J&T v Department of Communities and Justice (No. 2)

[2023] NSWDC 117

District Court

New South Wales

Medium Neutral Citation:	J&T v Department of Communities and Justice (No. 2) [2023] NSWDC 117
Hearing dates:	26 April 2023
Date of orders:	26 April 2023
Decision date:	26 April 2023
Jurisdiction:	Civil
Before:	Judge Levy SC
Decision:	See paragraph [14] for orders and Appendices I and II for undertakings
Catchwords:	CHILD CARE APPEAL – final orders facilitating restoration of the children to their parents
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 9 and 65
Cases Cited:	J&T v Department of Communities and Justice [2023] NSWDC 78
Category:	Consequential orders
Parties:	J (First plaintiff - mother) T (Second plaintiff - father) The Secretary, Department of Communities & Justice (Defendant) Ms V Taylor (Independent Legal Representative for the children the subject of the appeal)
Representation:	Counsel: Plaintiffs in person Ms J Wong (Defendant, The Secretary) Ms V Taylor (Independent Legal Representative for the children the subject of the appeal) Solicitors: Plaintiffs – no solicitors – self-represented The Crown Solicitor (Defendant) Ms V Taylor (Independent Legal Representative for the children the subject of the appeal)
File Number(s):	2022/149623
Publication restriction:	Non-publication order made pursuant to s 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW)

Judgment

1. These child care appeal proceedings were heard in Newcastle between 13 and 24 March 2023. Judgment was delivered on 31 March 2023: J&T v Department of Communities and Justice [2023] NSWDC 78. The allocated litigation pseudonyms identified in that decision continue to apply.

2. The effect of that decision was to uphold the appeal by the parents for the restoration of the two subject children, females aged 2 years 8 months and 18 months, into parental care, in contrast to the Departmental proposal for adoption.

3. The matter is listed today for Final Orders in accordance with Amended Care Plans which have been prepared in conformity with the principal decision published on 31 March 2023 as cited above.

4. The proposed Amended Care Plan for the child “D” is marked Exhibit “A” on this application. The proposed Amended Care Plan for the child “K” is marked Exhibit “B” on this application.

5. Those Amended Care Plans were prepared following a further Dispute Resolution Conference convened pursuant to s 65 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Care Act”).

6. The residual matter at issue between the parties is the duration of time that should elapse before the children can be restored into full-time parental care. The Department’s proposal, supported by the children’s Independent Legal Representative, is for a 5 month transition period, whereas the parents have suggested that transition period be halved.

7. The essential basis for the parental position is that at the twice weekly contacts, the children have shown separation distress towards the end of these visits and the present arrangements do not permit contact with the extended family members and an older half-sibling on the paternal side who resides in the family home.

8. It is entirely understandable that the parents hold the anxious desire a more accelerated programme for restoration. The child “D” was removed in hospital four days after birth and the child “K” was removed in hospital immediately following birth. The trajectory of circumstances between those events and the decision for restoration has been marked by considerable parental upset and frustration, for which they have every sympathy.

9. However, the interests and the requirements of the parents must be seen to be secondary to the mandatory paramount consideration of the safety, welfare and well-being of the children: s 9(1) of the Care Act. In such circumstances, the consideration of the Court must proceed with due caution, particularly as in this case the children have never been in the care of the parents, and where the children have had a series of changes in their care arrangements. Their need for stability must therefore be given due weight.

10. At present, after a brief interruption following the hearing, the children continue to see the parents twice weekly. That arrangement is planned to continue with increasing duration and lessening supervision as the time for full restoration approaches.

11. The proposed arrangements are satisfactory to Ms Taylor, the Independent Legal Representative for the children. She has satisfactorily outlined the circumstances where the independent agency, Uniting Newpin, which is involved in implementing the restoration, is able to act in conjunction with the Department in a flexible manner so that if, along the timeline for full restoration, it appears that the process can be accelerated, there is scope for this to be achieved. In that regard, it is noted that, if necessary, there is scope for an application to be made to the Court if further facilitative orders are required.

12. In balancing the respective interests, I am satisfied that the proposed Amended Care Plans put forward by the Department, as supported by the Independent Legal Representative, are reasonable, and should be approved on the basis of the parental undertakings which are the subject of agreement.

13. The undertakings required of each parent are reasonable in the circumstances of this case. They appear as Appendix I and Appendix II to these reasons.

Orders

14. The Court orders that:

1. Pursuant to section 79 of the Children and Young Persons (Care and Protection) Act 1998 (“the Act”), all aspects of parental responsibility for D and K are allocated to the Minister for Families and Communities (‘the Minister’) for a period of 9 months.

2. At the conclusion of Order 1, all aspects of parental responsibility for D and K are allocated to the parents J and T.

3. At the conclusion of Order 1, pursuant to section 76(1) of the Act, D and K are placed under the supervision of the Secretary of the Department of Communities and Justice commencing 26 January 2024 and ending 26 October 2025.

4. Pursuant to section 82 of the Act, the Secretary of the Department of Communities and Justice is to provide two reports to the Court at four months (on or before 26 August 2023) and (8) eight months (on or before 26 December 2024) concerning the suitability of the arrangements for the care and protection of D and K, including but not confined to, the following issues:

1. an update on the progress of restoration of the children D and K to the care of their parents;

2. an update of D and K’s health, education and development;

3. an update on the parent’s engagement with Newpin and other support services;

4. any other relevant information.

5. Pursuant to section 76(4) of the Act, the Secretary of the Department of Communities and Justice is to provide a report to the Court at eleven months (on or before 26 September 2024) after the commencement of the supervision order addressing the following issues:

1. The outcome of the supervision; and

2. Whether the purpose of supervision has been achieved; and

3. Whether there is a need for further supervision in order to protect D and K; and

4. Whether any other orders should be made to protect D and K.

6. Pursuant to section 73 of the Act, the Court accepts the undertakings attached to these orders from the parents J and T, for the periods specified in the undertakings.

7. The exhibits tendered at the hearing are to be retained with the court file pending any further orders of the Court.

Notation

15. It is noted that these orders will take effect once the parties have signed the undertakings which are the subject of Appendices I and II, such undertakings to be given within 7 days of today’s date.

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APPENDIX I

Undertakings of the mother

The undersigned parties give the following undertakings to the District Court of New South Wales until the conclusion of supervision pursuant to section 76 of the Children and Young Persons (Care and Protection) Act 1998:

1. To accept the guidance and reasonable directions of the Secretary of the Department of Communities and Justice (“the Secretary”) or his delegates (noting Barnardos is the delegated agency with case management).

2. To engage with therapeutic restoration service Uniting Newpin or any other service as recommended by the Secretary or his delegates.

3. To attend and complete any courses recommended by Uniting Newpin and/or the Secretary or his delegates.

4. To continue with counselling, in particular counselling until assessed as unnecessary by health providers engaged with service provision.

5. To permit the Secretary or his delegates reasonable access to the home where the children reside for the purposes of visits (both announced and unannounced), casework support and review and monitoring of the children in their home, including being able to speak with the children individually and/or alone.

6. To keep the Secretary or his delegates updated with contact details, including telephone contact numbers and address details.

7. To provide authorities and permit the Secretary or his delegates to speak with the mother’s mental health treaters, including but not limited to her counsellor.

8. To attend and participate in random urinalysis testing as directed by the Secretary or his delegate.

APPENDIX II

Undertakings of the father

The undersigned parties give the following undertakings to the District Court of New South Wales until the conclusion of supervision pursuant to section 76 of the Children and Young Persons (Care and Protection) Act 1998:

1. To accept the guidance and reasonable directions of the Secretary of the Department of Communities and Justice (“the Secretary”) or his delegates (noting Barnardos is the delegated agency with case management).

2. To engage with therapeutic restoration service Uniting Newpin or any other service as recommended by the Secretary or his delegates.

3. To attend and complete any courses or counselling recommended by Uniting Newpin and/or the Secretary or his delegates.

4. To permit the Secretary or his delegates reasonable access to the home where the children reside for the purposes of visits (both announced and unannounced), casework support and review and monitoring of the children in their home, including being able to speak with the children individually and/or alone.

5. To keep the Secretary or his delegates updated with contact details, including telephone contact numbers and address details.

6. To attend and participate in random urinalysis testing as directed by the Secretary or his delegate.

Decision last updated: 26 April 2023