Jarrah and Neason and Anor

[2016] FamCAFC 213

FAMILY COURT OF AUSTRALIA

JARRAH & NEASON AND ANOR [2016] FamCAFC 213

FAMILY LAW – APPEAL – CHILDREN – Where the mother and father appeal from orders that the Minister of the Department of Family & Community Services (NSW) have sole parental responsibility for the children and determine where the children live – Assessment of risk – Whether there was sufficient evidence before the primary judge to support a finding that it would be in the best interests of the children to be placed under the sole parental responsibility of the Minister – Out of home care arrangements per Part 8 Children and Young Persons (Care and Protection) Act 1998 (NSW) – Whether children denied the right to enjoy Aboriginal culture – No error established – Appeal dismissed – No order as to costs.

Children and Young Persons (Care and Protection) Act 1998 (NSW): ss 13, 79(6)
Family Law Act 1975 (Cth): ss 60CC(2), 60CC(3), 60CC(3)(h), 60CC(6)

Director-General of the Department of Human Services (NSW) & Tran and Anor (2010) FLC 93-443
Faulkner and McPherson v Rugendyke; Department of Community Services (Intervener) (1995) FLC 92-630
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499

APPELLANT/CROSS RESPONDENT: Mr Jarrah

FIRST RESPONDENT/CROSS APPELLANT: Ms Neason

SECOND RESPONDENT/INTERVENOR: Secretary, Department of Family & Community Services (NSW)

INDEPENDENT CHILDREN’S LAWYER: Mark MacDiarmid Family Law Specialist

FILE NUMBER: PAC 287 of 2012

APPEAL NUMBER: EA 56 of 2014

DATE DELIVERED: 4 November 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan, Aldridge & Kent JJ

HEARING DATES: 17 February 2016;
8 April 2016

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 10 April 2014

LOWER COURT MNC: [2014] FamCA 239

REPRESENTATION

FOR THE APPELLANT/CROSS RESPONDENT: Mr Jarrah in Person

FOR THE FIRST RESPONDENT/CROSS APPELLANT: Ms Neason in Person

COUNSEL FOR THE SECOND RESPONDENT/INTERVENOR: Mr Anderson

SOLICITOR FOR THE SECOND RESPONDENT/INTERVENOR: Crown Solicitor’s Office

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr MacDiarmid, Mark MacDiarmid Family Law Specialist

Orders

1. The appeal be dismissed.

2. The cross appeal be dismissed.

3. There be no order as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jarrah & Neason and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 56 of 2014
File Number: PAC 287 of 2012

Mr Jarrah

Appellant/Cross Respondent

And

Ms Neason

First Respondent/Cross Appellant

And

Secretary, Department of Family & Community Services (NSW)

Second Respondent/Intervenor

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This is an appeal and cross appeal against parenting orders made by Johnston J on 10 April 2014.  The appellant is Mr Jarrah (“the father”) and Ms Neason (“the mother”) is the cross appellant.  They are the parents of the five children to whom the orders relate. 

2. With the consent of the Minister for the Department of Family & Community Services (NSW) (“the Department”), it was ordered that the Minister have sole parental responsibility for the children until they reached the age of 18 years (Order 3) and the Minister or relevant departmental head determine where and with whom the children would live (Order 4).  Provision was made for the mother to spend time with the children, including under supervision, as determined by the Director-General (now Secretary).  Provision was also made for the father to spend time with the children under similar conditions.

3. The effect of his Honour’s orders was to extinguish the parental responsibility for the children reposed in the mother and father and for the children to almost certainly leave the mother’s care and enter alternate care. To give effect to that outcome, the children were initially placed with their maternal grandparents albeit in accordance with Chapter 8 of the Children and Young Persons (Care and Protection) Act1998 (NSW), the Minister entered into an arrangement with an authorised carer to provide for the residential care and control of the children.

4. It was an agreed fact before us that in about October 2015 the children were removed from their maternal grandparents and divided between three foster families.  The elder child is with one family, the next two children are together with one family and the youngest two children are together with a third family.  The parents’ time with the children is supervised and extremely limited.

5. It will be immediately apparent that in both the immediate and long term these orders have dramatically altered the children’s relationships with their parents.  Arrangements of the type reflected by the orders are rarely made in this jurisdiction and, when made, usually reflect the Court’s satisfaction that a child is not safe with his or her parents and/or exposed to an unacceptable risk of neglect.  Such is the case here.

6. The parents do not challenge his Honour’s findings as to the risks they pose to the children or the manner in which the children had been cared for while in their care.  In this respect, the findings made by the primary judge, albeit carefully expressed so as to avoid unnecessary distress, are disturbing and comprise a history of the children enduring prolonged exposure to abuse, neglect, family violence and an unacceptable risk of sexual abuse.  More will be said of this later but suffice to say, at this point, that when considered through the prism of the best interests of the children, the evidence compelled the findings be made.

7. The children were represented by an independent children’s lawyer (“ICL”) at trial and on appeal.  The ICL contends that the appeal and cross appeal should be dismissed.

8. The Secretary, Department of Family & Community Services (NSW) intervened at first instance (as the then Director-General, Department of Family & Community Services (NSW)) and is the second respondent to the appeal and cross appeal.  The Secretary argues that the appeal and cross appeal should be dismissed.

9. Before we go any further, we should provide some explanation for the delay in the appeal.  Although the father filed his Notice of Appeal on 2 May 2014, from that point on the Court experienced great difficulty having him prepare the appeal for hearing.  For example, he did not file appropriate appeal books and, after various failed attempts to have him do so, the appeal books were prepared by the Court.  As a consequence of his failure to comply with directions, the father’s appeal was deemed abandoned but reinstated.  Difficulties persisted and the appeal and cross appeal were twice listed for hearing.  On the joint application of the parents, these hearing dates were vacated.  Ultimately, the hearing proceeded on the third occasion it was listed.

Background facts

1. So as to provide context to the appeal, a brief factual overview is required.

2. The father was born in 1962 and, at the time of trial, was 52 years of age.  He married his first wife in 1984.  They have three sons who, at the time of trial, were 29 years, 28 years and 21 years of age ([11]).

3. The mother was born in 1982 and at the time of trial was 31 years of age.  She was 15 years of age and in year 9 in high school when she met the father.  The mother was 18 years of age and the father was 38 years of age when they commenced a sexual relationship.

4. The mother and father commenced cohabitation in 2001.

5. The child M, who is the first of the parents’ five children, was born in 2002.  She was 11 years of age at the time of trial.

6. In 2003 or possibly 2004, Ms W, who was approximately 15 years of age, moved in with the mother and father.  Ms W gave evidence at trial and was cross-examined.  It was her evidence that when she was approximately 15 years of age the father sexually abused her at the parents’ home.  She told the mother about the abuse some years later.  The primary judge was satisfied that it was more probable than not that the father sexually abused Ms W, albeit it was unclear whether or not this occurred when she was still a child ([92]).

7. The mother and father separated for the first time in late 2005.  The mother informed the Department that M had been assaulted by the father which caused police to become involved with the family.

8. By early 2006, the parents had reconciled and were living together.  At about the same time, the mother discontinued an application for an apprehended violence order (“AVO”) against the father.

9. The parents’ second child, K, was born in 2007.  She was six years of age at the time of trial.

10. The mother met Ms C in a shopping centre following which she commenced spending time with the parents at their home.  Ms C was called as a witness in the mother’s case and was cross-examined.  The primary judge accepted her evidence that the father raped her in the parents’ home in approximately 2007 (when she was 14 years of age) and that he continued to sexually abuse her until she was 17 years of age.  It was at this time (in 2010) that Ms C told the mother about what the father had done to her.

11. Ms D moved in with the mother and father in 2008.  She was 14 years of age when she commenced living with them.  As the primary judge explained, from her first night in their home, the mother and father permitted her to share a bed with the father’s middle son, who was 10 years her senior.  At least from when she was 15 years old and while Ms D lived in the parents’ home she had a sexual relationship with the father’s middle and younger sons.  Within two years of moving into their home, Ms D gave birth to a daughter fathered by the father’s middle son.  At the time of the child’s birth, Ms D was 15 years of age and the father’s son was 25 years of age. Ms D and the father in this appeal have subsequently had two children together.

12. The parties’ daughter, R, was born in 2009.  At the time of trial she was four years of age.

13. By early 2010, a variety of notifications to the effect that M had been sexually abused by a number of people had been received by the Department.  Suffice to say at this stage, the notifications identified perpetrators with whom the parents facilitated contact.

14. The parents’ son, U, was born in 2010.  The child U was three years of age at the time of trial.

15. In May 2011 the father, Ms D and her baby daughter (the father’s granddaughter) left the family home for Queensland.  The mother and the children remained in Sydney.  It is about this time that the relationship between the father and Ms D became sexual.  Ms D was 16 years of age and the father was 49 years of age.

16. By October 2011, the father, Ms D and her baby had returned to Sydney following which the relationship between the mother and father rapidly deteriorated.  This coincided with incidents when the father was violent to the mother and he physically assaulted M and so distressed the child she “… was screaming and was crawling from the house” ([232]).  The violence continued and it is common ground that on 4 November 2011 the mother and father separated.

17. The mother and children moved into separate accommodation in late November 2011.  At about the same time, the Department took Ms D’s child into care.

18. On 27 February 2012, M was interviewed by a Joint Investigation Response Team (“JIRT”) concerning an allegation that she had been sexually abused by the father.  Although the allegation was not substantiated, the primary judge had more evidence available to him about the matter than was then available to JIRT.  For example, M told the Court expert her father “… did something bad to me … had sex to me” ([293]).  The primary judge did not accept the father’s evidence that he had not sexually abused his daughter but nor was it found that he had.  Rather, his Honour’s assessment was expressed as “a fear” that he had and it was thus necessary for M to be protected from the risk of sexual abuse posed by her father.

19. By mid-2012, under the auspices of its “Brighter Futures Program” the Department and other agencies were significantly involved with the family, relevantly, in supporting the mother to protect her and the children from the father and to help her meet the children’s day to day needs.  As to the latter, this included helping her clean the house and to understand it was important that on an ongoing basis she addressed the terrible want of hygiene in the home and that the children regularly attend school. In essence this was a multifaceted early intervention program designed to assist the mother to keep the children in her care.

20. As part of this program a safety plan was prepared in April 2012 which had as an essential element that the mother not permit the father to have any contact with the children ([260]).  An interim AVO had been made in November 2011 against the father for the protection of the mother and children.  It was a requirement of the plan that the mother abide by the conditions of the AVO and to inform the Department or police if the father spent time with the children.  Neither the mother nor the father abided by the restriction on contact contained in the AVO and the mother failed to inform the Department or police that the father had been in contact with the children.  Regrettably the mother refused to co-operate in relation to securing a final AVO against the father and, when she failed to attend for the final hearing, the application for such an order was dismissed.

21. The father and mother’s daughter, Z was born in 2013.  The mother and father correctly deduced that her birth would provide the Department with ample proof that far from keeping the father away from the children, the mother had him intimately involved in her and thus their lives.   However, in order to maintain the ruse “… the mother simply lied to the Department” about this child’s paternity and it was only as a result of testing arranged by the Department that the truth was revealed ([277]).

22. A few months after the child Z was born, Ms D (then aged 18 years), gave birth to her second child, ZJ, this time to the father.  Both she and the father (who was then 51 years of age) denied their relationship was sexual and, once again, it was able to be established that these denials were simple lies ([62] and [71]).  The father and Ms D parented another child, a son, who was born in 2014.  Ms D’s three children are in the care of the Department and have restricted supervised time with the father.

23. By May 2013, in light of the ongoing child protection risks, the Brighter Futures Program ceased their involvement with the family and the Department categorised the family as a child protection case.  That is to say early intervention strategies were viewed as having failed and the question to be answered was whether the children could safely remain with the mother.  In essence that also became the key question for the trial.

The grounds of appeal and cross appeal

1. Before we discuss the grounds of appeal (and cross appeal), it needs to be remembered that this is an appeal against his Honour’s exercise of discretion which is to be determined in accordance with the principles set out in House v The King (1936) 55 CLR 499. Disagreement by an appellate court only on matters of weight by no means justifies a reversal of the primary judge’s decision (Gronow v Gronow (1979) 144 CLR 513 at 519). Otherwise it needs to be understood that neither parent disputes the power to make the orders or his Honour’s statement of the applicable law (see Director-General of the Department of Human Services (NSW) & Tran and Anor (2010) FLC 93-443); rather, the essence of the challenges is that on the facts as found “the best interest of the children were not served in the form they were made, or in the consequences they have caused for the children of this family” (see Outline of Arguments for Appeal at paragraph 20).

2. The father and mother recast their respective appeal and cross appeal and presented their challenges to the orders made by the primary judge in the form of a joint document presented on 17 February 2016 titled “Outline of Arguments for Appeal”.  From that document, the father and mother assert error in accordance with paragraphs 5, 6, 7, 9, 10, 15 and 16.

3. In the event error is established, it is the father’s position that the mother should have sole parental responsibility for the children and for them to live with her.  He seeks to spend time with the children once a month, supervised or unsupervised, and at a NAIDOC weekly event.  He also seeks that the Department be ordered to undertake occasional checks on the children in the mother’s home.  For her part, the mother proposes that she and the Minister have equal shared parental responsibility for the children and the children live with her.  In addition, she seeks that her care of the children be subject to supervision by the Department.  As to the father’s time with the children, she proposes that the orders which provide that the father spend time with the children as determined by the Department be discharged.  It would seem that the mother intends that he only be able to have telephone contact with the children.

Parental responsibility

1. The first challenge is raised at paragraph 5 of the parents’ Outline and is that because of the strength of the children’s relationship with the mother, it was not in the best interests of the children for them to be placed under the sole parental responsibility of the Minister.

2. As we understand it, the focus of this challenge is on his Honour’s decision to make orders which resulted in the children being removed from the primary care of the mother and placed in alternate care.  The point being, that in the evaluation of the identified risk factors compared to the importance to the children of their relationship with their mother, orders should have been made which enabled the children to continue to live with her.  Self-evidently, the primary judge thought otherwise. 

3. His Honour accepted the evidence of the Court expert “… that all four children were attached to her and were comfortable in her presence” ([188]) albeit the type of attachment the children had to their mother could not be determined.  The totality of the evidence persuaded his Honour that in relation to all five children:

   195.In the event that the children were not to be living with their mother one would expect they would be likely to be very distressed and to grieve the loss of their mother.  This would almost certainly follow from the fact that they have very close relationships with her and are attached to her.

4. In an orthodox application of how a court determines what is in the best interests of children, pursuant to s 60CC of the Family Law Act 1975 (Cth) (“the Act”), the primary judge undertook a meticulous analysis of the evidence about the risk to the children were they to remain in the care of their mother, either under the supervision of the Department or not. This included an assessment of 49 risk of harm reports received by the Department as at early 2012 and those received thereafter. Amongst these was evidence M had been sexually assaulted by a number of different people over the years including, for example, the mother’s nephew who the mother invited to live in the home, even after it appeared he had abused M (M told police he had). Also, notwithstanding that M informed the mother that the father attempted to have sex with her, albeit the allegation was “unsubstantiated”, and the mother having witnessed the father physically assault M, the mother continued to include him in M’s life.

1. Ms D had threatened to do terrible things to M and yet, the mother’s approach to Ms D and the father having contact with M is exemplified by the following remarks:

   274.Despite the intended protections under the safety plan, it became clear that the mother was unable to comply with such requirements.  This was because on 21 February 2013 the father informed a Departmental officer that he was able to have contact with the mother and children any time that he wanted and that the mother was in the habit of ringing him and inviting him to come over to her home.  Furthermore, there was an incident at approximately this time when [M] was threatening to self-harm and the mother asked the father to arrange for [Ms D] to come to her home and speak with [M] even though this would be a clear breach of an AVO that was current at that time to protect [M]  against [Ms D].

2. As his Honour went on to explain:

   324.In relation to the mother’s parenting deficiency in not being able to protect the children, it is clear from past experience that the mother lacks the insight to protect the children.  She failed to protect [Ms D] from being sexually abused in the mother’s home by the father’s sons and possibly by the father.  She failed to protect both [Ms W] and [Ms C] from being sexually abused in her home by the father.  I cannot dismiss entirely, a fear which I also have that she might have failed to protect [M] from being sexually abused by the father.

3. In addition to the risk of sexual abuse, the mother and father’s relationship was marred by family violence to which the children were exposed and from which the mother demonstrated she could not protect herself and the children.  Lest it be misunderstood the primary judge was satisfied the mother had also been violent. 

4. Unfortunately, it is necessary to record that notwithstanding very substantial support by the Department and community agencies, in the mother’s care, the children lived in unhygienic squalor.  The child M described her home as a “pigsty” ([255]).  A community worker described the mother’s home as “… physically unsafe with a urine soaked bed, a room piled with furniture and items, unwashed dishes and food scraps in the kitchen, the back porch covered high with clothes awaiting washing and a serious cockroach infestation” ([266]).  A month later, Departmental officers observed “… food on the floor, the kitchen was messy with spilt food, beds were unmade with clothes and items everywhere and the bathrooms had what appeared to be faeces on the floor and toilet paper with faeces on it on the floor” ([268]).

5. So too, were the children’s academic needs overlooked.  M, who has a learning disability, had 62 full days’ absence from school in 2012 plus an additional 59 partial days absent.  Although her school attendance improved in 2013, both M and K were categorised by the school as “habitually late students”.

6. Yet, there can be no doubt that the decision to place the children with the Minister weighed heavily on the primary judge, who carefully considered the argument advanced by counsel for the mother that she be given more time to acquire the skills to address the children’s day to day needs and learn how to keep them safe.  However, the primary judge had little confidence that even with continuing support and additional time, the mother would be able to improve her practical parenting skills to a level which would enable her to meet the reasonable needs of the children.  It was thus in their interests, both in the short and long term, for the Minister to have sole parental responsibility for the children.

7. We agree with the submission advanced by the ICL that his Honour appropriately resolved the interplay between the relationship and risk issues which arose in the proceedings and that he did so through the rubric of a careful application of ss 60CC(2) and (3) of the Act.

8. This ground is not made out.

9. The second challenge raised at paragraph 6 of the parents’ Outline is that it was not in the best interests of the children to be placed under the sole parental responsibility of the Minister because there was no evidence from the Department in relation to the placement of the children. 

10. The orders proposed by the Department and the ICL were cast in the alternative, depending on whether or not the Court determined there was an unacceptable risk to the children of harm and neglect were they to remain in the mother’s care.  In the event that the Court found there was no such unacceptable risk, the Department proposed interim orders which would give the Minister sole parental responsibility, for the children to live as directed by the Minister and for the mother to undertake further assessments.  These assessments would involve another community agency (T Family Support Service) who would also provide intensive services to the mother and children for a period of about three months.  Similar orders were proposed by the ICL, albeit by way of final order.

11. In the event the Court determined the children were exposed to an unacceptable risk of harm and neglect if they remained in the care of the mother, it was proposed that the mother and father would have limited time with the children and understood they would be placed in an alternate care arrangement, administered in accordance with the Children and Young Persons (Care and Protection) Act1998 (NSW).

12. It follows that at the close of evidence the primary judge did not have evidence of a specific plan as to where the children would live if his Honour determined they were at an unacceptable risk in the care of the mother.  However, evidence was given by a child protection case worker employed by the Department as to the Department’s involvement with the children and how the Department would approach a long term out of home care arrangement.  The case worker explained that this could include placement within family, or if not family, with other agencies or foster carers.

13. On a proper reading of the entire reasons for judgment, it is clear that the primary judge was in no doubt that as a consequence of his findings at [330] the Minister would almost certainly remove the children from the mother for long term care arrangements of the type discussed by the case worker.  At [330], the primary judge said:

    In all the above circumstances, which involve a mother who does not have an adequate level of parenting skills or a sufficient cognitive ability and insight to enable her to protect the children, in my view, for the mother to continue to have the parental responsibility for the children and for them to live with her would expose the children to unacceptable risk.  And in my view it would be inappropriate and impracticable for the mother to share parental responsibility with the Minister.  I also accept that the father presents as an unacceptable risk to the children and I shall refer again to this below.

14. It follows that although his Honour did not know which authorised carer would be engaged to provide for the residential care and control of the children and how, in turn, that authorised carer might view the individual needs of each child, he well understood that the Minister would operate in accordance with the statutory out of home care arrangements contained in the Children and Young Persons (Care and Protection) Act1998 (NSW). We accept the submission of the ICL that the primary judge had sufficient evidence of the Department’s intentions in relation to the children’s placement in alternate care, to exercise his discretion in favour of that option in preference to any other option presented at trial.

15. This ground does not succeed.

16. By paragraph 7 of the Outline of Arguments for Appeal, the parents contend that it was not in the best interests of the children for the Minister to have sole parental responsibility because “there is no real person who has an interest in the overall welfare of the children, and their interests are administered by personnel whose identity changes from time to time”. 

17. As we have already explained, no question arises about the jurisdiction and power to make a parenting order in favour of the Minister, including for sole parental responsibility of the children. Properly understood, this challenge goes to the reality of day to day decision-making by the authorised carer and the fact that personnel within the Department and any agency will change from time to time. The primary judge clearly understood that the scheme for out of home care meant that the practical day to day decision-making for the children, including where and with whom they might live, would be managed in accordance with Chapter 8 of the previously mentioned State legislation. That is, arrangements for the provision of out of home care could only be made by a designated agency or by the Children’s Guardian (who for present purposes is irrelevant).

18. There can be no doubt that the decision of the primary judge was taken knowing that the Minister would not personally undertake either the actual provision of the out of home care or make the arrangements for its delivery.  In our view his Honour’s approach was consistent with the approach endorsed by the Full Court in Faulkner and McPherson v Rugendyke; Department of Community Services(Intervener) (1995) FLC 92-630 at 82,322.

19. The asserted error is not made good.

20. The challenge raised by paragraph 9 dovetails with that raised in paragraph 7.  By this ground, it is asserted that the order for sole parental responsibility in favour of the Minister was made in error because “… the Court has no jurisdiction over a care and support service, which is not a party to the proceedings, but has a contractual arrangement with the Minister, presumably by which it is paid money to make arrangements for the children”. 

21. As we said earlier, the primary judge was able to make the order for sole parental responsibility in favour of the Minister on the understanding that out of home care would be provided by an authorised agency.  His Honour was not required to make orders in favour of that agency and was able to proceed on the basis that the manner in which that agency delivers services to the children and the Department is ultimately a matter for the person in favour of whom his Honour granted sole parental responsibility.

22. By paragraph 10, the order for sole parental responsibility in favour of the Minister was impugned “because there was no obligation on the Department to consult with the parents as to the placement of the children”. The proposition advanced by paragraph 10 is correct but does not sound in error. As we understand it, the argument seems to draw on the operation of s 79(6) of the Children and Young Persons (Care and Protection) Act1998 (NSW), which is to the effect that if an order is made by the Children’s Court (of New South Wales) granting the Minister “all aspects of parental responsibility for a child”, the Minister must, so far as is reasonably practicable, have regard to the views of the persons who had parental responsibility for the child. Because that provision has no application to the order for parental responsibility made by his Honour, it is suggested that his Honour should at the very least have given the mother parental responsibility alongside the Minister. In that way, consultation with her in relation to the children and thus consideration of her views would be assured.

23. We have already set out his Honour’s findings at [330]. It is apparent there that the primary judge turned his mind to the notion of shared parental responsibility which was rejected as “inappropriate and impracticable”. This was a matter within the discretion of the primary judge and nothing to which we have been taken could, in this respect, demonstrate error.

The children are of Aboriginal descent

1. By paragraph 15, it is contended that the order for sole parental responsibility made in favour of the Minister ought not to have been made “because there was no provision for the aboriginality of the children to be recognised and nurtured”. In essence, this challenge raises for consideration the application of ss 60CC(3)(h) and 60CC(6) of the Act. By these provisions, an Aboriginal child or a Torres Strait Islander child has the right to enjoy his or her indigenous culture, including with other people who share that culture. In determining whether a particular order is in the best interest of the child, the Court must consider the likely impact any proposed parenting order will have on that right.

2. When the proceedings commenced both parents said that the children were not Aboriginal children.  However, the father gave evidence that in July 2012 his father told him he was of Aboriginal descent.  In the intervening 10 months the father had acquired no knowledge of his mob or information about this aspect of his heritage.  As he explained it, he “… ha[s]n’t reacted well to it, no, to be honest”.  This was said to explain why he had been unable to provide any information to the solicitors for the Department about his indigenous heritage.  Otherwise the gravamen of his evidence was that he had not been involved in Aboriginal cultural activities and nor, when the children lived with him, had the children.  He had not discussed the children’s Aboriginal heritage with the mother.

3. The case worker, to whom reference was made earlier, gave evidence about the approach adopted by the Minister and the Department to the care of Aboriginal children and their right to enjoy their culture.  In answer to questions by counsel for the second respondent, the case worker said:

   Assuming that’s correct and accepted, if the children were to be taken into long term care by the department or by the Minister, if the court made that order, how would their Aboriginal heritage be maintained or encouraged?‑‑‑Yes.  So we would be speaking to [the father] in relation to his Aboriginality.  We would also seek to gain more information in relation to his family ties and his mob, or kin.  From that we would be doing an Aboriginal consultation to discuss with an Aboriginal case worker what – what the children require, what their needs – their cultural needs are, and we would also consult in relation to placements, if there’s any Aboriginal placements are available with family or, if not family, with other agencies or foster carers to keep their Aboriginality.  If there is – if they’re placed in a non-Aboriginal placement then there would be cultural plans that would be developed, which entails what the children’s cultural needs are and how the department would address it, based on each individual need.

   So when you say based on each individual need, there would be an assessment of whether the child, for instance, would participate in cultural activities specific for that ‑ ‑ ‑?‑‑‑Age group.

   ‑ ‑ ‑ age group or that ‑ ‑ ‑?‑‑‑Yes.

   ‑ ‑ ‑ or that particular mob ‑ ‑ ‑?‑‑‑That’s right.

   ‑ ‑ ‑ of – or Aboriginal tribe?‑‑‑Yes.

   And special days such as NAIDOC Week and other special days would be matters which would be given some prominence?‑‑‑And encouraged, yes.

   And encouraged.  And things such as dance and other cultural interactions would also be part of that cultural plan; is that what you’re saying?‑‑‑That’s right, yes.

   And you’re not aware whether the children, in fact, practice any Aboriginal culture at this time?‑‑‑No, not that I – I know of. 

   (Transcript of proceedings, 7 August 2013, p 505, lines 4-35)

4. At [221], the primary judge explained he was satisfied that the Department would be able to put in place appropriate programs to enable the children to have an opportunity to develop their Aboriginal culture. In circumstances where neither parent had thus far taken any step to facilitate the right referred to in s 60CC(3)(h) and where in the mother’s care there was no suggestion that right would be promoted in any particular fashion, the proposals advanced by the Department were at least as sophisticated as those advanced by either of the parents. In the very difficult circumstances of this case, his Honour’s approach to the children’s Aboriginal heritage was appropriate.

5. Before we leave this issue it may be of some comfort to the father to remind him that the Children and Young Persons (Care and Protection) Act1998 (NSW), contains specific objects, principles and responsibilities (for example s 13) which pertain to the care of Aboriginal children in the care of the Minister.

The children’s time with the mother

1. Although phrased differently, the essence of the challenge raised by paragraph 16 is that the primary judge “erred in not making definite Orders for the mother to spend time with the children”.  In this respect, it is argued that the effect of the orders is to restrict the children’s contact with the mother to once every 4 to 6 weeks supervised and that such an arrangement is against the weight of evidence and the findings.

2. The first matter of note is that the mother, who was represented at trial, did not identify orders she proposed for the children’s contact with her in the event they were placed in the care of the Minister.  Although the primary judge understood that the mother would have wanted to spend as much time with the children as possible, central to his approach to the children’s living arrangements and time with their parents was the satisfaction that the benefit to the children of having a meaningful relationship with their parents was offset by the necessity to protect them ([332]).  Having determined that the Minister should have sole parental responsibility for the children, his Honour turned his mind to whether or not orders as to the children’s time with their parents were necessary and determined they were not.  Nonetheless, the primary judge went on to deal with the request by counsel for the intervenor “... to provide some guidance about contact arrangements between the children and their parents” ([333]). 

3. In relation to the children’s time with the mother, his Honour observed:

   349.As I have said, the children have a close relationship with their mother.  As I have also observed above, one would expect for the children to be separated from their mother would be likely to cause them distress.  [The court expert] thought the difficulties, whatever they might be, would more likely be short term rather than long term.

   350.The Director-General proposed that in the event that the children were not living with their mother there would be supervised time between the children and their mother arranged for up to six times each year with similar telephone communication to that between the children and their father.

   351.I would think that such a proposal would be the minimum for these children.  Given the fact that their mother has been their primary parent and the closeness of their relationship with their mother I would think that after a settling in period of perhaps a month or six weeks, the children should see their mother once per month or per six weeks, if the practical demands of this could be met.  It would be on a supervised basis given the mother’s difficulties as referred to above.

   352.In the event that the Director-General might require further guidance about this, in my view, [the court expert] would be in a good position to assist on the basis of her experience with the family.

4. We are unable to agree with the contention advanced by the parents that his Honour’s approach to this issue was against the weight of the evidence and findings.  The sad reality of this case is that these observations accord with the risks identified to the children in a lengthy and carefully considered trial judgment.  His Honour knew there were difficult times ahead for the children and that the children would need time to adjust to the loss of their mother as their primary carer and to long term alternate care.  It is quite clear that his Honour was of the view that the Minister (in accordance with the scheme provided for in the State legislation), and ideally with the assistance of the court expert, should, in the first instance, determine how often and under what circumstances the children maintained a relationship with their mother. The approach adopted was quite appropriate. Otherwise, we agree with the submission of the ICL that the orders do not restrict the Minister’s ability to make such determination as he or she considers in the best interests of the children, including for more or indeed less time than his Honour recommended.

1. We do not agree that the primary judge was obliged to make orders for the children to spend time with the mother.  However, if the mother remains dissatisfied with the time arrangement it behoves her to take legal advice as to how she might come to an arrangement with the Minister which is more satisfactory to her.

Conclusion and costs

1. The parents have failed to establish a basis for appellate intervention and orders will be made that the appeal and cross appeal be dismissed.  In this event, it was common ground there should be no order as to costs.

I certify that the preceding seventy three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Aldridge & Kent JJ) delivered on 4 November 2016.

Associate: 

Date:  4 November 2016