D-G of Department of Human Services (NSW) & Tran & Anor
[2010] FamCAFC 151
•20 August 2010
FAMILY COURT OF AUSTRALIA
| DIRECTOR-GENERAL OF THE DEPARTMENT OF HUMAN SERVICES (NSW) & TRAN AND ANOR | [2010] FamCAFC 151 |
| Per Faulks DCJ and May J: Per Faulks DCJ, May and Boland JJ Per Boland J: Per Faulks DCJ, May and Boland JJ FAMILY LAW - COSTS –No party either wholly successful or unsuccessful in the appeal – Complex content and circumstances – Costs certificates awarded. |
| Acts Interpretation Act 1901 (Cth) Children Legislation Amendment (Wood Inquiry Recommendations) Act 2009 (NSW) Family Law Act 1975 (Cth) Family Law Reform Act 1995 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) Guardianship Act 1987 (NSW) Judiciary Act 1903 (Cth) Family Law Rules 2004 |
| Aldridge & Keaton (2009) FLC 93-421 B and B: Family Law Reform Act 1995 (1997) FLC 92-755 British American Tobacco Australia Ltd v The State of Western Australia and Anor (2003) 217 CLR 30 Chappell & Chappell (2008) FLC 93-382 Hennessy & Rhys [2007] FamCA 160 House v The King (1936) 55 CLR 499 Mulvany & Lane (2009) FLC 93-404 Newlands and Newlands (2007) 37 Fam LR 103 Schmidt & Schott and Ors [2008] FamCA 447 Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 Simpson & Brockmann (2010) 43 Fam LR 32 Starr & Duggan [2009] FamCAFC 115 Allsop J “Introduction to the Jurisdiction of the Federal Court of Australia” (FCA) [2007] FedJSchol 18 |
| APPELLANT: | Director-General of the Department of Human Services (NSW) |
| 1ST RESPONDENT: | Ms Tran |
| 2ND RESPONDENT: | Mr Ferguson |
| INDEPENDENT CHILDREN’S LAWYER: | Ewan Eggleston |
| FILE NUMBER: | SYC | 643 | of | 2008 |
| APPEAL NUMBER: | EA | 131 | of | 2009 |
| DATE DELIVERED: | 20 August 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Faulks DCJ, May and Boland JJ |
| HEARING DATE: | 2 February 2010 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 30 October 2009 |
| LOWER COURT MNC: | [2009] FamCA 1026 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Anderson |
| SOLICITOR FOR THE APPELLANT: | Crown Solicitor’s Office |
| COUNSEL FOR THE 1ST RESPONDENT: | Mr Jamieson |
| SOLICITOR FOR THE 1ST RESPONDENT: | Di Lizio & Associates |
| COUNSEL FOR THE 2ND RESPONDENT: | Mr Cook |
| SOLICITOR FOR THE 2ND RESPONDENT: | Redmond Hale Simpson | |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Moore | |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Slade Manwaring Solicitors |
Orders
The appeal is allowed.
The orders made by Justice Rose on 30 October 2009 are set aside.
The matter is remitted for re-hearing in the Family Court of Australia by a judge other than Justice Rose.
Until the further hearing and determination of the matter, the orders made in the Federal Magistrates Court of Australia on 1 August 2008 continue, as amended by orders 4, 5 and 6 made by Justice Rose on 6 November 2009.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred in relation to the appeal.
The Court grants to both the first and second respondents and the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each respondent in respect of the costs incurred by them in relation to the appeal.
The Court grants to the appellant, both the first and second respondents and the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to them in respect of the costs incurred in relation to the re-hearing.
IT IS NOTED that publication of this judgment under the pseudonym Director- General of the Department of Human Services (NSW) & Tran & Ferguson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 131 of 2009
File Number: SYC 643 of 2008
| Director-General of the Department of Human Services (NSW) |
Appellant
And
| Ms Tran |
First Respondent
And
| Mr Ferguson |
Second Respondent
REASONS FOR JUDGMENT
FAULKS DCJ
I have had the benefit of reading both the reasons for judgment of May J and the reasons for judgment of Boland J.
Based on the reasons for judgment of May J, I respectfully agree with her Honour that the appeal should be allowed. I would, however, respectfully agree with the reasons for judgment of Boland J with respect to her Honour’s discrete analysis of the operation of the Judiciary Act 1903 (Cth), the Family Law Act 1975 (Cth) and the Children and Young Persons (Care and Protection) Act 1998 (NSW).
MAY J
Introduction
This is an appeal by the Director-General of the Department of Human Services (NSW) (“the Department”) against parenting orders made by Justice Rose on 30 October 2009. The Director-General is an intervener in the proceedings between the father and the mother. The Court appointed an Independent Children’s Lawyer who also appeared in this appeal.
As a result of an order made by his Honour the child became a “protected person” pursuant to the State Act of NSW, the Children and Young Persons (Care and Protection) Act1998 (“the CYP Act”). It is argued that the Director-General should be solely responsible for the accommodation of the child. It is submitted that the judge should not have ordered the child live with the mother.
The child, N, who is now five was born in October 2004. She is currently living with a foster family by arrangements made through the Department. Rose J made an order on 6 November 2009 that there be a stay of the parenting orders pending the determination of the appeal.
The appeal is from orders (3) to (15). The relevant parts of the judge’s orders are as follows:
(2)That the Intervenor have sole parental responsibility for the major long-term issues in relation to the child as follows:-
(a) The child’s education (both current and future); and
(b) The child’s religious and cultural upbringing; and
(c) The child’s health; and
(d) The child’s name; and
(e)Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
(3)That the child live with the Mother which shall commence on or before 10am Saturday 7 November 2009.
(4)That the Intervenor do all things necessary to facilitate the implementation of Order 3.
(5)That the Intervenor monitor and provide guidance to the Mother and Father in relation to the care of the child by each of them on a monthly basis for six months, commencing on or before 14 November 2009 and thereafter periodically as the Intervenor considers appropriate consistent with the parental responsibility conferred upon the Intervenor pursuant to Order 2.
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(9)That each of the Mother and Father have the sole responsibility for the day to day care, welfare and development of the child while the child is living with her or him as the case may be.
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(13)That in the event of the child becoming seriously ill or injured whilst in the care of either the Mother or the Father then the parent who has the care of the child shall inform the other parent as soon as possible of the detail of such illness or injury and the name and address of the relevant hospital or medical practitioner providing treatment for the child.
Detailed provision was made in orders (6) to (8) for time the father is to spend with the child, unsupervised, ultimately to include alternate weekends and school holidays.
Background
The factual background is largely uncontroversial although it involves many serious features in relation to the parents. In 1993 the mother was convicted of manslaughter of a former boyfriend and sentenced to a non-parole period of 18 months. The father has spent time in prison on several occasions for a range of offences related to alcohol and drugs, break and enter and domestic violence. The mother complained to the police that the father sexually abused the child, although at the trial before Rose J, she did not ask that time the child spends with him be supervised.
The mother and the father commenced living together at the end of 1999 in Western Australia. They separated in 2000. Shortly after the first separation the parties commenced living together in Sydney, but separated once again in the second half of 2002. The mother remained in Sydney and the father moved to Adelaide. Towards the end of 2003, the parties resumed living together in Sydney. It was during this time that the child was conceived.
Four weeks following the birth the mother returned to work in the entertainment industry, Monday to Friday from 9.15am to 11.00pm. While the mother was at work the father cared for the child until a nanny was employed when the child was seven months old. From mid 2007, the child attended a day care centre five days per week.
On January 2008 there was an incident of domestic violence. Days later on 16 January 2008 the mother consented to an Apprehended Violence Order (AVO) being made against her. The mother was required to leave the home. The mother appealed against the AVO in February 2008.
On 6 February 2008 the mother filed an application for parenting orders in the Federal Magistrates Court of Australia at Sydney. In that application the mother sought orders on an interim and final basis that the child reside with her and have contact with the father and that the parties have joint parental responsibility for the child. An order was also sought on an interim basis that the father vacate the home within 21 days.
On 12 June 2008 in the District Court the mother’s appeal against the AVO was allowed. On that day the mother returned to live in the home.
Following the mother’s return to the home there were further domestic violence incidents between the parents. The mother contacted the E Police on 20 and 21 June 2008.
On 27 June 2008 the mother claimed she witnessed the father sexually abusing the child. The following day the mother took the child to the police station. The child made statements to the police consistent with sexual abuse by the father.
On 29 June 2008 the Department of Community Services (now the Department of Human Services) received information from the NSW Police in relation to the alleged incident of sexual abuse by the father and an investigation was commenced by the Joint Investigative Response Team (JIRT). JIRT is made up of officers from the Department, the New South Wales Police Force and health professionals.
On 2 July 2008 the Department assumed care of the child pursuant to the CYP Act.
On 8 July 2008 Federal Magistrates Lindsay, by consent, granted leave to the Director-General of the Department of Community Services to be joined in the proceedings as an intervener pursuant to s 92A of the Family Law Act 1975 (Cth) (“the Act”). The following order was made:
8.Until 4pm on 1 August 2008, in respect of the child [N] born on … October 2004:
a)the Minister of Community Services have sole parental responsibility for the said child, including responsibility for her day-to-day and long-term care, welfare and development;
b)the said child do live as directed by the Director-General; and
c)the said child do spend time with and communicate with her mother, [MS TRAN], and her father, [MR FERGUSON] as directed by and subject to the supervision of the Director-General or his delegate.
The matter was next listed in the Federal Magistrates Court on 1 August 2008. On that day Federal Magistrate Kemp made orders by consent that the Minister continue to have parental responsibility for the child and that the child live as directed by the Director-General of the Department. An Independent Children’s Lawyer was appointed and Dr R, a psychiatrist, was appointed to prepare an expert report. Also on that day it was ordered that the matter be transferred to the Family Court of Australia.
On 27 November 2008 the matter came before Justice Watts. He listed the matter for further directions and continued the orders in relation to the child.
On 1 June 2009 the matter came before Rose J and orders were made listing the matter for trial on 10 August 2009. By consent, orders in relation to the child were made granting the intervener parental responsibility, until further order.
The final hearing of the matter commenced on 10 August 2009. The trial lasted five days. The judge delivered judgment on 30 October 2009.
On 4 November 2009 the intervener filed an application to stay the orders. On 6 November 2009, Rose J made orders granting a stay pending the determination of this appeal.
The child has remained in foster care as arranged by the Director-General.
The Appeal
The grounds of appeal contained in the amended notice of appeal are directed to alleged errors of law, failure to provide adequate reasons and a miscarriage of the proper exercise of discretion.
Extensive reference to the reasons for judgment is necessary to understand the facts in this case, to reveal the findings made by his Honour, and to appreciate the issues raised in the grounds of appeal related to various sections of the Act and relevant State legislation.
Reasons for judgment
After noting that the father was not represented by lawyers, the judge summarised the orders sought by the father and mother. They each asked that they have equal shared parental responsibility, that the child live with them and that otherwise the child spend unsupervised time with the other parent.
The father was seeking orders that the child live with him in L, South Australia.
In relation to the orders sought by the intervener contained in Exhibit 17, his Honour said the following:
7.…The substantive orders so sought are that the Intervenor have sole parental responsibility for the child; that the child spend supervised periods of time with the Mother, being one period of two hours each four months and such other times as agreed by the Intervenor. In addition, that the Mother and that the child also spend supervised periods of time with the Father, being for one period of such duration as determined by the Intervenor, taking place each second calendar month as well as any other times as agreed between the Intervenor and the Father. A notation to Exhibit 17 is in the following terms:-
“It is noted that from the date of these orders, unless the Director General as delegate of the Minister in her absolute discretion determines otherwise, the child shall live with the long term carers chosen by the delegate of the Minister.”
As can be seen, the important issue of with whom the child should live was not sought to be the subject of an order but rather a notation, which of its very nature is unenforceable. I will refer to that matter in my conclusion.
The Independent Children’s Lawyer supported the making of orders as requested by the intervener, that the Director-General have sole parental responsibility and the child be placed in long-term care at her discretion. The only difference between the two proposals was the amount of time the child would spend with the parents, although the Independent Children’s Lawyer proposed, as did the intervener, that the time be supervised.
His Honour at some length discussed the evidence in the matter under headings drawn from the legislation, relevant parts of which I repeat:
RELEVANT MATTERS PURSUANT TO SECTION 60CC
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18.For the purpose of the primary considerations, it is necessary to make findings of fact without which the conclusions which must be reached cannot be achieved. …
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21.A fundamental element in the case for the Intervenor is that potential long-term carers will only be selected and assessed in the event that final orders are made which provide the Intervenor with the parental responsibility to do so. Accordingly, it follows that no findings of fact can be made in relation to any of the matters that underpin almost all of the primary and additional considerations pursuant to section 60CC(2) and (3) so far as any potential long term carer is concerned, as there is an absence of evidence to enable such findings to be made.
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The nature of the relationship with the child with each of the parents and others
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26.I also accept the evidence of Dr [R] that it was not a matter of controversy that the child has significant attachment with each of the Mother and Father.
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28.Having regard to the evidence that I have summarised in relation to this particular matter, I find that the child does have a loving relationship with each of the Mother and Father with whom she is attached. I also accept the evidence of the case workers that the child has established a good relationship with her temporary foster carers.
The capacity of the parties and any other person to provide for the needs of the child including emotional and intellectual needs
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The Mother
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33.Accordingly I find that the Mother has the capacity to provide for the physical needs of the child.
34.With regard to the Mother’s capacity to provide for the emotional needs of the child and to afford her a suitable environment in all respects free from any harmful influences arising out of the [entertainment] industry, are matters of controversy. The issue of family violence also has implications for the ultimate findings in relation to the capacity of both the Mother and the Father to provide for the needs of the child, with the exception of the physical residential environment which each can provide. I have made separate findings in relation to the issue of family violence dealt with subsequently in this judgment.
35.It is common ground that the Mother and Father have had a volatile relationship.
After referring to allegations of family violence his Honour referred to the issue of alleged sexual abuse of the child, and then said the following:
182.On 21 June 2008, the Mother alleges that the Father assaulted her. The Mother left the home and again attended at [E] Police Station. To the amazement of the Mother she was arrested rather than the Father. The Mother was taken to [S] Hospital where she was in-patient overnight. The Mother returned to the home. The Father remained living there.
183.The Mother states that upon receiving legal advice, she sought alternative accommodation. Whilst doing so, she left the child in the care of the Father. The Mother further contends that on the evening of 27 June 2008 she entered the Father’s room and saw the child lying uncovered on the bed and her underpants were around her knees. The Mother claims that she saw the Father’s head “in about the same area”. The child called out to her and the Mother said to the Father “what are you doing?” The Mother states that the Father then shouted at her and said “its fine, we’re just playing. Get out.” The Mother also alleges that the Father then said to the child in a loud voice “if you move, I will smack your bum.” The Mother left the room. The Mother states that “I was very frightened for both myself and for [N]. I was shocked and I did not know what to do. I thought that if I went again to the police that night I would again be arrested as I had on other occasions that I had gone to the police by myself. I thought it would be for the best to stay in the house that night so that I could be there for [N] and when she woke up and go to the police the next morning.”
184.The Mother’s affidavit evidence further states that the next morning she drove with the child to the police station to enable the child to tell the police what would happen as she did not believe that the police would accept the Mother’s statements.
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187.The Mother was further cross examined in relation to the allegations of child sexual abuse perpetrated by the Father on 27 June 2008. During the course of that evidence, the Mother stated that she noticed that the Father’s head was on the child’s thigh and that he shouted at her to leave. The Mother said she left the room as she was apprehensive that the Father was about to hit her. Her evidence then became inconsistent. On the one hand the Mother’s evidence was that she thought the Father had performed oral sex on the child and then upon being taken to Exhibit 2, she stated that she was “not sure” about what the Father had done and indeed had been sure then she “would have taken the child away that night.” The Mother stated that the police station was about five minutes distance from her home and she took the child to the police station early in the morning. The Mother’s further evidence was that during that next morning, upon her asking the child what had happened in the night, the child said that the Father kissed her and the child pointed to the lower part of her body.
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197.With regard to the disturbing allegations of child abuse arising out of the Mother’s evidence in relation to events at the home on 27 June 2008, he [the father] reiterated that such allegations were “a total fabrication”. He stated that he did not kiss the child as alleged, nor had he been drinking. He further stated that the child was wearing pyjamas. He acknowledged that the child sometimes calls her genital area “my pee pee”. He denied having kissed the child on the thigh and his mouth did not touch the child’s genitals whether she was clothed or unclothed. He alleged that the child had been coached by the Mother to make the allegation earlier referred to.
Rose J referred to the High Court decision of M v M (1988) 166 CLR 69 and said:
199.The allegation made by the Mother of child sexual abuse is a very serious one from the point of view of the child, as well as the Father and Mother and of course the other parties in these proceedings. The civil standard of proof applies, namely the Court being required to be satisfied on the balance of probabilities that the facts alleged have been established. However, given the gravity of the allegations, I am required to be cautious in being satisfied that the civil standard of proof has been established in view of s.140(2)(a)-(c) of the Evidence Act 1996 (Cth).
200.I am not satisfied that the Father did sexually abuse the child. My reasons for reaching that conclusion are as follows.
201.The evidence of the Mother was far from firm and she herself was “confused”, as she quite frankly acknowledged. Parts of her evidence as to her observations of the Father with the child certainly raise alarming features. In addition, the disclosure that the child made to the police the following day is very concerning indeed. However, against those matters are the Mother’s actions in leaving the child in the room, not calling the police or attending upon them until the next morning and her own state of uncertainty and confusion that evening subsequent to leaving the Father’s room. It must be remembered that the Mother is a worldly person with an alertness in relation to sexual matters, which I infer from her own many years experience in working in and then owning and operating [an entertainment venue]. At the same time, I have no doubt that the Mother has always loved the child and would not deliberately expose the child to harm. Whilst the Mother did attend with the child upon the police the next morning, that delay is hardly consistent with the reaction that one might have expected from a concerned, loving and responsible parent.
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204.Last but far from least, the Father has been vehement in his denials throughout and he impressed me as a truthful witness in relation to this particular serious allegation.
205.I am also not satisfied that there is an unacceptable risk of the Father sexually abusing or indeed otherwise abusing the child. My reasons for reaching that conclusion are set out in the following paragraphs. (footnote omitted)
I will say more later in the judgment in relation to the findings about sexual abuse of the child
Family violence and any Family Violence Orders
Returning to family violence allegations, his Honour began the discussion of this issue in paragraph 171 and particular details were described in the following paragraphs. Justice Rose then said:
210.I am satisfied that the Father has been violent to the Mother in accordance with her allegations. The Mother was not shaken in that regard in cross-examination. The Father acknowledged that there have been Apprehended Violence Orders made against him and that at least on one occasion, if not more, the Mother withdrew her evidence in the Local Court, either at the Father’s request or, in order to assist in the improvement of their relationship. In addition, the Father has undoubtedly has had a problem in relation to alcohol intoxication over several years. I accept the Mother’s allegations of the state of the Father’s intoxication which appeared to precipitate or accentuate his violent and abusive behaviour towards her at different times.
211.However, the Mother has also engaged in violent and abusive behaviour to the Father in the circumstances to which earlier reference has been made by me.
The decision in relation to family violence led his Honour to the following conclusions.
His Honour determined that the presumption of equal shared parental responsibility in favour of the parents was rebutted. He continued:
227.Section 61DA(2) does not contain a discretion to rebut the presumption once it has been established that the Court has “reasonable grounds to believe that a parent of the child has engaged in” family violence. I have made findings of fact which establish that family violence as defined in s.4(1) has occurred. Consequently, it follows that the presumption of equal shared parental responsibility has been rebutted. Accordingly, there is no need to consider the ground of “best interests of the child” referred to in s.61DA(4).
228.However, notwithstanding that the presumption of equal shared parental responsibility has been rebutted, it is still open to me to make an order for equal shared parental responsibility in favour of the Mother and Father or, alternatively, sole parental responsibility in favour of the Intervenor. Neither the Mother nor the Father sought an order for sole parental responsibility. These considerations arise because an order for parental responsibility is a parenting order. Section 60CA makes it clear that a parenting order may only be made if it in the best interests of the child to do so.
Further significant conclusions in relation to parental responsibility then followed:
231.In contrast, since the child has been under the care of the Intervenor in terms of the Intervenor having sole parental responsibility on an interim basis, stability and routine have been established for the child in the care of the temporary foster carers, assessed or monitored from time to time by the Intervenor and on the evidence that I have accepted the child has progressed satisfactorily. I am not persuaded that the positive findings that I have made in relation to the Mother and Father so far as the nature of their respective relationship with the child and capacity to provide for the child’s needs are of such a degree that notwithstanding their shortcomings otherwise detailed in this judgment, it is in the best interests of the child that they have equal parental responsibility for her for the foreseeable future. I am satisfied that the Intervenor will continue to exercise parental responsibility in a manner that is in the best interests of the child as has generally occurred since the relevant interim orders were made.
232.The Intervenor’s sole parental responsibility for the child especially in relation to major long-term issues will ensure that in carrying out that responsibility, the Intervenor provides regular monitoring and assessment of each of the Mother and Father in relation to all aspects of the care that each of them provide for the child having regard to the other parenting orders that I will make. Such assessment, monitoring and implicitly guidance provided to each of the Mother and Father by the Intervenor can only be in the best interests of the child, given the historical difficulties and relevant findings to which I have referred.
His Honour then decided that it was in the best interests of the child to live with the mother and have weekly unsupervised time with the father, “commencing during the day on a weekend and gradually moving to regular overnight periods with a suitable period during the week”. The stated reasons were as follows:
234.There is no issue that the child is attached to the Mother and Father. I have found that each loves the child.
235.The relationship of the Mother and Father has been of much focus in these proceedings due to the history of family violence and conflict between them, fuelled in part by the Father’s uncontrolled consumption of liquor. Much of the physical family violence was perpetrated by the Father in those circumstances. In addition, there were the appalling events of 21 June 2008. The behaviour of the Mother and Father to each other on that occasion was simply dreadful.
With respect to the capacity of the mother, his Honour said:
238.I have also made findings that the Mother does have the capacity to meet the emotional needs of the child with qualification that further parental guidance is desirable. That can be provided by the Intervenor, consistent with the sole parental responsibility Order that I will make.
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240. There is no longer concern in relation to the Mother’s past direct involvement on a daily or weekly basis in the actual operation of her [entertainment venue] or indeed her social lifestyle which previously had been assessed by Dr R] as representing distractions from the Mother’s parenting of the child.
241.In addition, it was made clear that the Mother is now emotionally stable in contrast to the alarming incidents of her behaviour in January and June 2008.
The judge referred to the proposed long-term carers of the child should she remain in foster care. His Honour noted that it was not possible to make findings of fact when the identity of the carers was unknown. His Honour said:
110.This child, aged four, with the background to which I have referred now moving to an unknown family requires reliance on departmental officers to ensure that the right family is chosen, that the child will fit in positively and her care will be well monitored by the Intervenor. Dr [R] considered that the Department manages those types of placements well.
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246.The Intervenor’s policy is not to identify and assess potential long-term carers for a child until such time as a final parenting Order is made. There are practical considerations that have driven that policy which I completely understand. They include applying resources to identify such a carer, creating the possibility of that carer having the child live with him or her, a potential carer then no longer being available to be considered for the care of another child, against the possibility that ultimately an order as sought by the Intervenor may not be made.
247.It seems to me that such a policy, whilst understandable, is really tailored by bearing in mind the proceedings that are otherwise instituted and determined in accordance with state legislation which does not have the considerations which the Act requires to be undertaken pursuant to Pt.VII. As I pointed out to counsel for the Intervenor at the commencement of the trial, I am required, in effect, to make findings of fact in relation to a range of matters which underpin both the primary and additional considerations, the subject of s.60CC, for the purpose of ultimately making a parenting order which is in the best interests of the child being the paramount consideration. Those considerations in s.60CC lie at the heart of arriving at that ultimate conclusion in accordance with s.60CA. There are obvious difficulties in following that approach which I am required to follow, when none of the relevant findings of fact can be made in respect of unknown potential long-term carers who cannot as yet even be identified.
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249.Nonetheless, in order to ultimately arrive at the conclusion of the appropriate orders to serve the best interests of the child, I have balanced the strengths and shortcomings of the Mother and Father consistent with the considerations that I am required to apply pursuant to s.60CC, as against the lack of findings that can be made in relation to any potential long-term carer for the child in accordance with the proposals and submissions made on behalf of the Intervenor.
250.It must be recognised that neither the Mother nor the Father is currently a parent in respect of whom there is such a dearth of relevant positive findings and considerations that there is no alternative other than to, in effect, take a chance on the child being placed with unidentified long-term carers as to do otherwise could not be in the best interests of the child.
Apart from his Honour’s concerns in relation to the Department’s case which did not identify the proposed carers, the judge also rejected the proposal in relation to the parents:
256.The proposal of the Intervenor is not conducive to “the benefit of a meaningful relationship” with the Mother and Father consistent with s.60CC(2)(a). Indeed, should the proposal be acceded to, the policy of the Intervenor is that the focus then shifts to developing a secure relationship with the proposed long-term carers. That is at the expense of regular and frequent time with each of the Mother and Father as has been the case for many months and which, generally speaking, the child has benefited from and has assisted in maintaining the attachment and parent-child relationship conducive to the well-being of a small child. Instead, the policy of the Intervenor is that given the child’s age, she spend much reduced and infrequent periods of time with each of the Mother and Father for many months to come. This represents potential serious trauma for the child in coping with such a change which has to be understood in the context of all the other past and future significant changes to be taken into account so far as the child is concerned, particularised in paragraph [108] of this judgment. Whilst the appropriate case officer may ameliorate that policy having regards to the needs of the child, I did not have reliable evidence that that in fact would occur. Indeed, it might have been contemplated that such a qualification would be part and parcel of the one policy in relation to a child of this child’s age. However, that is not the case in the opinion of Dr [R] whose description of departmental policies of this type and his recommendations I have referred to in paragraph [132] of the judgment.
The Expert Evidence
Justice Rose had the benefit of considerable expert evidence during the trial. There were four reports prepared by the expert, Dr R (a child, adult and family psychiatrist). Evidence was also given by various Departmental officials in relation to the possible placement of the child in long-term care.
Set out below is a brief summary of what his Honour said in the judgment about the expert evidence. Greater consideration will be given to this topic when dealing with grounds 3, 5 and 6, directed to his Honour’s treatment of the expert evidence.
After summarising the contents of the first three reports, Rose J gave considerable attention to the final report, prepared on 6 July 2009. For the preparation of that report, Dr R interviewed the mother and the father (separately and together), the child and various Department case workers. Of that report, his Honour stated:
93.Dr [R] concluded that the Father and the child have a close relationship and that there was a stronger attachment between them than with the Mother. However, he was of the view that although statements that the Father made seemed to indicate a better understanding of what was required of him to overcome his past lack of insight and poor judgement in relation to providing for the child should be have full time care of her, he considered that the Father “is still a long way short of having achieved that.” In addition, Dr [R] was of the view that the Father did not appear to have insight into the fact that the child may need to have some contact with the Mother. The Father was “very vitriolic towards the Mother.”
…
96.Dr [R] noted that the child “is a bright engaging child’ and has formed a relationship with her foster family, although wants to be reunited with the parents together. He considered that she was not mature enough or able to comprehend all the issues and complications in relation to problems associated with the parents.
97.Dr [R] concluded that there did not appear to be major issues with regard to allegations of sexual abuse implicitly by the Father.
98.With regard to the Mother, Dr [R] stated “the major issue with regard to the child’s care by the Mother is her inappropriate management and approach to the child and her difficulty understanding the child’s needs. [The Mother] appears very depressed and confused. She has stopped working directly in the [entertainment] industry and appears to handed over the management role of her business.”
99.Dr [R] finally concluded that he was of the same belief as previously that “it would be better for the child to be placed in long term care.” In that regard, he considered that “the amount of contact and degree of contact that she would have with either parent needs to be managed carefully.”
After setting out the specific recommendations of Dr R (set out later in these reasons), Rose J then detailed the substance of the doctor’s oral evidence.
His Honour observed that Dr R was “much more positive” with respect to the mother’s capacity to provide for the child’s needs. It emerged from the doctor’s reports that the “major concern” with respect to the mother was her involvement in the entertainment industry and her ability to prioritise the needs of the child over that of the business. Dr R acknowledged that “should the Court be satisfied that the Mother is no longer involved with the [entertainment] industry as previously … ‘the major concern’ about the Mother no longer persists.” (Reasons, [120])
His Honour further stated:
121.The current major concern was the Mother’s capacity to appreciate the child’s needs. Dr [R] recognised that this is something that can be improved and whether she can achieve a satisfactory ability to understand those needs and respond to them has yet to be determined. He acknowledged that the Mother has shown determination to improve matters in that regard.
…
123.He also expressed the view that should the Mother engage in a realistic way with agencies to improve her parenting capacity and that was proven, then his previous views about her capacity to meet the child’s needs would of course also change.
124.Dr [R] agreed that “it comes down to” the balancing of the matters in relation to the parents, as against moving to the unknown in terms of faith to be placed in the Intervenor to be able to find the appropriate foster family on a long term basis without any opportunity for Dr [R], quite apart from the Court, to assess all of the relevant matters in terms of whether an unknown adult or adults can provide proper care for the child.
…
133.Dr [R] also gave his opinion that as the child has been in alternative care now for close to a year, such an uncertain situation should not continue much longer and “it would be better for the child to be placed into a certain predictable placement.” He considered it unlikely that the parents could engage in cooperative parenting. He supported each of them having the benefit of having individual counselling from a counsellor or psychologist who understands the issues.
The evidence of the mother was that she was no longer involved in the entertainment industry and that she had leased the licence for her business. Rose J accepted that evidence in the absence of any “evidence of substance to the contrary”. Having so found, he concluded:
163.… Consequently, on the basis of such a finding, Dr [R] was of the view that the Mother’s historic involvement in the [entertainment] industry no longer had priority over the care of the child and as a consequence “the major concern” that he had in relation to the Mother no longer was relevant. With regard to the Mother’s capacity to have the appropriate insight in relation to the child’s needs, I accept the evidence of the Mother that there has been significant improvement in that regard due to a combination of the parenting courses that she has satisfactorily completed and her commitment to her relationship with the child as observed by the supervising care worker. In that regard the Mother has shown herself to be “a loving, generous person who interacted well with the child” who responded positively to the Mother and enjoyed the time with her.
164.As was made clear in submissions on the Mother’s behalf, the Mother is open to continuing to receive professional assistance to improve her parenting capacity.
165.Consequently, I find that the positive planks of the matters referred to as features of Dr [R]’s oral evidence in paragraphs [120] to [123] hereof have been established to my satisfaction. Accordingly, I find that the Mother does have a capacity to provide for the emotional needs of the child, qualified to the extent that she will be assisted by ongoing professional guidance.
As to the capacity of the father to provide for the child, his Honour referred to the contents of the four reports and concluded:
167.… The reports of Dr [R] which are in evidence and to which I have referred by distilling the substance of them, demonstrate so far as he is concerned, a lack of satisfaction as to the level of alcohol consumed by the Father and his commitment to follow medical advice that he received to cease the consumption of alcohol altogether.
168.In addition, Dr [R] and relevant case workers have also expressed concerns regarding the Father’s continuing lifestyle, implicitly referring to time spent at hotels. Exhibit 4 records the views of the case worker that the Father does not appear to have connected well emotionally with the child and food brought by him for her was inferentially not entirely appropriate. That does not mean that the Father lacks the relationship with the child, the subject of my earlier findings or, his love for her.
…
170.I accept the evidence of Dr [R] and the relevant case workers that on the balance of probabilities the Father may not as yet have his level of alcohol consumption under complete control and his resistance to following medical advice for the purpose of avoiding such consumption, particularly having regard to the Father’s unfortunate history in that respect, represents a limitation upon his capacity to provide for the emotional needs of the child as he may not always be in a state to do so. In making that finding, I recognise and accept the Father’s evidence that he has made significant strides in overcoming his past propensity to be intoxicated to the extent of being drunk and otherwise out of control.
Justice Rose also described the evidence given by other independent persons and experts in relation to the possible placement of the child in long-term care. There was evidence from a number of people including Ms F, a member of JIRT, and Ms A, a Department employee who manages the foster care recruitment, assessment and training team.
Ms A’s evidence was set out in considerable detail by his Honour. Ms A stated that part of the assessment process was to ensure that the family was “culturally competent to be able to facilitate cultural maintenance of the child”. Ms A explained that she had selected a family of Chinese heritage who indicated they were interested in caring for the child; however, the family were no longer able to take the child at the time of the trial.
His Honour observed that being able to facilitate the “cultural maintenance” of the child, whilst important, does not mean the family in question must have the same cultural background. Rather, the family must have the capacity and willingness to ensure that the child’s cultural background is maintained.
Ms A agreed that moving the child through different families was “very damaging and traumatic” for the child. Ms A further stated that a family would have to be assessed having regard to the needs of the child, including matters which have affected the child such as family violence.
Grounds of appeal
Should the appeal succeed, counsel for the appellant asks for a new trial.
It is appropriate to deal with grounds 1 and 2 first, being the principal argument on behalf of the Department, then grounds 3, 5 and 6, which may be described as the grounds in relation to the miscarriage of an exercise of discretion, and ground 4, the argument in relation to how the judge applied the provisions of section 60CA, ss 60CC(2) and (3) of the Act.
Grounds 1 and 2
Grounds 1 and 2 are in the following terms:
1)That his Honour erred at law in making a live with order at Order 3 of the Final Orders made 30 October 2009 (“the Orders”) since by reason of the allocation of sole parental responsibility in Order 2 of the Orders the child became a “protected person” for whom the intervener is responsible to provide accommodation under the provisions of section 135(4), section 164, and section 249 of the Children and Young Persons (Care and Protection) Act1998 which provisions have force and effect by reason of section 79(1) of the Judiciary Act 1903 and such live with order (and the reasons underlying it) is contrary to the ratio of the Full Court decision in Faulkner and McPherson v Rugendyke; Department of Community Services (Intervener) (1995) FLC ¶92-630.
2)That his Honour erred at law
(1)by ordering at Order 3 of the Final Orders made 30 October 2009 (“the Orders”) that child live with the mother (on or before 10 a.m. Saturday 7 November 2009), and further erred
(2)by requiring at Order 4 of the Orders that the intervener do all things necessary to facilitate the implementation of Order 3,
when by reason of Order 2 of the Orders his Honour allocated to the intervener sole parental responsibility for major long-term issues in respect of the child without specifically allocating parental responsibility for residence to the mother (either solely or jointly). (original emphasis)
The orders made by Rose J relevant to these grounds should be repeated here because the terms are significant:
(2)That the Intervenor have sole parental responsibility for the major long-term issues in relation to the child as follows:-
(a) The child’s education (both current and future); and
(b) The child’s religious and cultural upbringing; and
(c) The child’s health; and
(d) The child’s name; and
(e)Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
(3)That the child live with the Mother which shall commence on or before 10am Saturday 7 November 2009.
(4)That the Intervenor do all things necessary to facilitate the implementation of Order 3.
The principal contention is that his Honour should not have allocated sole parental responsibility for the major long-term issues (as nominated by him in paragraph 2) to the Department, but then ordered that the child live with the mother.
Reference was made to the position existing at the time of trial. Orders were first made on 8 July 2008 providing for sole parental responsibility to be allocated to the Minister. The child has been placed in foster care since that time. As mentioned earlier in the reasons those interim parental responsibility orders continued as a result of further orders until the final hearing.
To appreciate the argument in relation to these grounds, it needs to be remembered that his Honour decided that the presumption of equal shared parental responsibility in favour of the mother and father had been rebutted by reason of family violence. His Honour then observed “[a]ccordingly, there is no need to consider the ground of ‘best interests of the child’ referred to in s.61DA(4)” (Reasons, [227]). His Honour then remarked that it was still open to him to make an order for equal shared parental responsibility “in favour of the Mother and Father or, alternatively, sole parental responsibility in favour of the Intervenor” (Reasons, [228]) (emphasis added). His Honour then decided that it was not in the best interests of the child that the parents have equal shared parental responsibility and that he was:
231.… satisfied that the Intervenor will continue to exercise parental responsibility in a manner that is in the best interests of the child as has generally occurred since the relevant interim orders were made.
It is clear from the following paragraph what the intention, at least in the mind of the judge was in making the orders:
232.The Intervenor’s sole parental responsibility for the child especially in relation to major long-term issues will ensure that in carrying out that responsibility, the Intervenor provides regular monitoring and assessment of each of the Mother and Father in relation to all aspects of the care that each of them provide for the child having regard to the other parenting orders that I will make. Such assessment, monitoring and implicitly guidance provided to each of the Mother and Father by the Intervenor can only be in the best interests of the child, given the historical difficulties and relevant findings to which I have referred.
As explained in paragraph 238, his Honour was of the view that the mother had the capacity to meet the emotional needs of the child with the qualification that further parental guidance was desirable. In his view, that could be provided by the Department, supported by the sole parental responsibility order he intended to make.
It was submitted that the parental responsibility given to the Director-General meant that the child became a “protected person” and subject to the out-of-home care provisions of the CYP Act (see especially s 135(4)). That means that an “authorised carer” may then provide care for the child.
Reference was made to s 164 of the CYP Act. That section provides that “the Minister is responsible for the provision of accommodation for any child or young person for whom the Minister has sole parental responsibility”. The Minister may delegate to the Director-General or any “other person” any of the Minister’s functions (s 249 CYP Act).
To appreciate these submissions it is useful to set out those provisions in full:
135 Definition and types of “out-of-home care”
(1) For the purposes of this Act, out-of-home care means residential care and control of a child or young person that is provided:
(a) by a person other than a parent of the child or young person, and
(b) at a place other than the usual home of the child or young person,
whether or not for fee, gain or reward.
(2) There are 3 types of out-of-home care for the purposes of this Act, as follows:
(a) statutory out-of-home care – see section 135A,
(b) supported out-of-home care – see section 135B,
(c) voluntary out-of-home care – see section 135C.
(3) For the purposes of this Act, out-of-home care does not include:
(a) daily care and control of a child given by a person in the person’s capacity as a licensed provider of children’s services, or
(b) any care provided by a relative of a child or young person unless:
(i) the Minister has parental responsibility for the child or young person by virtue of an order of the Children’s Court, or
(ii) the child or young person is in the care of the Director-General, or
(iii) it is provided pursuant to a supported out-of-home care arrangement as referred to in section 153, or
(c) anything prescribed by the regulations not to be out-of-home care.
(4) However, a child or young person who is in out-of-home care does not cease to be in that care merely because the child or young person becomes subject to any care or control referred to in subsection (3).
135A Statutory out-of-home care
(1) Statutory out-of-home care is out-of-home care that is provided in respect of a child or young person for a period of more than 14 days:
(a)pursuant to a care order of the Children’s Court, or
(b)by virtue of the child or young person being a protected person.
(2) Any statutory out-of-home care provided in respect of a child or young person is taken to commence:
(a)immediately on the making of a care order for a period of more than 14 days in respect of the child or young person, or
(b)in any other case—immediately the child or young person is placed with an authorised carer.
(3) In this section, protected person means:
(a)a person who is a ward of the Supreme Court, or subject to an order of the Supreme Court in its parens patriae jurisdiction, and of whom the Minister or the Director-General has the custody or care pursuant to an order of the Supreme Court, or
(b) a person who is under the parental responsibility of the Director-General pursuant to Part 6 (Parental responsibility for children awaiting adoption) of Chapter 4 of the Adoption Act 2000, or
(c)a person in respect of whom the Minister or the Director-General has parental responsibility, either wholly or partially, pursuant to an order in force under the Family Law Act 1975 of the Commonwealth, or …
…
164 Responsibility of Minister to accommodate certain children and young persons
The Minister is responsible for the provision of accommodation for any child or young person for whom the Minister has sole parental responsibility or parental responsibility in relation to residence.
…
249 Delegation by Minister
(1) The Minister may delegate to the Director-General or any other person any of the Minister’s functions, other than this power of delegation.
(2) A delegate may sub-delegate to any person any function delegated by the Minister if the delegate is authorised in writing to do so by the Minister.
In the submissions on behalf of the Director-General reference was made to cases decided under the previous legislation, including B and B: Family Law Reform Act 1995 (1997) FLC 92-755. It was submitted that it had previously been considered that an order for what was then custody, and what now is included in parental responsibility, can be made in favour of the Director-General (see Faulkner and McPherson v Rugendyke; Department of Community Services (Intervener) (1995) FLC 92-630 at 82,320 and 82,322).
In this matter, there was no question about the power of the Court to make such orders. It is as well, however, to remember what was said by the High Court in Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218, sometimes referred to as Marion’s Case. At page 261 their Honours said:
Clearly there are limits on the scope of the welfare jurisdiction, as with the custody and maintenance jurisdictions, though the scope of the jurisdiction will nevertheless be very wide. So long as an order of the Family Court is constitutional, there can be no limitation on the Court’s powers emanating from the need to preserve the scope of State legislative powers. To hold otherwise would be, as counsel for the Commonwealth said, to take the law back beyond the Engineer’s Case. (footnote omitted)
Additionally in this case, there is no argument that the Director-General was a person not willing to accept parental responsibility; rather that in view of the provisions of the Family Law Act, the CYP Act and the evidence, an order should have been made for sole parental responsibility and no order should have been made in relation to the child living with the mother.
It was submitted that the effect of order 2 is that the Director-General exercises sole parental responsibility and that the parents’ parental responsibility is diminished to that extent. It was submitted that there is no necessity for consultation with the parents in the exercise of that parental responsibility.
Reference was made to the decision of Levine J in Re: Josie [2004] NSWSC 642, a case where the Minister had interim sole parental responsibility allocated under the CYP Act. The judgment was delivered in July 2004 and was in relation to the declaration sought by the Director-General that an order made by the Children’s Court that there be no change in a young person’s placement until further order was beyond their jurisdiction.
As I have already observed, the question of power was not raised at the trial nor was it raised in this appeal as part of the controversy. However, Levine J’s decision is of interest in relation to what his Honour said rejecting the argument that the word “person” in the section cannot be understood to include the Minister or the Director-General. Levine J said referring to the CYP Act and of this argument:
38 When one considers s79(2) and s81 and the order I have found in fact to have been made, namely that parental responsibility has been allocated to the Minister without any qualification, exception or joint responsibility, then that parental responsibility solely to be exercised by the Minister includes residence, and the Children’s Court has no jurisdiction to interfere with the exercise by the Minister of that sole responsibility which includes residence in any way, let alone by the constraint sought to be imposed by the order under challenge.
39 On my construction of the legislation and taking into account what I will describe as the important policy matters dealt with in [Georgev Children’s Court of New South Wales (2003) 31 FamLR 218], the Children’s Court, having even on an interim basis allocated sole parental responsibility to the Minister, cannot derogate in any way from the Minister’s power to exercise it.
It was submitted by the Department to us:
23.… it is not permissible, having allocated sole parental responsibility to the intervener, with all the incidents of such an order, for His Honour Justice Rose to then make a residence order in favour of the mother. If His Honour had intended aspects of parental responsibility including decisions about residence of the child to be shared by the intervener and the mother then that is the order which should have been made …
It was submitted that order 2 allocated sole parental responsibility to the intervener. Further that by reason of s 79(1) of the Judiciary Act 1903 (Cth) (“Judiciary Act”), the provisions of the CYP Act came into play and the order providing that the child live with the mother should not have been made.
In my view, the issues surrounding the State legislation have nothing to do with the provision of the Judiciary Act. Rather, it is because an order was made that the Director-General have parental responsibility that s 135A(3)(c) is activated. There is nothing inconsistent between the State and Commonwealth Acts.
It was also contended that the order in effect gave the Director-General sole parental responsibility. In my view that is not correct. Section 61D of the Act makes it clear that such an order can be limited. Section 61D(2) provides:
(2)A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any):
(a)expressly provided for in the order; or
(b)necessary to give effect to the order.
Reference was made to order (2) (e) which I repeat:
(2)That the Intervenor have sole parental responsibility for the major long-term issues in relation to the child as follows:-
…
(e)Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
It was submitted that there was a tension between that order and the order that the child live with the mother. In addition, it was submitted that it was not clear how these two aspects could be resolved if there was a dispute between the parents and the intervener.
In this respect Newlands and Newlands (2007) 37 Fam LR 103 was referred to in support of the proposition that Rose J’s orders do not provide a method of resolving a dispute. The proceedings in Newlands were heard prior to the commencement of the Family Law Amendment (Shared Responsibility) Act 2006 although the parties were given an opportunity to make submissions on the effect of the changes. The appeal was allowed primarily for natural justice reasons. The Newlands decision does not support the submission.
In submissions to us, as at the trial, the Independent Children’s Lawyer generally supported the position of the Department. The only difference at trial was that it was submitted, should the Court decide to place the child with the Director-General and therefore in long-term foster care, then the child should spend more time with her parents than the time proposed by the Director-General. The Independent Children’s Lawyer agreed that time with both of the parents should be supervised.
In relation to ground 1 and 2, it was submitted on behalf of the mother, the first respondent, that it is incorrect to rely on the Full Court decision in Faulkner and McPherson because it was in the context of substantially different provisions of the Act. It is undoubtedly correct that at the time that judgment was delivered, the provisions of the Act in relation to children included different definitions, including a reference to the concept of custody. As correctly observed by counsel, the judgment of the Full Court recognised that the Family Court had no immediate jurisdiction over the placement of a child once a custody order is made. In this case there is no such order or its equivalent.
Further, of lesser significance in the appeal it is submitted that in Faulkner and McPherson there was a finding by the judge that there was an unacceptable risk to the children being with their parents whereas in this case there was a finding clearly rejecting any unacceptable risk of the child being with either parent.
Reference was also made to the need to consider the benefit to the child of a meaningful relationship with the mother and the father under the current legislation, a consideration not required in Faulkner and McPherson.
The argument on behalf of the father, the second respondent, likewise resisted the appeal and referred to the findings of the judge. It was submitted that the findings of the judge in relation to each of the parents supported an order that the child live with the mother and have unsupervised time with the father. In particular it was submitted that an order in favour of the long-term care of the child being vested with the Director-General would not be conducive to a meaningful relationship with each of the child’s parents consistent with s60CC(2)(a) of the Act.
Legislation and principles – the Family Law Act 1975 (Cth)
A very useful discussion of the statutory framework in relation to parental responsibility is to be found in Chappell & Chappell (2008) FLC 93-382. In that case, the father contended equal shared parental responsibility should not have been subject to an order that the wife have management of health and education issues. I repeat a number of paragraphs of that decision, as they also usefully include the relevant sections of the Act applicable to this appeal:
The legislative framework
43. Section 61B of the Act defines parental responsibility as meaning ‘all the duties, powers, responsibilities and authority which, by law, parents have in relation to children’.
44. Section 61C provides that each parent has parental responsibility for their child, despite any changes in the nature of the relationship of the child’s parents (including changes brought about by separation). The section goes on to provide that it has effect subject to any order of a Court in force from time to time.
45. Section 61D provides that a parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on that person duties, powers, responsibilities or authority in relation to the child. The section goes on to provide that a parenting order does not take away or diminish any aspect of the parental responsibility of any person in relation to the child except to the extent expressly provided for in the order or necessary to give effect to the order.
46. Save for the insertion of three notes to section 61C, the 2006 legislative amendments did not in any way amend sections 61B, 61C or 61D.
…
48. As a consequence of the amendments effected in 2006, s 64B now relevantly provides as follows:
“64B Meaning of parenting order and related terms
(1) ...
(2) A parenting order may deal with one or more of the following:
(a) the person or persons with whom a child is to live;
(b) the time a child is to spend with another person or other persons;
(c) the allocation of parental responsibility for a child;
(d) if 2 or more persons are to share parental responsibility for a child – the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
(e) the communication a child is to have with another person or other persons;
(f) ...
(g) ...
(h) ...
(i) any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child”.
...
(3) Without limiting paragraph (2)(c), the order may deal with the allocation of responsibility for making decisions about major long-term issues in relation to the child.
…
50. The concept of parental responsibility for long-term care, welfare and development issues has now been replaced by responsibility for decisions about ‘major long-term issues’. Section 4(1) of the Act provides the following definition of this expression:
“major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
...”. (original emphasis)
…
55. The amendments do not, however, eschew the concept of ‘care, welfare and development’ of children. On the contrary, s 60B, which sets out the objects and underlying principles of Part VII of the Act uses that formulation on three separate occasions. We repeat below ss 60B(1) and (2) in their amended form since they are also relevant to other matters raised for consideration in this appeal (our emphasis added):
“60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture)”.
56. It will be observed from s 60B (and many other provisions of the legislation) that great emphasis has been placed on the importance of parents jointly sharing responsibility for matters associated with their children’s care, welfare and development. Indeed, s 61DA now requires the Court to apply a presumption (subject to important qualifications) that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility. For a discussion concerning the difference between an order for equal shared parental responsibility and the parental responsibility which exists as a result of s 61C, see Goode and Goode (2006) FLC 93-286 at [29]-[30].
57. Section 65DAC indicates the consequences of making an order for shared parental responsibility. It is in the following terms:
“65DAC Effect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly”. (original emphasis)
It can be seen by reference to s 65DAC that the terms of the orders made by Rose J did not require the sharing of decisions about major long-term issues. The order includes all those sub paragraphs contained in the definition section “major long term issues” (see s 4(1) of the Act). It is entirely clear that the sole parental responsibility order in favour of the Director-General as detailed matches the definition set out in s 4(1) of the Act.
It is clear that parental responsibility does not include where the child will live. This of course is not surprising as orders usually separately provide for where and when children will live with parents. So, there is no lacuna.
Returning to the question as to how the provisions of the CYP Act impact on the orders made by Rose J. The order gave the Director-General partial parental responsibility (s 135A(3)(c)). To that extent the child became a “protected person”. The terminology of parental responsibility is consistent with that to which I have referred in the Act and the definition of parental responsibility is the same.
Section 164 of the CYP Act provides “[t]he Minister is responsible for the provision of accommodation for any child or young person for whom the Minister has sole parental responsibility or parental responsibility in relation to residence”. Justice Rose did not order that the Director-General have sole parental responsibility or responsibility as to residence.
There is no reason why his Honour was not able to order that the Department have sole parental responsibility as enumerated and described as “major long term issues” and that the child live with the mother. While it certainly provided a significant fetter on the discretion of the Director-General it cannot be said as a matter of law to have been wrong. Accordingly, there is no merit in grounds 1 and 2.
Having determined that the order did not offend the provisions of the Act or the CYP Act as argued, consideration is now given to the other grounds, which include the question of his Honour’s exercise of discretion, including his appreciation of the evidence and application of the provisions of s 60CC.
Grounds 3, 5 and 6
Grounds 3, 5 and 6 are as follows:
3)That his Honour erred at law in failing to provide any or any adequate reasons for finding, contrary to the opinion of the Court appointed expert Dr [R] [sic] , and contrary to the submissions of the Independent Children’s Lawyer and the Intervener (and the evidence relied upon in those submissions) that the child should live with the mother.
…
5)That his Honour’s discretion miscarried in circumstances where his Honour failed to:
i) have appropriate regard to the independent expert’s opinion that the child’s best interests were better served by being placed in out-of-home long-term care rather than with either parent;
ii) have appropriate regard to the evidence relied upon by the Independent Children’s Lawyer, referred to in submissions by his counsel;
iii) have appropriate regard to the evidence concerning risk of harm to the child.
6)That his Honour’s discretion miscarried in circumstances where his Honour:
i) failed to have appropriate regard to the evidence concerning the appropriate level of contact between children in out-of-home care, and their parents. (Annexed to the affidavit of [Ms A] filed 31 March 2009);
ii) failed to have appropriate regard to the evidence of the independent expert that the amount of contact and degree of contact the child should have with either parent needs to be carefully managed;
iii) had regard to irrelevant considerations in relation to his Honour not being able to weigh the relative parenting abilities of long-term foster carers against those of the parents.
iv) failed to have appropriate regard to the evidence concerning the mother’s behaviour towards the child in the supervised contact environment, contrary to the evidence. (original emphasis)
The evidence of Dr R
As indicated, there were four reports prepared by Dr R. His evidence will be described in considerable detail, as this is necessary in order to understand its effect.
In the first report dated 22 June 2008, Dr R recommended that the child remain living with the father as the “mother appears to find it difficult to prioritise the child over her work”. Dr R further recommended that the mother spend time with the child on a fortnightly weekend basis, that the father have alcohol counselling and that the mother not expose the child to any aspects of the entertainment industry. Finally, he recommended that the Department “take a role” in monitoring the progress of the child and that there be a reassessment of the case after a year had passed, before the child was due to commence school.
Of the first report, Rose J observed that Dr R emphasised his “major concern” with the mother was her involvement in and commitment to the entertainment industry, which “may be at the cost of being available to be a full-time carer of her child” (Reasons, [61]). He noted that the doctor had stated the mother did not pose “an unacceptable risk to the child” and that she was “very invested in caring for the child and having a good relationship with her” (Reasons, [62]).
The second report was prepared on 10 September 2008, after the child had been taken into care. In that report, Dr R recommended that the child be placed in foster care for the long-term and have regular contact with the father, “perhaps on a fortnightly basis for several hours”. With respect to the child’s time with the mother, he recommended “very restricted contact, perhaps in a supervised setting”. Dr R indicated he was concerned as to the mother’s ability to “contain her subversive comments and statements” and that the mother was likely to initiate further proceedings. He further said:
6.It is worth noting that in my previous report I did predict that the one likely outcome was the fact that the child may need to be placed into foster care if the parents continue to behave inappropriately with each other in front of the child. Despite this comment and warning in my report, the parents were not able to adhere [to] such an important observation which I believe has now come to fruition and therefore highlights and demonstrates the danger for the child, if the child were in the care of either parent. If I needed to make a least detrimental recommendation, I believe that the father would be least detrimental that [sic] than the mother and that he shows slightly more insight and stability although I don’t believe that he is by any means satisfactory.
Dr R prepared an addendum to the second report, dated 25 November 2008. This was prepared after he viewed a copy of a DVD which showed an interview conducted by a police officer with the child following the mother’s report of the alleged sexual abuse of the child by the father.
In the addendum Dr R noted that he had earlier concluded that it was “highly unlikely” that the child had been sexually abused, but after viewing the interview he “found it difficult to make a clear assessment”. After describing the circumstances of the interview, he concluded:
… the Police interview by JIRT does indicate a level of concern and possibly the father may have kissed the child inappropriately. However, there has been no other indication that sexual abuse was likely to have occurred.
I believe that one could not draw any firm conclusions from the JIRT interview because of the extremely disturbed nature of the parents’ relationship and the extraordinary pressure on the child. I hold serious doubts about the parenting capacity of both parents. I regard the mother as an extremely unfit mother who should not have care of the child. The father shows very poor judgement and I believe does place the child at risk by being exposed to the mother. Although I believe that this incident was probably not an incident of sexual abuse I believe that there is a great risk that [the child] will not be appropriately protected in the care of either parent.
The plurality went on to explain that at the time the 1983 amendments to the Act came into effect there was no statutory scheme in NSW dealing with the sterilisation of minors. However, their Honours said that the Supreme Court of New South Wales had “long been vested” with a wide parens patriae jurisdiction, and that it was not the intention of the Parliament in conferring a general welfare jurisdiction on the Family Court to cover the field and therefore deprive the Supreme Court of its jurisdiction. In other words both jurisdictions should exist concurrently. Their Honours went on to note:
In the case of a conflict between orders made by the Family Court in the exercise of the jurisdiction conferred by the Family Law Act and orders made by the Supreme Court of New South Wales in the exercise of its jurisdiction, the orders made by the Family Court would necessarily prevail. The State law, whether statutory or inherited, which conferred the relevant jurisdiction upon the Supreme Court would, to the extent that it purportedly gave legal efficacy to an order which was inconsistent with an order of the Family Court, be rendered invalid by s. 109 of the Constitution for the reason that it was ‘to that extent’ inconsistent with the provisions of the Family Law Act giving legal efficacy to the order made by the Family Court. (footnote omitted)
Importantly their Honours went on to say:
To the contrary, in those cases where the jurisdiction of the Family Law Court was intended by the Parliament to be excluded by reason of State or Territory welfare laws, s. 60H of the Family Law Act makes specific provision to that effect. It is common ground that, in circumstances where L. is not a child under the guardianship, or in the custody or care and control, of a person under a child welfare law, s. 60H does not exclude the jurisdiction of the Family Court to make the proposed order in the present case. (footnote omitted)
The plurality concluded that s 109 of the Constitution operated to have the effect that the relevant provision of the Guardianship Act imposing criminal sanctions was overridden as inconsistent with an order made by the Family Court authorising sterilisation.
In Northern Territory v GPAO the question of conflict between orders made under the Act and the child welfare laws of the Northern Territory was examined by the High Court. The case was determined after the amendments introduced by the Reform Act.
The High Court referred to s 80 of the Judiciary Act saying “[s]ection 80 directs all courts exercising federal jurisdiction where they ‘shall go for the substantive law’ and is supplemented by s 79” (footnote omitted).
The proceedings arose in circumstances where the Family Court ordered the production of documents under subpoena from the Northern Territory child welfare department. The relevant Territory legislation provided that an authorised person under the Territory legislation should not, except for the purpose of the particular Territory proceedings, be required to produce documents to a court. Gleeson CJ and Gummow J (with whom Gaudron, McHugh, Hayne and Callinan JJ agreed) found the relevant Territory legislation was not rendered inoperative by reason of the order the Family Court. In so determining Gleeson CJ and Gummow J, in their separate reasons, posed four issues requiring determination:
·The meaning of federal jurisdiction;
·Whether the Family Court was exercising jurisdiction with respect to a matter arising under a law made by Parliament;
·On the basis the Family Court was exercising federal jurisdiction, did s 79 of the Judiciary Act not apply because the Act was a law of the Commonwealth which “otherwise provides” within the meaning of s 79 and
·Whether the relevant provision of the territory legislation was rendered invalid by reason of inconsistency with the provisions of Part VII of the Act.
Gleeson CJ and Gummow J answered the issues identified in reverse order. Their Honours noted that “it has been settled that s 109 of the Constitution gives paramountcy to laws made under s 122 over inconsistent State laws”. Their Honours explained that in determining to make a parenting order the best interests of a child as the paramount consideration is the ultimate issue to be determined. Their Honours further found that the question of whether the subpoena should be set aside (being a matter anterior to the question of admissibility of evidence) did not “vary, impair or detract from the operation of the ‘paramountcy principle’. Nor is it impossible to give effect to ‘the paramountcy principle’ and to [the provision of the child welfare law]”.
Thus their Honours determined that the Territory legislation was not rendered invalid by reason of inconsistency with the provision of Part VII of the Act.
Gleeson CJ and Gummow J then considered whether the provisions of the Judiciary Act “otherwise provided”. Their Honours’ explained at paragraphs 80 and 81 (page 588):
80.The objective of s 79 is to facilitate the particular exercise of federal jurisdiction by the application of a coherent body of law, elements in which may comprise the laws of the State or Territory in which the jurisdiction is being exercised, together with the laws of the Commonwealth, but subject always to the overriding effect of the Constitution itself. Seen in that light, the notion of “inconsistency” involved in the phrase “otherwise provided” in s 79 is akin to that first identified by Mason J in the passage from the judgment in University of Wollongong v Metwally set out earlier in these reasons. This is the need to resolve the problem that arises by conflict between conflicting statutes having the same source. The law of a State or Territory which is to operate as a surrogate law of the Commonwealth is to be measured beside other laws of the Commonwealth.
81.The issue whether the Family Law Act makes relevant provision otherwise to s 97(3) of the Community Welfare Act may be approached by asking whether the operation of the former so reduces the ambit of the latter that the provisions of the Family Law Act are irreconcilable with those of the Territory law, with the result that the Family Law Act otherwise provide[s].
Their Honours referred to the argument that the relevant child welfare law was, as it is in the instant case, a law designed to provide for the protection and care of children and was thus consistent with the paramountcy principle in Part VII. However Gleeson CJ and Gummow J noted that Part XIIIA of the Act (the provisions dealing with sanctions for failure to comply with orders, including a subpoena) left room for the immunity conferred by the child welfare legislation, with the result that their Honours concluded that Part VII did not “otherwise provide” in the facts of the case under consideration within the meaning of s 79 of the Judiciary Act.
The application of the law to the facts of the case
It is relevant to record that there was no evidence before us, or the trial Judge, that the child was subject to any order made under the provisions of the CYP Act at the time of the hearing. Accordingly there was no issue that the Court was able to and did exercise jurisdiction under Part VII of the Act.
The trial Judge was asked by counsel for the Director-General to make parenting orders in her favour as a person concerned with the care, welfare and development of the child. Power to make the order in the Director-General’s favour was not in doubt (see Faulkner and McPherson). Jurisdiction was vested in the Court and the trial Judge had the power to make orders in the best interests of the child. His Honour was exercising federal jurisdiction.
The Family Court and the Supreme Court of New South Wales have vested in them concurrently the parens patriae jurisdiction in respect of welfare of children. But the trial Judge here was not being asked to exercise the welfare power of the Court found in s 67ZC so no question of inconsistency arose on that basis which would or could render the relevant provision of the CYP Act inconsistent under s 109 of the Constitution.
As I earlier identified, the issues to be determined are whether when making a parenting order:
i)a provision of the CYP Act was applicable by reasons of s 79 of the Judiciary Act;
ii)the Act “otherwise provided”; or
iii)s 109 of the Constitution rendered invalid any requirement of the CYP Act to the extent it was inconsistent with the trial Judge’s order.
The Act specifically provides that if a child is subject to an order under a child welfare law the Court has no power to make an order in respect of that child until the former order is extinguished. The Act therefore unequivocally preserves to the State exclusive jurisdiction in respect of a child subject to a care order.
While the provisions of the Act and the CYP Act each refer to parental responsibility for a child, the obligation on the Director-General to provide accommodation for a child in respect of whom he or she has such responsibility only arises under the State Act (CYP Act s 164).
Unlike the factual situation in Northern Territory v GPAO the trial Judge was required, in making parenting orders (both orders for parental responsibility and a “live with” order) by reason of s 60CA of the Act to make such order as was in the best interests of the child (“the paramountcy principle”). The “live with” order was not ancillary to the order for parental responsibility.
An order can be made for two or more persons to have parental responsibility for a child under the Act and for the child to live with one of those persons. The somewhat unusual order made by the trial Judge in which aspects of parental responsibility are imposed on one party to the proceedings without a “live with” order in that party’s favour are however within the legislative competence of the Court.
In my view the trial Judge was not required to apply the State law as the substantive applicable law to quell a controversy in this case. The trial Judge was applying a validly made federal law. That law provided a complex and complete statutory scheme for making parenting orders in the best interests of a child in favour of a person, and included the power to make an order in favour of a person or persons to have parental responsibility for the child, and an order in respect of with whom a child should live.
The provisions of the Act which provide for separate orders for both parental responsibility and a “live with” order, in my view, “otherwise provides”, and s 79 of the Judiciary Act has no operation. Further, to the extent the order the child shall live with the mother may be inconsistent with the requirements of s 164 of the CYP Act I am satisfied that s 164 is rendered in this case ineffective by the operation of s 109 of the Constitution.
Before I leave this topic it is important in fairness to the trial Judge to record that his Honour during the course of submissions at the conclusion of the hearing raised with counsel then appearing for the independent children’s lawyer the possibility that he could make an order for the Director-General to have parental responsibility and make a “lives with” order in favour of one of the parents (see transcript 14 August 2009, p317).While I accept that was not an order sought by any party, no submissions in opposition were made to the trial Judge particularly about any practical limitations which may affect the Director-General in carrying out aspects of the parental responsibility order.
It follows that I am satisfied that grounds 1 and 2 are not established.
Asserted error by the trial Judge in making order 3
As I have earlier noted this challenge as argued was directed to the effect of order 5 of the trial Judge’s orders.
The thrust of the argument in respect of this challenge is articulated in paragraph 19 of counsel’s for the Director-General’s submissions. It is in the following terms:
His Honour determines that the intervener can allocate its resources otherwise used to support the foster care placement, to support placement with the mother, because “those experienced resources should be readily available for this particular purpose as well.”: Judgment paragraph [257] AB57. It is respectfully submitted that this is not an available assumption due to the consequences of a sole parental responsibility order in favour of the Intervener. (original emphasis)
I have already expressed a similar view to that of May J that the orders made by the trial Judge do not provide for the Director-General to have sole parental responsibility for the child.
While I accept his Honour’s orders were unusual, he was faced with an unusual case. The trial Judge foreshadowed the likelihood he could make parenting orders in terms that he did. Consequently no issue of procedural fairness arises. Further, and of greater significance, I note the comments of the Honourable Tony Kelly in his second reading speech on the amendments to s 164 of the CYP Act. What the trial Judge here contemplated was that the Director-General would provide assistance by way of support to the mother to ensure she could meet the best interests of the child. That is consistent with the Minister’s explanation about support being offered by the Director-General in cases of shared parental responsibility where the accommodation for the child is not provided by the Minister. I do not find any merit in this aspect of the challenge to his Honour’s orders.
Asserted error by the trial Judge in his determination of relevant matters under s 60CA and s 60CC(2) and (3) of the Act
The criticisms of the trial Judge’s reasons were essentially focussed on paragraphs 7, 21 and 247 of the trial Judge’s reasons. To give proper context to these paragraphs it is also necessary to have regard to what the trial Judge said in paragraph 246 and 248. In relevant paragraphs the trial Judge said:
7.The Intervenor sought orders in accordance with Exhibit 17. The substantive orders so sought are that the Intervenor have sole parental responsibility for the child; that the child spend supervised periods of time with the Mother, being one period of two hours each four months and such other times as agreed by the Intervenor. In addition, that the Mother and that the child also spend supervised periods of time with the Father, being for one period of such duration as determined by the Intervenor, taking place each second calendar month as well as any other times as agreed between the Intervenor and the Father. A notation to Exhibit 17 is in the following terms:-
‘It is noted that from the date of these orders, unless the Director General as delegate of the Minister in her absolute discretion determines otherwise, the child shall live with the long term carers chosen by the delegate of the Minister.’
As can be seen, the important issue of with whom the child should live was not sought to be the subject of an order but rather a notation, which of its very nature is unenforceable. I will refer to that matter in my conclusion.
…
21.A fundamental element in the case for the Intervenor is that potential long-term carers will only be selected and assessed in the event that final orders are made which provide the Intervenor with the parental responsibility to do so. Accordingly, it follows that no findings of fact can be made in relation to any of the matters that underpin almost all of the primary and additional considerations pursuant to section 60CC(2) and (3) so far as any potential long term carer is concerned, as there is an absence of evidence to enable such findings to be made.
…
246.The Intervenor’s policy is not to identify and assess potential long-term carers for a child until such time as a final parenting Order is made. There are practical considerations that have driven that policy which I completely understand. They include applying resources to identify such a carer, creating the possibility of that carer having the child live with him or her, a potential carer then no longer being available to be considered for the care of another child, against the possibility that ultimately an order as sought by the Intervenor may not be made.
247.It seems to me that such a policy, whilst understandable, is really tailored by bearing in mind the proceedings that are otherwise instituted and determined in accordance with state legislation which does not have the considerations which the Act requires to be undertaken pursuant to Pt.VII. As I pointed out to counsel for the Intervenor at the commencement of the trial, I am required, in effect, to make findings of fact in relation to a range of matters which underpin both the primary and additional considerations, the subject of s.60CC, for the purpose of ultimately making a parenting order which is in the best interests of the child being the paramount consideration. Those considerations in s.60CC lie at the heart of arriving at that ultimate conclusion in accordance with s.60CA. There are obvious difficulties in following that approach which I am required to follow, when none of the relevant findings of fact can be made in respect of unknown potential long-term carers who cannot as yet even be identified.
248.I was at pains to emphasis [sic] during the trial that having pointed out those last-mentioned matters to counsel on more than one occasion, that should not be construed as a criticism of the Intervenor or case workers. They have a particular arduous set of responsibilities in circumstances where they, in effect, have to take over the care of someone else’s child in one way or the other, often in circumstances where a parent or parents have neglected the child. It is notorious that the Intervenor and the case workers concerned have a very stressful responsibility for a variety of reasons. (my emphasis)
Also relevant are his Honour’s findings in paragraph 220. There his Honour said:
The findings that I have made in relation to this topic are against the certainty of there being changes in the child’s circumstances having regard to the child currently living with temporary foster carers. Should the Application of the Intervenor be successful then of course the child will move into the care of long-term carers who she has never met, cannot be identified, let alone assessed in terms of parenting ability for the purpose of evidence in these proceedings and the considerations which I must apply in accordance with s.60CC(2) and (3).
The difficulties involved in following the statutory mandate in s 60CA and s 60CC when the applicant is a non-parent following the introduction of the amending Act with its emphasis on parents have been the subject of discussion in a number of recent decisions of the Full Court (see Mulvany & Lane (2009) FLC 93-404; Aldridge & Keaton (2009) FLC 93-421; and Simpson & Brockmann (2010) 43 Fam LR 32).
The trial Judge’s comments in paragraph 247 highlight the difficulties for both the Court and the Director-General in parenting proceedings under the Act. It is understandable that the Director-General’s policies and procedures have been established against the background of the requirements of the CYP Act, not the Act. In respect of proceedings in the Children’s Court I note that the Director-General is obliged to submit a care plan when seeking a care order in respect of a child. The CYP Act sets out the criteria for foster carers, the accreditation of foster care providers and the necessary supervision by the Director-General. Thus whilst the qualities of a particular long-term foster carer could not be assessed by the trial Judge, his Honour was able under s 60CC(3)(m) to take into account in a general way that a foster carer selected by the Director-General would have to satisfy the requirements of the CYP Act.
While there is unfortunately a need in respect of some very vulnerable children to consider whether a parenting order should be made in favour of a foster carer engaged by the State rather than a parent or relative of a particular child, that has not in an appropriate case impeded the Family Court making orders, or the consideration of making orders, in favour of the Director-General in an appropriate case (see Schmidt & Schott and Ors [2008] FamCA 447; and Hennessy & Rhys [2007] FamCA 160).
His Honour recorded in paragraph 250 and 251 of his reasons his finding that the there was not such a lack of positive findings available in respect of the child’s parents that the only realistic order was to place the child with a foster carer. I am satisfied his Honour fell into appealable error in this approach. His Honour could, under s 60CC(3)(m), evaluate the evidence given on behalf of the Director-General of the policies and practices of the Department and weigh this evidence against each of parents’ proposals.
I note that in his oral evidence the court expert, Dr R, opined that in his experience the policies adopted by the Department resulted in appropriate placements (transcript 13 August 2009, p 267-268). While his Honour recorded that evidence at paragraph 104 he did not return to discuss and weigh this evidence, and the evidence of the contact arrangements the Director-General’s staff had and would continue to provide between the child and the parents and the findings he had made in respect of the parents.
While I recognise the task which faced the trial Judge in this difficult case was not an easy one, I am satisfied his Honour’s emphasis on the unknown identity of proposed foster carers caused him to curtail his evaluation of the proposal which was in the best interests of this child. Thus I am satisfied appealable error in respect of this ground is established.
I certify that the preceding two-hundred and seventy-eight (278) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 30 August 2010.
Associate:
Date: 20 August 2010
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