Kids Out of Detention!!!
Children should not be in detention. Australia is in serious breach of the International Convention of the Rights of the Child with its mandatory detention policy, which inevitably leads to the detention of children.
In August 2003 a case was filed for the children of the Bakhtiyari family, undoubtedly the most written-about asylum seeker family in Australia. Below is a report of the case proceedings in the Adelaide Children's Court, where Justice Strickland stated that it is unlawful to keep the five children in detention, yet he did not order the government to free them.
As I write these words (August 19), the case is back before the Family Court, this time as an appeal before the full Family Court.
Image above: "At the Government's pleasure" - adapted from the original by firstname.lastname@example.org"
The Trial, or, It's a Bug's Life
Report on the Family Court Case regarding the lawfulness of children in immigration detention
By Karin Eliot
If you would like this 'no-copyright restrictions' text as a word document or plain text file please email: email@example.com
Day 3, day of judgment of the two Interim Applications to allow 5 sibling children to reside with a foster family, and, pending final determination of the lawfulness or otherwise of their detention, to be immediately released from immigration detention.
10.30am, Tuesday 5 August 2003 - Courtroom R on Level 5 of the Family Court in Adelaide is crowded again - Indigenous elder, refugee rights supporters, assorted journos, government spooks in ill-fitting suits and blue shirts, ACM guard crones in waterproof footie jackets and jeans (their usual regulation blue overalls would have been a bad look in court and could have been an unsettling counterpoint to some of DIMIA's evidence of "happy and carefree children"), the applicants' lawyers and their taut blonde fille minions, the DIMIA grey wo/men, burlyesque Australian Federal Police with shiny silver inverted pentagrams on their jackets, a girl crisp in school uniform, and the mother of the children whose immediate release is being sought in a hospital wheelchair, blue, complementing her head scarf.
The children are present by their absence, five small pockets of doomed middle-eastern anti-matter, five illegal non-citizens to the government and its hench honchos. Five children aged between six and fifteen who have been in immigration detention for 947 days.
All of us are here to witness or participate in the handing down of Justice Stephen Strickland's decision as to whether or not it is deemed (by the judge) to be in the best interests of five children that they be immediately released from the seemingly indefinite immigration detention they have been enduring since January 2001. Aboriginal artefacts and paintings decorate the otherwise generic pale green room. Quiet conversations, greetings and bodies criss-cross the space, a space of 'civilisation', far removed from Fortress Greyskull and 24/7 rocket range home prison where the children live as prisoners.
At 11.05am the proceedings start. The judge is unwigged and frocked up in a garment of Jacobean simplicity. DIMIA, pathologically tardy when it suits the beast, furnishes 2 affidavits - one by solicitor Katherine Bean attached to exhibits of the Case Management Plans by ACM officers of each of the five children, the other the 'expert opinion' of Helen Turner, a nurse employed at the detention centre who allegedly has day-to-day contact with the children. The lawyers for the applicants, their new 'Best Friends' in legalese, raise no objections to the new evidence.
Ms Karen Fitzgerald, Director of Child Protection Services attached to the Department of Paediatrics and Child Health, School of Medicine at Flinders University in South Australia is called as a witness, and swears an oath of honesty on the bible. A woman of a certain age with a diminutive stature who will maintain her professional calm and resoluteness throughout the ensuing the lengthy and tedious cross-examination by The Mumbler, DIMIA barrister, Charles Gunst QC.
Ms Fitzgerald, a psychologist, had read today's affidavits, describing them as observations not conversations of the children. She stated that it was difficult to comment on them, as
"what is not here is probably as important as what is here."
Observations can't occur without a context to interpret them. She herself, if she made such observations, would try to place them in a theoretical context to explain their meaning. Querying the nature of the records kept, Ms Fitzgerald described them as a series of comments about the children made by a number of professional individuals, reading more like a behaviour management plan.
The children, invisible in these court proceedings, become phantom bugs under an insidious microscope. One has the sense from today's evidence that their every move and mood is described, noted, detailed, commented upon, date-stamped, filed for future reference. These are kids who have no privacy, no rights to an unobserved life.
The applicants' barrister, David Haines QC, asks if there is anything in the documents that relates to an assessment of the children's health, and if these records would cause her to revise the opinions she had previously expressed to the Judge. Ms Fitzgerald answers "No". In general terms she says that the records are consistent with her own observations, even if she would use different language and would seek to interpret what she saw.
This lead into the cross-examination of witness Fitzgerald by the DIMIA barrister, Mr Gunst QC, a portly being doing the devil's work whom I only ever saw from behind, although I did have a good view of Martyn Kennedy, his legal munchkin, a twenty-something well-scrubbed man, engaged in some kind of intermittent whispering capacity. Mr Gunst asked, or perhaps stated, that irrespective of where the children are staying, they will require ongoing expert monitoring and assessment (more bug talk). Ms Fitzgerald responded that they needed ongoing therapeutic help.
Then Mr Gunst asked for clarification of Ms Fitzgerald's professional qualifications, blaming his wrong information on the Flinders website. (Interesting to note how DIMIA conducts its research). She explained that she is a psychologist with a BA and a Masters in Criminal Psychology from Flinders University.
Predictably biting at his own bait, Mr Gunst noted that she is not a medical practitioner nor psychiatrist nor a surgeon. She possesses no tertiary qualification such as a psychiatrist would have, nor a Diploma of Psychological Medicine. It is not part of her function neither to diagnose mental illness nor to prescribe medicine. She is not a registered nurse, nor a mental health nurse. She cannot do medical examinations, nor diagnose neuroses or psychoses. "You're a useless slag", he might as well have said, but anyway, Ms Fitzgerald did not appear fazed by his inferences, simply replying that she does have tertiary qualifications and that it is a bit more complicated than what he had said.
Now Mr Gunst (QC with impressive tertiary qualifications which would cost heaps of HECS today) became a tad existential. "Would you accept that psychiatry is the science of the medical treatment of diseases of the mind, and that psychology is the science of the study of the soul or the mind?"
Curious to hear the big man speaking of the soul in this most soul-less of contexts. Ms Fitzgerald (shaman) said that psychology is more multi-faceted in its diagnosis, and that in her opinion his description of the field does not cover the range of assessments and treatment of emotional and psychological disorders achieved by a range of therapeutic techniques and other devices covered by the province of the Association of Psychologists.
Mr Gunst continued by stating that the psychologist had not been engaged in treating the applicant children and that her role had been to interview the children and parents and to provide a series of reports, dated 18 September 2002, 21 July 2003, and 1 August 2003, and that these reports had been prepared in knowledge of extant or potential court proceedings.
His way of speaking at this point gives a slightly dirty edge to everything, unsurprising I suppose for a lawyer on the attack, desperate to dismantle a witness's professional credibility, anything to get the outcome DIMIA so desperately wants, keeping these children in detention.
And particularly *these* children, and most especially *two* of these children, the eldest two boys who had been audacious enough to have sought, and gained, illicit freedom for a few days around 27 June 2002, before being shafted back to detention by dodgy pseudo-reffo crew. Such impudence must be harshly punished by the State, every day, and in all ways, lest others dare to express their rights as human beings to liberty and ... the ultimate crime of sedition in the new millennium Pax Australis, their own childhoods.
Retreating from his opening ambit of casting doubt on the psychologist's professional ability to determine whether or not the children were at grave risk by continued detention, Mr Gunst opened his second line of attack, rhetorically querying if the role of an expert is to be impartial and objective and not to argue a particular point of view [ed: unless you are a government-appointed expert or senior public servant]. Ms Fitzgerald (qualified psychologist) answers that her role was to write a report with a view to developing a plan. QC then asks if she is aware that Australian legislation provides for mandatory detention for non-citizens [Ed: non-citizens = sub-humans] who don't have a visa, and that consequently people are held in detention.
He slides in a second question on this one's heels.
"Are you a supporter of mandatory detention of unlawful non-citizens?"
You can almost see Ms Fitzgerald suspended in the witch's chair above the icy black pond here.
"Recant, and your eternal life, if not your mortal body, shall be saved!"
"I could talk about what I know, about mandatory detention in other countries, what it's for."
QC then fires another three questions, basically the same.
"Are you a supporter of the method of mandatory detention used in this country? - Dealing with children who are unlawful non-citizens, are you against the idea of their mandatory detention?"
Ms Fitzgerald states that for children she believes mandatory detention is destructive. QC queries,
"That was a view you held before you prepared these reports?"
"It is my responsibility to conduct assessments with a view to acknowledgement of my own views... Every situation with children and parents presents itself as part of my views. I am fastidious in being impartial."
QC, barking quietly:
"Before you spoke to any child you had the predetermined view that their best interests would be being released from the detention that the Parliament of Australia has ordered?"
Ooo, the *Parliament*, such a proud history of doing the right thing for so many people in this country, especially Indigenous Australia. Was the barrister hinting at a treason trial? Should Ms Fitzgerald be alert, and mildly alarmed, for her own future, as well as that of the children?
Dropping his bone for the while, terrier Gunst turned his attention to the interview process, the series of conversations with the three older children, observations of the younger children, and interviews with their parents, which had formed the ground for the psychologist's three reports. Ms Fitzgerald explained that each interview took about 90 minutes (a sufficient amount of time according to her), and had taken place in the interview rooms in Woomera. Small segue into the first language of the interpreter, which according to the QC was Farsi, while the mother's language is Dari. Ms Fitzgerald speaks neither. (Ed: DIMIA implies incompetence but it was a red herring because the two languages are very similar, sharing an Indo-European linguistic root, but written with the Arabic script - for example, letters in Farsi from my Iranian sister in Woomera are easily translated for me by an Hazara man from Afghanistan).
Next we were taken on a journey in which DIMIA's lawyer set up a play to undermine the veracity of the mother's words (this is a DIMIA-accredited family of wilful liars remember). In this scene what a mother has to say in relation to the well-being of her children is accorded far less weight than the written notes in daily logbooks (Ed: children_in_detention = bugs) by paid Australian Correctional Management employees including detention officers. At the same time, and throughout these court proceedings, the government's lawyers have used evidence of the children's mental damage to suggest that the best place for the five is in detention where they can be continually monitored, assessed and treated (like bugs, or possibly, beetles).
"You asked Mrs X not only about herself but about her children? You've reported these comments because you accept them as true statements about the children?"
"I reported them because that's what she said."
"You noted that Mrs X talked about her second son who tried to hang himself. You accepted this. Putting aside the normal teenage boy difficulties in eating and sleeping. The twelve year old who tried to hang himself. The twelve and fourteen year old children stitched their lips. These are dramatic assertions describing the behaviour of very disturbed children."
Following an objection from the applicants' lawyer and a query from the judge the QC stated that it is
"a grave task to determine the best interests of these five children and that they were arguing that the best interest is not to be released from the Baxter Detention Centre."
Turning his attention back to the psychologist the lawyer asserted that Ms Fitzgerald had seen no evidence that any of the alleged events of self-harm and attempted suicide had indeed happened, and that the "comprehensive management plan" shows that no such events occurred. (As John Howard's ordinary Australians we of course have a high degree of faith in any documents produced by government). If these "most dramatic or florid episodes described to you...had never happened you would have to rethink your report." Ms Fitzgerald agrees.
The choice of the word "florid" was intrigued me, being a term used by psychiatrists to describe aspects of delusions or episodes experienced by people in extreme mental states such as psychosis. The language used by lawyers and judges produces curious resonances, and can be employed to strategically sow seeds of doubt, dissonance and disbelief.
Who was "florid" here - the 'bad mother' who has witnessed the deterioration in her children's well-being (bad because it is she herself who is causing her children's situation, by continuing to seek protection under international refugee conventions), the gullible psychologist who would believe such a mother, or the children themselves, illegal non-citizens who have already broken the law in Australia by escaping from immigration detention? Interestingly, one could equally apply the word "florid" to not only Mr Gunst (QC) but also to some of the other lawyers and AFP watchers in the courtroom, if one was contemplating their big rosy faces, which complemented their well-lunched and well-birthed girths.
Shifting slightly Mr Gunst complained that the witness had provided no evidence of any previous trauma to which the children had been subjected. Ms Fitzgerald said something about coming from another country. Let me digress here for a moment - the acoustics in Courtroom R are completely inadequate, and everyone in the gallery was leaning forward, straining to hear what was being said. There were microphones but what they were connected to wasn't clear, certainly not to a good set of speakers. Maybe they had blown their budget on the safe Aboriginal art. (No Rea or Gordon Hookey but! Contemporary Indigenous artists making historical and social critique would be way too radical in this context).
We reckon they could have given the coolamons to Mrs X to carry her new baby in, and invested in a decent sound system. Given the amount of utter shite uttered by mumbler extraordinaire Charles Gunst I am not surprised that he deliberately didn't want to deliver his lines in a clear voice because the resultant scoffing from the crowd might have demeaned his venerable presence. But this was a landmark case for refugee and human rights and it would have been good to hear every single word of evidence and cross-examination easily.
QC, in a retarded attempt at humour:
"You're not suggesting that arriving in Australia is a trauma?" (Lawyers just shouldn't try to crack jokes).
Ms Fitzgerald didn't laugh.
"My assumption is that they did not travel easily to this country."
QC, on Australia's most vilified:
"Mr X left for Australia without a word to his wife and children. Would this create trauma?"
Ms Fitzgerald: "Yes."
"Your report suggests that the impact of the children being in Woomera has been superimposed by previous trauma."
"My assumption is that seeking refugee status is going to involve trauma."
Now Mr Gunst moved onto an area which was of concern to the judge, and which highlights one of the matters the judge had indicated that he wanted sorted during this adjournment period when he handed down his judgement last Friday (1 August 2003).
Justice Strickland had said at that point
"Ms Fitzgerald had proceeded on the assumption that if the children were released on this interim application then that would be it. The kids are released into the Australian community and things would proceed on the basis that they wouldn't be returned to detention. Any issues for the children about detention or removal from Australia would be in the long distant past."
The judge was really waving one of his huge red flags last week when he expressed serious concern about the children's understanding of the possibility that they might be returned to detention, or forcibly deported. The applicants' lawyers were on two back feet today when both the judge and DIMIA sought answers to the children's wellbeing should they only experience freedom for a brief amount of time.
I guess it is the nature of the judicial beast to err on the side of caution (unless, in a complete about face from Hammurabi (the 'an eye for an eye' Babylonian guy appointed by Anu the Sublime about 1780 BC) it's a couple of weeks ago in the Supreme Court and you are sentencing a young guy from one of Adelaide's wealthiest suburbs who, unprovoked, shot a complete stranger in the face causing him to lose his eye, and you give him a $100 fine - but no surprise, money and family talk in this town). And Justice Strickland ain't going to bust any moves on behalf of those five, nearly six kids, and potentially ruin his career, unless he feels nice and safe with this thing called "evidence". And evidence isn't exactly the kids in court themselves because that would just be too real world, and everything that the agencies of Power do about asylum seekers in this country is underpinned by this choking doublespeak-speckled miasma of the unreal and the unthinkable. An Arab contribution that revolutionized world mathematics was the invention of the number zero by Muhammad Bin Ahmad in 967 AD, about 300 years before it was introduced to the West. In contemporary Australia the western state is intent on reclaiming the zero, reducing children to ciphers. Concerning Algebra, al-Khawarzmi is credited with the first treatise. Algebra is a branch of mathematics in which arithmetical operations and relationships are generalized by using alphabetic symbols to represent unknown numbers or members of specified sets of numbers. Despite the best efforts of the DIMIA greys selling their souls in this case, we all know that when they say "illegal non-citizen", we really know that they mean "child". And we know that their professed concern for the "best interests" of the child is as hollow as it sounds, unless if here you replace the 'child' in the equation with the term 'government'. Whilst you are trapped in the courtroom to think of the language used in this case as elements in a vast mathematical structure makes it just possible not to give in to your strong impulse to stand up and passionately denounce the guile and sleaze being played out before your eyes.
Anyway, back to Gunst, who did pay attention to the judge last week, and pounces on the psychologist, saying that she hadn't considered the effects on the children if they are repatriated (presumably to Pakistan, even though the family have claimed all along that they are from Afghanistan). Ms Fitzgerald says she hasn't been told that this was a possibility, and that's why she only discussed the possible effects in her third report, which was tendered as evidence last Friday. It's this very report that the Judge finds to be thin, but poomba DIMIA relishes the tasty advantage the report's leanness gives them.
Moving from the microscope to the dissecting table, Gunst polishes his scalpel. He claims that no attention had been given to existing family discord or pathology, and there was a need to know whether if a happy or a violent relationship had existed. Was Ms Fitzgerald aware that Mrs X had been assaulted by her husband recently, necessitating her transferral to detention facilities in Woomera? The psychologist hadn't heard this. Did Ms Fitzgerald enquire as to the reasons of Mrs X's transfer? No. Didn't she think it was important? Ms Fitzgerald answers that she had assumed that the move to Woomera was an arrangement negotiated by DIMIA.
Unlike her children, Mrs X is in the courtroom, and through her lawyer she gives instructions that her husband didn't hit her.
After the hearing, news circulates in Adelaide that Mrs X was angry at this new slander directed at her husband, describing him as "a loving husband" who had helped facilitate her transfer to Woomera with her three daughters in order that she could cook the kinds of food she needed as a pregnant mother.
Undeterred by Mrs X's denial (remember that this is the 'bad mother' whose words about her 'bad children' have already been ignored or discounted), the QC asked Ms Fitzgerald if she would need to revisit the conclusions in her reports if she found out there was a family history of domestic violence. The psychologist replies that it would have a bearing on therapeutic arrangements.
QC Gunst asserts that the children have said that they don't want to have contact with the parents at Baxter. Ms Fitzgerald responds that the children are sensitive to the detention centre environment. The stuffy courtroom was having a soporific effect on me at this point, and looking back over my notes, being made with an increasingly scratchy pen, I don't think much of interest was being said apart from the Mumbler mumbling something about the applicants' solicitor telling the psychologist what he wanted in the third report and Ms Fitzgerald preparing it accordingly. The mumbling was contagious at this point and I couldn't hear what she said in reply to what sounded like slander.
Donning his mantle of compassion DIMIA's partisan shapeshifter Mr Gunst QC turned his attention back to the invisibles, the five children, saying that the question of the children's release was not only about risk but also about wellbeing. As it turned out, the man of the frock fancied the cut of DIMIA's cloak, something I am still puzzling over, how any intelligent being could buy this fraud, unless perhaps they have been bought themselves.
"The release of the children is not entirely without risk to their emotional well-being. They are in Baxter or Woomera with their parents, people who speak the same language and have the same faith."
He went on:
"Releasing the children into an English-speaking community house which does not share the same faith poses a very great risk to their emotional well-being."
This is about kids who amongst them have shared 4,735 child days in detention, in a prison for asylum seekers. How do you ever recuperate 4,735 days of childhood?
What "therapeutic intervention" could ever begin to heal the great harm that has been inflicted upon them? Forget about the judge's old skool missionary labelling of these kids as "innocent victims", thus stripping them of any agency, these are young people who have been systematically psychologically tortured by the state, being robbed of their dignity, rights and childhood. Eventually who will be brought to justice for this immense crime? Will it be the grand architects of the Oceanic Solution to the global problem of persecution and displacement? Or will it be the Eichmanns, the loyal and unquestioning mules of the State, the DIMIA bureaucrats and ACM functionaries who carry out the illegal dirty work involved in keeping people in indefinite detention, a punitive example for other refugees who might otherwise seek to 'compromise the integrity' of our borders? Or will it simply be no-one?
Ms Fitzgerald countered the touching concern expressed by DIMIA's lawyer, saying that the experience of detention is the lens through which the children are dealing with the rest of the world.
"There is not a lot of restoring capacity when the children can't see past that impediment."
She continued by stating that there is a tendency for children in general to blame themselves for their predicament, internalising responsibility, which causes a significant psychological impact.
The most significant trauma is that the children think that they are responsible for being in detention.
Ms Fitzgerald emphasised,
"No amount of professional help administered within the detention centre environment will allay this, therefore continuing detention for these five children is the very worst scenario in terms of their wellbeing."
She declared that she had not been cavalier in making the recommendation of what could ameliorate their condition. She had been aware of negotiations [between the family via their lawyers presumably] with the Catholic agency Centacare to establish an alternative care arrangement for the children with two female carers in a suburban house in Dulwich. This is a pleasant suburb just east of the city, and is close to well-regarded public schools, the spacious parklands, and many migrant resource services based in the CBD.
Mr Gunst returned to his interrogation about schooling, supervision of homework, what bedtimes the children would have, and so on. This hollow concern by the government's representative was made all the more repugnant in light of the knowledge that the children in question had received no such attention following incidents of self-harm, severe emotional distress, and a suicide attempt.
The QC then moved to the issue of some of the children's ambivalence about a possible separation from their parents. The psychologist acknowledged their ambivalence declaring that she would expect them to be, and that this situation could be dealt with.
Mr Gunst shot his final gob-stopping arrow at the judge and courtroom audience. In relation to the Management Care Plans that had only been tendered as evidence this morning he opined,
"It is easy for children to present as flat and depressed, but when we look at these observations we see "happy carefree children."
Stunned at this most cynical of statements, I took advantage of the lunchtime adjournment to go home and breathe some fresh air for an hour.
DIMIA kicked off after lunch by attempting to lodge two new pieces of evidence, the Management Care Plans of the mother and father of the five children, in order to
"refute evidence by the applicants that the mental health of the children related to their detention." ('blame the parents' game.)
The lawyers for the applicants objected, saying that it would extend the hearing by another few days, and the judge upheld their objection.
Proceeding in the cross-examination of psychologist Ms Fitzgerald, the DIMIA snow jobber pulled out comments from the individual management plans on each little bug, sorry, each child, creating a joyful fantasy world of magic faraway trees and famous five adventures. This implausible regurgitation of behavioural observations was for me the nadir of the three days of the Interim Hearing.
We are told that Child A, the eldest, has a record of breaches of security, assaults and poor behaviour. At the same time he is a 'capable student', 'displays a 'keenness to learn', 'increasingly approachable', a 'polite, bright student'; all traits which DIMIA proposes are inconsistent with 'flat, depressed behaviour'. The psychologist responds that these observations are not surprising, as school can be a place where children present like this.
[Ed: Remember that the children haven't been going to a real school with a real curriculum for the past 30 months, but had been attending classes inside the detention centre. In 2002 I attended the Human Rights and Equal Opportunity Commission's (HREOC) public hearings in Adelaide on Children In Immigration Detention, which was a gut-wrenching education as to the daily realities experienced by kids inside. Amongst the many professionals who testified were teachers who had been sub-contracted by Australasian Correctional Management to run very basic classes in English and maths for children, without adequate curricular teaching aids, books or materials. Teachers, who were only offered 6 week contracts at Woomera lest they form meaningful relationships with their students, had been required to wear the regulation ACM blue overalls, and discouraged to act in a natural, warm manner, thus creating further barriers in gaining the trust of their pupils].
Mr Gunst continued with his fable of Child A, mentioning soccer and a trip to the cinema, literally saying (like the ending of a primary school composition exercise on My Trip to the Beach) "a good time was had by all".
Ms Fitzgerald, heroically diplomatic throughout this farrago, simply said to the judge that it was difficult for her to comment on a collection of disconnected observations, case notes that were often unsigned, offering no clue as to their authors, their expertise, or the context in which they were made. She stated,
"Depressed children don't necessarily always present in the same way. A is passionate about learning. He has been in detention for some time. He's learnt how to respond, in an institution. These are things he adores."
It was as if a fresh breeze had swirled through the rarefied and racist air of Courtroom R. Someone daring to speak of the inner life of one of the children, alluding to passion, resilience, courage, countering the empty tales of an idyllic holiday camp where every smile or tear is coolly scrutinized and recorded for others to read and use for whatever purposes, including cover-ups of systemic neglect, cruelty and abuse.
Of the second eldest child DIMIA claimed that he is "pushing boundaries in terms of asserting independence." The psychologist reminded that because
"the children are living in a restricted and impoverished environment, to extrapolate from normal children is risky."
This was a shining pointer to the deep flaw in the Immigration Department's case, the fiction that these children, or "illegal non-citizens" as they are like to label them, are living in normal circumstances. What are some barbed wire, electrified fences, bigoted guards and the indefiniteness of imprisonment between friends? We can almost hear the echo of ex-old school conservative Prime Minister and now refugee advocate and man-of-social-conscience Malcolm Fraser with his "Life wasn't meant to be easy" retort in 1976 to an Opposition member's comment about how hard life was becoming for the nation's poor.
The government fablist continued by itemising bedrooms [as opposed to sleeping in the dirt?], pool excursions and spiritual needs being met, and then asking, "What's impoverished about this?"
Ms Fitzgerald said that she had worked for fifteen years in child protection and had seen many situations of poverty.
"It was still a shock for me to visit Woomera and see the conditions. When I saw Baxter Detention Centre again I was shocked. If you look at these children out of detention you would expect to see the family and community providing.... The children would move around the neighbourhood and home without going through security. All meals wouldn't necessarily be at a set time. Think about a normal environment and look at how the children live; not even in a minimal way does detention come close. We are talking about psychological safety, where children grow up with parents in charge of their lives, not an institution."
Of course the DIMIA crew couldn't take up this challenge to prove that detention is a normal and non-punitive non-damaging environment for children, so instead they returned to their romper-stompering of the witness.
"You came to your task with a predetermined view that no children should be in detention."
Ms Fitzgerald disagreed, saying that assessment involves a complex mix of a number of aspects of a child's life. Like a stuck record, Mr Gunst QC retorted,
"Gym, gardening [Ed: gardening, in Woomera Detention Centre, where the kids spent at least 2 years?], soccer, basketball - you don't seriously call that impoverished?"
Ms Fitzgerald replied,
"The notes capture moments of activity. Children have a psychological life as well."
She continued, saying that the case management notes were not diametrically opposed to what she had reported but formed part of a bigger picture.
Mr Gunst contended,
"These observations are of a happy boy having fun."
The Dissembler QC deserved a barrow of festering fruit and rancid fish heads dumped upon his head right now. The requirements of the protocols of 'justice' to keep mute throughout this sorry farce contributed to many of the witnesses reportedly feeling physically sick at the end of the proceedings.
Mr Gunst moved on the Child C, the eldest of the family's three daughters. Choosing observations from the ACM notes which generated a spooky Lucien Freud superrealist painting of
"a well-behaved young girl", "generally happy, polite, cheerful", "doing well at school."
The psychologist stated that,
"this is a child who internalises her feelings. She is overly accommodating. I would be concerned. This list appears to describe a child who is compliant. I would ask questions about what that compliance means."
DIMIA's representative, eschewing any such ideas of human complexity (for we are not talking of humans here, but of bugs, or of 'illegals') said that the notes show they are coping well, and are happy and well looked after, an assertion with which the psychologist disagreed.
Not having any new "evidence" to support the DIMIA dogma that children are not at risk of severe emotional harm through their continued detention, Mr Gunst dredged up his pre-lunch shock and awe tactic, designed to intimidate a cautious and allegedly (Adelaide pre-trial dinner party with the judge gossip) reluctant judge into capitulating to the government line.
Let's just bomb them into submission with our pretty daisy-cutters!
Mr Gunst asked reprovingly,
"...if the children are taken out of detention, put into a new school, then after one day, or a month, are uprooted again and taken back to immigration detention, isn't there a very grave risk to their mental well-being?"
Look at the language carefully. DIMIA, who cares so much about these children, implicitly threatens to do whatever it takes to force them back behind bars, and within 24 hours if possible. Is there any doubt left that these children are being kept as political prisoners of the State?
Ms Fitzgerald, the same position as I did last Friday on my reasons for judgment, regarding the preferred environment because of the deleterious effects of detention on children."
The judge talked about the psychological health, the context re lack of evidence, the conditions in Baxter and Woomera, the arrangements which have been put in place if the children are released, and the issue of the children's possible separation from their parents, saying that he now has more information.
"Because of the cross-examination I can't simply say I take Ms Fitzgerald's report at face value. There is still not sufficient information to make a definitive decision."
I guess at this point we all knew that the judge had no intention of releasing the kids. I experienced a growing bleak sensation that absolutely nothing was going to change for the better for the children, and I was stunned that DIMIA's utterly lame arguments had succeeded in persuading the judge to keep the five kids in detention.
At some point during the judgment Mrs X was wheeled out of the courtroom, apparently inconsolable. Before Mrs X left a friend of the family approached her to kiss her goodbye and you should have seen the ACM harpies swoop in to try to prevent this dangerous human contact. Without actually decking Mrs X's friend, which wouldn't have looked that flash, they did their best to form a protective shield, but fortunately tenderness outwitted the harridans and a kiss slipped through to its destination, the cheek of a pregnant mother, devastated because the judge has ruled that her five children will continue to be incarcerated.
Justice Strickland droned on, perhaps impervious to the oppressive atmosphere that had descended on the plebs' side of the courtroom.
"The cross-examination raised concerns about the soundness and justification of Ms Fitzgerald's opinion."
He then said that he wasn't convinced by DIMIA's argument that she held a pre-concerned notion about mandatory detention.
"However Ms Fitzgerald has accepted what the mother has said about her children and this has formed the basis of her conclusions."
The judge said that he doubted if the boy had attempted to hang himself, and had sewn his lips together, whilst acknowledging that the written report by FAYS on
"the most florid example of self-harm"
had added to the psychologist's acceptance of the mother's words. Justice Strickland said that in regards to previous trauma experienced by the children, Ms Fitzgerald had made various assumptions regarding their arrival in Australia that had not been backed up.
He appeared to be indicating slackness on her part here, but perhaps her reluctance to delve into the family's past was deliberate. When I attended HREOC's public hearings on kids in detention in Adelaide last July a number of witnesses from the health professions had made the point that people seeking asylum because of political persecution have come from highly traumatic situations. Each time people are asked to describe the circumstances that led them to becoming refugees (and these times are numerous in the immigration process in Australia), they can become traumatised again, as to re-tell a trauma is to re-live that trauma.
The judge continued, saying he wasn't satisfied about the children's knowledge of their impending removal to Pakistan. He raised the issue of "pre-existing family violence", saying that there was no information [in the psychologist's report?], and asking whether the children's psychological health be attributed to this violence? [So the judge had apparently accepted DIMIA's claim that Mr X had beaten Mrs X, even though in court today Mrs X had said that this was not true, another example of the mother's words being given no credibility by the judge]. He was also displeased that Ms Fitzgerald hadn't spoken with the children themselves before preparing her third report.
Justice Strickland summarised the psychologist's position - the children blamed themselves for their predicament. Detention has impacted on how they view themselves, their parents and the world. Their mental health cannot be addressed whilst the children remain in continuing detention. Ms Fitzgerald has conceded that she has insufficient information regarding the proposed arrangements should the children be released to properly weigh up the risks. He then parroted DIMIA's professed concerns about Centacare's fostering arrangements, asking who would accompany the children to the mosque and school, how would their health and Medicare needs be met, and so on?
Like DIMIA's spotted fawns earlier, he was painting a bizarre picture of five little ragamuffins and truants, abandoned by their foster carers, and presumably left to eat grass and twigs by the side of the road.
He continued, saying that there was no evidence regarding the children's views, wishes and perceptions regarding a re-detention which would result from a possible outcome of the Final Hearing or their impending removal from Australia, as Ms Fitzgerald hadn't raised these matters directly with the children. He pointed out the inconsistencies between the mother's account of her children's wellbeing and the Individual Management Plans, and refuted the inference by the applicants' lawyers that observations written by ACM employees could be self-serving.
The judge declared that he couldn't determine in an Interim Hearing the facilities at Baxter. He said that the risks that such an exercise [in releasing the children] would entail could be ameliorated somehow with the involvement of the parents, carers and therapists. He wanted more details on the proposed therapeutic intervention, and reiterated that Ms Fitzgerald hadn't addressed the concerns he raised in last Friday's judgment.
"These children are vulnerable. They will be separated from their parents in a strange environment. The family are being separated in this proposal."
This seems to suggest that detention itself is an un-strange environment, in which the children are not vulnerable. How dangerous is it for us as a society to normalise the material and human architectures of detention to the point where it becomes the favoured environment, on the basis that it is a known thing, whereas a life lived in freedom always involves choice and uncertainty and their consequences?
The man of ultra caution said that he was even more concerned now where the best interests of these children lie. Insulting the children's parents and the family's legal team, Justice Strickland complained that there had been a
"headlong rush to the interim proceedings. Not enough thought has been given to the children."
His final words were:
"On the evidence I have now, I am not satisfied that it is in the best interests of the children to release them. These children remain the innocent victims in this whole scenario. I dismiss the application."