JB and MB v The Department of Human Services

[2010] NSWDC 91

CITATION:	JB & MB v The Department of Human Services [2010] NSWDC 91
HEARING DATE(S):	3-5 May 7 May 10-11 May
JUDGMENT DATE:	12 May 2010
JURISDICTION:	District Court - Civil
JUDGMENT OF:	Knox SC DCJ
DECISION:	ORDERS: I grant leave to the parents and Mr. Neil B to bring this application pursuant to section 90 of the Children and Young Persons Care and Protection Act (1998) (“the Act”). The appeal commenced by the parents, Ms. MB and Mr. JB, on 8 January 2010 be allowed. The orders of the Children’s Court at Orange of 8 June 2007 and 21 December 2009 are rescinded pursuant to section 90 (1) of the Act Joint parental responsibility for BB be shared by Ms. MB, Mr. JB and Neil B pursuant to section 79 (1)(a)(ii) of the Act. The specific aspects of parental responsibility which Mr. Neil B is to supervise include those specified in section 79(2) paragraphs (a), (c), (d) and (e) of the Act. BB shall be placed under the supervision of the Director-General for a period of 12 months from the date of the Orders, pursuant to section 76 of the Act. Pursuant to section 73(1) of the Act, I accept the signed undertakings of Ms. MB, Mr. JB and Neil B annexed hereto and marked “A”. Orders made in accordance with those undertakings are to remain in force until BB attains the age of 18 years. Pursuant to section 74(1) of the Act, I order that the Orange Family Support Services, in accordance with the undertakings given, provide such support for BB, Ms. MB, Mr. JB and Neil B as the Orange Family Support Services deems necessary for a period of 12 months from the date of these Orders. Neither the parents or either of them shall contact, or come on the property of, Ms DF, unless that is arranged through DoHS officers at the Orange office of DoHS. These orders are to come into effect on 14 May, 2010 after consultation between the parties, the independent child’s representative, Ms Dalton, and Ms Crago. Leave is granted for Ms Fuller, solicitor, to provide a copy of these orders and reasons and undertakings to the Orange Family Support Service and any other institution providing full-time care or assistance for BB.
CATCHWORDS:	CIVIL LAW - Care proceedings - Change in carer arrangements - Evidence of and about carer - Parents with disabilities (Aspergers syndrome and intellectual disabilities): need for support - Grandparents: integral support - Research on contact with natural parents.
LEGISLATION CITED:	Children and Young Persons (Care & Protection) Act 1998
CASES CITED:	Re Louise and Belinda [2009] NSWSC 534 DoCS v Young [2004] CLN No. 9
PARTIES:	JB MB Department of Human Services
FILE NUMBER(S):	123/2010
COUNSEL:	Mr. A. Allen - Department of Human Services
SOLICITORS:	Crown Solicitors for Department of Human Services. Legal Aid Commission for the Appellant. Dalton and Associates as the Independent Child's Legal Representative

JUDGMENT

Issue

1 These proceedings concern a child, BB (“BB”) born 11 January 2006.

2 The parents, Mr. JB and Ms. MB, appeal from orders made in the Children’s Court by Magistrate Lucas on 21 December 2009. The application is brought pursuant to section 90 of the Children and Young Persons (Care and Protection) Act (NSW) 1998 (“the Act”). The essence of the reasons for that decision are set out at pp.6-8 of the transcript from those proceedings (tab 19 of exhibit 1A). That hearing took place on 9 and 23 November and 21 December 2009. There were earlier orders made in 2007 which were in the context of shared care arrangements.

Applications and Parties

3 The parents of BB are Ms. MB (“the mother”) and Mr. JB (“the father”). The mother is aged 36 (D.O.B. 13 August 1974) and the father is aged 38 (D.O.B. 1 December 1972). Details of their circumstances and the evidence given by them are set out below. The parents seek orders that they have sole parental responsibility for BB. The terms of the orders sought were altered during the hearing such that Mr Neil B, the paternal grandfather, was also included as a person to have joint responsibility for major decisions concerning BB.

4 The undertakings on which that application is based have been refined during the hearing (exhibit 15, versions A - E).

5 To the extent necessary to ensure the supervision of those orders by the Director-General, I note the consent of the Director-General pursuant to the provisions of s 86(2) of the Act. That aspect of the undertakings has also been developed over the course of the hearing.

Adjournment Applications

6 Two applications for adjournments were made by DoHS in order to obtain additional evidence. Those applications were both refused.

The child BB

7 From all the evidence - in particular, that of the current carer for BB, Ms. DF – a caseworker for the Orange Family Support Agency, Ms Farrell (see below), the relevant DoHS caseworkers and the family - BB appears to be a happy, active and gregarious little boy. He is of an appropriate weight and height and is a polite child (evidence of Neil B, paternal grandfather, 7 May 2010). BB is also apparently reasonably compliant although capable of demonstrating a range of feelings (evidence of Ms. MB, mother, 10 May 2010).

8 There is no evidence that BB is failing to thrive in a physical sense. A report from Ms. Anne Worrad, occupational therapist (exhibit 1B, Tab 126) dated 30 September 2009 refers to BB as a “delightful little boy whose overall skills are mildly delayed.” She said BB may have some mild motor planning difficulties.

9 Counsel for DoHS submits that some milestones have not been met, stating that BB has displayed stuttering, repetitive speech and a short attention span. The parents’ solicitor, Ms. Fuller, submits that this has only been recently observed - only after BB has been the subject of the full-time care or shared care arrangements. Significantly, she submits, these symptoms have particularly been noted only after BB has been in the care of the carer, Ms DF.

Sibling - DB

10 DB, BB’s younger brother, is seven months old (D.O.B. 22 September 2009). BB is very much aware of his younger brother and of the family unit. DB is currently in the care of the Minister pursuant to an order made in the Children’s Court in March 2010. That arrangement has been in place effectively since his release from hospital on 15 January 2010.

11 The evidence is that DB is a child with significant problems. He is regarded by an Orange paediatrician, Dr. Kerrigan, as being at ‘high risk’ if he returns home to the parents due to his serious illness. DB and BB were both born prematurely. Dr. Kerrigan (at tab:p 316A) has reported that ‘DB is more difficult and at risk higher than BB was.’

Grandparents

12 BB has 3 surviving grandparents: Tony B, aged 73 (D.O.B. 13 December 1937), Maria B, aged 71 (D.O.B. 8 August 1939) and Neil B, aged 64 (D.O.B. 29 December 1945). The paternal grandmother, Sandra B, died in September 2009, aged 64. She had previously provided a lot of care for BB and assistance to the parents.

13 The three remaining grandparents all reside in Orange. Despite some evidence of tension between Mr. JB and Maria, the grandparents generally have a good and warm relationship with both the parents and BB – which DoHS caseworkers have accepted.

DoHS’ position

14 DoHS seeks that BB remain living with his current carer, Ms DF, and that contact with the parents be reduced to bimonthly – that was subsequently amended to monthly. Further comments about the background to DoHS’ position are set out later in these remarks.

Ms. Emma Crago

15 The basis for DoHS’ position is set out in the affidavit of Emma Crago sworn 22 April 2010 (exhibit 4). Ms. Crago is a psychologist and has been the caseworker with primary responsibility for BB’s supervision since 2008. She has had over five years experience in the field of youth and adolescent services. She has also seen BB, the parents and grandparents over a substantial period of time. She has also seen BB at the various homes he has occupied as well as at his pre-school/ day care centre.

16 The contents of Ms. Crago’s affidavit are said to be based on her own observations as well as her reading of the file and other material relating to BB. A substantial number of the paragraphs are summaries of casework and other meetings, the opinions of others and some anonymous or unidentified complaints. There are two folders of exhibited material annexed to Ms. Crago’s affidavit which were served just prior to the hearing (two folders: exhibit 1B and exhibit 1C).

17 Ms Crago accepts that BB has a strong identification with his parents, his grandparents and other attachments to (or connections with) people or aspects of the family environment - such as the family dog. Further, he has a strong idea of who he is and how he fits into that family unit.

18 In terms of BB’s primary attachments, Ms. Crago indicated that she did not consider that the evidence of BB’s behaviour indicated a deep attachment to his mother. I do not agree. In my view, there is strong evidence to that effect, for example, the distress he has exhibited when removed from his mother’s care. There are other matters in Ms Crago’s evidence – particularly as it reflects an attitude of a succession of departmental officers - which I will comment on later in these reasons.

19 In the event that an order is made restoring BB to his parents’ care, DoHS originally indicated that the department would not undertake any further case work for him other than to intervene in the event of a Risk of Harm Report. Subsequently that position was amended to cover a 12 month period of phased contact intended to reduce Departmental intervention to a minimum. DoHS has accepted that if the parents’ application was successful, then there should be a twelve month supervision order.

Chronology

20 In addition to the dates of birth outlined earlier, significant dates are as follows:

11 January 2006 BB born (prematurely at 31 weeks) and remains in hospital for two months.

8 June 2007 Orders in the Children’s Court at Orange allocating joint responsibility to the Minister and the parents with specific aspects of parental responsibility allocated.

10 October 2008 BB placed in primary care of Departmental foster carer – Ms. JR. Thereafter he was in the shared care between the parents and Ms. JR with 6 nights spent with Ms. JR, one night spent with the paternal grandparents with additional contact with the parents.

19 January 2009 BB placed in primary care of Departmental foster carer, Ms JR.

17 March 2009 BB placed in shared care arrangements: 3 nights with parents, 4 nights with a foster carer (‘Ms. DF’) organised by DoHS. Occasional Friday nights with paternal grandparents. DoHS made a determination at that time that there should be a shared arrangement.

6 April 2009 Parents file application under section 90 to rescind the Care Order.

8 May 2009 Application by parents under section 90 of the Act.

22 September 2009 BB’s sibling, DB, born (prematurely at 29 weeks).

9 November 2009 Local Court dismissal of section 90 application.

7 January 2010 BB placed in the full-time care of Ms DF.

3 May 2010 District Court Hearing commenced.

4 May 2010 Updated Care Plan filed.

The Parents, Paternal Grandfather, Their Capacities and Evidence

Father

21 Mr. JB is aged 38 and works as a financial assistant with the Department of Industry and Investment in a computing and administrative support capacity. He has filed an affidavit and gave oral evidence before me on 10 May 2010.

22 Given the criticisms which have been made of his financial planning abilities, I note that Mr. JB earns about $1, 500 – $2, 000 per week. He and BB’s mother share the domestic expenses. Their normal household bills are met through a credit union deduction scheme.

Mr. JB: Asperger’s Syndrome

23 Mr. JB has been diagnosed with Asperger’s syndrome. He also takes medication for depression and has done that since March 2010. That would have commenced at about the time DB was removed from the parents’ care.

24 Particulars of this syndrome, and the implications for Mr JB’s parenting capacity, are set out in a report by Yin Hourigan, dated 12 March, 2007, from ‘Capable Kids’, an occupational therapy and psychological services centre in Orange (exhibit 1B, tab 46). That report notes that there are some limitations on Mr. JB’s capacity to meet BB’s emotional, social and developmental needs and implications for his ability to parent effectively. It also suggests that parenting education and other therapy might prove beneficial to assist Mr. JB in recognising BB’s needs and to enhance the quality and effectiveness of his interactions with BB.

25 That report was made in March 2007. I have observed Mr. JB giving evidence. There is a substantial body of evidence which would strongly suggest that Mr. JB has consistently interacted well with BB and engaged in a variety of constructive, child-oriented activities – all of which seemed to me to be appropriate and in BB’s best interests.

26 Counsel for DoHS submits that Mr. JB’s conditions have an “implication for his ability to parent effectively”. I do not agree – provided that Mr JB’s care and responsibility is undertaken within the framework of the undertakings and supervision provided in the orders to be made.

27 At the moment, there are few instances of disruption or difficulties in the parents’ cohabitation arrangements with Mr. Neil B to warrant concern that that arrangement might either come to an end or involve friction which might have an impact on BB. The parents have accepted Mr Neil B’s involvement in BB’s upbringing.

28 Apparently Mr. JB has been involved with isolated incidents of violent outbursts – such as kicking in a fence to express anger with a family situation. There has been no violence in the relationship with the mother nor with BB.

Mother

29 Ms. MB is aged 36. She is the mother of both BB and DB who is also currently in the care of Departmental foster carers. Those care orders, made by the Local Court in February 2010, are also currently subject to appeal.

30 Ms. MB provided an affidavit and also gave oral evidence. She works part-time at Woolworths three days per week whilst BB is in day-care. She has held that position for some time.

Mother: Intellectual functioning

31 There is some dispute about the mother’s situation and any medical or psychological issues from which she is said to be suffering. It has been suggested that the mother has been diagnosed with borderline intellectual function and deficits in her motor skills, communication skills and community living skills. However, the assessment found that those deficits are not sufficient to meet the criteria necessary to amount to an intellectual disability.

Parents: Need for support

32 Both parents turn to their parents for advice, help, support and daily assistance in the care of the home. DoHS submits that those relationships represent dependence. Ms. MB gets some assistance from her mother who, with her husband, has a very close relationship with BB. Maria B has had some disagreements with Mr. JB but gets on well with Mr Neil B and BB.

33 Ms. MB said she generally follows Neil B’s advice to a large extent in regards to the house, parenting BB and some financial matters. That seems to be consistent with the evidence of Neil B.

Parents’ capacities and presentation during oral evidence

34 I observed Ms. MB giving evidence, including quite a searching cross-examination where sometimes difficult questions were put to her. Ms. MB gave evidence in a competent way and was able to answer questions put to her both in examination in chief and in cross-examination entirely appropriately. Her presentation did not indicate any significant intellectual disability which should reflect adversely on her. Similarly, Mr. JB gave appropriate and detailed evidence in response to all the questions asked of him.

35 Ms. MB agreed that she was slow when it comes to certain matters – for example, in connecting some kinds of information. She had been given strategies to cope with that and both understood and applied those strategies. Ms. MB gave evidence demonstrating an understanding of BB’s needs – for example, his stuttering. She said, and I accept, that she would do anything, accept any advice, attend any courses and accept any DoHS supervision and guidance to ensure BB’s care is advanced. That is consistent with her history in parenting BB.

36 It is acknowledged that the parents have engaged willingly with support agencies. They have also demonstrated some improved parenting skills over the years. There seems to be no issue but that the parents have made gains in terms of being able to provide for BB, at least on an ad-hoc basis. Further, the parents are willing to welcome assistance from Family and support services if BB reverts to their full-time care or, indeed, in any circumstances.

37 Ms. MB evidence relating to BB and his needs was both appropriate and consistent with the other evidence. I did not regard that evidence as either feigned nor exaggerated. The mother admitted, for example, that she needed reminding to do things from time to time. That, like other aspects of her evidence, was frank and against her own interests but confirmed her desire to both be honest and do whatever it takes to retain BB and advance his best interests. Clearly she had lied on some matters (for example, regarding a holiday to Coffs Harbour and regarding some spending practices) but I do not consider these instances were other than as stated or such that I could not rely on her evidence overall.

38 I had the same impression after listening to Mr. JB’s evidence. Despite their difficulties, and what they have been through in terms of having their children removed from them, their relationship appears strong. They have a number of shared interests and activities. My assessment is that they are devoted to BB, both individually and jointly.

Grandparents’ Position

39 It is the position of all parties involved that the grandparents have demonstrated a consistent commitment to BB’s care and well-being. They have actively participated in the case planning.

40 Both sets of grandparents have reported frustration about the fact that Mr. JB and Ms. MB do not maintain their house in an ideal state and there is sometimes disagreement on parenting practices in respect of BB. There are also some issues, at least between the parents (particularly Mr. JB) and maternal grandparents, which have resulted in the police being called to the home on an occasion. Ms Maria B has not been to the house since 2008.

Paternal Grandfather: Neil B

41 Mr. Neil B gave evidence on 7 May 2010. He had already provided two affidavits. He is aged 64 and is a retired builder.

42 I agree with the assessment by Ms Crago that Mr. Neil B is a “measured and considered man”. Further, in my view, he is a man who, with his late wife, has provided considerable assistance on a personal, domestic and financial level to the parents as well as supportive care for them and BB. Mr. Neil B is very prepared for - and indeed wants - the parents and BB to live with him. He has been responsible for some of the transport arrangements for BB. He broke down giving his evidence when describing his emotional difficulty in giving BB back to the carer, Ms. DF. He is clearly very fond of, and devoted to, BB. It is clear Neil B has a strong connection with BB and understands his specific needs and stages of development.

43 Following the termination of the parents’ tenancy of their home – apparently to permit the upgrading of that accommodation - they came to live with Mr. Neil B. His evidence is to the effect that he not only wants them and BB to continue living with him but also that he will do everything he can to facilitate that and assist the parents in their care for BB.

44 Neil B and his late wife had a significant role in providing that assistance notwithstanding the difficulties they have had. Such difficulties appear to have been no more than the normal incidents of inter-generational cohabitation, particularly in regard to finances. Both grandparents have devoted a lot of time and attention to ensuring their home and facilities are safe for BB.

45 Mr. Neil B was candid, insightful and honest in his evidence – for example, as to the parents’ financial situation and what he saw as some wasteful financial activities. He thought his daughter-in-law gave answers which she thought people might want to hear instead of the honest truth. He agreed that on some occasions she had lied and that he sometimes had to check up on her. He also said that, despite the financial assistance and guidance the grandparents had given, his son and daughter-in-law have been reluctant to change their approach to finances. Mr. Neil B said that the parents’ spending habits have improved since they began residing with him.

46 Mr. Neil B has also supervised the parents on a number of levels – for example, he used to go to the house and, if he found it untidy, he would direct them to fix it within a specified time period. He has attended casework meetings concerning BB and is prepared to continue that involvement.

47 Mr. Neil B has had some major depressive incidents in the past. Some, but not all of them arose out of the diagnosis of his wife’s terminal illness. The hospital notes suggest that in August 2007 he may have attempted suicide. Medical documents describe “a major depressive illness exacerbated by his wife’s illness”. I do not regard the evidence of the events which manifested themselves as a result of that condition - particularly given the time which has elapsed - as indicating that there should be concerns about Mr Neil B’s involvement with BB’s upbringing.

48 Mr. Neil B said that he thought BB had improved in the last six months. He acknowledged that he will have to override the parents’ decisions from time to time on some issues. The issues he raised seemed to be relatively minor. However, I did not detect any sense of wanting to interfere in the parents’ relationship or exert any unnecessary control over them. Certainly, the parents do not complain of that despite the tensions which would be likely to occur in any multi-generational living arrangement.

49 There has been a sharing of the domestic arrangements within the home, the mother doing the cooking and Mr. Neil B carrying out other tasks. His – and the mother's – evidence was to the effect that they are able to talk through any differences.

50 DoHS has suggested Mr. Neil B’s age and medical and mental health may impede his ability to provide consistent and reliable support. Such matters were not apparent to me in Mr Neil B’s evidence nor in the documents which were tendered – at least to any serious extent.

History of DoHS’ involvement and attitudes

51 There have been ongoing and considerable concerns by a series of DoHS caseworkers over BB’s care and the capacity of his parents. Many of those case-workers have clearly experienced considerable frustration with the parents, especially the mother. There have also been difficulties in the arrangements which have been in place. Most of the DoHS workers appear to have been critical of the parents and the level of care the parents are able to provide - particularly the consistency and quality of that care. Many of the DoHS workers have been frustrated by what is, and will continue to be, a complex and unusual family and parenting situation – one which is very demanding of the resources of DoHS. Certainly, there has been continuing supervision of the parents and numerous conferences. Whether that scrutiny of so many aspects of the parents’ lives is either warranted or justified is another matter.

52 As early as 14 February 2007 (after an incident involving BB), DoHS caseworkers formed the view that restoration of BB to his parents ‘would not be to the good’ – although, as noted by Ms. Crago, that was prior to the first orders being made. There were then generic concerns raised about the parent’s individual and joint capacities. That departmental attitude appears to have been consistently expressed over the next two to three years and to have been shared by a number of caseworkers. There have been some divisions of opinions between, and among, the other workers involved with BB and the family. Ms. Farrell, in particular, was supportive of the parents, although at times critical of them with regard to specific incidents.

53 DoHS workers have also spoken to, and liaised with, a number of services provided in Orange. The agencies involved have included the Orange Family Support Services, Orange Community Health and the Orange Base Hospital. There have been numerous case conferences in relation to BB over a period of time in excess of three years. There have been a number of incidents and issues involving the parents or either of them. None of them, in my view, warrant the action proposed by DoHS officers.

Removal from Care

54 As noted in the chronology, BB was kept in hospital for two months after his premature birth, On his release he was placed in a departmental foster placement with Ms. JR. He was removed from his parents effectively twice in a three-month period from late 2008 to January 2009. The precise chronology is set out in exhibit 20. The reasons for those separate removals were said to be safety and hygiene issues in the family home and incidents at day-care prompting concerns about BB’s care and his emotional needs.

Change of care arrangements

55 DoHS removed BB from his parents’ care before he was discharged from hospital following his premature birth at 31 weeks gestation. That was done in the light of DoHS’ concerns that the parents’ poor parenting skills were such that they would not have the capacity to care for BB and his particular needs on a full time basis.

56 BB was then placed with a carer, Ms. JR (“Ms. JR”) between October 2008 and early 2009. The circumstances of the cessation of Ms. JR’s care arrangements for BB are unclear but it appears that there may have been allegations made in relation to her ex-partner. The extent of the investigation of those matters is also unclear. Another matter of concern was that the DoHS officers were aware that Ms. JR made derogatory comments about the parents. There appears to have been considerable conflict between the mother and Ms. JR. Whatever the situation, that arrangement was brought to an end in March 2009 and BB reverted to a joint care arrangement between the parents and Ms DF. Again, those arrangements came to an end in January 2010 and BB was placed in full-time care with a foster carer, Ms. DF.

57 The impact on BB of the cessation of two primary care attachments has been described as ‘significant’. It is submitted, and I agree, that there is a clear need for stability in BB’s life; additionally, that there should be no further delays in dealing with the matter so a structured regime can be put in place to ensure consistency for BB.

Past undertakings

58 Earlier undertakings were given by the parents for BB’s ongoing physical, emotional, psychological and medical needs. Those included, but were not limited to, the engagement and consultation of family support officers, an early childhood nurse and a parenting consultant. Those undertakings were given, and received, in the Children’s Court on 8 June 2007. There is no evidence that those undertakings were either significantly, let alone wilfully, disregarded.

Care plans

59 A Care Plan (exhibit 9) dated 31 July 2009 was tendered. Counsel for DoHS acknowledged that that Care Plan related to arrangements which were relevant at that time and, in some material respects, not relevant to aspects of the changed arrangements. That plan was based on a regime of joint parental responsibility between the Minister and the parents whereby the child was in the care of a different foster parent.

60 The Care Plan sets out the names and positions of general practitioners, paediatricians, audiologists, special educators, family workers, case workers and case-work managers who have been involved in BB’s care.

61 Another care plan was then provided during the hearing. That Care Plan asserts that there is no separation anxiety from BB when he is separated from his mother, nor does he show signs of strong attachment. I do not regard that as consistent with the evidence.

62 DoHS submits that the parents are unable to sustain an appropriate level of care for BB without continual supervision and rigorous involvement by support services. DoHS relies on the Care Plan to submit that restoration of BB to his parents is not a possibility given the parents’ poor understanding of his needs, their capacity to care for a young child and an apparent inability to prioritise BB’s needs. DoHS submits that there should be permanency planning to achieve stability for BB.

Evidence from carer

63 There was, at the outset of the hearing, a paucity of evidence about the current carer, Ms DF, her situation and the current and proposed arrangements for BB. Counsel for DoHS informed me that it was not departmental practice to provide such evidence from, or about, a carer. Further, that there was no requirement or practice to insist that proposed carers provide evidence to the Court or make themselves available for cross-examination. There are some Children’s Court decisions to that effect.

64 I have some reservations about that approach – although I am aware of the sound policy reasons why the identity of a carer might be kept anonymous. That is particularly the case where there are, or are likely to be, threats made against a carer by a parent or other person.

65 Carers do a difficult and vital job for DoHS and, for the most part, the Department and the Community is lucky to have them. Their privacy requests need to be respected. However, here it appears that there has already been some contact between the mother and the carer. The mother was supplied with the name of Ms DF by the previous carer, Ms JR. The Department has apparently had difficulties with Ms. JR although the circumstances of that are unclear.

66 I indicated that, without evidence from, or about, Ms. DF, there was nothing on which I could make any findings on any basis, let alone a comparative basis as to the competing scenarios on the material provided to me. Without such evidence, I was left with the affidavit of Ms. Crago, provided by DoHS, the evidence of Ms. Farrell, Ms. Jane Griffiths and the departmental notes which stated that there have been some negative developments for BB since he has been in the full-time care of Ms DF since 2010. Those negative developments were not observed by Ms. Farrell prior to that time.

Evidence of current carer, Ms. DF

67 An updating affidavit of Ms. Crago was filed on the second day of the hearing which referred to the carer, Ms DF. It did not give her address or any other identifying details. Subsequently Ms. DF provided a detailed affidavit which I accepted over the objection of the solicitor for the parents. An order was made suppressing Ms DF’s identity details and ensuring the parents do not approach her.

Contact by mother to carer

68 What contact there has been between Ms. DF and the mother was by telephone earlier in the year. The mother was apparently provided with information about the current carer’s name by the previous carer. Here the limited contact there was appears to have been an attempt by a natural mother to contact the carer of her child to try to find out what had happened to her son. This was partly in response to BB’s statements that he had been assaulted by someone associated with Ms DF. On the evidence before me, I do not regard what has happened as being a matter which should be considered adversely to the mother. However, I will confirm the orders earlier made to form part of the final orders in this matter that the parents make no attempt to contact nor identify Ms DF nor anyone associated with her.

Assistance for carer

69 Ms. DF gave evidence by telephone on 6 May 2010. I note that DoHS has arranged for Ms. DF to have contact with a psychologist to provide her with parenting support – as well as personal support. The parents were offered some assistance for counselling when they experienced feelings of loss associated with BB’s removal but there is apparently no capacity to provide the same level of psychological support for the parents as is provided for a carer. While there are understandable resource limitations on such assistance for parents in the normal course of events, these parents have been the subject of relentless scrutiny over some years and DoHS has regarded them as in need of assistance without giving them the comparable support they have given the carer.

Contact supervisors

70 Two casual DoHS contact supervisors, Mr. Neville and Mr. Lovett, have been engaged to supervise contact between BB and his parents. Some of the reports from the contact give positive reflections on the parents’ parenting practices.

71 BB’s attitude and response to the contact has also clearly been positive: as late as February 2010 (Tab 161) an independent supervisor’s report shows that BB was very excited on seeing his parents – and quiet and withdrawn when they left. At tab 152 there is a note describing positive contact with his parents in January 2010. Again, in March 2010 he was happy to be within the family unit. He went to his grandparents’ home during that visit.

Research material said to support DoHS’ position

72 DoHS’ proposal to reduce contact is based on summaries of departmental research. That research has been summarised by Ms. Crago, who is responsible for BB’s care plan. She referred to the Department’s literature in her evidence. I have read those portions of the relevant research papers as tendered by DoHS in that regard.

73 Overall, the research is general in describing the effects of various levels of contact. The research acknowledges the difficulty in determining the duration and frequency of contact and reiterates that decisions regarding contact are to be made on a case-by-case basis. Even among the views of foster children there is minimal consistency.

74 There are two additional issues I have with the research that has been placed before me. Firstly, the proposed frequency of contact between BB and his parents is based on a care plan to place BB in long-term, permanent foster care. This is a significant determinative basisfor the application of the research. The documents suggest that, where restoration is not a realistic possibility, extensive contact will not be sustainable nor beneficial for the child. On the evidence of Ms. Farrell and the strong submission of the independent child’s legal representative, I do not agree with DoHS’ determination in this regard; namely, that a permanent care placement with foster parents is in BB’s best interest. On this basis, the proposed diminution of contact seems unsatisfactory and against BB’s long term interests.

75 The DoHS submits that there is evidence of neglect amounting to negligent care and abuse warranting what is effectively a diminution to the point of virtual cessation of contact between BB and his parents. There may have been instances of disorder and lack of cleanliness in the parents’ home. However, I do not regard the parents’ actions as constituting abuse nor even neglect.

76 The second issue is this: many of the factors considered in determining duration and frequency of contact refer to an abused or maltreated child when looking to minimise contact. In my view, this is not a relevant consideration in this case. In fact, none of the research specifically addresses BB’s situation in even a summary sense by outlining principles in approaching contact and care plans between children and parents with mental health issues or intellectual impairments which are appropriate in this case.

77 The research tendered during the proceedings also included some material on the issue of attachment. The precise psychological definition of attachment has been the source of some reservation throughout the proceedings, with parties’ and witnesses being reluctant to use the term in anything more than its generic, every-day meaning. There is no expert evidence on the level of attachment BB has, or has had, with any of his primary carers.

78 On the evidence, it seems that BB has had a series of attachments over the time of his various placements. BB’s attachment to Ms. JR was unfortunately severed. Whatever other attachments BB has have also been, at the very least, interrupted.

79 The research describes three types of attachment: a secure attachment where the carer provides consistent and responsive care, allowing the child to develop a sense of belonging and trust; social competencies and emotional intelligence. The second form is defined as an insecure attachment where the child is raised by a carer who is reluctant to respond to their needs and is angry or resentful at meeting the child’s needs. This produces distrust and a lack of empathy in the child. The third type of attachment defined in the literature is ‘disorganised attachment’, characterised by carers who are abusive, neglectful, addicted to drugs and/ or alcohol and/ or victims of domestic violence – rather than parents who may not be well organised or who run a disordered household. I do not see evidence here of a dysfunctional attachment between BB and his parents – notwithstanding the views of Ms. Thornhill as set out in exhibit 1B at tab 38. That appears to conflict with contrary views expressed in an earlier note.

80 Again, given the respective situations of Ms. MB and Mr. JB and their parenting of BB, none of these categories of attachment satisfactorily explain the relationships. The generality and relevance of the research to these specific proceedings was addressed by Ms. Dalton in her submissions on behalf of the child.

Concerns of DoHS

81 The concerns of DoHS case workers and departmental officials are set out in para 11 of Ms Crago’s affidavit of 22 April 2010. There are a number of generic concerns based on opinions as to the inabilities of the parents’ individually and jointly to care for BB or provide for him into the future, as well as specific matters and concerns said to give rise to the overall opinions and position adopted.

82 DoHS has pursued a number of strategies including shared care arrangements and variations to contact arrangements, but ultimately, the relevant case-workers appear to have come to the view that their ongoing concerns as to the parents’ abilities were such that it was in BB’s interests for him to be removed from his parents’ care on a permanent basis after contact was phased out over a period of time.

Summary

83 DoHS’ view has been that the four year history demonstrates an inability on behalf of Mr. JB and Ms. MB to parent BB, to manage their own finances and to manage a household routine. Specifically, the Department notes its concerns as being that

a. The parents are unable to provide a safe environment . Particulars are that the Department’s observations of choking hazards around the home and BB being left with unauthorised people;

b. Health and hygiene issues;

c. BB’s emotional needs are not being met;

d. Medicines prescribed for BB being left where he could access them - two packs of medication were found lying on the loungeroom floor: Panamax and Metronidizole.

e. Analgesic medications were administered to him without the prior approval of a doctor or early-childhood nurse;

f. There was a fire in the kitchen; and

g. An ironing board was left with the ironing chord hanging within reach of the child.

Mrs Farrell

84 Mrs Farrell is a carer employed by the Orange Family Support Service, a jointly funded State government/Uniting Church service. She is, and has been, a teacher for 11 years and has had 8 years service in the family support area. Mrs Farrell gave evidence and was cross-examined.

85 Between 22 October and 22 December 2009, Ms. Farrell made a number of home visits to the parents’ home. Ms. Farrell observed that BB is very attached to his mother and that there was an easy rapport and love between BB and his mother, Ms. MB. To her observation BB has been well-dressed and tidy whenever she has seen him. Her evidence appears to suggest that BB is well and happy in his mother’s care and they have a good and comfortable relationship. Ms Farrell observed his behaviour as being typical and appropriate for his age.

86 Ms Farrell had also been to Mr. Neil B’s home which she said was of a high standard. She had found both Ms. MB and Mr. JB to be generally co-operative; they followed her recommendations on matters of diet and hygiene.

87 Ms. Farrell has had frequent and unimpeded access to the parent’s home and has reported a considerable improvement in their domestic and care arrangements. She believes that the parents would benefit from the employment of a cleaner but stated that both parents have improved in their parenting techniques and practices. She was of the view that they had made sufficient progress and no longer required the level of services previously supplied.

Proposed Education

88 BB currently goes to day centre for two days per week with the Orange Early Education Development (ODEEP) program. The pre-school he attends appears to have been the one consistent venue he has experienced over his short life to date.

89 It would seem from the notes and comments made by the pre-school Director and the ODEEP personnel that the mother has followed up on any queries or issues arising from BB’s education on her own initiative.

Hygiene

90 From the transcript of the proceedings in the Children’s Court proceedings before Magistrate Lucas on 23 November 2009, it seems that there were legitimate and real concerns about the level of hygiene.

91 Ms. Crago acknowledged that DoHS didn’t expect that people will live in ‘pristine houses’ but she stated that the Department had been trying to work with the parents in terms of putting into place routines for tidying up, putting rubbish away and handling general mess around the house. Notwithstanding that, there was a lot of rubbish scattered across kitchen BBches and on the floor as well as mouldy food in the fridge on some occasions. There have also been issues with the real estate agency involved with the parents’ previous tenancy accommodation and a fire which occurred. Ms. Farrell was clearly of the view as at 23 November 2009 (see tab 13, exhibit 3) that the level of hygiene and safety in the parents’ home did not compromise BB’s safety.

92 There are also a number of examples of reports of BB being presented clean and well dressed, balancing out concerns about BB, on occasion, being inadequately clothed.

Parenting Courses

93 Ms. MB has completed a number of parenting courses. Ms. Farrell has reminded her of the need to complete such courses. Ms. Farrell was cross-examined as to her observations and consequent opinion as to an event when a care worker observed an incident of unsatisfactory nappy-changing behaviour by the mother. That comment should be viewed against her overall supportive evidence of the parents’ position.

Evidence as to current care arrangements

94 Certainly DoHS, through at least the opinion of Ms Crago, has full confidence in BB’s current carer, Ms. DF. She is a part-time worker who took 3 months off to assist BB in adjusting to living in her full time care. Ms. DF has had a very good record in caring for other children in a foster environment, including a little girl, Skye, who Ms. DF appears to have got to walk notwithstanding Skye’s significant physical disabilities.

Incident at Orange West Child Care

95 Much of the concern of the DoHS appears to relate to a ‘critical incident’ at the ABC Orange West Child Care Centre. On that occasion, BB was placed in a sink/ wash-stand for the mother, Ms. MB, to apply a head-lice wash to his head. Ms. MB was directed to do this by the staff at the child care centre and BB accidentally fell from the sink/ wash-stand.

96 This was an unfortunate childhood accident. The mother was acting at the direction of the child-care staff. There were no further critical incidents reported during that time nor similar accidents or incidents at other times to be of concern about a pattern of conduct.

Evidence of disruptions

97 Some of the matters referred to as evidence of disruption were set out in the exhibits of Ms Crago’s affidavit. Those included night-time disturbances and night tremors. When BB was the subject of the transitional arrangement to Ms DF, the parents reported BB as having nightmares, night terrors and being generally disrupted. The mother had sought information from the Community Health Nurse about BB’s night-time routine (tab 106 and 110 of exhibit 1B).

98 The carer, Ms DF, also reported that when BB came into her care, BB had night terrors, rocking back and forward when he came into Ms. DF’s care. On the observations of BB’s carer, those behaviours appear to have ceased since November 2009 (affidavit of Ms. DF, 6 May 2010 at [48]) – but that is not consistent with later observations. Shortly after his placement with her full-time in January 2010, Ms DF reported BB as having other conditions such as diarrhoea and being lethargic. There could be many reasons for that.

99 The carer, Ms. DF, also proposed a change in BB’s day care arrangements – although that appears to me to have been the one continuous environment which BB has experienced and from which he has not been removed. There were also complaints by the carer, Ms DF, about the food supplied by the mother. A different teacher has become involved, alleviating Ms. DF’s concerns, and BB has remained at that day care centre. The day care centre provides meals and food for BB.

100 A number of professionals have observed that BB was having difficulty in coping with the expected changes in environment (tab 120, exhibit 1B). That appears to be reflective of the differences in the two environments in which BB has found himself. The day-care centre director reported (tab 122) that BB was distressed continually over a period of weeks and was ‘always asking where his mother is.’

101 When Ms. Crago spoke to BB about going to stay with Ms DF, he accepted that with resignation. He also burst into tears when he saw Ms. Crago on at least one occasion. She interpreted that, in my view, correctly, as BB’s likely perception that she, Ms. Crago, represented those making him change his living arrangements, which at that stage, clearly included his mother and father.

102 There was some evidence (tab 130) that BB had said he’d been hit by the carer Ms. DF and her son as late as 24 November 2009. He was distressed when collected by Ms DF (tab 132). He was clearly a ‘very upset, tired and distressed little boy’ (Ms Crago’s words) following those transfer arrangements.

103 When Ms. DF went on holiday to take her other foster child to see their parents, alternative carers were utilised for BB’s care rather than the parents (tab 133). DB’s foster parents have been enlisted as respite carers for BB’s current foster carer. That was done to see if further evidence could be gained to verify the suggestion of abuse. That again, was another change of personalities which may well have been bewildering to a four year old boy given the ongoing changes there had been.

Submissions

The Independent Child’s Legal Representative

104 Ms. Dalton, the Independent Child’s Legal Representative, supports the parents’ application and does so strongly. She submits the DoHS case has been focused on the negative, not the positive aspects of Mr. JB and Ms. MB’s parenting – and there have been many positive aspects to the parents’ relationship with, and care for, BB.

105 Both Ms Dalton and Ms Fuller have submitted that DoHS required of the parents a higher degree of compliance and care than would be the case had the parents not been diagnosed respectively with Asperger’s syndrome (the father) and intellectual impairment (the mother).

106 The positive features of the parents’ care have been observed by others, for example, the Tresillian nurse who observed the parents over some period of time. The same positive reflections are also evident in Ms. Farrell’s straight-forward and down-to-earth assessment of the parents and their need for support. Ms. Dalton also emphasises that there is evidence from the dietician, Ms Lucinda Walters, that BB’s diet as at 25 June 2009 was nutritious and appropriate for his age.

107 Ms. Dalton also submits that, on the totality of the evidence, such risk factors, if they existed, are no longer of pressing concern. She further submits, as part of her overall criticisms of the DoHS, that the caseworkers severed BB’s attachment to his parents without an assessment of the situation nor the likely effects on him. That, she submits, was particularly inappropriate given the concerns expressed by caseworkers about his clear attachment to his parents.

108 Ms. Dalton further submits that DoHS’ attitude to interfere with, and to some extent to even sabotage, the parent’s ability to care for the child, is demonstrated by the views expressed to the maternal grandmother, discouraging her from assisting with the care of the child (tab 6, exhibit 13, affidavit of Maria B of 20 July 2009). The maternal grandmother clearly has a good and close relationship with BB.

109 Ms. Dalton submits the criticism of the mother in enrolling BB in a junior self-defence class was unjustified. That action, Ms Dalton submits – and I agree - was a proper action for her to take given the concerns there were about BB’s gross motor skills.

110 In summary, Ms. Dalton submits that this removal of BB from his parents, and any future removal would be contrary to BB’s best interests and would represent an unjustified interference in his relationship with his parents.

The Parents

111 Ms. Fuller, on behalf of the parents, submits that BB has, since his birth, lived in ‘two worlds’ where his ongoing care has been disrupted by the care arrangements and variations to them. It needs to be stated that these are not simply variations when viewed through the eyes of a young child, but have involved total upheaval and alteration of his attachment figures on at least two occasions.

112 There have also been a wide variety of people, agencies and professionals involved in his ongoing care and supervision.

113 Ms. Fuller submits that only with the one enduring and consistent placement for BB with his parents will there be a reduced likelihood of breakdown in his primary care attachments. It is further submitted that the best-laid intentions of a foster placement can be derailed due to unforeseen and unplanned events – as occurred with Ms. JR.

DoHS

114 The response by the DoHS is that it is not adequate simply to determine whether the parenting provided by Ms. MB and Mr. JB is “good enough but whether what they are proposing will result in an improved outcome with respect to BB’s safety, welfare and well-being”. Mr. Allen has reminded me of the various incidents said to give rise to the concerns about the parents’ parenting capacities.

115 Without canvassing all the details of all the incidents, he submits that the parents have generally been unable to cope on their own and that all the incidents set out in the exhibited material cast doubts on their capacity for the future. Further, that they are effectively relying on others to parent BB and care for him.

116 Mr. Allen also submits that, were the parent’s application to be successful, the outcome would be an experiment based on a hope - which their track record of parenting does not support.

Law

117 Section 9 of the Act imposes on a court the overriding obligation of the safety, well-being and welfare of the child as the paramount consideration. Matters set out in section 9(2) guide the consideration of what is in the child’s best interests.

118 In my view it is appropriate to grant leave for these proceedings to be commenced given the factors relevant under section 90(2A) which I find to be established. In any event, that leave is not opposed.

119 Section 90(6) of The Act provides

(a) the age of the child or young person,
(b) the wishes of the child or young person and the weight to be given to those wishes,
(c) the length of time the child or young person has been in the care of the present caregivers,
(d) the strength of the child’s or young person’s attachments to the birth parents and the present caregivers,
(e) the capacity of the birth parents to provide an adequate standard of care for the child or young person,
(f) the risk to the child or young person of psychological harm if present care arrangements are varied or rescinded.

Authorities

120 In Re Louise and Belinda [2009] NSWSC 534, Forster J held that the most important consideration under section 9B of the Act (in the circumstances of that case) was to promote stability, absence of change and the maintenance of the status quo – at [53]. The least intrusive form of intervention would normally mean not interfering with the existing care arrangements. It requires, inter alia, an assessment of the strength of the respective bonds the child may have with their natural parents and his/ her foster carers – at [54].

121 Here what status quo there is in the arrangement with the current carer Ms DF has been in place for 4 months. This case presents a vastly different set of circumstances from the circumstances in Re Louise and Belinda, not only in terms of the time involved but also the circumstances of the respective parents and the status quo established.

122 Mr. Allen also relies on a decision of the Children’s Court in DoCS v Young [2004] CLN No. 9 at [11], [36], and [74]. Mr. Allen submits that the ‘lessons of the past’ should be assessed in the light of the active involvement of the Department and its agencies. Here, Mr. Allen submits that there has been four years involvement where concerns have been consistently expressed by a series of DoHS caseworkers.

123 In this case, I do not regard that fact of itself as warranting concern sufficient to justify BB’s removal from his parents’ care. There is evidence to support the criticism made by the independent child’s representative and the solicitor for the parents that a succession of DoHS caseworkers have pursued a relentless and critical scrutiny of these parents over a long period of time and taken actions, particularly in terms of abrupt disruptions to BB’s circumstances without a full consideration of all the circumstances.

Evidence

124 In addition to the written material tendered, evidence was led from:

• Ms. Farrell
• Ms. Griffiths
• Ms. Crago
• Ms. DF (current carer)
• Mr Neil B
• Mr JB
• Ms MB

Consideration

125 This case concerns a young boy of just 4 years of age who, from all accounts, has just managed to survive the frequent changes in care arrangements which have been made for him by a Department which has scrutinised his parents’ activities particularly closely over a long time. BB clearly misses his parents and to the extent that he has experienced trauma, all the evidence points to the fact that this has resulted from the constantly changing arrangements which have been made – which must have been bewildering to him.

126 On one view, it is fortunate that BB does not have any major psychological or psychiatric problems at this stage. A happy, gregarious boy has now had his circumstances changed to a situation where he is anxious, with increased stuttering and clearly experiencing major night tremors and other manifestations of bewilderment. This is a compliant boy who has been taken away from his parents and another carer into the care of a foster carer not previously known to him. That has continued – and those arrangements have continued - notwithstanding his clear and consistent manifestations of loss and of affection for his parents (see tabs 126 ff). As noted in Tab 133, exhibit 1B, in December 2009, BB was clearly stating that he did not want to go with Ms. DF. As observed by Ms. Crago herself, he seemed ‘upset and scared’. In January 2010 it was noted (at tab 141) by caseworkers that BB was ‘very confused about what was happening and where he lived.’

127 In my view, what BB needs is stability with his parents and reassurance that those arrangements are permanent. He has some relatively limited attachment to Ms. DF who is clearly a competent carer as well as being someone who has made a considerable and commendable effort – including sacrifice on a personal level – to make a happy and constructive home for BB.

128 I agree with the submission from the Independent Child’s Representative that ‘it is regrettable that BB experienced the trauma of having his primary attachment to Ms. JR severed’. That happened for whatever reason. What is important is the impact on BB. At the outset of the proceedings, there was little evidence of what attachment, if any, BB has for his new foster carer other than the observation of Ms Crago formed over recent months and Ms. DF’s affidavit and telephone evidence. That is not meant critically of Ms DF. She is clearly a competent and devoted carer and her offer, spontaneously made during her evidence, to provide respite care for the parents, is very commendable. It may be that that could be taken advantage of by the parents but only in circumstances where BB did not become alarmed that it represented a reversion back to the uncertain and changing arrangements which have characterised his life so far.

129 The parents have some difficulties in coping on their own. There were some relatively minor problems with prior accommodation - see exhibit 24. They have complied with the directions and attended all courses they have been required to attend. The mother has also acted on her own initiative on a number of occasions to better BB’s interests and her own parenting skills. When that advice or those supervising arrangements have been put into place, either formally or informally through Mr. Neil B, the care arrangements for BB have been adequate.

130 The parents need to be provided with assistance and there needs to be some relatively minor supervision to ensure that the parents’ care of BB is appropriate. In my view, that supervision will be present as long as the parents remain either living with Neil B or closely associated with him. BB’s continued attendance at pre-school and then a school where there are people familiar with him and his stages of development will also assist. Further, there are clearly services available in Orange to assist the parents in their parenting skills through the Orange Family Service - as well as BB’s educational needs through ODEEP.

131 In my view, the parents have readily recruited and permitted services and support to assist them with care whenever necessary. Those services and support, together with the family help from the grandparents - and when coupled with the undertakings given - constitute a framework in which BB’s long-term best interests can be advanced.

132 The monitoring which may be necessary to ensure the arrangement is in BB’s interests is implicit in the structure of the arrangements which is provided by the undertakings which the parents have signed this morning. Both parents are content with supervision although do not consider it essential.

133 I do not regard the actions of the parents and the implicit criticism involved in DB being taken from them as being directly relevant to their abilities in respect of BB. DB has different and much more extensive issues than BB currently has. The outcome of any appeal against the care orders made for DB is a matter of conjecture and, in any event, will involve different considerations.

134 This is not a case where there are any of the problems of alcohol, drug or substance abuse, domestic or other violence, nor malevolence nor toxic conduct towards children by parents, step-parents or others commonly found in care cases. This is an intact family with working parents who clearly and consistently have shown their love for their son and who have a structure of supporting grandparents.

135 There appear to have been some incidents which, on the evidence before me, are not sufficiently significant to warrant a finding that the parents, if they are provided with a proper level of support, cannot provide for BB’s welfare. Even the cumulative affect of those incidents does not amount to a systematic failure of care by the parents. They are parents who love their child very deeply and have done so consistently. They clearly need support – most parents do at some stage throughout the demanding life which is that of an involved parent. These parents are involved. They have never abandoned their boy nor their responsibilities. Their needs may be greater than, or simply different to, those of other parents, but, in my view, BB’s best interests would be served by remaining with his parents with them receiving positively focussed assistance rather than ongoing critical scrutiny.

136 The parents have been criticised on the basis that there has been a consistent and clear lack of ability on their part to provide for BB on a day-to-day basis and prioritise his needs over theirs. I do not consider that the evidence nor the presentation of either parent justifies this criticism or concern. The evidence is that the parents have, at all times, been highly compliant with the Department’s recommendations and requirements as well as those of other support services. They have relied upon various support services offered within the community as well as the respective grandparents. Although there have been some issues between BB’s parents and grandparents, these appear to have been of a relatively minor nature.

137 In addition to the stress of BB’s removal, the parents have had to cope with the DoHS’ actions in removing their second child, DB. That may well have been justified – I do not know. There is an order in force. There is a placement hearing and a preliminary determination which will take place later in the year. An appeal from any orders, if made, may or may not be successful. My orders relate to BB only. His placement with his parents and Mr Neil B will doubtless be considered by another court in determining the evidence relevant to DB’s circumstances.

138 Both parents, particularly the mother, have been the subjects of quite extraordinary scrutiny by a range of professionals and others. They have been assessed by a variety of individuals and processes. They have both undertaken various parenting courses. The mother undertook many programs in which she participated enthusiastically. She would appear to have done well in terms of absorbing and applying the lessons learnt.

139 Mr. JB has voluntarily sought and followed psychological assistance for his depression in March 2010. Whatever his situation is, it must be viewed against the background that at that time, both his children had been removed and he was facing proceedings on a number of fronts. His accommodation had been brought to an end. Despite all that, he has functioned and functioned appropriately.

Conclusion

140 I have considered all the factors set out under section 90(6) of the Act. In terms of the provisions of s 90(6), the length of time of the current care arrangements (9 months, shared care and 5 months full time care since January 2010) are not such to prevent the orders which will be made. I do not regard any status quo as being of such length, or strength, to outweigh the benefits of the reversion of BB to his parents and grandfather. Put conversely in terms of section 90(6)(f), I do not consider that there is a risk of psychological harm if the parents and Mr. Neil B have the care of BB. Further, if the child remains in his current care arrangements – particularly given the manifestations of distress BB has exhibited in his current situation – there is a risk of psychological harm to BB.

141 To the extent his wishes are relevant at his age and state of development, they are clearly manifested as a strong desire to be with his family unit, especially his mother. His attachment to his parents, especially his mother, is strong. I find that, provided the structure outlined in the undertakings is continued, those arrangements will provide an adequate standard of care for BB. For those purposes ‘adequate’ is such that it fulfils BB’s needs for stability as well as consistent physical and emotional support.

142 I have reviewed the Care Plan submitted by DoHS. Having reviewed the evidence about what was said to be evidence of disruption and having heard submissions, I find that the arrangement put in place and altered over the course of 2009 and 2010 has been very disruptive to BB; further, that the cumulative effect of all those changes has not been in his best interests.

143 I consider that no other order other than the orders I will make as set out below will be sufficient to meet the child’s needs.

:

1. I grant leave to the parents and Mr. Neil B to bring this application pursuant to section 90 of the Children and Young Persons Care and Protection Act (1998) (“the Act”).
2. The appeal commenced by the parents, Ms. MB and Mr. JB, on 8 January 2010 be allowed.
3. The orders of the Children’s Court at Orange of 8 June 2007 and 21 December 2009 are rescinded pursuant to section 90 (1) of the Act
4. Joint parental responsibility for BB be shared by Ms. MB, Mr. JB and Neil B pursuant to section 79 (1)(a)(ii) of the Act.
5. The specific aspects of parental responsibility which Mr. Neil B is to supervise include those specified in section 79(2) paragraphs (a), (c), (d) and (e) of the Act.
6. BB shall be placed under the supervision of the Director-General for a period of 12 months from the date of the Orders, pursuant to section 76 of the Act.
7. Pursuant to section 73(1) of the Act, I accept the signed undertakings of Ms. MB, Mr. JB and Neil B annexed hereto and marked “A”. Orders made in accordance with those undertakings are to remain in force until BB attains the age of 18 years.
8. Pursuant to section 74(1) of the Act, I order that the Orange Family Support Services, in accordance with the undertakings given, provide such support for BB, Ms. MB, Mr. JB and Neil B as the Orange Family Support Services deems necessary for a period of 12 months from the date of these Orders.
9. Neither the parents or either of them shall contact, or come on the property of, Ms DF, unless that is arranged through DoHS officers at the Orange office of DoHS.
10. These orders are to come into effect on 14 May, 2010 after consultation between the parties, the independent child’s representative, Ms Dalton, and Ms Crago.
11. Leave is granted for Ms Fuller, solicitor, to provide a copy of these orders and reasons and undertakings to the Orange Family Support Service and any other institution providing full-time care or assistance for BB.

Undertakings

A. I note the undertakings of the parents given on May 2010.

B. I also note the undertaking provided by Ms. Ellie Hayes, co-ordinator of the Orange Family Support Services (as set out in exhibit 23) to continue to provide family support. services for BB and his parents for as long as that service is able and funded to do so.

Notations

(i) I note the consent of the Director-General pursuant to the provisions of s 86(2) of the Children and Young Persons (Care and Protection) Act (NSW) 1998 (‘The Act’).