DOHS v Ms B & Mr G 2008 VChC 1
A couple had 4 children, KB aged 7 years, TG aged 3 years and twins WB and JB aged 9 months. The mother had two older children who were on child protection orders and who lived with their grandmother. The father had two older children who had been removed from his care after violent incidents.
The children KB and TG were on orders placing them in state care. The mother was allowed structured communication through telephone calls that were monitored by staff who could terminate calls if the mother became aggressive or abusive, or if the mother discussed topics before the court with the children (communication structured, adult topics). The father had no access with the children KB and TG.
The judge heard evidence that the child KB spoke to adults about the following incidents: his father yelled at him, slammed doors, broke a window, punched a policeman, threw KB onto a couch, threw KB down stairs, threatened that a bad man would come after KB, put cake over KB’s face, poured sauce into KB’s hair and clothes, put a chair over KB, and held a knife to both KB and his mother (personality aggressive).
Other witnesses reported seeing the father pull the mother by the hair, and verbally abuse staff. The father had two convictions for assaulting his two older children (family violence).
The judge accepted the boy’s statements although the evidence was uncorroborated (evidence uncorroborated).
The judge found that the father displayed unpredictably violent, angry and aggressive behaviour towards those people whom he perceived did not treat him with adequate respect, or with whom he disagreed (family violence, personality domineering). The judge found that the father’s behaviour was not regular, consistent or predictable. The judge found that the father blamed others for his anger (attributions externalising). The judge found that the father intimidated people he considered were against him.
The judge noted increasing research that exposing very young children to persistent family violence or conflict between care-givers has a significant deleterious effect on the emotional and mental health development of the children.
The judge found that the mother had declined to separate permanently over a period of 8 years from her violent partner. The judge found that the father posed a current unacceptable risk of both physical and emotional harm to the children if he were to have unsupervised access with them.
The judge found that the only protective concern that prevented a reunification plan for the children with their mother was her ongoing relationship with the violent father.
The judge introduced a precondition before the mother could be reunified with her children (access conditional). The precondition was that the parents cease to live together as a couple and live apart. The judge ruled that if the precondition was met then the mother have increased access in preparation for reunification.
The child protection department called 30 witnesses in the case (experts number of). The trial lasted 15 days as counsel for parties’ cross-examined witnesses extensively on topics the judge considered to be minor.
The child protection department wanted to submit 19 historical reports although the writers were no longer available for cross-examination (expert historical reports).
The judge found that one expert who had impeccable professional qualifications was not a compelling witness as the judge could not understand the rationale presented to support an opinion (expert evidence unsatisfactory).
The judge found a second witness to be enigmatic as the witness expressed bold opinions but then retreated from these opinions under cross-examination.
A third witness was an associate professor at a university and was learned and highly qualified, and presented interesting information about research and literature. However the witness had not assessed interactions between the parents and children and was not privy to a great deal of factual information about the case. The witness was unable to assist the judge to assess the likelihood of future harm to the specific children in the case under circumstances that were being proposed.
The judge ruled that historical reports are inadmissible evidence unless the writer is available to be cross-examined. The judge noted that it is not uncommon for departmental reports to be written to achieve an outcome and for material that does not support that outcome to be omitted from departmental reports (objectivity).
A number of experts gave evidence about the attachment relationships between four children and their parents. No expert had assessed all members of the family.
One witness said that the test of attachment quality is based on observations of the behaviour of an infant on reunion with a parent after a separation. The witness said that children are able to form connections with a number of people and to have different qualities of attachment with different people (attachments multiple).
One witness said that when answering questions, parents should primarily be attuned to child’s communications not only to the parent’s own emotions (differentiate own/others emotions). This witness considered a mother to show attachment – egocentric as the mother commented about her own emotions, saying that the child makes her happy and keeps her going. The witness noted that the mother’s answers reflected anxiety and defensiveness under pressure, rather than responding reflectively. The judge expressed reservation about accepting evidence about egocentric attachment.
One witness expressed a view that allowing 2 hours of access twice per week to a biological parent can be disruptive for children aged 18-24 months old as children can become confused over who is their primary attachment figure or primary carer.
One witness expressed a view that good attachment with a parent during infancy forms a basis for other attachment relationship later in life. The witness noted that children in child-care are often absent from their parents for over 20 hours per week.
One witness linked frequency of contact with reunification plans when an infant has been separated from a parent, and proposed the following scale of contact. Contact for 4 days per week and over-night stays is suitable when reunification is planned. One supervised contact per week is used when assessors want to keep options open. Monthly contact is suitable when a parent is able to contribute to the emotional development of a child. Contact every three months is suitable to assist a child to develop its identity as a member of an extended family and to develop a sense they belong to a family. No contact is recommended if a parent is unable to contain their own behaviours that are toxic for children.
The judge expressed a view that the science about frequency of access and attachment was very inexact.
The judge ordered that a child spend time with its parents on a conditional access basis where the following conditions must be met:
- the parents must accept visits and cooperate with the Department’s monitoring (supervision by agency)
- parents must accept support services as agreed with the Department
- mother to attend counselling regarding domestic violence but not including relationship counselling, and to allow reports about attendance and progress to be provided to the Department (therapy for parent)
- the Department to pay for counselling it agrees to.