Director General, NSW Department of Family and Community Services and Whiteley and Anor
[2013] FCCA 917
•15 July 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DIRECTOR GENERAL, NSW DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & WHITELEY & ANOR | [2013] FCCA 917 |
| Catchwords: FAMILY LAW – Children – parenting orders – discharge of orders – airport watch list – best interests of the child. |
| Legislation: Children and Young Persons (Care and Protection) Act 1998 (NSW) s.79 Family Law Act 1975 (Cth), ss.60CA, 60CH, 65C |
| Applicant: | DIRECTOR GENERAL, NSW DEPARTMENT OF FAMILY AND COMMUNITY SERVICES |
| First Respondent: | MS WHITELEY |
| Second Respondent: | MR REDSTONE |
| File Number: | SYC 3527 of 2013 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 15 July 2013 |
| Date of Last Submission: | 15 July 2013 |
| Delivered at: | Sydney |
| Delivered on: | 15 July 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms Neville |
| Solicitors for the Applicant: | Crown Solicitor NSW |
| The First Respondents: | No Appearance |
| The Second Respondents: | No Appearance |
ORDERS
Leave granted to proceed ex parte.
The orders made by the Local Court of New South Wales at Liverpool on 27 February 2002 in proceedings FL 119/020020 are discharged.
The name and details of the child X born (omitted) 2001 are to be removed from the Airport Watch List (otherwise known as the PACE Alert System) maintained by the Australian Federal Police FORTHWITH.
IT IS NOTED that publication of this judgment under the pseudonym Director General, NSW Department of Family and Community Services & Whiteley & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 3527 OF 2013
| DIRECTOR GENERAL, NSW DEPARTMENT OF FAMILY AND COMMUNITY SERVICES |
Applicant
And
| MS WHITELEY |
First Respondent
| MR REDSTONE |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an Application rather different from most parenting applications before the Court, because the Applicant is seeking to have a child’s name removed from the Airport Watch List so that she may travel to (omitted) with her foster carer. The child concerned is a twelve year old girl who was born on (omitted) 2001.
The Applicant seeks a discharge of interim parenting Orders made by the Local Court of NSW at Liverpool on 27 February 2002 and an order made removing the child’s name from the Airport Watch List maintained by the Australian Federal Police.
Evidence
The Application is supported by an affidavit by Ms M, a Child Protection Caseworker with the NSW Department of Family and Community Services.
In her affidavit, Ms M deposes that the child’s natural father is not named on her birth certificate, although the Second Respondent has been said to be the father. His whereabouts are unknown, although extensive inquiries have been made by the Department in order to locate him.
Ms Neville of Counsel, who appeared for the Director-General, tendered an affidavit of service showing that sealed copies of the Application and affidavit were served on the First Respondent, the child’s mother, on 27 June 2013.
The child’s mother applied to the Local Court at Liverpool for parenting orders as against the Second Respondent. On 7 February 2002 the Court made interim orders that the child reside with her mother and her name should be placed on the Airport Watch list.
The application was adjourned to 27 February 2002. On that date the interim orders were continued and the Application was adjourned to 19 March 2002.
The Court records show that no parties attended court on 19 March and the matter was stood out of the list. The interim orders continued.
On 21 September 2011 the Children’s Court of New South Wales at Campbelltown made orders that:
a)The Court found no realistic possibility of restoration of the child to the mother.
b)Under the provisions of s.79(1)(b) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) the parental responsibility of the child was allocated to the Minister for Family and Community Services until she attained the age of 18 years.
Ms M deposes in her comprehensive and well-prepared affidavit that the child has an elder sister who was born (omitted) 1998. Both children have been placed with an authorised foster carer in a placement managed by (omitted) with casework being overseen by the Department of Family and Community Services. The child has resided in this foster placement since 1 February 2011 and it is regarded as the child’s permanent placement until she reaches the age of 18.
Ms M deposes that the department’s records indicate that the child’s placement with her foster carer “is providing (the child) with stable and consistent care, and is meeting all of her psychological, emotional and developmental needs. (The child) is included in all family functions and travel, and has a healthy attachment to her foster family.[1]
[1] Affidavit of Ms M 24.6.2013
The foster carer is a lady of (omitted) heritage whose husband died on (omitted) 2011. The child lives with her foster carer along with her sister and two other children. The foster carer travels to (omitted) on up to three occasions each year and takes her foster children with her, with the approval of both Community Services and (omitted).
The child accompanied her foster carer on a trip to (omitted) in July 2012. At that time the foster carer had been provided with a letter from the CEO of (omitted), Ms V, giving permission for the child and the other children in the care of the foster carer to travel to (omitted) with her.
However, when the foster carer again attempted to take all four children to (omitted) on 27 December 2012, again with the written permission of Ms V, the Australian Federal Police would not permit her to remove the subject from Australia because the Watch List Order was still in force.
Because the child was not permitted to leave Australia, she was placed with a member of the foster carer’s family whilst the foster carer took the other three children to (omitted). Not surprisingly, the child was distressed that she was unable to travel to (omitted) with her foster carer, her sister and her two foster brothers. Ms M also deposed that the child was distressed because she was unable to participate in ceremonies with the family whilst the family was in (omitted) to pay respects to the foster carer’s late husband.
The Department of Family and Community Services holds no fears that the child would not be returned to Australia if her name were to be returned from the Airport Watch List. Ms M deposes:
26. I understand that (the child) talks fondly of her trip overseas with (the foster carer) and other members of her foster family.
27. In my view, it is important that (the child) be able to attend these trips in order to feel that she is a part of the family unit into which she has been permanently placed.
28. These trips also provide (the child) with an opportunity to broaden her experience of the world, be exposed to new and positive experiences, and to learn about (the foster carer’s) culture.
29. As a result, the Director-General wishes to have the Local Court orders of 27 February 2002 discharged.[2]
[2] Affidavit of Ms M 24.6.2013 at [26]-[29]
It was the Applicant’s evidence that the mother had demonstrated reluctance to engage with (omitted) in discussions in relation to the child. Telephone conversations between a Ms J from (omitted) and the mother had led to telephone contact with the child but attempts to arrange face-to-face contact between the mother and the child had been unsuccessful. The mother had told Ms J that she would not consent to the discharge of the previous orders involving the child’s name being removed from the Airport Watch List.[3]
[3] Ibid at [40]
Conclusions
The First Respondent did not attend Court, despite having been served. Attempts to contact the Second Respondent have not been successful.
The Director-General of the Department of Family and Community Services is a person who may apply for a parenting order in relation to the child under s.65C(c) of the Family Law Act 1975 (NSW), as a person concerned with the care, welfare and development of the child, by virtue of the Orders made by the Children’s Court on 21 September 2011. The Court has been informed of those Orders under s. 60CH(1) of the Family Law Act.
As is always the case, when the Court is deciding to make a particular parenting order, it is required by s.60CA of the Act to regard the best interests of the child as the paramount consideration. It appears clear from the affidavit evidence and the failure of the child’s natural mother to attend Court, that it is in this child’s best interests to be placed with her sister and two other children in the care of the authorised foster carer.
It is equally clear that the child’s involvement with her foster carer’s extended family in (omitted), even though she is not of that culture herself, affords her a positive experience and allows her to participate in travel and other activities with her sister and her foster family. As there are no fears that this child will not be returned to Australia if she travels to (omitted) with her foster carer, there are strong grounds for her name to be removed from the Airport Watch List.
The orders made by the Local Court at Liverpool on 27 February 2002 are obsolete. They have been overtaken by events and are no longer in this child’s interests.
This is an example of the need to exercise care when making orders placing a child’s name on the Airport Watch List. In this case, the order was an interim order and the proceedings went no further after the adjournment to 19 March 2002, because no parties attended Court on that day, or any other day, apparently. The Local Court, not surprisingly, stood the matter out of the list. The orders remained.
In my view, the lesson for this Court is that Airport Watch List Orders ought to have an expiry date, otherwise, as in this case, they can cause unforeseen difficulties for children years later.
I grant leave to proceed ex parte. I propose to make the orders sought.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 24 July 2013
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