Aunt Du v The Secretary, Department of Family and Community Services

[2015] NSWDC 392

District Court

New South Wales

Medium Neutral Citation:	Aunt DU v The Secretary, Department of Family and Community Services [2015] NSWDC 392
Hearing dates:	20, 21, 22 July 2015
Date of orders:	02 December 2015
Decision date:	02 December 2015
Jurisdiction:	Civil
Before:	E OLSSON SC DCJ
Decision:	1.   The appeal is allowed. 2.   The Secretary prepare a permanency plan for the long term placement of MO with her maternal aunt, Aunt DU.
Catchwords:	Commencement date of amendments; whether right to appeal accrued prior to; adequacy of permanency plan
Legislation Cited:	Acts Interpretation Act 1901 (Cth) Child Protection Legislation Amendment Act 2014 Children and Young Persons (Care and Protection) Act 1998 Children and Young Persons (Care and Protection) Regulation 2012 Children and Young Persons (Savings and Transitional) Regulation 2000 Compensation (Commonwealth Government Employees) Act 1971 Interpretation Act (NSW) 1987
Cases Cited:	Esber v The Commonwealth (1991-1992) 174 CLR430 Druett v Director General of Community Services [2001] NSWCA 126 Gianoutsos v Glykis [2006] NSWCCA 137 JL v Secretary, Department of Family and Community Services [2015] NSWCA 88 Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89 Re Tracey [2011] NSWCA 43
Category:	Principal judgment
Parties:	AUNT DU (1st Plaintiff/maternal aunt) JO (Second plaintiff/mother) SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES (1st Defendant) INDEPENDENT LEGAL REPRESENTATIVE FOR CHILD (2nd Defendant
Representation:	Counsel: Ms K Conte-Mills (1st Plaintiff) Mr D Petrushnko(2nd Plaintiff) Ms M Neville (1st Defendant) Mr P Braine (2nd Defendant)   Solicitors: King Legal (1st Plaintiff) The Law Shoppe (2nd Plaintiff) The Crown Solicitor’s Office (1st Defendant) LR Lawyers (2nd Defendant)
File Number(s):	2014/270116
Publication restriction:	No.
Decision under appeal	Court or tribunal: Children’s Court Jurisdiction: Care Date of Decision: 04 September 2014 Before: Magistrate Huntsman

Judgment

1. This is an appeal brought pursuant to s 91 of the Children and Young Persons (Care and Protection) Act 1998 (“the Care Act”). It was filed on 13 September 2014 and was amended on 6 November 2014. The only effect of the amendment was to make the mother a co-plaintiff.

2. It concerns one child, MO, who was born on 4 August 2012. Orders were made in the Children’s Court on 4 September 2014 and it is from those orders that the present appeal is brought.

Applicable legislation

3. The Care Act has been the subject of significant amendments which commenced on 29 October 2014. Although it was common ground that the relevant provisions are those that were in force at the time of filing of the summons, it is appropriate to analyse the legal principles involved.

4. ss. 2 and 7 of the Acts Interpretation Act 1901 (Cth) (relevantly) provide as follows:

2 Application of Act

(1) This Act applies to all Acts (including this Act).

Note: This Act also applies to legislative instruments and other instruments made under an Act: see subsection 13(1) of the Legislative Instruments Act 2003 and subsection 46(1) of this Act.

(2) However, the application of this Act or a provision of this Act to an Act or a provision of an Act is subject to a contrary intention.

7 Effect of repeal or amendment of Act

No revival of other Act or part

(1) The repeal of an Act, or of a part of an Act, that repealed an Act (the old Act) or part (the old part) of an Act does not revive the old Act or old part, unless express provision is made for the revival.

No effect on previous operation of Act or part

(2) If an Act, or an instrument under an Act, repeals or amends an Act (the affected Act) or a part of an Act, then the repeal or amendment does not:

(a) revive anything not in force or existing at the time at which the repeal or amendment takes effect; or

(b) affect the previous operation of the affected Act or part (including any amendment made by the affected Act or part), or anything duly done or suffered under the affected Act or part; or

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the affected Act or part; or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the affected Act or part; or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment.

Any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the affected Act or part had not been repealed or amended.

Note: The Act that makes the repeal or amendment, or provides for the instrument to make the repeal or amendment, may be different from, or the same as, the affected Act or the Act containing the part repealed or amended.

Interpretation

(3) A reference in subsection (1) or (2) to the repeal or amendment of an Act or of a part of an Act includes a reference to:

(a) a repeal or amendment effected by implication; and

(b) the expiry, lapsing or cessation of effect of the Act or part; and

(c) the abrogation or limitation of the effect of the Act or part; and

(d) the exclusion of the application of the Act or part to any person, subject‑matter or circumstance.

(4) A reference in this section to a part of an Act includes a reference to any provision of, or words, figures, drawings or symbols in, an Act.

5. Section 30 of the Interpretation Act (NSW) 1987 provides as follows:-

INTERPRETATION ACT 1987 - SECT 30

Effect of amendment or repeal of Acts and statutory rules

30 Effect of amendment or repeal of Acts and statutory rules

(1) The amendment or repeal of an Act or statutory rule does not:

(a) revive anything not in force or existing at the time at which the amendment or repeal takes effect, or

(b) affect the previous operation of the Act or statutory rule or anything duly suffered, done or commenced under the Act or statutory rule, or

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or

(d) affect any penalty incurred in respect of any offence arising under the Act or statutory rule, or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability or penalty,

and any such penalty may be imposed and enforced, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, as if the Act or statutory rule had not been amended or repealed.

(2) Without limiting the effect of subsection (1), the amendment or repeal of an Act or statutory rule does not affect:

(a) the proof of any past act or thing, or

(b) any right, privilege, obligation or liability saved by the operation of the Act or statutory rule, or

(c) any amendment or validation made by the Act or statutory rule, or

(d) the operation of any savings or transitional provision contained in the Act or statutory rule.

(3) This section applies to the amendment or repeal of an Act or statutory rule in addition to, and without limiting the effect of, any provision of the Act or statutory rule by which the amendment or repeal is effected.

(4) In this section, a reference to the amendment or repeal of an Act or statutory rule includes:

(a) a reference to the expiration of the Act or statutory rule,

(b) a reference to an amendment or repeal of the Act or statutory rule effected by implication,

(c) a reference to the abrogation, limitation or extension of the effect of the Act or statutory rule, and

(d) a reference to:

(i) the exclusion from the application of the Act or statutory rule, or

(ii) the inclusion within the application of the Act or statutory rule,

of any person, subject-matter or circumstance.

6. The combined effect of these provisions is that a right, privilege, obligation or liability is unaffected by amendments in the absence of a provision to the contrary.

7. Part 10 of Schedule 3 of the Care Act 1998 relates to ‘Provisions consequent on enactment of Child Protection Legislation Amendment Act 2014’: none of the provisions relate to appeals.

8. There are two potentially relevant Regulations, the Children and Young Persons (Savings and Transitional) Regulation 2000 and Children and Young Persons (Care and Protection) Regulation 2012, but neither contains a provision relating to appeals.

9. There being no statutory or regulatory provision contrary to s. 7 of the Acts Interpretation Act 1901 and s.30 of the Interpretation Act 1987, the next step is to consider whether, properly construed, the appeal is a right privilege obligation or liability acquired, accrued or incurred under the Care Act or its regulations.

10. The principles to be applied were considered in Esber v The Commonwealth (1991-1992) 174 CLR430.

11. In that case a former solider received weekly payments in excess of $50 as compensation under the Compensation (Commonwealth Government Employees) Act 1971 as a result of an injury suffered while a member of the defence forces. He applied to redeem the weekly payments pursuant to s 49 of the 1971 Act in order to receive a lump sum. The application was rejected and he appealed to the AAT to review that decision. Before the hearing, the Act was repealed and replaced with legislation which relevantly provided that weekly payments of more than $50 were not redeemable as a lump sum. The AAT applied the 1971 Act. On appeal, the High Court was required to consider the nature of the plaintiff’s right in the context of the particular savings provisions contained within the later Act and also s.8 of the Acts Interpretation Act 1901 (now repealed). The effect of s.8 was similar to that of the present s.7 and used the expression “right privilege obligation or liability acquired accrued or incurred under any Act so repealed..”

12. In considering the meaning of “right privilege obligation or liability acquired accrued or incurred under any Act, the majority of the court said at 439: “The first step in a consideration of s. 8 is to identify the “right” which the appellant says was acquired or accrued under the repealed Act.”

13. At 440, their Honours said: “Once the appellant lodged an application to the Tribunal to review the delegate’s decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not merely “a power to take advantage of an enactment”. Nor was it a mere matter of procedure; it was a substantive right. Section 8 of the Acts Interpretation Act protects anything that may truly be described as a right, “although that right might fairly be called inchoate or contingent”…”.

14. Justice Brennan considered the same point in a dissenting judgment. His Honour said, at 448-449: “Where, on a rehearing de novo, the question for decision is whether an applicant should be granted a right, the law as it then exists is applied, not the law as it existed at an earlier time.by contrast, in a judicial proceeding brought to enforce an alleged right accrued at the time when the proceedings were instituted, the question for decision is determined according to the law existing when the proceedings were instituted unless statue otherwise provides. “

15. A person who is dissatisfied with a decision of the Children’s Court may appeal to the District Court: s.91(1) of the Care Act. Applying the dicta of the majority in Esber, once the appeal was lodged, the appellant had a right to have it heard and determined by this Court. It is a substantive right, in existence at the time of the commencement of the amendments to the Act. That being so, and in the absence of a contrary intention either in the Act itself, the savings and transitional provisions or the Regulations, the right, and thus the appeal, is protected by s.7 of the Act Interpretation Act and is unaffected by the amendments.

Background to appeal

16. MO is the only child of the second plaintiff (mother) ‘JO’. The identity of MO’s father is unknown. The mother has two sisters, ‘Aunt DO’ (who is not a party to these proceedings) and ‘Aunt DU’, the first plaintiff.

17. The mother arrived in Australia from Nigeria in June 2012, pregnant with MO. She gave birth to her in Australia and was granted a Protection Visa. Currently she is a Permanent Resident.

18. In December 2012 the mother and MO, who was then about 6 months old, moved in with Aunt DU and her two children.

19. Either late on 9 February or in the early hours of 10 February 2013 MO’s mother brought her to the Emergency department of Westmead Children’s Hospital. She was described as ‘shaking’ and ‘floppy’ with a history of difficulty in feeding and vomiting. The baby vomited whilst in the Emergency Department and had what was only described as a ‘floppy episode’. She was admitted to hospital and remained there for 11 days. Extensive tests were carried out and all results were normal.

20. The mother was recorded as having told Red Cross workers a few days earlier that she slapped, bit and pinched MO.

21. During the course of admission, the mother was interviewed by a nurse and also by the child protection team. There were hospital notes in evidence that disclose that the mother had told hospital staff that she had beaten the baby on the legs, had forced MO to eat her own vomit and had pinched and bitten her and that this occurred when MO cried or refused food and had been done regularly since she was about two weeks old. There were some minor bruise marks observed by hospital staff. There was concern expressed for the mother’s emotional well-being and her ability to connect with her baby.

22. I pause in this narrative to observe that the evidence of Aunt DU, with whom the mother and MO had lived for several months, was that she had never witnessed the mother abuse MO in any way.

23. The critical incident that led to MO being taken into care occurred on 15 February when hospital staff observed the mother to slap MO across the face and pull her out of her pram by her arm.

24. On 18 February the mother and Aunt DU attended an interview with officers of the Department of Family and Community Services. The mother said that she had not abused MO and that she had made up stories in order to get help with accommodation. Aunt DU confirmed that she had never seen the mother hit MO.

25. Notwithstanding, the mother was charged by police over this incident and when the matter was heard in November 2013, she was given a s. 10 bond.

26. Shortly after MO was taken into care, Aunt DU indicated to the Departmental officers that she wished to be considered as a care giver for MO.

27. There was evidence that in Nigerian culture, if a mother is not able to care for her child, the eldest sister in the family assumes the role. The mother’s eldest sister, Aunt DO, was not in a position to take care of MO but her second sister Aunt DU (the first plaintiff) applied to the Department to be MO’s carer. The application was rejected apparently for reasons that included the fact that Aunt DU is separated from her husband and has the care of her own two young children, that she did not fully co-operate with the Department’s requests regarding its assessment of her and that she was understood to have denied (emphasis added) that her sister (the mother) had abused MO.

28. The Secretary brought an application initiating care proceedings on 21 February 2013 in Parramatta Children’s Court. The court heard the matter over four days in March, May and July 2014. Children’s Court Magistrate Huntsman delivered judgment on 21 August 2014, finding that there was no realistic possibility of restoration of MO to her mother’s care. As I have noted, final orders placing MO under the Parental Responsibility of the Minister until she attains the age of 18 years were made on 4 September 2014.

29. An order was also made for a section 82 report to be prepared. It was in evidence before me.

30. MO was placed with foster carers on 8 October 2014. A great deal of care was taken by the Department’s officers in finding foster carers with appropriate cultural links. The male carer has a combined Nigerian and Philipino background.

31. The present appeal was heard over three days in July 2015.

32. Unfortunately, after the conclusion of the hearing of the matter but before judgment was delivered, the Department notified all parties and the court that the relationship of the carers had broken down and that they had separated, with MO remaining with the female carer. Ms Boutros, case worker, said in her affidavit of 9 September 2015 that the male carer had advised that whilst he wished to be part of MO’s life, he no longer wanted to be her foster carer.

33. The parties were given the opportunity of making further submissions following this development. Both the Secretary and the Independent Children’s Representative supported MO remaining in the care of the female carer.

34. An updated Cultural Care Plan was prepared which, according to the Secretary and the Independent Children’s Lawyer, adequately addresses MO’s cultural needs.

Law

35. This appeal is brought pursuant to s.91 of the Care Act. It is a special appellate jurisdiction, different to the usual civil jurisdiction: Druett v Director General of Community Services [2001] NSWCA 126.

36. It is a hearing that involves fresh evidence or evidence in addition to or in substitution for the evidence in the Children’s Court: s.91(2). There is no necessity for the appellant to establish an error in court below: Gianoutsos v Glykis [2006] NSWCCA 137 and this Court may confirm, vary or set aside the decision of the Children’s Court.

37. The objects of the Act are set out in s8 to provide:

1. That children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and

2. That all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and

3. That appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child rearing responsibilities in order to promote and safe and nurturing environment.

38. The provisions of the United Nations Convention on the Rights of the Child 1989 are capable of being relevant to the exercise of discretions under the Act: Re Tracey [2011] NSWCA 43; JL v Secretary, Department of Family and Community Services [2015] NSWCA 88 and Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89.

39. The Care Act is to be administered under the principle that the safety, welfare and wellbeing of children are paramount: s9(1).

40. Other principles relevant to the present appeal include the following:

1. any action to be taken to protect he children from harm must be the least intrusive intervention in the life of the children and their family that is consistent with the paramount concern to protect them from harm and promote their development: s9(2)(c),

2. That any out of home care arrangements are made in a timely manner, to ensure the provision of safe, nurturing, stable and secure environment, recognising the children’s circumstances and that, the younger the age of the child, the greater the need for early decisions to be made: s9(2)(e) and (f).

41. The proceedings are not to be conducted in an adversarial manner. The court is not bound by the rules of evidence and the proceedings are to be conducted with as little formality and legal technicality and form as the circumstances permit: s93.

42. The standard of proof is the balance of probabilities; s.93(4) and the dicta of the High Court in Briginshaw v Briginshaw [1938] HCA 34 is relevant in determining whether the burden of proof has been achieved: Re Sophie [2008] NSWCA 250.

41. There are two fundamental concepts in the Care Act that are central to the Department’s position and which it is required to establish:

1. That the children are in need of care and protection, and

2. That there is no realistic possibility of restoration of the children

44. In all decisions under the Care Act involving the paramount concern of safety, welfare and well-being of a child, including issues of removal, restoration, contact, custody and placement, the proper test to be applied is that of “unacceptable risk to the child”: Department of Community Services v Rachel Grant, Tracey Reid, Sharon Reid and Frank Reid [2010] CLN1 per the then President, Judge Marien.

45. The live question in the present case is not whether MO was in need of care and protection nor that there is presently no realistic possibility of restoration to her mother. The issue is whether parental responsibility ought to be vested in Aunt DU. The Secretary has assessed that it is not the best placement option for MO.

46. As the present appeal is governed by the Act prior to its recent amendments, the Court must have regard to s79(3) as it was in September 2014: that no order allocating parental responsibility may be made unless the Court has given particular consideration to the principle in s9(2)(c) – that the action is the least intrusive intervention in the life of the child – and that any other order would be insufficient to meet the needs of the child.

Evidence

47. The notes from Westmead Hospital were in evidence as to the interaction between the mother and MO during her hospitalization. They variously report that the mother was absent from the hospital when MO required feeding, that she did not follow nurses’ instructions regarding feeding the baby and made poor decisions when confronted with the baby vomiting or refusing food. On the other hand, they also disclose that the mother was behaving and interacting very well, cuddling and hugging the baby appropriately.

48. There was evidence that the mother told the Child Protection Unit that when depressed, she “beats” MO and slapped her, pinched her and screamed at her. The report of the unit said “The mother described a long history of feeling depressed and described symptoms of insomnia, lost appetite and a preoccupation with body image.”

49. Affidavit evidence of Ms Khahn Nguyen, caseworker, was tendered.

50. Ms Sofia Botros, child protection case worker, gave evidence. She is the case worker for MO. The s.82 report was tendered through her. It was prepared by SSI, which is a non- government agency which carries out the day-to-day casework (and which has particular experience with African families) with MO and her carers. It indicates that MO is well settled and progressing satisfactorily and with her carers attends the local church and is involved in social activities in the local community.

51. Ms Botros gave evidence that Aunt DU has bi-monthly contact visits with MO. In February 2015, her children commenced attending as well. The s.82 report was critical of Aunt DU for being an hour and a half late to a contact visit but cross examination revealed that was said in error and in fact, Aunt DU was twenty minutes late.

52. Ms Botros made a number of important concessions in cross examination:

1. the Department’s assessment of Aunt DU included a criminal record check which returned a nil result;

2. although a thorough inspection of Aunt DU’s home was not undertaken as part of the assessment by SSI, it was considered to be too small to accommodate another child (MO). After this assessment, Aunt DU moved into a larger, three bedroom house with a backyard but that those premises have not been inspected;

3. no-one from Community Services has ever met Aunt DU’s children;

4. the SSI report indicated that for cultural and familial reasons Aunt DU would be ideal as a kinship carer;

5. that if it was the case that Aunt DU denied that her sister abused MO, such denial might be more a reflection of a cultural reluctance to betray family than a denial of the facts and that this might be successfully addressed by appropriate counselling and undertakings;

6. that there would be benefits in MO being brought up in a family where sibling figures were present and that MO gets on well with her cousins and they with her;

7. that the former husband of Aunt DU (and his family) have ongoing involvement with their children and regularly mind them;

8. that no-one in Aunt DU’s household (or extended household) was assessed as posing any safety risk to MO;

9. that Aunt DU had the appropriate experience and loving capacity to take MO into her care;

10. that the mother (and Aunt DU, necessarily) are from a different tribal group from the male carer and that culturally, they are completely different. Moreover, that the male carer was born in Nigeria but moved to the Philippines as a child and then to Australia when he was 17 years old;

11. it would be ideal for MO to be placed with someone like her maternal aunt, given that she is from the same tribe, same culture and same language group.

53. Aunt DU gave evidence that she is a registered nurse, working day shifts at Bankstown and Lidcombe Hospital. She has two daughters, aged 7 and 5 years. She is separated from her husband but on good terms with him and his family. He is involved in the care of their children.

54. Aunt DU said “MO would be a like a daughter to me. I look after her just the way I look after my kids”. She tendered a supportive reference from the pastor of her local church.

55. With respect to practical arrangements, whilst she works shift work, it is presently limited to daytime shifts and her manager is flexible with working hours and shifts.

56. Her elder daughter attends school and her younger daughter, a day care centre. Whilst Aunt DU has not made inquiries of the day care centre as to whether they have a place available for MO, her local church has a day care centre which does have a place for MO.

57. She said that both her former husband and Pastor B had indicated that they would be prepared to assist her by collecting MO if necessary. Aunt DU said she had discussed with her parents in law the prospect of her caring for MO.

58. She said that her older sister Aunt DO is also available to assist her. None of those people swore affidavits in the proceedings and were not called to give evidence, although Aunt DO attended court on at least one day of the hearing.

59. In essence, Aunt DU pointed out that she manages to look after her own children and work as a nurse and that she would manage to look after MO in the same way.

60. She was asked about the sort of problems that she might anticipate in moving MO from her current carers into her care. She said that there would need to be a carefully managed transitional period and that in that period, MO might feel withdrawn, perhaps have problems with her sleep and in her behaviour.

61. It was clear from her evidence that she has given considerable thought to the placement of MO with her. She is mindful of the likely impact of a change from foster care to herself. She has already made some practical changes to her life in anticipation of MO being placed with her. She has moved into a larger house. She has ascertained that the church day care centre has a place for the child. She has developed plans for reducing her working hours and taking annual leave, including accumulated leave of ten weeks, in order to give effect to the transition of MO into her care.

62. She is in full time employment as a registered nurse, earning (net) approximately $1900.00 per fortnight. Her rent is $395.00 per week. She has no debts.

63. It is fair to say that two of the primary concerns entertained by the Department with respect to Aunt DU are firstly that Aunt DU denies or minimizes the risk that the mother poses to MO and secondly, that if MO were to be placed in her care, it would be, in effect, a de facto restoration to the mother.

64. Aunt DU dealt with both matters during her evidence. In relation to the first, she said that MO needs protection. She had said in the Children’s Court that she believed that the things that the mother was said to have told care workers (inter alia, that she pinched and punched the child, slapped her around the body and fed her vomit) were lies designed to obtain assistance from service providers and she agreed that she remains of that view. She said that if she really believed that her sister did those things, she would not let her near her own daughters.

65. However, she also acknowledged that in the Children’s Court she had said that she believed her sister’s denial of the physical assault. She said that initially, she believed her sister and that whilst they were living together (the mother and MO lived with Aunt DU prior to MO being taken into care) she had not observed her to abuse the baby. However, she said that her views had now changed and she accepted the direct observation of the nurse in the hospital.

66. She said this:

Q: In terms of the risk of harm, what was the risk of harm to your mind that was in place?

A: That she was – she was found guilty by the criminal court for the common assault of physical abuse. That’s – she’s slapping the baby which was observed by an independent person, the nurse, and (not transcribable)..the baby – taking the baby out of the pram with one hand.

67. She also said this:

Q: It was the case, wasn’t it, that when you gave evidence about it in the Children’s Court – and I’m looking at transcript from 16 July 2014….you were asked some questions about the criminal charge matter and you were asked whether or not you accepted now that [the mother] had assaulted the child, and the answer that you are recorded as giving is as follows: “ As I said before, I wasn’t there. As I said before, I wasn’t there. I’ve never witnessed [the mother] assault her baby.” Do you remember giving that evidence?

A: yes

Q: And in terms of your evidence that you now accept that the assault did in fact occur, when did you come to accept that?

A: Over the course of time I took myself out of the position of being a sister to [the mother]. As an independent person, I saw it from a different point of view. An independent observer, which is a nurse, observed it and she was found guilty by the criminal court. If I’m not to be a sister, what am I going to do? I will agree to it. So that’s when I made up my conclusion, I believe.

Q: When did you form that conclusion?

A: Over time

Q: So since the Children’s Court proceedings concluded?

A: Yes, gave me time to think about it.

68. She did not think that the child of her sister (Aunt DO) was at risk from the mother and agreed that the mother had looked after her from time to time. She made the point that Aunt DO’s daughter has never been harmed by the mother and is older (than MO) and able to talk.

69. She said that whilst the mother does not spend time with her own daughters, it was only because they do not live near to each other and are busy with their own lives. She said that she would have no difficulty in the mother spending time with them.

70. She was cross examined at some length on the time it took for her to complete the application to be MO’s carer. Her explanation was that she had been told or it had been implied to her that because she was working full time and was a single mother, her application would not succeed. The caseworker involved denied that she said this to Aunt DU. In addition, Aunt DU did not readily avail herself of the assessment process with the result that Mr Payne was not able to conduct a formal assessment. It was said that she did not return telephone calls or respond to emails.

71. Aunt DU’s evidence on the former matter was not entirely satisfactory. It may be that she herself recognized the difficulty in adding another child into an already busy household and assumed that the Department would take the same view. It may be that someone suggested to her that her application would not succeed for that reason. It may be that she was hoping or expecting that her elder sister, consistent with African culture, would step up.

72. Ultimately, although this was a matter of comment by counsel and had been a matter of comment in the Relative Kinship Carer Assessment report by Mr Payne, I do not consider it to be determinative of any relevant issue. To the extent that it is said to be evidence of her reluctance to be MO’s carer and suggestive that her true intention is for the mother to have the effective responsibility for MO, I note that it was not put to her in those terms and I do not think the evidence could support such a conclusion in the context of her stated willingness to be the carer.

73. As to the latter matter, Aunt DU countered that the assessor was difficult to contact and that she had tried to co-operate with him. This, too, was not entirely satisfactory, although ultimately in my view this aspect of the evidence has little bearing on the issues to be decided.

74. Aunt DU’s evidence in this court was more robust. She explained, as I have said, that she had come around to the view that her sister had in fact abused the baby. She was unshaken in her avowal that she would insist on a strict observation of the contact regime and not permit MO to be in the unsupervised care of her mother. She said that she would remind the mother of the Court’s order and tell her to leave or go to the police.

75. I have been troubled by this aspect of Aunt DU’s evidence but on balance, I accept that her initial acceptance of the mother’s denial that she abused MO was based on sincere affection for her sister and an empathic understanding of her struggle to deal with the trauma she had experienced in Nigeria. In addition, I accept that when they lived together, and Aunt DU was available to assist the mother with the baby, there were no signs of abuse, most probably because the mother was receiving the emotional support she needed.

76. I am satisfied that Aunt DU now acknowledges her sister’s inappropriate and abusive treatment of MO and is very mindful that contact between MO and her mother needs to be supervised. Moreover, I am satisfied that if Aunt DU is successful in her appeal, she would treat MO as part of her family and observe strict boundaries with respect to her contact with her mother.

77. The mother gave evidence and was cross examined.

78. She said that she does not consider herself to pose any risk of harm to MO because she is a “changed person”. She has undergone counselling including a STAARTS programme organized by the Department of Immigration as well as private counselling.

79. With respect to the matters about which observation was made in hospital, she offered explanations which were consistent more with a naïve and inexperienced mother rather than an abusive one. Of the critical incident, she said that she slapped MO but that it was more of a ‘tap’ and that such a tap was acceptable within her culture. As for pulling the baby out of the pram by the arm, she said that a doctor told her that she ought not hold the baby in that way and showed her how to properly lift the child. She steadfastly denied that she had pinched, bitten or hit the baby or that she had fed her vomit.

80. She has undertaken parenting courses including one called Circle of Safety, another called Keeping Children Safe is presently completing a TPC (Tertiary Preparation Course) which is a bridging course to assist people who wish to undertake tertiary studies. Her ambition is to finish it and apply to university to do a nursing degree. She anticipates that once she is part of the way through that degree and with a part time job, she will be in a position to make a section 90 application for a variation in the care orders.

81. She lives in shared accommodation and supports herself.

82. One of her concerns is that the male carer comes from a tribal and language group that is different from her own. She said that he is from the Warji tribal group in northern Nigeria. The mother knew nothing of this group until she googled it. She gave this, unchallenged, evidence:

Q: So the only knowledge that you have as to what those differences might be is the research that you yourself have conducted on the Internet. Is that right?

A: Like, the northerners are different from the southerners. Like, the northerners yeah, our outfits are different, our food is different, the way we speak is different. The way we dance is different. We do Ikwerre festival. We do festival, like Ikwerre festival. Like our wedding choices are different…(not transcribable)….beads. The way we do our things with the northerners are different ,the way we speak. Our names are different also.

83. For this reason and because Aunt DU is her sister, she supports Aunt DU having parental responsibility for MO, accepts that her contact with MO would be limited to contact visits organized by Aunt DU and would give an undertaking not to otherwise approach Aunt DU whilst MO was in her care.

84. She said that she is engaged although a wedding date has not yet been set. She said that she works hard at her TAFE studies and that study occupies most of her time. She said:

Q: Today your plan is that your plan for MO is that she lives with your sister?

A: Yes

Q: And that you’re not suggesting that she come back to you because you want to go to school?

A: I want a bit of my future. A bit of myself for –that- a bit of myself that’s a bit of a future, like, go to school and have a good job

85. She offered to give undertakings to the court that if MO was placed with her sister she would not go anywhere near the house and only have supervised contact, away from the home. She said she would promise not to try to go to her sister’s house to see MO if the court that said that she was not allowed to do that. She said that she appreciated that it meant that she may not be able to go to family functions including Christmas and Easter if MO was there. She also promised not to go to MO’s school or church functions if MO was there.

86. Generally, the mother impressed me as being sincere although she tended to downplay the matters that led to MO being taken into care. I would find this to be of more concern if she was the applicant in the proceedings but she is merely a witness. Moreover, the fact of establishment, that is, that MO was in need of care and protection, is not contested.

Mr Watson-Munro

87. Mr Watson Munro, psychologist, gave evidence. He is a consultant forensic psychologist who saw the mother in February 2015 and who provided a report in respect of that meeting. In it, he supported restoration of MO to her mother. He said that she presented as “a perfectly normal individual who wants to be with her child” and that there was “nothing to indicate that she suffers from any gross psychological abnormality. When I saw her, which was six months ago, she was depressed and anxious. There were no signs of major psychiatric disturbance. I’ve probably assessed in excess of 30,00 people in my life and she does not impress me as a disturbed individual.”

88. On one of the occasions on which Mr Watson-Munro saw the mother, she was accompanied by Aunt DO’s child. He thought that she was “very competent” in terms of handling the child and “bubbly, not hyperactive, she was calm and collected in terms of dealing with the child’s needs”.

89. However, he also conceded that the mother had not told him about the critical incident nor that she had been observed by hospital staff to have slapped the child across the face. She told him that she had not harmed the child. She told him that she had made up stories in order to gain assistance

90. The mother told or at least implied to Mr Watson Munro that if her sister’s application for parental responsibility was successful, she would continue to support her sister and nieces “in addition to her child with the two women being able to interchange in terms of supporting the children referable to employment and study obligations.” When pressed, he said he thought that this was a reference to Aunt DO (not the first plaintiff, Aunt DU). This evidence must be considered in context: at the time of interview, the mother was living with her sister and anticipated continuing to do so.

87. Mr Watson Munro’s evidence was of limited assistance since the matter that requires determination is not the mother’s parenting capacity. Nevertheless it has some relevance to the question of whether a placement with Aunt DU would be a de facto placement with the mother. It also has some relevance to the question of whether the mother has been candid about her treatment of MO. She told authorities that she had bitten and pinched the baby. She told Mr Watson Munro and others that she had made up those stories in order to gain financial or other assistance. To my mind, either version might be true. There was no medical evidence to indicate one way or the other whether pinching or biting had occurred. The only conduct that was observed was the slap to the face and pulling the baby out of her pram by the arm.

The kinship report

92. A report prepared by Mr Simeon Payne, a caseworker with the Department of Family and Community Services was in evidence. It was prepared by Mr Payne with the input of Mr Solomon Freeman (a person with specialist knowledge of African cultures). It said at the outset that within an African cultural context, if a mother cannot look after a child, then it is assumed that the oldest maternal aunt will take on the role. If she is not able to do so, the responsibility devolves to the next eldest aunt and so on. It was said that this was “an absolute cultural assumption” and “a very clear African cultural assumption”. When interviewed, Aunt DO was reported to have said “there was no question in my mind” that she would care for MO and Mr Payne said she was “absolutely clear and adamant of her role [sic] in caring for MO”.

93. Mr Solomon apparently advised Mr Payne that within the African context, disclosing that a child had been the subject of abuse is very difficult as family members have a fear of being reported to government authorities which might result in legal consequences for them and that family member may blame the informer, potentially creating enmity and family divisions which might be seen as family betrayal.

94. It might be thought that such concerns are not unique to any particular community.

95. The report considered the suitability of Aunt DO as carer for MO and concluded that for many reasons, she would be appropriate.

96. The report concluded that placement with Aunt DU, also, would be culturally and religiously appropriate. Mr Payne commented that it had the collateral advantage of enabling MO to grow up with two maternal cousins of similar age.

97. Against the placement the report cautions that both Aunt DO and Aunt DU denied that the mother had in any way abused MO. These matters were enough to convince Mr Payne that the kinship placement was not appropriate in the circumstances.

98. Mr Payne also commented that whilst Aunt DU said that she would “do whatever the court decides” there was a question as to whether she personally agreed with it or was intrinsically committed to enforcing contact conditions.

99. Further, he said, Aunt DU took many months to complete the application to be a carer without adequate explanation and had not readily availed herself of the assessment process.

100. Mr Payne gave evidence in the Children’s Court. He expanded upon his concerns during that evidence, explaining that where a person does not really believe that abuse has not occurred, there is a risk that they wold allow unauthorized or unsupervised access of the parent to the child and were more likely to relinquish care. He conceded the strengths of a placement with a maternal aunt included the maintenance of familial relationships, religious and cultural continuity.

Ms Szyndler

101. Ms Szyndler is a court clinician who conducted an assessment report (dated October 2013) for the Children’s Court proceedings. It has not been updated. Ms Szyndler was not called to give evidence in this court. The purpose of the report was to assess the possibility of restoration of MO to her mother and thus was concentrated upon the mother and her parenting capacity rather than the placement of MO with her maternal aunt.

102. Ms Szyndler said that it would be in MO’s “best interests to return her care of her to her mother or another family member if this could be done safely. Ideally MO needs to grow up learning pidgin, as well as English, and be a part of a Nigerian community.”

Contact visits

103. There was evidence from caseworkers as to the contact visits that have occurred between the mother, Aunt DU and MO. They are recorded as generally positive and happy occasions.

Discussion and Findings

Denials of abuse

104. Two of the many reasons that applications such as the present are complex and difficult matters to resolve is firstly that much of the evidence is historical and not brought up to date and secondly that it contains hearsay which is not able to be explored or tested. A good example in the present case is the kinship report. It was prepared in October 2013 and has not been updated. Neither Mr Payne, nor the cultural expert that he consulted (Mr Freeman) gave evidence in this court. The report focussed on an anticipated application by Aunt DO to care for MO and was thus much of it was not strictly relevant. However, the most important reason for recommending against a kinship placement was the oft-repeated concern that the family and the mother in particular denied that the abuse of the baby occurred.

105. I am troubled about the last aspect in particular. Great emphasis was placed on assertions made by the mother to workers from Red Cross and the hospital to the effect that she was not coping with the baby, that she pinched and bit her and fed the baby her own vomit. Little or no emphasis has been placed on the possibility of the mother’s response being truthful – that she made it up in order to get attention and assistance from outside agencies. Yet it is accepted that the mother arrived in Australia from Nigeria where she had been raped and otherwise abused, that she was pregnant, in great distress and traumatized. Absent any medical or other evidence, it seems to me to be equally likely that the mother’s claims were fictional and crudely designed to obtain assistance as they are to be true.

106. The problem is that an acceptance of the latter view in favour of the former infects the rest of the evidence, in particular that of Aunt DU, not to mention the report of Mr Payne.

107. Submissions were made regarding Aunt DU’s beliefs about the matters that underpinned MO’s assumption into care. It was said that she denied or minimized the risk of harm. It is important to consider the evidence carefully. The mother was distressed when she took the baby to the hospital. As I have said, there is compelling evidence that she was traumatized by events in Nigeria that led to her receiving a protection visa in Australia. She was a new mother in a new country with a baby who was not feeding well. She said that she told Red Cross care workers and hospital staff that she pinched and hit the baby, fed her vomit and slapped her. However the hospital’s careful examination of the baby who, it will be remembered was only six months old, did not find any evidence of physical injury with the exception of a couple of minor and ambiguous marks on her leg. The mother herself has repeatedly said that the things she said were not true and that she said them because she wanted help.

108. The evidence of the mother’s sister, Aunt DO, (as told to and repeated by Mr Payne) was that the mother is “a gentle soul” and a “kind soul” whom she trusts with her own child. Aunt DO said that she could not believe it of her sister and that to her own observation, she had never been abusive to MO.

109. On the other hand, there are, as I have mentioned, the hospital notes in evidence. They comment upon the apparent bond between mother and baby. They raise concerns about her level of response to the baby’s needs. That these observations were made over a period of days by different staff members lends support to the view that rather than lying to authorities about her treatment of MO in order to gain attention, it may have been truthful.

110. I note that Ms Szyndler said in her report at paragraph 49 that “MO’s response to her mother suggests that she has anxiety about the relationship. As some of this behaviour (gaze avoidance) predates her assumption into care it can be concluded that the mother’s parenting of MO was at times “highly likely to have not been inappropriate [sic]””. I note that it was agreed that the word “inappropriate” in this paragraph should have read “appropriate”.

111. Ultimately of course what really happened may never be known and it is not for this court to make findings. The learned Children’s Court magistrate concluded that the mother physically abused MO. The parties have conceded the issue of establishment. My concern is to take care to give the evidence the weight which is warranted in all of the circumstances.

Cultural factors

112. Nigeria is a vast country of almost 200 million people with many tribal groups and languages.

113. The evidence of the mother is that her family come from southern Nigeria from the Esan culture. MO’s male carer has family who come from the north. The mother said that language, culture and food are different between the north and Esan.

114. Aunt DU is known to MO although the evidence does not support a finding that there is already in place a bond between them.

115. The evidence of Mr Watson-Munro was that potentially there may be a risk of psychological harm in moving MO from her current placement. However it is not something that cannot be ameliorated by a careful transition plan.

116. Placement of the child with a maternal aunt is highly desirable given the evidence about African culture to which I have earlier referred.

117. Aunt DU is a mother herself and all the evidence supports a conclusion that she is an affectionate and responsible mother and an engaged member of her extended family.

118. She has no child protection history, no criminal history, no adverse mental health history or drug and alcohol history. She is a registered nurse and has been employed in that capacity at Bankstown hospital for some time.

119. Whilst she is a single parent, she said that the children’s father is supportive and provides assistance to her, particularly with respect to her shift work. She also has the help of her mother, who minds the children when she is at work.

120. Aunt DU’s former husband did not give evidence and there is no direct evidence that he would be prepared to extend such assistance to his former wife in respect of MO.

Other aspects of Aunt DU’s application

121. Submissions were made in the Children’s Court and this court regarding Aunt DU’s apparent reluctance to make an application to care for MO and to engage in the assessment process. Ms Nguyen, caseworker, provided details of the history of this aspect of the matter in her affidavits. Throughout 2013, Aunt DU indicated that she intended to make an application and although a number of forms were sent to her, she seems not to have submitted it until late in 2013. There were then delays in having Aunt DU assessed. Her explanations were not entirely satisfactory but I place some weight on the (indirect) evidence of Mr Freeman that in African culture, the order of precedence of care for familial children is strict. It may be that Aunt DU held back in deference to her elder sister.

122. It was urged during final addresses that the court should place weight on the stability of the present placement. As I have mentioned, there has been a significant change in that situation since the hearing of the matter. They were carefully chosen because of the male carer’s Nigerian background. The carers are no longer together and I am told that the male carer does not want to be a carer for the child. I regard this development has highly significant.

123. The first matter that the court has to consider is whether the court has jurisdiction to make an order for care and protection of the child. This requires a consideration of the matters in ss.71 and 72.

124. The relevant period to be considered in this regard is from the date of commencement of proceedings (18 February 2013) until the making of final orders on 4 September 2014.

125. The finding that MO had been the subject of abuse was not challenged in this court. Having considered carefully the evidence and explanations given by the mother, balanced with the extensive nursing and hospital notes as well as the notes from members of the Child Protection Unit who interviewed the mother. I am satisfied that she physically assaulted MO in the hospital by slapping her face and inappropriately pulling her out of her pram.

126. Her explanations and denials given in the Children’s Court and before this court were not convincing. It is likely, to my mind, that she attended the hospital and spoke to various staff members in the hope and with the intention that they would provide her with assistance; such conduct would be entirely consistent with a young mother who was struggling to cope with a baby who did not feed well. It is also likely that when she spoke to those people (and there were a number of people and on different occasions) she was telling the truth.

127. Accordingly, I am satisfied that MO was, or was likely to be physically or sexually abused or ill-treated within the meaning of (s71(1)(c)) of the Care Act or that her basic physical, psychological or educational needs are not being met, or are likely not be to be met within the meaning of (s.71(1)(d)) of the Care Act whilst she was in the care of her mother in and about February 2013.

128. Pursuant to s.72(1), I am satisfied that MO was in need of care and protection when the circumstances that gave rise to the care application occurred or existed and that she would be in need of care and protection but for the existence of interim care orders. But for the arrangements that were put in place by the Children’s Court on an interim basis, MO would have been in need of care and protection.

129. I formally find that at MO was, in February 2013, a child in need of care and protection.

130. Having found that the court has jurisdiction to make an order, it must then determine under.83(5) whether to accept the Secretary’s assessment of whether or not there is a realistic possibility of restoration of the child to the mother.

131. I find that there is no realistic possibility of restoration of MO to her mother. It was not a course that was advanced by the mother and the evidence before me was not directed towards restoration to her. I would also add that her denials and explanations, referred to in paragraph (126) above, weakens any case for restoration.

132. The court must then consider whether or not permanency planning has been appropriately and adequately addressed.

133. The course to be adopted is the least intrusive intervention in the life of the child and her family: section 9(2).

134. The principles expressed in s.9(2)(b) and (d) are particularly relevant in the present case. They are

(b) In all actions and decisions made under this Act (whether by legal or administrative process) that significantly affect a child or young person, account must be taken of the culture, disability, language, religion and sexuality of the child or young person and, if relevant, those with parental responsibility for the child or young person.

(c) In deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child’s or young person’s development.

(d) If a child or young person is temporarily or permanently deprived of his or her family environment, or cannot be allowed to remain in that environment in his or her own best interests, the child or young person is entitled to special protection and assistance from the State, and his or her name, identity, language, cultural and religious ties should, as far as possible, be preserved.

135. I am not satisfied that permanency planning has been adequately addressed. MO has a strong and loyal family in Sydney. One member of that family, Aunt DU, has made a convincing application to be her carer.

136. Aunt DU is, I find, a suitable person to care for the child. She is her maternal aunt, she is well educated, a registered nurse in full time employment. She has two children of her own who appear to be thriving. Her husband, although estranged, is supportive and involved in the life of his family. I accept her evidence that she would care for MO as if she were her own.

137. I regard MO’s cultural needs to be of particular significance. Much care was taken by the Department to find out of home carers with a connection to Nigeria and those officers who made that effort are commended for their sensitivity and care. However, the relationship between carers has broken down and the person with the Nigerian background has left. Moreover, his connection with the cultural life of MO is tenuous in any event. One of his parents is from the north of Nigeria. He grew up mainly in the Philippines and Australia.

138. The evidence, which I accept, is that there are distinct and important differences between his tribal group and that of the family of MO. The differences include language, religion, dance, festivals, food and clothing.

139. MO has the right to be brought up in an environment which will nurture and develop her familial and cultural background. Aunt DU is almost uniquely placed to satisfy those matters.

140. I have considered carefully the concerns raised by Mr Payne as well as counsel regarding two matters: that Aunt DU does not or may not really believe that the mother was abusive to MO and that she may, therefore, accede to the mother having unsupervised access to MO.

141. Firstly, Aunt DU gave sworn evidence that her views as to the abuse had changed and that she believes and accepts the evidence of the nursing staff. She was not shaken in that evidence. She said that her first inclination was to believe her sister, particularly as she had not seen her abuse her baby, but that she could not overlook or ignore the direct observation of a nurse at Westmead Hospital.

142. Secondly, she said that if she had care of MO she would adhere strictly to the court’s orders regarding contact and if necessary, call (or threaten to call) the police if the mother attempted to approach her without supervision or approval.

143. I formed the impression that she is honest and sincere and I accept her evidence and her undertakings.

144. Similarly I accept the undertakings proffered by the mother. Whilst she could not seem to fully acknowledge her actions with respect to MO, I thought that she was sincere in her regret of the loss of MO. I accept that she loves and cherishes the baby. I accept her evidence about her desire to improve herself, both in terms of her emotional maturity and stability and in terms of her education and future. Her sincerity is amply demonstrated by her commitment to the TAFE bridging course that she is undertaking, her involvement in church activities, her established plan to go to university and her intention to make an application in due course under s.90 of the Act.

145. Ultimately the court has to assess the risk of harm to the child and balance that risk with the child’s cultural and familial needs and rights. Of paramount concern is her safety, welfare and well-being.

146. If MO is placed with her maternal aunt, there is a risk that the mother may have unsupervised access to her. However I assess the risk as low and it can be managed by an appropriate set of undertakings and orders. In coming to that conclusion, I have also taken into account that MO is no longer a baby but is three years and three months old. She is mobile, she can express herself and is more self-reliant now than when she was with her mother. The mother is not subject to the same stressors; she is not a single mother struggling to cope with past trauma.

135. There will be obstacles in the transition of care but I have no doubt that they can be managed gradually with careful planning.

136. I find that permanency planning has not been adequately addressed.

137. I find that the placement of MO with Aunt DU is the least intrusive intervention in the life of the child and her family.

138. I find that any other order would be insufficient to meet the needs of the child.

Orders

151. The appeal is allowed.

152. The Secretary is to prepare a permanency plan for the long term placement of MO with her maternal aunt, Aunt DU.

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Decision last updated: 18 May 2016