C v The Secretary, Family and Community Services

[2016] NSWDC 103

District Court

New South Wales

Medium Neutral Citation:	C v The Secretary, Family & Community Services [2016] NSWDC 103
Hearing dates:	23, 24 & 25 May 2016
Date of orders:	10 June 2016
Decision date:	10 June 2016
Jurisdiction:	Civil
Before:	Judge Levy SC
Decision:	Appeal allowed. See paragraph [131] for orders.
Catchwords:	CHILD CARE APPEAL – Aboriginal child in out of home care – parents unsuitable placement – whether parental responsibility should be allocated to the maternal grandmother despite a refusal by the Office of the Children’s Guardian to issue her with a clearance to work with children
Legislation Cited:	Administrative Decisions Review Act 1997, s 27(1) Child Protection (Working with Children) Act 2012, s 21 Children and Young Persons (Care and Protection) Act 1998, s 9, s 10, s 10A, s 13, s 105 Children and Young Persons (Care and Protection) Regulation 2012, reg 20
Category:	Principal judgment
Parties:	“C” (Appellant maternal grandmother) “D” (Child the subject of the appeal) Foster carers of the younger sibling (Intervener) Secretary of Family & Community Services and the Minister for Family & Community Services (Respondents)
Representation:	Counsel: Ms S Anderson (Appellant) Ms C Smith (Independent legal representative of child “D”) Mr P Denmeade (Solicitor for the intervener foster carers) Ms M Neville (Respondents)   Solicitors: Trenches (Appellant) Ms S Nanlohy, Legal Aid NSW (child “D”) Paul Denmeade & Co (Solicitor for the intervener foster carers) Crown Solicitor (Respondents)
File Number(s):	2016/13077
Publication restriction:	A non-publication order was made pursuant to s 105 of the Children and Young Persons (Care and Protection) Act 1998 – see paragraph [2]

Judgment

Table of Contents

Preface	[1]
Suppression orders	[2]
Litigation pseudonyms and parties	[3] – [6]
Background to the appeal	[7] – [13]
The child the subject of the appeal	[14] – [16]
Anomaly	[17] – [20]
Legislation	[21] – [24]
Issue for resolution	[25]
Key statutory provisions	[26]
The child’s present situation	[27] – [31]
Unavailability of clearance to work with children	[32] – [38]
Credibility of testimony	[39] – [62]
The appellant’s evidence	[40] – [54]
Ms Morrison’s evidence	[55] – [57]
Ms Lyons’ expert evidence	[58] – [62]
Appellant’s evidence	[63] – [98]
Ms Morrison’s evidence	[99] – [113]
Ms Lyons’ expert opinions	[114]
Consideration of the best interests of the child “D”	[115] – [128]
Conclusions	[129] – [130]
Interim orders	[131]

Preface

1. The paramount best interests of the child the subject of this child care appeal are best served if the appeal succeeds. That conclusion arises following a review of material evidence that was not available to the Children’s Court Magistrate, whose decision dated 21 December 2015, is the subject of the appeal.

Suppression orders

2. At the commencement of the hearing of these proceedings, on 23 May 2016, orders were made pursuant to s 105 of the Children and Young Persons (Care and Protection) Act 1998, prohibiting the publication of the names of the appellant and the child who is the subject of these proceedings, and also prohibiting the publication of any information or details of any other parties, witnesses or persons named in evidence, that would tend to identify those persons.

Litigation pseudonyms and parties

3. The litigation pseudonyms “C” and “D” have been respectively assigned to the appellant and to the child the subject of the appeal. Initially, the appeal also concerned the younger brother of “D”, now aged 2 years 3 months: T3.38.

4. The component of the appeal relating to that younger child has been formally abandoned by the appellant: T7.34; T57.20 – T57.27.

5. This was because of the appellant’s acknowledgment of the high medical needs of the younger brother, and her recognition and acceptance that the best interests of that child would be better served if he were to remain in the present foster care placement. This is so especially in view of the strong attachment the younger child has developed with the foster carers: T65.32 – T66.15.

6. In these reasons, it is not necessary to further identify additional family members other than by description of their relationship to the appellant and the subject child.

Background to the appeal

7. The appellant, a Bundjalung Woman aged 50 years, who is the maternal grandmother of the subject child, brings this appeal seeking to be allocated parental responsibility for her granddaughter, who is presently aged almost 4 years.

8. On 14 October 2014, the appellant became concerned about the child’s parental care environment, and that of a younger sibling. Those circumstances, which amounted to child neglect, posed unacceptable risks to the children due to the effects of parental alcohol abuse, and related domestic violence. The appellant therefore removed those children from the unsafe parental environment and commenced caring for them herself. The undisputed evidence is that the care the appellant provided thereafter, was appropriate. There is no suggestion of any reasonable prospect of restoring the children to the care of their parents.

9. On 28 November 2014, the Minister for Family and Community Services (“FaCS”) assumed the care of the children. The Minister then formally sought, and was later allocated, parental responsibility for the child, and for her younger sibling. Those steps were taken by the Minister in order to prevent the parents from asserting any further claim to responsibility for the care of the children without an order of a court. This appeal is not concerned with the younger sibling, who has special needs. It is common ground that he is in an appropriate care setting.

10. Ordinarily, having regard to the applicable permanent placement criteria, the appellant would have been a suitable care placement for the child the subject of the appeal, with the Minister holding parental responsibility. The appellant would have been content with that result if it was available. If that result had been available, the need for this appeal would not have arisen.

11. This appeal arises because the Minister and his delegate responsible for administering child care legislation, whilst retaining parental responsibility for the child, have been legally unable to place the child in the appellant’s care because of the effect of the interaction of legislative provisions dealing with the protection of children.

12. The issue which prevents the Minister or FaCS placing the care of the child with the appellant is the fact of a refusal by the Office of the Children’s Guardian (“OCG”) to issue a clearance to the appellant to enable her to work with children. Neither the Minister nor FaCS have discretion in that regard.

13. As a result, the child was removed from the care of the appellant and placed in foster care, with the Minister retaining parental responsibility. Somewhat unsatisfactorily, the child is now in her seventh placement in the period of what is now eighteen months since having been removed from parental care: T8.32; T36.2.

The child the subject of the appeal

14. The child “D” is one of four siblings, all of whom have special needs resulting from varying degrees of disability, ranging from foetal alcohol spectrum disorder, cardiac problems, feeding issues, spina bifida and hydrocephalus, speech therapy issues and developmental delays. In that mix, there are also some chromosomal or genetic issues. It is not necessary to here state which sets of disability affect particular children other than to say that the child “D” has a mild form of foetal alcohol syndrome, and is also in need of assistance with speech therapy. All of the children have been removed from parental care, and they presently all remain under the parental responsibility of the Minister.

15. Since August 2015, the child the subject of the appeal has been living with authorised and approved Aboriginal kinship carers. In the months leading up to the hearing of the appeal that arrangement was thought to have been in jeopardy because of the imminent release of the son of those carers from prison. More recently, those carers have indicated they may yet be able to provide long-term care to the child.

16. In those events the appellant has sought parental responsibility for the child the subject of the appeal.

Anomaly

17. An anomalous consequence of this appeal being successful is that there will necessarily be an adverse impact on the human rights of the child the subject of the appeal.

18. This will arise because the material and culturally appropriate assistance provided by Ngunya Jarjum, an accredited non-government organisation that provides assistance to indigenous communities in the Lismore area through the allocation of State funding resulting from an agency arrangement it has with FaCS, will no longer be available to be applied for the child’s benefit, as has been the case whilst the child has remained the responsibility of the Minister.

19. That source of cultural and other assistance will no longer be available for the benefit of the child once she has undergone a transition into the parental care and responsibility of the appellant.

20. That situation will unfortunately occur as an unintended consequence, notwithstanding that the paramount consideration of the safety and wellbeing of the child is best served by permanently allocating parental responsibility to the appellant. As a result, the financial assistance and other benefits described in the FaCS publication Caring for Kids, a Guide for Foster, Relative and Kinship Carers, will not be available to assist the appellant or the child: Exhibit “B”.

Legislation

21. The proceedings are ultimately governed by the provisions of the Children and Young Persons (Care and Protection) Act 1998 (“the Care Act”).

22. The proceedings have become complicated because the application of that Act is also affected by the Child Protection (Working with Children) Act 2012 (“the WWC Act”) and the Children and Young Persons (Care and Protection) Regulation 2012 (“the Care Regulation”), and the regulatory scheme by which the OCG either issues, or declines to issue, a Working with Children Check Clearance (“clearance”).

23. On 4 November 2015, the OCG refused to issue a clearance to the appellant which, if granted, would have enabled her to become the child’s placement carer under the supervision of FaCS. That refusal has led to FaCS being unable to place the child “D” into the care of her maternal grandmother, the appellant, whilst the child remains under the parental responsibility of the Minister: T5.10 – T5.17: reg 20 of the Care Regulation. The timing of that refusal has influenced the course these proceedings have taken. The reasons behind the refusal by the OCG to issue a clearance will shortly be considered in the course of these reasons.

24. Unfortunately for the appellant, and therefore for the subject child, due to an apparent misapprehension on the part of the appellant, she did not seem to understand that she could have sought to obtain legal aid in order to pursue a review of the non-clearance decision of the OCG in the NSW Civil and Administrative Tribunal (“NCAT”). I make no comment on the likely outcome of such a review if an application had been made for that to occur. In the result, the appellant instead opted to pursue this appeal with the assistance of a grant of legal aid. At the time, she did not realise she could have pursued a grant of legal aid for the former course, or for both courses.

Issue for resolution

25. It is common ground that the fundamental issue requiring resolution in this appeal is whether, in the paramount best interests of the child, the appellant should be found to be a suitable person to be permanently allocated parental responsibility for the child “D”, notwithstanding that the OCG has denied the appellant a working with children clearance: T6.20 – T6.27. That question must be evaluated within the factual framework within which it has arisen.

Key statutory provisions

26. The key statutory provisions that determine the outcome of this appeal are first, that the safety, welfare and wellbeing of the child are paramount considerations (s 9 of the Care Act), secondly, the statutory scheme for permanent placement according to a hierarchy which mandates a placement of the child with her family if this is reasonably practicable (s 10A of the Care Act), whilst also paying due regard and respect for the mandatory need to maintain the child’s connection to her Aboriginal culture and heritage: s 10 and s 13 of the Care Act.

The child’s present situation

27. Presently, the child “D” is living in a foster care placement which remains tenuous. In the event of an unsuccessful appeal, given the placement history to date, there remains a real prospect that a further foster care placement may be required, with other similar placements to possibly follow. If those events were to occur, this would be most disadvantageous for a four year old child with special needs, and also having regard to attachment issues.

28. The evidence of the consultant psychologist, engaged by FaCS, Ms Rosslyn Lyons, identified a most concerning array of potential adverse outcomes for this child if a broken attachment were to occur due to placement failure. Her evidence in the Children’s Court emphasised the need for the child to have a sustained and strong family attachment: Exhibit “A”, Tab 21, p 369.35.

29. Ms Lyons described the likely consequences of a broken attachment, in the light of the history to date, as comprising the prospect of the child becoming switched off emotionally, with the potential for related adverse spin-off effects on behaviour, such as non-compliance, reduced concentration, inability in coping with life situations generally, a propensity for drug and alcohol problems, potential difficulties in forming and maintaining relationships, and the coalescence of those problems.

30. If those consequences were to eventuate, this would not auger well for the child in the future. Consequently, Ms Lyons considered there was a compelling need to do everything possible to provide the child with stable and consistent circumstances to address those matters: T142.20 – T142.50.

31. It is plain that if adverse outcomes along the lines outlined by Ms Lyons were to eventuate, the paramount best interests of the child would not be best served, and the child would be exposed to significant damage. Therefore, such outcomes should be avoided if reasonably possible, whilst at the same time adhering to the mandatory principles which must be applied according to the governing legislation.

Unavailability of a clearance to work with children

32. The refusal of the OCG to issue a clearance to the appellant to enable her to work with children necessarily precludes the Minister and FaCS, who presently have parental responsibility for the child “D”, from legally placing the child “D” into the care of the appellant.

33. A feature of the manner in which the Care Act and the WWC Act inter-relate is that the Children’s Court, and therefore the District Court on an appeal from a decision of the Children’s Court, has jurisdiction and power to assign the parental responsibility for a child to a person who is considered by the Court to be suitable, notwithstanding that the OCG has already declined to issue a clearance that would enable that person to work with children.

34. The Care Act, the WWC Act, and the Care Regulation, each operate to protect children at risk of harm, including children who do not reside at home with their parents. Therefore, a decision which allocates parental responsibility for a child in care to a person unable to obtain the required clearance from the OCG, is an outcome that is not to be lightly reached.

35. It is relevant to record that a feature of the process by which the OCG either issues or declines to issue a clearance enabling a person to work with children, is that the assessment which leads to a decision on whether or not to issue a clearance, is restricted to an administrative review on the available papers.

36. That process affords no opportunity to the relevant decision maker within the OCG to weigh evidence by forming an assessment of witnesses by seeing them and hearing their oral evidence. In that sense, this Court is in a better position of advantage to assess whether, on the whole of the evidence available to the Court, the result or effect of the decision reached by the OCG, is one that truly serves the paramount best interests of the child who is the subject of the appeal.

37. Any decision of this court on that issue does not impact on the legal effect of the decision of the OCG. That decision can now only be modified or reversed by an out-of-time application to NCAT by leave, pursuant to s 27(1) of Administrative Decisions Review Act 1997, or by a further application to the OCG after the passage of 5 years following the earlier refusal to issue a clearance on 4 November 2015: s 21 of the WWC Act.

38. The disposition of this appeal essentially requires a consideration of the factual circumstances that led to the OCG’s refusal to issue the appellant with a clearance for working with children. In the course of that consideration, it becomes necessary to review aspects of the appellant’s historical and present situation in order to determine the likelihood of occurrence of unacceptable risk that may adversely affect the child “D” if parental responsibility were to be allocated to the appellant.

Credibility of testimony

39. Before reviewing the factual evidence of the respective witnesses, it is necessary to say something about the witnesses who gave oral evidence, and to identify my conclusions on the credibility and the reliability of their respective testimonies. Of those witnesses, the evidence of the appellant warrants the most extensive close attention because of the fundamentally important nature of the orders she seeks.

The appellant’s evidence

40. The appellant gave oral evidence in addition to her affidavits: T57 – T105; T107 – T118. The appellant’s affidavits sworn on 17 February 2015, 4 March 2015, 30 March 2015, 7 September 2015, 3 December 2015, 5 April 2016 and 13 May 2016 were tendered: Tabs 10, 11, 12, 13, 14, 29 and 34 of Exhibit “A”. The transcript of the appellant’s evidence given in the Children’s Court was also tendered: Exhibit “A”, Tab 21, pp 378 – 411.

41. On reviewing the appellant’s evidence as a whole, I considered her to be an impressive witness. This was so even though at times, it was emotionally difficult for her to recount the subject matter of aspects of her evidence, particularly with regard to the former abusive relationship she had with her estranged husband, and the related evidence she gave about the historical sexual abuse of her children by her estranged husband. She gave that evidence in a calm and impressive manner which indicated her life was no longer characterised by the more turbulent and troubled issues recorded in the historical records that were given emphasis by the OCG.

42. It is necessary to deal with an aspect of the appellant’s evidence which attracted scrutiny from FaCS, and from the Independent Children’s representative at the hearing of the appeal.

43. On the third day of the hearing, the appellant was re-called to give further evidence to disclose a matter that had not been raised or covered by her initial evidence: T107 – T118.

44. That further evidence concerned the circumstances in which one of her adult daughters with a partner and their child, as well as the appellant’s adult son, recently came to be living in the appellant’s household, and why the appellant had not disclosed those facts, either in her most recent affidavit filed in these proceedings, or in her oral evidence.

45. The appellant explained that those recent changes to her household arrangements were only temporary. Nevertheless, that late disclosure was an embarrassing matter for the appellant, and it required cogent explanation.

40. In the case of the appellant’s adult daughter and family, the explanation was that they had temporarily moved in to stay with the appellant whilst seeking other accommodation following the expiry of the term of the lease on the premises where they had been living: T107.12 – T107.44.

41. In the case of the appellant’s adult son, who is coincidentally employed by the accredited Ngunya Jarjum organisation, he had temporarily moved into the appellant’s house a few days before the commencement of the hearing of the appeal. This was because the home which he had previously been renting has been sold, and therefore he needed a place to stay whilst he too looked for other accommodation: T107.46 – T108.27; T117.29; T117.47.

42. I accept the evidence of the appellant that she will not have any of those persons living in her home once the child the subject of the appeal commences to reside with her: T108.29 – T108.38. I accept that the appellant appreciates the importance of this issue from the perspective of child protection and that she will act as she says she will. I am reinforced in that view because there will necessarily be a significant period of FaCS supervision of the appellant’s domestic situation which will accompany and follow the child’s transition into the appellant’s care: T112.47.

43. I am also satisfied that the appellant has a clear understanding that if other persons came to live in her home without the approval of FaCS, this would jeopardise her situation, and therefore also jeopardise her continued care of the subject child: T113.46; T115.25.

44. Also significant to the issue under present consideration is the fact that until final orders are made in this appeal with regard to the care of the child, the need for the appellant to appropriately limit the size of her household or, to give proper consideration to whom in particular should be in her household, has not yet arisen. Therefore, I consider that there is no relevant inconsistency in the appellant providing temporary accommodation to her other adult children and their immediate families, although it would have been better if those matters had been disclosed at the outset of the hearing, if not beforehand.

45. Although the appellant’s omission to disclose the living arrangements as reviewed in the preceding paragraphs gave rise to an understandably expressed concern by FaCS as to whether or not the appellant was initially not frank in giving her evidence (T140.10), on assessing the appellant’s answers and on reviewing the carefully considered explanatory evidence of Ms Lyons, I consider that question has been adequately addressed through satisfactory evidence in the appeal.

46. The expert perspective provided by Ms Lyons was to the effect that the appellant’s initial non-disclosure should be seen as being as a result of the appellant’s historically based fear concerning the Departmental removal of Aboriginal children, and the related historical problems of a perceived lack of trust of the Department by Aboriginal people. I accept as apt the opinion expressed by Ms Lyons that such issues could and should be addressed by assisting the appellant to develop an effective working relationship where she could feel more trustful of the Department: T140.17 – T140.44.

47. The appellant’s evidence was closely tested by cross-examination. In that process, a tension emerged between the obligations the appellant would have to adhere to if she were to be allocated parental responsibility for her granddaughter “D”, and in relation to her other family role as a parent to the unsuitable mother of that child. Circumstances were examined in the evidence where she might find herself the subject of conflicting loyalties in those respects. That matter will shortly be the subject of specific consideration in these reasons.

48. In my view, the appellant’s hesitant, but nevertheless honest answers when questioned on those matters, did not detract from the reliability or the credibility of her testimony. Instead, it reinforced my impressions of the appellant’s overall honesty and candour. I considered her evidence to be truthful and reliable.

Ms Morrison’s evidence

55. Ms Susan Morrison, the manager of case work at the Lismore office of FaCS, gave oral evidence: T14 – T55; T119 – T123. She has a working knowledge of the FaCS file concerning child “D” and the appellant, both of whom are known to her: T14.9 – T14.25; T35.37.

56. Ms Morrison’s evidence also comprised her affidavits sworn on 15 January 2015, 1 December 2015, 6 April 2016 and 2 May 2016. The transcript of the evidence she gave in the Children’s Court on 9 September 2015 was also tendered: Exhibit “A”, Tab 21, pp 322 – 361.

57. I consider that Ms Morrison gave careful and considered evidence on factual matters of concern to FaCS. There were no concerns over the credibility or the reliability of her evidence. As was her duty, she was clearly focussed on the paramount interest of the safety, welfare and wellbeing of the child “D”.

Ms Lyons’ expert evidence

58. Ms Lyons gave oral evidence: T124 – T145. A report prepared by Ms Lyons on 14 April 2015, which was before the Children’s Court, was tendered in the proceedings: Exhibit “A”, Tab 6, pp 39 – 55. The transcript of the evidence that Ms Lyons gave in the Children’s Court on 9 September 2015 was also tendered: Exhibit “A”, Tab 21, pp 363 – 376.

59. In these proceedings, because of timing and budgetary constraints, Ms Lyons had not been asked to prepare a further report. However, with the acquiescence of the parties, she gave updated evidence orally, based on her assessment report dated 14 April 2015, her observations made at the Children’s Court proceedings, and on the contact visit on 17 May 2016, as well as having observed and heard the evidence given by both the appellant and by Ms Morrison in the present appeal proceedings.

60. The effect of the evidence of Ms Lyons was that throughout her consideration of the situation of the child “D”, and that of the appellant, and for the reasons that she identified, she remained of the professional opinion that it was appropriate that parental responsibility for the child “D” be allocated to the appellant. Ms Lyons’ reasons for that view were sound and they were not the subject of challenge.

61. For present purposes, it is sufficient that I record my conclusion that Ms Lyons gave considered opinion evidence, with sound supporting reasons. There was no suggestion that her evidence on those matters was anything other than reliable.

62. I now turn to record summaries of the salient factual evidence of the respective witnesses before moving on to a consideration of the matters calling for decision.

Appellant’s evidence

63. The appellant’s background circumstances involved considerable difficulty and disadvantage, as appears in the following summary.

64. The appellant grew up in a rural setting at Box Hill Mission. The geographic centre of her immediate family is in Coraki, near Lismore, NSW. Her upbringing was in circumstances of disadvantage. At the age of 16 years, her mother died, and thereafter she assumed the responsibility for looking after her siblings. Those circumstances interrupted her formal education. The appellant presents as an intelligent and articulate person who gave thoughtful and careful answers to questions asked of her in these proceedings.

65. She has raised seven of her own children, five daughters and two sons. Three of her daughters are still at school, and still live at home with the appellant. She does not work in paid employment. At present, the theological studies she has been undertaking have been interrupted by childcare responsibilities. If the appellant were to assume parental responsibility for the child the subject of the appeal, initially at least she would be dependent on Centrelink payments according to whatever entitlement she may have, and she would also need the support of other community organisations as anything that she might have otherwise received from Ngunya Jarjum for the child will no longer be available to her.

66. It is clear that the appellant has a focussed sense of family. In her evidence, she recounted something of the complexity of her extensive indigenous ancestry, including Kanakan ancestry, which extends to the far North Coast of NSW: T59.13 – T59.39; T60.19; Exhibit “D”. It is clear that the connection of family is an important and central focus in her life.

67. The appellant presents as a confident and determined person who is now in control of her living circumstances. That was not always the case. With much effort, in recent years, she has managed to achieve a turning point in her life following her decision to sever her relationship with her husband. It is relevant to identify the context of her decision in that regard.

68. At the age of 22 years, the appellant gave birth to a daughter who is the mother of the child “D”. At the age of 27 years, the appellant commenced a relationship with the man who, 5 years later, became her husband.

69. There is a background history of the involvement of FaCS and the police in relation to the appellant and her family in those circumstances.

70. Over the years, the relationship between the appellant and her husband became problematic. This was because of his use of alcohol and because he was abusive and violent towards her, and because he has behaved inappropriately, and in an improperly and sexually abusive way to their daughters: T40.8 – T40.11. Relevantly, and unfortunately, that sexual abuse was also directed at the mother of the child “D”: Exhibit “A”, Tab 6, p 43. It is not necessary to here examine in detail a possible link between that misbehaviour and the mother’s problems with alcohol abuse, but it seems to be a reasonable working hypothesis.

71. Ultimately, after mounting concerns over allegations regarding the husband’s sexual abuse of their children, a marital separation occurred. Those circumstances led to the appellant solidifying her decision to divorce her husband.

72. The estranged husband has made several unwelcomed attempts to re-establish family contact. As a consequence, the appellant has obtained an apprehended domestic violence order which remains in force with the effect of prohibiting her estranged husband from approaching the appellant and their children. That order is capable of being periodically renewed on the application of the appellant. I accept the evidence of the appellant to the effect that she intends to do so: T84.13 – T84.39.

73. The appellant’s evidence on those matters satisfies me that she is determined to take all reasonable steps to ensure that her estranged husband will have no further place in her household and in her life. He does not know her present address and he does not have her telephone number: T85.23 – T85.49. She maintains an alcohol free house.

74. I am also satisfied that in the best interests of the child “D” and the appellant’s other children living with her at home, the appellant also intends to take a similar course regarding the proposed renewal of the apprehended violence order that she has obtained against her daughter, the mother of the child “D”, in the interests of child protection: T77.29 – T77.40; T80.44; T83.8 – T83.49; T93.7 – T94.40.

75. The need for the apprehended violence order against the mother of child “D”, is because the mother has a propensity for alcohol intoxication, with deleterious behavioural consequences to which the child should not be exposed: T77.44; T80.44; T81.40.

76. When intoxicated, the mother clearly poses a risk to the child: T88.23 – T88.31. In addition, the father of the subject child has a history of alcohol abuse and violence: T83.34. I am satisfied that the appellant has a good insight into those problems, and I am also satisfied that the appellant has a keen appreciation of the need to protect the child from the deleterious effects of such adverse influences.

77. Those conclusions are a convenient starting point to an overview of the appellant’s history in light of the content of the correspondence dated 4 November 2015 from the OCG, which set out the reasons for the refusal to grant the appellant a clearance to work with children: Exhibit “A”, Tab 29, pp [518] – [548].

78. On 4 November 2015, the OCG decision maker had before him an array of 18 categories of documents, a significant portion of which were not in evidence in this appeal: Exhibit “A”, Tab 29, p 520.

79. Significant amongst the matters relied upon by the OCG in declining to issue the appellant with a clearance were three convictions for what was described as violent offences involving assaults, respectively occurring 21 years, 19 years and 6 years earlier, namely in 1994, 1996 and 2009.

80. The first of those matters related to a physical altercation with a Land Council employee at a stormy meeting in 1994. At that time the appellant was aged 28 years. I consider that matter to be of historical relevance only. It has little if any bearing on the appellant’s present circumstances.

81. The second of those matters related to a conviction for common assault in 1996, when the appellant was aged 30 years. No details of those events were available. I similarly regard that matter to be of historical relevance only, also of little if any bearing on the appellant’s present circumstances.

82. The third incident, in 2009, which is more significant in this context, was described as a violent assault by the appellant, then aged 43 years, on a 14 year old girl, a niece, whereby the appellant allegedly grabbed the girl by the hair, threw her to the ground, whereupon she allegedly punched the girl numerous times, and also pushed the girl on the chest causing her to stumble backwards. The victim apparently received a scratch to the nose: Exhibit “A”, Tab 29, p 521.

83. There were other historical offences which were not particularised in detail and which do not require consideration in this context: Exhibit “A”, Tab 29, p 522.

84. Given the 2009 conviction for assault, the OCG determined that there is a likelihood in relation to risk of harm concerns towards children. Notwithstanding the subsequent favourable and supportive references the appellant provided to the OCG, a decision was made based on a determination involving “extensive material” which was summarised.

85. That summary included factors such as the appellant’s three grandchildren, the children of her daughter who is the mother of “D”, were in the care of the Minister, historical FaCS involvement with the appellant’s six children during the time of her abusive marriage to her now estranged husband, and more positively, a 2015 relative and kinship report indicating that there were no concerns over the appellant’s ability to care for the child the subject of this appeal. Despite that more recent positive report, the OCG letter concluded the appellant posed a risk to the safety of children: Exhibit “A”, Tab 29, p 523.

86. Significant amongst the considerations relied upon for the decision of the OCG was the 2009 conviction for assault. In oral evidence, the appellant explained the underlying circumstances of the 2009 incident in a different light.

87. The victim of the 2009 assault was the appellant’s 14 year old niece. The appellant had been taunted by that girl with comments to the effect that as a result of her marital separation she had become homeless, and that her husband was a paedophile: T74.15 – T74.38.

88. In response to those taunts, the appellant had become angry and slapped her niece, who at that time, had apparently stepped back, lost her footing and fell, catching her hair on the appellant’s handbag in the process, and also sustaining a scratched nose: T71.25 – T73.2.

89. I have had the advantage of seeing, hearing and considering the appellant’s explanation in that regard. I consider her account was open, sincere and truthful. Had there been cogent contradictory evidence, I consider it would have been used to contradict the appellant’s account.

90. Since that 2009 event, significantly, the appellant has pursued and received counselling for her anger over the actions of her estranged husband. Following insights gained from that process, it seems unlikely that she would respond with physical violence to a repetition of such provocative taunting. I accept that the appellant has experienced significant personal growth and resilience since those 2009 events.

91. That conclusion is supported by the more recent evidence of the appellant’s exercise of restraint when her daughter, the mother of the subject child, struck the appellant over the head at a counselling session. The appellant did not respond physically, in circumstances where the inclination to do so must have been compellingly strong.

92. It is plain from the evidence that the decision of the appellant to remove herself from contact with her husband has been a turning point in her life. In that regard, I accept the evidence of Ms Lyons’ professional opinion to that effect: T136.42.

93. That opinion was supported by the comments of the Aboriginal Community Liaison Officer at Lismore Police Station, who noted that until that turning point had been reached with the assistance of police, and counselling services, the appellant had been completely powerless from disengaging herself from the abusive and intimidating relationship she had with her now estranged husband: Exhibit “A”, Tab 6, p 47, p 51.

94. Despite having ceased formal education after the death of her mother, the appellant has undertaken and completed carer training with the Ngunya Jarjum organisation: Exhibit “A”, Tab 6, p 52.

95. When Ms Lyons assessed the appellant on 14 April 2015, her recommendation was for the subject child to be placed in the care of the appellant as soon as possible, with appropriate assistance: Exhibit “A”, Tab 6, p 54.

96. In her updated evidence given orally, Ms Lyons stated that her recommendations made in that regard remained unchanged, and she added that she was quite impressed by the appellant’s continuing confidence: T126.45 – T126.47. Ms Lyons considers it to be in the child’s best interests that she live with the appellant regardless of the legal arrangements around that position: T127.20.

97. In making that recommendation, Ms Lyons made the observation of her awareness in the community of some Aboriginal men with long criminal histories, and histories of violence against women and children, who have changed their lives and have been approved to work with young people, although she was unaware of the process by which that had been achieved: T143.42 – T143.49; T144.15 – T144.18.

98. I accept that the appellant’s life circumstances have undergone significant change for the better, with stability, since the events the OCG considered to be disentitling to the appellant assuming child care responsibilities for child “D”.

Ms Morrison’s evidence

99. In the paragraphs that follow, some salient observations by Ms Morrison are recorded.

100. Ms Morrison confirmed that but for the refusal of the OCG to issue a working with children clearance, the child “D” would have been permitted to remain in the care of the appellant without the intervention of FaCS, subject to a full placement assessment: T22.35 – T23.4.

101. Ms Morrison confirmed that before the child “D” was taken into care, the appellant had been very open with FaCS about her concerns over the mother’s alcoholism, and the ability of the mother to care for the children: T23.42 – T23.46; T24.1 – T24.5; T26.12 – T26.16.

102. Ms Morrison agreed that the advent of the appellant’s decision to separate from her husband, together with the assertive action of securing the benefit of an AVO against her husband, marked “a very big turning point” in her life: T27.22 – T27.28. Ms Morrison confirmed her view that should a possible conflict arise between any of the appellant’s concerns for the child’s mother, and any needs of the child “D”, there was no evidence that such a conflict had occurred after the “turning point”: T28.25.

103. Ms Morrison also confirmed that in her view, the appellant had demonstrated a willingness to put into place appropriate measures to provide protection for any possible or likely deleterious behaviours on the part of the child’s mother by means of an AVO: T27.36 – T27.47.

99. Ms Morrison confirmed that although the appellant had in the past hesitated over calling the police to report any untoward behaviour of the mother, the fact that the appellant had ultimately done so, demonstrated a willingness on the part of the appellant to focus on the primary issue of the care of the subject child: T28.29 – T29.1.

100. Ms Morrison also acknowledged that whilst in the past, the appellant had shown a capacity for violence (T29.33) in more recent times, the appellant had shown self-restraint and calmness in the face of significant provocation including when the child’s mother struck the appellant on the head at a counselling session: T29.31 – T29.49.

101. Ms Morrison confirmed that the appellant had been engaged in appropriate supervised contacts between the appellant and the subject child through the Ngunya Jarjum organisation: T30.35.

102. Ms Morrison confirmed that the strongest bond in the life of the child “D” was her attachment to the appellant, her maternal grandmother: T34.23; T42.50.

103. Ms Morrison confirmed that a safeguard for the welfare of the child “D”, if placed within the care of the appellant, was the ability of FaCS to monitor the appellant’s compliance with conditions and undertakings with regard to the welfare of the child: T33.25 – T33.42.

104. In the event of a decision that the appellant be allocated parental responsibility for the child “D”, Ms Morrison identified the need for an appropriate transition plan: T38.32. She considered that the child has no immediate special needs although there are concerns that she has some mild delays and some speech and language problems: T39.22 – T39.33.

105. Ms Morrison made no specific criticisms of the care that that appellant had previously provided to the child: T41.36. Furthermore, Ms Morrison indicated that FaCS did not hold any serious concerns about the appellant’s ability to manage the day-to-day care of the child “D”: T45.40 – T45.42; T46.45.

106. Ms Morrison believed that if the appellant were to be allocated sole parental responsibility for the child, the appellant would be making appropriate decisions as to naming, schooling, safety, and the child’s cultural needs: T48.5 – T48.28.

107. The major concern of FaCS was the appellant’s ability to adequately control the relationship or contact between the child and the mother: T48.39 – T48.46. It was for that reason that FaCS was recommending that there be a long-term order for parental responsibility for the care of the child, and for monitoring of the child, remain allocated to the Minister: T49.30 – T49.48.

108. Whilst Ms Morrison held some concerns that the appellant may not be able to manage the relationship between herself and the mother of the child “D”, she agreed that a provision for long-term supervision in the monitoring of the placement of the child and the related undertakings would provide a measure of confidence regarding safety concerns in relation to that issue: T47 – T49; T51.19.

Ms Lyons’ expert opinions

114. Having considered the evidence as a whole, I am comfortably satisfied of the aptness of the last stated conclusion reached by Ms Morrison as referred to in the preceding paragraph, especially having heard the evidence of Ms Lyons: T136.30; T136.40 – T136.42. Having analysed, referred to, and considered the opinions expressed by Ms Lyons at paragraphs [28] – [30]; [51] – [52]; [58] – [61] and [96] – [97] above, it is not necessary to repeat that analysis here, other than to say that I accept the detail and force of her analysis.

Consideration of the best interests of the child “D”

115. There is no dispute that the child “D” has a significant and enduring attachment to her maternal grandmother, the appellant: T8.38; T34.23; T42.50.

116. Were it not for the refusal of the OCG to issue a working with children clearance to the appellant, FaCS would have considered that placement of the child “D” with the appellant was appropriate: T8.43; T9.44. Unfortunately, the adverse decision by the OCG was made before FaCS was able to endorse the appellant as a suitable authorised carer for the child “D”, and thereafter, an endorsement to that effect was not legally possible.

117. In this context, a fundamental question arises as to whether a person with convictions for common assault, including on a 14 year old girl, should be allocated the parental responsibility and care of a 4 year old child.

118. Following upon my review of the conclusions of the OCG, and my review of the appellant’s explanatory evidence on those matters, which I accept, I consider that the evidence as a whole overwhelmingly points to the suitability of the appellant for allocation of parental responsibility for the child the subject of the appeal. That conclusion is also supported by the array of impressive references that were presented to the OCG: Exhibit “A”, Tab 29, pp 520 – 530.

119. That said, it is important in the interests of child safety, and in the appellant’s interests, that adequate provision be made for supervision and support both during the transition of the transfer of the care of the child to the appellant, and for a period of supervision by FaCS.

120. I therefore consider that the period of supervision by FaCS following transition should be for a further 2 years.

121. That period of supervision ought to enable a consolidation of the appellant’s personal gains in more recent times, and for FaCS to be confident of those gains, as well as ensuring the appropriate community supports in substitution of the Ngunya Jarjum services are co-ordinated and work well: T131.38 – T132.2; T141.8 – T141.19.

122. That period will also enable monitoring of the appellant’s resolve to keep the child’s mother at a distance pursuant to the requirements of the AVO against her which is presently in place, whilst at the same time facilitating the assistance of the appellant’s family as a supportive mechanism for that purpose, as was foreshadowed by Ms Lyons, who identified this factor as being an important measure to have in place so that the appellant is not set up to fail for want of support for the tasks she is about to undertake: T139.13 – T139.38.

123. Whilst those measures are desirable as sources of assistance for the appellant in managing any possible disruptive effects of the mother’s random attempts at contact, ultimately, it will fall to the appellant to manage those situations herself, whether or not she can call upon the assistance of other family members, as has happened in the past.

124. In that regard, I am satisfied that if and when a conflict of loyalties arise for the appellant, calling upon her to choose between the needs of her daughter and the child in her care, the appellant will be able to call the police to enforce the AVO she has against her daughter prohibiting any approaches. She has shown that she was capable of doing this in the past: Exhibit “E”. That historical example provides a considerable measure of confidence that the appellant is capable of pursuing that course again, should it become necessary to do so.

125. The appellant was questioned as to her understanding of the obligations she would be assuming with regard to the undertakings she would be required to give if parental responsibility for the child were to be allocated to her. Her answers indicated she knew what was now expected of her in that regard: T98 and following.

126. The effect of those undertakings were as follows:

1. To abide by any guidance and directive of an Officer of the Secretary of the Department of Family & Community Services;

2. To ensure that she would place the child's needs, care and safety foremost;

3. To ensure that the child attends pre-school/care and school on time, and be appropriately dressed and with adequate food supplies within her direct care;

4. To ensure that the child's appointments with specialists, counselling, medical and health services are attended and any strategies and guidance in relation to supporting the child are followed diligently and with care as directed;

5. To engage with a service that supports and enhances her parenting skills, such as, but not limited to, family support service;

6. To advise the Department of Family & Community Services of any change to her living circumstances or living arrangements within 24 hours of that change;

7. To provide an Officer of the Department of Family & Community Services with consent to obtain verbal and/or written information from the medical, health and/or specialists, or other services that she might be engaged with from time to time;

8. To accept guidance from, and comply with, any reasonable direction of an Officer of the Secretary, Department of Family & Community Services in compliance with any obligations under the supervision order and fulfilling the obligations created by this undertaking;

9. Not to allow the mother or the father to have any contact with the subject child, other than as directed by the Department.

127. In addition, during argument, there was consensus that there should be a further undertaking given by the appellant to the effect that she should not deliberately or knowingly place or allow the subject child in the immediate presence of persons consuming alcohol: T171 – T172.

128. Following on from the above findings and conclusions, it becomes necessary for the parties to arrive at a suitable permanency plan that reflects the above matters whilst also having due regard to Ms Lyons’ views in order to ensure that the appellant is not set up to fail in her endeavours. In that regard, the support and assistance of the appellant’s wider family should be enlisted so they too appreciate the significance of the wider circumstances and the appellant’s onerous obligations which flow from the parental responsibilities that she will now assume with regard to the child “D”.

Conclusions

129. The appellant has succeeded in showing that the orders of the Children’s Court should be set aside in favour of an order that parental responsibility for the child “D” should instead be allocated to the appellant maternal grandmother rather than to the Minister as was ordered by the Children’s Court.

130. As a consequence of that conclusion, the permanency and care plans proposed on behalf of the Minister are not approved. Accordingly, and consistent with these reasons, it becomes necessary to defer the making of final orders pending the preparation of a fresh permanency plan providing for the transition and transfer of the long-term placement and care arrangements for the child “D” to the appellant. The paramount best interests of the child “D” require that finalisation of that fresh permanency plan proceed to completion, with due care, and as soon as practicable.

Interim orders

131. Pending the making of final orders, I make the following interim orders which will remain current subject to any further order of the Court:

1. Appeal allowed;

2. The Secretary of the Department of Family and Community Services is to prepare a new permanency plan consistent with these reasons;

3. The proceedings are to be listed before me in Sydney on 1 July 2016, for the specific purpose of the parties bringing short minutes that set out the required draft orders to reflect these reasons, and which also fulfil any formal requirement of the Children and Young Persons (Care and Protection) Act 1998. If necessary, the appearance of remote parties may be by audio-visual link;

4. If required, liberty is granted to the parties to apply to the Court to re-list the matter on such abridged notice as may be necessary for the purpose of implementing these interim orders, and in order to assist to identify the required final orders;

5. The exhibits are to be retained in the Court file pending further and final orders.

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Decision last updated: 10 June 2016