DOHS v Mr D & Ms W 2009 VChC 1

The case involved separated parents with three children: LD aged 5yr 9mo, WDW aged 2yr 9mon and KD aged 1yr 6months.  The parents separated and lived for a period in different states, with the father visiting the children every 4-6 weeks and remaining for 2-7 days.  Child protection orders were in place for the mother that referred to her mental health, use of cannabis, domestic violence and environmental neglect.

The trial judge heard evidence from 12 witnesses.

The mother had experienced mental health issues for many years, commencing from an assault 12 years before.  The mother showed symptoms of PTSD, depression, anxiety and histrionic personality traits (personality emotionally volatile).  The mother had been hospitalised after suicidal ideation that had not involved her children, and had been case managed by a mental health team.  When suicidal the mother said that she was unable to cope as she did not have the energy to fight for her children, and spoke about her children being cared for by other people including by her sister. The mother used cannabis daily to manage her anxiety.

A hearing was precipitated by a series of incidents.  The mother was referred to mental health services and her sister moved into her home to help to care for the children.  The father traveled from his inter-state home after learning that the mother was struggling, and found the mother agitated and shaking, with the house being very untidy.  The couple argued and the father removed the children to the house of a relative.  After two weeks the mother sought an exparte order from the Federal Magistrate’s Court for the children to be returned to her care, saying that the father had been controlling.  The father did not attend the hearing, and orders were issued to return the children to live with the mother with interim custody being granted to her sister, with no arrangement made for the father to contact his children.  The mother did not mention to court either the involvement of the child protection department or her involvement with mental health services.

Witnesses reported that the mother had been unable to cope with caring for her children, would sleep during the day for several days, shut herself into her bedroom and become angry if the children disturbed her, and not cooperate with basic positive routines established by her sister.  The child protection department assessed the father’s parenting capacity and found no reason for concern.  The department organised a meeting to plan for the children but did not invite the father who had offered to take care of his children.  The department arranged for access by the father with his children to be supervised, although no concerns had been raised about the father’s parenting.

Evidence was presented that the mother’s parenting skills had not improved significantly despite two years of support from agencies (agency support).  The mother informed people that she would not change and her children would have to live with her problems, as she had lived with the problems of her own mother (capacity to change).   The mother applied to change the worker assigned to help her as the worker made her feel more anxious.

The judge found that the mother was egocentric and was very focused on her own problems and needs (personality selfcentred), did not prioritise the needs of the children, and was not child-focused (parenting style self centred).

The judge acknowledged that, if there are no current child protection concerns, then disputes between family members should be transferred to the Federal Circuit Court.

The judge found no current child protection concerns, and issued a 12 month supervision order for the three children, placing the children into the full-time care of their father.  Arrangements were made for the mother to have access to the children.