Drake and Drake and Anor
[2014] FCCA 2950
•17 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DRAKE & DRAKE & ANOR | [2014] FCCA 2950 |
| Catchwords: FAMILY LAW – Parenting – competing applications for live with Order for six Aboriginal Children by Aboriginal Maternal Grandmother and Department of Family and Community Services – Children removed from the Maternal Grandmother by the Department during course of proceedings without notice – Maternal Grandmother’s long history with the Department – poor communication between the Maternal Grandmother and the Department – Maternal Grandmother’s inadequate housing – superficial proposal by the Department for the Children to connect with their culture – Order made for the Maternal Grandmother to have sole parental responsibility for the Children and for Children to be returned to the Maternal Grandmother. |
| Legislation: Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61B, 61C, 61DA, 61F, 64B, 65DAC |
| Burton & Churchin & Anor [2013] FamCAFC 180 B & F [1998] FamCA 239 Donnell & Dovey [2010] FamCAFC 15 H & H [1994] 19 FamLR 165 H v W (1995) FLC 92-598 Hort & Verran (2009) FLC 93-418 In the Marriage of B and R (1995) FLC 92 636 Kitsannis & Netpoulis [2010] FamCAFC 214 Lawson & Warren [2011] FamCA 38 Malcolm & Monroe (2011) FLC 93-460 Mulvany & Lane (2009) FLC 93-404 R and R: Children’s Wishes (2000) FLC 93-000 Rice & Miller (1993) 16 Fam LR 970 at 977 Valentine & Lacerra & Anor [2013] FamCAFC 53 |
| Applicant: | MS J DRAKE |
| First Respondent: Second Respondent: Intervenor: | MS K DRAKE MR GARWOOD DIRECTOR GENERAL, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES |
| File Number: | SYC 501 of 2012 |
| Judgment of: | Judge Sexton |
| Hearing dates: | 8, 9, 10, 11, 12 and 22 September 2014 |
| Date of Last Submission: | 22 September 2014 |
| Delivered at: | Sydney |
| Delivered on: | 17 December 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Anderson |
| Solicitors for the Applicant: | Speirs & Associates |
| Counsel for the First Respondent: | Mr Breeze |
| Solicitors for the First Respondent: | Jones Rolfe Rudd |
| Solicitors for the Second Respondent: | In person |
| Advocate for the Intervenor: Solicitors for the Intervenor: | Mr Harris Crown Solicitor’s Office |
| Advocate for the Independent Children’s Lawyer: Solicitors for the Independent Children’s Lawyer | Ms Wearne Legal Aid Commission NSW |
THE COURT ORDERS THAT:
All previous parenting Orders be discharged.
The Children [U] born [omitted] 2003, [V] born [omitted] 2004, [W] born [omitted] 2006, [X] born [omitted] 2007, [Y] born [omitted] 2008, and [Z] (known by the Department of Family and Community Services as [Z]) born [omitted] 2010 live with the Maternal Grandmother.
The Children [U], [W], [Y] and [Z] be returned to the Maternal Grandmother by no later than 4.00p.m. on 19 December 2014 when the Department of Family and Community Services will arrange for the Children to be delivered to the Maternal Grandmother’s residence with their belongings.
The Children spend time with the Mother by arrangement with the Maternal Grandmother, but for no longer than 4 hours per day.
The Children spend time with the Father (whether in Sydney or [C]) by arrangement with the Maternal Grandmother, but for no longer than 4 hours per day.
The Applicant Maternal Grandmother have sole parental responsibility for the Children.
The Maternal Grandmother continue to engage with [M] Women’s Service and accept all referrals and recommendations made by her [M] caseworker in respect of her attendance at counselling, participation in parenting courses (including advice on nutrition), attendance at further drug and alcohol counselling, tutoring for the Children, nutrition, literacy assistance, and respite care.
The Maternal Grandmother ensure the Children are enrolled at [L] School and/or [omitted] School or such other school as may be recommended for each of the Children pursuant to Personalised Learning Plans formulated for each Child by the Aboriginal Education Consultative Group of the NSW Department of Education.
Except in the case of an emergency, the Maternal Grandmother ensure the Children and each of them attend at the Aboriginal Medical Service Redfern (“the AMS”) for management of their health needs and the Maternal Grandmother accept all referrals made for the Children to attend specialist or other appointments as recommended by the Aboriginal Medical Service.
The Maternal Grandmother forthwith:
(a)Make an appointment with the AMS social worker to discuss arrangements to be made for:
(i)Coordination of the Children’s attendance at, and transport to, specialist medical and dental appointments; and
(ii)Advocating for services to address the Children’s special needs; and
(b)In respect of [U]:
(i)Arrange for [U] to be assessed by an AMS doctor for the development of an asthma plan; and
(ii)Take all steps to arrange counselling, including sexual assault counselling, for [U] through the Aboriginal Health Team at Royal Prince Alfred Hospital.
The Maternal Grandmother continue to engage in the drug rehabilitation program with the Aboriginal Medical Service.
By no later than 10 January 2015, the Independent Children’s Lawyer (or her agent) forward to the Aboriginal Medical Service a letter to be placed on each of the Children’s files detailing the following:
(a)That for any specialist appointments the Children need to attend, the Maternal Grandmother and Children will require assistance with transportation;
(b)Requesting assistance from the Aboriginal Medical Service social worker for the purposes of coordinating appointments and transport of the Children to appointments;
(c)Requesting assistance from the Aboriginal Medical Service social worker in advocating for services to address the Children’s (and in particular [W]’s) special needs.
By no later than 10 January 2015, the Independent Children’s Lawyer (or her agent) provide to the Aboriginal Medical Service and [M] the following:
(a)A sealed copy of these Orders;
(b)A copy of the report of Mr R released by way of Order dated 4 September 2014.
By no later than 10 January 2015, the Independent Children’s Lawyer (or her agent) request in writing that the Aboriginal Health Team at Royal Prince Alfred Hospital arrange counselling, including sexual assault counselling, for [U] and the Independent Children’s Lawyer provide to the Aboriginal Health Team:
(a)A sealed copy of these Orders;
(b)A copy of the report of Mr R released by way of Order dated 4 September 2014.
By no later than 10 January 2015, the Independent Children’s Lawyer (or her agent) provide to Aunty [name omitted] of the Aboriginal Education Consultative Group and the Principal of [L] School a copy of these Orders.
The Independent Children’s Lawyer have liberty to provide a copy of these Orders and Reasons to any Agency engaged to assist the Maternal Grandmother.
Notwithstanding any other Order, the Mother and Father are authorised by these Orders to obtain from any school that the Children or each of them attend, information as to the Children’s educational progress, welfare and development, including but not limited to:
(a)Copies of all school reports, awards, and information regarding the Children’s achievements and activities;
(b)Any remedial learning or behaviour correction strategies required by the Children or each of them; and
(c)School photograph order forms so that each parent has the opportunity to order copies of the Children’s school photographs.
The Maternal Grandmother use her best endeavours to have the Children involved in extra-curricular and/or team sporting activities including, but not limited to, the [omitted] or any of the child and adolescent sporting programmes offered by the National Centre of Indigenous Excellence.
The Maternal Grandmother be restrained from:
(a)Using any drugs except as prescribed by a medical practitioner;
(b)Removing the Children’s residence from within a 15 km radius of the Sydney CBD; and
(c)Allowing Mr W to enter any place where the Children are living or spending time, and/or allowing any of the Children to spend any time with Mr W;
(d)Allowing Mr S to enter any place where the Children are living or spending time, and/or allowing any of the Children to spend any time with Mr S.
Order 19(b) does not restrain the Maternal Grandmother from visiting [C] with the Children during the school holidays, on condition they do not miss any school days.
The Mother and Father not consume alcohol and/or illicit drugs 12 hours prior to and/or during the time that the Mother and Father spend time with the Children.
The Mother be restrained from allowing the Children to spend any time with Mr S.
The Independent Children’s Lawyer remain in the matter for a period of 12 months and have liberty to apply in relation to implementation of these Orders on 5 days’ notice.
The Maternal Grandmother’s solicitor be responsible for reading these Orders and Reasons to the Grandmother, or arranging for another person known to the Grandmother to do so, in full before the return of the Children
It is noted that the Court requests the Independent Children’s Lawyer to inquire of SDN Children’s Services, or the Benevolent Society or CatholicCare or similar agency as to whether that organisation can assist the Grandmother to access the services identified in Exhibit 17, Annexure A to these Reasons.
It is further noted that a copy of these Orders and Reasons will be forwarded to the Director of Legal Services at the Department of Family and Community Services.
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Drake & Drake & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 501 of 2012
| MS J DRAKE |
Applicant
And
| MS K DRAKE |
First Respondent
| MR GARWOOD |
Second Respondent
| DIRECTOR GENERAL, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES |
Intervenor
REASONS FOR JUDGMENT
Introduction
The six subject Children, [U], [V], [W], [X], [Y] and [Z], now aged between 11 years and 4 years, belong to the [omitted] Group of indigenous Australians, from [C], in Far West New South Wales. The applicant Maternal Grandmother, (the Grandmother) Ms J Drake, is a [W] woman who was raised in [C] and maintains strong family and community connections to the area. Her children were raised in [C]. Until July 2014, she lived in Redfern for over 10 years. She now lives in [L], Sydney.
At the date of this hearing, [U], [W], [Y] and [Z] were living in out of home care. [V] and [X] were living with the Grandmother.
Until 2011, the Children lived with their parents Ms K Drake (the first respondent) and Mr Garwood (the second respondent), in [C]. As a result of the Children’s neglect and regular exposure to drugs, alcohol and violence in their parents’ household, the Grandmother took the Children to live with her in Redfern, the youngest four in mid-2011 and [U] and [V] in December 2011. The six Children remained in the Grandmother’s care in her small 2 bedroom Redfern home until the April school holidays 2014, when she took them to [C] for the school holidays, and then decided to trial living there. They were all staying at the home of Mr D (the Grandmother’s former partner and father/step father to her children) in [C], awaiting suitable housing. At 7.30 a.m. on 5 June 2014, the six Children were removed from the Grandmother’s care by the Department of Family and Community Services (the Intervenor). The Order for removal of the Children[1] stated[2] that the Maternal Grandmother “is exposing the Children to ongoing risk of immediate harm, including but not limited to: not providing adequate supervision; discharging them into the care of people who are not assessed to be safe; exposing the Children to persons who use alcohol; exposing the Children to verbal violence.”
[1] Pursuant to section 43(1) of the Children and Young Persons (Care and Protection) Act 1988
[2] Exhibit 5
These proceedings were pending in this Court at the time of the Children’s removal. However, the Department did not give notice of their plan to remove the Children to the Grandmother, or her solicitor, or to the Independent Children’s Lawyer, nor did the Department seek to relist the matter in this Court before the removal. On 5 June 2014, the Department placed each Child in out of home care arranged by a foster care agency known as the William Campbell Foundation, located at Minnamurra (South Coast).
On 11 June 2014, this Court made interim orders for the Children to spend every weekend with the Grandmother from Friday until Sunday afternoon, against the proposal of the Department for supervised limited day time. On 9 July 2014, the placement for [V] (10) and [X] (7) broke down. On 17 July 2014, after a defended interim hearing, an order was made for [V] and [X] to be returned to the Grandmother’s full time care on 20 July 2014. The Department was seeking to place the boys separately with new short term foster carers, which would have involved each of them again changing schools. The final hearing was expedited.
The issue for final determination is whether it is in the best interests of these six Children to live in out of home care, probably on the South Coast of New South Wales or be returned to the care of their Grandmother in [L], Sydney. Both the Mother and the Father support the Grandmother’s application for the Children to live with her.
Ms C has been employed by the Department since 2009, and as Acting Casework Manager [area omitted], since early August 2013. She had delegated responsibility for the Children’s medical care, financial support, place of living and contact arrangements. Ms C supervised the caseworker Ms K who was assigned to the Drake/Garwood family in October 2013. Ms K is a recent graduate with a degree in Social Work.
The Grandmother was represented by Mr Anderson of counsel, the Department by Solicitor Advocate Mr Harris, and the Mother by Mr Breeze of counsel. The Independent Children’s Lawyer was represented by Solicitor Advocate Ms Wearne. The Father was unrepresented.
The Children
[U], born on [omitted] 2003 is 11 years, [V] born on [omitted] 2004, is 10 years, [W], born on [omitted] 2006 is 8 years, [X], born on [omitted] 2007 is 7 years, [Y], born on [omitted] 2008 is 6 years and [Z], born on [omitted] 2010 is 4 years of age. When removed from the care of their Grandmother, the Children were placed in four different homes between Campbelltown and Jervis Bay on the N.S.W South Coast. [V] and [X] were placed together south of Nowra, [Y] and [Z] together in the Campbelltown area, [U] on her own in the Nowra area, and [W] on his own in the Wollongong area. [V] and [X]’s foster father was indigenous, but otherwise the Children were placed with non-family and non-indigenous foster carers.
Maternal Grandmother
The Maternal Grandmother, aged 45 years, has recently moved from her two bedroom home in Redfern to a four bedroom home in [L] where she lives with [X] and [V], and her youngest daughter, [T] (aged 16 years) who is under the care of the Minister but self-placed with her in November 2013. She has three other daughters: Ms D (aged 18 years); Ms A (aged 27 years); and Ms K Drake (aged 29 years). Another daughter Ms B died in 2010. Ms K Drake is the Mother of the Children in these proceedings. Ms A is the mother of [A], aged 12, [B], aged 8 and [C], aged 5 years who have been the subject of child protection concerns and intervention by the Department. Ms A and
Ms D have each given birth to another child in the last year.
The Grandmother was in a long term relationship with Mr W until April 2012. Mr W was known as “Pop” to the Children and he was in the habit of visiting the Grandmother’s home regularly after their relationship was over, to bring presents for the Children. The Grandmother is now in a relationship with Mr J, an Aboriginal man who lives in [C], and has the care of his two Children, aged 3 and 5 years. She is supported by a Disability Support Pension and a family tax benefit. Until “de-authorised” as a carer by the Department when the Children were removed, the Grandmother was receiving a carer’s allowance from the Department as “an authorised carer”. If the Children are restored to her care, the Department tells the Court that she is unlikely to receive a Departmental carer’s allowance again. Ms C said “whatever the Court does will not change the Department’s view.”
Mother
The Mother, aged 29 years, is a [W] woman. She lived with various family members in [C] during her childhood, including her grandmother, an uncle, the Maternal Grandmother and Mr D, her stepfather. She met the Father when he was 23 years old and she was aged 15. They lived together for 11 years and had the six Children, exposing them to drug and alcohol abuse, neglect and family violence. After separation, the Mother moved from [C] to Sydney, and lived with the Grandmother until September 2013 when she commenced her relationship with Mr S with whom she now lives at the [omitted] Hotel in Sydney’s CBD. The relationship is characterised by drinking and violence.
The Mother is unemployed. She acknowledges continuing to abuse alcohol and to a long history of illicit drug use, mainly cannabis and occasional ‘ice’. She told Ms M in July 2013[3] that she smokes marijuana every night. In cross examination, she said she has seen a drug and alcohol counsellor at the Aboriginal Medical Service on 2 occasions recently. While she has a good relationship with the Grandmother, she is not permitted into the Grandmother’s home under the influence of alcohol or drugs. In November 2013, the Grandmother called the police when the Mother arrived intoxicated and caused an altercation at the Grandmother’s home. The Mother presently spends a few hours on 3-4 days a week at the Grandmother’s home, sometimes accompanies her to collect [V] and [X] from school and spends time with the other four Children at the Grandmother’s home on weekends.
Father
[3] Exhibit 2 at paragraph 27
The Father, aged 37 years, is living with his step-brother’s family in [C]. He was one of 9 children all removed from their parents’ care by the Department. He described being placed from the age of 8 years in up to 15 different foster homes “ranging from good to physically violent”.[4] He started using cannabis at the age of 12 years. At 16 he was back with his parents, with whom he has now not had contact for some years. The Father has worked as a general labourer, but is presently unemployed, having had a “disagreement with my boss.” He plans to remain living in [C]. The Father said his maternal grandfather is a Torres Strait Islander, but he has been unsuccessful in having his heritage recognised by the Local Land Council.
[4] Exhibit 2 at paragraph 31
The Mother and the Father commenced their relationship in [C] in 2001. In October 2012, the Mother obtained an Apprehended Violence Order against the Father and shortly afterwards the Father was charged with a breach of that Order. In December 2012, the parties separated.
The Mother and the Father were involved with the Department and other support services in [C] over many years because of allegations about their drug and alcohol abuse, family violence, neglect, failure to follow up medical treatment for the Children, and lack of appropriate supervision.[5]
[5] Exhibit 2 at paragraph 4
I find it noteworthy that it was the Grandmother, not the Department, who removed the Children from the care of their parents because of her ongoing concerns for their safety.
Short History of Litigation
On 2 February 2012, the Grandmother commenced these proceedings seeking orders for sole parental responsibility and for the six Children to live with her.
On 21 February 2012, interim Orders were made for the Children to live with the Grandmother in Redfern. The Mother and the Father were each restrained from removing the Children from the Grandmother’s care and orders were made for the Children to spend time with each parent in Sydney under supervision. By that time, the school-aged Children were attending [A] School.
On 29 June 2012, Family Consultant Ms M recommended that the Department of Family and Community Services be asked to intervene and on the same day, the Department was granted that leave.
By April 2013, neither parent disputed the Grandmother’s application for the Children to live with her. Both were seeking time with the Children, though by then, the Mother was proposing to live with the Children with the Grandmother.
On 2 May 2013, a final Order was made by consent for the Children to live with the Grandmother and for the Grandmother to engage with CatholicCare, or such other program or organisation recommended by CatholicCare or the Department, for as long as deemed appropriate by those organisations. The Court noted that issues of parental responsibility and the time the Children would spend with each parent remained unresolved. Interim orders made by consent provided for the Children to spend time with the Father under the supervision of the Grandmother, and with the Mother for short unsupervised daytime periods.
On 20 August 2013, Family Consultant M recommended that the Department share parental responsibility for the Children with the Grandmother, and remain involved in both a support and a monitoring capacity. She recommended that the Department conduct an assessment of the Father’s home in [C].
On 3 March 2014, when the matter had been listed for final hearing, interim orders were made by consent for the Grandmother to share parental responsibility for the Children with the Department. The Grandmother was ordered to accept supervision and referrals from the Department and engage with the Department as required. The Grandmother was restrained from allowing her former partner, Mr W into her home or from leaving the Children with Mr W unsupervised. The role of the Department was outlined in the Orders as follows:
a)FACS shall make the following referrals/arrange the following support services for the Maternal Grandmother and the Children:
i)Arrangement of an appropriate family support service to assist and support the Maternal Grandmother in her parenting of the Children;
ii)Arrange for the Maternal Grandmother to receive restorative parenting education, if possible in her home;
iii)Arrange paediatric assessments for each of the Children;
iv)Referral of the Maternal Grandmother to a drug and alcohol relapse prevention programme;
v)Other support services to include respite care, after school and vacation care, if appropriate.
The Court noted that the Independent Children’s Lawyer would use her best endeavours to obtain assistance from the social work department of legal aid to expedite the Grandmother’s application for appropriate housing, and the Department also agreed to use their best endeavours to assist with the urgent housing issue.
In the April 2014 school holidays, for reasons later explained, the Grandmother moved the Children to [C]. On 5 June 2014, the Children were removed from the Grandmother’s care pursuant to section 43 of the Children and Young Persons (Care and Protection)Act 1998. The following day, the Department filed an Application in a Case seeking Orders at short notice for the Director General to have sole parental responsibility for the Children and for the Children to live as directed by the Minister.
On 11 June 2014, interim Orders were made for the Director General to have sole parental responsibility for the Children, and for the Children to live as directed by the Director General. An order was made for the Children to spend time with the Grandmother at her home each weekend from Friday until Sunday, and changeover was to take place at the [omitted] Community Services Centre. The Grandmother was restrained from allowing Mr W into her property. The Court asked the Department to actively seek placement of all six Children together, or within no more than two sibling groups.
On 17 July 2014, following the Department’s advice that [V] and [X]’s placement had broken down on 9 July 2014, and after evidence was given about the Grandmother’s circumstances, interim orders were made for [V] and [X] to live with the Grandmother. She was ordered to engage with [M] Family Support services, and to actively engage with Departmental caseworkers.
At the end of the 5 day hearing on 12 September 2014, the matter was adjourned for a further 10 days for the Independent Children’s Lawyer to investigate and make submissions on the practical supports that would be available to the Grandmother if the Children were returned to her care. On 22 September 2014, the Court heard those submissions. On that day, the Court made an order for the Children to spend the majority of the October 2014 school holidays with the Grandmother.
Orders sought by the Maternal Grandmother (the Grandmother)
The Grandmother sought an Order for sole parental responsibility, or in the alternative shared parental responsibility with the Department in relation to education and medical decisions, but sole parental responsibility for all else, including, but not limited to, the residence of the Children and cultural matters.[6] She sought an order that the Department use its best endeavours to ensure that an Aboriginal liaison worker be engaged to work with her, that a Family Support Service be engaged to assist her with the care of the Children, and that respite care by culturally appropriate carers be organised as required.
[6] Exhibit 10
On the last day of hearing, the Grandmother’s counsel informed the Court that the Grandmother supported the final proposal of the Independent Children’s Lawyer provided to the Court on the final day of submissions.
Orders sought by the Mother
The Mother sought an order that the Children live with the Grandmother, and the Grandmother have sole parental responsibility for the Children. Her alternate position was for the Grandmother and the Department to share parental responsibility, but only in relation to the Children’s health. The Mother sought orders to spend time with the Children by arrangement with the Grandmother, unsupervised. The Mother agreed to be restrained from consuming alcohol or drugs within 12 hours of spending time with the Children.
On the last day of hearing, the Mother’s representative advised the Court that the Mother supported the Independent Children’s Lawyer’s final proposal.
Orders sought by the Father
The Father agreed with the Orders sought by the Grandmother including that the Children be permitted to spend time with him. He agreed to the Children spending time with him, either supervised or unsupervised, in Sydney or in [C] when the Grandmother visits with the Children.
Orders sought by the Intervenor (the Department)
At the commencement of the hearing, the Department sought Orders for sole parental responsibility, for the Children to live as directed by the Minister, and for a restraint against the Grandmother allowing the Children to be in the presence of Mr W. The Department asked the Court to note that it intended to place the Children with authorised carers, and would endeavour to place the Children together. The orders proposed would involve [V] and [X] being again removed from the Grandmother’s care and for the other Children to be moved from their temporary foster care placements to long term foster placements, with the possible exception of [U] who may be able to remain long term in her present placement. The Department sought a notation that in the event the Children were in different placements, they would facilitate time between the Children on at least a weekly basis, or as frequently as was practicable. The Department sought another notation proposing time between the Children and the Grandmother for up to four hours a fortnight; with the Mother during times the Children were with the Grandmother or alternatively, on at least six occasions a year for up to four hours a visit; with the Father, on at least four occasions each year for up to four hours a visit during school holidays.
Ms C said under no condition would the Department support the Children being restored to their Grandmother’s care. The Department proposed that all the Children be placed somewhere on the South Coast, probably in the Nowra region. Mr Harris for the Department advised the Court that the William Campbell Foundation would seek applications for carers to accept the six Children together as a sibling group, but he acknowledged that it was unlikely the Children would be placed together given the number of Children and their special needs, and it was unlikely they would be placed with carers from their cultural background. The Court was advised that the recruitment process for long term carers was not expected to begin until final orders were made in favour of the Department. Ms C could not say how many short term placements the Children might experience before a long term placement was found.
On the fourth day of hearing, the Department asked the Court to consider an alternative proposal[7] in the event its primary proposal was not accepted. In addition to supporting Orders sought by the Independent Children’s Lawyer for the Children to live with the Grandmother, the Department’s alternative proposal set out in detail the action they required by the Grandmother, which included accepting referrals to the following services, and engaging with those services:
a)The Benevolent Society (or similar) in order to assess and increase her parenting capacity;
b)The Child Protection Counselling Service;
c)A drug and alcohol relapse prevention programme;
d)Literacy and numeracy assistance;
e)A respite care service.
[7] Exhibit 8
The Department also sought Orders in relation to the Grandmother contacting the Department about the following issues as soon as reasonably possible after she became aware of them:
a)Medical, dental or school appointments for the Children;
b)Issues arising with the Children’s health, dental care or education;
c)Issues arising with the Children’s behaviour;
d)Services that are involved with the Grandmother or the Children;
e)People (including family members) staying overnight in the home;
f)The Children spending time with the parents, and any issues arising;
g)The Children spending time outside the home, including proposed trips to [C];
h)Housing problems;
i)Financial problems;
j)Any other concerns about the safety or welfare of the Children.
The alternative proposal also set out action required by the Department, including organising the Grandmother to be referred to the services outlined above, and arranging the following services for the Children:
a)Referrals for the Children’s medical, dental and developmental needs;
b)Transport to and from medical, dental and education appointments as required;
c)Tutoring for the Children as required; and
d)Sexual assault counselling for [U].
The Department sought Orders to facilitate better communication between the parties, including requiring the Grandmother (with a support person if preferred) to attend monthly meetings with caseworkers. They sought Orders in relation to random drug testing of the Grandmother, and noted that consideration would be given as to whether a new casework team could be allocated to the family.
Orders sought by the Independent Children’s Lawyer
At the commencement of the hearing, the Independent Children’s Lawyer sought an Order that the Grandmother and the Department share parental responsibility and the Children live with the Grandmother. During submissions at the end of hearing the evidence, the Independent Children’s Lawyer changed her position seeking an order for the Grandmother to share parental responsibility with the Department in relation to education and medical and dental issues only, and the Grandmother otherwise have sole parental responsibility for the Children, particularly in relation to cultural issues. Ms Wearne submitted that a final order should be made for the Children to live with the Grandmother and that she be restrained from relocating from Sydney for a period of 4 years.
When further submissions were made 10 days after the hearing concluded, the Independent Children’s Lawyer again changed her position. She no longer sought a shared parental responsibility order between the Grandmother and the Department but rather that the Grandmother be given sole parental responsibility. She proposed that this Order[8] would be subject to several conditions that required the Grandmother to engage with [M] Family Support Services and to comply with specific orders about the Children’s health and education. The Independent Children’s Lawyer sought Orders for the Children to live with the Grandmother, for the Grandmother to be restrained from moving the Children’s residence from within a 15 km radius of the CBD and from allowing the Children to spend any time with Mr W. The Independent Children’s Lawyer sought orders providing for the Children to spend time with each parent as arranged with the Grandmother, provided that any unsupervised time did not exceed 4 hours per day. She sought restraints on each parent consuming alcohol or illicit drugs 12 hours prior to and/or during time the Children spent with them. The Independent Children’s Lawyer sought an order that she remain in the matter for a 12 month period to monitor the implementation of the Orders and to ensure the Grandmother’s compliance with orders.
[8] Exhibit 16
Recommendations of the Court experts
Ms M, Family Consultant, interviewed the parties and the Children in July 2013. Ms M has previously been employed by the Department. In her report dated 9 August 2013,[9] Ms M recommended that the Department share parental responsibility with the Grandmother, that the Children live with the Grandmother and that the Department remain involved with the family in both a support and a monitoring capacity. Ms M recommended that the Department conduct an assessment of the Father’s residence for the purpose of future spend time with arrangements.
[9] Exhibit 2
Mr R, an Aboriginal forensic psychologist, prepared a second expert report for the Court in August/September 2014[10]. The Father did not attend for interview and despite extensive efforts, Mr R was unable to contact him. At the conclusion of his assessment, Mr R recommended the return of the Children to the Grandmother.
[10] Exhibit 3
The Department did not accept the expert recommendations.
Department’s involvement historically with Maternal Grandmother
Ms C believes the Grandmother’s history with the Department is “incredibly relevant” as “there is a continuation of the issues in the history” since at least September 2013.[11]
[11] Evidence of Ms C in cross-examination
The Department’s records disclose a long history of involvement with the Grandmother dating back to November 1985, when she was 16 years of age and her first child, Ms K Drake was 2 months old.
a)From 1994, a number of risk of harm reports were received concerning Ms K Drake and Ms A. The risk of harm reports alleged physical abuse by the Grandmother, exposure to alcohol and drug abuse, family violence and neglect. In December 2003, it was alleged that the Grandmother’s partner, Mr W, had sexually abused Ms A and the Grandmother was made aware of it, though the allegation was not substantiated at the time. Ms A has recently reported to the Department that the incident involved Mr W masturbating in her presence.[12]
b)The Grandmother told Ms M she started drinking alcohol at the age of 12 and went on to use a range of drugs, including marijuana, cocaine and heroin. The Grandmother was not focussed on her children when they were young, and her own mother was the main carer of her first three children (Ms K Drake, Ms A and Ms B). It seems that Ms A and Ms B moved between the Grandmother, her mother and foster care during their childhood and adolescence.[13]
c)Ms A has four children, two of whom were removed by the Department while she was living with the Grandmother in Redfern in 2011/12. Ms M reported that the Grandmother was not approved as a carer for those children because of drugs in the home and the presence of Mr W. Ms A’s third child was removed soon after birth when Ms A was in jail. Her children were placed with the Grandmother’s sister [name omitted], who lives in Queensland. Ms A lives with her partner in Sydney and has recently had another child.
d)Ms B was placed in temporary foster care at 10 years of age and she saw little of her mother until 2002. Thereafter numerous further reports were received about Ms B concerning physical abuse, homelessness, inadequate supervision and abandonment.[14] Ms B suffered from schizophrenia and died approximately 4 years ago.
e)The Grandmother’s youngest two children, Ms D and [T] were removed by the Department in 2002 and placed in [C] with their father, Mr D, known as ‘[Mr D].’ There were 44 risk of harm reports in relation to [T] and 37 reports in relation to Ms D recorded between 1998 and 2012, (during periods they were in the care of the Grandmother and Mr D) related to their exposure to alcohol use, physical abuse, poor supervision, family violence, neglect and non-school attendance and risk of sexual abuse. In 2011, [T] was removed from her father and placed in foster care. That placement broke down. [T] is now living with the Grandmother in [L]. Ms D, at 18 years, returned to live with the Grandmother and then moved back to [C].
[12] Annexure A8 to affidavit of Ms C sworn on 25 August 2014
[13] At paragraph 13 of Exhibit 2
[14] At paragraph 39 of affidavit of Ms C sworn on 25 August 2014
The Grandmother acknowledges her failings as a parent of her own Children.
Department involvement with the Children in care of Mother and Father
The Mother said the Department became involved with her Children when [W] became ill and suffered brain damage as a result of gastroenteritis. The Mother acknowledged drinking alcohol to excess, being subjected to assaults by the Father and leaving the Children unsupervised. Ms N, caseworker for the Department in [C], told Family Consultant M that there had been a number of risk of harm reports related to both parents’ abuse of alcohol and poor supervision, for example, leaving the Children unattended while they were at the local pub. Ms N described the Father as more focussed on the needs of the Children and domestic tasks than the Mother who was often intoxicated with drugs and alcohol.[15] Mr R, a police officer, formerly employed by the Department, was aware of the many verbal arguments between the parents when using drugs and alcohol.[16] Ms P, a family support worker involved with the Mother in [C], reported serious domestic violence between the parents.[17] Ms C deposed to reports of “inadequate supervision, drug use, neglect, emotional state of carer, inadequate shelter, risk of physical harm, alcohol abuse by carer, medical treatment not provided, and domestic violence.” [18]
[15] Exhibit 2 at paragraph 46
[16] Exhibit 2 at paragraph 48
[17] Exhibit 2 at paragraph 50
[18] At paragraph 44 of affidavit of Ms C sworn on 25 August 2014
As already noted, it was the Grandmother, not the Department, who removed the Children from their parents.
Department involvement with Children in care of Maternal Grandmother
The Department conducted case work with the Grandmother and the Children from May 2012. Ms K is the fourth caseworker allocated to the case since then, and Ms C the third case manager.[19]
[19] At paragraph 9 of affidavit of Ms C sworn on 25 August 2014
On 22 May 2012, the year advisor at [A] School reported that the Grandmother was working hard with the Children, was “doing a great job”…“agreed to supports and referrals for the Children”…”to break up this family would be criminal.”[20] On 23 May 2012, the Department’s Safety Assessment Report[21] of the Children in the Grandmother’s care was substantially positive.
[20] Ibid at paragraph 49
[21] Annexure D to affidavit of Ms C sworn on 25 August 2014
In June 2012, Ms D returned to live with the Grandmother. On 27 June 2012 the Department assessed the Children as being at “high risk” of neglect in the Grandmother’s care. On 29 June 2012, the Department was given leave to intervene in these proceedings.
From August 2012, the Grandmother was supported by caseworker
Mr F from CatholicCare. Ms C said the Department was receiving positive feedback from the agencies and services involved with the Children, and the Children were doing well in the Grandmother’s care. At a meeting on 17 September 2012, Mr F provided “very positive feedback about [Ms J Drake’s] parenting, and her ‘proactive, supportive and loving approach to caring for her six Grandchildren.” Mr F said the Grandmother’s level of support could be reduced to providing her help with shopping and transport.[22] The Grandmother had reduced her use of Suboxone and cannabis.
[22] Annexure E and paragraph 56 of affidavit of Ms C sworn on 25 August 2014
On 3 October 2012, Mr F assessed the Grandmother as providing “good enough parenting” and noted the significant challenges faced by the Grandmother in providing adequate care for the Children, including the inadequate size of her home, the Children’s learning difficulties and extra medical requirements. His recommendations were for the Children to remain in the Grandmother’s care, for the Grandmother to use her current supports, to follow up medical appointments for the Children and to consider respite care. His report said[23]:
..the assessor concludes that Ms Drake has created a safe, secure and healthy environment for the six children. She provides healthy and appropriate nutritional foods, houses the Children adequately in an inadequate home, budgets her income so that she has enough money to pay her bills and food and utilises local services including medical and recreational.
..the assessor believes Ms Drake to have great parental capabilities, including the appropriate use of discipline, good supervision of the six children and providing the six children with development and enrichment opportunities.
[23] Annexure F of affidavit of Ms C’s sworn on 25 August 2014
In December 2012, the Mother and Father separated. With the knowledge of the Department, the Mother moved in with the Grandmother for 9 months. On 19 December 2012, caseworkers inspected the home and the Children’s sleeping arrangements. Mr W was seen in the home and caseworkers were informed by the Grandmother that Mr W sometimes slept overnight on the lounge.[24]
[24] Annexure GG of affidavit of Ms C sworn on 25 August 2014
In March 2013, CatholicCare closed their file as Mr F believed the Grandmother no longer required the intensive level of support being provided by CatholicCare. The Department caseworker said “CatholicCare has nothing but praise for Ms Drake… her care of the Children is exemplary.” CatholicCare told the Department they wanted to use the Grandmother “as a case study/role model for other Aboriginal clients” within the area. The Department offered the Grandmother a referral to SDN services (which can include the Brighter Futures Programme) but “she deemed it not necessary.”[25]
[25] Annexure HH of affidavit of Ms C sworn on 25 August 2014
On 2 May 2013, the Department consented to final orders for the Children to live with the Grandmother.
The Department’s positive attitude towards the Grandmother changed to a negative one from June 2013. Ms C deposed to the Grandmother making allegations about the care of Ms A’s children, [A], [B] and [C], which the Department had decided were malicious, and to the Grandmother failing to follow Court orders in relation to those children’s contact with her. She was “demanding contact” “had misused funds…(allocated for contact)” and “not been going through proper channels”.[26]
[26] Ibid at paragraph 68
On 9 August 2013, a risk of harm report[27] raised concerns about the Children’s exposure to the Grandmother and Mother’s daily cannabis use, [U] being ‘choked’ by the Mother, Mr W visiting the house, Mr W having used ‘ice’, the Mother’s boyfriend coming to the house intoxicated, the Grandmother speaking in a verbally aggressive manner. The Grandmother tested positive for cannabis use on 18 October and 31 October 2013. In November 2013, [T] moved back to live with the Grandmother with the Department’s knowledge.
[27] Ibid at page 113
On 7 November 2013, the Department assessed the Children as “safe in [Ms J Drake]’s care” but “at high risk.”[28] This assessment noted Mr W’s presence from time to time. The Grandmother was seen to have nutritious food in the house.
[28] Ibid at paragraph 73
On 16 December 2013, Ms K was advised by [A] School that “overall, the Children ([Y], [X], [W] and [U]) had made many improvements, and were socialising well with other students.”[29] The Department’s contact with the Grandmother during January 2014 focussed on her missed drug test (the Grandmother said she did not receive the message). The Grandmother was upset to be told by Ms K on 31 January 2013 that a missed test counts as “a dirty test”. Mr W was seen at the house that day and a risk of harm report was raised in relation to the Children and [T] because of Mr W’s presence. At that time, the Grandmother’s small two bedroom Redfern home was housing herself, her 6 grandchildren and her daughters [T] and Ms D.
[29] Ibid at paragraph 74
The Grandmother’s focus in discussion with the Department was her urgent need for a bigger house. The Department’s file notes indicate its major concerns did not include the Grandmother’s housing but rather Mr W’s access to the Children and the Grandmother’s drug use.
On 3 February 2014, the Grandmother told the Department that Mr W was only there momentarily, and terminated the call. On 5 February 2014, the Grandmother again hung up on Ms C but two days later initiated contact and a meeting was arranged.
On 11 February 2014, the Grandmother returned a negative drug test. On 12 February 2014, [U] was interviewed at school and said she hated Mr W who used drugs, had hit [Y] on the head and was often at the house. The Grandmother told Ms K that [U] had never told her that she hated Mr W, but as a result of [U]’s feelings, the Grandmother would no longer allow him into her home. The Department then made it clear to the Grandmother that Mr W was not permitted in the Grandmother’s home. [30]
[30] Ibid at paragraph 82
On 13 February 2014 the Department assessed the Children as safe in the Grandmother’s care.[31]
[31] Ibid at Annexure Q
On 3 March 2014, orders were made for the Department and the Grandmother to share parental responsibility for the Children. The orders required the Department to make referrals and arrangements for various supports for the Grandmother and the Children. In cross examination, Ms C conceded that the Department had not met any of its obligations under this Order.
Ms C detailed the events which resulted in the Department’s decision to remove the Children from the Grandmother’s care, which I summarise:
a)2 April 2014: the Grandmother attended a meeting at the Department’s offices. She said she would not move to [C] until she had secured housing there. She advised she would make inquiries about available services for the Children. [32]
[32] Ibid at Annexure X
b)4 - 8 April 2014: risk of harm report in relation to [V] who was seen with a black eye which he said was caused by the Grandmother. The Grandmother said it was caused accidentally. The Grandmother failed to provide a medical certificate for [V] requested by Department. [V] gave inconsistent versions of what occurred. At interview at school on 8 April 2014, [X] told the caseworker that Mr W had given [Z] a glo-light the night before, and that the Grandmother had thrown her mobile phone and it hit [V]’s eye.[33]
[33] Ibid at Annexure U
c)8 April 2014: the Grandmother advised the caseworker that Mr W was not heeding her requests not to visit.
d)April 2014 holidays: the Grandmother took the Children to [C] and enrolled the Children in school there after the holidays. She had told Ms K on 27 March 2014 that she was considering moving and on 31 March 2014 the Grandmother told Ms K she wanted to check with the Department before arranging the move.[34]
[34] Ibid at Annexure W
e)28 April 2014: Ms K was advised by a caseworker in [C] that the Grandmother had decided to stay in [C] for a six month trial period and was living with her former partner, Mr D (‘[Mr D]’) while looking for accommodation there.[35]
[35] Ibid at Annexure Y
f)30 April 2014: Ms K recorded a conversation with [C] Public School when she was advised services for the Children were limited in [C].
g)6 May 2014: The [C] office of the Department visited Mr D’s home and found no significant or immediate concerns. [T] was present as well as [name omitted], a child under the care of the Minister.
h)8 May 2014: Ms K informed the Grandmother the Department did not support her remaining in [C] and there were concerns about where the Children were living. The Grandmother advised she would not stay if she could not find housing. When questioned about it, the Grandmother told Ms K that she and the Children sometimes stayed with a man called “[Mr C]”. The Grandmother swore at Ms K and abruptly terminated their conversation.
i)14 May 2014: the Department received a risk of harm report in relation to a sexual assault against [U] and another 10 year old girl. Allegedly two boys touched their breasts and bottoms. When the girls ran, the boys allegedly threw the 10 year old to the ground and [U] went back to help her. The boys posted sexual references about [U] and the other child on Facebook. [U] told [T] about the incident, but not the Grandmother and asked the police not to tell her Grandmother as she had warned them they would return to Sydney if there was any trouble. A contradictory version of what occurred was given to the Joint Investigation Response Team by the other child.[36]
j)20 May 2014: Ms K advised the Department that she was concerned about the lack of services in [C] and did not support her remaining there. Ms K found the Grandmother uncooperative, particularly in relation to the identity of “[Mr C]”.[37]
k)22 May 2014: a report was received by the Department that the Children were not being supervised adequately. It was reported that [V] and [X] had climbed the side wall of the railway line. The caller alleged the Children were not living with their Grandmother.
l)28 May 2014: there were further reports to the Department:
i)[U] had been in a fight at school.
ii)[W] was upset at school because [V] had blood running down his leg. [V]’s knee was missing a large amount skin. [V] required medical attention which had not been arranged.
iii)[X] was asked to leave the classroom to go to toilet because he smelt of faeces and the school had concerns about his hygiene.
m)30 May 2014: the Department advised there had been a fight the day before outside Mr D’s home involving [T], Ms D and up to 20-30 other young people who were intoxicated and fought with police.[38] The school advised Ms C that one of the children involved in the ‘fight’ was living with Mr D (self-placed, though in the care of Minister), the Children were walking home from school by themselves and [U] was on suspension for 3 days because of poor behaviour.[39] The Police advised the Department they did not see the Children at the house at the time of the street incident but believed it an unsafe environment for Children. The police reported an unverified allegation that Mr D had watched [T] have sex with boys when she was younger. [40]
[36] Ibid at Annexure ZZ
[37] Ibid at Annexure Z
[38] Ibid at Annexure A1
[39] Ibid at Annexure A2
[40] Ibid at Annexure A3
The Department then decided to remove the Children from the Grandmother’s care, without notice to the Grandmother, her solicitor, the Independent Children’s Lawyer, or this Court, despite a period of 5 days elapsing between the decision to remove and the removal.
The Removal
On 5 June 2014, at 7.30 a.m. accompanied by two police officers and 3 other Departmental officers, Ms C knocked on the front door of Mr D’s home in [C] to remove the six Children from the Grandmother’s care. The Grandmother had no warning, and was getting the Children ready for school. [X] had just come out of the shower and had a towel around him. All the other school aged Children were in uniform. There were school lunches lined up on the kitchen bench.[41] [U] was crying and asking why they were being taken away. The Grandmother, crying, was holding [Z]. [Y] “clung” to Mr D who then carried her to the car. Ms C conceded it may have been “quite traumatic” for the Children, some of whom were crying. The Grandmother says the officers told her they were taking the Children to Parkes, not to Sydney and would talk to her later. Two cars took the Children to McDonalds Restaurant in Parkes and then by plane to Sydney. Mr F met the plane to take [U], [V] and [X] to their placements. At one point, [U] told her brothers “to behave like they would if [Ms J Drake] was caring for them.”[42] The Children finally reached their various placements late the same evening, [V] and [X] at 10.30 p.m. When asked by the Grandmother’s counsel whether the experience for the Children would have been “harrowing”, Ms C said there was “no outward sign of upset.” In cross-examination, Ms K said the Children appeared scared and were crying and that [U] was particularly upset. [U] requested to be placed with [Z] which was denied. Ms K agreed the removal would have been traumatic for the Children. When it was put to her that it would have been a very long day for the Children, Ms K said “it was a long day for everyone.” [43]
[41] Ibid at Annexure A4
[42] Ibid at paragraph 109
[43] Evidence of Ms K in cross-examination
Department filenotes[44] record Ms K’s conversations with Ms O from the William Campbell Foundation on 6 and 10 June. The Children “were wonderful”, [U] was “great, sweet and talkative” and the Children were “doing well”. [U] had said “tell the boys I love them.”
[44] Ibid at Annexures A6 and A7
On 9 July 2014, [V] was reported to be exhibiting concerning behaviours towards a 3 year old girl in his placement, including threatening to stab her; [V] and [X] were fighting and using swear words but “had settled well, were happy at school”.[45]
[45] Ibid at paragraph 113
Children’s placements
“The Placement Rationale”[46] involved a consideration of Departmental placement principles which apply when an indigenous child needs to be placed in out of home care. The principles set out the following placement options[47]:
a)A member of the child’s extended family or kinship group; (all options should be explored even if some distance away)
b)A member of the Aboriginal community to which the child belongs;
c)A member of some other aboriginal family residing within the vicinity of the child’s usual place of residence;
d)A suitable person approved by the Director-General after consultation with members of the child’s extended family or kinship group and aboriginal organisations as are appropriate to the child.
[46] Ibid at Annexure A21
[47] Exhibit 13
Ms C acknowledged that the Department Guidelines for the placement of indigenous children were not followed. No inquiries were made in the [C] area where the Children have kinship ties. While the Department was prepared to assess Ms A as a potential carer, she was not in a position to accept the Children. (I note here it would seem highly unlikely Ms A would have been assessed as suitable given her history of involvement with the Department and given her own children had been removed from her care). The Department advised the William Campbell Foundation that the Aboriginal Foster Care Agency did not have suitable placements for these Children.
The Department relied on the William Campbell Foundation to find placements for the Children. The William Campbell Foundation recruits carers from the South Coast of New South Wales and the Department relies on the Foundation to communicate with the carers. There is no evidence before the Court as to the qualifications, experience and training of the staff of the Foundation or the qualifications, experience and training of the recruited carers.
As already noted, the six Children were taken to four different placements and [U] was not placed with [Z] as she had requested. As earlier noted, the Children were placed a long way from their family and from their kinship group, remote from [W] country. Ms C and
Ms K conceded that the William Campbell Foundation was a long way down the hierarchy in terms of placement options.
Ms C said she understood attachment principles and the need for the Children to be together, but this could not be achieved. She did not seek advice from the Department psychiatrist as to how to best minimise damage to the Children when placing them in out of home care. She did not consult the Grandmother about the placement arrangements.
When the orders of 17 July 2014 were made for [V] and [X] to be returned to the Grandmother after the breakdown of their placement, the William Campbell Foundation had planned to move [V] into the care of a single male carer with no other children. [X] was to be placed with a couple. Again, no evidence was adduced as to these carers’ experience, qualifications or training.
The carers for [W] and for [Y] and [Z] both sought respite care in the September school holidays, [W]’s carers for 5 days and [Y] and [Z]’s carers for 10 days.[48] When the need for these further changes was raised at the end of the hearing, I made orders for all the Children to spend the majority of the September/October 2014 school holidays with the Grandmother to minimise further changes to the Children’s care arrangements.
[48] Exhibit 19
Since the Children have been in care and spending weekends with the Grandmother, the Department contends that the Grandmother’s care of the Children has continued to be inadequate. In particular:
a)[U] used the Grandmother’s puffer instead of her own;
b)Since [V] and [X] have been returned to the Grandmother’s care, the Grandmother has used physical discipline. The Grandmother admits to slapping on the hand and putting them on a mat. On 4 July 2014, [W] complained about being smacked by the Grandmother. On 18 July 2014, the records state that when told he and [V] were returning to the Grandmother’s, [X] said he did not want to return because the Grandmother smacked them.[49]
c)[Y] reported to her carer that the Grandmother had caused an injury to her middle finger causing swelling.[50] The carer has also said that “[Y] is very excited to see her Nan and siblings as she becomes very talkative and loud on the Friday after school before she is picked up and runs out the door when it is opened and time for the siblings to go.”[51]
[49] Annexure A10 of affidavit of Ms C sworn 25 August 2014
[50] Ibid at page 248
[51] Ibid at page 253
Legal principles
These proceedings were commenced before 7 June 2012. Relevant amendments made to the Family Law Act 1975 pursuant to the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 therefore do not apply.
The principles governing this case are set out in Part VII of the Family Law Act 1975. Section 60CA provides that I must regard the best interests of the child as the paramount consideration. To determine the child’s best interests I must consider the primary considerations set out in section 60CC(2) and the 13 additional considerations set out in section 60CC(3) which includes “any other fact or circumstance the court thinks is relevant.” Some of these factors specifically refer to “parents” but the Full Court has stated that the Court would be expected to consider all the factors (to the extent they are relevant), whether under those provisions or under s.60CC (3)(m) when, as in this case, a non-parent is involved.[52] The Full Court states that the factors in s.60CC are a “means to an end” [53] and are matters to be considered and applied in a manner “consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.”[54] The additional considerations in section 60CC(3)(b), (d) and (f) make clear that grandparents can play an important role when considering a child’s best interests.
[52] Malcolm & Monroe (2011) FLC 93-460 approved by the Full Court in Valentine & Lacerra & Anor [2013] FamCAFC 53 at paragraph 52
[53] At paragraph 53 of Valentine & Lacerra & Anor [2013] FamCAFC 53
[54] Per May and Thackray JJ in Mulvany & Lane (2009) FLC 93-404 at paragraphs 76 and 77 – cited with approval at paragraph 53 of Valentine & Lacerra & Anor [2013] FamCAFC 53
Section 60CC(4) requires me to consider also the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities. Although the two primary considerations must assume greater importance than the additional considerations, when determining what orders are in the best interests of the child, I must consider all the factors before making a determination. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration.
The primary considerations are firstly the benefit to the child of having a meaningful relationship with both of the child’s parents and secondly, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. I give these matters very careful consideration because the Act provides that they are primary considerations and because they are consistent with the first two objects of the Act set out in section 60B to which I must have careful regard.
The objects of the parenting provisions of the Family Law Act 1975 are to ensure that the best interests of child are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
although the first, third and fourth objects in section 60B(1) have no application to non-parents.[55]
[55] Kitsannis & Netpoulis & Anor [2010] FamCAFC 214 at paragraph 78
There is no presumption in favour of a natural parent “or any entitlement of a parent to a preferential position from which the decision making process commences”[56] when considering a child’s best interests, although the fact of parenthood is an important and significant factor[57]. The Full Court held [58] that “an application for a parenting order by a non-parent is to be determined in the same way as an application by a parent, namely, according to its own facts and having regard to the best interests of the child as the paramount consideration.”
[56] At paragraph 53 of Valentine & Lacerra & Anor [2013] FamCAFC 53
[57] Rice & Miller (1993) 16 Fam LR 970 at 977
[58] At paragraph 43 of Valentine & Lacerra & Anor [2013] FamCAFC 53
The principles underlying these objects include that children have the right to know and be cared for by both their parents; have a right to spend time on a regular basis and communicate on a regular basis with both their parents and other people significant to their care; parents jointly share duties and responsibilities concerning the care, welfare and development of their children; parents should agree about the future parenting of their children; and children have a right to enjoy their culture. For Aboriginal children this includes the right to maintain a connection with that culture and to have the support, opportunity and encouragement to explore the full extent of that culture consistent with the child’s age, developmental level and views and to develop a positive appreciation of that culture.
S.61F provides that when applying Part VII to the circumstances of an Aboriginal child, or identifying a person or persons who have exercised, or may exercise parental responsibility for such a child, the Court must have regard to any kinship obligations, and child-rearing practices of the child’s Aboriginal culture.
Evidence in relation to the Children
The six Children each have a number of medical and dental needs, some of which are significant. Exhibit 7 includes medical assessments of some of the Children since being in out of home care. Those reports identify [Z]’s need for dental treatment, [Y]’s need for dental x-rays, [W]’s developmental delay, speech difficulties and need for dental care. It was recommended that [W] have a hearing test, a speech pathology assessment, occupational therapy, psychometric testing, an ophthalmology review, a blood screen, and a cardiac assessment. [V] received a clean bill of health in July 2014. Dr G recommended a paediatric assessment for [X], possible underlying dental sepsis, noted a history of nightmares, and the need for his relationship with the Grandmother to be informally explored because [X] had said he did not want to visit his ‘Nan’ each week.
Family Consultant M described all six Children having special needs including speech, hearing and intellectual delay for the boys. In her opinion, there will have been a negative psychological impact on all six children as a result of neglect, exposure to family violence, drug and alcohol use, as well as changes in their primary care during the early stages of their development.[59]
[59] Exhibit 2 at paragraph 74
Dr K was the Grandmother’s and Children’s treating general practitioner at the Aboriginal Medical Service until the Children were removed. Dr K prepared a report dated 14 July 2014 from the Aboriginal Medical Centre notes but did not have access to the clinical notes when giving evidence, having recently left her employment. She told the Court that all the Children were up to date with their immunisations. [U] was due for her review with the ear nose and throat specialist, had been diagnosed with asthma and had been referred for dental work. [V] had been assessed by a paediatrician, Dr O, in 2012 and did not meet the criteria for attention deficit hyperactivity disorder. He had had some involvement with a speech pathologist. [W] had been referred to an ophthalmologist at Sydney Children’s Hospital for a squint and been referred for dental work. [X] had had speech pathology at [omitted] Community Health. [Y] had suffered episodic asthma, had her hearing tested in November 2013, and had had a dental check-up. [Z] had surgery for an undescended testicle last year, had been referred for dental work and was due for a hearing test. Dr K explained that dental services are offered to aboriginal children at the Medical Service dental clinic at Redfern, the dental hospital at Chalmers Street, and Canterbury Hospital.
Dr K was impressed by the Grandmother’s management of the Children and of the Children’s behaviour and presentation at appointments. Unusually, the Grandmother had wanted all the Children fully medically checked. Dr K confirmed that the Grandmother had followed up all referrals to specialists, and was aware of the damage caused by sugary drinks. Dr K explained the delays in accessing public dental services.
Dr K confirmed there had been no requests for information about the Children’s medical histories from health professionals involved with the Children since the Children were removed and that the Aboriginal Medical Service had not been provided with any medical information concerning the Children since they went into care.
[U]
[U] has been in Year 5 at [omitted] Public School since being placed in out of home care. Some behavioural issues have been reported at school but otherwise the limited available evidence from the Department suggests she is settled in her placement and enjoying the company of the 12 year old girl living there, also in foster care. When questioned as to what sexual assault counselling had been arranged for her, Ms C acknowledged nothing had been arranged, and should have been.
[U] was 9 years old at observations/interview with Ms M who found her “compliant and somewhat hyper alert” in July 2013.[60] She understood she was living with her “Nan” because her parents did not look after them properly with “all the drinking and the pot. They just wanted to go out.”[61] She reported staying at ‘[Mr D]’s’ place when [Z] was a baby and to being involved in [Z]’s care with ‘[Mr D]’ and [T]. She described a chaotic lifestyle with her parents constantly drinking and smoking cannabis, shouting and fighting and her Mother once having a broken nose. Her Father used to hit the Children with a belt. She reported that once, at the Grandmother’s home, her Mother “choked her” and she was very frightened and her ‘Nan’ was going to hit her Mother.[62] She was aware the Grandmother smoked cannabis from a bong. [U] described her ‘Nan’ as strict but described feeling “closest to her Nan, but seemed a little sad, saying that Nan is not able to spend time with her and the other Children because [Z] wants her.”[63] [U] appeared to Ms M to be content in her Grandmother’s care.
[60] Exhibit 2 at paragraph 59
[61] Ibid at paragraph 62
[62] Ibid at paragraph 64
[63] Ibid at paragraph 67
[U] presented to Mr R in August 2014[64] “as a confident, out-going young girl who presented as feeling somewhat marginalised within her family. She openly stated that she “hated” all her siblings and did not like being around them or spending time with them at her Grandmother’s home.” She was negative about her time with the Grandmother each weekend and resented her “controlling” “bossy” behaviour. However, she felt “safe” with her Grandmother and safe in her home. [U] felt others of her siblings were favoured over her. She wanted to live with ‘[Mr D]’ in [C], without her siblings who are “extremely annoying”.[65]
[64] Exhibit 3 at page 9
[65] Ibid at page 10
The Grandmother told Mr R that [U] was challenging at times, “going on 11 but thinking she’s 21.”[66] She said that [U] is not always compliant, and questioning of her authority which was probably consistent with her stage of development.[67] In cross examination, the Grandmother said she believed that [U]’s attitude had changed since she went into care. She sits in her room all weekend “eating lollies” brought with her from her foster care home. She will not speak openly to the Grandmother and pushes her siblings away. However, her counsel advised the Court at the end of the hearing that he was instructed [U] was more settled recently. Ms M said that while it is good for [U] to have a sense of independence, it is also helpful for her to have an appropriate level of responsibility. In the view of both experts, [U] should not be separated from her siblings.
[66] Ibid at page 7
[67] Ibid at page 7
[V]
[V] has been attending [L] School since he returned to his Grandmother’s home on 20 July 2014. A letter from the Principal dated 14 August 2014 says:[68]
Both [V] and [X] have settled into their new school and are engaged in their learning. They wear full school uniform, are punctual and attend regularly. Both [V] and [X] have specific learning needs which our school is addressing through a variety of accommodations. They are responding well to the teaching and learning strategies.
[68] Exhibit 12
On 10 September 2014, [V] received a bronze certificate for ‘Mathletics’.[69] With the support of the Department, if he remains in the Grandmother’s care, [V] will return to [omitted], a school he attended previously for children with an intellectual disability.
[69] Ibid
Ms M said that [V], then aged almost 9 years, “had an intensity about him and could be forceful with his siblings but was compliant with firm adult instruction.”[70] Ms M understood he had been diagnosed with ADHD, speech and hearing deficits, and an intellectual delay. [V] had seen his Grandmother and Mother smoking pot through a bong. [V] was “respectful of and obedient for Ms Drake.”[71]
[70] Exhibit 2 at paragraph 59
[71] Ibid at paragraph 83
[V] presented to Mr R as a “boisterous, out-going young boy who chatted openly when interviewed.”[72] However, he was distractible and his responses were erratic. He missed his siblings and hoped they could all live together, and was positive about living with his Grandmother. He was happy to earn pocket money from cleaning up in the house and found his Grandmother reasonable. He did not agree with [U] that the Grandmother was “bossy”. [V] described his routine with his Grandmother, his clean uniform and his Grandmother helping him to school. She made sure the water was not too hot in the shower. [V] gave Mr R the impression that he felt safe with his Grandmother and enjoyed the stable, functional nature of her household. His only regret was the lack of outdoor space and his inability to ride his bike in the yard.
[72] Exhibit 3 at page 10
The Grandmother described [V] and [X] as active and energetic young boys who needed to be entertained and diverted to manage their needs. [V] and [X]’s placement was said to have broken down because of [V]’s behavioural issues.
[W]
[W] is presently attending [omitted] Public School in Year 3. He suffers from global developmental delay and struggles with his school work. According to his caseworker, while enrolled in Year 3 at school, he functions at Kindergarten level. He was not interviewed by Mr R because of his poor intellectual development. Two weeks after his removal, [W] was reported to have settled into his temporary placement well.[73] However his “living skills and personal hygiene skills” were still developing and he suffered nightmares from time to time “relating to his brother [V].”[74] The placement report stated that [W] was placed with a carer who had extensive experience working with people with high needs.[75]
[73] At paragraph 128 of the affidavit of Ms C sworn on 25 August 2014
[74] Ibid at paragraph 128 and Annexure A22
[75] Ibid at Annexure A21
Ms M observed [W] (then aged 7) to be “quite amiable and smiled often.”[76] Departmental records indicated his global delay was due to his parents’ failure to provide appropriate medical care when he was young. Ms M reported that he will need a lot of support through his childhood, and given the limited resources available for disabled children, in Ms M’s view, he will require “a very committed parent or carer to advocate” on his behalf.[77] While the parents did not follow up medical appointments, the Grandmother had done so since she had received additional support from agencies, in particular CatholicCare. Ms M said that “ongoing support and monitoring is likely to help her [the Grandmother] to obtain services for [W] as he grows.”[78]
[76] Exhibit 2 at paragraph 59
[77] Ibid at paragraph 80
[78] Ibid at paragraph 82
Mr R reported [W]’s developmental delay, dental problems, some possible hearing loss and speech difficulties. He was described to him by his caseworker as an “open, happy, cheerful child.”[79] [W] has told his caseworker that he “just wants to live with my Nan”. The Grandmother says he has been prescribed glasses by an ophthalmologist which need to be changed each year, disputed by an optometrist he has recently seen. The Grandmother described [W] to Mr R as the most vulnerable of the Children due to his developmental delay and medical needs. She said he trusted anyone and needed her attention and care more than the others.
[79] Exhibit 3 at page 11
[X]
[X] has attended [L] School since he was returned to live with his Grandmother in July 2014. On 15 August 2014 he received a Certificate of Merit from the school which reads “for being a happy enthusiastic new member of our school community. We are so happy to have you!”[80]
[80] Exhibit 12
[X] (then aged 6) appeared to Ms M to “anger quickly if he did not get his own way.”[81] He had been with his Grandmother since the age of 4 years. He suffered speech delay and the school reported some behavioural concerns which certain teachers were able to manage.
Ms M said his lack of self-regulation might relate to his disability or to the poor parenting he received in his formative years. His emotional development is delayed.
[81] Exhibit 2 at paragraph 59
[X] presented to Mr R as an active, outgoing young boy who was distractible and difficult to pin down. He found him difficult to engage in interview. [X] was positive about living with the Grandmother and liked being with his siblings on weekends. He described his Nan as actively caring for them and “nice to us”.[82]
[82] Exhibit 3 at page 12
[Y]
[Y] attends [omitted] Public School in Year 1. In June and July 2014, the Department was told [Y] had settled well into her placement, though she exhibited behavioural problems and had begun wetting her bed most nights after leaving her Grandmother at the end of each weekend.[83]
[83] At paragraph 133 of affidavit of Ms C sworn on 25 August 2014
[Y] was observed by Ms M to sit quietly focussed on a game. She did not interact with either the other Children or the adults present.[84] She had then lived with the Grandmother from the age of 3 years. Ms M believed it likely that the Grandmother is her primary attachment figure, given the low level of care she would have received from her parents, although Ms M found it likely there had been a bond between her and the Father.[85]
[84] Exhibit 2 at paragraph 59
[85] Ibid at paragraph 78
[Y] was not interviewed by Mr R but he was told by her caseworker that [Y] was functioning well at school though struggled with maths and writing. The Grandmother said she was reading well. There was no evidence of any developmental delay. Mr R was told that [Y] could be argumentative and difficult after returning to her carers from time with the Grandmother and her siblings on weekends and was bed wetting with her carers. [Y] was becoming increasingly independent and challenging of adult authority. A report from the William Campbell Foundation[86] reports that [Y] says “she wants the (foster) home to be like her Nan’s stating that Nan lets her watch TV whenever they want and they have a later bed time”. The Grandmother told Mr R that [Y] was settled in her care.
[86] At page 248 of affidavit of Ms C sworn on 25 August 2014
[Z]
[Z] has attended [omitted] Child Care since he has been in care. The reports from the William Campbell Foundation of June and July 2014 said that [Z] was progressing well in his placement, though using few words. He had started to toilet train, brush his teeth and dress himself.[87]
[87] Ibid at paragraph 132
Since [V] and [X] have been in her care, the Department has had limited involvement with the Grandmother. They have inspected and approved her home. There has only been one request for a drug test.
As already noted, I find that the Department’s primary focus has been monitoring for child protection concerns, intervening when risk of harm notifications have been received, rather than supporting the Grandmother in her care of the Children. Though the Department has provided financial support, its caseworkers have provided little by way of practical assistance/encouragement to the Grandmother in her parenting responsibilities since CatholicCare ceased its involvement. I am satisfied from the Department’s file notes that the Grandmother had a reasonable relationship with Ms K and Ms C, always keeping appointments, letting them into her home when asked, until early this year. Since then, the Grandmother has found their relationships difficult. I accept Mr R’s opinion that the Grandmother’s relationship with the Department is affected by the long history of her involvement with them, her distress at their decision to remove the Children in circumstances she believes were unjustified, and as Mr R says[136] “by a level of frustration, distrust and resentment that seems to have arisen largely from poor communication between her and the Department.”
[136] Exhibit 3 at page 23
Ms C is pessimistic about the Department’s ability to work collaboratively with the Grandmother in the future, based on their dealings since early 2014. Ms C produces file notes of conversations with the Grandmother when she has said, “contact my lawyer” “all you do is nag and harass me and do whatever you like” and hung up. Ms C has a profoundly negative opinion of the Grandmother whom she believes will never have the capacity to care for the Children, whatever conditions are imposed on her. While the Department says it would recommend a different team be allocated the case if the Court made an order for shared parental responsibility, Ms C could not guarantee this would occur. Unfortunately, the Department has no indigenous caseworkers in its [omitted] team. I agree with Mr Harris that the evidence does not support the Grandmother working cooperatively with the Department if Ms K and Ms C remain assigned to this case.
However, despite this submission on the likely poor cooperation between the Department and the Grandmother in the future, Mr Harris provided an alternative proposal from the Department which provided for the Children to live with the Grandmother, for shared parental responsibility between the Grandmother and the Department with the obligations of each party spelt out.[137] Under this proposal, the Grandmother would be required to do as she was told by the Department, and to keep the Department informed of day to day issues:
a)Accept referrals organised by the Department to The Benevolent Society (or similar), the Child Protection Counselling Service, a drug and alcohol relapse prevention programme, literacy and numeracy assistance, a respite care service.
b)Contact the Department about all medical, dental or school appointments for the Children, issues arising with the Children’s health, dental care or education, or the Children’s behaviour, services involved with the Grandmother or the Children, people staying overnight in the home (whether family or otherwise), the Children spending time with the parents and any issues arising, the Children spending time overnight outside the home, including proposed trips to [C], housing problems, financial problems, any other concerns about the safety or welfare of the Children.
c)Attend a meeting with the Department each month (with a support person if required) to discuss issues arising with the Children, services for the Grandmother, services for the Children, other services required by the family, to prepare a case plan and make lists of action required by the Grandmother and the Department.
d)Undertake urinalysis within 24 hours of any request to do so, with a missed test to be treated as a positive result.
e)Keep her mobile phone charged and switched on during business hours, answer or return calls and messages from caseworkers, and inform the Department if there is any problem with her hone as soon as possible.
[137] Exhibit 8
The Department would consider changing the casework team, work on better communication strategies with the Grandmother, attend meetings with the Grandmother, organise referral to services for the Grandmother and the Children, arrange transport as required, tutoring as required and sexual assault counselling for [U]. The Department would be required to liaise with the Children’s previous health providers to coordinate appropriate referrals.
Although Ms M said that the Department needed to coordinate the supports required to ensure the Grandmother is supported to support the Children, she did not support the Department overseeing every aspect of the Grandmother’s day to day life as contemplated by the Department’s alternative proposal. Ms Wearne submitted that Ms M would not therefore have supported the Department’s alternative proposal.[138] Ms M said the caseworker needs to be there to help, rather than to intimidate and compel, and should be identifying what supports are required to enhance the Grandmother’s strengths. I find this has not been the pattern in the past, is not contemplated by the Department’s alternative proposal, and is unlikely to be the pattern in the future.
Sole parental responsibility to the Grandmother
[138] Ibid
The Grandmother acknowledged that she needs help to care for the Children and welcomes the assistance she is receiving from Ms S at [M] and the sisters from her church in Redfern, as she welcomed the assistance provided by Mr F when CatholicCare was involved. If the Grandmother had sole parental responsibility, the question is whether she would access the necessary services without a connection with a coordinating agency, such as the Department or another agency. In such circumstances, the Grandmother would be solely responsible for coordinating help for herself and the Children, including liaising with a number of services to meet each Child’s needs as well as her own. I agree with Mr Harris that the Grandmother needs more than just referrals; she would benefit from case management and day to day support. Mr Harris doubted whether the services presently available to the Grandmother through [M] would be enough.
As already noted, the Independent Children’s Lawyer proposes that the Grandmother have sole parental responsibility. She has investigated the services the Grandmother is likely to need and prepared a spreadsheet of those services and how they would be applied.[139] On this plan, [M] family support services would be the coordinating agency.
Sole parental responsibility to the Department
[139] Exhibit 17
The Department seeks a sole parental responsibility order because it has been unable to implement a shared regime with the Grandmother, and believes the Grandmother lacks the capacity to parent.
Ms Wearne submits that the Court should be concerned about the manner in which the Department has exercised equal shared parental responsibility with the Grandmother since 3 March 2014. As already noted, the Department failed to comply with its obligations though prescribed in that order. Ms Wearne is critical of the Department for failing to arrange sexual assault counselling for [U]; for not ensuring the coordination of the Children’s medical histories or continuity in the Children’s medical care.
While Ms C conceded that the Department should have arranged sexual assault counselling for [U], she did not accept the Department had otherwise failed in its duty to the Grandmother under the shared parental responsibility order.
If the Children are to remain in the care of the Department, an order for sole parental responsibility to the Minister would follow.
Discussion and Determination
There are multiple uncertainties in this case, compounded by the number of Children, the paucity of evidence about each Child’s current circumstances, and the inability of the Department to provide detail about the Children’s future arrangements if its primary proposal is accepted. At the outset of his final submissions, Mr Harris conceded, properly in my view, that it was a major weakness in the Department’s case that it could not identify with precision where the Children would be if sole parental responsibility were allocated to the Minister. The evidence disclosed that the Children would almost certainly live on the South coast of New South Wales, probably in the Nowra region, a long distance from their family in Sydney and community ties in [W] country. The Court does not know whether the Children would live as a sibling group, or in what sibling groupings (if any) they would be placed, or whether suitable indigenous carers could be found. The importance of keeping siblings together has long been recognised by the authorities.[140] The Court does not know how many times each Child would be required to move before a long term placement could be identified, where that placement would be, or with whom each child would ultimately live. There is no evidence before the Court as to the parental capacity of the likely carers, their training, qualifications or experience, and no evidence about whether the medical, dental, support services required by each Child exist in the region in which that Child would live. Dr K was clear that the medical services in Sydney are far greater than any local region of New South Wales. The evidence discloses the likely absence of cultural connection. I find the extent of these unknowns very troubling, and have given this finding considerable weight in reaching my decision.
[140] H & H [1994] 19 FamLR 165
On the other hand, there are obvious problems on the Grandmother’s side, which have been canvassed at length in these Reasons. It is an enormous task to parent six Children, quite apart from managing their history of disadvantage and their special needs, and the Grandmother has lapsed in her caring responsibilities in the time she has had the care of the Children. While I have noted reasons for these lapses, they cannot be overlooked. The Grandmother has had a hard life marked by drug addiction, problems with alcohol, family violence, homelessness and bereavement. Her own children are troubled as adults and the subject of child protection concerns. However, the Grandmother has shown resilience. She removed the Children from their parents when she saw the cycle of unsafe and neglectful parenting repeating itself. She sought legal advice and initiated proceedings in this Court to secure the Children’s living arrangements. She now has stable suitable accommodation and draws on a broad base of social and counselling support to deal with the challenges of caring for her six Grandchildren, presently two full time and six each weekend. I am also encouraged by her management of [V] and [X] since their return to her care in July, and her consistent commitment to collecting and returning the other Children each week despite the logistical difficulties and distance. The Independent Children’s Lawyer has had liberty to relist this matter, but has not done so since [V] and [X] have been returned to the Grandmother’s care, nor while the parties have awaited this judgment.
The Department’s proposal for contact does not adequately address the emotional needs of these Children. The Grandmother is almost certainly the primary attachment figure for [Z] and [Y]. Yet the Department proposes limited supervised time with the Grandmother, which is not likely to be sustainable. In addition, the Department’s proposal disregards the Children’s need for relationships with each other, with their Mother and the Father and for a meaningful connection with their culture. The Department is unable to say how many placements each Child would experience if they remain in the Department’s care.
The Department has never established a cooperative working relationship with the Grandmother, who has a long troubled history with the Department, and has felt intimidated rather than assisted when questioned about child protection concerns. I am not persuaded that this Grandmother would succeed in her parenting role if she felt she was constantly under the Department’s scrutiny. This Grandmother needs family support services, rather than constant monitoring.
The Children display a range of physical and psychological needs and have had poor parenting in the past. This makes the Grandmother’s role particularly difficult. Each child’s individual needs require a level of organisation and commitment that is likely to be highly challenging. But the Grandmother has a close relationship to the Children and they are generally respectful, compliant and responsive to her parenting. She has demonstrated a genuine focus on each child’s needs and interests and is sensitive to those needs. While there are potential risks to the Grandmother’s capacity from financial hardship, ill health and dealing with issues arising from other family and community members[141], the Grandmother has shown a willingness to accept help.
[141] Exhibit 3 at page 14
Balancing the protective factors against the risk factors, Mr R formed the view that the Grandmother’s care of the Children does not constitute a significant risk of physical or psychological harm to the extent that the welfare of the Children is likely to be promoted by them living in alternative care. In general, he believes that the Grandmother is capable of protecting the Children from harm and caring for them to at least an adequate standard.[142]
[142] Ibid
Mr R says that placement of the Children in long term out of home care may also constitute a significant risk factor for the Children, particularly as placement stability is uncertain. [V] and [X] have already experienced a breakdown in their placement after a matter of a few weeks, and Mr R says that multiple placements are not uncommon in the course of children being in care, more so in the case of Aboriginal Children.[143] Mr R highlighted the social and emotional risks to the Children if they are required to transition between placements and adjust to different care arrangements. In cross-examination, Ms M said it was necessary to balance the child protection concerns against the risk of breaking up the sibling group and the risk of losing cultural identity.
[143] See Exhibit 3 at page 14 - footnote
The Grandmother offers cultural connection, meaningful relationships with the Mother and the Father and a home all together. The Grandmother shows an understanding of her mistakes and insight into her failures as a parent. Numbers of those involved with the Grandmother compliment her parenting. While she has made errors of judgment, including remaining in [C], the Grandmother has been largely successful in protecting the Children from the drug and alcohol issues of their Mother and Father. The Grandmother herself has turned her life around, having given up alcohol and drugs, accepted the support of the drug rehabilitation service at the Aboriginal Medical Service and earned the respect of many in the community. Neither Ms M nor Mr R support the Department’s proposal for the Children to live in out of home care. Ms M said fortnightly contact between the Children and the Grandmother would not meet the Children’s needs, including their need for each other and for their cultural identity. Nor in her view, would such an arrangement be sustainable in the long term. She said the Children should live with the Grandmother who should be properly supported.
The Court must weigh its findings to determine each Child’s best interests. On balance I have decided to end the present dispersion of these Children around New South Wales, and to reunite the family under the one roof in a calculated attempt to restore some degree of stability, happiness and mutual support amongst the Children, under the care of their Grandmother. I am not persuaded that the Grandmother has been demonstrated to be so inadequate as to justify the uncertain future for each of the Children proposed by the Department. I acknowledge that this decision contains an identifiable risk of failure, and there are many challenges inherent in such a move. However, I have decided it is a risk worth taking in the best interests of these Children. The Department will be required to arrange each Child’s return to the Grandmother’s home with their personal belongings within 2 days of these orders being made. This will give them the opportunity to enjoy preparations for Christmas all together.
To succeed, the Grandmother will need to maintain a courageous level of commitment and discipline. I do not doubt her will or energy. However, the task ahead of her may well prove to be beyond her best efforts unless she remains strongly supported by the commendable people who have appeared in this Court and attested positively to the Grandmother’s past efforts in a very difficult situation.
I have given careful consideration as to whether the Department should have shared parental responsibility with the Grandmother for the Children, as submitted by the Department in their alternative proposal. If there was stronger evidence of the Department assisting and supporting the Grandmother in the past, that arrangement would have been this Court’s preferred outcome. However, I am not satisfied that the Department has demonstrated a willingness or capacity to play a supportive role. Ms C presented as fixed in her negative opinion of the Grandmother. While Mr Harris submitted (in his alternative proposal) that the Department would give consideration to changing the team allocated to this family, I have little confidence that this would occur. As already noted, I find that the Department caseworkers involved in this case have shown poor knowledge of and insight into how to build a cooperative working relationship with this Aboriginal Grandmother. I am not satisfied this is likely to change. I find the Department’s requirements of the Grandmother in its alternative proposal unrealistic and overly onerous, given the demands of six Children day to day. I find it likely the ongoing involvement of the Department is more likely to undermine, rather than enhance the Grandmother’s chance of success. The Grandmother will therefore have sole parental responsibility for the Children.
The Independent Children’s Lawyer has prepared a carefully crafted and comprehensive plan for the Grandmother moving forward which I find thorough and appropriate and propose to adopt. (Annexure A to these Reasons). She has arranged grief counselling for the Grandmother through the Aboriginal Medical service and for each of the Children to have a health check when in the Grandmother’s care. Her plan includes arranging sexual assault counselling for [U]. If the Grandmother is to succeed in keeping her family safely together, the Grandmother will need to accept these supports well into the future. I have noted the Court’s request to the Independent Children’s Lawyer to inquire as to whether one of the larger family support agencies, preferably an agency with indigenous family support workers (for example, the Benevolent Society or CatholicCare), may be able to assist this family. While I find that [M] will be involved for some time to come, it is only a small agency with few staff. Given the significant benefits of CatholicCare’s previous involvement, I have requested the Independent Children’s Lawyer to inquire as to whether one of the larger agencies, such as SDN Children’s Services, CatholicCare or the Benevolent Society[144] would assist in the coordination of the services detailed in Exhibit 17. The Independent Children’s Lawyer will have liberty to provide a copy of these orders and Reasons to any Agency involved in assisting the Grandmother.
[144] Benevolent Society assist [name omitted] according to file note at page 196 of Ms C’s affidavit sworn on 25 August 2014
I agree with the Independent Children’s Lawyer, not opposed by the Grandmother or either parent, that the Grandmother must remain living in Sydney to ensure access to the wide range of services she will require for herself and the Children. Should she wish to relocate at any time in the future, she will need to make an application to the Court. This does not however, prevent her spending time with the Children in [C] during school holidays.
The Mother sought unsupervised contact with the Children as arranged with the Grandmother, an order agreed by the parties in March 2014. She accepts a restraint in relation to consuming alcohol or drugs before or during any contact periods. The experts supported the Children spending time with the Mother on these conditions. I have made the Order sought by the Independent Children’s Lawyer that time with the Mother be arranged with the Grandmother. I am satisfied that the Grandmother would not permit the Children to be exposed to the Mother if intoxicated and would limit their time with her if she believed it appropriate, but I will limit the Children’s time with the Mother to 4 hours a day.
The Father sought time with the Children on any conditions. He was not assessed by Mr R as he did not make himself available. However, I am satisfied that the Children enjoy seeing their Father and should have the opportunity to spend time with him when he travels to Sydney or the Children travel to [C]. I support the Independent Children’s Lawyer’s proposal that time with the Father occur by arrangement with the Grandmother for up to 4 hours a day.
The Mother and the Father will be permitted to obtain information from each of the Children’s schools upon their request.
The Mother and the Father agreed to a restraint being imposed on each of them in relation to consuming drugs or alcohol prior to or during the Children’s time with them, and I have included that order.
The Grandmother agreed to a restraint on her permitting Mr W to have any access to the Children and I have included that order. I have also made an order restraining the Mother and the Grandmother from permitting Mr S to spend any time with the Children, given the Mother’s concession that he has been violent towards her, and given the Mother’s counsel’s submission that the Mother accepts such a restraint is likely. Given the Grandmother’s long history of illicit drug use, I have restrained the Grandmother from any drugs except as prescribed by a medical practitioner.
The Independent Children’s Lawyer will remain in the matter for 12 months, as she has proposed, to ensure the orders are implemented and will have liberty to apply during that period.
I have been critical of some aspects of the Department’s management of this matter, and critical of the caseworkers responsible. These proceedings were on foot when the Department removed the Children from the Grandmother’s care. The Department’s decision to take such a serious step without notice to this Court when proceedings were pending, was never adequately explained.
I have therefore decided to bring this matter to the attention of the Director of Legal Services of the Department to consider whether additional training may be helpful when indigenous families are involved or whether any other policy issues arise.
Given the Grandmother has limited literacy, I have made an order requiring her solicitor to arrange for these orders and reasons to be read to her.
For all these Reasons, I am satisfied that the Orders made at the beginning of these Reasons are in the Children’s best interests.
I certify that the preceding two hundred and fifty two (252) paragraphs are a true copy of the reasons for judgment of Judge Sexton
Associate:
Date: 17 December 2014
| [MS J DRAKE] | ISSUE | HOW BEING ADDRESSED AT PRESENT | WHAT IS NEEDED TO ADDRESS IF ANYTHING | COMMENTS |
| Past drug and alcohol abuse | Program at AMS | [Ms J Drake] to continue in program | ||
| Parenting skills | Triple P program commencing in October with [M] | Program commencing October 2014. | [Ms J Drake] to attend program | |
| Grief arising out of death of daughter [Ms B] | [name omitted] fromm the Aboriginal Health Team at RPA. Will meet with [Ms J Drake] and ascertain needs. | ICL will notify [M] of involvement so that they can support attendance. | ||
| Assisting with homework for children | Spoke to [name omitted] from Department of Education member of the Aboriginal Education Consultative Group. The children will be allocated a personalised education plan. [L] Public School is the area that [name omitted]’s section covers. She is aware of [V] and [X] and has been liaising with [name omitted] the Principal at [L]. Upon [Y] starting in kindergarten she will become part of the [omitted] program a learning support program. | Copy of final orders to be released to [name omitted]. | ||
| Getting children to medical appointments | Spoke to [name omitted] at the AMS. ICL to do letter to AMS to be placed on each of the children’s medical files indicating that transport is needed for any specialists appointments and the appointments should be organised when the AMS can assist with transport. | Copy of final orders to AMS attention [name omitted]. ICL to do letter to be placed in each child’s file. Copy of report of [Mr R] released to AMS. | ||
| Getting children to extracurricular activities | [omitted] do not currently have upcoming competitions. Rugby League and Netball possible next year. Waiting on response from National Centre of Indigenous Excellence re available programs. | |||
| Children’s involvement in extracurricular activities | See above | |||
| Advocating for the children with special needs | This should be covered by the AMS co-ordination of appointments. | Letter by ICL to AMS advising that advocacy required. Copy to be placed on each child’s file. Copy of report of [Mr R] to AMS. | ||
| Meeting the special needs of the children ie., implementing recommendations of health professionals and teachers. | Combination of AMS and [L] Public School. | This should be covered by the AMS co-ordination of appointments. [L] Public does not have tutors that can attend at home but with personalised education plan this should be met. | ||
| Literacy | Waiting on information from [M]. | |||
| [U] | Sexual assault counselling | Nil | Kihri Euloo-wiree from the Aboriginal Health Team at RPA. Will meet with [U] and ascertain needs. Will do initial meeting at home to assess all needs. Counselling can take the form of talking whilst walking. Will do away from hospital so that less intimidating. Possible counselling program being held at Glebe PCYC for teenage girls re keeping safe and sexual assault counselling. Will assess once met [U]. Determine whether appropriate for [U]. Will contact sexual assault unit at RPA re what they can provide. Can link into adolescent programs once undertaken assessment. | ICL to notify [omitted] once final orders made and [U] in [Ms J Drake]’s care. ICL will notify [M] of involvement so that they can support attendance. Copy of [Mr R]’s report released to [omitted]. |
| Counselling re exposure to chaotic parenting style, domestic violence and drug and alcohol abuse by parents. | Nil | See above. | ||
| Asthma | AMS | AMS to have copy of final orders | ||
| Extracurricular activities | Nil | [omitted] do not currently have upcoming competitions. Rugby League and Netball possible next year. Waiting on response from National Centre of Indigenous Excellence re available programs. | ||
| Big brother big sister program | No aboriginal worker nor placements available for aboriginal child. | Not available at present. | ||
| [V] | Educational needs | Transfer to [omitted] School at the commencement of Term 4 2014. | School wanting final orders before placement to ensure [V] is not moved out of [omitted] once there. | School to be provided with copy of final orders |
| Dental | [name omitted] – Sydney Dental Hospital Aboriginal unit. | Waiting on a response. | ||
| Extracurricular activities | Nil | [omitted] do not currently have upcoming competitions. Rugby League and Netball possible next year. Waiting on response from National Centre of Indigenous Excellence re available programs. | ||
| [W] | Global Development delay | Combination of AMS and [L] Public School. Once commences at [L] will have personalised education plan overseen by Aboriginal education consultative group. | Copy of final orders to AMS | |
| Dental problems | [name omitted] – Sydney Dental Hospital Aboriginal unit. | Waiting on a response | ||
| Hearing loss | See comments above re AMS | |||
| Speech therapy | See comments above re AMS | |||
| Occupational therapy | See comments above re AMS | |||
| Eye problems | See comments above re AMS | |||
| Extracurricular activities | Nil | [omitted] do not currently have upcoming competitions. Rugby League and Netball possible next year. Waiting on response from National Centre of Indigenous Excellence re available programs. | ||
| [X] | Learning difficulties | Has personalised education program. [X] no longer considered necessary to go to [omitted] school. | School provided with copy of final orders. | |
| Possible diagnosis of ADHD | [Ms J Drake] to take to AMS | |||
| Extracurricular activities | [omitted] do not currently have upcoming competitions. Rugby League and Netball possible next year. Waiting on response from National Centre of Indigenous Excellence re available programs. | |||
| Dental | [name omitted] – Sydney Dental Hospital Aboriginal unit | Waiting on a response. | ||
| [Y] | Extracurricular activities | [omitted] do not currently have upcoming competitions. Rugby League and Netball possible next year. Waiting on response from National Centre of Indigenous Excellence re available programs. | ||
| Dental | [name omitted] – Sydney Dental Hospital Aboriginal unit | Waiting on a response. | ||
| [Z] | Dental | [name omitted] – Sydney Dental Hospital. | Waiting on a response. | |
| Possible developmental delay | AMS | [Z] to be reviewed by AMS at appropriate time. |
Key Legal Topics
Areas of Law
-
Family Law
-
Equity & Trusts
Legal Concepts
-
Injunction
-
Procedural Fairness
-
Remedies
0
2
2