Tory & Pratt & Ors

[2009] FamCA 1017

FAMILY COURT OF AUSTRALIA

TORY & PRATT AND ORS [2009] FamCA 1017

FAMILY LAW – CHILDREN – With whom a child lives – Child in the care of Director-General, Department of Community Services

Family Law Act 1975 (Cth)

APPLICANT: Ms Tory

FIRST RESPONDENT:

SECOND RESPONDENT:

Ms Pratt

Mr Cole

INTERVENOR: Director General, Department of Community Services

INDEPENDENT CHILDREN’S LAWYER: Ms O'Rourke

FILE NUMBER: NCC 1688 of 2008

DATE DELIVERED: 16 January 2009

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Flohm J

HEARING DATE: 12-14 January 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE 1^ST RESPONDENT: Mr Graham

SOLICITOR FOR THE 1^ST RESPONDENT: Mr Haricharan

COUNSEL FOR THE INTERVENOR: Ms Boyle

SOLICITOR FOR THE INTERVENOR: NSW Crown Solicitors Office

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms O’Rourke

Orders

1. That all previous parenting orders in relation to … born … December 2000 (“the child”) are vacated.

2. That the child is to live with Ms Pratt (“the mother”).

3. That the mother is to have sole parental responsibility for decisions relating to the daily and major long term issues for the child.

4. That Ms Tory (“the grandmother”) is to spend supervised time with the child as follows:

   (a)On four (4) occasions per year, for a period of up to two (2) hours, supervised by Relationships Australia at the R Community Family Centre in Western Australia or such other Service that may be made available through Relationships Australia or another like Service (“the Contact Service”) on either Saturday or Sunday as nominated by the Contact Service.

   (b)That the four occasions referred to in Order 4(a) hereof are to be:

   (i)at least two months apart; and

   (ii)not to occur between 15 December and 15 January in any year; and

   (iii)not to occur in the seven (7) days period commencing from the Wednesday prior to Good Friday in any year.

   (c)Both parties are to do all acts and things required by the Contact Service for use of the Contact Service within 21 days of the date of these Orders.

   (d)That the mother is to deliver the child to and collect the child from the Contact Service for the purposes of the grandmother spending time with the child as specified in Order 4(a) hereof.

5. That in relation to Order 4(a) hereof the grandmother is to do the following:

   (a)Make all necessary arrangements to travel to the Contact Service to enable her to spend time with the child.

   (b)      Meet all costs associated with the Contact Service; and

   (c)Not less than 14 days prior to any scheduled occasion of supervised time pursuant to Order 4(a) hereof, the grandmother is to advise the Contact Service that she will be attending for the scheduled visit.

6. That each party is restrained from making critical or derogatory remarks in relation to each other, or the other parties’ families, in the presence of hearing of the child, and that each party is to do all things necessary to ensure that no third party makes critical comments about the other parties, or the other parties’ families, in the presence or hearing of the child.

7. That the Director General of the Department of Community Services and the mother are granted leave to provide a copy of these Orders, the judgment and the Court appointed expert report of Dr W dated 26 September 2008 to:

   (a)Any professional service engaged to assist the child or her mother; and

   (b)The Department of Child Protection in Western Australia.

8. That the grandmother is restrained from entering, or approaching the child at:

   (a)      The place of residence of the mother and the child;

   (b)      Any school or educational institution attended by the child; and

   (c)Any venue where the child is participating in extra-curricular activities, without the mother’s prior written consent.

9. That prior to any party taking steps to file an Application or parenting plan with the Federal Magistrates Court or Family Court of Australia seeking a variation to the final orders, they shall first advise the parties to these proceedings including the Legal Section of the New South Wales Department of Community Services.

10. That the mother is to continue to attend upon her treating psychologist Ms H or such other appropriately qualified person for such period as is recommended by Ms H or that other appropriately qualified person and it is recommended that the mother seek guidance from Ms H or other professional on how to best introduce to the child the issue of a change to her surname if the mother intends to make such change.

11. That as soon as practicable the mother is to arrange with an appropriate service or services to receive assistance and education for the purpose of enhancing her parenting skills, with such service ideally providing a home visitation facility, and the mother is to maintain an involvement with that service for a period of at least 12 months from today’s date.

12. That the mother is to inform a delegate of the Director General of the Department of Community Services within 21 days of the date of these Orders of the Support Services in which the mother has engaged to assist her with the care of the child and report on the child’s progress living with her.

13. THE COURT NOTES that unless and until the grandmother complies with Order 4(b) hereof, the mother is under no obligation to provide the child to spend time with the grandmother at the Contact Service.

14. That pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

15. That all documents produced to the Court in response to subpoena or tendered as an exhibit in the proceedings be returned at the expiration of fifty-six (56) days from today’s date.

16. That all outstanding applications are dismissed and removed from the Pending Cases List.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC1688 of 2008

MS TORY

Applicant

And

MS PRATT AND MR COLE

Respondents

REASONS FOR JUDGMENT

the parties

1. These proceedings were commenced by Ms Tory who is the maternal grandmother of the subject child, an 8 year old girl born in December 2000.  The other parties are the child’s mother, Ms Pratt (formerly Tory), the child’s father Mr Cole and the Director-General of the Department of Community Services.  Further, the child was represented by an Independent Children's Lawyer.

THE PROCEEDINGS

1. The child’s father was joined as a respondent by virtue of his biological connection to the child but has played a very little role in her life, particularly in recent years.  He has apparently never shown any interest in participating in these proceedings.  I am satisfied that he has been advised that the matter was listed for final hearing to commence on 12 January 2009 but has maintained his non-involvement with Court proceedings.

2. More surprisingly, the grandmother, who has been the child’s primary carer since the day of the child's birth, and had been the applicant in these proceedings, filed a Notice of Discontinuance on 17 December 2008 and is no longer a party to the proceedings.

3. Whilst the remaining parties are ad idem, in that the mother's proposal that the child live with her in Western Australia is supported by the Department of Community Services  and the Independent Children's Lawyer, it was submitted by all parties that the orders sought, albeit that they were generally but not entirely non-contentious, could not be made by a Court charged with making orders which are in a child's best interests unless the Court read all the material filed/relied upon by all the parties, including the material filed by the grandmother before the grandmother's discontinuance.

4. It was further submitted that prior to the making of any final orders, the Court would need to hear the cross-examination of the single expert, Dr W, whose comprehensive report was before the Court, and that until that last event occurred, none of the parties would be in a position to place before the Court their absolutely final proposal.

5. It was further submitted that given the complex issues in this case, and in particular the interstate aspects to the case and the unusual dynamics of the female relationships over three generations, it was vital to the child’s future safety and physical and mental health and wellbeing that notwithstanding that there was only one real residence proposal by a family member “left standing”, a judgment must be delivered that included findings on the relevant s 60CC(2) and (3) factors in relation to the mother and the grandmother.

6. The reason why those submissions were accepted by the Court and why that course was followed will become clear during the judgment.

THE PARTIES' PROPOSALS AND THE ORDERS SOUGHT

1. An Application for Final Orders was filed by the grandmother on 12 December 2006, but she no longer seeks any orders in her favour. 

2. On 13 February 2008, the Department of Community Services filed an application in a case seeking certain interim orders.  There has been no formal Response filed by the Department of Community Services, however the final orders sought by the Department of Community Services are set out in a document marked exhibit I(1).

3. On 25 June 2007 the mother filed a Response seeking orders, however her position now is that she seeks orders set out on page 4 of the Case Summary filed on her behalf, being exhibit M(1), which support the orders sought by the Department of Community Services.

4. The orders sought by the Independent Children's Lawyer at the conclusion of the hearing were orders which, with slight variations, supported the orders sought by the Department of Community Services.

THE AFFIDAVITS RELIED UPON

1. The following material was relied upon by the mother.

   a)The Chapter 15 report of Dr W dated 1 October 2008.

   b)The mother's affidavit filed 15 December 2008.

   c)Mr Pratt’s affidavit filed 15 December 2008.

   d)Ms M’s affidavit filed 15 December 2008.

   e)Mr Tory’s affidavit filed 15 December 2008.

2. With the exception of Dr W, none of those deponents were required for cross-examination.

3. The Department of Community Services also, of course, relied on Dr W’s report and they relied on the affidavits of;

   a)Ms LF 16 December 2008.

   b)Ms CC 16 December 2008.

   c)Ms NV 17 December 2008.

   d)Dr AP 18 December 2008.

   e)Ms NB 16 December 2008.

   f)Mr MP 16 December 2008.

   g)Mr DP 17 December 2008.

   h)Dr JS 23 December 2008.

   With the exception of Dr W, none of those deponents were required for cross examination.

4. The Independent Children's Lawyer also relied on Dr W’s report and relied also on three affidavits of the grandmother Ms Tory, being affidavits sworn on 7 December 2006, 28 March 2008 and 18 November 2008. 

5. It is noteworthy that the Independent Children's Lawyer relied on the three affidavits by the grandmother.  It was submitted by the Independent Children's Lawyer, a submission supported by the other parties, that it was vital for the Court to be aware what the grandmother's case had been up until the time of her discontinuance, to make sense of much of the other material before the Court.

CHRONOLOGY OF SIGNIFICANT EVENTS

1. The relevant background to this hearing is as follows.

2. Ms Tory, the maternal grandmother, was born in 1963 and is aged 45 years.  In January 1982 she married Mr Tory.  In May 1982, the mother Ms Tory, now Pratt was born and she is currently aged 26.  The child’s father Mr Cole was born in 1984 and he is currently 24.  In 1989 the maternal grandparents and the mother and their other younger children moved from New South Wales to Western Australia.

3. Between 1990 and 1991 the sexual abuse of the mother by her maternal grandfather, WG, is alleged to have commenced and it is said to have continued until about 1994 or 1995.  It is a little unclear but I assume that those events occurred at a time when the mother's maternal grandparents were also living in Western Australia.

4. In 1992 the grandmother and Mr Tory separated.  Mr Tory moved to Sydney in March 1993 and sometime that year commenced a relationship with a woman named Ms E.  In November 1994 the grandmother was an inpatient at a psychiatric unit at a Hospital in Perth and her discharge summary diagnosed: Situation crisis/adjustment disorder with depressed mood.

5. Between 1994 and 1995 the grandmother became aware that the mother had been sexually abused by the mother's maternal grandfather and arranged counselling for the mother at a Hospital in Western Australia.

6. In 1997, after a display of violence towards one of her siblings, the mother was referred to a Child and Adolescent Service in Western Australia.  In the following year the mother moved to New South Wales to live with her father Mr Tory.  Whilst living with her father in New South Wales the mother disclosed to a girlfriend that she had been sexually abused by her grandfather and psychiatric counselling was arranged for the mother to deal with this, and other issues, with psychologists at L Community Centre in Sydney, presumably arranged by the mother's father Mr Tory and Ms E.

7. By 2000 the mother had moved back to Western Australia and had met Mr Cole, the child’s father, at a high school they were both attending.  A sexual relationship between the two of them commenced and it would appear that, in the period leading up to the child’s birth, the mother was not living with her family in Western Australia but was living at S Centre and still attending school.

8. In December 2000 the child was born and on the evidence of all parties it would appear that the grandmother immediately took over the care of the child despite the fact that following the child’s birth the mother had moved in to live with the grandmother.

9. In February 2002 the mother ended her relationship with the father and whilst there appears to have been some involvement between the father and the child following her birth, December 2003 was the last occasion that the child spent any time with her biological father.

10. The mother's relationship with the grandmother had clearly deteriorated from the time that the two adult women resumed living together and it would appear that one of the issues between them was the grandmother's refusal to allow the mother to have any significant involvement in the baby's life.

11. In June 2004 the mother moved into independent accommodation and was obliged by the grandmother to leave the child with the grandmother.  The grandmother permitted the mother to spend Thursday afternoon with her daughter.  Six months later, in about December 2004, the mother moved back to live with the grandmother but it seems this may have been a temporary arrangement in circumstances where the mother was then contemplating a move to New South Wales.

12. In March 2005 the mother commenced a relationship with Mr Pratt and in May that year the young couple began living together.  Apparently without any notice to the mother, the grandmother took the child and relocated to New South Wales. The mother followed them there, and began to live with her grandparents in the Newcastle region.

13. In February 2006 Mr Pratt joined the mother in New South Wales and the young couple moved into independent accommodation.  However the grandmother continued to refuse to allow the mother to spend any time with the child and in May 2006 the mother wrote to the grandmother requesting to spend time with the child.  The grandmother's response stated that the mother could see the child at a venue approved by the grandmother.

14. On 29 September 2006 the mother filed an Application in the Federal Magistrates Court seeking residence of the child.  She discontinued that application in circumstances where, she says, she was persuaded by the grandmother that mediation would produce a better outcome.

15. The mother and grandmother attended mediation on 28 November 2006 but no agreement was reached and things remained as they were; that is, the child still living with her grandmother and the mother unable to spend any real time with her own daughter.

16. On 1 December 2006, which I note was only three days after the mediation, the mother relocated to Perth.  During 2007 the mother says that, living away from her own mother and slowly beginning to get her own life back on track, she began to reduce the various medications that she had been prescribed over many, many years.

17. About two weeks after the mother's departure for Perth the grandmother herself filed an Application with the Federal Magistrates Court seeking residence of the child.  Interim residence orders were made in the grandmother’s favour on 27 July 2007.  By August 2007 an Independent Children's Lawyer was involved in the proceedings.

18. Meanwhile, in Western Australia, the mother married Mr Pratt in January 2008.  Back in New South Wales the Department of Community Services had become involved as a result of Risk of Harm Notifications in relation to the child, and on 18 January 2008 DOCS completed their second Risk of Harm assessment.

19. On 15 February 2008 the Department of Community Services sought, and was granted, leave to intervene in the proceedings and sought and obtained an order that the child be placed in the care of the Director General of the Department of Community Services for the purpose of an admission to the John Hunter Hospital in Newcastle, where it was intended that the child be assessed with a view to weaning her off the medications which were by then thought to be unnecessary, and to be reintroduced to food of which she had been deprived because of the grandmother's assertions about various complaints and allergies. The child was an inpatient for a couple weeks in the John Hunter Hospital where thorough assessments were done about her past and current care and her future needs.

20. On 28 February 2008 the child was discharged from the John Hunter Hospital and placed in a foster home. 

21. To summarise the situation at that stage: the mother was still in Western Australia, the grandmother was in New South Wales but no longer caring for the child and the child was in a foster placement in an area that has permitted her to continue attending B School where she had been enrolled at the beginning of 2006.

22. In June 2008 the matter was transferred to the Family Court of Australia and on 26 September 2008 Dr W, the Court appointed single expert, released his report.  Following the child's placement in foster care the grandmother had, pursuant to Court orders, been seeing the child in a supervised setting arranged by the Department of Community Services on a regular basis.  Throughout the course of 2008 there was, from time to time, suspension of the programme for supervised contact to accommodate the grandmother travelling on one or perhaps two occasions to Western Australia.  Throughout the year the mother also travelled to New South Wales to see the child (mostly but not always in a supervised setting) and at the end of 2008 the child spent a week in Western Australia with her mother.  There is voluminous material filed by DOCS reporting on the contact occasions between the child and others during the course of 2008.

23. As referred to earlier in the judgment, on 17 December 2008 the grandmother discontinued her application to this Court and seeks no orders in her favour.  It would appear that on the second last contact that had been arranged between the child and the grandmother, the grandmother informed the child that she would not be seeing her again and indeed at the last contact occasion arranged, the grandmother simply did not attend.  There is evidence that the grandmother will be moving to live in Western Australia.

1. The mother, with the assistance of the Department of Community Services, has travelled to New South Wales for this hearing but is keen to return to Western Australia with her daughter.  It is her intention to return to Western Australia at the conclusion to this hearing.

2. Very lengthy and thorough submissions were presented by counsel for the Department of Community Services. In circumstances where those submissions were adopted in full by both the Independent Children's Lawyer and the mother, it is clear that each of the parties in these proceedings are presenting the same case and each is relying on the same evidence in support of that case.

3. It is argued that when the Court is determining what is in the child’s best interests it will turn, as it must in those circumstances to an analysis of the relevant factors set out in s.60CC(2) and (3), but that the Court will find the evidence relevant to s.60CC(2)(b) and s.60CC(3)(f) so compelling in relation to the grandmother's physical and emotional abuse of the child that that issue will become the determinative issue in this case.

4. It is agued that the grandmother's lack of capacity to provide for the child’s needs, including her emotional needs, as illustrated by the damage she has done to the child over the child's lifetime, is such that a long term foster placement, always a last resort for a child if there is a willing family member with an adequate residence proposal, would be a better option for the child than a return to the care of the grandmother.  In other words it is argued that in no circumstances whatsoever should the grandmother play any significant role at all in the child’s future upbringing.

5. Accordingly it is argued that, in those circumstances, it is fortuitous indeed that the child's own mother has demonstrated herself to be a person with a residence proposal genuinely warranting the support of the Department of Community Services and the Independent Children's Lawyer, but if that had not been the case then there would have been a very strong argument by the Department of Community Services and the Independent Children's Lawyer for a continuation of the foster placement until the conclusion of the child’s childhood rather than it ever being contemplated that she would return to the grandmother's care.

6. I now turn to an examination of the evidence relevant to s.60CC(2)(b) and s.60CC(3)(f).  The thrust of the argument before me is that a close examination of the evidence will clearly demonstrate that the grandmother has, since she took over the child’s upbringing from the child's birth, held out to the world at large and, significantly, to the child herself, that the child has been diagnosed as suffering from a great number of medical conditions and that the child has been professionally assessed as developmentally delayed.

7. While there was a time when the grandmother’s, as the child’s carer, description of a child's symptoms were naturally enough taken seriously and investigated, ultimately there has been no confirmation of the diagnosis of ongoing medical conditions or significant developmental delay, other than some learning difficulties.

8. Most significantly, it is argued, the grandmother has continued to hold out to the world at large, and to the child herself, and in 2008 to this Court, a false picture of her grandchild's physical health and developmental progress, when the grandmother was fully aware that there was no medical and/or other professional support for her continuing assertions.  In fact the argument goes further: that in order to obtain medical support for her assertions the grandmother has deliberately fabricated symptoms in the child and even lied to medical professionals and others about the result of earlier tests.

9. It is argued that the grandmother's actions have been driven by a need in herself peculiar to her own personality/psychological functioning, a need which has overridden any consideration of the damage being visited upon the child.

10. It is argued that the Court would be satisfied that there can be no ongoing role of any significance whatsoever for the grandmother in the remainder of the child’s childhood, an argument reinforced by evidence that the mother herself has been subjected to a similar upbringing by the grandmother and is only now throwing off the damage that was done to her and is only now really beginning to see herself as a whole person, rather than as the psychologically and medically disabled person her own mother had asserted her to be.

THE EVIDENCE RELEVANT TO s 60CC(2)(b)

1. The evidence can be divided into the following categories:

   a)The discrepancy between the grandmother's assertions about the child's physical and developmental health versus medical opinions.

   b)The evidence of the impact upon the child of the upbringing she has received to date in the care of the grandmother.  This category, of course, includes the written and oral evidence of Dr W.

   c)The evidence as to the grandmother's motives and whether her parenting of a young child is likely to be different in the future.  This category too includes the evidence of Dr W and includes the intergenerational aspect of this case.

2. Starting with (a) and the discrepancy between the grandmother's assertions about the child's physical and developmental health and medical opinions, it is important pursuant to a discussion of this issue to include in my judgment a chronology of the medical interventions arranged by the grandmother for the child and the grandmother's instructions to the child’s school about the child's condition.

3. That chronology is provided in summary form by the Department of Community Services and I include that chronology as Schedule A to this judgment. 

4. The Department of Community Services’ submissions draw the Court's attention to the evidence of the discrepancies between the grandmother's assertions about the child's condition and the medical/professional evidence.  The examples which have been provided in those submissions are not said to be exhaustive, but are sufficient in number to demonstrate the pattern of the grandmother's duplicitous action.  That evidence is as follows.

5. Paragraph 10 of the grandmother's affidavit of 28 March 2008 sets out in great detail what she believed at that time to be the diagnosed conditions from which the child was suffering.  That evidence is clearly contrasted with the medical evidence about each of these conditions.

6. The first is Von Willebrand's disease.  This condition is dealt with by Dr AP at paragraph 27 of her affidavit.  The evidence is that the child had tests relevant to that condition as a baby which were negative and in a letter of 16 September 2006 reference is made to the child again being tested in that year, the results again being negative. There is no doubt that, on the evidence before me, the grandmother has continued attributing Von Willebrand's disease to the child since the negative outcome of tests on 16 September 2006, the outcome of which tests I am satisfied the grandmother was aware.

7. In relation to Allport's syndrome, the medical opinion relevant to that condition is dealt with in Dr AP’s evidence at paragraph 39 of her affidavit, which in turn refers the Court to annexure M to that affidavit. 

8. The next condition is osteoporosis.  That is dealt with at paragraph 35 of Dr AP’s affidavit and includes reference to a bone density test. The relevant annexure to Dr AP’s affidavit is annexure X.  The medical evidence before me is that there is a clear distinction between osteoporosis and a vitamin D deficiency.  The latter can cause symptoms of osteoporosis but is a condition which is easily correctable.

9. Ehlers Danlos Disease is referred to in the 28 March 2008 affidavit of the grandmother as being a condition from which the child is suffering. In contrast, Dr AP’s affidavit at paragraph 20 and annexure C and K makes it clear that such a diagnosis has never been confirmed medically.

10. It is alleged by the grandmother that the child is allergic to a number of foods and food groups and regrettably the child has been subjected by the grandmother to a number of skin prick tests.  On a number of occasions the grandmother has told the school and others what the child can and cannot eat.  However if one looks at annexure B of Dr JS’s affidavit, including annexure B thereto,  there was a 2003 test which was negative to the food or food groups that were thought to be contentious at the time and another test in March 2004 was again negative to all foods tested for.

11. When the child was enrolled at school at the end of 2005 an enrolment was done from Western Australia just prior to the grandmother moving with the child to New South Wales.  The school was provided by the grandmother with a list of the child's food allergies. That enrolment form can be seen as Annexure A to school teacher Mr DP’s affidavit.  That list of allergies was provided to the school in 2005 notwithstanding the negative outcomes of the test in the preceding year 2004 and also in 2003. 

12. Further skin prick tests have been arranged by the grandmother since the child was enrolled in school.  These tests in 2006 and 2007 are referred to in Dr AP’s affidavit at paragraphs 39, 40, 41 and 42.  In summary, the grandmother subjected the child to a series of tests, all of which were negative, in 2003, 2004, 2006 and 2007.

13. At paragraph 51 of school teacher Ms NV’s affidavit, reference is made to the grandmother's continuing assertion that the child was allergic to eggs, notwithstanding there is medical evidence before me that prior to these assertions the child's allergy to eggs was tested and found to be negative.

14. It is submitted on behalf of the Department of Community Services that the aspects of the grandmother’s physical abuse of the child on which it relies is the continual exposure of the child by the grandmother to unnecessary skin prick tests and also an unnecessary denial of certain foods which in turn have caused problems in other areas.

15. The next condition is the child’s epilepsy. The grandmother says in her affidavit that the child suffers excessive sweating, and this assertion is part of the history provided by the grandmother to the school and to medicos.  The child has been prescribed Epilim.  However Annexures A, I and K to Dr AP’s affidavit demonstrate that the grandmother persisted with the assertion that the child suffered from epilepsy notwithstanding medical opinion to the contrary.

16. I turn now to the child’s gross motor skill problem alleged by the grandmother as recently as her affidavit of 28 March 2008.  At Annexure L10 the grandmother presents a report from Dr OB dated 5 January 2005 which refers to medical reviews between 2 November 2004 and 3 December 2004. It refers to a fracture of the lower leg and states that the child was slowly improving with physiotherapy and ultimately says that the resulting limp had resolved at that time.

17. Yet in March 2008 the grandmother was still raising the issue of a gross motor skills deficiency as the reason the child is falling over.

18. In contrast to that assertion Dr AP’s affidavit, at Annexure D, refers to how the issue was dealt with by medical professionals in 2006.  Notwithstanding that, the grandmother was able to get the child’s school to provide taxis to and from school, see school teacher Ms NV’s affidavit at paragraph 15. That material also refers to the various aids, such as a beanbag, provided by the school on what can only be described as the insistence of the grandmother.  Paragraph 16 of Ms NV’s affidavit refers to her being told by the grandmother that the child had “put her hip out”, but there is no evidence of any kind from any medical practitioner that such an event occurred.

19. The school did provide a taxi during 2006 but Ms NV’s affidavit at paragraph 54 states that as 2007 was approaching, based on her observation of the child during an excursion on which the child had used the bus with other children, Ms NV thought that the school bus, which required little walking on the child’s part given the location of the bus stops, would be suitable transport to and form school. 

20. After Ms NV informed the grandmother of this, the grandmother presented the teacher with a letter from the Department of Education demonstrating that the grandmother had “gone over the head of” the school and obtained an extension of the funding for the provision of a taxi during that year.

21. These events are used by the Department of Community Services as further evidence that, quite apart from the unnecessary medicalisation of the child, the grandmother's actions also deprived the child of an opportunity to share the childhood pleasure of travelling on the bus with her classmates.  It also demonstrates the determination of the grandmother to access unnecessary services such as the provision of the taxi and the wheelchair, discussion of which follows, signalling to the child her, her school friends and the world at large that the child was in some way a disabled child.

22. I turn now to the issue of the wheelchair.  The grandmother procured a wheelchair for the child and sought to have the child use it at school, see paragraph 84 of the March 2008 affidavit by the grandmother.  That information should be seen against the evidence of Dr AP at paragraphs 45 and 46 of her affidavit, which says that not only was the wheelchair unnecessary, but actually potentially dangerous and harmful to the child.

23. The above examples are said by the Department of Community Services to not only demonstrate the discrepancies between the grandmother's assertions and those of professionals who examined the child, but are also said to support the argument as to the grandmother's duplicitous behaviour.

24. I turn now to the impact upon the child of the upbringing she has received to date in the care of the grandmother.  This category, of course, takes into account the written and oral evidence of the Court expert, Dr W.  It also includes the affidavit material of the three school teachers who have been teaching the child or involved with the child at B school, their evidence including the child’s forced exclusion from normal childhood activities and her subsequent isolation.

25. Dr W’s report at page 27 deals with the impact upon the child of the grandmother's parenting.  Dr W writes:

    “[The child] presented as a very confused and emotionally immature little girl.  She seems quite eager to please at the moment and also fairly indiscriminate in her approaches to people.  I doubt very  much whether she has any awareness of the possibility of having been harmed by her grandmother, yet recently it would appear that she has been hovering between her grandmother and the supervisor, she expressed a preference to live with her mother which seemed rooted in an external value (all children live with their mothers), and her dolls house play seemed to reveal a very flawed and unstructured sense of family. Bearing in mind the circumstances of the past three months, I formed the view that a great deal of this behaviour reflected a high degree of insecurity arising out of her placement in foster care for reasons which are not apparent to her.  However I also felt that this was consistent with her not having as strong an attachment to her grandmother as one might expect, particularly bearing in mind her age.

    Another contributing factor is probably that she does not have good adaptive skills.  A formal assessment of her cognitive abilities reveal that her capacities lie within the lower average range, but it also appears that her grandmother has treated her as developmentally delayed as well as physically handicapped, which has not encouraged her to be able to confidently utilise her abilities and effectively marshal them to adapt to the change.

    If it is the case that [the child] has a factitious (induced) immaturity and impairment across a number of developmental domains, then the treatment for this is well established.  It is simply to remove the child from the day-to-day care of the person who has induced this state.  Provided the alternative care is appropriate, consistent and emotionally responsive children of [the child’s] age and even sometimes older, can make remarkable gains in quite short periods of time.  Sometimes at the end of this process they are found to have no underlying disorders at all.  In other cases they do have residual problems which reflect some underlying conditions of a developmental or medical type, but at least these can now be evaluated within a reasonably objective environment and appropriate, as distinct from unnecessary, treatment can be administered.”

26. On page 35 of Dr W’s report he says, in what I consider to be very significant evidence, the following.

    “If the Court is satisfied that the position of the Department based on the information from the John Hunter Hospital medical staff is basically correct, and also accepts my observations and some of the other material to which I have referred which seem to corroborate the Department's position, then much of [the child’s] history needs to be reinterpreted as demonstrating the consequences of the type of parenting to which she has been exposed by [the grandmother].  Under those circumstances, there would be ample evidence that her health, welfare and emotional needs have suffered a great deal.  In my view it is likely that the consequences of this have included that she is an excessively emotionally immature and dependent child, that her learning abilities have been compromised, and that her health has suffered as a result of unnecessary treatment and investigation, and finally that he social and cognitive development has been impeded by the numerous limitations which her grandmother's preconceptions about her wellbeing have caused. If this continues uninterrupted, it will be increasingly difficult to reverse the developmental, emotional and behavioural changes, [the child] will have a great deal of difficulty developing into an autonomous individual who is capable of mature relationships, and unnecessary medical investigations and treatment may well either shorten or end her life.”

27. I accept the written evidence from Dr W. 

28. Dr W also refers to the impact upon the child of the grandmother’s care in his oral evidence.  He says that some medical investigations in the past have been relatively invasive and sometimes those things can have devastating side effects.  It is rare but it is possible.  He says that one does not expose anyone to that sort of testing if it is not necessary as none of the tests are completely without low but avoidable risks of side effects.  Dr W says that another consequence is the possibility that a constant focus on a child's health can cause that child to become hypochondriacal.

29. I accept that oral evidence from Dr W, and I accept his oral evidence that what the grandmother has done to the child is a subtle but severe form of abuse.

30. I turn now to the evidence as to the grandmother's motives, and whether her parenting of a young child is likely to be different in the future.  This category, too, includes the evidence of the Court expert Dr W, and includes the intergenerational aspects of this case.  Dr W’s evidence is, at page 31 of his  report:

    “I am concerned that the nature of [the child’s] relationship with her grandmother is highly abnormal and deeply enmeshed.  The details of this are outlined elsewhere but in summary, I am very concerned that her attentiveness to [the child’s] health, welfare and emotional needs is inappropriately intense and involves serious misjudgement of these matters.  I am concerned that she has little or no insight into this, except to the extent that she is behaving in quite a compliant way in the current proceedings and that if [the child] were to be returned to her, things would more or less return to what was happening before.  This is usually the case with people such as she, particularly if they do not concede in a reasonably open way that they have seriously misjudged the child's needs.  For that reason I think it is unlikely that she would accept and act appropriately on the advice of medical and developmental practitioners in the future.”

1. At pages 32 and 33 of his report Dr W says:

   “From a psychiatric point of view, another issue which has arisen in these cases is the nature of the child's relationship with the adult.  A defence which is often raised in relation to these cases is that the adult had behaved in a misguided but essentially over-protective way and that rather than being unconcerned about the child and be prepared to misuse the child for her own ends, these people are in actuality over-concerned for the child.  Generally this argument has not achieved much traction in the most severe cases where illness has been induced in the child, but where symptom fabrication has occurred, it has often seemed to be a more plausible explanation, particularly if deliberate fabrication is less clear-cut and it merges into unintended and misguided exaggeration.

   From the material available to me, including my interviews with the parties and my observations of them, I formed the view that the grandmother's behaviour probably falls within this lower domain, however within that area, it is my view that there is still an important differentiation to be made. It may be that [the grandmother] is essentially a very over-protective person who has worried about the slightest symptoms in all of her children and now her granddaughter and has persistently brought them to doctors for investigations and treatment.  Indeed her own psychiatric and medical history is consistent with the preoccupation with physical complaints, suggestibility and exaggeration.  In relation to [the child], impressed by [the grandmother’s] earnestness and commitment, a number of diagnoses have been made of slight degrees of conditions with evocative names and then once these diagnoses have been made, the grandmother has zealously pursued their treatment as if these conditions were present to a greater degree than the doctors themselves suggest.  Moreover, further assessment and treatment has reinforced the diagnoses, treatment practices and beliefs, leading to [the child] becoming increasingly immobilised by over-protectiveness, avoidance of normal growth opportunities and the strictures of treatment and rehabilitation.  This process is essentially one of a parent having allowed themselves to be misinformed because of their persistence, then perpetuating the diagnosis, causing handicap.

   It is also my view that a somewhat more sinister formulation is possible, namely that the grandmother has knowingly exaggerated and perhaps even fabricated symptoms in her children and now in [the subject child] for her own personal psychological needs.  Differentiation of this from the previous pattern I have described can be difficult and rests largely on concrete evidence of misrepresentation, as distinguished from misunderstanding.

   The nature of my assessment does not enable me to detect this.  It is the type of thing which is more easily detected by medical carers who pick up on a pattern of what appears to be deliberate misunderstanding of information, deliberately misinforming of other parties about what the doctor has said, and other clearly wilful behaviour.

   One reason that I am concerned that this may be a factor in this particular case is that I was struck by the equanimity with which the grandmother seems to accept her granddaughter's steady improvement and present it fairly blandly as simply a progression of a process which had already started some time ago.  There was little or no protest that the doctors had “got it wrong” or any clear attempt to argue and justify her behaviour.  While this could be the conduct of a person who is fairly dependant herself and who is dependant on medical carers and prone to overvalue their ideas, I also was left concerned that this was in fact disingenuous and was a device intended to placate myself and others and achieve a positive court outcome.

   Although there is not good scientific literature about the treatment of such individuals, it is probably reasonable to say that the prognosis for purely over-protective parents is rather better than parents whose focus is not on the child's wellbeing but is on the child meeting their emotional needs and who are prepared to act deceptively to achieve those ends.  In the latter case, therapy is probably ineffective, and a judgment needs to be made about the child's welfare assuming that the parent makes little or no change to the nature of their relationship with the child and their behaviour towards the child.

   In the case of primary over-protectiveness, a judgment needs to be made about the extent to which the person has insight into their over-protectiveness, the extent to which they will follow advice which seems contrary to their innate drive to over-protect, and whether the child’s welfare would be benefited by remaining with this person while attempts are made to change parenting behaviour, rather than placing the child in an entirely different parenting environment.

   I have indicated some concern as to whether the grandmother’s current account is disingenuous.  The detail of the material that she appears to have provided to the school is consistent with her having a strong belief in the presence of these conditions at that time, albeit two years ago, and my reading of the notes from the various specialists at the John Hunter Hospital, where she underwent numerous investigations, particularly towards the end of 2007, was that [the grandmother] did not present the history in a particularly ambivalent or qualified way.  On the face of it, this seems to be incompatible with her views at the moment and does make me concerned that disingenuineness is an issue.

   I would emphasise that the above discussion in no way goes to the issue of whether or not illness has actually been fabricated or induced in [the child].  That is a conclusion which can only be drawn from evidence provided by paediatricians and others who have provided direct assessment and care of [the child], including allied health professionals and teachers.”

2. I might add here that, of course, Dr W’s report was prepared at a time when he was unaware of the actual medical evidence that is now before me. Dr W has since been provided with a copy of that evidence.  In my view, it is important that Dr W says to the Court in his report that it is the obtaining of that material, which the Department of Community Services has been so conscientious in doing, which will allow the Court to make a finding in relation to whether or not the grandmother has simply been over protective or indeed disingenuous and manipulative.

3. Dr W says on page 33 of his report:

   “From a psychiatric diagnostic point of view, it is possible [the grandmother] has a Somatisation Disorder.  In addition, if it is the case that she has had highly enmeshed relationships with her daughter and granddaughter, if not other members of the family, this does represent a significant personality problem and raises the concern that if she does not have somebody in her immediate family to care for, she will seek out another source of gratification in this form.  At the moment she has her son [J] with her, which raises the question of whether there are aspects of his care which are not appropriate.”

4. In Dr W’s oral evidence in which he refers to the grandmother's motives and the possibility of any change to her parenting approach or personality in the future, he says that at assessment her reaction was passive about her role in the child's care and medical needs, but now that he has read the new material he believes the grandmother was being disingenuous. He says that the account that she gave him was not truthful and could be described as manipulative. He believes that, rather than being passive, she has been active in seeking out medical and education services.

5. In his oral evidence Dr W clarifies the term “somatisation disorder” and makes reference to what this might mean in terms of the contact the grandmother might have with the child in the future.  He says that if the grandmother’s time with the child is to be supervised, she could well “pull the wool over” the eyes of the professional supervisor.  He says that any professional supervisor would need to be informed about what has happened in the past.  He says that the grandmother would “pull the wool over” a non-professional supervisor “in a trice”.

6. Dr W emphasises that he cannot see how supervision of the grandmother’s time with the child could be done by anyone other than a highly trained and well informed professional. 

7. Commenting in his oral evidence on the grandmother's intention to return to Western Australia, and her telling a supervisor that she would not be seeing the child again, Dr W says that people like the grandmother are not really interested in a child's welfare, wanting themselves to be centre stage in a big medical drama; it is all about their own needs, it is all about them.  Dr W says that people like the grandmother can suddenly “drop” the child, having no empathy with the child’s loss and sadness.  Dr W finds it worrying that the grandmother is going to Western Australia to assist her other daughter S, who is pregnant, because the grandmother has a history of broad ranging obsessions with people in her care. The mother's account of her upbringing suggests to Dr W that the grandmother did it with her own children, all of whom, according to the grandmother, have chronic illnesses.  Dr W says that the grandmother's own medical history is highly dubious, and the grandmother’s assumption of care of others has been “a career” for the grandmother spanning 20 or 30 years and there is no sign of it abating.  Dr W says that the welfare authorities in all Australian jurisdictions need to be provided with information about the grandmother.

8. On all of the evidence before me, including that to which I have specifically referred, I am satisfied that the grandmother, who has been the primary carer of her eight-year-old granddaughter since the child's birth has been physically and emotionally abusive of the child. 

9. Dr W has stated in his report, the entirety of which I accept, that physical and emotional abuse has occurred if the Court is satisfied that medical evidence supports the Department of Community Services contention that the grandmother has deliberately, i.e. knowingly, persisted in treating the child as a sufferer of a number of medical conditions and developmental delays from which the child did not suffer.  “Treating” is meant in the wider sense, ie. deliberately causing the child to be wrongly seen by her friends, her family, her school, medical practitioners, herself and ultimately the Court as a sickly, slow (in the sense of intellectual functioning), child.

10. I am satisfied that the grandmother has done just that, as she did to her own daughter, who is the mother in these proceedings.  Had it not been for the intervention of professionals and the ensuing involvement of the Department of Community Services which resulted in a swift removal of the child from what I am satisfied was a damaging and indeed dangerous upbringing at the hands of the grandmother, the child would have suffered the same fate, or worse.

11. I am satisfied that the grandmother would have continued to grossly physically abuse the child by subjecting her to unnecessary medical procedures, including but not limited to, repeated pin prick tests for allergies which the grandmother knew had been discounted, and depriving the child of food and/or food groups which were nutritious and the deprivation of which in turn caused other physical difficulties for the child.

12. The evidence in relation to the grandmothers' emotional abuse of the child is equally compelling.  The child has been raised to view herself as different to other children and her grandmother has ensured that the child has been seen as different, not only by other children but by her school teachers and the school community.  To use just some examples, the grandmother has gone as far as sending the child to school in a wheelchair, the use of which has been demonstrated to be entirely unnecessary, as has the grandmother arranging for the child to be transported between home and school in a taxi rather than catching the school bus with the other children.  That course was opposed by the school in 2007 and on the evidence before me, was unnecessary.  The grandmother insisted that the child be provided with a bean bag to sit on at school rather than the chair used by other pupils.  The grandmother has seen to it that the child has been singled out and indeed isolated within her school community and even from her own mother.  Dr W’s evidence, to which I have already referred at length, has specifically addressed the damage already done to the child and the potential for future damage of such emotional abuse, and if further evidence of what lies ahead for the child if she were to remain within the grandmother's sphere of influence were needed, one only has to look at the mother herself.

13. The mother is a young woman who, I am satisfied, was similarly physically and emotionally abused by the grandmother.  It took the mother until adulthood and the putting of quite considerable actual distance (a move from New South Wales back to Perth), between herself and the grandmother to reach a point where she could wean herself off unnecessary medications and start to see herself as a whole person.

14. I am satisfied that the grandmother's psychological/psychiatric functioning and/or personality is such that a positive change in her care of the child in the future is unlikely.

15. I am satisfied, on the evidence of Dr W, that very close monitoring by an experienced professional is vital in respect to any time the child is to spend with the grandmother in the future.  Frankly, there is an arguable case that the child should not be further exposed to her grandmother at all in the future, but all parties before me submit that the child will benefit from seeing her grandmother and hitherto primary carer a few times a year with close scrutiny of their interaction.

16. I refer now, briefly, to the other matters.  It was said in submissions already referred to, that so compelling was the evidence before the Court in relation to the physical and emotional abuse of the child by the grandmother, being evidence which falls into the category of one of the paramount considerations in s.60CC(2), that it would turn out in this case that that would be the determinative factor, regardless of whether or not there were positive findings in favour of the grandmother pursuant to the additional factors in s 60CC.

17. It was submitted that so compelling is the evidence of abuse by the grandmother that even if the mother didn't measure up as a parenting proposal meriting support by the Department of Community Services and the Independent Children's Lawyer, then a long term foster care placement would be preferable for the child rather than any suggestion that she be returned to the grandmother's care.

18. However in this case it is fortuitous that there are a number of positive findings that can be made pursuant to the additional considerations in s 60CC in favour of the mother.

19. There is evidence before me in Dr W’s report that the child has a good relationship with her mother.  That relationship has had many challenges in the past in circumstances where the child has been denied by the grandmother an opportunity to develop a relationship with her mother but a good relationship has developed, such that the child has told Dr W that she would like to live with her mother.

20. In relation to the mother's capacity to care for the child and to meet each of her needs, there is evidence before me that the mother does have that capacity.  The mother has embarked, with the assistance of her husband, Mr Pratt, on a course to acquire the parenting skills denied her in circumstances where her own mother presented such a poor parenting role model.  The mother had the child with her in Western Australia for about a week at the end of 2008 and there is no suggestion that this was other than a beneficial experience for the child and an experience with which the mother not only coped adequately but in many areas excelled herself. As Dr W says, the mother is realistic about the challenges that lie ahead, particularly in circumstances where she is going to have another baby in April 2009 and she understands, quite realistically, that the child comes to her with a background of extremely poor parenting over the first eight years of her life. 

21. The mother has, of her own initiative, made contact with and arrangements for the involvement of an organisation in Western Australian which Dr W says is precisely the sort of organisation she needs to assist her.  That organisation does some home visits which means that the mother will be provided with some practical training and assistance as opposed to the purely theoretical.

22. As part of the residual damage from her own poor upbringing the mother has identified the need for her to have some personal counselling and she has already started with a psychologist in Western Australia and with whom it is intended that she continue.

23. I am satisfied that with the assistance of professionals, which may last for some time, the mother has demonstrated to this Court that she has the capacity at this time to meet the child’s needs and indeed the mother has the  potential to become an excellent parent.  She has demonstrated to me that her attitude to the responsibility of parenting is a commendable attitude in circumstances where she has persisted with her quest to remain involved in the child’s life and persisted in the face of opposition from a very strong and determined grandmother.  The mother’s persistence has not only paid off from her own point of view, but the Court now is reassured that this little girl is going to a home with a loving parent and step-parent who will provide her in the future with the upbringing of which she has been entirely deprived in the past.

I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Flohm

Associate: 

Date:  7 April 2009