Department of Community Services v Simons and Evans

[2010] NSWLC 31

Local Court of New South Wales

CITATION:	Department of Community Services V Simons and Evans [2010] NSWLC 31
JURISDICTION:	Children's Court
PARTIES:	Department of Community Services Kate Evans Andrew Simons
FILE NUMBER:	001-005/09-001
PLACE OF HEARING:	Bourke Local Court
DATE OF DECISION:	07/09/2010
MAGISTRATE:	Magistrate Clisdell
CATCHWORDS:	Care and Protection - Parental Responsibility - Whether realistic possibility of restoration to mothers care.
LEGISLATION CITED:	Children and Young Persons (Care and Protection) Act 1988
CASES CITED:	Re: Leonard 2009 CLN 2 Saunders and Morgan V DOCS 2008 CLN 10
TEXTS CITED:
REPRESENTATION:
ORDERS:

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Reasons for Decision

1 On 24 March 2009 a caseworker from the then Department of Community Services filed an application seeking orders allocating parental responsibility to the Minister in relation to the children of “Kate Leanne Evans” and “Andrew Simons” – “Jude” born in December 999, “Taylah” born December 2001, “Miranda” born June 2006, “Jenna” born May 2007 and “Derek” born June 2008.

2 An assessment application was later filed and a report dated 13 October 2009 was obtained from K P Powell, Clinical Psychologist. The report was released on 19 October 2009. Also on that date a finding was made that the children were in need of care pursuant to s 71(1) (b) of the Children and Young Persons (Care and Protection) Act 1998 (the Act). Subsequently care plans were prepared which provided for the long term care and welfare of the children. Those care plans did not support restoration to the Mother. Each care plan is however supported by the Father, the Department and the Children’s Solicitor. The Mother opposes all care plans and seeks restoration of the children.

3 Currently the children are living with their paternal grandmother, “Jane Simons”. In the next few weeks the three youngest children will be moving to live with their paternal aunt, “Felicity Simons”, and her de facto Brett Jones. Mr Jones and Ms Simons have been subject to the required checks and assessments. Jude and Taylah will remain with Jane Simons. These placements of the children are in accordance with the Care Plans filed in these proceedings. The Mother seeks to have all the children restored to her care rather than the placement proposed by Community Services.

4 Although Jude and Taylah had been living with their grandmother for some time, the children were formally removed from the care of their mother in early April 2009. All the children have been placed with Jane Simons since that time. The father has been in prison and is currently in a rehabilitation program in Moree. Sadly the children were subjected to a regime in the household where brutal domestic violence and drug and alcohol abuse were rife. The Mother has significant drug and alcohol issues and has been in the past prepared to return to an abusive partner despite serious domestic violence. There were numerous reports to the Department of drug abuse, alcohol abuse, inadequate shelter and supervision of the children and exposure to domestic violence. These reports are detailed in the affidavit of then DOCS Caseworker, Francine Read, sworn 20 March 2009.

5 In support of the Department’s care plans and proposals for the children, Mr Aich, relied on affidavits filed during these proceedings by caseworkers Francine Read and Kathryn Robinson together with the Clinician’s report by K P Powell.

6 Caseworker Kathryn Robinson, gave oral evidence. Some concerns were raised with Ms Robinson about the placement with Jane Simons and the proposal for Felicity Simons to care for the younger children. In particular two incidents of lack of supervision were canvassed. There was an incident where Jenna and Miranda were admitted to hospital after suffering caustic soda burns on 16 August 2009. Concerns were also raised about nappy rash and cradle cap. These matters were investigated by JIRT. The ingestion of the caustic soda was deemed to be an accident. It was noted that nappy rash and cradle cap occurred whilst in their mother’s care and that Jane Simons sought regular medical attention for the children.

7 Miranda was involved in another incident on 17 November 2009. This time she ran out in front of a slow moving vehicle. This incident was investigated and further assistance was given to June as the carer. It was deemed to be an accident and Miranda was under the supervision of an adult at the time. It appears Miranda moved quickly from a front yard onto the road whilst playing with her cousins and her uncle was not able to grab her in time. Immediate medical attention was sought and Miranda was taken to the hospital. There were no ongoing medical problems arising from the accident.

8 The Mother sought to rely on these incidents as evidence that Jane Simons was incapable of properly caring for the children. The Department acknowledges that Jane Simons is struggling with five active young children. This is why the care plan proposes the younger children be placed with Felicity Simons. When asked why the children were being separated Ms Robinson replied that Jude and Taylah had been living with Jane Simons for over four years. They have a strong bond with their grandmother. Indeed Jude began living with Jane Simons when he was three years of age.

9 Concerns were raised about Felicity Simons as a carer because she has in the past used cannabis socially. There is no evidence that Felicity Simons has a drug problem and Ms Robinson covered the issue in her affidavit of 17 May 2010 (paragraph 5).

10 Ms Power for the children, advised that she had spoken to all of the children. Although Jude and Taylah expressed a wish to live with their mother, it was Ms Power’s view that this wish was equivocal and that they both had a strong bond with their grandmother. Putting it at its highest, she said that the worst the children reported about Jane Simons was that sometimes “she gets a bit cranky”.

11 Andrew Smith filed no affidavit evidence and he did not give oral evidence.

12 Ms Rutkowska, for Kate Evans, relied on two affidavits sworn 2 July 2009 and 8 April 2010. The Mother carries the onus to satisfy the Court that there is a realistic possibility of restoration. Ms Rutkowska in her closing submissions conceded that an immediate return of the children was not pressed.

13 It is clear that Kate Evans has been the victim of appalling domestic violence. She details injuries that have been inflicted on her by Andrew Smith. Injuries range from bruising to broken bones. As is sadly common she turned to drugs when unable to cope with her situation. She has been on methadone for a number of years. Urinalysis testing shows that Kate Evans lapses into casual drug use from time to time. This includes both cannabis and amphetamines.

14 Regrettably, Ms Evans sought to rely on a document (Exhibit 11 as marked) being a letter from Dr Heather Dalgety. That letter reported that Ms Evans had told her doctor that she had not used street drugs since 2006. Clearly that information was false and she conceded that she had hidden her drug use since 2006 from her doctor.

15 In her affidavit dated 2 July 2009, Ms Evans set out in paragraphs 14 –18 of her current engagement with services. In relation to parenting her “intention” was to speak with Centacare in Bourke about their courses. She was also seeking medical assistance for depression and reported that she had decreased her alcohol intake.

16 Clinical Psychologist K P Powell, in October 2009, did not support restoration to the mother. That report has not been updated and accordingly it must be looked at in that light. Further, the former clinician was not available for cross-examination. The report noted that the Mother “had been proactive in her recent efforts towards self development including development of her parenting skills” (although it did not say what those efforts had been) but her performance in the assessment was poor. She was “in an agitated state”. “She was not ready for the home visit which had been arranged and I was told twice to come back later”. The assessment only took place because of the efforts of the Departmental workers. The clinician concluded that “the mother’s conduct in regard to the assessment left a lot to be desired and unfortunately reflected badly on her motivation to have her children restored to her care, and more practically, reflected badly on her ability to provide the time and input required to parent five children as a single mother”.

17 I accept that the Clinician’s report accurately set out that there was no realistic possibility of restoration to the Mother at the time it was prepared. As that report was released to the parties in October 2009 it is imperative that the Mother establish that she has some “runs on the board” in addressing her parenting deficiencies in order to persuade the Court that restoration is possible Her affidavit of 8 April 2010 details what steps she has taken since the children were removed in April 2009. In summary Ms Evans has:

(a) attended parenting groups at Centacare weekly since July 2009;

(b) attended the Richmond Fellowship for a period of three months to address mental health and depression;

(c) attended Community Health in Bourke monthly for two years for drug and alcohol counselling;

(d) attended Bourke Family Violence Prevention Legal Service for over twelve months;

(e) reduced her alcohol intake and cut her methadone dose.

18 Ms Evans says she will not resume her relationship with Andrew Smith. The remainder of her evidence dealt with issues about her care of the children, her contact with them and her criticism of Jane Simons as a carer. She proposes a twelve month supervision order to have DOCS involved with the family so that the children can be kept together.

19 Unfortunately Ms Evans did not make a good witness. In cross-examination she was unable to give any cogent evidence that she understands what the available services are able to achieve. She also conceded that despite her affidavit evidence about attending various services, in fact she has only recently engaged with those services. There was little or no progress that she could point to that might lead a Court to conclude that she had advanced from where she was in October last year.

20 I was referred to recent cases in matters of restoration. Mr Aich relies on the decision of then Senior Children’s Magistrate Mitchell in Re: Leonard 2009 CLN 2. Ms Rutkowska referred me to the decision of Johnstone DCJ in Saunders & Morgan v DOCS 2008 CLN 10. Mitchell SCM refers to Saunders and Morgan in his decision. Although I was referred to some Supreme Court authorities, they dealt with issues that go to evaluating evidence. They do not need to be referred to in my decision.

21 Mitchell SCM provides an excellent summary of the issues to be determined in paragraphs 27 –30 inclusive in Re: Leonard.

“27. The proper determination of this case revolves around whether, in the terms of section 83, there is “a realistic possibility of restoration” of Leonard to his mother’s care . The meaning of that phrase was considered by Johnstone DCJ in Re Saunders and Morgan and Anor. v. Department of Community Services [2008] CLN 10. His Honour first drew attention to the use of the work “possibility” as distinct from a probability and pointed out that what is required is something that may or may not happen as distinct from something which is more likely than not to happen. “A possibility” his Honour held, “is something that may or may not happen… It must be something that is not impossible” but falls short of a probability. Turning to the qualification “realistic,” his Honour thought that “the word… …was inserted to require that the possibility of a restoration is real or practical” rather than “fanciful, sentimental or idealistic or based upon unlikely hopes for the future.” A “sensible” or “commonsensical” possibility appealed to his Honour as the most apt synonym available.

28. Further, the determination as to whether this sensible or commonsensical possibility is present must be undertaken in the context of the totality of the Children and Young Persons (Care and Protection) Act 1998 and, in particular, the objects of the Act set out in section 8 and the principles set out in sections 9 and 10 and, where relevant, sections 11 to 14 which were designed with a view to the promotion of “the safety, welfare and well-being” of the child or young person the subject of the proceedings but which, also, import considerations such as “least intrusive intervention,” freedom from violence and exploitation, protection of the family unit, consideration of the interests of siblings, due recognition of culture, disability, language, religion and sexuality of the child/young person, his or her appropriate participation and, where relevant, a proper recognition of Aboriginal/ATSI identity.

29. Even as he disagreed that the concept of “prima facie case” provides a useful analogy, Johnstone DCJ found some resonance in the view expressed by the Senior Children’s Magistrate to the Special Commission of Inquiry into Child Protection Services in NSW that “the Children’s Court does not confuse realistic possibility of restoration with the mere hope that a parent’s situation may improve. The body of decisions established by the court over the years requires that usually a realistic possibility be evidenced at the time of the hearing by a coherent program already commenced and with some significant ‘runs on the board.’ The court needs to be able to see that a parent has already commenced a process of improving his or her parenting, that there has already been significant success and that continuing success can confidently be predicted.”

30. It may be important to keep in mind, too, when considering “realistic possibility of restoration,” that section 83 is cast in the present rather than the future tense. The realistic possibility needs to be shown as existing at the time of the hearing even if the appropriate time for effecting the restoration has not yet arrived. A court is unlikely to be satisfied merely because a party is about to begin or is contemplating commencing a process from which a realistic possibility of restoration might (or might not) emerge. It is for that reason that the Children’s Court generally looks for “runs on the board” and some success, already achieved, in addressing parenting deficits. Further, even if some successes have been achieved by the parent, the Children’s Court will need to assess the likely time frame in which the restoration might be effected and may need to take into account the viability of such a restoration given the delay and the age, level of maturity, wishes and developing attachments of the child or young person. Further, the ability to predict a viable restoration may become less and less reliable as time passes.”

22 I agree with everything that is set out by Mitchell SCM above.

23 I accept that Ms Evans loves her children. Her problem is that she does not have the skills to cope with five active young children. There is no reliable evidence that she has advanced her skills or addressed the problems that existed when the children were removed. Ms Rutkowska submitted that the Mother should have received greater assistance from DOCS to address her parenting and drug and alcohol problems. That is not a role that the Department undertakes. If Ms Evans had approached the Department for assistance, no doubt they would have helped her. But it is not up to the Department to be the proactive party.

24 Ms Evans simply has not put “runs on the board” in the fifteen months that have elapsed since the children were removed. At the moment the best that could be said of her efforts is that there is a hope that her situation may improve. An awareness of where to find help is not sufficient to show that parenting deficiencies have been corrected. Lying to a general practitioner about the use of street drugs as recently as January this year does not fill the Court with confidence.

25 Time has marched on and the children are settling into new regimes. Ms Evans decision some weeks ago to unilaterally keep the children overnight on a contact visit without reference to the Department or Jane Simons (paragraph 25 of Ms Robinson’s affidavit 17 May) and her criticism of Ms Robinson in abusive terms (paragraph 27) is but another example of her lack of maturity and insight into her role as a parent.

26 Mr Aich with the support of Mr Thompson and Ms Power seeks orders for parental responsibility to the Minister and approval of the Care Plans.

27 I am not satisfied on the evidence before the Court that there is a realistic possibility of the children being restored to their Mother’s care. An order allocating parental responsibility to the Minister is inevitable with out of home care as proposed being the least intrusive intervention.

28 I now turn to the Care Plans. The Department has prepared a care plan for each child. Although it is some months since the plans were initially prepared, I have read the plans again and I am satisfied that they meet all the requirements of the Act. Each plan meets the individual needs of the child and provides for their long term security and welfare. As is required by the Act, the children’s Aboriginal cultural needs are met. Despite the splitting of the children, they will have regular contact with each other and the department will supervise the carers to ensure regular contact is maintained. June and Fiona have an excellent relationship. It may be argued that the placements are not ideal. Obviously it would be preferable to keep the children together. That is not possible here, but it is my view that the Department has done the best they can to keep the children in Bourke where they will be able to have ongoing supervised contact with their Mother and Father and stay with their closest extended family. I am satisfied that contact issues have been addressed in the respective care plans and that proper arrangements have been made for contact.

29 Accordingly I make final orders as follows:

(1) In respect of each child an order allocating parental responsibility to the Minister until the age of eighteen years.

(2) In respect of each child, the relevant care plan, which forms part of Exhibit 3, is approved.

9 July 2010
R J Clisdell CM