A v The Secretary, Family and Community Services (No 2)
[2016] NSWDC 13
•26 February 2016
District Court
New South Wales
Medium Neutral Citation: A v The Secretary, Family & Community Services (No 2) [2016] NSWDC 13 Hearing dates: 29 January 2016 Date of orders: 26 February 2016 Decision date: 26 February 2016 Jurisdiction: Civil Before: Judge Levy SC Decision: See paragraph [12] for orders.
Catchwords: CHILD CARE APPEAL – final orders Legislation Cited: Children and Young Persons (Care and Protection) Act 1998, s 76, s 79, s 105 Cases Cited: A v The Secretary, Family & Community Services [2015] NSWDC 307 Category: Consequential orders (other than Costs) Parties: A (Appellant maternal grandmother)
B (Second child)
C (First child)
Secretary, of Family & Community Services (First respondent)
Minister for Family & Community Services (Second Respondent)Representation: Counsel:
Solicitors:
Ms C Bennett, Solicitor (Appellant)
Ms S Nanlohy, Legal Aid NSW (The children)
Ms R Dart (First & second respondents)
Randall Legal (Appellant)
Ms S Nanlohy, Legal Aid NSW (The children)
Crown Solicitor (First & second respondents)
File Number(s): 2014/353026 Publication restriction: Non-publication orders made pursuant to s 105 of the Children and Young Persons (Care and Protection) Act 1998
Judgment
Background
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In this child care appeal, on 18 December 2015, findings and recommendations were recorded and published concerning the issues to be determined: A v The Secretary, Family & Community Services [2015] NSWDC 307. It now remains necessary to make final orders.
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The effect of the findings already published is that the care and parental responsibility for the care of the children, who have been given the litigation pseudonyms “B” and “C”, be re-allocated from the Minister, to the maternal grandmother of the children, “A”, until those children reached their respective majorities.
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At the time those findings were recorded, I indicated a view to the parties that because of longstanding prior restrictions on “A” having access to the children, limited to 1 hour per month under supervision, and given the nature of the medical and allied needs of the children for early intervention for global developmental delays, it seemed reasonable and in the paramount best interests of the children, that for a period of three years, the Minister should be allocated the responsibility for the medical, dental and allied needs of the children: s 79(2)(e) of the Children and Young Persons (Care and Protection) Act 1998.
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It was envisaged that the benefit of such an arrangement would be that in the initial period in which transfer of the children and their medical and allied records was to occur, “A” would have to achieve a significant degree of catching up with past events, and in the meantime, the continuity of care and attention to the medical and allied needs of the children should not be compromised.
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Those views were communicated to the parties so they could obtain instructions. On 29 January 2016, the matter was then relisted for further argument on that issue.
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At that time, I was informed that in the interim, in accordance with my findings, the care of the children had been successfully transferred to “A” on 11 January 2016. I was also informed that the children are thriving in the care of their grandmother.
Positions adopted by the parties
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On 29 January 2016, the legal representatives of “A” and both of the children communicated their acceptance of the suggestion for shared care with the Minister in the manner suggested in my reasons, as summarised at paragraphs [3] – [5] above.
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In contrast, on behalf of the Minister, it was argued that such an arrangement was not necessary, as the children had access to all necessary therapies. The former foster carers, who had taken an active part in the hearing of the appeal, no longer had a relevant legal interest, and therefore made no submissions, and took no further part in the proceedings.
Consideration and conclusion
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In the circumstances that have been fully described in the principal judgment, having regard to the best interests of the children, and as identified at paragraphs [4] – [5] above, I initially considered that there should be a period of three years of shared care in the manner suggested: A v The Secretary, Family & Community Services [2015] NSWDC 307, at [496] – [513]. Having heard submissions on those matters, that initial view has not changed. This was announced to the parties on 29 January 2016. This therefore required that on behalf of the Minister, the Secretary formulate an Amended Care Plan to reflect my decision.
Amended Care Plan
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The final version of the Amended Care Plan that reflected my published findings was received on 23 February 2016. That plan has now been agreed to by all interested parties. As a result, final orders may now be made.
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At the hearing on 29 January 2016, the parties were advised that when the Amended Care Plan and the agreed draft orders were received, in accordance with such an agreement, final orders would be made at a formal listing of the matter. The representatives of the parties were excused from attendance in the interests of avoiding additional unnecessary costs, on the understanding that my final orders would be published electronically in the present anonymised form, with copies of the formal orders to be sent to the parties by the Registrar. It is for those reasons that these orders are now published in anonymised form.
Orders
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I make the following orders:
The appeal is allowed;
The orders made in the Children’s Court at Lismore on 21 October 2014 are set aside;
That, pursuant to s 79(1)(f) Children and Young Persons (Care and Protection) Act 1998 (“the Care Act”) but subject to order (4), parental responsibility for the children “C” and “B” is allocated to the maternal grandmother “A” until each of the children turn 18 years of age;
That pursuant to s 79(1)(e) of the Care Act, parental responsibility for the children “C” and “B” in regards to medical, dental and allied health care needs is allocated jointly to the Minister for Family & Community Services and the maternal grandmother “A” for a period of 3 years;
That, pursuant to s 76(1) of the Care Act, the children “C” and “B” are placed under the supervision of the Secretary for Family and Community Services (“the Secretary”) for a period of 12 months from the date of final orders;
That, pursuant to s 76(4) of the Care Act, the Secretary is to file with the court, on a date 11 months from the date of the final orders, a report addressing the factors in section 76(4);
The exhibits are to be returned;
Liberty to apply on 7 days notice if further or other orders are required;
The Registrar is to provide a copy of the signed formal orders to the representatives of the parties, and a copy of the signed orders is to be retained in the court file.
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Decision last updated: 26 February 2016
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