Simon & Anor and Dole & Anor

[2011] FamCA 500

FAMILY COURT OF AUSTRALIA

SIMON AND ANOR & DOLE AND ANOR [2011] FamCA 500

FAMILY LAW - CHILDREN – Parental responsibility – Department of Family and Community Services intervened – the mother’s foster carers seek sole parental responsibility for the child – allegations that the mother’s foster father sexually abused the mother – mother’s foster mother did not believe sexual abuse allegations – finding that child is at risk in the care of the mother’s foster carers –  child at risk of psychological and emotional harm through exposure to conflict between the mother and her foster carers – where the child experienced past disrupted attachments – child is attached to current foster carers – foster carers encourage and facilitate relationship between the child and the mother – sole parental responsibility allocated to the Minister for Family and Community Services – child lives with foster carers – child shall spend time with the mother as directed by the intervener

Family Law Act 1975 (Cth) ss 60CA, 60CC

FIRST APPLICANTS: Ms Simon and Mr Simon

SECOND APPLICANT: Ms Britton

RESPONDENT: Mr Dole

INTERVENER: Director-General, Department of Family and Community Services

INDEPENDENT CHILDREN’S LAWYER: Ms Clark

FILE NUMBER: NCC 3532 of 2007

DATE DELIVERED: 30 June 2011

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATES: 14 & 15 March 2011

REPRESENTATION

FIRST APPLICANTS: In person

SECOND APPLICANT: In person

RESPONDENT: No appearance

COUNSEL FOR THE INTERVENER: Mr M Anderson

SOLICITOR FOR THE INTERVENER: Crown Solicitor’s Office

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr M Graham

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Denise Clark

Definitions

The Minister is:                   The Minister for Family and Community Services

The Director-General is:     The Director-General of the Department of Family   and Community Services and shall include any   delegate of the Director-General

The Mother is:  Ms Britton born … 1988,   Mother of L and N

L is:       L born … February 2005

N is:      N born … January 2010.

The Simons are:                   Ms Simon born … 1959 and Mr Simon born …1957   

Orders

1. All previous Orders and Parenting Plans in relation to L are hereby discharged and/or set aside.

2. The Minister shall have sole parental responsibility for L until she reaches the age of 18 years.

3. The Minister or the Director-General shall determine where and with whom L lives.

4. The mother shall spend time with L at times and places and on conditions, including supervision, as determined by the Director-General.

5. The mother shall have telephone contact with L at times and on conditions determined by the Director-General.

6. The mother shall keep the Director-General informed of her home address, email address and contact telephone numbers.

7. The mother may send or deliver cards, letters and gifts for L to the Director-General.

8. The Director-General shall deliver or send to the mother any cards, letters or gifts from L.

9. To facilitate orders 4 and 5 hereof, the Director-General shall advise the mother in writing of the proposed dates, times and places at which those visits and telephone calls to L shall take place.

10. L shall spend time with N no less than once per month for no less than two hours each visit.  The Director-General shall arrange for the time, place and supervision of these visits.

11. The Director-General shall provide a copy of these Orders to the carers for N.

12. The Director-General has leave pursuant to s 121 of the Family Law Act 1975 to provide the following documents to any doctor, psychologist or social worker who treats or assists L:

    12.1a copy of these Orders and Reasons for Judgment;

    12.2a copy of the reports dated 22 October 2008 and 26 July 2010 prepared by the Court appointed expert, Dr L; and

    12.3a copy of the report of Associate Professor Dr Q dated 26 May 2009.

13. The mother shall undertake drug testing (including urinalysis and/or hair follicle testing) within 24 hours of a request to do so from the Director-General at the time and place stated in the request.

14. The mother is restrained by injunction from doing any of the following during visits with L:

    14.1criticising any member of L’s foster family or asking L questions about how the foster carers look after her;

    14.2using physical discipline on L;

    14.3telling L what was said during the case in the Family Court about L herself, the mother or the Simons; and

    14.4swearing or using rude language in the presence or hearing of L.

15. The Simons are restrained from approaching and/or making contact with L at any place or by any means without the prior written consent of the Director-General.

THE COURT NOTES:

(A)The Director-General proposes to arrange:

(i)supervised time between L and her mother 12 times per year for two hours each time;  and

(ii)telephone calls between L and her mother on L’s birthday, Christmas Day, Easter Sunday and Mother’s Day.

(B)The Director-General requires the mother to do the following:

(i)regularly attend visits and be ready to receive telephone calls at advised times;

(ii)to let the Director-General know at least 24 hours in advance if she will not be attending a visit or cannot be available for a telephone call;

(iii)not to be affected by alcohol or drugs during visits or telephone calls;

(iv)not to bring anyone else to visits or include anyone else in telephone calls without getting approval in advance from the Director-General.

(C)If the mother does not do what is expected of her the Director-General intends to cancel and/or reduce the number of visits.

IT IS NOTED that publication of this judgment under the pseudonym Simon and Anor & Dole and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC3532 of 2007

Ms Simon and Mr Simon

First Applicants

And

Ms Brittton

Second Applicant

And

Mr Dole

Respondent

And

Director-General Department of Family and Community Services

Intervener

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Definitions

First Applicants are:  Ms Simon born in 1959 and Mr Simon born in1957   (together known as “the Simons”).

The Second Applicant is:    Ms Britton born in 1988 (“the mother”)

The First Respondent is:     Mr Dole born in 1978, father of L (“the father”)

The Second Respondent is:           Mr A born in 1976, father of N

The Intervener is:                Director-General of the Department of Family and   Community Services (“the Director General”)

The Department is:             The Department of Family and Community Services

L is:  L born in February 2005

N is:  N born in January 2010

Introduction

1. L is six years old.  She has been in foster care for three years, at first in a short term placement and now, since February 2010, with her current carers Mr W and Ms C.  She is settled there and apparently happy.

2. As a child the mother had herself been in foster care.  She was made a Ward of the State shortly after her fourth birthday.  Her own mother died from complications of alcohol abuse when the mother was about 11 years old.  She has never known her father.  The Simons had been her carers for about seven years when she was removed in February 2004.  The circumstances which gave rise to her removal from the care of the Simons have resonated in these proceedings.  They are referred to in detail later in these Reasons.

3. After the mother was removed from the Simons’ care, she was placed into emergency foster care, however this broke down quite quickly.  The mother then began a friendship with the father and L was conceived soon after.  The mother was 16 when L was born.

4. For the first two years of her life L lived mostly with her mother and sometimes also her father.  The relationship between her parents was hostile and violent.

5. The Simons, and especially Ms Simon, looked after L and the mother, also providing financial assistance.  The mother and the Simons often clashed, both over the behaviour of the mother and issues from the past.

6. In 2007 Ms Simon successfully applied to the Local Court at Town G for sole parental responsibility of L then aged two years. The Local Court transferred the proceedings to the Family Court.

7. In 2008 the Simons applied for a Care Allowance in relation to L.  The fact that they had been deregistered as foster carers came to light.  The Director-General intervened in the Family Court proceedings and by mid 2008 L was removed from the Simons into foster care.

8. By that time the mother had formed a friendship with Mr A and had left L in his care on some occasions.

9. The mother and Mr A conceived a child N who was born in January 2010.  N’s paternal grandparents have parental responsibility for him.  He lives with them and his father.

10. At the time of hearing the mother had stopped visiting N and was unwilling or unable to explain why that was so.

11. L is used to spending time with her little brother N through the cooperative efforts of the family of Mr A, L’s carers and the Director-General. 

Proposals

1. The Simons sought orders set out in their Initiating Application filed 15 December 2009 as follows:

   (a)That they have sole parental responsibility for L.

   (b)That L live with them.

   (c)That L spend time with the mother as agreed between the parties but in the absence of agreement, each alternate weekend, for one half of each school holiday period and, provided the mother resides in the P council area, overnight each Wednesday during school terms.

2. The mother pressed for the order set out in her Response to Initiating Application filed 13 April 2010 that L live with her.

3. The father did not participate in the proceedings.  It is so long since L saw her father she may not remember him.

4. The Director-General sought orders set out in their tendered case outline document as follows:[1]

   (a)That the Minister for Community Services exercise sole parental responsibility for L until she is aged 18 years.

   (b)That L live as determined by the Minister or the Director-General, however it was noted that the intention was for L to remain with her present carers for the long term.

   (c)That L spend supervised time with the mother 12 times per year for a duration of 2 hours per visit, at a place nominated by the Director-General. It was proposed that the time between L and the mother would be subject to a number of conditions including that the mother not be affected by drugs or alcohol.

   (d)That L have telephone communication with the mother subject to conditions imposed by the Director-General.

   (e)That L and N spend time together for a minimum of once per month for a minimum duration of 2 hours per visit, supervised by the Director-General.

   (f)That the mother and the Simons are restrained from approaching within 200 metres of L’s residence, any school or educational institution attended by L, and any venue where L participates in extra-curricular activities.

   [1]  Exhibit D4

Events giving rise to the removal of the Mother from the care of the Simons in February 2004

1. On 5 February 2004 the mother reported to her school counsellor, sexual misconduct by Mr Simon over a period of time, the most recent incident having occurred that morning on the way to school.  At 2.00 pm on that day police and the JIRT officers attended upon the mother and she was interviewed by audio and video.  She disclosed four separate incidents of sexual misconduct over a six month period[2].  The allegations are set out below:

   [2]  Transcript Police interview 5/2/2004, pp 33-72, annexed to affidavit S (Case          Worker) affirmed 22/7/2010

   a)First incident – this occurred during the August/September school holidays in 2003.  The mother was at home and a friend of hers was staying over.  She says:  “…dad called me down and he said, ‘Can I please have a cuddle’ and then he started feeling my breasts”.  The mother was asked whether she had told anybody at the time and she said ‘No’. 

   b)Second incident – this occurred a few weeks after the first incident (late 2007).  When Ms Simon was across the road talking to a neighbour, Mr Simon assisted the mother with her computer and during that time Mr Simon “put one hand down my pants, down my undies”.  Again she was asked whether she had told anybody about the incident and the answer was “No”.  Mr Simon told the mother not to tell Ms Simon and also that he had bought the mother a $30 recharge card for her phone.

   c)Third incident - this occurred just before Christmas 2003.  The mother says that she was outside the house when Mr Simon offered her a cigarette and again put his hands inside her pants and attempted to “do something with his finger” in relation to her genitals.  The mother said whilst this was happening she had a phone call on her mobile phone from her then boyfriend Mr D.  The mother says she told Mr D what had happened after Mr Simon had returned inside the house.  Mr D advised her to tell Ms Simon.  The mother said she did tell Ms Simon what had happened:   

   I just said to mum, mum guessed it ‘cause she said Has dad been touching you, well, and I said Yes, and then mum, I was in tears and then we drove back home and then dad came home from work and I was up in my room and then I left to go to [Town L].  Mum, I went, mum put me on a bus and I went to [Town L].

   The mother went on to say that there was a conversation between the  Simons:

   Mum said to dad, we were sitting in the lounge room, the three of us.  Mum said to dad, Can you promise that it’s not gunna happen again, and then mum said, No, you can’t, can you, and then dad said, Of course, I can. 

   After that conversation the mother and Ms Simon stayed at a hotel in Newcastle.  The next morning Ms Simon put the mother on a bus to Town L where she remained with family members for nine or 10 days.

   d)Fourth incident - this occurred on the morning of 5 February 2004.  Mr Simon is said to have put some money in the top pocket of the mother’s school uniform blouse, then put his hand inside her shirt and played with one of her nipples.  The mother said that the journey to school had included a diversion to collect a work colleague of the fathers, ‘Ms E’ and that this touching ceased just before Ms E got into the car.  The mother then proceeded to go into school and report all of the incidents as set out above.

   The mother was removed from the care of the Simons that afternoon.

2. In their oral evidence the Simons made the following concessions:

   1.That the mother had raised the third incident at the alleged time.

   2.That Ms Simon had said to Mr Simon:  “I need to go away, clear my head and hear everything before accusing you of anything” and that Mr Simon had said, “Yes, fine, okay”.

   3.That Ms Simon had taken the mother to a local motel and then sent her away for 9-10 days to a relative in Town L.

   4.That neither of them had notified the Department of the allegation.

   5.That in the Departmental interview on 5 February 2004, neither of them had referred to the fact that the mother had made an earlier complaint or that the mother had been interviewed in relation to that complaint as described above.

3. Mr Simon denied that:

   1.He had made any admission to his wife at the relevant time.

   2.That he had made any promise to cease certain conduct.

4. The Simons denied that there had been any concession by Mr Simon to his wife at the time, or any promise by him that he would cease certain conduct.  In my view it is most significant that there had been an earlier complaint; that there had been no notification to the Department at that time by either of the Simons and that neither of them had advised the JIRT team of that failure to notify when interviewed.

5. The mother alleges that on 23 February 2004 Ms Simon contacted her and told her to retract the allegations against Mr Simon.  Ms Simon denies having done so.

6. On 26 February 2004 Mr Simon was charged with aggravated sexual assault. Also in February, the mother was removed from the Simons’ care.

7. On 15 March 2004 a risk of harm assessment was conducted by the Department which substantiated the mother’s allegations.  On that same day at 6.00 pm, police records indicate that the mother was standing outside the Simon’s home calling Ms Simon “a slut” and yelling at her.  Ms Simon called the police.  Mr Simon reported to the police:  “The child had a history of compulsive lying and behavioural problems”.  I find that this report was self protective, although it may also have been true.

8. In March 2004 the charges against Mr Simon came before Newcastle Local Court.

9. On 19 March 2004 Ms Simon refused to meet with the Department.  On or around that time the mother began a relationship with L’s father. 

10. In mid 2004 the mother learned she was pregnant.

11. On 3 September 2004 the mother retracted her statements in relation to sexual abuse of her by Mr Simon.  She signed a “No Action Statement”.

12. On 8 September 2004 the charges against Mr Simon were dropped.

13. On 15 September 2004 the new foster carer for the mother tells the Department of a conversation she had with the mother, during which conversation the mother revealed she had decided to drop the charges after talking with Ms Simon, and she had chosen to return to live with the Simons.

14. The retraction by the mother did not heal the fractured relationships within the Simon home.

History of proceedings relating to L

1. On 21 November 2006 the relationship between the mother and the father broke down.

2. On 21 February 2007 Ms Simon filed an application in the Town G Local Court seeking parental responsibility for L.  An interim order was made in her favour on condition that L would not be brought into contact with her father and the matter was transferred to the Family Court at Newcastle.

3. On 22 July 2007 L’s father was charged with break and enter.

4. On 4 February 2008 there was an interview between Ms Simon and Department workers at Town G CSC[3].  This meeting was initiated by Ms Simon.  Ms Simon gave a history of the fostering of the mother.  She said that the mother had lost her biological mother when she was 12 years of age and that the death had had a serious impact on the mother’s life:  “She went off the rails”.  Ms Simon said that during this time, following her mother’s death, the mother, “lied about her Aboriginality, stole money, robbed their house and lied to police”.  She said that not long after this time the mother accused Mr Simon of sexual abuse.  Ms Simon stated that the matter of abuse went to court in Newcastle:  “…he was finger printed and charged, however it went to court and all charges were dismissed”.  This is not the case.  The charges were withdrawn after the mother signed a “No Action Statement”.

   [3]   Affidavit of S affirmed 22/7/2010, Exhibit ‘KS4’ pp 97-100.

5. In this interview Ms Simon painted a bleak picture of the mother.  She also gave false information about the charges in relation to Mr Simon.  While the matter did not proceed to trial, the charges were not dismissed.  Ms Simon knew that the mother had signed a “No Action Statement” and that charges against Mr Simon were dropped.

6. Accordingly, I find that Ms Simon was not candid in this interview.  I consider that her reasons for lack of candour were both to protect her husband and to bolster support for L remaining in her care. 

7. Ms Simon said that at this time the Department removed the mother from their care.  Ms Simon described a violent and hostile relationship between the mother and the father.  Ms Simon reported that the father had been verbally and physically abusive towards the mother.  She said that she had been supporting the mother and L in a number of different ways, including financial support; that she had gone to Queensland to find the mother, the father and L living in a garage out in the middle of the bush in appalling living conditions.  This was when L was approximately four to five months old.  Ms Simon reported that, “[The mother] was doing drugs and was right into it”.  Ms Simon cared for the infant L then aged four to five months old, when she considered that both natural parents were still drunk from a party the evening before, but felt that she was “unable to prevent them from taking the baby” (back).  Ms Simon did not report this matter to the Department at the time. 

1. On 7 February 2008, there was a further interview with Ms Simon at Town G CFC.  The mother had moved back into the family home.  At this time Ms Simon was expressing concern about the involvement of the father in the lives both of the mother and L.  She said: 

   [The mother] has mainly been with him during that time, approximately 95% of that time, that she did not necessarily have concerns about [the mother] with [L], she was concerned that ‘[Mr Dole] (the father) was on the scene’. 

2. In April 2008, Ms Simon reported that she and her husband were caring for L but “have no desire to have full custody of her”.  She stated that she wanted the mother to “grow up and get her act together” and to eventually get L back into her care.  Ms Simon further reported that the mother had in February 2008 learned that the father had entered a new relationship and that the mother had felt devastated.  Ms Simon reported to the Department workers that she had told the mother to leave the home which left her homeless.  The mother rang to have contact with L.  Ms Simon did not arrange for L to spend time with her mother.  Ms Simon then sought financial assistance for the ongoing care of L.

3. On 16 May 2008 there was an interview with the mother at Town G CSC.  The mother conceded the level of domestic violence between herself and the father:  “The violence never stopped through the relationship”.  In an interview with the Department, the  mother said[4]:

   Q:      So [L] was born in Queensland, how did you feel when she   was born? 

   A:       I felt wonderful.  It was the best thing that ever happened to me, I               have never regretted it. 

   The mother referred to moving back to New South Wales in about February 2006, that the domestic violence continued and that she ultimately moved back with [L] to live with Mr and Mrs [Simon].

   [4]   Affidavit of S, Exhibit p 104

4. At this time the mother appeared to be hopeful of an improved relationship with the father:  “He’s done a complete 180 turn around.  He’s been doing counselling and he’s on medication”[5].   At this time the father was in gaol.

   [5] Affidavit of S, Exhibit p 107

5. On 20 May 2008 the interview with the mother resumed.  The interview focussed on the risk to L from having contact with her father.  During the course of this interview the mother referred to having moved back to living with Ms Simon whilst she was pregnant and said,   “I made some allegations when I was younger and mum and I didn’t talk for a long time”[6]. 

   [6] Affidavit of S, Exhibit p 109

   Q:       Were those the allegations you made in February 2004? 

   A:       Yeh. 

   Q:       So as you know those allegations were investigated, what are you     saying about the allegations?

   A:       That I made it up. 

   There was an extensive explanation by the mother as to why she said she made the allegations up, for example[7]:

   [7] Affidavit of S, Exhibit p 110

   Q:       Are you aware that the allegations were substantiated through a   JIRT investigation?

   A:       Those allegations were untrue.  I was very rebellious and I made all   that up so that I could move out.  I was unhappy. My mum had   passed away and I was rebellious.

   …

   Q:       Why did you choose to make those particular allegations?

   A:       I knew that if I said that I wouldn’t have to live there.

   Q:       How did you know that?

   A:       Shrugs.

   Q:       How do you feel about all of that now?

   A:       Me and mum and dad have worked through it.

   Q:       How have you done that?

   A:       We have just put it behind us.

   …

   Q:       Have you had any counselling around the allegations?

   A:       No.

   Q:       So in September you signed to the no action statement, what led to             that?

   A:       I wanted mum back.  I missed my mum and I realised I had made a             big mistake.

   The mother reported that in relation to having made the allegations about [Mr Simon] ‘I feel really bad for ever doing that, I am disgusted in myself’[8].

   [8] Affidavit of S, Exhibit p 111

   The mother clearly stated that not only had she retracted her statements, but the allegations were untrue[9]:

   [9] Affidavit of S, Exhibit p 111-112

   Q:       So are you saying that the allegations are false and you made it all              up?  .

   A:       Yes.

   Q:       So how do you feel about all of it now?  Do you understand that we   have concerns for [L]?.

   A:       I believe that I am a good mother and I would never put [L] in   harms way.  The only time [L] was in harm was when I was              living with [Mr Dole] (the father), but I was stuck then and there was                    nothing I could do.

   Q:       So you signed the no action statement on 3^rd of September [2004]               and the case was due to go back on the 8^th [September 2004].

   A:       No I wasn’t aware of that.

   The mother was asked why she had delayed in withdrawing the allegations between February and September 2004:[10]

   [10] Affidavit of S, Exhibit p 112-113

   A:I had met [Mr Dole] and I was being naughty, I was doing bad things and it was the last thing on my mind.  I was partying and all I was interested in was going into town.

   Q:       So between February when you made the allegations and September                    when you signed the no action statement, you would go and stay                 with your parents for a week at a time?

   A:       I never stayed with mum and dad until the charges were dropped.

   Q:       Why was that?

   A:       She wouldn’t talk to me.

   Q:       So how did you get back into contact?

   A:       With mum, just over the phone.

   The mother expressed the fear she had felt about letting [Ms Simon] know that she was pregnant[11].

   [11] Affidavit of S, Exhibit p 113

   Q:       Were you worried about being pregnant, you were only 15 it must              have been overwhelming?  How did you feel?

   A:       There was no way that I was going to terminate.  I was happy.  I                   haven’t had depression since I had [L].

   Q:       How did mum [Ms Simon] react?

   A:       She was happy, over the moon.

   Q:       When did you move back in with her.?

   A:       About 1 month later.  I knew that if I hadn’t dropped charges I   know now that I wouldn’t have been able to move back in.

   Q:       Why do you know now that you couldn’t have moved back in?

   A:       Because of what you said about the AVO, I didn’t know there was              an AVO [for the protection of the mother].

   Q:       According to our records you did know about the AVO.

   A:       I don’t remember.  It was a long time ago.  I was young.

   The mother indicated that she had moved in with the [Simons] for a very short time and then lived with the father.  At this stage the mother indicated that her plan, having separated from the father, was to stay with the [Simons], to save some money and to start some education.  She said that she had been angry when she learned that [Ms Simon] had filed for custody of [L] but that the relationship was now good between herself and [Ms Simon[12]].

   [12] Affidavit of S, Exhibit p 113-115

   Q:       What about since the allegations?

   A:       We have worked through it, it’s in the past.

   Q:       So in relation to the allegations, what were you thinking when you             told your mum what was happening and she didn’t believe you, has                 that affected your relationship?

   A:       I felt betrayed but it got me out of the house.

   Q:       Why did you feel betrayed if the allegations were untrue?

   A:If it was true you would think that your mum would stand by you.  I am just disgusted in myself.  I am just repeating myself to you.[13].

   [13] Affidavit of S, Exhibit p 115

   The mother denied that she had any concerns about [L’s] safety with either of the [Simons] and confirmed that it was her intention to remain living with them.  She reflected that [Ms Simon] had applied for custody because she herself had been persistent about going out, had not been assisting around the home and had expected too much of the [Simons] in caring for [L].  She said she had ceased using drugs such as marijuana and speed.  She asserted that she and [Ms Simon] were working together[14].

   [14] Affidavit of S, Exhibit p 115-117

   The question of the allegations was raised again[15].

   [15] Affidavit of S, Exhibit p 123-124

   Q:In regards to the allegations that you made, do you realise that your parents were deregistered as foster carers and a decision was made not to allow any child to remain in their care and now your little girl is living in their home?  We have a duty of care to investigate and to make sure that [L] is safe and that you can demonstrate that you are protective.

   A:I said it to get out of home and when I got out and did my own thing I realised that it wasn’t what I wanted.  My mum wouldn’t speak to me.  I would call her and she wouldn’t talk to me.  I felt abandoned and I wanted my mum and I thought this was all crap.

   Q:       So your mum wouldn’t talk to you, why did she start again?

   A:       I signed that thing and it all went away.

   …

   Q:Would you have been able to have a relationship with your mum if you hadn’t signed the statement?

   A:       No, she would have disowned me.

   Q:       How did you feel about your mum not believing you?

   A:       It didn’t feel good.  She should have at least believed me first.

   Q:       At any point did she believe you?

   A:       No.

   Q:We have information that your mother took you to a motel when you told her about the abuse.  Do you think that she may have believed you then?

   A:       Yes she took me to the motel but I was not sure why.

   Q:       So what happened when you first told your mum?

   A:The first thing she said was ‘you are telling lies’.  We were in the car and then we stayed in the motel and she may have believed it at first but by the morning she didn’t and she was right not to believe.

   In the balance of the interview the mother was adamant that the allegations were untrue, that nothing had happened and she was disgusted with herself for having said that they had.

6. On 2 June 2008 interim orders were made for the Minister to have sole parental responsibility for L. 

7. On 4 August 2008 orders were made which provided for the Minister to have sole parental responsibility for L and for L to live as directed by the Director-General.  There were provisions for contact between the mother and L on no less than three occasions per week subject to certain conditions, with provision for review of those orders upon the mother moving into appropriate accommodation. 

8. In October 2008 a report by the single expert Dr L was released.  The recommendation was for L to live with the mother.

9. On 24 February 2009 there were further orders made with an increase in time between L and her mother, to three occasions per week for three hour periods, with an order for the mother to be assessed by an independent psychiatrist. 

10. In April 2009 the mother was assessed by Associate Professor Dr Q, whose report was released the following month.

11. On 15 December 2009, the Simons filed an Initiating Application seeking the discharge of all current orders and an order for sole parental responsibility in their favour.

12. On 30 January 2010 the mother gave birth to N.

13. On 9 February 2010 the Director-General filed an application for sole parental responsibility for L.

14. On 17 March 2010 orders were made for L to continue in the care of the Director-General, with regular periods of time with the mother.

15. In July 2010 a second report was released by the single expert, who now recommended that L be placed in permanent foster care.

16. On 21 October 2010 final orders were made in respect of N, placing him in the fulltime care of his paternal grandparents.

17. By February 2011 no material had been filed on behalf of the Simons or by the mother, leaving only the application of the Intervener before the Court. 

18. On 14 March 2011 the first day of hearing, the mother and the Simons attended and each party wished to proceed with an application for residence.  The Court gave leave for affidavits to be prepared and filed on that day.  Time was allowed for that step to be taken and the hearing then proceeded.

The Simons

1. The Simons live in Town T and are both in fulltime employment, Ms Simon as an office worker and Mr Simon as an office worker.  Ms Simon asserts that she would be able to be flexible with her working hours if L came to live with her.  I accept that Ms Simon would be able to make those arrangements.  The Simons were conscious of the recommendation of the single expert that L should stay in her current foster placement.  They sought orders for time with L in the alternative, if they were unsuccessful with the application for L to live with them.  I accept that L did form a bond with the Simons, who provided loving care for her during the period that L lived with them.  I also accept that L related to the Simons as grandparents, calling them “nanny and poppy”. 

2. The Simons did not address the breakdown of their relationship with the mother and the reasons for it, nor how they would manage the relationship between L and her mother.  The Simons were each extensively cross-examined by counsel for the Intervener.  Ms Simon was asked whether she agreed with the single expert’s assessment that L needed a secure stable placement.  Ms Simon said she did.  Ms Simon had read the single expert’s assessment that the relationship between themselves and the mother was “poisonous”.  Ms Simon agreed somewhat with that assessment. 

Ms Simon

1. The matter of the allegations made by the mother in February 2004 about Mr Simon were clearly still, seven years on, a most difficult and sensitive subject for Ms Simon. 

2. Ms Simon said she came to the conclusion, without ever actually having that conversation with the mother, that the allegations were not true.  I consider there is a real possibility that Ms Simon closed her mind to the situation in order to support her husband. 

3. Further in cross-examination the proposition was put to her that when the Department substantiated the allegations, that she Ms Simon had said the mother was lying.  Her answer, which is of some significance, was, “Yes, I was angry”.  I formed the clear impression that Ms Simon has been torn in her loyalties to her husband and to the mother for the last seven years and the situation remains unresolved.  There is no doubt that Ms Simon loves L very much and on balance it seems likely that Ms Simon also still loves the mother and regards her as a daughter.  However, if it is the case that Mr Simon did behave in the way alleged by the mother then there is an unquantified risk that he would repeat that conduct with L. Ms S does not acknowledge that such a risk exists. Therefore, also of great significance is the possibility that Ms Simon would again, in a conflict of loyalties, support her husband over a child in her care.  I am left with a very real doubt about the safety of L in the Simons’ household. 

4. As a separate issue, there is the fact that there is a strong bond between the mother and Ms Simon.  From time to time the mother has sought to put pressure on Ms Simon effectively to choose her over Mr Simon.  The mother feels betrayed and resentful because Ms Simon did not believe her allegations that Mr Simon had molested her[16].  It would be an intolerable situation for L to be caught in such an emotionally destructive web of relationships.  The concerns raised by the single expert in his report were evident in the evidence of Ms Simon and the painful unresolved conflict between herself, the mother and perhaps her husband.  Unfortunately for L, this situation is likely to impact on her if there were to be continuing contact between herself and the Simons whilst she remains in her present foster care placement.  L calls her foster carers ‘mum’ and ‘dad’.  A close bond has been established.  However there is a fragility in that bond which is a consequence of previous attachments breaking down.  L’s happiness and emotional stability is at stake.  In my view she would be at risk of being used, however unconsciously, by both the Simons and the mother as a means of hurting the other.  It is a risk that should not be taken.

   [16] Affidavit of S, Exhibit p 115

Mr Simon

1. Mr Simon was cross-examined.  He minimised the difficulties of having L placed in the care of himself and his wife, despite the allegations by the mother against him.  He has been disqualified as a foster carer and assessed as ineligible to care for children. 

2. Mr Simon confirmed that he knew the mother had told Ms Simon of certain allegations about him and that the mother had been taken away to a motel to have a conversation with Ms Simon about those allegations.  These are the allegations which both Mr Simon and his wife dismissed as lies in interview with the Department.  They did not advise the Department that this was not the first time an allegation by the mother had been made.

3. Evident in Mr Simon’s evidence was the tension between himself and the mother.  He agreed that such tensions existed and would be unlikely to dissipate.  Mr Simon said this:  “No but I’ll try to make an allowance that [L] needs to see her mother”.  This grudging admission of the relationship between L and her mother is a reflection of how unlikely it is that the Simons would be able to promote and support a relationship between L and her mother.  Even if there was an excellent, uncomplicated relationship between the Simons and the mother, it still would be difficult for the mother to accept a situation where L was placed in the care of the Simons.  However given that the mother feels both angry and betrayed by each of the Simons for different reasons, her reaction to L being in that household would be hostile and anxious.

4. There is no doubt that Mr Simon loves L, but the basis for the Simon’s application appears to be at least as much about the their need to have L in their care as a consideration of L’s needs.  For example while Mr Simon conceded that L had formed a bond with her present carers, he also said,  “There is always a need for family.  [L] has formed a bond (with the foster carers) but could reform a bond with us”.  There did not seem to be any consideration for why L should experience removal from her current foster carers with whom she has formed a healthy attachment, even if it were possible for another bond to form.

The mother

1. The mother’s affidavit consisted of nine brief paragraphs.

2. The first paragraph summarises the  mother’s case:

   1.I no longer reside with the [Simons], therefor (sic) my daughter is not at risk of harm of sexual abuse and should be returned to me.

3. This statement is a confirmation that the mother again asserts past sexual misconduct by Mr Simon.

4. The affidavit appropriately recognises that L has been at risk in the mother’s household through exposure to domestic violence.  The mother has taken steps to find appropriate accommodation.  I accept her evidence that she has been disturbed and sad since L was removed from her care. 

5. The mother showed some insight about her relationship with the Simons.  She said this:  “My opinion is there could be reconciliation about the sexual abuse. She [Ms Simon] is in denial, she’s protecting [Mr Simon].  If she could admit that we could come to a relationship”.

6. The mother provided no explanation for her failure to undertake urinalysis as she had been directed. There was a strong inference in the mother’s evidence that she had been taking illicit drugs, which was part of the reasons for her failures to attend to see L, especially between August and December 2010.

7. The mother apparently does not maintain contact with N.  She declined to give an explanation for her withdrawal from that relationship.  At this stage the mother declines to see a psychologist.  Dr Q, the single expert and probation and parole have all strongly recommended to the mother that this therapeutic help would be most beneficial, particularly in understanding why the relationships she forms are not helpful to her.  It may be in time the mother is willing to seek out this assistance.  Both she and L would benefit if she did.  With time and assistance she may be able to repair some of the damage that she has experienced over the years and to build a stronger relationship with her daughter.

The single expert

1. The thrust of the single expert’s evidence was that L experienced a sense of ongoing loss and disappointment from being repeatedly removed from attachments which she had formed, and that what was important was not to upset L in her present stable relationship.  He said L forms indiscriminate superficial attachments and it would take time for those attachments to deepen.  Dr L reflected on his changed recommendation that L should remain in foster care: 

   [Ms Simon] is in a terrible position.  There is so much uncertainty around the [Simon] family.  When you are looking at a stable environment for [L] somewhere where she can thrive and prosper you need to reduce the amount of uncertainty, minimise the risk of uncertainty.

2. The single expert also said that the period between 18 months and six years is the critical period for attachments:  “We are running out of time to stabilise [L]”.  I take this to mean that a disruption of the current placement would create the very real possibility that L would be unable to form a secure attachment with anyone.  The single expert went on to say that insecure attachments act like a lens which magnifies other difficulties, and personality disorders can arise.  Given the number of disruptions in L’s life to date, her exposure to violence, her disappointment about irregular visits with her mother, the risk of disrupting her present attachment is real and therefore unacceptable.  I note also that the single expert recommended against any time being spent by L with Mr Simon. This recommendation was made partly because a residual relationship between L and Mr Simon is unlikely, and also because of the likelihood of further allegations and complaints about Mr Simon which the Department would need to act on.  I accept the evidence of the single expert that it would be inappropriate to encourage the renewal of a relationship which might be broken again.

3. In relation to Ms Simon, the single expert felt there could be some benefit to ongoing contact between Ms Simon and L, given that Ms Simon had been a mother figure to the mother.  If L were to have no contact with Ms Simon, this means L will lose contact with someone who might have been significant to her. This could raise issues for L in the longer term. The single expert felt that visits at a frequency of between two and four times per year between L and Ms Simon might be of value. I have no doubt Ms Simon would maintain the commitment of visiting L.

4. The relationship between the mother and Ms Simon is still fragile, and there is a possibility that relationship may again break down in the future. The single expert’s evidence is that L may be at risk if she is exposed to that emotional conflict.  There is a risk that Ms Simon and the mother will compete over L, and that L will be exposed to information about the allegations of sexual misconduct by Mr Simon and to Ms Simon’s reaction to those allegations. 

5. Given L’s vulnerability, the real benefit of having a grandmotherly figure present in her life is outweighed by the disruptive effect of the hostile and ambivalent relationship she could be exposed to.

S, Case Worker, Department of Family & Community Services

1. S was cross-examined by Mr Simon with particular reference as to whether the mother had lied to the Department in relation to allegations against himself.  Whilst the cross-examination was restrained, the anger and hostility felt by Mr Simon towards the Department was on show.  I came to the conclusion that the Simons would be highly unlikely to seek the assistance of the Department or to openly report matters of concern if L was in their care.  They did not do so when the mother was in their care.  The Simons blame the Department for the loss of L.

The law

1. The Family Law Act 1975 (Cth) (“the Act”) states that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration (s 60CA).

2. The best interests of L will be determined on the particular facts and circumstances revealed by the evidence in this case.

3. In determining best interests the Court must take into account the considerations set out in s 60CC of the Act.

4. There are two primary consideration and 13 additional considerations as follows.

Primary Considerations

Section 60CC(2)(a) – the benefit to the children of having a meaningful relationship with both of their parents.

1. L does not have a relationship at all with her natural father.  She does have a meaningful relationship with her mother which has been affected by L’s removal into foster care three years ago.  L has spent varying periods of time with her mother.  The mother has been erratic at times with attendance and L has been disappointed.  Nevertheless there is an existing bond between the mother and daughter.

Section 60CC(2)(b) - the need to protect the children from physical or psychological harm from being subjected or exposed to abuse or family violence.

1. L was neglected as a very young child and exposed to violence in the relationship between her mother and father, and her mother and Mr A.

Section 60CC(3)(a) - any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the children’s views

1. L had recently turned six years of age at the time of hearing.  She was assessed to have an indiscriminate attachment system.  She is too young to express a view and insufficiently mature to grasp the complexity of her circumstances. However, she was observed by Dr L as “keen to be held in her mother’s arms and good quality interaction was observable”.

2. At the end of the period of observation L was “visibly distressed at saying goodbye to her mum despite letting her go without a major scene”.

3. L calls her foster mother “mum”.  She refers to her mother as “her other mum”.  L’s behaviour and language can be interpreted as her view that her mother is important to her.

Section 60CC(3)(b) - the nature of the relationship of the children with each of their parents and other persons (including any grandparent or other relative of the child).

1. L has no relationship with her father.  She is assessed to have a good relationship with her mother.

2. There is no significant relationship in tact between L and Mr Simon because of the length of time which has passed since they last spent time together.

3. There is apparently some residual relationship between L and Ms Simon as a result of the love and care provided by Ms Simon early in L’s life.

4. There is a good relationship deepening and stabilising between L and her foster parents.

Section 60CC(3)(c) - the willingness and ability of each of the children’s parents to facilitate, and encourage, a close and continuing relationship between the children and the other parent.

1. L’s carers encourage the relationship between L and her mother.  They have done so despite the mother’s numerous failures to attend visits, which has resulted in L being disappointed.

Section 60CC(3)(d) - the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from:

1. either of their parents; or

1. L will experience some disadvantage of being raised in foster care. This is not because of the quality of care which is of a high standard, but rather because she may experience self doubt arising from not being cared for by a family member.

1. any other child, or other person (including any grandparent or other relative of the children), with whom they have been living.

1. L would be adversely affected by being removed from her current carers.  She is emotionally fragile as the result of previous broken attachments and has begun to trust her carers.

2. L will suffer some disadvantage from losing her relationship with the Simons, especially Ms Simon.  They have provided L with the experience of being a grandchild.

Section 60CC(3)(e) - the practical difficulty and expense of the children spending time and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.

1. Visits will be arranged by the Department between L and her mother and N.  The mother may have practical difficulties in travelling to spend time.

2. The mother should not be required to ask for telephone calls at special times or visits.  A schedule of proposed visits and calls should be prepared by the Director General and given to the mother.

Section 60CC(3)(f) - the capacity of the children’s parents and any other person (including any grandparent or other relative of the children) to provide for the needs of the children, including emotional and intellectual needs

1. The mother does not presently have the capacity to meet the needs of the child.  She has not sought the professional assistance which would so greatly assist her to make sense of the destructive events in her life to date.

2. She has experienced abuse, betrayal, abandonment and violence.  As an adult she has been deceptive and violent herself.  She has struggled to survive.

3. Her only submission to the Court was a genuine and heart felt, “Return my daughter to me please”.  However there is not sufficient evidence of stability or insight in the mother to risk L’s psychological health with the termination of her present attachments and stable placement.

Section 60CC(3)(g) - the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of their parents, and any other characteristics of the children that the court thinks are relevant.

1. L is a six year old girl. 

2. She is separated from her parents and younger brother.  She has an indiscriminate attachment system but is doing well in her current long term foster placement, which fortunately can continue.

Section 60CC(3)(h) - if the children are Aboriginal or Torres Strait Islander.

1. There was no particular evidence on this point.

2. There was indirect evidence that one or both of the mother’s biological parents may have been Aboriginal.

Section 60CC(3)(i) - the attitude to the children, and to the responsibility of parenthood, demonstrated by each of the children’s parents.

1. The father has given up his parental responsibility.

2. The mother longs to exercise her responsibility as a parent but has not been able to provide adequate care and safety for L, having exposed L to domestic violence at an early age.

Section 60CC(3)(j) & (k)– any family violence involving the children or a member of the children’s family.

1. The mother has had more than one violent personal relationship.  From an early age L has been exposed to violence, initially between her parents and then in the mother’s subsequent relationships.

2. There have been Apprehended Violence Orders in place for the protection of the mother.

Section 60CC(3)(l) - whether it would be preferable to make the order that would be lease likely to lead to the institution of future proceedings in relation to the children.

1. L has the best chance at a stable and happy life if she remains in her current care placement and spends regular time with her mother and brother.

2. The loss of the past and potentially future relationship with the Simons is outweighed by the risk of psychological harm to L through exposure to the emotional warfare between the mother and the Simons.

Section 60CC(3)(m) – any other fact or circumstance that the Court thinks is relevant

1. The mother had the experience of being disappointed by her natural mother failing to attend visits when she was in care. 

2. The mother was distraught when her mother died without any chance for reconciliation. 

3. The mother knows how badly she was affected by feelings of abandonment and exposure to violence and drug and alcohol abuse.

4. The mother has been let down by the Simons. 

5. The mother has the capacity to keep a relationship with L alive if she chooses.

6. L has been assessed as a psychologically vulnerable child with “too many people coming and going”.  If L comes to trust that her mother will always be there for visits, their relationship may survive into L’s adolescence and adulthood.  Only the mother can decide to make this work.

I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 30 June 2011.

Associate: 

Date:  30 June 2011