Director General Department of Community Services v AA and 6 Ors

[2010] NSWDC 19

CITATION:	Director General Department of Community Services & Anor v AA & 6 Ors [2010] NSWDC 19 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	22, 23 and 24 February 2010
JUDGMENT DATE:	26 February 2010
JURISDICTION:	Civil (Gosford)
JUDGMENT OF:	Levy SC DCJ
DECISION:	1. Each of the three appeals are allowed in part with some variation of the orders of the Children’s Court made on 18 June 2009; 2. The exhibits are to be returned; 3. Liberty to apply on 7 days notice if further orders are required; 4. The parties are directed to within 7 days bring short minutes that reflect my findings and proposed orders.
CATCHWORDS:	CHILDREN AND YOUNG PERSONS – orders and notations made by Children’s Court allowing for maternal and sibling contact in respect of an infant child placed into long term foster care – considerations concerning competency of the mother’s appeal – considerations in the case for variations on appeal of previous orders made by Children’s Court – interests of children to be paramount – Children and Young Persons (Care and Protection) Act 1998
LEGISLATION CITED:	Children and Young Persons (Care and Protection) Act 1998
CASES CITED:	Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Department of Community Services v SM & MM [2008] NSWDC 68 S v Department of Community Services [2002] NSWCA 151
PARTIES:	Director General of the Department of Community Services (Appellant in the first appeal, respondent in the second and third appeals) Minister of Community Services (Respondent in all three appeals) AA, a child in foster care (Respondent in all three appeals) BB, the natural mother of AA, CC and DD (Appellant in the second appeal, respondent in the first and third appeals) CC, a child in care, a sibling of AA and DD (Appellant in the third appeal, respondent in the first and second appeals) DD, a child in care, a sibling of AA and CC (Appellant in the third appeal, respondent in the first and second appeals) EE, paternal grandmother of AA, CC and DD (Respondent in all three appeals) FF, paternal grandfather of CC, DD and putative grandfather of AA (Respondent in all three appeals) GG, father of CC, DD and putative father of AA (Respondent in all three appeals)
FILE NUMBER(S):	53 of 2009 (Gosford)
COUNSEL:	Mr MW Anderson (For the Director General) Ms Reynolds (For BB) Ms Moran, solicitor (For EE) Mr M Reilly, solicitor (For DD) Mr Grant, solicitor (For CC) Ms K Rutkowska, solicitor (For AA) (There was no appearance for FF or for GG)
SOLICITORS:	IV Knight, Crown Solicitor (For the Director General) DJ Chapman Solicitors (For BB) Coast Law Solicitors (For EE) Mr M Reilly, Solicitor (For DD) Grant & Co, Solicitors (For CC) Legal Aid Commission (For AA) (There was no appearance for FF or for GG)

JUDGMENT

Non-publication order

1. These appeals were heard in a closed court and I made a non-publication order that prohibited the publication of any names or material tending to identify the children and the families that are involved in these appeals. In the course of setting out these reasons for judgment I have assigned litigation pseudonyms where it became relevant to do so as a result of a need to refer to particular individuals.

Nature of cases

2. There are 3 proceedings for determination. The first involves an appeal brought pursuant to s 91 of the Children and Young Persons (Care and Protection) Act 1998 concerning orders made in the Children’s Court at Woy Woy. The second and third proceedings involve two cross-summonses of appeal also arising from orders made in the Children’s Court. The subject matter of the appeals involve inter-related maternal and sibling contact orders concerning three sibling children in respect of whom permanent care orders have been made. The three proceeding numbers in the court below were 115 of 2008, 118 of 2008 and 119 of 2008. In each appeal there are 7 interested respondents. These reasons have been prepared on circuit without the benefit of a transcript in view of the pressing need for all parties to expeditiously resolve the issues raised.

Issues for determination and applicable principles

3. A number of competing interests between the parties have been identified and examined during the course of the hearing. In considering the initiation of the appeals there is no doubt that the Director General initiated the first appeal out of a genuine concern over the respective best interests of all 3 of the children to whom these appeals relate. The other two appeals were inevitable as a consequence.

4. Aside from those competing interests amongst the parties, for which there can only be concern and empathy, the ultimate issue of paramount importance can only be the safety, welfare and wellbeing of the infant child in question, and his two teenage sisters : s 9(1) of the Act.

5. In determining the paramount issue, mandatory due recognition must be given to the statutory principle that facilitates the retention of relationships with people who are significant to the child in question. In these appeals there can be no dispute that the relationships between the birth mother, the siblings and the paternal grandmother are all relevant relationships with persons of significance to each of the children in care : s 9(2)(c) of the Act.

Parties

6. It is necessary to describe the parties, their inter-relationships and their respective interests. I will do so in the context of analysing the appeals filed. All but two of the 7 respondents to the appeals appeared at the hearing and were legally represented. There was independent legal representation for each of the children whose interests were affected by these appeals.

First appeal - filed on behalf of the Director General

7. The first appeal is brought by a summons filed in this court on 16 July 2009, where the appellant is the Director General of the Department of Community Services. He claims to be a person who is dissatisfied with the orders made in the Children’s Court on 18 June 2009 concerning the provision for sibling contact for a 21 month old male infant child who has been placed into the care of the Minister. I shall refer to that infant child by the use of the litigation pseudonym “AA”.

8. The Director General seeks to vary the terms of the contact orders made by the Children’s Court Magistrate on 18 June 2009. “AA” is now in a long term foster care placement, 6 months having been spent in a search for suitable long term foster carers.

9. The basis of the Director General’s appeal is that he is concerned that the practical viability of the arrangements for “AA”’s long term foster care have been jeopardized and placed at unnecessary risk of failure by reason of the contact frequency allowed for in the orders made in the Children’s Court. The relevant contact allowed for in those orders concerns “AA”, his two teenage sisters and the mother of these three children.

10. The Director General has argued that the orders made by the Children’s Court were inappropriate because they are not in the best interests of “AA”. At the same time the Director General seeks to vary the contact arrangements that are in place concerning contact between the natural mother and her two teenage daughters. The substantive argument relied upon by the Director General was that foster care placement for “AA” has been unnecessarily placed at risk of failure as a consequence of the orders presently in place. He therefore seeks to have the orders varied to allow for less frequent contact between “AA”, his mother and his teenage sisters.

Second appeal - filed on behalf of the mother

11. The appeal which I shall refer to as the second appeal, even though it is not the second chronologically filed appeal, is brought by “BB” who is the 33 year old natural mother of “AA”. That appeal is brought by way of a cross-summons that was filed in this court on 1 September 2009. That appeal also seeks to vary the terms of the contact orders by the Children’s Court and seeks to increase rather than reduce the contact that has been allowed by those orders.

12. The Director General has raised technical jurisdictional objections to the competency of the natural mother’s appeal and has submitted that her appeal ought not be entertained. Those submissions have been contested by “BB” who claims that she is a relevant person who is dissatisfied by orders of the Children’s Court, thus establishing her standing, right and entitlement to bring her cross-summons and appeal.

13. The submissions made in the appeal brought by the natural mother “BB” also have relevance to the third appeal.

Third appeal - filed on behalf of the two siblings of “AA”

14. The third appeal has been brought by another cross-summons that was filed in this court on 28 August 2009. In those proceedings the appellants are the two teenage sibling sisters of “AA”. In these reasons I shall refer to these sibling sisters of “AA” by the litigation pseudonyms, namely “CC’ and “DD”. These sisters are presently respectively aged 15 years and 13 years. The Director General has not raised any jurisdictional objection to the competency of this third appeal.

15. The subject matter of the third appeal relates to the frequency and terms of contact orders and related supervision of permitted joint contact by these sisters with their infant brother and with their mother. It was argued on behalf of these two sisters that the terms of the contact orders prescribed by the Children’s Court should be varied so as to increase the frequency and duration of contact that was allowed for by that court.

Contact orders in contention

16. At the commencement of the hearing I encouraged the parties to meet to try and conciliate a solution to the wide-ranging nature of the matters in dispute in the best interests of the children concerned. This course failed to resolve the appeals but it was helpful in narrowing the issues.

17. The following tabulation summarises the comparative relationship between the orders made in the Children’s Court, and which are under appeal in these proceedings, and the contentions raised by the various interested parties to the appeal. I have not included all the orders made in the Children’s Court and which are set out in full in the two documents filed at Tab 31 of Volume 3 of Exhibit “A”. Instead, I have only set out the detail of those orders over which contention has remained.

Contact orders made in Children’s Court relevant to the appeal filed by the Director General	Director General’s contended variations of the contact orders made in the Children’s Court	Contentions by other interested parties as raised by the cross-summonses
Fortnightly sibling contact for the infant “AA” with his sisters “CC” and “DD” for 12 months and then reviewed.	Monthly sibling contact for “AA” with his sisters “CC” and “DD” for a minimum of 3 hours per month, such contact to be supervised by the paternal grandmother “EE” provided that “EE” undertakes programmes and courses approved by the delegate of the Minister, and if she does not do so, then such contact shall instead be supervised by a delegate of the Minister.	Fortnightly supervised sibling contact for the infant “AA” with his sibling sisters “CC” and “DD” for 3 hours until “AA” attains the age of 18 years.
Bi-monthly contact for the infant “AA” with his natural mother “BB” for 2 hours for 12 months and then reviewed.	No change, thus requiring that the appeal of “BB” be dismissed.	Fortnightly supervised contact for the infant “AA” with his natural mother “BB” until the age of 18 years, for 3 hours, possibly timed to coincide with the contacts arranged to take place for “AA” with his siblings “CC” and “DD”.
Monthly contact for the young persons “CC” and “DD” with their mother “BB”, about to change to bi-monthly contact.	Bi-monthly contact between the mother and her two daughters.	Fortnightly supervised contact for 3 hours for “CC” and “DD” with their mother “BB” until “CC” and “DD” respectively reach the age of 18 years.

Factual background

18. The natural mother, “BB” is aged 33 years. She has three children, two daughters, “CC” and “DD” who are aged 15 years and 13 years. She has a son, “AA” who is aged 21 months. For reasons that are complex and were valid at the time, and in their best interests, all 3 of these children have been made the subject of care orders in the Children’s Court.

19. As final care orders have already been made and remain in place, although I have reviewed the factual matters that have led to the placement of the children in care and to the making of those orders, I do not see the necessity to set out and canvass the detail of those matters here other than to record that the orders were made for sound reasons at the time having regard to adverse and unsatisfactory aspects of the mother’s living conditions, social situation and her history of involvement in drug use.

20. The sisters “CC” and “DD” have been placed into the care of their paternal grandparents “EE” and “FF” since 25 May 2007. Final orders have been made in the Children’s Court providing for parental responsibilities to be shared between the Minister and these grandparents. That arrangement appears to be a stable and nurturing environment although the departmental files reveal the presence of some behavioural issues concerning “CC” and “DD”. This is not surprising since they were removed from the care of their mother at the respective ages of 12 years and 10 years. To varying degrees they have not reacted well to their removal from their mother and do not appear to have accepted it. To date they have declined the opportunity for counselling and assistance for such issues. That position may or may not change in the near future. It appears that these girls have retained a strong bond of attachment to their mother.

21. At the respective ages of 15 and 13, they will attain their respective majorities in not so many years from now and it appears highly probable that they will resume a closer and unrestricted degree of contact with their mother at those times. It is apparent from the evidence that a relationship of emotional dependence on the mother has remained despite separation from her over the last 3 years. Almost daily telephone contact takes place with her and if it does not occur, difficulties arise as a consequence, as was described by their grandmother.

22. The infant child “AA” was placed in foster care shortly after his birth. He is the subject of orders placing him under the parental responsibility of the Minister until he attains the age of 18 years.

23. On 18 June 2009 the Children’s Court made contact orders for “AA” to have contact with his natural mother on a tapering basis which is due to change in March 2010 from 2 hours per month to 2 hours bi-monthly. On the same date, the Children’s Court made contact orders for “AA” to see his sibling sisters “CC” and “DD” for 3 hours per fortnight.

24. “AA” had been in transitory foster care situations until 4 September 2009 when he was placed into long term foster care with his current foster carers. That placement was made in circumstances where the foster carers were aware of the nature and extent of the contact orders that were considered by the Children’s Court in the best interests of “AA”.

25. On 16 September 2009, a DOCS caseworker noted concerns expressed by the current foster carers over contact with members of the birth family of “AA”. On that occasion it was noted that the foster carers did not want to have any contact whatsoever with the birth family. It was also noted this might change in the future but the foster carers were not prepared to make any commitment in this regard.

26. It appears that the first of the appeals was filed by the Director General as a result of these reported concerns expressed by the foster carers. This then led to the filing of the other appeals.

27. As the appeals require a rehearing of the matters ventilated in the Children’s Court it is relevant to review the updated circumstances that have been described in evidence since the hearing in the Children’s Court.

28. In the appeals the paternal grandmother “EE” gave oral evidence. She is in her sixties and she is in apparent good health. Not only has she raised a number of her own children but she has also participated in the raising of some 28 grandchildren and 6 great-grandchildren. Her husband “FF” is aged 72 years. He is said to be in declining ill-health due to what “EE” believes to be inoperable prostate cancer and it is thought that this illness will prove terminal in the short term.

29. The natural father of the two daughters, “GG”, is aged 38 years. His parents are “EE” and “FF”. Whereas in the past “GG” has maintained a denial of the paternity of “AA”, according to his mother “EE”, he has just recently relented on his refusal to date to undergo paternity testing and is awaiting arrangements for such testing.

30. The earlier refusal of “GG” to undergo paternity testing to establish whether or not he is the father of “AA” has led to his own father “FF”, with whom he does not enjoy a good relationship, to maintain a hostile attitude to the presence of “AA” in his house. “FF” has also expressed an attitude of hostility to the idea of “AA” being in his home and he has remained unwelcoming to “BB” and to his own son, “GG”. “FF” has expressed the attitude that if it can be established that “AA” is the son of his son, he will change his stance of hostility towards the presence of his putative grandson “AA” in his home.

31. “EE” has stated that irrespective of the results of DNA testing, she considers “AA” to be part of her family and she has stated that this attitude on her part will not change even if such a result will negate a genetic connection to her family. She has described her own very strong bond of love, attachment and commitment to her responsibilities towards “AA”, noting that these feelings are echoed by her granddaughters “CC” and “DD”, both of whom continue to remain in her care. Significantly, she has stated that in the event that “FF” does not accept “AA” as his grandson, she will leave her home and her husband of some 50 years, knowing the hardship this would cause to herself and her family, including her ill husband. This has been pointed to as compelling evidence as to the extent to which she is committed to the welfare and wellbeing of “AA”.

32. In response to concerns expressed on behalf of the Director General over her ability to control the behaviours of and continue to supervise “CC” and “DD”, she has indicated her willingness to undergo some training courses to assist her to manage her teenage granddaughters.

33. The evidence given by “BB” in the appeal indicated that she is now free from drug use and was prepared to undergo random drug screening tests for drug residues. She has completed drug use relapse prevention courses. She has undertaken some courses aimed at personal development, financial literacy, child protection and a positive thinking course. She now has stable housing provided by the Department of Housing. She is hoping to obtain part time employment although this is speculative at present. She conceded that although she was in some ways partly dependent upon “GG” for help with the heavier physical domestic tasks from time to time, she no longer had a relationship with him and was not subject to his deleterious influences.

34. “BB” gave poignant and insightful evidence demonstrating that she was concerned for the welfare of her children and that she cherished whatever contact she could legitimately be permitted to maintain with them. She also gave evidence that indicated she recognised and respected the boundaries that had been imposed on her relationships with her children and indicated that she was not wanting to transgress those boundaries or placing her rights for continued contact with her children at risk. It was clear that she pined for her children between the permitted contacts. I accept that this evidence was genuine and heartfelt on her part.

Overview of the evidence in the appeals

35. In addition to the materials that were tendered in the Children’s Court there were some additional and updating documents that were tendered in the course of the hearing of the appeals. This additional material was supplemented by oral evidence.

36. The Director General tendered three folders of documentary evidence containing many hundreds of pages of voluminous but relevant materials. These included contact reports, assessments, care plans, file notes, transcript of proceedings in the Children’s Court, clinical reports, affidavits with annexures and other background materials. I have given close consideration to those materials although I have not included a detailed factual summary of those materials due to the urgency of the need to deliver these reasons as the contact frequency was about to change pursuant to the orders made in the Children’s Court.

37. Oral evidence was taken from the independent clinician and children’s psychologist, Mr Don Maxwell. This was achieved by telephone so as not to disrupt his clinical commitments. The natural mother “BB” and the paternal grandmother “EE” also gave oral evidence as did the DOCS case worker and the DOCS case manager.

38. As strict compliance with the rules of evidence in such cases is not mandatory, hearsay evidence and submissions were received in relation to the attitudes, position and wishes of the 2 sibling sisters “CC” and “DD” and as well as from “FF”, the putative grandfather of “AA” and the acknowledged grandfather of “CC” and “DD”. Hearsay evidence was also given concerning the attitudes and position of the current foster carers.

39. For obvious policy reasons, the current foster carers were not identified nor were they called to give evidence. However, the position of the foster carers was made known through the evidence of the case worker and case manager. The concern was expressed that the current foster carers may not commit themselves to the long term care of “AA” because of the potential for the contact allowed for by orders under appeal to disrupt and undermine the viability of the placement. The reasons put forward in support of such concerns essentially related to potential disruption to the arrangement of family holidays, playgroup activities and eventual future involvement in school and sporting activities that would unduly restrict the family life of the foster carers. A significant undercurrent was the issue of a concern by the foster carers that their long term relationship with “AA” might somehow be undermined by the extent of family contact.

Consideration

40. These care appeals raise for consideration a series of practical difficulties relating to arrangements for foster care. It is difficult to balance the respective interests in these appeals. I turn to consider the relevant issues.

The jurisdictional issue

41. At the outset of any consideration of the appeals, a determination is required in relation to the status of the appeal brought by “BB”. The Director General challenged the competence of that appeal because in the Children’s Court, through her solicitor, “BB” acquiesced to the orders and notations made concerning the care of her children. In this regard counsel representing the Director General pointed to the concession recorded at T2.5 to T2.12 located at Tab 34 of Exhibit “A”. This comprised the transcript of the hearing in the Children’s Court on 4 June 2009. There, it was recorded that “BB” had consented to her daughters “CC” and “DD” remaining in the care of the Minister until they reached the age of 18 years and that she agreed to notations as to contact rather than contact orders being made.

42. Whilst it was not argued on behalf of the Director General that in these circumstances an estoppel arose, and in my view no such estoppel could arise from such circumstances, it was argued that because there were no relevant orders for contact made, and there were merely notations made regarding contact, there was no relevant order from which she could appeal. Consequently it was argued that “BB” could not be considered to be a party dissatisfied by an order of the Children’s Court, and therefore s 86 of the Act, which was the only statutory basis for an appeal by “BB”, could not be enlivened to permit her appeal. It was submitted that in these circumstances the summons filed by “BB” and purporting to appeal orders of the Children’s Court should be struck out and dismissed. Counsel for the Director General informed me that there were no relevant decided cases that he could find on this point.

43. Whilst argument presented on behalf of the Director General has some superficial attraction, I consider it to be flawed for a number of reasons.

44. First, I consider that the mother was a party to the proceedings when the relevant orders were made. She is therefore a party who is capable of being dissatisfied with an order made in the proceedings.

45. Secondly, although the Act does not specifically define what constitutes an order as such, and although s 60 provides that a care order includes a contact order under s 86, appeals from orders made by the Children’s Court are permitted by a dissatisfied party : s 91(1) of the Act. On 18 June 2009 the Children’s Court made an order in the following terms “I accept the notations as they are set out in the proposed minute of care order that is filed and dated 15 June 2009” : T10.8, 18 June 2009. In my view this statement by Mr Williams CM should be read as being an integral part of the orders made, including for contact.

46. Thirdly, if the mother’s appeal were to be struck out and dismissed as was submitted, this would inevitably delay the resolution of the other contact issues raised in the appeals which are not the subject of jurisdictional challenge. Such delays and related escalation in costs and uncertainty would inevitably follow a further application in the Children’s Court for relief by way of either rescission or variation of other orders made : s 90 of the Act. Noting that in the appeals where there is no jurisdictional challenge I am required to exercise the powers and obligations vested in the Children’s Court, one such power is the obligation to ensure that all matters are to proceed as expeditiously as possible in order to minimise the effects of the proceedings on the children and family members : s 94 of the Act.

47. Fourthly, putting to one side the debate that took place at the hearing over the question of whether the overriding purpose rule embodied within s 56(1) of the Civil Procedure Act 2002, which requires the court to interpret its procedural rules to facilitate the just, quick and cheap resolution of civil proceedings, has application to the manner in which the appeal proceedings are dealt with, I consider that it would be plainly unjust and wrong to approach the Director General’s objection in the overly limited and unduly technical way in which it arose because it fails to consider the substance of the case and therefore the justice of the case : S v Department of Community Services [2002] NSWCA 151 per Davies AJA at [42] – [43].

48. I consider this to be particularly so in a case involving the potential deprivation of, or significant curtailment of, natural rights to parental contact, as is mandatorily recognised by statute, especially where to uphold such a technical objection would simply lead to a multiplicity of rescission or variation proceedings in the Children’s Court, with the attendant unnecessary burdens of cost, delay, inconvenience and anxiety that would affect many parties and persons, including all the respondents who have appeared in these proceedings and which would take the administrative and professional staff within DOCS away from other important work, not to mention the stresses placed on the foster carers.

49. For the foregoing reasons I consider the mother’s appeal should be dealt with expeditiously and without undue legal technicality. I consider that to order otherwise would involve a miscarriage of justice in the circumstances. I therefore decline to uphold the Director General’s submission that the mother's appeal is incompetent so as to require strike out and dismissal.

50. I will now turn to address the substantive matters raised in argument on the appeal.

Perceived risk of threat to long term foster care placement

51. The basis of the Director General’s application to seek to vary the contact orders is based on a perceived threat to the long-term foster care placement of “AA”. The foundations of that perception bears close analysis to evaluate whether in reality such a risk or threat truly exists, or whether the perception is warranted in the circumstances.

52. The starting point for the analysis is recognition of the fact that an experienced DOCS case worker, Mr Wallace Bicket, and an experienced DOCS case manager, Mr Sonja Baxter, have expressed their concern over such a risk materialising against a background that the current placement took 6 months of searching for suitable carers.

53. They have raised this issue following their contact with the long term foster carers of “AA” and their observations require some respect because, being charged with the duty of having the best interests of the children at heart, in some ways they are possibly in a better position than a court to make assessments of the position of the foster carers. This is because the foster carers, understandably, were not involved in these proceedings, and, for policy reasons it is only right that this is so. However, it is for this very same reason, namely the consequential inability of the parties to test the represented position of the foster carers and the inability of the court to form an assessment of the evidence of the foster carers, that requires a cautious approach to be taken to the evidence which relays the concerns relied upon by the Director General in order to determine the legitimacy of that concern and the weight to be ascribed to it.

54. The analysis of the expressed concerns of the foster carers must be traced though the relevant historical milestones concerning their involvement with the care of “AA”.

55. In this regard, it is evident that they became involved in the care of “AA” after the contact orders were made on 18 June 2009. It would be inconceivable to think that they took on the care of “AA” without being fully cognisant of the care and contact arrangements that applied to “AA”’s situation by reason of the orders made in the Children’s Court. They took “AA” into their care on 4 September 2009. It was only 10 days later that they voiced their concern over contact with the birth family of “AA” and stated they did not want any contact whatsoever. Those concerns were not based on any actual experience of adverse encounters. The view expressed by the foster carers was never one that was going to prevail, by virtue of the operation of s 9(2)(f) of the Act concerning the obligation to ensure retention of significant relationships.

56. It then became apparent that the foster carers moved their position somewhat and indicated that they could be open to such contact with the passage of time. This appearead in the latest indication of their views, as was set out in the file note comprising Annexure “C” to the affidavit of Mr Bicket sworn on 19 February 2010. That file note refers to a meeting between Mr Bicket, Ms Baxter and the foster carers on 15 February 2010, a week before the commencement of the hearing of the appeals. In that file note there is an expression of concern that a birth family member could try to procure “AA”’s placement with the family.

57. Clearly, a concern of the foster carers was that they could possibly be required to give “AA” over into the care of a member of his own family. I interpret that statement to be an obvious expression of anxiety which could operate to colour the reasons for not wanting contact in the terms ordered by the Children’s Court. Whilst the attributed sentiment recorded in that statement is tempered with concern over the possible impact on “AA” concerning such a possible change in the care relationship, it nevertheless suggests to me that the expression of concern is not based on a holistic and balanced consideration of other relevant factors, such as the right to retention of relationships of significance to “AA”.

58. On page 2 of that file note prepared by Mr Bicket it is recorded that the foster carers apparently reiterated their preference for “AA” to have no contact with his birth family, even though they understood that such contact would inevitably continue over time. They apparently reiterated their preference for contact with the birth mother to be limited to 4 times per year, having regard to what they had ascertained to be the case from other unspecified instances of fostering.

59. Notwithstanding these indications of a limited understanding of the operation of the policy behind s 9(2)(f) of the Act, the file note in question conveys other important impressions about the carers which I consider need to be included and given weight in balancing the issues concerning contact.

60. One such factor is the repeated intimation of a desire to adopt “AA”. Another is the unreserved expression of being fully committed to “AA”. Yet another is the reported evidence suggesting there has been successful bonding to “AA” by the foster carers, evidenced by the expressions of love and affection.

61. In my view all of these latter matters are positive indications that there is a successful bonding and commitment to the child that is unlikely to end in a capricious or ill-considered termination of the foster care arrangements by these carers where the child has clearly been accepted into their wider family.

62. I am reinforced in that view by the evidence of the Children’s Court clinician, Mr Maxwell. A significant impression I gained from his evidence was that his assessment of the foster carers was that they were intelligent, flexible and adaptable people, with “AA”’s best interests at heart and that they have appeared to have moved on from their initial position of hesitancy based on their relative inexperience with fostering, and have since grown in the relationship with “AA” with increasing confidence.

63. It is against that background that it remains to examine the actual details of the concerns expressed by the foster carers. These expressions related to potential disruption to the routine of their own family life and family commitments, their need to cement and maintain their bonding with “AA” and the corresponding need for “AA” to obtain the benefit of cementing his own attachment to them, the potential for disruption to their family holidays and outings, possible disruption of playgroup activities, possible inconvenience or distraction from later school and sporting commitments and the like.

64. I consider each of the matters that I have highlighted in the preceding paragraph to be legitimate items of concern. However, it is unrealistic to view these matters in isolation and in the absence of a tempered recognition to “AA”’s rights and entitlements to retain the meaningful connection with his significant relationships, namely his siblings, his mother and his paternal grandmother. To varying degrees, “AA” interacts with these significant persons, he gains from these relationships and should be able to continue to do so as he grows older. If those relationships become diluted due to less frequent contact, these real benefits that accrue to him can be lost or diminished.

65. In achieving a balance between the competing interests regarding contact issues in these appeals I give full weight and recognition to the need for the foster carers to provide secure nurture and to develop the attachment process without introducing confusing elements into the mix of factors at play, such as placing emphasis or undue focus upon other relationships that could potentially serve to detrimentally divide the loyalties of “AA” to his disadvantage. In this regard I consider the evidence of the expert child psychologists to be crucial to the analysis. It therefore becomes necessary to analyse their opinions.

Opinion of the psychologists

66. The relevant opinions of psychologists are those of Mr Fardell and Mr Maxwell. Both of these experts prepared reports and they both gave oral evidence although, Mr Fardell gave evidence in the Children’s Court and Mr Maxwell gave evidence in these appeals, albeit by telephone.

67. It seems to me that the opinions of Mr Fardell, whilst reasoned and legitimate, tended too much to the conservative side of the equation of balancing the benefits and detriments of altering the level of contact between “AA” and his birth family. His approach was expressed to be a pragmatic one, which to my mind connoted an inherent acceptance of disadvantage to “AA” as a necessary ingredient in the resolution of the balancing exercise that is required.

68. It is for this reason, as well as the fact that I have had what I consider to have been the distinct advantage of hearing Mr Maxwell’s views being explored, including with regard to nuances of the practicalities concerning the advantages and disadvantages of the various contact formulations that he was asked to address in his oral evidence, that I prefer the opinions of Mr Maxwell to those of Mr Fardell. A particular helpful focus of Mr Maxwell’s evidence was his careful discussion to differentiate the respective factors that affected the mother, the sisters and “AA”, and the manner in which he inter-related these considerations in discussing the detail of different contact scenarios, their advantages and disadvantages. Having had the opportunity of hearing Mr Maxwell’s evidence being tested, I consider that I can confidently rely upon it to guide my decisions on critical matters concerning the contact issues.

Achieving a fair balance of the competing issues

69. In achieving a proper balance of the relevant competing interests, recognising that the needs of “AA” are paramount when weighing the matters to be balanced, I consider it necessary to discount the concerns held by the Director General regarding the perception of a threatened risk of loss of the foster care placement.

70. In this regard I do not dismiss the possibility that the risk of failure of the care placement could in fact materialise. This could occur for a number of reasons, including apprehensiveness on the part of foster carers concerning the frequency of birth family contact or due to a multiplicity of other factors. Nevertheless, on the evidence presented I consider it improbable that the foster carers would, for the reasons, given, abandon “AA” on account of frequency of contact issues concerning the birth family. I consider this to be so particularly as they are clearly committed to “AA” and must be assumed to be prepared to act with his best interests at heart, including supporting his statutory right to retain significant family contacts and relationships.

71. In achieving an appropriate balance of interests I consider it necessary, as was explained by Mr Maxwell, to make a distinction between the contact needs of “AA” with regard to contact with his siblings and his need for contact with his mother.

Resolution of the issue of contact between “BB” and her daughters “CC” and “DD”

72. Guided by the opinions of Mr Maxwell, I have concluded that it would be needlessly detrimental to the best interests of “CC” and “DD” if contact were to remain at the frequency that was ordered by the Children’s Court on 18 June 2009 or if it were to be reduced in frequency, as was contended for by the Director General in his appeal. I have therefore concluded that “CC” and “DD” should continue to have contact with their natural birth mother “BB” for a minimum of 3 hours per fortnight, such contact to be supervised by the paternal grandmother “EE”, or, if she is unavailable, then the supervision should be at the reasonable discretion of the delegate of the Minister. I consider that this order should continue until “CC” and “DD” reach their majority.

73. In coming to this view I have had regard to the relatively mature ages of “CC” and “DD” when they were removed from their mother’s care, the descriptions of their relative mal-adaptation to the changed parental responsibility arrangements following such removal, and their expressed desires and conduct in seeking out contact with and the company of their birth mother. I am also re-enforced in what I consider the appropriateness of this conclusion by the strong impression that I gained that “BB” displayed an increased level of mature insight and capacity for self-evaluation along with recognition of the need for restraint in her explanations and dealings with her daughters over the matters of contact which have caused her unhappiness.

74. In my view “BB” has shown a capacity for self-improvement that must be recognised as a significant change compared to the situation when the orders and notations for contact were made. In her evidence she demonstrated a capacity for advocacy concerning her children which was lacking in 2009, when she acquiesced to lesser arrangements, even though within herself she said that she knew those arrangements were not advantageous to her or to her children. Overriding these considerations, I consider it has been shown beyond dispute that “CC” and “DD” need greater contact with their birth mother, as is reflected in their behaviour and in the sleeping patterns of “DD”. In this regard I accept the evidence of the paternal grandmother “EE” without reservation.

75. The issue of appropriate supervision for maternal contact needs to be analysed. For my part I do not see an overwhelming or compelling need for “EE” to attend and complete courses on parenting and the like, given the life experience she has described in her evidence, particularly with regard to her involvement in the care of her many grandchildren. However, at the same time I recognise the need of the Director General to proceed cautiously and with prudent governance in mind for such contact given the history of the family and especially since there will be no direct departmental presence in the regime for such contact. On balance, the Director General is therefore entitled to a measure of reassurance that is provided by such commitment on the part of “EE” to attend courses. However, I do not consider that the commencement of such supervision by “EE” should have to await completion of such courses.

76. In considering the appropriate supervision order involving the paternal grandmother “EE” I have had regard to the submissions made on behalf of the Director General concerning the recorded history of behavioural issues attributed to “CC” and “DD”. Of this, two things need to be said.

77. In my view, such behavioural issues are unsurprising because of the terms of the separation from their mother. In this regard the department should be directing its resources to assist in ameliorating any behaviours that might be beyond “EE”’s ability to manage. On the other hand such behavioural issues seem to be in the background. The uncontradicted evidence is that both girls are strongly affectionate and bonded to their paternal grandparents and interact appropriately and with helpfulness and affection when they have contact with their younger brother “AA”.

78. In raising the behavioural issues the Director General drew attention to aspects of the label of Oppositional Defiance Disorder that have been ascribed to these teenagers. Of that several things need to be said. First, it was not a definitive DSM IV medical diagnosis. Secondly, the opinion was not tested and needs to be viewed with some considerable caution : Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320. Thirdly, the girls are growing and maturing, as was described by their paternal grandmother, suggesting that the former impressions may no longer be current. Fourthly, even if the label applies, this is not an argument for diluting the contact arrangements these girls have with their mother and younger brother.

Resolution of issue of contact between “AA” and his siblings “CC” and “DD”

79. The resolution of balancing the contact issues for “AA” with his siblings poses difficulties.

80. When considering the paramount interests of “AA” regarding such contact, the starting point must be the recognition of the mutual interplay of this statutory right to such contact between all 3 siblings. Such contact will obviously promote long term benefits of a sense of self for “AA” and his feeling of belonging and therefore his confidence and ability to progress in life. This was cogently explained by Mr Maxwell and I accept his explanation. The corresponding need arises in “CC” and “DD” to have contact with their brother.

81. Mr Maxwell explained, and I accept, that the benefits that will flow to “AA” by solidifying the relationship with his siblings will accrue over the next two decades of “AA”’s development, including into his adulthood. In my view, this factor, when weighed against legitimate factors of convenience and concern to the foster carers, outweighs the arguments of the Director General for a lessening of sibling contact. Mr Maxwell strongly recommended against dilution in sibling contact because the potential longer term adverse adjustment and life skill consequences are real and should be avoided if reasonably possible. I accept that view and consider it should be given paramount consideration in the best interests of “AA”. This will also have beneficial flow on effects in the best interests of the sibling sisters. As has been pointed out, “AA”’s sibling relationships may well be the longest enduring relationship he will have in his life and it is therefore in his best interests that these relationships be founded upon the firm foundations afforded by a greater level of contact than that contended for by the Director General.

82. I therefore consider that there should be fortnightly sibling contact for “AA” with his sibling sisters for a minimum of 3 hours on each such occasion. For the reasons and on the conditions I have already outlined, I consider that such contact should be supervised by the paternal grandmother.

83. In the interests of avoiding stress, anxiety and unnecessary uncertainty in the children as time progresses, I consider this contact variation should remain in place until “AA” attains the age of 18 years. The alternative, that is nominating a lesser period of duration for this order, involves what I consider to be the spectre of needless applications to a court. The scope for review and variation if need be is an ever-present safeguard in any event against any possible adverse consequences of such a default order.

84. In my view a concerned, intelligent and adaptable foster carer committed to the welfare, wellbeing and best interests of a child in the position of “AA” should be able to adapt to the inconvenience and imposition arising from such arrangements, noting that they too obtain significant emotional satisfaction and benefits from rearing a child in such circumstances. The process does not only involve burden on the foster carers. It also has benefits. On the material available concerning the foster carers, my assessment is the likelihood of adaptation and sensitive understanding on their part, in the best interests of “AA”. I infer this from the evidence of their evolving attitudes, moulded by increasing confidence as they move forward in their relationship with “AA”.

Resolution of issue of contact between “AA” and his mother “BB”

85. Achieving a fair balance in resolving the respective interests of “AA” and his mother concerning contact issues involves great difficulty. This is because the evolution of the relationship with the foster carers is also a relevant factor that requires balanced consideration.

86. It is undoubtedly in “AA”’s best interests that he be allowed to continue to cement strong bonds with his foster carers. As was explained by Mr Maxwell, and as I accept, this necessarily involves to a degree, weakening the attachment “AA” has to his natural mother. Such a course will provide real benefits to “AA” and to the foster carers by strengthening that bond, promoting trust and minimising the scope for confusion in roles and divided loyalties on the part of “AA”. It is paramount that such disadvantageous circumstances be avoided.

87. To avoid such disadvantages, this will inevitably require a measure of dilution of the contact between mother and son. From the evidence I have heard from “BB”, it is clear that such a course will inevitably cause “BB” distress. However, once it is recognised that the best interests and welfare of “AA” are treated as the paramount consideration, there is really no other reasonable choice and I am compelled to follow and accept Mr Maxwell’s recommendation for such reduced contact with “BB” to be implemented.

88. The consequence of such a course will undoubtedly require great adjustment, particularly on the part of the natural mother. Platitudes are unlikely to ease the distress she will probably experience in the course of implementing these changed arrangements but I consider she has recently demonstrated the strength of character and resolve to recognise the importance of this process to the wellbeing and welfare of her infant son for the long term. This involves an acceptance to endure the necessary adjustments that she will be required to make, hopefully with the assistance of such resources that can be reasonably made available to assist her in this regard. This is important because the wellbeing of her daughters and her son will be dependent upon how she deals with this adjustment. It is also important that “BB” receives assistance for another reason. This is that her daughters “CC” and “DD” will be seeing “AA” more frequently than will she. This will involve some adjustments for them all and it is important that “BB”, “CC” and “DD” do not introduce an element of confusion or divided loyalties for “AA”. The prospect that this could occur is not an argument for diluting the contact for the siblings. It simply reinforces the case for providing professional assistance for all concerned.

89. Accepting the expert recommendation on the need for dilution of the maternal contact arrangements, I order that such maternal contact continue for “AA” at a minimum of 3 hours of supervised contact per month until “AA” attains the age of 18 years.

90. I consider that the continuation of that order until “AA”’s majority is an important feature for maintaining stability for himself. The continuity of contact with his mother should with time enhance his sense of self and this should be permitted to grow unhindered by periodic interruptions to the arrangements and by transmitted family stresses associated with revision of orders framed as being in the best interests of “AA” in his infancy, as he progresses through childhood and adolescence and in preparation for adulthood. Hopefully, the personal resources and kindness of the foster carers and the resources of the department will remain ready to facilitate this as I consider this formulation to be in the paramount best interests of “AA”, and not just in the short term.

91. For the same reasons that I have earlier outlined, to promote stability for “AA”, I consider that contact between “AA” and his mother should be supervised by the paternal grandmother “EE” on the same terms as previously outlined. If she is unable to provide such supervision, then it should be performed by the delegate of the Minister.

92. It is apparent that it is of paramount importance to the continued wellbeing and welfare of “AA” and to a degree, the inter-related wellbeing and welfare of his sisters, that the contact arrangements which are the subject of these reasons for judgment should be implemented with care co-operation and due sensitivity on the part of all involved in setting up and ensuring the success of these arrangements.

Disposition

93. I have concluded that the Director General’s appeal should be allowed in part in order to provide for some variation in the orders made, but not to the extent that was sought. I have allowed each of the appeals in the cross summonses in order to enable variations to be made to the orders made in the Children’s Court.

Costs

94. The question of the costs of the appeals does not arise because there are no exceptional circumstances that have been shown that would justify departure from the general rule that there should be no order as to costs : s 88 of the Act; Department of Community Services v SM & MM [2008] NSWDC 68.

Orders

95. I make the following orders:

(a) Each of the three appeals are allowed in part with some variation of the orders of the Children’s Court made on 18 June 2009 as set out in my reasons for judgment, and summarised as follows:

(i) The mother’s contact with her son “AA” shall be for a minimum of 3 hours per month, supervised by the paternal grandmother or; if she is unable to provide such supervision, this should be by the delegate of the Minister and such contact shall continue until “AA” attains the age of 18 years;

(ii) The contact between “AA” and his siblings “CC” and “DD” shall be for a minimum of 3 hours per fortnight, supervised by the paternal grandmother or; if she is unable to provide such supervision, this should be by the delegate of the Minister and such contact shall continue until “AA” attains the age of 18 years;

(iii) The contact between “BB” and her two daughters “CC” and “DD” shall be for a minimum of 3 hours per fortnight, supervised by the paternal grandmother or; if she is unable to provide such supervision, this should be by the delegate of the Minister and such contact shall continue until each daughter respectively attains the age of 18 years;

(b) I make no order as to costs;

(c) The exhibits may be returned;

(d) Liberty to apply on 7 days notice if further orders are required.

(e) The parties are directed to within 7 days bring short minutes of order that reflect my findings and proposed orders.

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