An Adoptive Father v Minister for Family and Community Services (No. 2)

[2019] NSWSC 1305

Supreme Court

New South Wales

Medium Neutral Citation:

An Adoptive Father v Minister for Family and Community Services (No. 2) [2019] NSWSC 1305

Hearing dates:

23 September 2019

Date of orders:

30 September 2019

Decision date:

30 September 2019

Jurisdiction:

Equity

Before:

Slattery J

Decision:

No basis for the Court to direct in this case that a new care plan and a new permanency plan be filed. The plaintiff’s summons is dismissed. Issues of costs reserved. Parties to exchange written submissions on issue of costs.

Catchwords:

CHILDREN AND YOUNG PERSONS – appeal to the Supreme Court under the Children (Care and Protection) Act 1998 (“the Care Act”), s 91 against an order of the Children’s Court allocating parental responsibility of two children to the Minister, the first defendant, under Care Act, s 79 – the two children were removed from the care of their father, the plaintiff, who had adopted them in an overseas country – the removal of the children from the plaintiff took place under authority conferred by the Care Act – children under the care of the Minster – grounds for removal were the plaintiff’s violence and alleged sexual abuse towards them – plaintiff admits a non-sexual assault on one child and is indicted for trial for an alleged sexual assault on the other child – the Presidential Children’s Court proceedings confirmed the removal of the two children and ordered that they be kept under the care and control of the Minister until the age of eighteen – the plaintiff brings an appeal from the President of the Children’s Court to this Court – plaintiff’s appeal does not challenge the finding of the Children’s Court allocating parental responsibility of two children to the Minister – plaintiff confines his appeal to grounds that an early foster carer of the children (“the first carer”) was unsuitable for the future care of the children and that the children’s permanency planning is inadequate in part because it does not exclude the risk that the children may have future contact with the first foster carer – the defendants have since replaced the first carer with new carers (“the second carers”) – the plaintiff does not challenge the continuation of the children’s care by the second carers – whether the plaintiff’s appeal is competent – whether permanency planning in respect of the children has been addressed – whether the Court should direct that a new care plan and a new permanency plan be filed – whether the plaintiff’s appeal should be dismissed.

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998, ss 78, 78(2A), 79(1)(b), 82, 83(7), 83(7A) 91
Children's Court Act 1987, s 22A
Children’s Court Regulation 2014, r 5(1)

Cases Cited:

An Adoptive Father v Minister for Family and Community Services [2019] NSWSC 878
Bell-Collins Children v Secretary, Department of Family and Community Services [2015] NSWSC 701
Briginshaw v Briginshaw (1938) 60 CLR 336
Director-General of Department of Community Services; Re Sophie [2008] NSWCA 250
George v The Children’s Court of New South Wales (2003) 59 NSWLR 232
Gianoutsos v Glykis (2006) 65 NSWLR 539
Re Campbell [2011] NSWSC 761
Re Josie (2004) 32 Fam LR 64

Category:

Principal judgment

Parties:

Plaintiff: not published

  First Defendant: Minister for Family and Community Services
Second Defendant: The Secretary of NSW Department of Family and Community Services

Representation:

Counsel:

 

Plaintiff: Self represented

 

First and Second Defendants: M. Anderson

 

Solicitors:

  Plaintiff: Self represented
First and Second Defendants: Karen Smith, Crown Solicitors Office
Independent Children’s Lawyer: W. Mallos

File Number(s):

2019/2417

Publication restriction:

No

Judgment

1. This is the Court’s second judgment in these proceedings. The Court’s first judgment dealt with a question of whether the plaintiff should be given access to materials sought on a pre-hearing Notice to Produce issued to the defendants: An Adoptive Father v Minister for Family and Community Services [2019] NSWSC 878. For the reasons which appear from the first judgment, access to those materials was denied.

2. The first judgment sets out much of the factual and procedural history of the matter. This judgment and the first judgment should be read together. Non-publication orders have been made with respect to the proceedings. Like the first judgment, this judgment is written in a way that does not disclose directly or indirectly the identity of the plaintiff or the children. Events, matters and persons are referred to in both judgments in the same way.

3. The plaintiff, the adoptive father of two young children, moves on an Amended Summons brought under the Children and Young Persons (Care and Protection) Act 1998 (the “Care Act”), s 91 dated 4 February 2019. That statutory provision allows a party to Children’s Court proceedings, who is dissatisfied with an order of the Children's Court, to appeal to the District Court of New South Wales against the order: Care Act, s 91(1).

4. In this case, the order under appeal was made by the President of the Children’s Court, his Honour Judge Johnstone, a Judge of the District Court. By reason of the Children’s Court Act 1987, s 22A and the Children’s Court Regulation 2014, r 5 an appeal from a “Presidential Children’s Court” must properly be brought to the Supreme Court, not to the District Court: Re Campbell [2011] NSWSC 761, (at [4]). This appeal is a rehearing of the matter with fresh evidence, in which the Supreme Court exercises the power of the Children’s Court. The decision of this Court is taken to be a decision of the Children’s Court.

5. The plaintiff is dissatisfied with an order of the President made on 19 November 2018. As the first judgment explains, the 19 November 2018 order allocates parental responsibility of the two children to the Minister until they reach the age of 18 years pursuant to Care Act, s 79(1)(b).

6. The President also ordered on 19 November 2018, pursuant to Care Act, s 82 that the Secretary of the Department of Youth and Community Services (“the Secretary” or “FACS”), the second defendant, provide two reports to the Children's Court: one on or before 19 April 2019, and the second report on or before 19 October 2019, concerning “the suitability of the arrangements for the care and protection" of the two children. The order stated that these orders were "not confined to… permanency planning including arrangements for their long-term care" and various other matters, including contact with extended family members, their medical educational and counselling reports and "any other matters relevant to their welfare and progress".

7. The plaintiff's Amended Summons, upon which he moves, claims the following relief:

(1)   The Court find that permanency planning has not been adequately and appropriately addressed.

(2)   The Court direct that a new care plan and permanency plan be filed appropriately and adequately addressing permanency planning.

(3)   Such further and other order this honourable Court deems fit.

8. Both parties adduced evidence in relation to the Amended Summons for this appeal, which was heard on Monday, 23 September 2019. The plaintiff, the father, appeared for himself. Mr M. Anderson of counsel, instructed by the Crown Solicitor, appeared for the defendants. Mr W. Mallos appeared for the Independent Children's Lawyer (“ICL”).

9. Some relevant procedural and evidentiary principles for an appeal such as this, under Care Act, s 91, may be shortly stated. On such an appeal, the District Court, and this Court where applicable, have all the functions and discretions of the Children’s Court under Chapter 6 of the Care Act for the purposes of hearing and disposing of the appeal: Care Act, s 91(4).

10. Care and protection proceedings are not to be conducted in an adversarial manner, should be “conducted with as little formality and legal technicality and form as the circumstances of the case permit”, and the Children’s Court is not bound by the rules of evidence unless the Court determines they are to apply: Care Act, s 93. As the plaintiff is not legally represented in these proceedings, these principles assume greater importance.

11. The relevant standard of proof is on the balance of probabilities: Care Act, s 93(4). But the High Court’s decision in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] ALR 334; [1938] HCA 34 is relevant in determining whether the burden of proof on the balance of probabilities has been achieved on some issues: Director-General of Department of Community Services; Re Sophie [2008] NSWCA 250 (“Re Sophie”).

12. The issues for this appeal and the parties’ submissions in relation to them may be shortly stated, after an outline of some relevant background.

Background to the Issues on Appeal

13. The first judgment gives a preliminary outline of the sequence of the main events in the proceedings. Some elaboration of those matters is required for this judgment.

14. In January 2018, the second defendant, the Secretary, made an application under Care Act, s 61 for a Care Order in respect of both children, relying upon Care Act, s 71(1)(c),(d) and (e) alleging: that the children had been or were likely to be sexually abused (s 71(1)(c)); that the children's basic physical psychological or educational needs were not being met by their parents or primary caregivers (s 71(1)(d)); and that the children were suffering or likely to suffer serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which they were living (s 71(1)(e)).

15. The proceedings were commenced as a result of a risk of harm report received earlier in January 2019, alleging in part that the younger child showed evidence of physical injuries.

16. In February 2018, when the children were with the first carer, FACS received a further risk of significant harm report (under Care Act, ss 23 and 24) that the plaintiff had allegedly perpetrated acts of sexual harm towards the older child. The plaintiff’s contact with the children was suspended from that time. The plaintiff has always vigorously denied that he has been involved in any sexual misconduct towards either of the children. He says that to the extent that the older child has spoken of witnessing sexual activity by adults that the older child may be recalling incidents before that child was adopted, involving the child’s biological parents in the overseas country where they were born. Alternatively, he says the person to whom to older child allegedly made disclosures of sexual activity with adults, including the plaintiff, that those ideas were implanted in the child by the first carer.

17. In March 2018, the plaintiff was charged with assault occasioning actual bodily harm to the younger child. In April 2018, the plaintiff consented to an apprehended domestic violence order preventing contact with the children by any means for a period of 5 years. On 11 April 2018, the plaintiff pleaded guilty to the charge of assault occasioning actual bodily harm against the younger child, for which he was convicted and sentenced to a term of 18 months imprisonment. This was subsequently reduced on appeal to an intensive corrections order with community service.

18. During the November 2018 Children’s Court hearing, the plaintiff conceded that there was no realistic possibility of restoration of the children to him. He has not changed that position since then. The same month, the plaintiff was arrested and charged with two counts of sexual intercourse with a child under the age of 10 and two counts of indecent assault of a person under the age of 16, both sets of changes being in respect of the older child. These criminal proceedings are listed for trial in October this year.

19. The plaintiff accepted by the time of the November 2018 Children’s Court decision that, by reason of the combination of an outstanding Apprehended Violence Order (which had effect for 5 years) and the bail conditions for the unresolved charges in the forthcoming criminal trial, he could not be in contact with either of the children for some years. Although he denies the criminal charges against him, he conceded in those circumstances that there was no realistic possibility of the restoration of the children to his care. As the AVO is still effective for some years, and the criminal trial has not taken place, he took the same position in this appeal.

20. Thus, the only issue ultimately remaining before the President as to the children’s future was whether or not the children would stay with their then current carer (who in November 2018 was still their first carer), or whether they would be placed with an alternative carer. At the time of the decision, FACS supported the first carer as the appropriate person to continue to have the long term care of the children.

21. In his November 2018 decision, the President found upon the basis of the plaintiff’s concessions that there was no realistic possibility of restoration of the children to him whilst the criminal proceedings were outstanding against him.

The Appeal Prayers for Relief and Some Relevant Principles

22. The President also found that: the plaintiff’s allegations of the unsuitability of the first carer were unsustainable; and permanency planning for the children had been appropriately and adequately addressed.

23. The plaintiff’s prayers for relief in the Amended Summons are related to these two issues. The first prayer alleges that permanency planning has not been adequately and appropriately addressed. The second prayer for relief seeks direction from the Court that a new care plan and permanency plan be filed "appropriately and adequately addressing permanency planning", upon the assumption that the first prayer for relief is made out. The thrust of the second prayer for relief is that the plaintiff wanted a new care plan and permanency plan that would exclude the possibility of the first carer having future contact with either child. Although expressed as prayers for relief, these claims were also treated at the hearing as being in the nature of grounds of appeal.

24. Before analysis of the parties’ arguments on these issues some exposition of the relevant provisions of the Care Act relating to care plans and permanency planning under the Care Act is necessary. The appropriate and adequate addressing of permanency planning for a child is an essential pre-requisite to the Children's Court making a final Care Order. Care Act, s 83(7) provides as follows:

“(7)   The Children’s Court must not make a final care order unless it expressly finds:

(a)   that permanency planning for the child or young person has been appropriately and adequately addressed, and

(b)   that prior to approving a permanency plan involving restoration there is a realistic possibility of restoration within a reasonable period, having regard to:

(i)   the circumstances of the child or young person, and

(ii)   the evidence, if any, that the child or young person’s parents are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care.”

25. The permanency planning referred to in Care Act, s 83(7) and which is used throughout the Care Act holds to a central aim of providing the child or young person with a "stable placement that offers long-term security". This central idea is explained in Care Act, s 78A, as follows:

“(1)   For the purposes of this Act, permanency planning means the making of a plan that aims to provide a child or young person with a stable placement that offers long-term security and that:

(a)   has regard, in particular, to the principles set out in section 9 (2) (e) and (g), and

(b)   meets the needs of the child or young person, and

(c)   avoids the instability and uncertainty arising through a succession of different placements or temporary care arrangements.

(2)   Permanency planning recognises that long-term security will be assisted by a permanent placement.

(2A)   A permanency plan need not provide details as to the exact placement in the long-term of the child or young person concerned but must be sufficiently clear and particularised so as to provide the Children’s Court with a reasonably clear picture as to the way in which the child’s or young person’s needs, welfare and well-being will be met in the foreseeable future.”

26. Permanency planning is an important integrated aspect of the requirements placed upon the Secretary and Director-General of FACS to present care plans to the Children's Court before final orders are made. The relevant relationship is set out in Care Act, s 78(1),(2),(3),(4), which provide as follows:

“(1)   If the Secretary applies to the Children’s Court for an order, not being an emergency protection order, for the removal of a child or young person from the care of his or her parents, the Secretary must present a care plan to the Children’s Court before final orders are made.

(2)   The care plan must make provision for the following:

(a)   the allocation of parental responsibility between the Minister and the parents of the child or young person for the duration of any period for which the child or young person is removed from the care of his or her parents,

(b)   the kind of placement proposed to be sought for the child or young person, including:

(i)   how it relates in general terms to permanency planning for the child or young person, and

(ii)   any interim arrangements that are proposed for the child or young person pending permanent placement and the timetable proposed for achieving a permanent placement,

(c)   the arrangements for contact between the child or young person and his or her parents, relatives, friends and other persons connected with the child or young person,

(d)   the agency designated to supervise the placement in out-of-home care,

(e)   the services that need to be provided to the child or young person.

(3)   The care plan is to be made as far as possible with the agreement of the parents of the child or young person concerned.

(4)   The care plan is only enforceable to the extent to which its provisions are embodied in or approved by orders of the Children’s Court.”

27. The Children’s Court in turn has a mandatory duty to consider the care plan presented to it by the Director-General before making a final order for the allocation of parental responsibility of a child.

28. In this case, care plans for both children were filed in June 2018. The Children's Court had those care plans before it when it made the final orders in November 2018. Each of the care plans on their face claimed that they addressed permanency planning. The President was satisfied that they did. The plaintiff takes issue in these proceedings whether these care plans now comply with the Care Act, s 83(7), in light of the events which have occurred.

29. The President of the Children’s Court also had before him an affidavit of the FACS caseworker with responsibility for the two children. The caseworker’s affidavit stated that long-term assessments were then being undertaken of three potential families with a cultural heritage that was an appropriate fit for the two children for their long term care. In these proceedings, the defendants submit that this was evidence of further steps in permanency planning that comply with the Care Act, s 83(7). The plaintiff submits that such steps were not s 83(7) compliant.

30. In the decision under review of November 2018, the President adverted to Care Act, ss 78(2A) and 83(7A) and found that the caseworkers engaged by FACS were appropriately undertaking their tasks "to ensure that the children are safely placed in the potential care as carefully assessed objectively".

31. At the President's hearing in November 2018, the plaintiff had strongly contested any long-term placement of the children with the first carer, who the plaintiff submitted was unsuitable, and did not have the capacity to care for the children.

32. Contrary to the plaintiff's case, the President found that: the plaintiff’s attack on the first carer was not made out on the evidence; and the children were thriving in their placement with the first carer. The President observed, and took into account, that one ground of objection that the plaintiff had to the first carer was that the first carer was the person to whom the children had made disclosures, which had led to the charges of assault and sexual impropriety being brought against the plaintiff in relation to the children.

27. At the time of the learned President’s judgment, the evidence suggests that FACS seemed to expect that the first carer would continue to care for the children for a longer period. In that context, the President made the following express findings in his November 2018 decision, rejecting contentions as to the unsuitability of the first carer to look after the children:

"The only uncertainty as to the children's future is whether or not they will remain with the current carer or be placed with an alternative carer, and I'm informed of the current preferred candidate is the current carer, and for the reasons I have already set out, the allegations of the unsuitability of the current carer are in my view unsustainable. For all those reasons, I'm expressly satisfied that the permanency planning for the children has been appropriately and adequately addressed, and I propose to make the final orders sought".

34. In summary, the proceedings were conducted before the President in November 2018 on the basis that the plaintiff objected to the long-term placement of the children with the first carer. But the plaintiff also accepted that there was no realistic prospect of restoration of the children to his care, by reason of the AVO’s and the criminal charges pending against him. And the President found that the allegations of unsuitability of the first carer were unsustainable.

The Change of Carers since November 2018

35. The children’s care arrangements have changed since November last year. The main change is, as the up-to-date affidavits of the case worker show, the first carer is no longer caring for the children. Following the November decision, FACS assessed the first carer as suitable for giving the children short-term care but not long-term care.

36. In early 2019, FACS undertook assessments for an alternative long-term carer. FACS made a matching assessment in mid-April 2019. As a result, the two children were moved from the first carer and placed temporarily with another carer and then finally settled with their second carer. The children now remain with this long term carer.

37. As the plaintiff had criticised the character and conduct of the first carer at the Children’s Court hearing, he claims some credit for the change to the second carer. But as will be seen below, other factors were in play.

The Course of this Appeal

38. The relief sought in the Amended Summons on this appeal is determined “by way of a new hearing and fresh evidence, and evidence in addition to or in substitution for the evidence on which the order was made” may be given on the appeal: Care Act, s 91(2). That will often involve, as it did in this appeal, the admission as evidence of the transcript of the proceedings before the Children’s Court: Care Act, s 91(3). The decision of this Court will be taken to be a decision of the Children’s Court and take effect accordingly: Care Act, s 91(6) and Gianoutsos v Glykis (2006) 65 NSWLR 539; [2006] NSWCCA 137.

39. The plaintiff and the defendants mostly relied upon evidence that was before the President in the November 2018 hearing. But some other limited evidence was adduced on both sides, relating to events or documents obtained since the November 2018 hearing. The defendants adduced up-to-date evidence from the caseworker. The plaintiff relied upon some materials gained on subpoena, his own affidavit evidence and some expert evidence about the disclosures of his alleged misconduct that were said to have been made to the first carer.

40. The defendants did not contend in the present hearing that the children should ever again be placed in the care of first carer. Nor is there is any evidence to support any proposal that the children will be so placed: firstly because the first carer has indicated that the first carer is not available to give long term care to the children; and secondly, because the defendants do not advance such a proposal.

41. The defendants further contend in these circumstances the present appeal proceedings must be futile and should be dismissed because: (1) of the defendants’ present approach to the long-term care of the children, which does not involve them being with the first carer; and, (2) permanency planning is not an order but rather a finding antecedent to the making of an order, so it is not something from which an appeal can now be brought.

42. The plaintiff sought to deflect the effect of this submission by seeking to further amend his Amended Summons to seek additional orders under Care Act, s 86 expressly preventing the first carer from, until the age of 18, having contact with the children. Before these arguments are analysed, one procedural matter relating to the admission of persons to the proceedings should be recorded.

A Vice Consul seeks to Appear

43. The children were adopted by the plaintiff in an overseas country. On the morning of the hearing, the local Vice Consul representing that overseas country sought leave to be present at the hearing. Neither the defendants nor the ICL opposed the Vice Consul’s presence at the hearing. The Vice Consul had been permitted to be present during the Presidential Children’s Court proceedings.

44. The Vice Consul submitted that: the two children are still citizens of the overseas country; the overseas country still has an interest in their welfare and well-being; and the overseas country wishes to appear in the proceedings to monitor their situation and even to repatriate them if it is in their best interests. The defendants’ present intention is to affirm their residence in Australia and progress the children’s applications for Australian citizenship. But in the meantime, they have both been accepted as permanent residents of this country.

45. The Vice Consul directed the Court’s attention to Care Act, s 98(3) that empowers the Court to grant leave for a person to appear in the proceedings who “in the opinion of the Children’s Court has a genuine concern for the safety welfare and well-being of the child”. The Court is satisfied that the Vice Consul has such a genuine concern.

46. The plaintiff opposed the presence of the Vice Consul on the basis that the overseas country may be gathering information, not so much about the children’s welfare, but for the purpose of a criminal investigation with a view to it preferring charges against the plaintiff of the same kind that have been preferred against him in the District Court of New South Wales.

47. Even if that theory had some basis, it is difficult to deny the obvious interest that the overseas country may have in the outcome of these proceedings, involving as they do one of the overseas country’s own citizens. For example, material before the Court suggests that, inconstant though the biological parents of the two children were in the overseas country, they are nevertheless alive and may in the future wish to have contact with them, as may more distant biological relatives. To preserve the children’s cultural and linguistic identity, such future contact with biological relatives may well be highly desirable. Contact of this kind is regularly mandated as part of orders in proceedings brought under the Adoption Act 2000 in this State. FACS has already made attempts through international social services in Australia to locate the children’s birth parents. The possibility of such contact is likely to be inhibited if the Court does not give some encouragement to the involvement of the overseas country in these proceedings. The President of the Children’s Court has already taken the lead on this issue and granted the Consul access to the November 2018 proceedings.

48. That is a course that I ordered to be continued. But the involvement of the Vice Consul should be limited only to the welfare of the children. Care Act, s 98 does not permit the court to admit the Vice Consul to hear these proceedings for the purpose of prosecuting criminal proceedings in the overseas country against the plaintiff. Neither Care Act, s 98 itself nor the objects and principles of administration of the Care Act (ss 8 and 9) would permit the Court to admit the Vice Consul to the hearing for such a collateral purpose. Accordingly, in the orders that it made admitting the Vice Consul to the proceedings, the Court limited the use to which the Vice Consul could put the information gleaned as a result of involvement in these proceedings to purposes identified in Care Act, s 8. With that limitation, permission was given for the Vice Consul to remain in Court during the hearing.

Analysis of the Grounds of Appeal

49. The plaintiff’s submissions. The plaintiff’s submissions may be shortly summarised. He submits that his concessions to the Presidential Children’s Court, that there was then no realistic possibility of restoration of the children to him and that he was not seeking a contact order in light of his pre-trial bail conditions, led to the Children’s Court making the finding of there being no realistic possibility of restoration and he affirms that he does not dispute that at the present time.

50. But he submitted that there was not an appropriate care plan in place which demonstrated appropriate permanency planning for the placement of the two children, in circumstances where the first carer “still remains a possibility as their carer”. To support this submission he relies upon evidence filed by FACS or served on him by the police in relation to his forthcoming prosecution.

51. He submits that the authorities and Care Act, s 78A(2A) show that the Court needs to have a reasonably clear picture of the way forward for the children but with the clarity and extent of the particularisation depending upon the needs of the children and the circumstances surrounding the creation and approval of any permanency plan.

52. He submits that if the extent and nature of his concerns demonstrated by the evidence about the first carer are accepted as plausible and credible, then they give serious concern about the appropriateness of a potential placement with the first carer, for either short-term or long-term care. The plaintiff points to a number of sources of evidence to ground the inference of serious concern upon which he relies. The plaintiff directs the Court’s attention: (1) to a report of an independent expert (who need not be named and is simply called in these reasons “the expert”) and whose expertise can be accepted for present purposes; (2) to his own affidavits; and (3) to a bundle of materials obtained on subpoena principally from FACS.

53. He analysed this material supporting the inference of serious concern in his oral submissions. The particular matters that he highlighted in the material are conveniently dealt with below with the Court’s consideration of the defendants’ submissions. He says that permanency planning would not be adequately and appropriately addressed if, after this material is considered, there is still a possibility that the children could be placed with the first carer. Thus in substance, he says that any care plan that adequately addresses permanency planning must contain a provision that excludes the first carer from having any contact with the children. He says the current care plans presented to the Court do not do that and so the Court cannot confirm the final orders of the Children’s Court.

54. The Defendants’ Submissions and the Court’s Analysis. It is convenient for the Court to deal with the defendants’ submissions in reply and the Court’s analysis in this section by looking at three particular issues that the parties raise: (1) futility of the appeal; (2) adequacy of the current care plan; and (3) should the care plan exclude contact with the first carer.

55. Futility of the Appeal. The defendants submit that the appeal is futile, because it cannot change the outcome of the Children’s Court proceedings, which gave parental responsibility to the Minister; a conclusion the plaintiff does not dispute.

56. But the plaintiff’s appeal cannot be dismissed on this basis. This is an appeal by way of a new hearing: Care Act, s 91(2). There is fresh evidence here. As a result of the hearing, the Court may confirm vary or set aside the decision of the Children’s Court: Care Act, s 91(5). This Court must now put itself in the position of the Children’s Court and comply with Care Act, s 80. This Court acting as the Children’s Court cannot make a final order, even if that involves confirming an earlier order, for the removal of the child from the care and protection of the child’s parents or for the allocation parental responsibility, unless it has considered a care plan presented to it by the Director-General. This Court must be satisfied that the care plan made available to it meets the requirements of Care Act, ss 78 and 78A. This Court should not confirm the order below, unless it has examined the care plan in relation to the current adduced evidence.

57. The appeal is therefore not futile, as the defendants submit. One possible outcome of an appeal by way of rehearing in a case raising the present issues could, for example, be that the Court might make order for different reporting arrangements under Care Act, s 82 dealing with permanency planning, whilst otherwise confirming the November 2018 Children’s Court decision.

58. Adequacy of the Current Plan. Is there a care plan before the Court which sufficiently addresses permanency planning so as to satisfy Care Act, ss 78 and 78A? The Court accepts the defendants’ submission that there is such a care plan before the Court. As Mr Anderson submits, it is a combination of the existing care plans that were before the President in the November 2018 hearing and certain other subsequently created materials.

59. The starting point is the legislation. So far as permanency planning as part of a care plan is concerned, Care Act, s 78A (2A) states that the permanency plan “need not provide details as to the exact placement in the long-term of the child” but still must be “sufficiently clear and particularised” to provide “a reasonably clear picture” as to the way in which the child’s needs welfare and well-being will be met in the foreseeable future.

60. The care plan before the President in the November 2018 hearing satisfied the President up to that point of time. I see no reason to disagree with the President’s decision. The same report satisfies this Court now up to that date. The care plans for each of the two children before the President were dated 5 June 2018. They are each comprehensive documents that dealt in detail with the children’s welfare and well-being, including their medical, social, educational, and psychological needs. They well justify the President’s finding that “the children are thriving in their current placement; they have a strong attachment to [the first carer]; they are doing well.”

61. As to permanency planning, the care plans describe the then current placement with the first carer as “stable”, compared with the situation with the plaintiff, foreshadow continued placement “with FACS foster care” and look ahead to the receipt of continued reports about the children’s placement under Care Act, s 82. On 19 November 2018, the Children’s Court also ordered the delivery of Care Act, s 82 reports for the children. These reports are useful sources of evidence for these proceedings.

62. An up-to-date picture since November 2018 is provided by affidavits of the caseworker and the first of the Care Act, s 82 reports ordered by the Children’s Court. The caseworker’s affidavit of 26 March 2019 is derived from the caseworker’s visits to the children and transporting them to appointments. Apart from noting certain very pleasing educational achievements of the elder child and the good educational progress of the younger child, the affidavit deals with the support for both of them. It specifically addresses a determination by an independent assessor that, whilst the first carer “remains a suitable short-term carer for the children, she is not recommended as a long-term carer for the children”.

63. The caseworker filed a supplementary affidavit on 1 May 2019 providing an update regarding the placement of the children. It describes how the first carer “at [the first carer’s] request” changed the children’s placement, and after the children stayed with another short-term carer, they were matched with the second carer. It must be said this is a very clearly presented, sensitive and detailed affidavit, which, together with its annexures, addresses all the matters that were of concern to the Court about the children’s current permanency planning. Without going into the detail of the report, in the Court’s assessment, it shows both children adjusting very well to their new environment with the second carer and thriving within it. The second carer is not of the same cultural background as the children. This Court is satisfied that the permanency planning described in the caseworker’s affidavit and accompanying documents well addresses the need to make adjustments on this account.

64. The first of the Care Act, s 82 reports ordered by the Children’s Court on 19 November 2018 for both children is dated 1 May 2019. It directly addresses permanency planning, recording that both children have been “transitioned to their long-term care”, with an agency-selected and managed carer with whom it is planned they will stay until the age of 18. The children’s very positive adjustment to their new environment, and their early acceptance of the operation of their current permanency plans, are recorded.

65. In my view, the existing June 2018 care plans together with the updating material recorded here well satisfies the requirement of Care Act, s 80 that the Court have before it and consider a care plan presented by the Director-General. And this care plan expressly deals with permanency planning in a way that satisfies Care Act, ss 78 and 78A.

66. Excluding Contact with the First Carer. Should the Court order, as the plaintiff submits it should, that the care plan before the Court be varied to change its permanency planning elements, to exclude the possibility of any contact with the first carer?

67. An important preliminary issue here is whether there is any evidence that the children will have contact with the first carer in the future. And the answer to that is in the negative. This strongly influences the Court’s approach to this issue. There is no evidence that the first carer has had contact with the children since they transitioned from the first carer’s care earlier this year. The defendants do not presently have any proposal that the children will have contact with the first carer. Moreover, in the short term at least, as the first carer is the first person to whom the eldest child is alleged to have made disclosures that led to the current criminal proceedings against the plaintiff, the first carer is likely to be a witness in that prosecution and, for that reason, could not come into contact with the children, who are also likely to be witnesses before the criminal proceedings are resolved. The outcome of the criminal prosecution of the plaintiff is of course unknown. But the possibility of retrials, appeals and other procedural permutations means that it is quite likely in the near to middle term that the children will be required not to have contact with the first carer in any event.

68. In the course of the plaintiff’s submissions, the Court put to him the lack of evidence of the prospect of contact between the first carer and the children. In reply, he put the matter as highly as on the evidence it can be put. He said “You [meaning the Court] have to be assured that contact with the first carer is not possible. Anything can happen.” And again, when it was pointed out to him that there was no evidence of any prospect the children might be placed again with the first carer, his answer was: “There is no evidence that they may not either”. And again he said, “What I don’t have is direct evidence that [contact with the first carer] will not happen in the future”.

49. The plaintiff’s submissions about the state of the evidence on this issue are accurate. This has an important implication about the way that the evidence about possible contact with the first carer should be assessed: it should be seen as a bare possibility and not a probability. In these circumstances, the burden that the plaintiff assumes in arguing that the permanency planning aspects of the care plan must be amended is to persuade the Court that it must guard against the possibility of any contact of any kind under any circumstances taking place between the first carer and the children.

50. But Care Act, s 86 contemplates contact between children and others under conditions that may include the timing, frequency and supervision of such contact. The plaintiff’s submission really goes so far as to say that the Court should find that no conditions about the frequency, timing or supervision of the first carer’s future contact with the children will ever be permissible and therefore permanency planning to exclude any such contact until they are 18 is now required. That is very high threshold for any submission to meet. In my view, the plaintiff’s submission falls well short of meeting it in relation to the first carer, for the following further reasons.

51. The plaintiff submits that the children’s welfare would be at risk from any exposure to the first carer. The Court does not accept that inference on the materials available to it. The June 2018 care reports make clear that the children were thriving with the first carer. The plaintiff has not sought before me to cross-examine the caseworker or anyone else associated with the production of these reports on this issue. And the reports are well reasoned documents containing detailed, often nuanced, observations about both children. They bespeak in their authors a high degree of professional judgment and they show attention to detail, which gives the Court confidence both in their accuracy and reliability.

52. The plaintiff points to a number of matters that he says undermine these reports and allow an inference to be drawn that contact should not be allowed with the first caseworker. He says that the children’s Joint Investigation Response Team (“JIRT”) interviews show evidence that the children were saying to investigators that they were repeating what the first carer had told them to say. The inference for which he contends is the first carer had invented the stories for them to repeat to others. There are certainly some passages in the JIRT interviews, to which the plaintiff points, that could be interpreted in the way that he says.

53. But accepting that this was what the children said in the JIRT interviews, it is open to quite a different construction from that for which the plaintiff contends. To the extent that the children say that they should recount to investigators what the first carer says, the JIRT text is quite open to the interpretation that all it should be inferred the first carer was doing was emphasising to the children that in the less familiar environment of a JIRT interview they were to face, they should nevertheless repeat to strangers what they had already said to the first carer.

54. This is a matter which be determined by the jury in the plaintiff’s criminal trial. The prosecuting authorities are of the view that there are reasonable prospects of conviction on this evidence as this prosecution is proceeding to trial. And if the prosecution’s and the defendants’ construction of the JIRT interviews is accepted, it also allows the indirect inference to be drawn that the children felt so comfortable with the first carer that they were able to make these disclosures.

55. The plaintiff suggests that the first carer invented these stories for her own personal gain: so the first carer could continue to have the children and receive government allowances for them. This alleged motivation on the first carer’s part is a mere allegation that does not have any objective support.

56. The plaintiff also suggests that the first carer invented these stories, because the first carer is an advocate for abused children. Even if it is accepted that the first carer fits into this category, the JIRT interview material has internal coherence that is not easy to reconcile with mere invention by an adult who was not present during the JIRT process. And the objective contemporaneous photographs of the back of the younger child show quite clear bruising and lacerations from the assault upon the child that would be the basis for an inference that the first carer had heightened vigilance about what had happened to these two children.

57. The plaintiff relies upon the expert to support this construction of the JIRT interviews. The Court has read the expert’s report, which does point to parts of the transcript of the interview where it might be thought that coaching of the children was taking place. But the circumstances were quite open to the opposite interpretation identified above. The Court would not regard the JIRT interviews as a compelling basis for doubting the character of the first carer.

58. Finally, the plaintiff points to evidence that he has obtained on subpoena from FACS, which he says shows that the first carer neglected the children’s educational and medical needs in a number of demonstrated instances. The material for example, the plaintiff submits, includes emails from the children’s school principal about the first carer allegedly not responding during a medical emergency for one of the children. And the plaintiff points to material that would suggest that the children may not have been fed properly and that their presentation at school had declined with the first carer.

59. The Court’s examination of this subpoenaed material shows it to be rather more ambiguous than the plaintiff represents. As to the incident where the first carer was not present for the medical emergency, the material from a school principal supports that one such incident did occur. But the first carer’s side of the story has not been sought out on the incident, so it is difficult to draw any adverse inference against the first carer. As to the lack of proper feeding and presentation of the children, the school principal regards in mid-2018 the lunches being provided by the elder child as “adequate”, but far from a “desirable healthy lunch.” The first carer’s answer to this is not recorded and there is no evidence that this continued beyond June 2018.

60. But the caseworker’s more recent affidavits show that the caseworker is fully familiar with the first carer’s overall standard of care, the course of the criminal proceedings and the nature of the evidence proposed to be adduced within them. The caseworker’s more recent affidavits do not show that the caseworker has formed any adverse view about the present fitness of the first carer to have continuing contact with the children as a short term carer. Moreover the caseworker’s current opinions about the first carer were not challenged in cross-examination.

61. In my view, there is no basis for this Court to order any change to the children’s existing care plans.

62. The Care Act s 86 Amendment. To address the result that the Court might find the permanency arrangements for the children sufficient, and not make orders different from those made by the Children’s Court, the plaintiff sought further to amend his Amended Summons to seek non-contact orders preventing the children having contact with the first carer under Care Act, s 86.

63. The form of the proposed s 86 orders, as a set of short minutes of order was annexed to the plaintiff’s final written submissions that were served before trial. They were directed against the first carer or any other member of the first carer’s household “not to have any form of contact with [the two children] until the children turn 18 years of age”.

64. The Court treated these short minutes of order as an application to further amend the Amended Summons. The defendants did not oppose the amendment. But even if the Amended Summons were to be amended the Court will not make the orders. It was not necessary therefore for the Court to consider whether the first carer should be notified of the application.

65. The proposed s 86 orders are in not the best interests of the children. Notwithstanding the plaintiff’s opinion that the first carer is an undesirable person to have contact with the children, the Court cannot draw that conclusion on the materials before it, for the reasons already stated. The Court is satisfied on the evidence that the first carer is acceptable as a short-term carer and is not available for the long-term care of the children.

66. In those circumstances, situations may well arise in the future where, to maintain the continuity of social relationships and connections in the children’s lives in their best interests, FACS may wish to allow the children to have some further contact with the first carer. The Minister is in a position to mould that contact appropriately in the best interests of the children. An inflexible ban on contact with the first carer, until either child is 18, does not obviously serve the objects of Care Act, s 8.

67. And there is no basis on the evidence to limit the Minister’s exercise of the Minister’s parental responsibility for the children in this way, when the evidence before the Court does not lead the Court to conclude that the first carer has any short-term unfitness to look after the children. The Minister with parental responsibility should not be put in the position of having to apply to the Court for leave to allow the children to see the first carer.

The Children’s Passports

88. These proceedings were originally listed for judgment on Friday, 27 September. But a dispute developed about what orders should be made in relation to the children’s passports, which have been held with the Children’s Court since before the November 2018 hearing. The children are still citizens of the overseas country where they were born. They are permanent residents of Australia but have not yet completed their citizenship applications.

89. The defendants wanted the children’s passports to be released to the Minister, so that the children’s respective Australian citizenship applications could be pursued. The ICL did not oppose this course. The plaintiff did not oppose the release of the passports. But he wanted additional orders made, limiting their use in a manner consistent with the arguments he had advanced on the appeal. The Court decided to hear brief argument about this issue and defer the giving of judgment on all issues until the following Monday, 30 September 2019.

90. The argument concerning the passports can be disposed of in much the same way as the issues on the appeal. The plaintiff contended for orders that the release of the passports to the Secretary should be limited “for the sole purpose of obtaining Australian citizenship for the children”. The plaintiff also asked for ancillary orders that would have the effect of placing the children on a watch list notified to the Australian Federal Police and thereby inhibiting their unrestricted travel beyond Australia’s borders.

91. But the defendants contended in reply that such a limitation upon the release of the passports is impractical and is contrary to the best interests of the children. For example, as the defendants counsel, Mr Anderson, pointed out, the present long term carer may wish to take the children on an overseas holiday. If the plaintiff’s proposed limitation were imposed, the passports could not even be used for such a purpose beyond the citizenship application. This limitation would then conflict with the judgment of the long term carer, as to what was in the best interest of the children. An application would in those circumstances need to be made back to the Children’s Court to vary the existing order to permit the holiday to take place.

92. When this difficulty with his argument was pointed out, the plaintiff accepted it was a consequence of the orders he was seeking. But he said that there was evidence that the overseas country where the children were born and adopted, and whose vice consul was present in the hearing had expressed a strong desire for the children to come back to that country. He contended that there was a possibility that this overseas country may wish to take control of the children whilst they were outside Australia’s borders on holiday and repatriate them there.

93. There are three answers to this submission. The first answer is that the material upon which the plaintiff relies does not in any way establish that the defendants would wish to send the children back to the overseas country where they were born – indeed the current care plans are inconsistent with this inference. And there is no credible evidence that agents of the overseas country are likely to abduct the children either from Australia or whilst they are on holidays outside Australia’s territory.

94. The material to which the plaintiff refers the Court on this issue is quite to the contrary. It is a statement of the “Official Position” of the relevant Ministry of the overseas country about the children. It notes that, from its perspective, the plaintiff appears to have “deliberately concealed the fact that he had a Australian citizenship from [the overseas country’s] competent authorities”, when he was seeking guardianship and adoption of the two children in that overseas country. But nevertheless, the Official Position declares that the children are still presently citizens of the overseas country, they have the benefit of the Convention on the Rights of the Child and that under Article 20 of that Convention, due regard should be paid in these proceedings when “considering the options for changing the family environment” to the desirability of continuity in the children’s upbringing and to the children’s ethnic religious cultural and linguistic background. The Official Position then goes on to say that the Ministry “kindly asks to take into account the fact that the religious and cultural identity of children and [their mother tongue] can best be preserved only if the children are settled in [the overseas country].” This material shows respect for the processes of the Australian legal system and the rule of law in this country and does not contain the slightest suggestion that the overseas country’s preference will be pursued by any means other than by the kind of representation to the Children’s Court and co-operation which has already taken place through the overseas country’s Consul and Vice Consul respectively.

95. The second answer to the plaintiff’s submission to limit the use of the children’s passports is that the children are very young and no one has suggested, until this argument took place, that anyone wants to take them outside Australia.

96. Thirdly, the Minister has sole parental responsibility for the children. If, and when, the present carer expresses a wish to take the children outside the country on holidays, the Minister, having that parental responsibility, is in the best position to decide in consultation with the present carer if the benefits and risks of overseas travel with the children are warranted. Blanket limitations upon the Minister’s exercise of parental responsibility are undesirable and perhaps beyond power: Re Josie (2004) 32 Fam LR 64; [2004] NSWSC 642, (at [29] and [30]), and George v The Children’s Court of New South Wales (2003) 59 NSWLR 232; (2003) 31 Fam LR 218; [2003] NSWCA 389.

97. For these reasons the Court will make orders for the release of the passports in terms similar to those contended for by the defendants. The orders made below do not directly identify the children but they are quite sufficient to ensure the Children’s Court Registrar releases these passports to the Secretary, as there can be no doubt who are the children the subject of these proceedings.

Conclusion and Orders

98. For these reasons, the Court makes orders and directions as follows:

1. The plaintiff’s Amended Summons dated 4 February 2019 is dismissed;

2. Direct that from the date of this order the Registrar of the Children’s Court of New South Wales shall, upon proper authority being shown, release the passports of the children the subject of these proceedings to a proper officer authorised by the second defendant to receive them on the second defendant’s behalf;

3. Direct the parties to exchange written submissions of no more than three pages on any costs issue any party wishes to raise by 5.00pm on Tuesday, 15 October 2019, with a view to the Court determining any outstanding issues of costs in Chambers and notifying the parties of the Court’s decision without the need for the parties’ appearance

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Decision last updated: 01 October 2019