Dupont v The Secretary, Department of Family and Community Services
[2014] NSWDC 240
•11 December 2014
District Court
New South Wales
Case Title: Dupont v The Secretary, Department of Family and Community Services Medium Neutral Citation: [2014] NSWDC 240 Hearing Date(s): 1, 2 and 3 December 2014 Decision Date: 11 December 2014 Jurisdiction: Civil Before: Gibson DCJ Decision: See [123]ff
Catchwords: CHILDREN - proceedings concerning whether two children were in need of protection heard and determined by the Children's Court under Children and Young Persons (Care and Protection) Act 1991 (NSW) - appeal by one parent in relation to one of the children the subject of the orders - whether Child Protection Legislation Amendment Act 2014 (NSW) applicable - consideration of savings provisions in Schedule 3, Part 10 - proceedings to be determined in accordance with legislation in force at the time of the Children's Court hearing - whether realistic possibility of restoration of child - whether permanency planning for child appropriately and adequately addressed - consideration of ss 89 and 103 of the Act concerning the welfare of the relevant other persons - child living with a sibling in care where that order was not the subject of appeal - no reasonable prospect of restoration - appeal dismissed Legislation Cited: Child Protection Legislation Amendment Act 2014 (NSW) s 263, Schedule 3, Part 10
Children and Young Persons (Care and Protection) Act 1991 (NSW), ss 8, 9, 71, 72, 79, 83, 87, 90, 91, 93, 103
Evidence Act 1995 (NSW), s 128
Interpretation Act 1987 (NSW), s 30Cases Cited: Campbell, Re [2011] NSWSC 761
Department of Family and Human Services (NSW) re Day [2012] NSWChC 14
DFACS (NSW) and the Colt Children [2013] NSWCHC 5
Kestle, Susan v Director-General of the Department of Family and Community Services [2012] NSWChC 2
Re June (No 2) [2013] NSWSC 1111
Re Saunders and Morgan & Anor v Department of Community Services (District Court of NSW, unreported)Texts Cited: - Category: Principal judgment Parties: Plaintiff: Mr Dupont
First Defendant: The Secretary, Department of Family and Community Services
Second Defendant: Ms Dupont
Third Defendant: Katarzyna Rutkowska - Independent Children Representative
Fourth Defendant: Jacqui Griffin - Independent Children RepresentativeRepresentation - Counsel: Plaintiff: Mr Dupont (in person)
First Defendant: Mr G Moore
Second Defendant: No appearance
Third Defendant: Ms K Rutkowska
Fourth Defendant: Ms L Goodsell- Solicitors: Plaintiff: Mr Dupont (in person)
First Defendant: Crown Solicitors Office
Second Defendant: No appearance
Third Defendant: Ark Law
Fourth Defendant: Jacqui GriffinFile Number(s): 2014/185952 Publication Restriction: Pseudonyms have been used in order to anonymise the children and parties
JUDGMENT
Introduction
The plaintiff (hereafter called "Mr Dupont") brings an appeal pursuant to s 91 Children and Young Persons (Care and Protection) Act 1991 (NSW) from a decision of the Children's Court (Broadmeadow) of 28 May 2014 for the care of a child, C. C, who is currently 10 years of age, lives with her sister B, who is 16 years of age, in the care of their maternal aunt, Aunt AA.
The family composition is as follows. Mr Dupont and the child's mother ("Ms Dupont") commenced a relationship in 2001, at which time Ms Dupont was already the mother of two children, A (born in 1996) and B (born in 1998). The child the subject of this appeal, C, was born in 2004 and is currently 10 years old. Mr Dupont and Ms Dupont married on 9 October 2010 but separated in August 2012.
The eldest child in the family, A, who is now 18, resides with an aunt in Queensland. B, who is now 16, lives with C, in the home of their aunt ("Aunt AA") in the Newcastle area. Aunt AA, who is separated from her husband, has a child of her own, who is approximately one year younger than C, the child the subject of this appeal. Prior to living with Aunt AA, C resided with another maternal aunt, "Aunt BB". According to Mr Dupont, he placed C in Aunt BB's care early in 2013 because of ongoing family problems.
The parties to this appeal
The parties to this appeal are as follows:
(a)Mr Dupont, who represents himself, is the first plaintiff;
(b)The first defendant, the Secretary, Department of Family and Community Services;
(c)The second defendant, Ms Dupont, who has elected not to participate in these proceedings, but has been present in the courtroom, although not sitting at the bar table;
(d)The third defendant, the child C, represented by an Independent Children's Representative;
(e)The fourth defendant, B, represented by an Independent Children's Representative, by reason of the operation of ss 87 and 103 of the Act (Re June (No 2) [2013] NSWSC 1111).
The evidence
The evidence in these proceedings, contained principally in Exhibits A and D, consists of:
(f)The transcript, affidavits and tendered documents in the proceedings before Magistrate Feather (documents 1 - 16 in Exhibit A). For the reasons set out below, there was no evidence in the form of cross-examination of the deponents in those proceedings.
(g)The Summons filed on 23 June 2014 and Mr Dupont's affidavit in support (documents 17 and 18 of Exhibit A);
(h)Updating evidence filed on behalf of the first defendant, namely the affidavit of Dickson Murehwa sworn on 2 October 2014; and
(i)Evidence filed on behalf of the children B and C, namely their views and wishes; and
(j)Recent updating medical information in relation to C (Exhibit D).
Mr Dupont has tendered evidence about his drug rehabilitation, including urinalysis reports and a letter from a TAME facilitator at the Samaritans Foundation. Affidavits sworn by Mr Dupont and his mother in the Children's Court are supplemented by a brief unsworn statement (Exhibit A). As that statement contained little information about his current situation, he gave evidence and was cross-examined. By reason of certain of his answers in the course of cross-examination I have granted him a certificate under s 128 Evidence Act 1995 (NSW) in relation to the whole of these proceedings before me.
There is limited material before the court as to the ongoing relationship between Mr Dupont and C over the past six months since the orders were made. Mr Dupont had not seen the two elder children for many months, if not longer. Mr Dupont has confirmed from the bar table that he does not seek orders in relation to the child B. His relationship with both those children appears, from the harsh words he had to say about them, to be bitter and strained.
Mr Dupont's updating "affidavit" (in fact an unsworn statement) does not contain information about his current living conditions. Both Mr Dupont and his mother had provided affidavits to the Children's Court setting out that the proposal was for C to go to live with her father at this particular townhouse, which the paternal grandmother owns. According to this affidavit material, he has been living with his mother since his release from gaol in October 2013. However, Mr Dupont's more recent statement does not refer to his own mother; instead, he asks the court to return C "to me and her mother", meaning C's mother, Ms Dupont (Exhibit A, tab 18). As is set out in more detail below, he has never intended to live permanently with his mother. He has told the court that the statements to this effect in his Children's Court affidavit were untruthful and were put there "on legal advice", because to tell the truth and say that he intended to return to live with Ms Dupont would result in his losing the application.
Although Ms Dupont was in court during this hearing, she did not come forward to confirm her support of Mr Dupont, or to tell the court about her living arrangements. Although I asked at the outset of the proceedings if she intended to give evidence or otherwise participate, she has declined to do so. According to police documents under subpoena, she had been living in a violent relationship with another man prior to the children's removal. On 15 July 2013, two weeks before the children's removal, police were called to a disturbance where this man had assaulted Ms Dupont and pushed her down an embankment (Exhibit A, p. 192). Mr Dupont told me she is currently living in another country town in government housing accommodation. Whether she is living with other persons is unknown.
Neither Mr Dupont nor Ms Dupont gave evidence before Magistrate Feather. Ms Dupont did not proceed with the application for restoration. Mr Dupont's legal representative asked Magistrate Feather for a preliminary view (T 1 - 5, Tab 15, Exhibit A) but when the matter was ready to proceed told the Magistrate that his client had left the court, instructing him to make submissions, which then occurred (T 6 - 7).
Material concerning the family relationship between B, C and their two maternal aunts is set out in a series of medical reports in Exhibit D and the report of Dr Kowalenko dated 4 November 2014. The affidavit of Mr Dixon Murehwa of 2 October 2014 contains a history of the placement of B and C with their maternal aunt, Aunt BB, followed by their placement with Aunt AA, from 4 July 2014. Mr Murehwa's careful account of C's health and behaviour (paragraphs 51 - 59), education and development (paragraphs 60 - 66) and contact with her parents (paragraphs 74 - 79) was largely unchallenged in cross-examination.
The circumstances leading to assumption of care
The first defendant has provided a chronology of events setting out the circumstances in which the children first came to its attention. There were 13 Risk of Significant Harm ("ROSH") reports in relating to B for child sexual assault, drug and alcohol misuse, lack of hygiene and lack of supervision between 30 November 2010 and 22 July 2013. There were 12 ROSH reports received between April and July 2013 in relation to C, the child the subject of these proceedings (11 of child B's reports also relate to this time). Concerns included Mr Dupont supplying drugs to A and B, A and B selling drugs on behalf of Mr Dupont because they needed money for food, concerns about C (who Mr Dupont acknowledges had gone to stay with her aunt, for her own safety, first on an ad hoc basis and then full-time). C later told the school she had been spending a lot of time at her Aunt BB's home, and effectively commenced to live there some weeks or months prior to the events of 29 July 2013.
The family appears to have become increasingly dysfunctional in 2012, after Ms Dupont left the matrimonial home, leaving the children in the care of her husband, Mr Dupont. Mr Dupont ceased employment and at about this time gave the eldest child, A, some ice, an act he tells the court he regrets, but which he adds is his "only mistake". A rapidly became addicted and his behaviour became a problem in the household, as there were arguments during which he would punch the wall. B began remaining away from home for long periods, and in early 2013 C began spending more and more time with Aunt BB, who gave her breakfast, packed her school lunch and eventually took over most, if not all, parental activity for C who, at or after Easter 2013 began living there.
Mr Dupont was arrested for a series of offences on 18 June 2013 but obtained bail. On 23 June 2013 police were called when one of the children was reported to have taken ice and be subject to hallucinations. Mr Dupont admitted to police that he took approximately 1 gram of ice per day. In a further interview on 17 July 2014, he admitted to a caseworker that he had been an ice user since he was 15, and that he had provided ice to A, following which there had been angry family arguments about drugs.
On 20 July 2014 A was admitted to hospital psychiatric emergency care for a drug-induced psychosis and disclosed that his stepfather Mr Dupont had been providing him with ice for 6 months. After-hours response was initiated and Mr Dupont agreed that C, already in the care of Aunt BB, would remain there. Ms Dupont agreed to this arrangement on 22 July. B, who had previously been living away for long periods, also agreed to live with Aunt BB.
Shortly after A was admitted to hospital, Mr Dupont came to the attention of police and care workers following an incident at the hospital where the A was being treated. Whether A said he did not want to see Mr Dupont (who Mr Dupont was refused entry because he was not A's natural father), or for some other reason, hospital workers said that Mr Dupont threatened them, and he was escorted from hospital premises. Staff workers told the first defendant's caseworkers that Mr Dupont had made threatening telephone calls to the unit. Threatening text messages were also sent by Mr Dupont to Aunt BB. Mr Dupont has apologised to the court for sending these. They were the subject of ADVO orders that were subsequently modified to remove the names of the children. I will not set out their contents, but I am satisfied that they were intended to frighten her, and that they did.
Another risk factor was that the children were being left alone at night as well as being potentially exposed to criminal activities arising from drug use. The reason for the children being left alone at night appears to have been Mr Dupont's nocturnal activities as a driver or courier. Police stopped his vehicle at 4 a.m. on 19 July 2013 and searched it (Exhibit A, p. 173). Nothing was found, but while Mr Dupont was out driving at 4 a.m., his children would have been home alone. Police again stopped a vehicle being driven by Mr Dupont at 11.15 p.m. on 22 July 2013. On this occasion, a female occupant in the car had $5,000 cash and a search of the car located a crack pipe and resealable bags with traces of white powder (Exhibit A, p. 174 - 5). Another COPS entry for 24 July 2013 describes Mr Dupont as a "known drug supplier" (Exhibit A, p. 173). Mr Dupont was hiring cars to make some of these trips, and a complaint by a hire car about overdue car hire fees is referred to in the COPS report of 24 September 2013.
C, in an interview on 29 July, described Mr Dupont as "scary when he is angry", seeing drug use and domestic violence on a regular basis, and being fearful of both her parents. B made similar statements in a separate interview, and expressed concern about C. A Safety Assessment conducted in relation to B and C resulted in the outcome "unsafe" (affidavit of Sarah Tyrell, 18 September 2013, Annexure 1, Exhibit A, tab 3). Care responsibility was assumed by the Director-General on 29 July 2013.
A report and Initiating Application were filed in the Children's Court on 1 August 2013. An interim ADVO against Mr Dupont was made following court consideration of the threatening text messages. C told Community Services that, at that time, she did not want contact with her parents (Care Plan filed 3 January 2014, p. 10).
Mr Dupont initially emailed a caseworker saying he had "decided to let it go" and would support Ms Dupont in any application she brought for restoration (affidavit of Sarah Tyrell, paragraph 28). On 5 August 2013 he was admitted to hospital following a suicide attempt with paracetamol (affidavit of Sarah Tyrell, paragraph 30). He told the court that this was not a serious attempt, and that it had been done to get sympathy.
Subsequent contact visits
Ms Dupont underwent urinalysis on 6 September 2013, the date of her first supervised contact visit with C. The test was positive for amphetamine, cannabis and cocaine.
On 16 September 2013 Mr Dupont and Ms Dupont came to a residence that C was visiting; Ms Dupont remained in the car but Mr Dupont, who came to the front door, was asked to leave and later charged with ADVO breaches. He was granted bail. There were reports he had threatened the police (affidavit of Sarah Tyrell, paragraph 44). Ms Dupont had a second contact visit on 11 October 2013 but Mr Dupont did not have a contact visit until 22 November 2013.
On 26 September 2013 Magistrate Feather made a finding that the children were in need of care and protection. C had a contact visit with both her parents on 16 December 2013.
The care plan
A Care Plan was filed on 3 January 2014 for C to live with Aunt AA, who at the time lived in Darwin. The placement was to include B in order to maintain their sibling relationship. The care plan provided for supervised contact between C, Mr Dupont and Ms Dupont jointly, no more than 4 times a year.
C had contact visits on 14 January, 14 February, 8 March and 12 April 2014. On 28 April 2014 the first defendant was advised that Aunt AA intended to relocate to New South Wales, to minimise the disruption to B and C. Mr Dupont's ADVO was amended, on his application, to remove the children as protected persons, although as persons in a domestic relationship with Aunt BB they remained protected while with her.
Mr Dupont made threats towards both the previous care worker, Ms Tyrell (Exhibit B) and the current care worker, Mr Murehwa (Exhibit A, p. 279). The angry words he used on those occasions were also directed at A and B. On 6 May 2014, shortly before the Children's Court hearing, Mr Dupont sent a Facebook message to A saying:
"you and your family are a bunch of crazy idiots and after I get C back net week none of u will ever see or here [sic] from her again, use [you] brought this on yourself so see unreal [sic "you real"?] soon k."
On 17 May 2014 C was admitted to hospital with stomach pains. She was diagnosed with a psychosomatic disorder. The evidence in Exhibit D indicates that hospital staff considered that these stomach pains relate to anxiety about access visits from her father (see also the hospital discharge summary in Exhibit A at p. 282). C's aunt wrote to Mr Murehwa on 23 May saying that the stomach pain "literally disappeared after she spoke with her lawyer" and was told that she did not have to have a contact visit with her father (Exhibit A, p. 281).
C's wishes and views, filed on 20 May 2014 (Exhibit A, p. 312), were that she did not want to live with her father or paternal grandmother, but wished to live with her sister B and Aunt AA, either in New South Wales or Darwin. She did not want to live with her paternal grandmother.
C also asked, in the course of expressing these views and wishes (p. 312), that Mr Dupont not attend on the next contact visit, although she was happy otherwise to have contact visits with him. The inference I draw from this conduct is that C had some awareness of the imminent court proceedings, was anxious about them, and wished to avoid conflict.
The evidence at the Children's Court hearing
As is noted above, according to the transcript, Ms Dupont informed the magistrate that she would like to change her position and agree with the Care Plan, stating that she would "file a s 90 if it is to go through". Mr Dupont left the court precincts and his legal representative made submissions, but did not cross-examine any of the witnesses. Following those submissions, and after hearing from the other parties, the magistrate made the order appealed from.
Events subsequent to the hearing
The comparatively short interval between the hearing and this appeal means that contact evidence is limited. Information about the contact between C and her parents is set out at paragraphs 81 - 88 of the affidavit of Mr Murehwa (Exhibit A, tab 19). The first contact visit by Mr Dupont occurred when, contrary to C's wishes, he attended a contact visit C was to have with her mother. C became hysterical, crying "don't let him take me" and Mr Dupont got in his car and drove away, following which Ms Dupont said "well, there goes my lift." As at the time of the affidavit being sworn (2 October 2014) this was the only contact between C and Mr Dupont.
As is set out below, no further evidence since the hearing has been filed by Mr Dupont since the hearing beyond a short unsigned statement consisting largely of complaints about the conduct of the first defendant.
The chronology does not refer to any further visits by Mr Dupont. C indicated on 25 July 2014 that she would like further contact with him (paragraph 84 of Mr Murehwa's affidavit, Exhibit A, Tab 19), and her further views and wishes as at 25 November 2014 say that while she does not want to live with Mr Dupont at this time, she would like to see him once a month and possibly have overnight visits in the future.
Mr Dupont does not provide any information about his current relationship with his daughter, or contact visits, in his most recent statement. He takes the view that "one mistake" cost him his daughter (Exhibit A, p. 358) and says that he and Ms Dupont are "screaming out to have their daughter back". His evidence in the witness box was confused and contradictory on many issues, of which this is only one, but he told the court that he has re-established contact with C.
There have been recent contact visits, including a contact visit by the maternal grandmother and another relative of Mr Dupont's. No further affidavit material was provided by the maternal grandmother, although I was told she was present in court.
The legislation
As the plaintiff is a litigant in person, I propose to set out the relevant statutory provisions and the relevant extracts in the cases referred to by the other parties' legal representatives in detail.
The first issue is the relevant legislation to apply. The Child Protection Legislation Amendment Act 2014 (NSW) came into operation on 29 October 2014. Does the new legislation or the old apply?
I am indebted to counsel for the first defendant for his supplementary outline of 8 December 2014 in which he draws to my attention s 263 of that Act, which provides that Schedule 3 has effect in respect of savings, transitional and other provisions. Schedule 3, Part 10 of the Act deals with "Provisions consequent on enactment of Child Protection Amendment Act 2014" and does not refer to whether an appeal heard after the commencement of the amendments continues as if the amendments have not been made. In those circumstances, s 30 Interpretation Act 1987 (NSW) applies, in that the legislation cannot be retrospective; there is no contrary intention in the new legislation.
These proceedings were commenced, and this appeal lodged, before the amending legislation took effect. I am accordingly satisfied that these proceedings are governed by the Children and Young Persons (Care and Protection) Act 1998 (NSW), to which I have referred throughout as "the Act" and that the proceedings should be determined as if the Act had not been amended.
As its full title suggests, the Act is concerned with the care and protection of children and young persons. The objects, as set out in s 8, are:
(a)that children and young persons receive such care and protection as is necessary for their safety, welfare and well- being, having regard to the capacity of their parents or other persons responsible for them, and
(b)that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and
(c)that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment."
The second matter to note is the impact of the terms of the relief sought in the summons, and how this impacts upon the issues for determination. The plaintiff is "dissatisfied" with the entire decision of the magistrate, according to the summons filed (Exhibit A, tab 18). The magistrate's finding was that both B and C were in need of care and protection. Mr Moore submits, and I agree, I cannot make an order for parental responsibility and contact unless I am satisfied that C was in need of care and protection pursuant to s 71 and 72 of the Act.
Section 71 provides:
"71 Grounds for care orders
(1) The Children's Court may make a care order in relation to a child or young person if it is satisfied that the child or young person is in need of care and protection for any reason including, without limitation, any of the following:
(a) there is no parent available to care for the child or young person as a result of death or incapacity or for any other reason,
(b) the parents acknowledge that they have serious difficulties in caring for the child or young person and, as a consequence, the child or young person is in need of care and protection,
(c) the child or young person has been, or is likely to be, physically or sexually abused or ill-treated,
(d) subject to subsection (2), the child's or young person's basic physical, psychological or educational needs are not being met, or are likely not to be met, by his or her parents or primary care-givers,
(e) the child or young person is suffering or is likely to suffer serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which he or she is living,
(f) in the case of a child who is under the age of 14 years, the child has exhibited sexually abusive behaviours and an order of the Children's Court is necessary to ensure his or her access to, or attendance at, an appropriate therapeutic service,
(g) the child or young person is subject to a care and protection order of another State or Territory that is not being complied with,
(h) section 171 (1) applies in respect of the child or young person.
(1A) If the Children's Court makes a care order in relation to a reason not listed in subsection (1), the Court may only do so if the Director-General pleads the reason in the care application.
(2) The Children's Court cannot conclude that the basic needs of a child or young person are likely not to be met only because of:
(a) a parent's or primary care-giver's disability, or
(b) poverty.
(3) This section does not apply to or in respect of a contact order made under section 86 (1A) (b).
Note: The Children's Court cannot make a care order in circumstances to which section 75 (2) applies."
Section 72 provides
"72 Determination as to care and protection
(1) A care order in relation to a child or young person may be made only if the Children's Court is satisfied that the child or young person is in need of care and protection or that even though the child or young person is not then in need of care and protection:
(a) the child or young person was in need of care and protection when the circumstances that gave rise to the care application occurred or existed, and
(b) the child or young person would be in need of care and protection but for the existence of arrangements for the care and protection of the child or young person made under section 49 (Care of child or young person pending care proceedings), section 69 (Interim care orders) or section 70 (Other interim orders).
(2) If the Children's Court is not so satisfied, it may make an order dismissing the application."
I also consider it necessary to make such a finding in relation to B, even though the appeal is not pressed, as the terms of the appeal appear to attack all findings.
Section 83 provides:
"83 Preparation of permanency plan
(1) If the Director-General applies to the Children's Court for a care order (not being an emergency care and protection order) for the removal of a child or young person, the Director-General must assess whether there is a realistic possibility of the child or young person being restored to his or her parents, having regard to:
(a) the circumstances of the child or young person, and
(b) the evidence, if any, that the child or young person's parents are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care.
(2) If the Director-General assesses that there is a realistic possibility of restoration, the Director-General is to prepare a permanency plan involving restoration and submit it to the Children's Court for its consideration.
(3) If the Director-General assesses that there is not a realistic possibility of restoration, the Director-General is to prepare a permanency plan for another suitable long-term placement for the child or young person and submit it to the Children's Court for its consideration.
(4) In preparing a plan under subsection (3), the Director-General must consider whether adoption is the preferred option for the child or young person.
Note: See section 10A(3)(e) in relation to adoption of Aboriginal and Torres Strait Islander children and young persons.
(5) The Children's Court is to decide whether to accept the Director-General's assessment of whether or not there is a realistic possibility of restoration:
(a) in the case of a child who is less than 2 years of age on the date the Children's Court makes an interim order allocating parental responsibility for the child to a person other than a parent-within 6 months after the Children's Court makes the interim order, and
(b) in the case of a child or young person who is 2 or more years of age on the date the Children's Court makes an interim order allocating parental responsibility for the child or young person to a person other than a parent-within 12 months after the Children's Court makes the interim order.
(5A) However, the Children's Court may, having regard to the circumstances of the case and if it considers it appropriate and in the best interests of the child or young person, decide, after the end of the applicable period referred to in subsection (5), whether or not there is a realistic possibility of restoration.
(6) If the Children's Court does not accept the Director-General's assessment, it may direct the Director-General to prepare a different permanency plan.
(7) The Children's Court must not make a final care order unless it expressly finds:
(a) that permanency planning for the child or young person has been appropriately and adequately addressed, and
(b) that prior to approving a permanency plan involving restoration there is a realistic possibility of restoration having regard to:
(i) the circumstances of the child or young person, and
(ii) the evidence, if any, that the child or young person's parents are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care.
(7A) For the purposes of subsection (7) (a), the permanency plan need not provide details as to the exact placement in the long term of the child or young person to whom the plan relates but must provide the further and better particulars which are sufficiently identified and addressed so the Court, prior to final orders being made, can have a reasonably clear plan as to the child's or young person's needs and how those needs are going to be met.
(8) A permanency plan is only enforceable to the extent to which its provisions are embodied in, or approved by, an order or orders of the Children's Court.
(9) In this section,
"parent", in relation to the child or young person concerned, means:(a) the child's or young person's birth parent, or
(b) if the child or young person has been adopted-the child's or young person's adoptive parent."
The concept of "realistic possibility" is a twofold test, as the authorities referred to below make clear.
Thirdly, another relevant section to note is s 79(3), which directs my consideration to the issues in s 9(2)(c), as I must make a finding in relation to the Care Plan of 3 January 2014 (as updated by the addendum of 28 May 2014, concerning the change of place of residence of B and C's aunt).
Fourthly, when making orders in these proceedings, I must have regard to the impact of the orders sought (and made) about C in relation to B. Section 87 provides:
"87 Making of orders that have a significant impact on persons
(1) The Children's Court must not make an order that has a significant impact on a person who is not a party to proceedings before the Children's Court unless the person has been given an opportunity to be heard on the matter of significant impact.
(2) If the impact of the order is on a group of persons, such as a family, not all members of the group are to be given an opportunity to be heard but only a representative of the group approved by the Children's Court.
(3) The opportunity to be heard afforded by this section does not give the person who is heard the status or rights of a party to the proceedings."
Section 103 provides:
"103 Views of siblings
The Children's Court, at its discretion, may obtain and consider the views of any siblings of a child or young person with respect to whom proceedings are brought and must take account of the interests of any siblings in determining what orders (if any) to make in the proceedings."
The conduct of care appeal proceedings
This brings me to a discussion of the approach taken to the legislation by the courts. The first issue I should note is the different regime in relation to practice and procedure. Decisions in care proceedings are to be made consistently with the objects, provisions and principles provided for in the Act, which governs not only the substantive law to be applied in the proceedings, but the practice and procedure for their conduct. I have taken this feature of the legislation into account, which is of particular relevance in proceedings where a litigant in person is appearing.
I have endeavoured to assist the plaintiff by providing assistance and short adjournments where necessary. The three legally represented parties have provided assistance and advice to Mr Dupont during the hearing, as well as supplying copies, assisting him to have access to material under subpoena, and explaining the procedures involved. One such example was Mr Dupont's request that Ms Tyrell, the caseworker he required for cross-examination, be treated as an unfavourable witness. This was unnecessary because of the very different approach to evidentiary rules in these hearings, but it was also necessary to explain that even if those rules had applied, such an application was still unnecessary because Ms Tyrell was being cross-examined by Mr Dupont and was not his witness. These are matters that require full explanation for a litigant in person.
While the rules of evidence do not apply, and care proceedings are not to be conducted in an adversarial manner (s 93), basic rules of procedural fairness must play some part. This is particularly the case in relation to the second defendant, who withdrew her application before the court below, did not file an appeal or an affidavit in support of Mr Dupont's appeal, and was permitted to remain in court on the understanding that she would not be called to give evidence. It was only after I had canvassed these issues with the parties at the commencement of the hearing that I appreciated, from a statement to this effect in the unsigned statement in support of the application, that Mr Dupont was seeking restoration of the C to both himself and Ms Dupont.
To permit such an application to proceed on that basis would create considerable practical difficulties as well as potential unfairness. Ms Dupont did not provide an affidavit in the Children's Court, let alone in this court, did not present herself for cross-examination or provide information about her current circumstances and did not provide submissions.
Another difficulty has been how the court should deal with the absence of updating material and the sparse nature of the information in Mr Dupont's unsigned statement, which has inaccurate and scant information about his current living conditions, his proposals for the welfare and schooling of C, the arrangements for contact between B and C with each other and their mother and the steps he had taken to put himself forward as drug-free and responsible member of the community. All of this information had to be provided from the witness box in cross-examination and dealt with "on the run" by the other parties' legal representatives. As is set out below, much of that information is inconsistent with the affidavit filed by Mr Dupont in the Children's Court proceedings (including Mr Dupont's place of residence and relationship with Ms Dupont (see especially paragraph 34).
The case law
I have the benefit of a series of decisions of Marien SC DCJ and Johnstone DCJ, the former and current President of the Children's Court, which set out the correct approach to the relevant principles and factual issues. In Kestle, Susan v Director-General of the Department of Family and Community Services [2012] NSWChC 2 at [22], Marien SC DCJ stated:
"[22] The relevant legal principles to be applied upon an application for leave under s 90(1) of the Care Act were recently stated in Campbell [2011] NSWSC 761 by Slattery J. They may be summarised as follows:
(i) In determining whether to grant leave the court must first be satisfied under s 90(2) that there has been a significant change in a relevant circumstance since the care order was made or last varied.
(ii) The range of relevant circumstances will depend upon the issues presented for the court's decision. They may not necessarily be limited to just a 'snapshot' of events occurring between the time of the original order and the date the leave application is heard.
(iii) The change that must appear should be of sufficient significance to justify the court's consideration of an application for rescission or variation of the existing care order: S v Department of Community Services [2002] NSWCA 151.
(iv) The establishment of a significant change in a relevant circumstance is a necessary but not a sufficient condition for leave to be granted. The court retains a general discretion whether or not to grant leave.
(v) Having been satisfied that a significant change in a relevant circumstance has been established by the applicant, the court must take into account the mandatory considerations set out in s 90 (2A) in determining whether to grant leave.
(vi) The s 90(2A) mandatory considerations include that the applicant has an "arguable case" for the making of an order to rescind or vary the current orders.
(vii) An arguable case means a case "which has some prospect of success" or "has some chance of success".
(viii) In determining whether an applicant has an arguable case and whether to grant leave, the court may need to have regard to the mandatory considerations in s 90(6)."
Mr Moore drew my attention to the discussion of these principles in Department of Family and Human Services (NSW) re Day [2012] NSWChC 14. More recently, in DFACS (NSW) and the Colt Children [2013] NSWCHC 5, Johnstone DCJ, similarly explained the relevant principles and issues as follows:
"[146] The overriding principle is that the Act is to be administered under the principle that the safety, welfare, and well-being of the children are paramount (the paramount concern): s 9(1) of the Care Act 1998. That paramount concern governs not just administrative decisions, but judicial decision-making in care proceedings.
[147] This principle is the underpinning philosophy by which all relevant decisions are to be made, including decisions in care proceedings. It operates, expressly, to the exclusion of the parents, the safety, welfare and well-being of a child or young person removed from the parents being paramount over the rights or interests of those parents.
[148] It is now well settled law that the proper test to be applied is that of "unacceptable risk to the child": The Department of Community Services v "Rachel Grant", "Tracy Reid", "Sharon Reid" and "Frank Reid" [2010] CLN 1 per Judge Marien at [61]. Whether there is an "unacceptable risk" of harm to the child is to be assessed from the accumulation of factors proved: see Johnson v Page [2007] Fam CA 1235. This test of whether there is an "unacceptable risk" of harm to the child is the sine qua non for the application of the Act: see M v M [1988] HCA 68 at [25].
[149] Secondary to the paramount concern, the Care Act 1998 sets out other, particular principles to be applied in the administration of the Act. These are set out in ss 9(2), 10, 11, 12 and 13.
[150] These secondary principles include, for example, the following:
- Wherever a child is able to form their own view, they are to be given an opportunity to express that view freely. Those views are to be given due weight in accordance with the child's developmental capacity, and the circumstances: s 9(2)(a); see also s 10.
- Account must be taken of the culture, disability, language, religion and sexuality of the child and, if relevant, those with parental responsibility for the child or young person: s 9(2)(b).
- Any action to be taken to protect the children from harm must be the least intrusive intervention in the life of the children and their family that is consistent with the paramount concern to protect them from harm and promote their development: s 9(2)(c).
- If children are temporarily or permanently deprived of their family environment, or cannot be allowed to remain in that environment in their own best interests, they are entitled to special protection and assistance from the State, and their name, identity, language, cultural and religious ties should, as far as possible, be preserved.
- Any out-of-home care arrangements are to be made in a timely manner, to ensure the provision of a safe, nurturing, stable, and secure environment, recognising the children's circumstances and, the younger the age of the child, the greater the need for early decisions to be made s 9(2)(e). Unless contrary to the child's best interests, and taking into account the wishes of the child, this will include the retention of relationships with people significant to the children: s 9(2)(f).
[151] There is also a set of special principles of self-determination and participation to be applied in connection with the care and protection of Aboriginal and Torres Strait Islander children: ss 11, 12 and 13.
[152] The provisions of the United Nations Convention on the Rights of the Child 1989 (CROC) are capable of being relevant to the exercise of discretions under the Care Act 1998: Re Tracey [2011] NSWCA 43. Most, if not all, of the provisions in CROC have been incorporated into or are reflected in the Care Act 1998. The circumstances in Re Tracey were unusual and unique. The parties in the present matter made no submissions based on the Convention. There was, therefore, no suggestion that this court needed to take into account any provision in CROC such that there was some different requirement, some additional principle, or some gloss that required the court to have particular regard to in determining this case, such that I was required to go beyond the Care Act 1998 and the case law interpreting that Act and the relevant provisions, or in the consideration of the permanency planning proposed."
The term "runs on the board" has been used in the past to describe evidence of in relation to s 90. In Campbell, Re [2011] NSWSC 761 at [56], Slattery J stated:
"[56] Marien DCJ referred to this passage with apparent approval in this decision on 20 September 2010 in this matter. What Johnstone DCJ says in paras [13] and [14] is, in my view, with respect to his Honour, correct and is about all that can usefully be said about the expression "realistic possibility". It is going too far to read into the expression a requirement that an applicant must always at the time of hearing of the application for rescission or variation have demonstrated participation in a program with some significant "runs on the board". That in my view is to put a gloss on the words which are not in the legislation."
Whatever the terminology, there must be evidence of a realistic possibility of restoration. This expression has been explained by Johnstone DCJ in Re Saunders and Morgan & Anor v Department of Community Services (District Court of NSW, unreported) as follows:
"[11] I was unable to discover any judicial pronunciation on the meaning of a 'realistic possibility' of restoration. I was directed to the following passage in the submissions of Senior Children's Magistrate Mitchell to the Special Commission of Enquiry into child protection services in NSW:
"The Children's Court does not confuse realistic possibility of restoration with the mere hope that a parent's situation may improve. The body of decisions established by the court over the years requires that usually a realistic possibility be evidenced at the time of hearing by a coherent program already commenced and with some significant 'runs on the board'. The court needs to be able to see that a parent has already commenced a process of improving his or her parenting, that there has already been significant success and that continuing success can confidently be predicted.What is required can be likened to a prima facie case where absent some unforeseen and unexpected circumstance a safe and appropriate restoration will be possible in the near future".
[12] This passage has elements that resonate. With respect, however, to liken the determination to the concept of a prima facie case is alien to the fact that these are civil proceedings. It is also at odds with the natural meaning of the words themselves, and in my view a purposive and Aeficial construction of the legislation does not require such an onerous test.
[13] There are aspects of a 'possibility' that might be confidently stated as trite. First, a possibility is something less than a probability; that is, something that it is likely to happen. Secondly, a possibility is something that may or may not happen. That said, it must be something that is not impossible.
[14] The section requires, however, that the possibility be 'realistic'. That word is less easy to define, but clearly it was inserted to require that the possibility of restoration is real or practical. It must not be fanciful, sentimental or idealistic, or based upon 'unlikely hopes for the future'. Amongst a myriad of synonyms in the various dictionaries I consulted, the most apt in the context of the section were the words 'sensible' and 'commonsensical'."
In Campbell, Re [2011] NSWSC 761 at [57], Slattery J addressed the question of the time at which the possibility of restoration should be addressed:
"[57] Care Act, s 83(1) makes clear at what time the "realistic possibility" of restoration should be assessed. When the application for rescission or variation of a care order is before the court, it is at that time the court must assess "whether there is a realistic possibility" [Emphasis added]. It must not at the time of the rescission or variation application be merely a future possibility. It must at that time be a realistic possibility. But when leave to bring such an application is sought under s 90(1), as counsel for KC pointed out, the whole case for rescission or variation is not being presented now. On the leave application, the court can take into account the fact that the applicant's case is on a course which is likely to be supplemented with further evidence by the time the case gets to a hearing, once leave has been granted. I am mindful in this application that KC and SC have not been cross-examined."
The evidence
The proposed plan for C identifies the risks and safety concerns for her as:
"Drug Use
Mr and Mrs Dupont regularly used drugs (ice, pot) in the home and also allowed friends to use drugs in the home
Mr Dupont supplied A, sibling of B and C, with drugs (ice, pot)
Mr Dupont supplied drugs to his friends
Mr Dupont allowed A and his friends to use drugs in the home
Mr Dupont provide A and B with drugs for them to sell as a way to make money
B and C were exposed to physical and verbal domestic violence in the home including physical and verbal altercations between Mr Dupont and A and verbal domestic violence by Mrs Dupont." (Exhibit A, Tab 2)
Statements were taken from C. There was a rapid escalation of events between the first of these statements (17 July 2013) and the second (29 July 2013) due to A being admitted to a hospital psychiatric emergency care centre after experiencing drug induced psychosis. On 20 July 2013 a safety assessment response team considered the children were "safe with plan".
What is the explanation for this apparent sudden change? Mr Dupont submits that C was coached by care workers, who preferred to take the children away rather than comply with their legislation-based obligation to keep families together, and relies on her statements as proving this. The defendants, noting the absence of a Children's Clinic report, urged me to examine what C said, in the context of the questions being asked, and to have regard to the surrounding circumstances, particularly A's admission to hospital.
Statements made by C
C was interviewed on two occasions, the first of which was on 17 July 2013.
Interview at C's Public School 17 July 2013
This interview started with a description of "who lives at home". This included Mum, although C was "not sure where she is", Dad, who was described at being "@ friends", a brother who was "mostly at home" and B, who was described as being "@boyfriend's" (B is described elsewhere as "never at home, @ D's home in Scone, he is nice"). C put herself last, describing her home as "Aunt BB; lives in Scone. Going home to my house today, but Aunt BB may come to pick me [sic]. Mainly Aunt BB's. Either Mum or Dad picks me up or I go home with my friend. - going home on Friday - E for sleepover."
When describing her day, C refers to both her parents and Aunt BB performing a variety of tasks, but it is clear that Aunt BB is the primary carer. If her parents are not home "I will go to Aunt BB's"; this is her decision to make.
C was asked to describe three houses. First, she gives a glowing description of Aunt BB's house.
Although referring to her own home as "brand new" and having a large television, the second house (her home) is described as having "worries and sad [sic]", where people were "mean" and where there were fights between her father and her elder brother A. Most of all, nobody is at home. Mr Dupont is "out with mates @ the pub". If he is gone for longer than a day he will take her, or she will go to Aunt BB, unless her mother is home. She notes "I miss dad" but goes on to say she feels "ignored" by everyone in the second house.
The third house is her dreams and hopes, and these include boarding school (as she would "be fine away from home as I can come home on weekends"), Harvard University to be a doctor or teacher, and to "see Dad, Mum and B at home more".
The picture is painted of a lonely child whose primary attachment is to her Aunt BB. There is no reference to drugs which, given their prevalence in the home, seems surprising, a factor relied upon strongly by Mr Dupont.
Interview 29 July 2013 Sarah Tyrrell and Renee Birkett
The central issues covered in this interview are summarised in paragraph 26 of Sarah Tyrrell's affidavit of 18 September 2013 (Exhibit A, p. 24). It starts with a note that she has talked about her family before and listing the family members (including Aunt BB) (Exhibit A, p. 88).
C states that her mother and father "smoke bongs and pipes. I've seen them. I see them when they smoke it at home on the couch or walk into their room." She describes the "pipe" her father smokes as "glass, long, has a round ball thing, brown water". She thought her mother had a pipe too.
C was asked how she knew that this was a pipe. She replied that she "just know when I was little, went up to Dad and asked what's that, he said a bong but don't tell anyone, it's illegal". She adds "he quit smoking bong a few months ago and started smoking pipes", but the pipes in question are those described above. The pipe, "pot" and "everything" was kept hidden in the safe when they went away on holidays.
C went on to say that "Dad's getting more in (pipes) bringing them fr[om] the shop. Cigarettes. Tells me I can sell some stuff. I can make stuff + he'll sell it." "How often pipe?" is the questioner's note. The answer is "partly illegible but includes "have one every day"".
When asked who else was at home she replied, "hard to say" but added "my friends not allowed to stay". She describes limited interaction with Mr Dupont, such as an occasion when her father and a friend were in her father's room. She asked her dad "when are you going to cook dinner?" He replied "in a minute" but she says this "is an hour later".
C says that last school term, she stayed with Aunt BB. In Term 1 she stayed "half time", apparently dividing her time between Aunt BB and her own home.
The conflict between A and Mr Dupont is described at length. She refers to occasions when A is so angry he punches a hole in the wall. The last four pages of notes, nearly half the interview, describe how her mother and father "yell and fight" with A "punching". She says "it's like they don't realise", "going psycho" "going off not very pretty", "don't pay attention". She describes sleeping on the couch (as her room was being painted, according to Mr Dupont) but, more importantly, says:
"I'll be up till 2 in the morning + then they'll start yelling + I'll not get to sleep until 5 am."
Many of the conflicts between A and his father are about drugs. He asks his father for a bong and his father refuses; the last time was "probably the last time I was there". She is just relieved that A is taking out his rage by punching the house and not the people in it. Meanwhile, "Mum just sits around being an extra". Her mother "doesn't like fighting but sure can pick a fight".
C knows that drugs are illegal. The interview records that, when she asked her father about the bong he used, he told her "don't tell anyone, it's illegal". Her concern about her brother A's drug problem dominates the interview. I am satisfied that C knows drugs are not only illegal but dangerous, and that her concerns about A have led her to disclose what she was previously keeping to herself, namely her parents' and brother's drug problems. Previously, these were secrets that she was keeping to herself and would not confide to an adult in authority.
Interview 3 March 2014
C was interviewed on 2 March 2014 by the triage nurse following her admission to hospital with stomach pains (Exhibit D). The triage nurse notes C's aunt "suspects that the pain first appeared in relation to the pending contact [C] is to have with her father." (Exhibit D, page 5). The triage nurse notes that C is "very dependent on her Aunt - needs to know she is around", "lives with her Aunt and big sister (16); gets along well with her sister" and "loves her school friends". By contrast she "finds the thought of and actual visits with her parents very stressful - happens once a month." (Exhibit D, page 6).
Her past life with her parents is described as:
"Lots of trauma and abuse
-been involved in drug runs
-police raids
-strip searching in the middle of the night
-went into a house with her dad once and someone had cut off a finder and put it in a jar on the mantelpiece - seen by C
-both parents are drug abusers."
This interview again shows C discussing her observations of the impact of drugs on her family lifestyle, although on this occasion she has referred to the criminality rather than the violence. This may result from the form of questioning, or a greater degree of confidence by reason of the questions coming from a nurse. What is clear, however, is that C has been exposed not only to drug taking but to criminal activity related to drug taking.
Comparison of the interviews
Mr Dupont asks me to compare the first two interviews, asserting that this will demonstrate that C was coached. He did not refer to the third interview, so I have considered his submissions in relation to the first two interviews only.
Both interviews paint a picture of an intelligent and observant girl who feels lonely, sees her home life as sad and whose primary attachment is to her aunt, who is clearly the caregiver responsible for her daily wellbeing.
The absence of references to drugs in the first interview is not, in my view, because she has not noticed the extensive drug use by both her parents and, in more recent times, by A. She is clearly deeply concerned about the impact of drugs on the members of her household, particularly in relation to the violence and arguments drug use inevitably lead to.
Contrary to Mr Dupont's submissions that she rarely if ever saw him use drugs, and that these drugs have no effect on him, I am satisfied that C has seen both her parents administer drugs to themselves on a regular basis as well as the consequential deterioration of their behaviour, including violence and arguments, and that these are matters of great distress to her. She is also, however, well aware that drug use is illegal and that she should not talk about it.
Two of the references to C's daily life are particularly illuminating. In both interviews she refers to being sad, alone and left alone, as well as not being listened to. In the second interview, she refers to being hungry and of asking her father when dinner will be, but that an hour later there is still no dinner.
Mr Dupont said in his submissions to me that children should be fed at regular meal times, and not when they feel hungry. He saw this as evidence of his good parenting. He reminded me that the school had agreed that C was eating properly (in that her aunt was attending to this). He also argues that C never needed psychiatric assistance, enjoyed excellent health (and weight) and never had emotional problems prior to 29 July 2013.
However, this submission is contradicted by the report of Dr Nick Kowalenko, the Child & Adolescent psychiatrist who saw C on 4 November 2014. He confirms that she has gained "a significant amount of weight", namely 11 kilograms, since coming into care, and there is no suggestion that any of this weight is unhealthy (Exhibit D).
He also paints a picture of a child who suffers long-term, not short-term, from anxiety and from hypervigilance, and would hide if anyone unexpected knocked at the door. Her stomach complaints "escalated dramatically during and following an unscheduled visit by her biological father" (Exhibit D, page 15). Dr Kowalenko considers she has symptoms consistent with chronic PTSD and recommends that both her aunts participate in the "comprehensive management plan" to help C develop coping skills. He concludes:
"Please consider the impact of visits by her biological father on her protective planning care plan as it seems it is contraindicated"
(Exhibit D, p. 16)
I was not addressed as to whether this was an option in relation to the Care Plan. As is set out below, I consider the current form of the Care Plan and Amended Care Plan are sufficient, but clearly ongoing monitoring may be required.
The plaintiff's proposals
Mr Dupont points to the absence of criminal convictions prior to 2013, a prior 13-year work history in a responsible position, and the clean and tidy state of his home prior to 29 July 2013 as signs of his parenting ability and responsible lifestyle. He notes that claims that C had nits in her hair, or was hungry, have been denied by the school; in fact, she was being provided with breakfast and lunch by her aunt BB at the time, and was able to go to her home when there were difficulties or her parents were away. He was certain she had never seen his drug use (or at best only once or twice). He submits she has been coached or bullied into giving the information she gave to the first defendant's staff. He placed great emphasis on the difference between the first and second interviews (see above) as proof that she had been coached. Her place is with her parents and, once she has been restored to them, they can look for a place to rent to live together as a family. Mr Dupont was certain that his mother would help financially, and additionally he was about to receive an inheritance of $70,000 which he could use to pay for his daughter to attend boarding school.
The first difficulty for Mr Dupont is that he has been a heavy drug user since he was 15, taking ice twice a day, in circumstances where he has worked, driven vehicles and cared for the children while in a drugged state. His affidavit in the Children's Court proceedings identifies a series of drug and alcohol treatments. These include:
(a)His engagement in the Stimulant Programme at Newcastle (see the letter from Julie Humphreys dated 29 April 2014 which is annexure "A" to his affidavit);
(b)The list of treatment set out in his affidavit (Exhibit A, p. 285)
(c)His participation in a clinical research protocol at Hunter New England Health Services in November 2013 (Exhibit A, p. 203).
However, Mr Moore and the children's representatives submit that there is no evidence either Mr Dupont or Ms Dupont have participated in a full drug rehabilitation programme, without which long-term recovery from chronic drug dependency of many years would be unlikely. Although Mr Dupont says he is drug free, the psychologist he was consulting, Clayton Rogers, stated in a report dated 21 September 2013 to Mr Dupont's general practitioner that Mr Dupont "has relapsed into using plus now gambling on poker machines which he was doing just prior to our 6th session on 11 .09.2013" (Exhibit A, p. 271). Even if the plaintiff is currently drug free, the stress of resumption of his relationship with Ms Dupont, finding and setting up a new home and caring for a child who has not been living with him for an extended period would be sufficient to raise the potential of relapse.
Next, there is the question of how C's removal from her aunts and her siblings will impact upon her. Mr Dupont is prepared to make arrangements for C to visit B, her aunts and other family members whenever she wants, and to drive her to and from these visits. Given the intemperate and derogatory way in which he referred to both A and B as liars and junkies, the threatening tone of his text messages to Aunt BB and his complaints about the whole of Ms Dupont's family, I consider this unlikely. He put forward no precise proposal beyond saying that C could visit whenever she wanted.
The continued close relationship between B and C, who live together with their aunt, and whose good relationship is noted in the medical records in Exhibit D. I have taken that into account in the manner explained in ss 89 and 103 of the Act. Aside from some derogatory remarks at the end of his submissions, Mr Dupont made no challenge to the adequacy of the aunt who is currently caring for B and C, and who moved from the Northern Territory to Newcastle to do so. All of the evidence points to the aunt currently caring for B and C, as well as Aunt BB, as having built close and loving relationships with both children.
C would also lose her school friends. Mr Dupont acknowledges that if she lives with him, this would also require C to start at a new school, but submits that this would not be a problem as she would start there in the 2015 school year. However, both the triage nurse (in her interview on 2 March 2014) and Dr Kowalenko refer to the importance of C's schooling and love of her school friends. It is only a small point, but taking C away from her current school, where she is settled, would be a significant wrench for her.
Another significant problem for Mr Dupont is that, since July 2013, whatever steps he may have taken to end the drug addiction from which he has suffered for most of his teenage and adult life, the psychologist interviewed by Probation and Parole made it clear Mr Dupont had yet to resolve his gambling and mental health issues (Exhibit A p. 151) as well as casting doubt on whether he was drug free. Additionally, Mr Dupont has sunk further into the drug subculture by working for a brothel and associating with "ladies" not only by driving them to appointments but by accommodating their activities in the hotel room he rents. He told the court that the hotel room was used by the sex workers, clearly in circumstances where his role is not only as the driver of the vehicle but the provider of the accommodation where the transactions took place.
Finally, and most importantly, the plaintiff has made no efforts to establish a settled home for himself, let alone for his daughter. As is set out above, the evidence of the plaintiff and his mother to the Children's Court that C could be, and would be, living with her father at his mother's home was false even at that time. I note the plaintiff has told counsellors and others (such as Hunter New England Health - Exhibit A, p. 255) that while his "short term" plan was to have C living with him at his mother's home, his long-term plan was for himself and Ms Dupont "to live together with daughter".
Additionally, Mr Dupont's mother has had very little contact with her own son, let alone C, according to the observations of Cheree McGrath, the Community Corrections Officer at the Newcastle office of Corrective Services, who noted the following in her report on Mr Dupont:
"The offender's mother had been interviewed during the preparation of this report; she however was unable to confirm any information regarding her son as she has not had contact with him for several years. She knew little about the circumstances regarding the children being removed from the offender's case and/or her son's prior choice of lifestyle." (Exhibit A, p.151)
Mr Dupont acknowledged that for the past 7 or 8 years, his contact with his mother had been limited to Christmas visits, as they had lived some distance apart. However, his mother had had a contact visit with C recently, and this had gone well.
I doubt that Mr Dupont is in fact living with his mother, or getting on with her as well as he claims. According to the information Mr Dupont supplied to Ms McGrath at the date of her report, he had been living with his mother since his release from custody on 8 October 2013. He told the court that this was where he was living now.
However, this evidence is inconsistent with the Hunter Health Service Records, obtained under subpoena for the period August - October 2014 (Exhibit C), which set out that Mr Dupont was "currently renting a room in a hotel at Hamilton - works better for his relationship with his mother. They regularly have dinner together" (entry for 4 September 2014 meeting). He and Ms Dupont were "getting on well"; she had Housing Australia accommodation in Muswellbrook. The entry for 2 October 2014 describes him as "still renting a room in a hotel at Hamilton - getting on well with mother" and "Getting on better with [Ms Dupont]". This is suggestive of ongoing relationship problems between Mr Dupont, his mother and Ms Dupont.
The plaintiff was asked whether he was in fact renting a hotel room at the Bennett Hotel, Hamilton. He denied saying this, but then stated he only retained it for occasional use when he was working late at night. (The late night work was his activities driving sex workers to their assignments). He told the court he had dinner with his mother once a week, and said that he could not stay in her home more often than that because he was so distressed by these proceedings. He would stay with a friend on many of these other nights. This suggests that not only does Mr Dupont not live with his mother, but that he does not get on well with her. Other remarks Mr Dupont made about his mother during the evidence and submissions, such as her telling him that he could not live permanently in the over-55-years villa development in which she resides (which he said was untrue) confirm this.
Mr Dupont agreed in cross-examination that he had a job driving "ladies" to and from their jobs once or twice a week, and that these ladies also used the hotel room to ply their trade as sex workers. At one stage Mr Dupont had been the receptionist at the brothel for which these "ladies" worked; he denied ever working as a sex worker. At first he had been paid for this work but now he did it without charge.
Mr Dupont is currently completing a home study course in online business management, which he hopes to finish in February 2015. He said that this requires him to study approximately 20 hours a week. This would not prevent him from seeking at least part time employment, with the aim of setting up a home for himself and C in the future, but he has not done so. He proposes to make plans for C's welfare only after she is returned to his care.
The court cannot be satisfied, given the total absence of planning and the provision to the court of misleading information, that there is any prospect of restoration to Mr Dupont's care. The kind of evidence generally shown to the court - photographs of the proposed home, supporting material from family members and details of school arrangements - is entirely missing. While the phrase "runs on the board" is no longer used, it was an apt description of the need for a parent to demonstrate to the court that the issues which had led to the child's removal had been attended to. In the present case, not only have those issues not been attended to, but Mr Dupont's living, work, family and social circumstances have materially worsened.
Individually, each of these issues would be sufficient for a court to be of the view that there is no reasonable prospect of restoration. Combined, these issues render any such application by Mr Dupont hopeless. The angry and upbraiding tone he took to everyone in the courtroom (including the members of the legal profession), the insulting contents of his "affidavit" and attached request for a long list of people (including A) to be cross-examined about their "lies" and his general demeanour in the witness box tended to confirm that Mr Dupont not only has no plans for C but that his anger and vindictiveness towards family and care workers could mean, if she were restored to his care, that she would be more seriously at risk now than at the time of the original removal.
An example of this has been the anger and hostility Mr Dupont has shown to C's siblings, and particularly to her sister B, since these events occurred. This brings me to the text messages he sent to B during the hearing.
Messages sent by Mr Dupont to B
Mr Dupont sent two SMS messages to B on the evening of 2 December 2014, prior to his closing submissions. The text of these messages was provided by B to the aunt with which B and C currently live, and she has sent them to Mr Moore.
The contents are of concern. The first of these states:
"U no that thanks to ur bull shit stories that u said and all this crap about not wanting to be separated from [C], witch u no would never happen, u may hate me but i stil love u and would always have a place for u and never stop u from seeing [C], will mean that ur sister will never see me again cause I'm not going To see her if I can't have her bac with your mum, so have a quick think cause today is your last chance to make it happen look at your sister and ask her if she wants what use have now or come home cause after today j will be gone for ever and u need to think about some of the things u said, when was the last time use had a holiday and got the stuff that u needed, and I'm the only one who was ever their for u kids threw to the end and u stabbed me in the bac I understand y but now I don't understand y u would hurt me so bad that u arnt seeing what it going to do to [C], I'll letvu be the one to tell her that she won't ever see me again. Tell her I love her and I love u 2 good luck and keep her safe she is going to need u now u will be all she has. Xxxooo court starts at 10 use this to help or destroy me some more, I'm glad u speaking to mum again she is going to need u 2"
The second SMS reads:
"Say goodbuy to [C] for me cause I won't ever see her again hope I u don't really move out next year and stay close to her, and take a page from your own book and hey off the drugs cause u r no better than we r and u wanna hope pete stays away from your sister u no he is a total sleeze"
Mr Dupont became angry and abusive that this had been discovered. Ms Rutkowska, the representative for C, made submissions about these messages as follows:
"Clearly C in her last conversation with me indicated that she would like to see her father and I have ask him if they going to be guide by C's wishes and the response was "yes". In my view, given what C is saying and her attitude and her wishes, if she was not to see the father that would be of great harm to her. And your Honour I have something to say about this message. This message was sent yesterday. It clearly says "I let you be the one to tell her that she won't ever see me again". That message was sent in the circumstances that B is 16 years old girl and she has a right not to know what to do with message like that. She could have easily passed that message to C and it's passing responsibility for 16 years old child and blaming her what's happened in the school. That goes directly to my submissions to your Honour about complete lack of insight regarding the needs of C and what is in her best interest. And I am concerned, I'm hoping she was not told about this message but it has been done. It's in writing and the damage could have been done or even before we came before your Honour and this is clearly irresponsible. This is also going to the issue of whether or not contact should be supervised because there were concerns that the father might discuss with the child the issues and in a way that's going to emotionally harm her, and given her diagnosis and given her issues of anxiety and stress, that would not be in C's best interest to have to deal with the father who can't deal with his own emotions and the way that he's expressing them."
Although there was no transcript for these proceedings, I asked for the transcript of her remarks to be taken out. I adopt and agree with her submissions that Mr Dupont shows a complete lack of insight regarding the best interest of C. For a parent, or stepparent, to send angry and abusive messages to a teenager in this fashion is irresponsible and capable of causing emotional distress of the most damaging kind.
I have given consideration as to whether, in those circumstances, the Care Plan and Amended Care Plan sufficiently protect C's interests, and it is to these considerations that I now turn.
The Care Plan
The Plan is set out in Exhibit A at tabs 13 and 14 and consists of two documents dated 3 January and 28 May 2014.
The only submission Mr Dupont made in relation to the Care Plan was that he did not wish to have any contact with C if she was not returned to his care; he simply wished to see her one last time so that he could say goodbye to her. That is also effectively what he said to B in the text messages set out above.
I agree with Ms Rutkowska that, like the contents of the text messages set out above, this is an irresponsible proposal, and likely to cause harm and distress to C.
Mr Dupont made allegations about both Aunt BB and the aunt currently caring for B and C which are without any evidentiary basis and which I shall not therefore examine.
By reason of Mr Dupont's failure to make any other proposals about the Care Plan, I shall restrict my observations to stating that it is a comprehensive and sensible set of proposals which will ensure the welfare of C, and that I have no hesitation in approving it, as long as care is taken to ensure that C's wishes are respected, and the plan amended in the event of continued aggressive or manipulative behaviour by Mr Dupont.
Conclusions
Having regard to ss 71 and 72 of the Act, and to the nature of the relief sought in the Summons of 23 June 2014, I cannot made an order for parental responsibility and contact in accordance with the proposed Care Plan unless I am first satisfied that C was in need of care and protection at the time of the order appealed from being made, and that she continues to be in need of care and protection.
As a result of the orders appealed from, both B and C were placed under the responsibility of the Minister, albeit under separate orders. I am satisfied, on the evidence available, that at the relevant time, C was in need of care and protection under both s 71(1)(d) and (e). Although it is not necessary for me to do so, for more abundant caution, I also note that the child B was in need of care and protection under these provisions.
My reasons for the making of these findings are the conclusions of fact set out above, namely the serious risk to both children from the pervasive drug culture, exposure to family violence, dysfunctionality and neglect in the family home both before and after the time that the children were taken into care.
As I am satisfied that the circumstances of B and C at the time of removal warranted the making of the orders, and that the Care Plan of 3 January 2014 (and the addendum dated 28 May 2014) satisfactorily address permanency planning by providing for C to live with her aunt (Aunt AA), I propose to dismiss the appeal and confirm the orders on that basis.
Orders
(1)The appeal by the father filed on 23 June 2014 in relation to C Dupont ("C") (date of birth 2 March 2004) is dismissed.
(2)Pursuant to section 79(1)(b) of the Children and Young Persons (Care and Protection) Act 1998 ("the Act"), and noting the recitals set out below, parental responsibility for C is allocated to the Minister for Family and Community Services until she attains the age of eighteen (18) years.
(3)The parties have liberty to bring in Short Minutes of Order reflecting the terms of these orders and the recitals set out below if so required.
(4)Liberty to apply in relation to the form of orders set out above.
Recitals
(a)Pursuant to section 80 of the Act the Court has considered the Updated Care Plan for C.
(b)Pursuant to section 83(5) of the Act, the Court accepts the assessment of the Director-General that there is no realistic possibility of restoration of C to the care of her father Mr Dupont.
(c)Pursuant to section 83(7) of the Act, the Court finds that permanency planning for C has been appropriately and adequately addressed in the Care Plan and Amended Care Plan dated 3 January and 28 May 2014 respectively.
(d)Pursuant to section 79(3) of the Act, in making the orders as set out above, the Court has given particular consideration to the principle in section 9(2) (c) of the Act and the Court is satisfied that any other order would be insufficient to meet the needs of C.
(e)Pursuant to ss 89 and 103 of the Act, in making the orders as set out above, the Court has had regard to the provisions of ss 89 and 103 of the Act concerning the welfare of the relevant other persons.
**********
0
5
4