for example, by the National Society for the Prevention of Cruelty to Children or the Department’s own website, most, if not all, of those risk factors are present:
a)Unwashed and unkempt children;
b)Ill-fitting and dirty, tattered clothing;
c)Children hungry or turning up to school without lunch or money for lunch;
d)Children, in the case particularly of Z, with untreated injuries;
e)Children not having ever attended a dentist;
f)The children’s poor behaviour;
g)The children’s poor language skills, limited reading ability, limited vocabulary and poor communication skills;
h)The children’s poor school performance;
i)The children’s poor school attendance;
j)The children’s poor social skills all of which were on display on any given day (irregular and infrequent as they were) that the children attended school, particularly Z. Teachers are busy and over worked but someone must have been concerned;
k)Children who are withdrawn, behaving differently in different contexts, anxious, depressed, aggressive, reporting poor sleep problems, taking risks, having nightmares, and in the case of Z in particular, expressing thoughts of suicide or self-harm
One might think these observations, if not the children’s statements, might have given some concern as to their care.
I do not suggest that lived experience is the only basis upon which a child might be violent to other children in the playground, but surely that question might have crossed someone’s mind at some time. Instead, it would seem, it has simply been assumed that there is some behavioural problem connected with ADHD or otherwise (and there may well be).
All of those classic indicia of neglect, whilst witnessed by so many, have resulted in so little action.
The impact of neglect is well understood as being not only short term, but long term. In many studies, the impact of neglect is considered longer lasting and more damaging than abuse itself, (although I do not suggest to speak to the experience of those who have been directly abused). On Z’s report and that of his siblings, he most assuredly has been abused.
All of these problems and their impact will continue to face these children and, thus, Ms Haura and Ms D in their parenting of these children.
There are a number of aspects of the agreement between these parties which caused me some disquiet. The arrangements for Mr Managan’s time will continue to be supervised, although as is put by the Independent Children’s Lawyer and counsel for the Secretary, it is an Order to which he consents.
Perhaps there are also the issues that arise in relation to the Paternal Grandmother and conditions sought to be attached to her, but as is submitted by counsel for Ms Haura, the difficulty, of course, is that she has become a party only as of today. Certainly, there was participation in the family report interviews, but in a very different context and, thus, there is no abundant evidence before the Court and, on balance, I am persuaded that the Orders should, as they are drafted, continue and be made.
This is a concerning and troubling matter of the abandonment of the remainder of the hearing dates scheduled for this week. Some use can be made of some portions of the week by others, but even if they could not, I would not deny a single resource or opportunity to these children. Their lot in life has already been so disadvantaged, verging upon, at times, pathetic in their own description of their lived experience, and it is tragic that they have been so little assisted by so many people in the community.
Again, I do not make such statements as criticism of Departmental officers. It is merely the reality for these children that their neighbours, friends, the Mother’s friends and associates (although there is suggestion that they are significantly involved in drug use, whether use with the Mother or supply to her and thus may not be motivated to act in the children’s interests), but so many eyes have been cast upon these children with total blindness to their neglect.
I propose to make the Orders as the parties and Independent Children’s Lawyer urge upon the Court in accordance with exhibit A signed and dated by me today.
I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the ex tempore reasons for judgment of Judge Harman
Associate:
Date: 12 February 2021
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