Director-General Department of Human Services and Community Services v LX

[2010] NSWDC 291

CITATION:	Director-General Department of Human Services and Community Services v LX [2010] NSWDC 291
JUDGMENT DATE:	1 July 2010
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	I propose to make an order under s 79 of Children and Young Persons (Care & Protection) Act 1998 placing AX under the parental responsibility of the Minister
CATCHWORDS:	CIVIL LAW - appeal by Director-General of care and protection order made by magistrate - no appearance of mother at hearing - Director-General seeking an order that parental responsibility be allocated to the Minister for Community Services pursuant to s 79(1)(b) of Children and Young Persons (Care & Protection) Act 1998 - whether to require an assessment under s.54 Children and Young Persons (Care & Protection) Act 1998 - construction of s 9(2)(c) of Children and Young Persons (Care & Protection) Act 1998 - interests of child and family to be taken into account by that provision
LEGISLATION CITED:	Children and Young Persons (Care & Protection) Act 1998 s 9, s 54, s 60, s 71, s 72, s 79, s 83
CASES CITED:	Re Louise and Belinda [2009] NSWSC 534
PARTIES:	Director-General Department of Human Services and Community Services LX
FILE NUMBER(S):	2009/337942
COUNSEL:	Mr Mallos as independant representative of AX Mr Braine for LX Mr Moore for the Director-General

JUDGMENT

1. AX was an eight-year-old boy living with his single mother. On 9 January 2009 DOCS officers, with the help of the police, took him away from his mother and placed him in the care of someone else. They took this action because they thought AX was at immediate risk of serious harm.

2. The case was brought to the Children’s Court, and the Director-General of the Department of Community Services, the Department being known as DOCS, has now brought the case before me.

3. At this stage I have to decide the answer to these three questions. One, was AX in need of care and protection on 9 January 2009? Two, would AX be in need of care and protection now but for the interim orders and alternative arrangements? Three, do I make an order placing AX under the parental responsibility of the Minister, and if so for how long?

4. These questions are posed for me because a Children’s Court Magistrate ordered on 13 October 2009 that AX be placed under the parental responsibility of the Minister for Community Services for a year. After that year his mother was to resume parental responsibility under supervision of the Director-General.

5. This order made by Magistrate Stapleton in the Children’s Court was not that sought by the Director-General. The Director-General wanted an order allocating parental responsibility to the Minister until AX was aged eighteen. The Director-General thought the safety, welfare and wellbeing of AX could only be met by such an order. Her Honour disagreed and thought there was a realistic possibility of AX being restored to his mother. Accordingly her Honour made the orders on 13 October 2009 final orders.

6. The Director-General appealed from her Honour’s principal order. The Director-General still wants the parental responsibility to remain with the Minister until AX is aged eighteen, and that emerged as the principal issue before me.

7 The Director-General has a right of appeal to this court and when an appeal is brought it is heard before the District Court Judge by way of a new hearing fresh evidence can be attended in addition to the evidence tendered in the Children’s Court. I have the same powers in disposing of an appeal as the Children’s Court Magistrate has been given. I may confirm, vary, or set aside the decision of the Children’s Court, or make other orders which the Children’s Court may have made.

8. No one appeared before me to oppose the orders sought by the Director-General in this appeal. Mr Mallos, who appeared as an independent legal representative of AX, supported the principal order sought by the Director-General. There was no appearance by LX, AX’s mother, even though she is named as the first defendant in this appeal. She knew about this appeal. She had a barrister, Mr Braine, briefed and she was due to see him last Saturday. The case commenced before me on Monday 28 June 2010. LX did not return to see Mr Braine on Saturday, nor did she appear on Monday morning.

9. Telephone contact was made with LX by Ms Julia Detheridge, a solicitor employed by the New South Wales Crown Solicitor, and instructing Mr Moore of counsel for the Director-General in this case. Ms Detheridge gave evidence before me that she phoned LX who told her that she, LX, did not think that she stood a chance, and that she had something else to do that day.

10. At my request Ms Detheridge telephoned LX back and informed her that I had asked whether she could come the following day, or on the Wednesday, and that it was important. She apparently replied “No”, adding that three days was more than she could take, and that she would rather kill herself. When Ms Detheridge asked her if there was any way she could come on any of the other days, LX hung up on Ms Detheridge. I accept the evidence of Ms Detheridge as to those telephone conversation.

11. In addition there was tendered this morning an affidavit of Regina Wong, the case worker in this case, sworn today. She made contact with LX yesterday because a message was left for Ms Wong for her to contact LX. Ms Wong made it clear to LX that my wishes were that she should have attended the hearing, and LX confirmed that she had told Ms Detheridge that she would rather die than attend the hearing. When Ms Wong said that in the judge’s view it was important to hear from her, LX reportedly replied “None of your fucking business, I’m not important to AX.” Ms Wong was told that so far as her giving evidence before me was concerned that “the judge can read between the lines of your bullshit”. Towards the end of the telephone conversation LX said to Ms Wong, “Look, I’ve had enough of your bullshit, so you can fuck off.” Ms Wong said that LX continued to swear so Ms Wong, appropriately in my view, indicated that she was going to terminate the call, and did so.

12. At the commencement of the second day I raised the question whether I should adjourn the appeal and require LX to attend by issuing a requirement for her to attend. I heard submissions from Mr Mallos and Mr Moore, and I decided that I would not require LX’s attendance. Briefly, the reasons were that it would be inappropriate to adjourn the proceeding as Mr Mallos pointed out the attendance of LX in an untimely fashion would require her to update her evidence, which would bring about further delay, which would be detrimental to AX. I also took into account that LX may seek a variation or rescission of any order that I make. Mr Moore also emphasised the impact of delay and uncertainty brought about by an adjournment so far as AX was concerned. He also pointed out that LX had contributed some material before me in a sense that there were affidavits before me which were before the learned magistrate. In addition, there was an affidavit filed in this appeal; there was also a transcript of her evidence given before the learned magistrate as well as a transcript of the submissions made on her behalf.

13. I was not of the opinion that it was in the best interests of AX to grant an adjournment, nor that there was any other substantial or cogent reason to grant an adjournment. It seemed to me that an adjournment would be inevitable and so I regarded it as inappropriate to require the attendance in the circumstances of LX. As Mr Mallos pointed out, in any event these proceedings may be conducted in the absence of a parent, and a parent is warned in the initiating process that that may occur.

14. I am satisfied that I can determine the appeal in LX’s absence provided she knows that it is on. I am satisfied that she knows. I accept what Mr Braine has told me from the bar table, and the evidence of Ms Detheridge. I have therefore decided to go ahead in her absence.

15. I am empowered to decide this case by an Act of Parliament. It is the Children and Young Person’s(Care and Protection) Act 1998. The power to remove children and to allocate parental care to other persons - which this case involved - is obviously a gross interference in a fundamental day to day relationship within our community, namely the relationship between a parent and a child. It is therefore understandable that Parliament should entrust such a decision to a judicial officer such as a Children’s Court Magistrate or District Court Judge on appeal or a Supreme Court Judge where relief is sought in the Supreme Court.

16. The Act helpfully provides for its objects in s 8, which I will not set out, but will make a schedule to this judgment. It also sets out in s 9 a list of principles to be applied in the administration of the Act. Indeed in s 9(1) the Act says that it is to be “administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and wellbeing of the child or young person are paramount.” Subject to that provision, the Act then lists in subs (2) other principles to be applied in the administration of the Act.

17. I should add at this stage since I am referring to the Act that I had considered the possibility of requiring an assessment of LX under s 54 of the Act. However I formed the view that this was not appropriate for two reasons. The first is that it would require a further adjournment, and for the reasons I have already given that was not appropriate. The second was that it seemed to me that s 54 of the Act enabled me only to appoint a person to assess the capacity of a parent to carry out parental responsibility “for the purposes of an assessment order”. An assessment order is an order for an examination or assessment of a child, so it seemed to me that I could only appoint a person to assess LX’s capacity in the context, or for the purposes of - as the Act says - making an order for the assessment of AX. I did not regard it as appropriate to make, nor did anyone apply for, such an order to assess AX. I have a good deal of material, medical and otherwise, regarding AX’s progress. Also, in light of what Mr Mallos and Mr Moore said, I would regard it as detrimental for him to be yet again assessed, particularly since the primary purpose for the assessment might have been in order to appoint a person to assess his mother. They are the two reasons I had for not adopting that course.

18. As I said, this appeal is by way of a new hearing and I have the relevant functions and discretions of the Children’s Court so I deal with it as a care application by the Director-General as defined in s 60 of the Act. The care orders which are sought by the Director-General before me are set out in the Summons commencing the appeal. Relevantly at this stage the Director-General seeks, under s 79(1)(b) of the Act, an order that parental responsibility for AX be allocated to the Minister for Community Services.

19. Section 72 of the Act provides that I may make a care order “only if” I am “satisfied that the child is in need of care and protection or that, even though the child is not then in need of care and protection”, the child was in need of such care and protection when the care application occurred and the child would be in need of care and protection, but for the existence of care arrangements put in place when the child was removed or as a result of interim orders made by the Magistrate.

20. Section 71 provides that I can be satisfied that a child is in need of care and protection “for any reason”. The section goes on to provide a list of reasons which may satisfy me but which do not limit me taking into account “any reason”.

21. In this case the Director-General says that I can be satisfied in accordance with s 71(1)(d) that AX’s “basic physical, psychological or educational needs are not being met, or unlikely not to be met, by” his mother. In addition the Director-General argues that in accordance with s 71(1)(e) that AX “is suffering or is likely to suffer serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which he is living.”

22. From the evidence which has been led before me which I will refer to shortly, I am not satisfied that AX is currently in need of care and protection. He is in a stable alternative environment. Accordingly, under s 72 I have to decide whether he was in need of care and protection when the application occurred originally before the Children’s Court and in addition whether he would be in need of care and protection but for the alternative arrangements which are in place. If I am satisfied of both of those, then the Director-General, as I said, seeks an order that I place AX under the parental responsibility exclusively of the Minister until he is aged eighteen.

23. I am not to make a decision of that nature, namely allocating parental responsibility to someone other than the parent unless I have given particular consideration to one of the principles referred to in s 9 of the Act, namely s 9(2)(c) which will be set out in a schedule to the judgment. I might add that there is no evidence before me that there is any order made by the Supreme Court at all, so that s 79(4 )is not applicable in these proceedings.

24. I must not make a final order for the allocation of parental responsibility unless I have considered a care plan presented to me by the Director-General. The Director-General has been obliged by s 83 of the Act to assess whether there is a realistic possibility of AX being restored to his mother. The Director-General in this case has determined that there is no such reasonable possibility. Accordingly, the Director-General is obliged to prepare a permanency plan for another suitable long-term placement. Those obligations are set out in s 83 of the Act. I, myself, must then decide in accordance with s 83(5) whether to accept the assessment of the Director-General or not. I am not to make a final order unless I expressly find that the permanency planning for AX has been appropriately and adequately addressed. Such a permanency plan need not provide details as to the exact placement in the long-term of a child.

25. The standard of proof in these proceedings is on the balance of probabilities.

26. So I turn to the first question which I must answer and that is posed by s 72(1)(a) of the Act of whether AX “was in need of care and protection when the circumstances that gave rise to the care application occurred or existed”.

27. Ms Wong prepared an affidavit for consideration of the Children’s Court. The affidavit was completed on 12 January 2009, just a few days after AX was removed from his mother by the Director-General in accordance with powers under the Act. In that affidavit at [66-70] Ms Wong expressed a view that AX was “at immediate risk of serious harm at the time of removal”. She referred to a “history of eighteen reports” which related to LX’s “alcohol use resulting in her inability to provide adequate care and protection” for AX.

28. There was also noted “concerns regarding LX’s alcohol use and aggression towards other people and children at AX’s school”. Ms Wong also observed that LX when AX was removed - Ms Wong was one of the persons who attended - that LX was at the time “currently intoxicated.” She was of the view that that current state of intoxication was to such an extent that she would be unable to care for AX by providing him with his basic care and protection needs. She observed that no other family members or friend were deemed appropriate to care for AX at that time.

29. I should add that the second defendant named in these proceedings is a person asserted by LX to be AX’s father, namely RY. He has not appeared in these proceedings despite, I am satisfied, being served with the appropriate documents and his name being called outside court on the first day. There is evidence from Ms Wong that contact was made with RY’s mother. RY’s mother said that RY had no such child.

30. In addition to Ms Wong’s affidavit, which I accept, an affidavit was filed by LX herself on 21 January 2009. In [20] LX said that she did “consent to establishment on a without admissions basis”. I understand the expression “establishment” refers to the establishment to the court’s satisfaction of reasons for a child to be in need of care and protection. In other words, it seemed to me from LX’s affidavit - and as Mr Mallos and Mr Moore pointed out - that the need for AX’s care and protection at the time that he was removed was conceded.

31. Based upon that and upon Ms Wong’s evidence in the affidavit that I have referred to - I add that I have read the whole of the affidavit, not just the paragraphs I have quoted - I am satisfied that AX was in need of care and protection when the circumstances that gave rise to the care application occurred or existed.

32. I turn now to the question of whether AX “would be in need of care and protection, but for the existence of arrangements for care and protection” which are currently in place. At the same time, I will consider the third question of whether I make an order placing AX under the parental responsibility of the Minister with particular consideration to the principles referred to in s 9(2)(c) of the Act.

33 I have been assisted in answering these questions by the material before the learned Magistrate, Ms Stapleton. I have also been assisted by the affidavits and exhibits tendered before me. In addition Mr Moore called Ms Regina Wong, the case worker, who gave evidence before me.

34. Based upon all of that evidence and for reasons which I will give in a moment, I am satisfied that AX would be in need of care and protection but for the existence of current arrangements for his care and protection.

35. The reasons which I have for that view are these. LX is a mother who has problems coping with stress. She absented herself from the proceedings in the Children’s Court after appearing and being represented by a barrister on the first day. She has not appeared in these proceedings. She is often abusive when she has contact with DOCS officers and abruptly terminates telephone calls. She is erratic in her behaviour at times. She attributed her absence or departure from the Magistrate’s court proceedings to stress and produced a medical certificate to that effect.

36. Coupled with that finding is the second reason, namely that LX copes with the stress by absenting herself. She has done this in three ways. The first is to absent herself from the Children’s Court proceedings. The second is not to appear before me. The third is to abruptly terminate telephone calls as I have said.

37. In addition I am satisfied she has had what I describe as a drinking problem in the past. She has in her evidence before the Magistrate acknowledged that problem and I accept the submission made by Mr Mallos that there is a basis for concluding that one way that LX has for dealing with her stress has been, in the past, to take alcohol and to engage in binge drinking. When AX was removed from her care, I am satisfied that she was intoxicated. I accept the evidence from independent observers at AX’s school when he was in her care that she used to turn up intoxicated. AX himself has made references to his mother being intoxicated and she has admitted as much.

38 The third reason is that AX is a child with high needs. He has been diagnosed by Dr Colin Kable, a child and adolescent psychiatrist, as having attention deficit hyperactive disorder which impairs him in his social functioning. In addition, he has an autistic spectrum disorder and Dr Kable thought that he also fitted the diagnosis of Asperger’s disorder. He is, as Ms Wong described correctly, clearly a boy with high needs. He is likely to become aggressive and angry in the domestic environment. There will be, it seems to me, a good deal of stress because of his high needs in the relationship between him and his mother.

39. Next, LX has had an opportunity to see AX in what is called contact since he has been removed. Some of those contacts have gone well but her attendance at contact has been irregular. Since, for example, the final orders were made on 13 October 2009 she has attended about half a dozen contact opportunities but missed about half a dozen contact opportunities. As part of exhibit D there is a report from [Name] Youth Services which I will refer to later regarding contact between AX and his mother in May this year. The report referred to the “third time that contact has been initiated and then suddenly halted” due to LX “refusing to contact Community Services to further the contacts”. Another contact did not take place when a case worker called LX to confirm that she was on her way, LX is said to have replied “that she didn’t feel well and would not be attending”.

40. In this regard I have to bear in mind a significant event that occurred in February 2009. But first I will continue with describing factors relevant to contact. AX had been removed from his mother the previous month. He had been placed in various suitable homes over the period of five or six weeks. It was obviously a challenge for the placement of a boy such as this who had these medical problems. In Ms Wong’s affidavit of 23 February 2009 at [43] she said that on “19 February 2009, according to departmental records, a short term placement with [Name] Youth Services was approved for AX”. This placement is in [location and area]. The carers have experience caring for children with autism spectrum disorder. The carers themselves had two children. [Name] Youth Services was an agency which according to Ms Wong specialises in the placement of children with high care needs.

41. AX when he was removed from his mother lived in a suburb of Sydney. Efforts were apparently made to continue his placement in the Sydney metropolitan area. As it turned out the placement that was made on 19 February 2009 through [Name] Youth Services proved to be very satisfactory. It lasted for almost the rest of the year. The result of this of course was that AX attended a school in the [name] area and was cared for by people who lived in the [name] area and supervised by an agency based in the [name] area. It is relevant to make these observations because I am in the process of listing the reasons for deciding that AX would be still in need of care and protection but for current arrangements.

42. The reason I am presently considering is the irregular attendance by his mother at contact. It is important to appreciate that I expect part of the reasons for her non-attendance is not a lack of interest but the significant logistical problem posed by her needing to attend contact over such a distance. Indeed in an affidavit filed in these proceedings on 16 March 2010 LX said that the “time taken to travel to [name] by train varies, although if I measure the time from my home, it is necessary to travel firstly by bus to the train station and then by local train to Strathfield station and then a train to [name]. The intercity train alone takes three hours and therefore the entire trip may take up to five hours each way.”

43. Efforts had been made by LX to negotiate a point of contact closer to Sydney but this has not been able to be arranged due to taking into account the needs of AX and his carers. There is evidence that LX has a medical problem that imposes some strain on her so far as travel is concerned. I make this observation in the context of giving weight to the irregular contact but not as a strong indication of a lack of interest by AX’s mother.

44. The next reason is to look at the nature of the contact. Each contact is monitored and reported upon by appropriately qualified people. Often contact is very good but occasionally intervention has been needed by the person who is supervising. Inappropriate exchanges occur in conversations between AX and has mother. These exchanges can have understandably adverse consequences on AX. As Ms Wong said, there are times when he can become very confused when it appears that he is rejected by some of the things that his mother has said to him. LX has said, according to the reports, inappropriate things, which were clearly rejecting of AX and very disparaging of DOCS. Those kinds of remarks are quite readily understandable: so far as LX is concerned DOCS has intervened to take away her child. That must produce an understandable degree of anger towards the department. I am impressed I should add, by the professional way in which Ms Wong and other departmental officers deal with people acting under this sort of stress. It is also understandable that LX may herself be stressed, firstly as a result of AX’s condition and his high needs, and secondly as a result of having to travel such long distances in discomfort in order to see her son. Once again I am not surprised that there is friction but that friction can be very damaging to AX.

45. Exhibits 1 and 2 are reports by [author] from [Name] to Ms Wong. They are dated 26 May 2010, exhibit 2, and 3 June 2010 which is exhibit 1. His mother had failed to appear on a recent contact. [Author] explained that his mother had not been feeling well and sounded as though she had the flu. AX apparently replied she’d “probably been drinking”. [Author] observed that there had been a “serious escalation in AX’s behaviour since contact has been re-initiated on a regular basis”. The carer had apparently reported very disrespectful behaviour towards her, [Name] Youth Services and DOCS.

46. Returning to the significant event in February 2009, in exhibit 1 [author] observed that the “inconsistent nature of the contact with his mother has taken its toll” on AX. {Author] observed that “he has gone through the whole cycle of acceptance and rejection for the third time this year and is asking the same questions which revolve around single ‘why’ his mum is so hot and cold with him.” [Author] observed that he did not think LX “realises how much damage she is doing to AX by building him up like this and then dropping him like a hot scone when she decides she’s had enough for a while.”

47. I do not adopt myself that as a reason. I think LX may have acceptable reasons for not attending but [author] observes that of course “AX does not understand”. He says that “AX is suffering huge self esteem issues”. Then, in what [author] described as “the peak of AX’s confusion”, he apparently “took a knife from the drawer and put it to his chest and asked what was the point of living when nobody loved him”. There was not an intention, thought [author], of self harm but it was what he described as a “massive wake up call to just how much inconsistent contact with his mother affects him”.

48. I too regard that as a reason for the fact that AX would be in need of care and protection but for his present arrangements.

49. Another reason which I take into account is that AX is doing very well with his present carer. She is prepared to take him until he is aged eighteen and he is doing very well at the school that she is sending him to. The school is itself very happy with his current progress.

50. Ms Wong observed, and I put weight on this as well as another reason, that the overriding need in AX is for stability and security. He does not have time to wait. He needs, as Mr Mallos observed, finality.

51. I have taken into account also the evidence of LX given before the learned magistrate that she has not been drinking since 27 January 2009. This proposition cannot be tested, as Mr Mallos correctly observed, because she is not here to give evidence. Nevertheless it is supported by reports from a counsellor and I am inclined to accept it. In addition she has been undertaking parenting courses. The evidence at the time that the police and DOCS attended her home was that it was relatively clean and food was in the refrigerator.

52. The wishes of AX have been referred to. He has said he needs to go home provided his mother stops drinking and he is safe. A report from [Name] Youth Services in February of this year indicated that AX was very comfortable in his current placement however “has indicated that he wishes to be reunited with his mother”. A similar reference is made in a report of March this year. On the other hand AX has at times said that he is happy to stay in his current placement. It is fair to say that he is ambivalent in the expression of his wishes.

53. I need to give particular consideration as - s 79(3) requires me to - to the principle referred to in s 9(2)(c). That provides that in deciding what action is necessary in order to protect AX from harm “the course to be followed must be the least intrusive intervention in the life of the child and his or her family that is consistent with the paramount concern to protect the child from harm and promote the child’s development.”

54. That provision has been described as ambulatory by Forster J in Re Louise and Belinda [2009] NSWSC 534 at [54]. His Honour was dealing with a submission referred to in [50] to the effect that under the equivalent provision being considered by his Honour at that stage - in the circumstances where the mother and the foster mother could equally protect the children - the appropriate course would have been to leave the children where they were. The children in that case had been returned to the mother. Her counsel had submitted that the least intrusive intervention was to return the children to the mother in that case. There had been a period of some time spent by the children with the foster mother in that case.

55. His Honour said, at [53], that while “in an ideal world, it may well be best for a child to be cared by his or her natural parents, in my opinion, that submission states the role of” - the relevant section - “too broadly.” His Honour went on to say, that as he saw it, the provision “is not intended to promote either living with natural parents or living with carers. Absent considerations to the contrary, it promotes stability, absence of change in the maintenance of the status quo.”

56. His Honour went on to state, in the following paragraph, his opinion that the section was ambulatory. He said that, in the case of a care application made under s 60, “it has the effect of requiring the court to be reluctant to remove a child from its natural parents unless there is a compelling reason to do so.” On the other hand, in an application made to vary a care order his Honour expressed the view that the “subsection has a different effect. In that case, the least intrusive form of intervention would normally mean not interfering with existing care arrangements.” His Honour observed that the force of the requirement would vary from case to case.

57. Her Honour Judge Balla - in a case determined in this court yesterday, T v Director-General - referred to the remarks made by Forster J in re Louise and Belinda and adopted that interpretation.

58. With respect to both of their Honours I am not of the same view. To my mind the view expressed by his Honour does not take into account the statutory requirement that the course to be followed must be the least intrusive intervention, not only in the life of the child but - as the statute provides - “and” in the life of the child’s family, consistent with the paramount concern to protect the child. To my mind the purpose of the provision does fix its focus on the importance of the primary relationship between a child and its parent. It refers in terms not only to a “child” but to the child’s “family”. To my mind it does not link them as alternatives but requires both interests to be taken into account.

59. I am reinforced in that interpretation by the requirement of s 79(3) that I must not make an order allocating parental responsibility unless I have given particular consideration to the principle referred to in s 9(2)(c). Section 79 allows the court to allocate parental responsibility in a way that would upset the normal parental responsibility which one or two parents have for a child. The court may allocate parental responsibility to one parent to the exclusion of the other or to one or both parents and to the Minister or to another suitable person altogether. It may make an order placing the child under the parental responsibility of the Minister. It is not surprising that s 79(3) provides that such an order must not be made unless particular consideration has been given to the principle in s 9(2)(c) if that principle requires consideration to be given, not only to the interests of the child, but also of the family. Section 79 in providing for the power to allocate parental responsibility represents a significant intervention in the life of a family.

60. Accordingly I will give express consideration to the course which is least intrusive intervention in the life of AX as well as LX which is consistent with the paramount concern to protect AX from harm and to promote his development.

61. To my mind he would not be protected from harm were he to be returned to his mother. There is the significant risk of her stability being upset by the stress of living with a child with the medical condition which AX has. The stress has exhibited itself for that and other reasons in contact. She has in the past, as I have said, coped with her stress by absenting herself or taking to alcohol. It is regrettable that she has not taken part in these proceedings because I would have valued some up to date information about the efforts which she has made to deal with the alcohol issue as well efforts which she has made to deal with her ability to cope as a parent.

62. So far as AX’s development is concerned he is doing very well with his carer and at the school and, it seems to me, being very well supervised by an agency which has a particular skill in supervising high care children. It is most regrettable that the agency is placed so far away from where LX lives. The least intrusive intervention in this case, unfortunately being consistent with the paramount concern to protect AX and to promote his development, unfortunately will continue in my opinion to disrupt the relationship between him and his mother because at this stage they need to be separated.

63. I say at this stage because I raised the question with both Mr Mallos and Mr Moore as to why I should not continue the order for parental responsibility to remain with the Minister for a period of time. I am satisfied by their submissions that this would not be appropriate. It would not be in AX’s interests to have the uncertainty of his living arrangements being re-adjusted by a return to his mother at some indeterminate time in the future.

64. In reaching this view, I take into account, so far as s 9(2)(e) is concerned, the fact that AX is not quite ten and there is a greater need for early decisions to be made so far as his permanent placement is concerned. As Mr Mallos observed, AX has been in care and away from his mother for some seventeen months and a further order for temporary placement away from his mother could bring that period up close to two and half years. That would be a significant period away from his mother and, regrettably in my view, the appropriate order in the circumstances is for his care to be assumed by the Minister indefinitely. I state that view provisionally because I need, before I make a final order allocating parental responsibility to the Minister in respect of AX, to consider an updated care plan which I understand has been developed as an addendum to the care plans which were presented to the Children’s Court magistrate.

65. For the reasons which I have given I am therefore satisfied that AX would be in need of care and protection but for the existence of the present arrangements or interim orders and I propose to make an order under s 79 of the Act placing AX under the parental responsibility of the Minister. The duration of that order is subject to the care plan.

HIS HONOUR: All right they are my reasons for the time being. Now Ms Detheridge you had a Care Plan, what do you want to tender?

DETHERIDGE: Yes your Honour. I’d like to tender your Honour, I briefly show my friend.

MALLOS: Are there any copies? Thank you, yes by consent your Honour.

EXHIBIT #J CARE PLAN TENDERED, ADMITTED WITHOUT OBJECTION

HIS HONOUR: I’ll take that with me to morning tea, now what do you want to do? Do you want me to come back in twenty minutes for short minutes of order? Do you want to bring them in now, this afternoon, tomorrow? What do you want me to do Ms Detheridge, Mr Mallos? What suits?

MALLOS: I understand that my friend’s being quite active your Honour and we do have a draft of the final orders that we’d be pressing upon you and perhaps you could look at that together with the addendum to the Care Plan and perhaps in fifteen or so minutes you could advise us as to whether or not you have any overriding concerns regarding that.

HIS HONOUR: Good I’ll do that. May I look at that document? I’ll mark that for identification.

MFI#2 DRAFT FINAL ORDERS

MALLOS: Could I put on the record my thanks for the preparation of the addendum to the Care Plan in the brief time that we had available to us.

HIS HONOUR: Yes I agree with you.

MALLOS: I know that Ms Detheridge has been very active.

HIS HONOUR: Yes, thank you.

SHORT ADJOURNMENT

HIS HONOUR: That was very helpful. I was going to ask you Ms Detheridge, s 81 - what aspects of parental responsibility - do I need to specify that? And then there is the s 86 question of contact which I note you want me to deal with as a notation which seems satisfactory but in your Summons you seek either an order or a direction under s 81. That’s correct; I have to make a determination and you ask that all aspects of parental responsibility be the sole responsibility of the Minister?

DETHERIDGE: Yes your Honour.

HIS HONOUR: Section 81(1)(b) by the looks of it. The section says that if I make an order placing a child under parental responsibility the Minister - which I will do - I must determine which aspects, if any; and so, all aspects. Yes?

DETHERIDGE: Your Honour is correct.

HIS HONOUR: Thank you. In your Summons in para 5 you ask for contact and you don’t pursue that.

DETHERIDGE: No your Honour. Your Honour raised the question yesterday as to whether the Director-General was to apply to formally amend its Summons. We are not seeking to amend that Summons. It is acknowledged that it is open for your Honour to make orders pursuant to s 86. The Director-General nonetheless admits the contact order should be by way of notation. I have reduced that to writing to assist your Honour.

HIS HONOUR: I have read the care plan that I agree with. Do you have any submissions on the care plan Mr Mallos?

MALLOS: No your Honour. I am comforted by it. I am glad to see that the arrangements that are put in place and I submit that they satisfy - that permanency has been properly and adequately addressed by the Minister. I note by way of passing that the logistic problems your Honour referred to concerning contact were perhaps more significant for the mother some time ago, because she was required to travel all the way to [location].

Now she only has to travel to [name] and this involves AX travelling 50 minutes from his current residence to [name] so there has been a bit of a meeting if you like, of the parties, somewhere in between. It is always unfortunate that children have to travel to have contact. It is preferable for the parent to travel but the mother does have her problems and there seems to have been some attempted compromise of those difficulties, so I am grateful for that. But, yes, I commend the addendum to the care plan to your Honour and I also commend the minute of order proposed.

HIS HONOUR: All right thank you.

MALLOS: It would have been preferable for the mother to be here and we could have perhaps speculated on sharing aspects of parental responsibility but it makes it very difficult in the circumstances to allocate things like, perhaps, religion or education--

HIS HONOUR: Yes, it lists--

MALLOS: --things that, you know--

HIS HONOUR: -- in section 79.2, content, residence, education, religious and medical. You are right.

MALLOS: But it makes it very difficult and I think we are left in the situation - if we were to allocate any - aspects of parental responsibility would require by their very nature an undertaking by the person who is being allocated that, that they would accept those aspects, because with those aspects go a range of obligations and responsibilities.

Now of course we don’t have the mother available to indicate that she is willing to undertake that, so it is difficult but I share your Honour’s concern that it is unfortunate that we don’t have a parent who is here advocating for some allocation of parental responsibility.

HIS HONOUR: Yes I think you are right Mr Mallos.

MALLOS: And in the circumstances we are left by default to adopt the situation where there has to be a total - or an allocation of parental responsibility in all aspects of parental responsibility.

HIS HONOUR: And as you say she can always apply for a rescission or a variation.

MALLOS: Yes. For my part that is my hope, that when the mother does - if you like ,absorb the outcome and has the opportunity that she will do whatever is necessary--

HIS HONOUR: Yes, I notice I have an obligation, or the Court does, to make sure she has copies of the orders. I have to deliver them to all the parties so--

MALLOS: Also the 82 reports.

HIS HONOUR: Sure. But I have to deliver the orders, or at least the Court does. I have in mind, as I said, to publish the judgment with suitable deletion of any references which would identify AX, and I think the reasons should go to her as well. There won’t be any way of telling who it is about but she will know what was--

MALLOS: I think you can also require, if you like, it is a course that is open to you, that the s 82 reports that are going to be requested of the Director-General, also be made available to the mother so that she then is provided with information as to those aspects which are set out in order 2 for her own piece of mind if you like, as to AX’s progress. It is a matter for your Honour.

HIS HONOUR: It is probably a matter for the Children’s Court I think because I may order that the Director-General prepare a written report to be provided to the Children’s Court and, “unless the court otherwise orders, be given to each of the other parties”, so I don’t need to order it. Because s 82(2) provides that the report must, unless I otherwise order, be given to each of the other, so she’s got to get it. Pursuant to s 81(1)(b) the court determines that all aspects of parental responsibility to be the sole responsibility of the Minister. I don’t think I need to make any other orders.

Now I’ll tell you what I have in mind, I have in mind to - I need to make a decision to accept the assessment. I have to find that permanency planning has been appropriately and adequately addressed. Then I make the orders and note the notation. Does that sound right to both of you?

MALLOS: Yes.

HIS HONOUR: I will return to my reasons for judgment.

66. Since delivering those reasons, Ms Detheridge, who today appears for the Director-General, has tendered an addendum to a care plan which had been filed in the Children’s Court and dated 24 February 2009. The addendum has been prepared by Ms Wong and dated today.

67. Mr Mallos indicates that he finds the care plan satisfactory, indeed reassuring. In accordance with s 83(5) I accept the assessment of the Director-General and I expressly find in accordance with s 83(2) that permanency planning for AX has been appropriately and adequately addressed.

68. Accordingly I will move to make final orders. Before doing so I note that in the Summons the Director-General seeks an order for contact between AX and his mother. Whilst the Summons has not been amended - so that it is open to me to make such an order - the Director-General submits that the more appropriate course is for contact to be left within the discretion of the Minister. Mr Mallos embraces that position. The particular reason in this case is the difficulties which have been encountered in arranging contact through the non-attendance of LX on occasions. Contact therefore can be unpredictable. The Director-General does not want to be in a position of breaching the orders. But on the other hand, in accordance with the Director-General’s obligation under s 81(2), rather the Minister’s obligations under s 81(2) the Minister will have regard to the views of LX and has suggested arrangements to be noted regarding contact.

69. I propose to accept that position and not order contact as a requirement but to note the arrangements proposed by the Minister or rather the Director-General.

70. Accordingly I make orders in accordance with paras 1, 2 and 3 of MFI 2 which is a document called Final Orders signed by me and dated today and I note what is contained under the word “Notation” in that document. I will make the orders available for photocopying so that the original stays with the papers.

HIS HONOUR: You two need copies. The court has an obligation to--

MALLOS: Your Honour I don’t think there is. It’s implicit in everything that your Honour has said to date but I would wish to draw your attention to s 79(3) of the Act and when your Honour was enquiring as to what matters you needed to be satisfied of it seemed to me that as I’ve said you’ve said this perhaps in so many words, not so many words, but that you were satisfied that having regard to s 9(2)(c) that any other order other than the one that’s proposed--

HIS HONOUR: You think I didn’t actually--

MALLOS: I’m not sure, I’m just trying--

HIS HONOUR: I gave specific attention to the interpretation of that. I return to my reasons for judgment.

71. Mr Mallos has just observed it is implicit in what I said, but I make express that having given particular consideration to the principle in s 9(2)(c) I am satisfied that any other order than the one I make would be insufficient to meet AX’s needs.

HIS HONOUR: In chambers I will ask my associate to direct the Registrar to take those steps. Ms Detheridge I would like to hang on to the legislation if you don’t mind.

DETHERIDGE: That’s fine.

HIS HONOUR: Thank you, it’s been very helpful having access to it. Now it’s thoroughly marked up and it will be very helpful for me in future, so thank you for providing it.

SCHEDULE

Children and Young Person’s Care and Protection Act 1998

The objects of this Act are to provide:
(a) that children and young persons receive such care and protection as is
necessary for their safety, welfare and well-being, having regard to the
capacity of their parents or other persons responsible for them, and

(b) that all institutions, services and facilities responsible for the care and

protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and

(c) that appropriate assistance is rendered to parents and other persons

responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment.

**********