Simon and Harvey

[2012] FamCA 401

FAMILY COURT OF AUSTRALIA

SIMON & HARVEY [2012] FamCA 401

FAMILY LAW - CHILDREN - With whom a child spends time - Where the Applicant Mother is applying to spend unsupervised time including half holidays with the child - Where previous Family Reports suggest that the Applicant Mother has an intellectual disability - Where the Applicant Mother has a severe speech impediment - Where there are past allegations of abuse and neglect by the Applicant Mother of the subject children - Where there has been active involvement of child welfare authorities and placement of children into foster care

Family Law Act 1975 (Cth)

APPLICANT: Ms Simon

RESPONDENT: Mr Harvey

FILE NUMBER: BRC 10327 of 2008

DATE DELIVERED: 31 May 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 21 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Wright

SOLICITOR FOR THE APPLICANT: Caxton Legal Centre

COUNSEL FOR THE RESPONDENT: Ms Farr

SOLICITOR FOR THE RESPONDENT: Turner Riddell Lawyers

Orders

1. All previous Orders be discharged.

2. P Harvey, born … June 1998 (“the child”), live with Mr Harvey (“the Father”).

3. Ms Simon (“the Mother”), spend time with the child on the first Sunday of each month, on Mother’s Day and on Christmas Day, supervised at Contact Centre 1 situated in Town 2 (“the Contact Centre”) for no less than two hours as the Centre can provide. Should the Contact Centre not be available on any such Sunday, Mother’s Day or Christmas Day, then the Mother spend time with the child on the next available Sunday that the Contact Centre can accommodate in substitution.

4. The Mother and the Father have equal shared parental responsibility for making decisions on long-term issues affecting the welfare, care and development of the child.

5. The Mother and the Father each have the responsibility for making decisions for the day-to-day care, welfare and development of the children whilst they are in their respective care.

6. Should the child be unavailable to spend time with the Mother as provided for in Order 3 above due to school, work, extra-curricular or social activities of the child, then the Father is to inform the Mother as soon as practicable and no less than two (2) days in advance of any such occasion and time between the child and the Mother is to occur on the next available Sunday that the Contact Centre can provide in substitution.

7. The Mother be at liberty to telephone the child on Sunday evenings, except the first Sunday of each month, and on the occasion of the child’s birthday between the hours of 6.00 pm and 7.00 pm. Should the child not be available to speak to the Mother on any such occasion then the Father is to ensure that the child telephones the Mother on the following evening between the hours of 6.00 pm and 7.00 pm.

8. The Mother and the child communicate by instant/live messaging over the telephone or internet on one occasion each week, being the Wednesday of each week between the hours of 6.00 pm and 7.00 pm. Should the child not be available to communicate with the Mother on any such occasion, then the Father is to ensure that the child communicates with the Mother the following evening.

9. The Mother be restrained from attending at or telephoning the work place or school of the child or of T Harvey, born … December 1994, and that all other previous Orders relating to T Harvey be discharged.

10. These Orders constitute an authority to all medical professionals and other health professionals attended by the child to provide to the Mother, at her cost, any information relating to the child’s health and welfare as may be requested by her from time to time.

11. These Orders constitute an authority to the child’s schools as may be attended by the child from time to time, to provide to the Mother, at her cost, copies of school reports, school newsletters, applications for class photographs and the like.

12. The Mother be restrained from referring to the child and/or registering them with any authority other than their surname of “Harvey”.

13. These Orders constitute an authority to any relevant authority, organisation or institution that the child be permitted to travel overseas for temporary periods provided that the Father provides to the Mother copies of the child’s itinerary and return plane tickets at least one month in advance of the planned travel.

14. For the purposes of Order 13, the Mother be required to sign any application for a passport for the child as and when so requested by the Father.

15. The Father not be permitted to relocate the child to permanently reside outside the Wide Bay area without the written consent of the Mother.

16. The Mother be restrained from filing any further application regarding either the child or T Harvey without first receiving the leave of this Court to do so.

17. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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.

18. All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Simon & Harvey has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10327 of 2008

Ms Simon

Applicant

And

Mr Harvey

Respondent

REASONS FOR JUDGMENT

Introduction

1. The central issue in these parenting proceedings concerning P Harvey, born in June 1998 (“the child”), and thus now aged 13 years, is whether it is in the child’s best interests that the imposition of supervision of the time the child spends with his mother, Ms Simon (“the Mother”), as prescribed in Orders made by this Court as long ago as 25 November 2005, now be removed.

2. Paragraphs 4, 5, 6 and 7 of the Orders made on 25 November 2005 provided for the Mother to have “contact” (as the Family Law Act 1975 (Cth) (“the Act”) then provided) with the child for two hours each week and on other special occasions; plus two hours each fortnight with the parties’ other child, T Harvey, born in December 1994, now almost 18 years of age (“T”), with such “contact” to be supervised by the nominated supervisor, one Ms R, authorised, “…to discuss contact with both of the parties and to provide each of them with information relating to such contact.”

3. The Mother seeks that those Orders be discharged or varied. Initially, the Mother had sought Orders with respect to both T and the child, but by an Amended Initiating Application filed 8 December 2011, the Mother sought Orders only with respect to the child, and it is the Mother’s proposal with respect to the child and the counter-proposal of the child’s father, Mr Harvey (“the Father”), which were in issue in the proceedings heard by me.

4. The Orders sought by the Mother are set out in a Minute of Orders attached to the Case Information Document filed on behalf of the Mother on 27 January 2012. In short, in respect of the child, the Mother proposes she spend time with the child for one Sunday per month between the hours of 11.00 am and 4.00 pm; plus on special days nominated for likewise five (5) hours’ duration between 11.00 am and 4.00 pm, with such time not being supervised. In addition, the Mother sought half school holiday periods and telephone communication. In the event that the Court ordered that there be supervision, the Mother sought Orders to the effect that the imposition of supervision expire when the child turns 15 years of age (in June next year).

5. The Father seeks parenting Orders as set out in a Minute of Orders filed on 27 January 2012. In summary, the Father seeks a continuation of the supervision of time, albeit at Contact Centre 1 situated in Town 2 for not less than two hours on one Sunday per month, “…as the Centre can provide,” as well as on special occasions.

6. As noted, the full terms and effect of the Orders sought by each party respectively can be gleaned from the documents to which I have referred.

7. I should note that the Father also sought an Order discharging or varying the relevant paragraphs of the Orders made on 25 November 2005, as well as the discharge of Orders made on 18 August 2011, which imposed restrictions on the child’s residential location and movement outside Queensland.

8. In the course of the proceedings before me, this latter aspect was raised and discussed between the respective Counsel and the Court, and further instructions by each party’s Counsel were sought. In the result, there was agreement between the parties to the effect that, in circumstances where the parents are currently separated by a distance of approximately 335 kilometres, the child not be relocated to reside outside the Wide Bay area, which describes his general location currently; and that provided itineraries and like notice is provided to the Mother in advance of any proposed overseas travel for temporary trips, the Father be permitted to facilitate the child travelling for temporary periods outside of the Wide Bay area, including travel overseas.

Statutory Framework

1. Part VII of the Act (ss 60A to 70Q) provides the statutory framework in which the Court exercises its power to make parenting Orders.

2. Section 60B of the Act sets out that the objects of Part VII are to ensure that the best interests of children are met, and details how those objectives are achieved (s 60B(1)) and the principles which underlie those objects (s 60B(2)).

3. Section 60CA of the Act requires that, in deciding whether to make a particular parenting Order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.

4. Section 60CC of the Act identifies the “primary considerations” and the “additional considerations” the Court must consider in determining what is in the child’s best interests. That requirement is supplemented by the further requirement for the Court to consider the extent to which each parent has fulfilled or failed to fulfil their responsibilities as a parent in the particular respects identified in subsection (4) of s 60CC. Section 65D of the Act provides the source of the Court’s power to make a “parenting Order”, and that section expressly provides that the power to make a parenting Order is subject to, inter alia, s 61DA of the Act, which requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

5. The presumption does not apply in circumstances of abuse or family violence of the kind referred to in subsection (2) and further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In this case, neither parent seeks to disturb the Order made on 25 November 2005 for the parties to have joint parental responsibility for making all decisions affecting the long-term care, welfare and development of the child and both sought that an Order to that effect be continued.

6. Section 65DAA provides that if a parenting Order is to provide that a child’s parents are to have equal shared parental responsibility for a child, the Court must consider whether the child spending equal time with each of the parents would be in the best interests of the child and consider whether the child spending equal time with each of the parents is reasonably practicable; alternatively, the Court is to consider whether the child spending substantial and significant time with each parent would be in the best interests of the child and whether spending substantial and significant time is reasonably practicable.

Relevant History

1. The evidence before me includes an affidavit of Ms B, psychologist, filed on 29 March 1996 and annexing the Family Report prepared by Ms B dated 29 March 1996; the affidavit of Ms A, social worker, filed 26 February 2001 and annexing her Family Report dated 23 February 2001; the affidavit of Ms A filed 13 January 2003 and annexing her Family Report dated 10 January 2003; and the further affidavit of Ms A, filed 7 September 2005 which annexes her Family Report dated 2 September 2005. In addition to those Family Reports was the more current affidavit and report of Ms S, Family Consultant, being an affidavit filed 17 November 2011 attaching Ms S’s Family Report dated 16 November 2011.

2. The history of the parties and relevant history concerning T and the child is thus comprehensively addressed within those reports, going back as far as the first report referred to in 1995, some 17 years ago.

3. Neither Ms B nor Ms A were required to give oral evidence or to be cross-examined by either party in the proceedings before me. Ms S, who had made reference in her report to the previous Family Reports referred to, gave oral evidence and was cross-examined by both parties. The contents of the various expert reports and the opinions of those experts resonate with many of the section 60CC considerations in determining current parenting Orders for the child despite the historical component of the earlier reports in particular.

4. Whilst I do not propose to regurgitate in these reasons the specific contents of each and every of the reports referred to, I have relied upon those reports to the extent necessary as the evidentiary basis for relevant findings of fact, and upon the opinions expressed in those reports to the extent necessary to inform or explain the findings I make. Ms S, as her report makes clear, relied upon the earlier Family Reports referred to in order to inform her as to the background to this long-standing matter, but having seen and heard Ms S give evidence and be cross-examined, I am satisfied that the opinions expressed by Ms S are her own opinions, and obviously, given the currency of them, are most relevant to my determination.

5. Plainly enough, the earlier reports to which I have referred (other than that of Ms S) were before the Court when the Orders of 25 November 2005 were made, being the operative Orders which both parties seek to vary or discharge, at least in part, in the current proceedings.

6. The Mother is 47 years of age, having been born in 1964. The Father is 49 years of age, having been born in 1962.

7. In 1990, the parties commenced cohabitation and became engaged in 1991 and married in 1992. At the time they commenced cohabitation, the Mother had a child from a previous relationship, namely N Harvey, born in August 1986 (“N”).

8. T was born in December 1994. Several months after his birth, the family moved to Town Z to live in a caravan on a property owned by the Father’s mother and step-father. They continued to live in the Town Z area until they initially separated on 24 October 1995. It seems that this Court first made Orders, then only concerning T, on 6 December 1995. On 15 November 1995, the Mother instituted proceedings leading to the involvement of Ms B, in the report she compiled, dated 21 March 1996.

9. I note that Ms B records in her report that the Mother presented, “…as a woman with a significant intellectual handicap which is probably not as severe as it seems on first impressions.” Ms B assessed the Mother as having a very severe speech impediment.

10. At that stage of the history, the child was obviously not yet born, and T was only 15 months of age and was then at the centre of the parents’ dispute.

11. As the February 2001 Family Report of Ms A reflects, it seems that the parents separated on a couple of occasions during 1995, as that is what the Mother told Ms A later in relation to her first report, and after their reconciliation, the child was born in June 1998. The parties finally separated on 19 May 1999.

12. Ms A undertook interviews and investigations for the purpose of the first of her Family Reports in early 2001. That first report of Ms A is annexed to her affidavit filed on 26 February 2001.

13. As at the time of that first report, T and the child were living with the Father and not having any contact with the Mother. Mr C, Acting Manager of the Department of Families, Youth and Community Care (DFYCC) (as that Department was then known) informed Ms A that, “DFYCC’s position is that [the Mother] is not capable of being the residential parent to [T] and [the child], the children are living with their father and this is a ‘child protection follow-up case’.”

14. At that stage, the issues presented to Ms A are recorded at paragraph 4 of her report as follows:

    4.1 The intervention of DFYCC and their position that the mother is not capable of being the residential parent to the children.

    4.2 [T’s] needs for reconstructive surgery, speech therapy and other medical treatment (ENT, orthodontics) and counselling to address behavioural problems and sexual abuse he allegedly suffered in his mother’s household.

    4.3 the child’s need for a comprehensive program to address his global developmental delay.

    4.4 The father’s capacity to meet his children’s physical needs well, with reservations about his capacity to understand and set boundaries.

    4.5 The children’s right to have contact with their mother in a safe environment.

15. As Ms A’s report records, by early 2001, N, the Mother’s child of a previous relationship, had been taken into care by the Department and the Department were involved further because of allegations by T that he had been sexually abused by the Mother. It was the Mother’s position at that stage that N had, “…coached…” T to make such allegations. The Mother asserted that N had become uncontrollable and went into foster care because of that. The Mother advised Ms A that a person by the name of D (surname unknown) was living in the house, using drugs and having sex with N and that the Mother was unable to clean up the house because, “…[D] was always in the house lying around and in the way.”

16. The Mother told Ms A that the house, “…just got dirtier around him and it was all [D’s] fault.” She said that she and N were fighting. The Mother said that she had never done anything wrong, that she was a good mother and that the children were taken into care because of N and D’s sexual activities.

17. Having undertaken relevant interviews and investigations, Ms A recommended in that first report as follows:

    I recommend that [T] and the child live with their father.

    I recommend that [T] and the child have contact with their mother for two hours each week at [Contact Centre Y], the costs of supervision to be shared equally by the parents.

    I recommend that [T] participate in a counselling program at [Contact Centre Y] or as arranged by DFYCC.

    I recommend that advice be sought from [T’s] counsellor and the staff at the [Contact Centre Y] before contact supervision be lifted.

    I recommend that [the Father] follow through with the medical appointments for [T] and [the child] and the program for [the child] to address his global developmental delay.

    I recommend that [the Father] participate in the Parent Aid and/or Family Therapy program at [Contact Centre Y] to assist him to manage [T’s] behaviour and effectively meet the children’s emotional and physical needs.

18. I note in passing that Ms A interviewed N, then 14 years old, for the purpose of that report. At that stage, N was heavily pregnant with her first child. She was then living with the Father, but returned to live with the Mother because of the breakdown in her own relationship with her then boyfriend, who then formed an intimate relationship with the Father.

19. As to the allegations of sexual abuse, the following is recorded with respect to N’s report to Ms A:

    9.11 [N] said that her father never sexually abused [T] and her mother just made that up. However, she said that she knows that her mother sexually abused [T] because [T] came crying to her on a couple of occasions and said that, “Mummy touches my willy.” [N] said that [T] showed her what his mother had done and it was a masturbating movement. She said that when that happened in [Town M], NSW, she rang the police and they believed her, but the Department of Community Services, NSW, told her they thought she’d made it up. [N] said that her mother also slammed [T] up against a wall while they were in [Town M]. She said that her mother still hits [T] for small things. [N] said that after her parents separated, she looked after [T] and [the child] a lot of the time because [the Mother] was wandering the streets looking for [the Father], trying to reconcile with him.

1. Ms A also interviewed Mr G, who had been N’s boyfriend, and who had been part of the household of the Mother with the children. Suffice to note that Ms A received reports from Mr G to the effect that the Mother did not provide appropriate care to T and the child. It is to be noted that at that stage, Ms A records that it was the Department’s then position that any contact between T and the child and the Mother should be supervised, at least until there could be clarification of the extent of the alleged sexual abuse of T. Plainly enough, the Department also had concerns about the level of care provided by the Mother. Ms A obtained corroboration on this aspect from one Ms F of Contact Centre Y, who is recorded as having had extensive contact with the family for the two years prior to Ms A’s report.

2. Ms A records at paragraph 11.1 of her first report:

   [The Mother] has a significant intellectual disability, a speech impediment and hearing deficit, which affect her capacity to care for the children. I observed [the Mother] to be unable to manage [T’s] behaviour, and while I was present, her only strategy was to yell at him. Her management of [the child] was also inappropriate in that she treated him as if he was an infant, and [the child] is a child whose growth and development should be encouraged as he already has global developmental delay.

3. Plainly enough, as will be further discussed below, on Ms A’s initial report, the Mother’s intellectual capacity was raised as an issue in conjunction with issues concerning her capacity to provide physical care to the children.

4. Ms A updated her first report of 23 February 2001 in a further report dated 10 January 2003, which is attached to Ms A’s further affidavit filed 13 January 2003.

5. At the stage of this second report, T and the child were continuing to live with the Father and were having contact with the Mother on two separate occasions for one hour each week, supervised by staff at Contact Centre Y.

6. At the time of this report, the Mother was cohabiting with one Mr E, renting a three bedroom Housing Commission home in Town 2, and the Mother and Mr E reported that they were expecting the birth of a child in August or September 2003. Both the Mother and Mr E were in receipt of disability support pensions.

7. At that stage, the Father was residing in a same-sex relationship with Mr V, who remained the Father’s partner as at the time of the trial before me.

8. At the time of the report referred to, T was in Year 3 and the child was attending a childcare centre as well as a Special Education Unit two days per week. T was receiving medication for a hyperactivity disorder and had commenced treatment with an orthodontist, whom he was seeing monthly, as well as undertaking review by a plastic surgeon and a paediatrician. At that stage, the child was diagnosed as being developmentally delayed and was under the review of a Dr J and it was not anticipated that the child would commence “normal” school for another two years. The child was on a waiting list for grommets and was seeing a speech therapist and a special needs development expert at the Special Education Unit.

9. Ms A’s conclusions and recommendations in this report included the observation that T and the child had made significant and noticeable progress over the previous two years since living with the Father. Ms A assessed the boys as being healthy and well-cared for, and as presenting as healthy and extremely well-behaved boys. Ms A noted that the Father, “…has followed through with the children’s medical, educational and other treatment programs and the results are evident in the good presentation of the children.”

10. Ms A noted that both boys had special needs, with T still requiring reconstructive surgery and the child requiring a grommet operation. Ms A reiterated that T was on medication for hyperactivity and that the child was developmentally delayed, especially in relation to his speech.

11. Again, Ms A referred to the Mother as having a significant intellectual disability. At paragraph 10.2 of her report, Ms A opines:

    10.2 [The Mother] has a significant intellectual disability, a speech impediment and hearing deficit, which affects her capacity to care for the children. It appears that the children were neglected and possibly abused whilst in her care. [The Mother’s] partner, [Mr E], also has a significant intellectual disability, which would affect his capacity to care for children. Even when contact is supervised, [the Mother] finds it difficult not to question and bribe [T] and to relate to the two boys at the one time. [The child] displayed some hesitation with his mother and [T] was definite that he didn’t want to go to his mother’s home and wanted to continue seeing his mother at the contact centre. In my opinion, contact should continue to be supervised while they are so young, have special needs and are unable to protect themselves.

12. It is unclear on the evidence before me as to whether the Mother gave birth to the child she was said to be pregnant with at the time of this report by Ms A. In the third of her reports, being a report dated 2 September 2005, Ms A refers to the Mother giving birth to a son, the child O, in June 2005. Obviously, that reference to the child O being born in June 2005 cannot be one and the same as the child with whom the Mother was pregnant as at January 2003 referred to in the second of Ms A’s reports.

13. In the event, I note that Ms A refers in her third report to the birth of the child O in June 2005. I note that Ms A records that the Mother told her that she was having no contact with the child O’s father and told Ms A that, “…she sees [the child O] regularly and she would like [T] and [the child] to meet him.”

14. Ms A records that the Mother was, “…not prepared to give any further information about [the child O] to be included in this report.”

15. In her evidence before me, the Mother confirmed that the child O was removed from her care by child welfare authorities upon or soon after his birth.

16. Notably, the Mother was unable, in her evidence before me, to provide the name of the child O’s father. The child O now resides in foster care in Canberra.

17. For the purpose of her third report, Ms A interviewed both parents, as well as the Mother’s then support worker, one Ms H, and apart from making observations of T and the child with each parent, Ms A was also able to interview Ms R, who had been supervising the Mother’s contact with the boys from February 2003, such supervision being funded by Disability Services.

18. In her third report, Ms A concluded that T and the child had continued to make good progress in the Father’s care since her last report. She assessed the Father as having continued to follow through with the children’s medical, educational and other treatment programs. She noted that T, at that stage, had received orthodontic treatment but was still requiring reconstructive surgery, but no longer needed medication for hyperactivity. The child was noted to have had the grommets operation, and his hearing had improved substantially, but he was continuing to have significant problems with his speech.

19. Ms A concluded in relation to the Mother:

    10.2 [The Mother] continues to have significant and chronic problems which affect her capacity to care for the children. However, she is very well supported in the community by her support worker, [Ms H]; the contact supervisor and support person, [Ms R]; Disability Services and Lifeline and she appears to be having a good quality of life. …

    10.3 In my opinion, contact should continue to be supervised long-term. Even with [Ms R] present, [the Mother] has difficulty managing [T’s] behaviour and he has had aggressive outbursts during contact, and she has difficulty adequately supervising the child. Without [Ms R’s] presence, in my opinion, [T] would simply refuse to attend any further contact and [the child] would be at risk of harm. [The child] is an overly friendly, vulnerable child who is inclined to wander and go to anyone. [The Father] wants contact to be supervised until the child “is able to fend for himself.”

20. Ms A recommended that T and the child continue to reside with the Father and have contact with their mother for two hours each week, supervised by Ms R or other persons as agreed, and on other special occasions. Ms A recommended in relation to T that consideration be given to reducing contact to two hours a fortnight given his and his mother’s wishes as she recorded them in her report.

21. Obviously, all of the above reports referred to were available to His Honour Justice Jordan when he made the 25 November 2005 Orders now sought to be reviewed. As already noted, the Orders of 25 November 2005 provided for a continuation of supervised contact, with such time to be supervised by Ms R or such other person as was agreed upon by the parties.

22. There is a notation to the Order of 25 November 2005 that the matter was to be listed for one day to consider, as a preliminary question, whether there had been a sufficient change in the circumstances of the parties or the children to re-open the applications for residence and contact. In the result, on 20 January 2006, His Honour dismissed all outstanding applications and removed proceedings from the list of matters awaiting finalisation and made a specific Order that the Mother be restrained from filing any application under the Act in relation to T or the child, except by leave of a Judge.

23. I note that in imposing those Orders, His Honour, Jordan J, delivered reasons on 20 January 2006. I note that those reasons included the following:

    2. In this matter, the litigation has been on foot for, I am advised, up to ten years. There have been thirteen Court appearances. There have been three welfare reports prepared by [Ms A], commencing 26 February 2001, a follow-up report on 13 January 2003, and a recent report on 17 September 2005. The theme emerging through each of those reports is an entirely constant one, that the boys are doing well in their father’s care. Regrettably, the Mother does not have the capacity to care for each of the boys on a full-time basis, and the only viable option is for contact.

    3. The evidence is clear and consistent in suggesting that the contact needs to be supervised for the benefit of the mother and for the benefit of the boys. [Ms R] has been in place as the supervisor for many years. The objective evidence indicates that she is doing a good job. The objective evidence indicates that the boys relate well to her and, if she is removed as the supervisor, it may place the whole contact regime at risk. The father is opposed to the replacement of [Ms R] and the Child Representative is strongly opposed to the replacement of [Ms R].

    4. Nothing is changing. Each time the matter comes back before the Court, the issues are the same, the dynamics are the same, and I reach the view that the Court no longer has a role to play in the regulation of this family. To the contrary, it is in the best interests of this family that the Court step aside until and unless there is a very significant development one way or another.

24. The present proceedings follow the granting of leave by His Honour Justice Forrest on 23 May 2011 for the Mother to file and serve another application.

25. The fundamental issue for my determination, in terms of parenting Orders in the child’s best interests, requires examination of whether the Mother’s circumstances, or those of the child, have sufficiently changed since the previous Orders of November 2005 so that the Court can be satisfied that it is in the best interests of the child to remove the requirement for supervision of the child’s time with the Mother and to extend that time to the periods contended for by the Mother.

Relevant Developments Since Orders of 25 November 2005

1. The Mother commenced a relationship with Mr Simon several years ago and they married in February 2010. Mr Simon gave affidavit and oral evidence before me.

2. The Mother no longer seeks any parenting Orders with respect to T, who is now 17 years of age. It obviously follows that any Orders for time between the child and the Mother must assume that the child will not be accompanied by T.

3. It appears that by agreement between the parents in or about November 2006, both children had four hours’ supervised time with the Mother on a fortnightly basis. It also appears that in 2007, some overnight time occurred on a supervised basis, such supervision being funded by a support package for the Mother through Disability Services Queensland. The prevailing arrangements ceased when the Mother relocated to Town 4 in 2008.

4. In respect of the September 2008 school holiday period, the Father agreed to “trial” the children spending time with the Mother on four consecutive nights, with such time to be supervised using the services of a supervisor from Respite Care. Ms W was the supervisor in respect of that four day period, and she provided a report in respect of the events which occurred over that period, which is an annexure to the Father’s affidavit filed 27 January 2012. As appears from the contents of that report, the supervisor reported to the Father that Mr Simon drove erratically on occasions during that period; that T spent one of the nights in the bed of the Mother and Mr Simon; and that there were occasions of difficulties with the interaction between the children or either of them and the Mother. As a consequence of that report, the Father has never again been agreeable for T or the child to spend overnight time with the Mother, even if such time was supervised.

5. In circumstances where Ms W was not subpoenaed to give evidence at the trial, and her report had been part of the Father’s evidence since the filing of his affidavit on 27 January 2012, the Court has no reason not to accept that Ms W has accurately recorded what she observed in the period referred to, and I therefore find that report to be accurate and reject the versions of Mr Simon and the Mother where they differ from the report provided by Ms W.

6. It seems that from early 2009, the Mother relocated from Town 4 to Brisbane, and arrangements were then made for alternate supervision to be provided at Contact Centre 1, situated in Town 2. Time has proceeded on the first Sunday of each month between midday and 2.00 pm pursuant to those arrangements.

7. The Father was not challenged on his affidavit evidence to the effect that the Mother, at different times, simply failed to arrive for planned visits and that indeed, from 2007 onwards, the Mother frequently cancelled visits or did not arrive to spend time with the children as planned. I accept that evidence.

8. I also accept the Father’s evidence that, since about early 2011, T has been unable to spend time with the Mother because of his own arrangements and involvement in other activities such as a youth program and part-time weekend work.

9. I accept the Father’s evidence that the Mother has not telephoned the children since she retrieved from them the pre-paid mobile telephone she had previously provided to the children, and I also accept that the Mother, over the years, has only infrequently spent time with the children on their birthdays; has never sought to spend time with the children on her own birthday; has never sought to spend time with the children on Mother’s Day, except for Mother’s Day 2011; and has only occasionally sought to spend time with them on Easter Sunday or on Christmas Day. I further accept that the Father has accommodated those requests when made and when a supervisor has been available.

10. As already noted, T is now 17 years of age and will turn 18 at the end of this year. T has commenced after school and weekend part-time work and this year will complete his year 12 at high school, where he seems to be progressing well.

11. The child commenced year 8 at K School this year. Whilst the child is now 13 years of age and will turn 14 next month, he continues to suffer the effects of his speech impediment and, as the Father confirmed in his oral evidence, the child continues to be significantly developmentally delayed. He has the assistance of a Case Worker and has been provided with an iPad to assist him with his communication. It appears that the child uses the iPad to convert typing to speech in order to enhance his communication at school and generally.

12. I accept the Father’s evidence that, since the filing of her current proceedings in July 2011 the Mother has cancelled three of the monthly visits with the children.

Resolution

1. In this case, there is no suggestion that the position of the child residing with the Father should be disturbed. The only issue is the question of time with the Mother, and even on her own proposal, she does not propose that Orders be made for her to spend extended time with the child other than during school holiday periods.

2. It was contended on behalf of the Mother that there is no medical assessment or medical evidence provided to the Court to confirm whether the Mother in fact suffers an intellectual disability, significant or otherwise, and thus the extent of any such intellectual disability.

3. However, as is made plain from the Family Reports to which I have referred, the issue of whether the Mother suffers some intellectual impairment that affects her capacity to care for her children has been an issue in litigation in this Court for many years. That is, it is not to the point for the Mother to suggest an absence of evidence. That the Mother has a significant intellectual disability has been identified by expert Family Report writers, and if the Mother seeks to displace that conclusion, it is the Mother who ought to have provided evidence sufficient to displace it.

4. In the course of her cross-examination, I directed several questions to the Mother in a perhaps crude attempt to elicit information as to whether or not the Mother is significantly intellectually disabled. I note that, when asked to identify the current Prime Minister, after a lengthy pause, the Mother volunteered the name “Fraser”, which I took to be a reference to Malcolm Fraser, a former Prime Minister. I note that there have been several Prime Ministers of this country since Mr Fraser, and that Mr Fraser ceased to be Australia’s Prime Minister in 1983, now almost 30 years ago.

5. The Mother was also unable to volunteer any answer to the question as to the name of the current Premier of Queensland. The Mother also seemed to me to have very significant difficulty in undertaking relatively simple mathematical calculations. I have also earlier referred to the feature that the Mother was unable to provide the name of the child O’s father.

6. Taking into account the contents of the previous Family Reports to which I have referred and the presentation of the Mother in her oral evidence before me, I am comfortably satisfied that the Mother indeed has some intellectual disability, although its extent is unclear. Mr Simon volunteered his assessment that the Mother’s disability, if any, was, “…slight…”, but I cannot be satisfied that this is so. More importantly, the inference able to be made from the feature that the Mother has not sought to advance medical evidence on this aspect is obvious.

7. That aspect aside, there is an abundance of evidence, historical and otherwise, to indicate very significant limitations in the Mother’s capacity to provide for the physical, intellectual and emotional needs of her children if her time with them is on an unsupervised basis.

8. As already noted, the most recent evidence from an independent or external source is the evidence provided by Ms W as to what occurred in the September 2008 holiday period when T and the child spent overnight time with the Mother and Mr Simon, supervised by Ms W. Ms W’s report provides no comfort that the Mother has any increased or better capacity to provide care than existed at the time of the 25 November 2005 Orders. I reject the submission or contention that Ms W provided the evidence she did simply because of her friendship with the Father.

1. I note that the child O was removed from the Mother’s care as an infant, and no evidence was advanced before me on behalf of the Mother to dispel the proposition that even if the Court ordered the child to spend time on an unsupervised basis, the Department would not intervene and act to prevent such time occurring.

2. For the purpose of the current proceedings, a Family Report was prepared by Ms S, Family Consultant. Ms S also gave oral evidence before me and was cross-examined by Counsel for each of the parents respectively.

3. In her report, Ms S identified two primary considerations. The first related to the previously assessed risk to the children in their mother’s care, noting that the key consideration in that respect was whether there were changed circumstances that warranted relaxing the protective measures previously put in place. The second consideration related to the quality of the relationship between the Mother and the children and whether alternative contact arrangements were more likely to preserve or enhance this.

4. Ms S noted that whilst six years had gone by since the previous Family Report of Ms A and whilst the increasing ages of children are generally associated with children’s decreased vulnerability by virtue of them being less physically vulnerable and more able to enact self-protective behaviours, T and the child remained more vulnerable than their peers given their past experiences of abuse and neglect as well as their respective developmental delays and disabilities.

5. Notably, Ms S obtained views from the child to the effect that he did not wish to spend unsupervised time with the Mother. Indeed, as recorded at paragraph 46 of her report, the child told Ms S that he would, “…not go…” to unsupervised time with the Mother and said that he would, “…go home because Mum not care for us,” when asked about that prospect.

6. In her oral evidence, Ms S confirmed that there may be greater apprehension in the child of the prospect of attending unsupervised time with the Mother if he were aware that such time would occur without T being present.

7. Like previous assessors, Ms S also identified the Mother as having an intellectual disability consistent with her presentation.

8. Ms S then assessed the 13 year old child P as being, “…substantially younger than his chronological age…” It is not in issue that the child attends the Special Education Unit at his school.

9. At paragraph 63 of her report, Ms S records:

   It is less developmentally appropriate for [the child] to be in charge of decisions about time and communication with his mother, particularly given what appeared to be substantial delays in his cognitive maturity. There were a number of areas of ongoing risk for [the child]. Aside from possible (although unquantified) vulnerabilities in respect of his intellectual abilities and cognitive maturity, his substantial communication limitations presented a significant area of vulnerability in terms of his self-protective capacity. A child’s physicality is also relevant to their protective capacity, and [the child’s] size and apparent strength remained an area of some vulnerability.

10. Ms S, noting that, historically, areas of risk in respect of the Mother’s care had included sexual abuse, neglect of basic care needs and an inability to interact with the children and manage their behaviour in a developmentally appropriate manner, opined that the Mother has very little insight regarding the nature and significance of these child protection issues. Ms S noted that whilst the Mother denied sexual abuse, the previous disclosures by T and N were consistent with sexual abuse and noted that it did not seem that there were grounds to doubt the veracity of the children’s disclosures.

11. Importantly, as Ms S notes, the Mother was previously assessed by child protection authorities as unresponsive to interventions targeting her parental capacity.

12. Whilst both the Mother and Mr Simon, in their evidence before me, advanced propositions to the effect that they had increased their store of knowledge of parenting and behaviour management strategies through a variety of courses, Mr Simon acknowledged that the courses undertaken were more relevant to younger children than to teenagers such as the child, and Ms S observed of the Mother that she had difficulty identifying concepts and strategies that she had actually learned from these programs. The Mother had similar difficulty when giving evidence before me as to what particular things she had learned relevant to the specific deficiencies previously identified in her parenting as set out in the historical Family Reports to which I have already referred.

13. Ms S noted that from the views expressed by both T and the child, there were suggestions from the boys of some anxiety or discomfort about time with the Mother in the absence of an external supervisor. Ms S noted at paragraph 69 of her report:

    69. The children’s time with their mother has been supervised for most of their lives. It is understandable that the thought of this changing might provoke feelings of uncertainty or anxiety for the children – in relation to the unknown or about their safety. Even if the boys do not fully understand the reasons for the supervision, it seems they do understand it was about keeping them safe. Consequently, it is quite feasible that the notion of unsupervised time might give rise to their feelings of unease. The children’s expressed discomfort with unsupervised time [incorrectly, “supervised” in the report] might also reflect that the various supervisors have helped make their time with their mother more positive (i.e. by the provision of guidance and intervention with [Ms S]).

14. I accept the assessments and opinions of Ms S as recorded in her report and as expanded upon in her oral evidence before me.

15. I find that there is little factual or objective information to support the Mother’s claims that a change in the time arrangements and the requirement for supervision would be in the child’s best interests. To the contrary, I find that such a change would be adverse to the child’s best interests. In this respect, I accept Ms S’s assessment that removing the structure and support of supervised time might be setting the Mother up to fail, given the limitations consistently identified in respect of her interactions and relationships with each of her children.

16. As Ms S has noted:

    All of [the Mother’s] children have been placed in the care of child protection authorities, and the tumultuous relationship with her adult daughter [N] could be an indication that her limited parental capacity is independent of her children’s ages.

17. Given the child’s disability and his developmental delay, he already has much to deal with as he progresses through his teenage years. Stability and emotional security is obviously important to all children, and all the more so for a child such as this one. All the evidence points to him progressing well in the Father’s primary care and I accept that the Father has the child’s best interests at heart. The Father attempted a “trial” of T and the child spending longer periods of time with the Mother, referred to above, in September 2008, and I am satisfied on the evidence provided via Ms W that what occurred gives rise to serious questions about the Mother’s capacity even when, as in that instance, there was a supervisor present.

18. I am satisfied that the child currently has a meaningful relationship with the Mother and I reject the proposition to the effect that the child is denied a meaningful relationship with the Mother by virtue of his time with her being supervised.

19. I find that there is a need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse or neglect. I find that it would be entirely arbitrary, given the child’s particular circumstances and delayed development, to identify his attainment of the chronological age of 15 years as the assumed date when the child could be reliably self-protective.

20. I find that the child has expressed views consistent with a continuation of time being supervised, albeit that I take into account that the child, whilst of a chronological age at which his views would normally carry perhaps determinative weight, the child has developmental delay and, as identified by Ms S, his views may be influenced by the fact that it has always been his experience that his time with the Mother is supervised. Nevertheless, the child himself has identified discomfort at the prospect of time being unsupervised by reference to the Mother’s capacity to provide care in his comments to Ms S.

21. I am satisfied that the Father has demonstrated a willingness and ability to facilitate the child’s relationship with the Mother. Whilst the Mother and Mr Simon advanced some criticisms of the Father with respect to telephone contact and the potential negative influence of the Father on the boys’ relationship with the Mother, I am satisfied that the child has been able to maintain an essentially good relationship with the Mother over the years and that a significant contributing factor has been the Father’s support of that relationship.

22. I find that if the Mother’s proposal were adopted, the likely effect of that change for the child would be significantly adverse to the child’s best interests.

23. There are obviously practical difficulties and expenses involved in the child continuing to spend time with the Mother on a supervised basis, but given that the child has, as I find, a meaningful relationship with the Mother, I am satisfied that the practical difficulties and expenses associated with supervised time will not substantially affect the child’s right to maintain personal relations and direct contact with both of his parents. I propose to include Orders for telephone time and other electronic means of communication.

24. I am satisfied that the Father, together with his current partner, has the capacity to provide for the child’s physical, emotional and intellectual needs. I am not satisfied that the Mother has the capacity, on an unsupervised basis, to provide for such needs.

25. I find that it would be preferable to make an Order that would be least likely to lead to the institution of further proceedings in relation to the child, and I propose to include an Order to similar effect as that made by His Honour Jordan J in November 2005 in relation to the requirement that leave be given before the Mother can institute any further proceedings.

26. In the circumstances of this case, there is no forensic need for me to examine further the extent to which each parent has fulfilled or failed to fulfil their parental responsibilities. Both parents will share parental responsibility into the future, as proposed by them and pursuant to the Order to that effect that I propose to make.

27. I am satisfied that it is not in the child’s best interests for him to spend equal time or substantial and significant time with his mother, but instead that his best interests will be met by a continuation of a supervised regime of time with the mother and, consistent with the proposal of the Father, the ability to substitute any lost visits with other time.

28. I am satisfied that it is in the child’s best interests that he have the opportunity to participate in travel with the Father and travel associated with school activities, such as the skiing trip referred to in the evidence before me, provided the Mother receives advance notice.

29. I therefore make the Orders as set out at the commencement of these reasons.

I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 31 May 2012.

Associate: 

Date: 31 May 2012