JMS v Department of Family and Community Services

[2018] NSWDC 25

District Court

New South Wales

Medium Neutral Citation:	JMS v Department of Family and Community Services & Ors [2018] NSWDC 25
Hearing dates:	19-21 February 2018
Date of orders:	21 February 2018
Decision date:	21 February 2018
Jurisdiction:	Civil
Before:	Knox SC ADCJ
Decision:	Appeal allowed. Orders made as below.
Catchwords:	CHILDRENS COURT APPEAL – Supervised contact – Benchmarks for supervised contact – Shared custody between separated parents – Volatile relationship – Custody of young children – Mental health – Drug and alcohol – Breach of undertakings – Care plan – Time period for supervised contact – Time line and events – Personal development – Insight into past behaviour – Professional assessment and relationships
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998
Cases Cited:	Re Tanya [2016] NSW SC 794
Texts Cited:	Children’s Court of NSW, ‘Contact Guidelines for Magistrates’, Marien J (2011)
Category:	Principal judgment
Parties:	JMS v Department of Family and Community Services & Ors
Representation:	Counsel: Plaintiff (Mother): Mr G Hill First Defendant (FACS): Ms G.F. Mahony Second Defendant (Father): Mr D Schier Third Defendant (Independent Legal Representative for the Children): Mr P Ryan   Solicitors: Plaintiff (Mother): Elizabeth Fleming & Associates First Defendant (FACS): Crown Solicitor’s Office Second Defendant (Father): DMS Lawyers Third Defendant (Independent Legal Representative for the Children): Peter Ryan Solicitors
File Number(s):	2017/184584
Publication restriction:	Restricted. (Decision for publication has identifying details removed)

JUDGEMENT

Issue: Children

1. The issue in this case concerns the parenting and care arrangements to be made for:

KE (male), born 2012

JM (female), born 2014

2. Despite the different surnames of the children, there is no issue that both children are the children of the parties.

3. For the purpose of these proceedings the orders sought and arrangements to be made are identical for both children.

The Parties

4. The Mother (Plaintiff) JMS aged 25. JMS is on Centrelink benefits.

5. The Father (Second Defendant), SE aged 30. He is also on Centrelink benefits.

6. The parties were never married to each other. They commenced a relationship sometime around 2002 which continued through to 2014. The children were born during the relationship.

7. Between 2014 and September 2016 the relationship between the parents is best described as “on again/off again”. The parties last ceased their relationship on 23 September 2016 and have not reconciled since that time.

8. Other significant figures in the children’s life are:

• The maternal aunt, DM;

• The paternal grandfather WE, and paternal great grandmother LE;

• The paternal aunt, JP;

• The mother’s husband RW. There is a dispute about whether the mother is currently living with RW, and if so, where and in what circumstances. FACS do not consider that he is a significant figure in the children’s lives at the moment in that it is said that his relationship with the mother ceased in September 2016. However, he had a significance in the breakdown of the parties’ relationship in the circumstances as set out below;

• TO (previous carer for the children who continues to have contact with the children); and

• CW (previous carer for the children who continues to have contact with the children)

Proceedings

9. These proceedings come to this Court by way of an appeal from an order made in the Children’s Court at a southern New South Wales regional city (Proceedings number: 2017/184584).

10. The mother has proceeded by way of a summons filed 20 June 2017. That was about 10 weeks out of time, the delay arising apparently from the mother’s medical condition. Leave was granted by Judge Olsson SC on 7 August 2017 for the mother to proceed with her appeal. That application was not opposed.

Cross Summons

11. On the first day of the hearing, Counsel for the first respondent (FACS) sought leave to file and rely on a cross-summons. That was not opposed. The effect of the cross-summons will be to seek and permit supervision of the family for another 12 months. In my view this is entirely appropriate and will be reflected in the orders made.

12. All parties submit that if orders are made in accordance with that cross-summons, and in accordance with the orders attached to these reasons, any issues arising out of the earlier Children’s Court orders will be rectified.

Evidence

13. Pursuant to section 91 of the Children and Young Persons (Care and Protection) Act 1998 (“the Act”) these proceedings are considered to be a re-hearing de novo.

14. I have received two folders of material prepared by FACS (“Exhibit 1”).

15. “Exhibit 2” (tendered by the father) is a copy of the orders made by a southern New South Wales coastal town Children’s Court on 27.10.2016 and 15.12.2016.

16. Other than up to date addenda to the Care Plans being filed, no other party sought to adduce any other evidence.

Background

17. A short history of the relevant family circumstances and that of the children and other individuals is as follows.

18. These children were removed from their parents by FACS on 24 December 2014. That removal came about as a result of domestic violence within the relationship as well as the impact of the mother’s mental health on the children, cross-allegations of drug use by both parents and breaches of an AVO by the father.

19. The children were then placed with out of home carers (foster carers).

20. On 5 March 2015 interim orders were made placing each of the children under the parental responsibility of the Minister.

21. The children remained in the care of the carers until July 2015 when, following an assessment of the parents by FACS caseworkers, the children were restored to their parents on a shared care arrangement.

22. On 22 September 2016, the mother and RW made an allegation to the New South Wales Police that the father broke into their home and assaulted the mother both sexually and physically. The mother, in her affidavit of 23 January 2018, gave evidence that the allegations included the father penetrating both her anus and her vagina. During the preliminary course of the investigation, the mother and RW admitted to police that the incident did not occur.

23. On 26 September 2016, the children were placed in an emergency placement with DM (maternal great aunt) and DM’s partner.

24. On 29 September 2016, the Secretary filed a s. 90 Application to the Children’s Court of NSW and filed a Notification of Breach of Undertaking with that Court.

25. On 30 in November 2016, the mother was charged with public mischief regarding the false allegations made by her against the father. The mother ultimately pleaded guilty to those matters and, her evidence is that she was sentenced to a 12 month good behaviour bond.

26. The children were restored to the father on 13 March 2017. They have been in his care since that time. Apart from what was clearly a violent incident with his then partner (not the mother) in December 2017 – in which the children were not involved nor present – there have been no concerns about the environment in which he has raised the children over that period.

Children’s Court orders of 19 September 2015

27. On 19 September 2015, the Children’s Court made final orders by consent including making a finding that there was a realistic possibility of restoration to the parents. Both the mother and the father agree that they continued to engage in an “on again/off again” relationship which included a sexual relationship.

28. Orders were made whereby the parents had the shared care of the children and the mother had unsupervised contact with the children.

29. The parents gave undertakings which were expressed to continue for three years.

Breaches of undertakings given by the parents and accepted by the Children’s Court on 17 September 2015

30. The orders were made on the basis that the parties give undertakings, which were to be reduced to writing and signed by each parent.

31. Over the next months there were breaches of those undertakings. There is a dispute about whether one, or (more probably) both, parties were in breach of undertakings they had given not to come into contact with each other.

32. The significance of this issue relates to whether the parties, or either of them, can be relied on by FACS and the Courts not to pursue those aspects of their relationship which appear to cause friction, and to control their behaviour which has not been in the interests of the children.

33. Undertakings now given by the parties are attached to these reasons. If complied with, these will provide a framework for contact which is in the best interests of the children.

Incident of 22 September 2016.

34. The mother and her then partner, Mr RW, manufactured a series of very serious allegations against the father including that the father had broken into their home, and that he had anally and vaginally raped the mother. That event was said by the mother to have been only brought to an end by RW’s involvement in stopping the father. The allegations were clearly wrong. In fact the mother had driven the father to the home with his consent.

35. Both the mother and RW subsequently admitted that those allegations were untrue. The mother pleaded guilty to charges arising from those matters. She was prosecuted and placed on a 12 month bond.

36. Those were serious allegations and led to the father being arrested, and an AVO being taken out against him including an order preventing him having contact with the children. The mother also said to FACS workers that she didn’t want to speak to them due to her being “traumatised by the previous evening’s events”.

37. In that regard, it is also of concern that the mother lied about having a cancer diagnosis in September 2017 – immediately prior to the Children’s Court proceedings. Her doctor, Dr T, has provided evidence that that assertion by her was not true.

38. The allegations have led to considerable and justifiable reservations about the mother’s credibility and her capacity to manipulate legal and law enforcement processes to advance her interests. It also gives rise to concerns about her capacity to become involved in relationships which have clearly dysfunctional aspects.

Children's Court orders of 16 March 2017

39. A s. 90 Application under the Care Act was filed by the Secretary on 29 September 2016 with the Children’s Court of NSW. A Notification of Breach of s. 73 Undertakings was also filed with the Court on that same day in relation to the undertakings given by the parents and accepted by the Children’s Court on 17 September 2015.

40. On 8 February 2017, the Secretary filed with the Children’s Court of NSW, Care Plans in respect of each child, a proposed Undertaking for each parent which it was proposed by FACS that the mother and the father would agree to and comply with, and a proposed Minute of Care Order. Both the mother and father were legally represented in those proceedings at that time.

41. On 16 March 2017, the Children's Court of New South Wales made final orders allocating parental responsibility in respect of each child to the father, having found that there was no realistic possibility of restoration of the children to the mother, with such parental responsibility being to the exclusion of the mother. In addition, the Court ordered there be a 12 month supervision order under s. 76 of the Act and that undertakings be accepted from each of the parents. Each undertaking was expressly documented to be for a period of three years.

42. It was, and is, suggested by the mother that her legal representation informed her the previous day that they would not be in attendance. The mother was not in attendance when the final orders were made. Her previous solicitor did not appear for her at that stage.

43. The Children’s Court further ordered that the mother “…is prohibited from having any contact with the children, by any means, until she has signed the attached Form of Undertakings and delivered it to the Court Registry.” The mother failed to sign that undertaking until 16 August 2017.

44. It appears that the Children’s Court made orders on 16 March 2017 when there had been a breach of undertakings on which prior orders had been made. It appears both parties were in breach of the undertakings that each party gave not to come into contact with the other. That is said to have meant that the provisions of s 73(4) – (6) of the Act have been breached.

Current arrangements for the children

45. The children are currently living with the father in a three bedroom home. Those arrangements have been assessed and found to be appropriate. The children both attend the same pre-school where they appear to be progressing well. Although KE was held back for a year, there are no reported behavioural issues.

46. The children have seen their mother in supervised contact sessions and appear to be happy to continue with that. The father appears to be supportive of that continuing supervised contact by the mother. He has said in an affidavit of 9 February 2018 that, if there are any ongoing difficulties that he knows where and to whom to go in terms of counsellors (Mr S) to get assistance with any issues. He says that the children currently do not exhibit any of the ‘clinginess’ that they previously exhibited after contact sessions.

AVO proceedings

47. One of the FACS’ caseworkers concerns was the level and frequency of the mother’s allegations of domestic violence and the fact that she either withdrew or did not proceed with those charges.

48. The FACS file note record of 28 September 2016 (page 2, paragraph 7) expressed concerns about “a history of Domestic Violence between SE and JMS with inconsistent application of ADVOs”.

Drug/alcohol consumption

49. Father: The FACS care plans for both children note a history of alcohol misuse by SE.

50. The mother is currently attending the local medical centre where she receives psychiatric assistance. The local medical centre reports on 31 July 2017 JMS ‘smoking ice, in 2013-2014; got happy, increased energy, house clear, more moderate’.  On 11 September 2017, in a teleconference with the local medical centre, the mother reported that she had been spending $400 per week on "pot" which she had reduced down to $200 per week. On 30 November 2017, the mother stated in a meeting with FACS caseworkers that it had only been three weeks since she had stopped smoking “pot”.

51. Dr T in a letter dated 25 October 2017, confirms periods of substance abuse, noting he has been her treating physician since September 2011.

Psychiatric treatment and condition

52. The mother clearly has some mental and emotional issues. She was diagnosed in 2009 with bipolar affective disorder with manic episodes. By letter dated 2 September 2014, the local medical centre offered a diagnosis of a Unipolar Postnatal Depression with possibly a differential diagnosis of Bipolar II Disorder in view of her history. By letter dated 18 September 2014, a diagnosis of a personality structure in the DSM-IV Cluster-B group, was considered by the local medical centre.

53. Most recently, the local medical centre by letter dated 24 July 2017, and confirmed by a further letter dated 14 December 2017, diagnosed the mother with “Bipolar II Disorder, yet (sic) psychotic episodes favour Schizoaffective disorder, Social Anxiety, Panic Disorder with Agoraphobia, Obsessive Compulsive Disorder, Post-Traumatic Stress Disorder; cluster B traits”.

Care plans

54. A Care Plan in relation to each child was filed with the Children’s Court on 5 August 2015. The orders to be made appear to follow the fundamental basis of those plans, while also observing and catering for the events which have occurred since that time.

55. The Care Plan prepared for the Children’s Court proceedings provided for a minimum of 12 contact occasions per year. That proposal is contained in the orders annexed to these reasons.

56. Addenda to the respective care plans prepared 8 February 2018 were filed on 20 February 2018. They form part of Exhibit 1.

Mother’s application

57. The mother effectively seeks a restoration of the position to the orders of 19 September 2015. However, that does not take into account the events which have transpired since, including:

1. Ongoing care for the children by parties not including the mother; as well as

2. The mother’s unfounded allegations which raise serious issues about her credibility and the reliance which may be placed on any undertakings she may give.

58. The mother sought the restoration of the children to her care. In the alternative, she sought defined contact orders and to have unsupervised contact. After lengthy discussions and negotiations on the first day of the hearing, the mother abandoned those applications and now joins in seeking to have the orders made by consent on the basis of the undertakings to be given by both parties and the guidelines to be noted.

Mother’s current situation

59. There appears to be issues with the mother’s living arrangements. She was said to be living in a tent in November 2017. Further, she is now pregnant although there appears to be an issue about the paternity of that unborn child. It is agreed that the father in these proceedings is not the father of that child. That child is expected to be born in July 2018.

Contact: supervision by Catholic Care in a southern New South Wales regional city.

60. The mother’s current contact takes place in a southern New South Wales coastal town and is supervised by a Catholic foundation, which is an agency contracted by FACS. The views of that agency on the ongoing supervision requirements are that they are prepared to supervise the contact in conjunction with FACS caseworkers.

Cost of supervised contact

61. At this stage FACS will organise and fund the cost of supervised contact for the duration of the Minister’s parental responsibility within FACS financial guidelines.

Mother’s contact with supervising agency

62. The mother’s contact to the children has been spasmodic over recent months. FACS, the father and the ILR seek to have that made both more regular and consistent. However, that contact has occurred on a monthly basis in a supervised forum since 22 December 2017.

Father’s position

63. The father proposes that the specific day-to-day care and responsibility orders be vested in him but accepts that FACS will have the ongoing responsibility for determining the mother’s contact with the children.

64. The father (in his affidavit sworn 9 February 2018) opposes the mother being given any form of parental responsibility for the children nor to share the parental responsibility with her. He also submits that it is essential that the mother’s contact should be supervised.

65. The father’s insistence on supervised contact is based on his apprehension that the mother may attempt to destabilise the children’s placement if her contact is unsupervised. Further, he submits that there is no evidence that the mother has or is satisfactorily addressing her mental health issues.

66. He says that he has engaged in anger and alcohol counselling, particularly to pursue strategies to avoid a relationship with the mother. That is important given that prior instances of contact between them, despite their undertakings not to have that contact, has led to dysfunctional and violent situations.

67. That is against the background of the parties being in an ‘on again off again’ relationship for a number of years and at least until September 2016. The Minister’s specific responsibility in this area is designed to meet the difficulties the parties have in negotiating this aspect of their relationship.

Current arrangements

68. The father’s affidavit sets out his current accommodation arrangements and in particular, those for the children. He also sets out the arrangements he has made for the children to come into contact with members of their extended family.

69. None of those arrangements appear to be challenged to any significant extent.

Father’s ongoing relationships

70. The father had a casual relationship with a female which ended following an incident of violence against the father’s property on 31 December 2017. That incident resulted in the father calling the NSW Police and an AVO being taken out for the protection of the father. The father confirmed to the Court that that relationship has now ended.

FACS

71. FACS seeks that the parental responsibility for the children be vested in the father save and except for contact to the children by the mother. Responsibility for that contact is sought to be exercised by the Minister.

Submissions of the ILR/wishes of the children

72. The Independent Children’s Lawyer submits that the children need to see their mother regularly. Further that parental responsibility for the children should be vested in the father save and excepted for organising contact. That should be organised by and supervised by FACS. The ILR has urged that the mother’s contact should occur according to the established guidelines. If the mother achieves the matters specified in the document in Annexure C and filed in these proceedings on 20 February 2018, the ILR submits that the mother can move to have unsupervised contact during that four year period.

Undertakings

73. All parties submit that the arrangements and orders foreshadowed and negotiated be made on the basis of the undertakings given. The parties have had those undertakings – and the effect of them – explained to them (see below: transcript of 19 February at pp 29-30).

Law

74. These applications need to be considered under the provisions of the Children and Young Persons (Care and Protection) Act 1998.

75. The object of the Act, which guides decision-making in this area, is provided by section 8. Section 8 sets out the principles to be applied in decisions concerning children, namely, the safety, welfare and wellbeing of the child must be the paramount consideration. Here also a relevant question is the need (recognised by paragraph 9(d) of the Act) to determine what order will protect the children from the least intrusive intervention in their lives consistent with the paramount concern to protect them from harm and to promote their development.

76. The approach to be adopted in Courts in this position was set out in Re Tanya [2016] NSW SC 794 at [69] per Rein J, and other similar authorities.

Consideration

77. There are a number of areas for concern arising from the material before the Court. The parties have been in a volatile relationship over a number of years and, for whatever reason, have not had either the capacity or maturity to act in their children’s interests in many respects.

78. Equally clearly, undertakings are necessary to ensure that the parties’ dysfunctional behaviour, certainly collectively and probably individually, is not visited on these two young children. One of their clear needs is for consistent and stable parenting.

79. The mother appears not to have engaged with FACS officers generally and specifically not in relation to the events which led to the children being taken into care. The undertakings and orders address their concern.

80. The mother’s actions and professed care for the children need to be considered in the context of her delays in providing signed copies of the undertakings required of her for substantial periods of time.

81. It is difficult to accept her desire to be involved in the children’s lives on a consistent basis when she has been unable to manage her life and circumstances even to the extent of signing the undertakings she gave on earlier occasions she must have known for at least three months that that pre-condition was a precursor to achieving contact but there is little or no evidence as to why she did not take that preliminary step.

82. On the material before me, there are also clear indicators that there are real issues of stability on the mother’s life and circumstances. These have been addressed in the ‘Agreed Benchmarks’ attached to these reasons (see Annexure C). These provide a structured framework in which the mother can operate if she wishes to move towards her goal of unsupervised contact to her children.

Concerns in relation to the father

83. There are also concerns about the father’s living arrangements, including the father’s entry into a relationship with a partner who apparently smashed his car windows while intoxicated. That led to AVO proceedings taken out either by or on the father’s behalf. However, FACS now has no concerns about the father’s living arrangements and, given the AVO taken out as set out and the father’s unequivocal statement that he has ended that relationship, also holds no concerns as to his ongoing relationship with that person.

84. It also appears that the father had lied to the FACS caseworkers during the period 17 September 2015 and 23 September 2016 about the extent and nature of his relationship with the mother.

85. These aspects give the Court concern about the future. However, the father now appears to be coping as well as can be expected with the assistance he has been given now.

86. Importantly, there is no evidence of any breaches of undertakings by him of matters going to his care of the children. I see no evidence that the father has interfered with the mother’s contact to the children. He appears to accept the concept and reality of the mother’s contact being supervised by FACS. He has had the agreed guidelines – and the objective of those guidelines – explained to him.

Findings

Findings on restoration

1. I confirm the findings and determinations made in the Children’s Court on 27 October 2016 in relation to the then section 90 leave application.

2. I note pursuant to s 73(5) that an opportunity has been given to the parties and each of the mother and father in relation to the allegations of a breach of undertakings given by the parties individually.

3. I find that those breaches have occurred.

4. I confirm the findings made by the Children’s Court on 15 December 2016 in relation to the breach of undertakings by both the mother and the father.

5. The orders as set out below are all in the circumstances appropriate on the basis of the evidence and undertakings before the Court.

6. I find that the children are in need of care and protection.

7. I accept the assessment, and find, that there is no reasonable possibility of restoration of the children to their mother.

8. I accept the assessment and find, that there is a realistic possibility of the restoration of the children to the father.

Findings on FACS proposals

1. Further, I find that the arrangements proposed by FACS and the father will advance the children’s proper and safe development and their health and educational needs.

2. The proposals for the children meet the criteria which I am required to consider under the Act which I have set out earlier in these reasons, in particular that the plan will meet the needs for the safety, welfare and well-being of the children;

3. I also find that the areas of parental responsibility specified in that plan should be the sole responsibility of the father with contact to be organised through FACS.

4. I also find that the proposals are the least intrusive intervention in the life of the children consistent with their protection from harm and to promote their development; further, that the proposals, provided they are incorporated in the context of ongoing contact rights to the mother and grandmother will protect their identity and the different aspects of their culture.

Permanency planning

1. I find that the permanency planning for each of the children has been appropriately and adequately addressed

Orders proposed – See Annexure A

87. Following submissions, it is appropriate that I make the orders (attached) on the following basis:

1. Pursuant to ss. 91(5) of the Children and Young People (Care and Protection) Act 1998 (“the Care Act”), the Court confirms the Children’s Court’s finding of 15 December 2016 as to the breach of undertakings given by the father and the breach of undertakings given by the mother and confirms the grant of leave given by the Children’s Court on 27 October 2016 pursuant to s 90 of the Care Act.

2. Pursuant to ss. 90(7) of the Care Act, the Court rescinds the orders made by the Children’s Court on 16 March 2017 and makes orders in accordance with paragraphs 1-9 (inclusive) of the Orders at Annexure A, consented to by each of the parties in these proceedings.

3. The Court notes the matters at A, B and C of the Orders at Annexure A, consented to by each of the parties in these proceedings.

4. The Court has considered and accepted the Care Plan filed 8 February 2017 in the Children’s Court of NSW (at a southern New South Wales regional city) and the Addenda to that care Plan dated 20 February 2018 and filed in these proceedings.

88. I order that the children be placed under the parental responsibility of the father pursuant to section 79(1)(a) of the Children and Young Persons (Care and Protection) Act 1998 until they are each 18; save and except for under s 79(1) (b) that the Minister hold parental responsibility for contact for a period of four years. The supervisory order is made under s 76 for a period of 12 months.

89. I make orders in accordance with the care plan submitted and signed by the parties. A copy of that plan is annexed to these reasons.

Explanation of orders to children

90. Given the ages and developmental capacity of the children and the period of time during which they have been in their current situation, I do not consider that it is necessary for these orders to be explained to the children.

91. Leave is granted to legal representatives from the Crown Solicitor’s Office, to provide a copy of these orders and reasons and undertakings to the Catholic Care Agency at a southern New South Wales regional city, the Family Support Service and any other institution providing full-time care or assistance for the children or which is involved in any aspect of the supervisory arrangements.

Undertakings – see Annexure B

92. Pursuant to Section 73 (1) (a) of the Act the Court accepts undertakings from the parties as set out in Annexure B.

93. In accepting these undertakings given by the parties it is noted that the legal representatives for the parties have explained these undertakings to the parties. Further, that the parties have been in Court when the terms and effect of the orders have been explained.

Consent to supervise

94. 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.

Agreed Benchmarks – see Annexure C

95. Following extensive discussions amongst the parties and their legal representative a set of “Agreed Benchmarks” were negotiated and submitted to the Court. Those are set out as an annexure to these orders (“Annexure C”). I have noted that these Benchmarks form part of the background and basis on which the orders have been made and the undertakings given. They may also have a future evidentiary value – see below “Future Use”.

96. The benchmarks were developed during the hearing by all the lawyers as well as the parties in conjunction with the caseworkers and with the encouragement of the Court after viewing a number of drafts. The representatives jointly ensured they were appropriate to give the parties an appreciation of what is likely to occur with the stages of those benchmarks. They refer specifically to stages of the process of assessment and other matters which are likely to occur in determining the ongoing impact of the supervised contact. They provide a clear and transparent structure within which the parties can, and will be expected to, operate to advance their children’s best interests - and with a view to minimising any future proceedings.

97. The benchmarks developed in this case have been tailored to the facts of the case and the issues of these particular parties. They are consistent with the generic Guidelines for contact developed by the Children’s Court ( which reflect the multi-disciplinary learning and experience of that specialist jurisdiction.

98. The benchmarks in their final format are very much a tribute to the experience and competence of the lawyers and caseworkers involved in assisting the parties – and the court – in trying to provide a realistic framework for the future for these children on the vexed and historical issues of contact in this case.

Future Use

99. The Benchmarks will have an evidentiary use in the event (for example) that either:

1. The mother wishes to submit at a later stage that she has observed those guidelines. That would be a substantial matter to be taken into account in the event that she seeks to have unsupervised contact;

Or, in the alternative

2. That she has not observed the guidelines in a material respect and that therefore the conditions of supervision should continue or be altered.

100. This potential usage was specifically explained to both the mother and the father when they gave their respective undertakings to the Court and had the importance of those undertakings emphasised to them by the Court. The parties were aware – as has been specifically noted - that FACS supports the agreed benchmarks on the basis that compliance with them by the mother will support her moving to a regime of unsupervised contact. While four years is a relatively long period for such supervision arrangements to continue, it will give the mother an opportunity to see what adjustments to her life are necessary following the birth of her child which is likely to occur by July 2018.

101. The benchmarks include child protection measures consistent to meet the behaviours which have been demonstrated, or at least suggested as a matter of strong inference on the material before the court. Of necessity, they also cover personal development and insight issues and benchmarks which go beyond being simple aspirational statements.

Value of Guidelines and Benchmarks for Supervised Contact

102. I note these matters because in my view the use of such Benchmarks or Guidelines within the context of the generic guidelines developed by the Children’s Court should be encouraged in cases of supervised contact cases.

103. Supervised contact is a regular feature of many care proceedings. Such orders are often necessary and appropriate where there are fears that unsupervised contact is not, or may not be, in a child’s best interests. That can be important where the courts have reservations about the possibility of risks of harm to children but determine that ongoing contact of some nature needs to occur while the value of that contact can be assessed. That is particularly the case where the Courts are charged with determining disputed matters in the context of what might constitute an “unacceptable risk”.

104. These guidelines envisage an end date for the supervision arrangements and the process to reach that end date. In my view that is important and reflects the fact that parties need to take responsibility for their own actions and deal with the reality of new arrangements albeit after heightened tensions commonly experienced following relationship breakups have dissipated. It is self-evident that there can be a degree of artificiality about such supervised arrangements. They are also often resource intensive and expensive. They generally involve public monies or expenditure which the community, the parties and others can ill-afford.

105. Benchmarks such as these may provide one basis to provide certainty and expectations for the parties and to either eliminate or at least minimize the involvement of courts in the future evolution of care and contact arrangements. Where the parties have been involved, as in this case, in the design of the benchmarks, they have objective timelines events to aspire to and abide by.

106. I should note that if there are any breaches of these particular benchmarks, it is not for want of trying by those involved who have been attempting to help the parties move away from those dysfunctional aspects of their lives for the betterment of their children. Here, the future of the ongoing contact arrangements including the supervision aspects is very much in these parties’ hands. If they fail in making the arrangements work, they have only themselves to blame and, importantly, to answer to their children in years to come.

Exhibits

107. I direct that the exhibits be returned to at the expiration of 28 days.

Annexure A

ORDERS

108. That the appeal be allowed.

109. That the final orders of the Children’s Court of NSW at a southern New South Wales regional city on 16 March 2017 in relation to the children, KE, born in 2012 and JM, born in 2014, be varied.

110. Pursuant to section 79(1)(a) of the Children and Young Persons (Care and Protection) Act 1998 (“the Care Act”), parental responsibility of KE, born in 2012 and JM, born in 2014 (“the children”), be allocated to SE to the exclusion of JMS until each child attains the age of 18 years, with the exception of that aspect of parental responsibility outlined in Order 4.

111. Pursuant to section 79(1)(b) of the Care Act, parental responsibility of the children for the aspect of contact will be allocated solely to the Minister for Family and Community Services (“the Minister”) for a period of four years.

112. Pursuant to section 79(1)(a), at the expiration of Order 4, parental responsibility for the aspect of contact will be allocated to SE to the exclusion of JMS until each child attains the age of 18 years.

113. Pursuant to section 73 of the Care Act, the Court accepts the undertakings from the father SE as stipulated on the attached form of undertakings for a period of 2 years from date of final orders.

114. Pursuant to section 73 of the Care Act, the Court accepts the undertakings from the mother JMS as stipulated on the attached form of undertakings for a period of 4 years from date of final orders.

115. Pursuant to section 76 of the Care Act, the children are to be supervised by the Secretary, Department of Family and Community Services (“the Secretary”) and his delegates.

1. Section 76(2)(a) the order for supervision is to ensure the safety and wellbeing of the children.

2. Section 76(2)(b) the purpose of the order is to monitor the progress of the children with their father and to ensure all appropriate support services are continued.

3. Section 76(2)(c) the length of the order is for twelve months from the date of these orders.

116. Pursuant to section 90A of the Care Act, the Court makes an order prohibiting JMS from the following actions in relation to the children until each child attains the age of 18 years:

1. JMS is prohibited from attending, at any time, the residence of the children or any residence that they may, from time to time reside, including but not limited to:

1. An address in a New South Wales town; and

2. Another address in New South Wales.

2. JMS is prohibited from attending or traversing around the following facilities accessed by the children, unless prior written approval is provided by the Secretary or his delegates (for the duration of Order 4), or the father (upon expiry of Order 4) including, but not limited to:

1. The children’s pre-school;

2. Any other childcare accessed or school attended by the children; and

3. Any other support service attended specifically by the children.

3. JMS is prohibited from making contact with SE in any circumstances, except:

1. Through a legal representative or third party as provided by the children’s Care Plans;

2. In the event of an emergency for the purpose of providing details around contact arrangements only. In which case, the contact between JMS and SE is to be in writing, such as text / SMS / email or other electric message. Generally, information about contact including time, venue, supervisor and confirmation of whether or not contact is occurring will be communicated by a third party, including, but not limited to:

4. the contact supervision service or supervisor;

4. a maternal or paternal family member;

5. a neutral party (such as a support service); or

6. the Secretary or his delegates (for duration of Order 4).

1. In any mediation or conciliation type process concerning contact arrangements.

NOTATION:

1. It is the intention of the Secretary’s delegate, in exercising the Minister’s parental responsibility for the aspect of contact, to consult with SE in regard to arrangements for the children and their contact with JMS including on any transition from supervised to unsupervised contact.

2. Upon the mother achieving unsupervised contact and the mother continues to demonstrate her ability to maintain this, the Secretary will consider increased frequency of contact subject to the needs, best interests and wishes of the children and in consultation with the father.

Annexure B

Undertaking by JMS

Section 73 Children and Young Persons (Care and Protection) Act 1998

DETAILS OF UNDERTAKINGS

I, JMS give, subject to reasonable excuse, the following undertakings to the Children’s Court of New South Wales for a period of 4 years:

1. I agree that I will not attend contact if I am under the influence of any illicit substances or alcohol.

2. I agree to provide the person/agency responsible for supervising my contact with the children with a telephone number to contact me on, and update the person/agency should the number change.

3. I agree not to bring any person to contact with me, unless that person has been approved by the Secretary to attend the contact.

4. I agree to follow the guidance and direction of the person/agency responsible for supervising my contact with the children.

5. I agree not to denigrate the father SE or members of his family in the presence of the children.

6. I agree not to say or do anything to the children that may jeopardise the placement of the children with their father SE.

7. In the event SE, the children and I unintentionally cross paths I will take action to remove myself from the situation.

8. I agree not to engage in any behaviour or relationship characterised by violence, irrespective of the children being present. I agree to exclude a person who is using violence from the children’s environment by calling Police if required. I also agree to report any incidences of violence to the Secretary on the same or next business day.

9. I will not to consume alcohol whilst the children are in my sole care. If I choose to consume alcohol, I will ensure that I have organised for the children to be supervised by another responsible adult who is not under the influence of any substance. The children will not return to my sole care until 12 hours after I have finished consuming alcohol.

10. I will not take any drugs other than those prescribed by a doctor and will only take them in accordance with the dosage prescribed.

11. I agree to attend a supervised urinalysis if and as requested by the Secretary.

12. I agree to provide blood samples for the purposes of alcohol testing.

13. I agree to provide any necessary written consents to enable the Secretary to obtain information concerning attendances at the nominated service for urinalysis as well as the results of such testing.

14. I agree to:

1. obtaining any necessary referral to engage with a psychiatrist arranged by the Secretary;

2. positively engage with any psychiatrist arranged by the Secretary;

3. the Secretary informing that psychiatrist as to the facts and matters relating to the children’s removal from my care.

15. I agree to remain engaged with any psychologist or other professional as recommended following an assessment conducted by the psychiatrist nominated by the Secretary and referred to at paragraph 13 above.

16. I agree to accept referrals made from the Secretary in relation to the safety, welfare and wellbeing of my children.

17. I agree to maintain stable housing including ensuring my home is kept to hygienic standard.

18. I agree to maintain a budget that ensures I am able to meet the children’s needs, and engage in financial counselling if required.

SIGNATURE

Signature   

JMS

Date      

Annexure B

Undertaking by SE

Section 73 Children and Young Persons (Care and Protection) Act 1998

TERMS OF UNDERTAKINGS MADE TO THE COURT

I, SE give, subject to reasonable excuse, the following undertakings to the Children’s Court of New South Wales for a period of 2 years:

1. I agree to accept the guidance and reasonable directions of the Secretary.

2. I agree to permit the Secretary to inspect the home, and will not prevent the Secretary speaking with any person in the home including the children.

3. I undertake not to permit any other adult to stay in or reside at (for any period) in my home or the home in which my children reside unless this is approved by the Secretary.

4. I undertake not to make any contact with JMS in any circumstance, except:

1. through a legal representative or third party as provided by the Care Plan

2. In the event of an emergency, for the purposes of providing details around contact arrangements only. In which case the contact between JMS and myself is to be in writing such as text / sms / email or electronic message. Generally, information about contact including time, venue, supervisor and confirmation of whether or not contact is occurring will be communicated by a third party, including but not limited to the contact supervision service or supervisor, a maternal or parental family member, a neutral party such as a support service or the Secretary for the duration of the supervision order.

3. in any mediation or conciliation type process concerning contact arrangements.

5. In the event JMS and I unintentionally cross paths I will take action to remove myself and the children from the situation.

6. I agree not to engage in any behaviour or relationship characterised by violence, irrespective of the children being present. I agree to exclude a person who is using violence from the children’s environment by calling Police if required. I also agree to report any incidences of violence to the Secretary on the same or next business day.

7. I undertake not to consume alcohol whilst the children are in my sole care. If I choose to consume alcohol I will ensure that I have organised for the children to be supervised by another responsible adult who is not under the influence of any substance. The children will not return to my sole care until 12 hours after I have finished consuming alcohol.

8. I undertake not to take any drugs other than those prescribed by a doctor.

9. I agree to attend urinalysis if requested by the Secretary.

10. I agree to provide blood samples for the purposes of alcohol testing for the duration of the supervision order.

11. I agree to provide any necessary written consents to enable the Secretary to obtain information concerning attendances at the nominated service for urinalysis as well as the results of such testing.

12. I agree to remain engaged with my current psychologist until such time as he suggests treatment is no longer required.

13. If I cease engaging with my psychologist, without the written consent of the psychologist, I will notify the Secretary on the next business day if notice is not able to be given.

14. I agree to accept referrals made for me by my current treating psychologist.

15. I agree to accept referrals made from the Secretary in relation to the safety, welfare and wellbeing of my children.

16. I agree that I will not relocate out of the regional area without consultation with the Secretary.

17. I agree to maintain stable housing including ensuring my home is kept to hygienic standard and in accordance with my lease agreement.

18. I agree to maintain a budget that ensures I am able to meet the children’s needs, and engage in financial counselling if required.

SIGNATURE

Signature   

SE

Date      

Annexure C - Benchmarks

AGREED BENCHMARKS FOR MOVING TO UNSUPERVISED CONTACT

For JMS (“the mother”) to have unsupervised contact with the KE and JM (“the children”), the mother needs to commit to and undertake the following:

Contact with the children

117. The mother punctually attend each contact between her and the children, as arranged by the Department.

118. The mother demonstrates an appropriate commitment to making contact a positive experience for the children by:

1. Following the guidance of the person or agency supervising the contact; and

2. Accept and implement the feedback provided to her by the Department about the contact.

119. The mother consistently demonstrate an ability to respond to the children’s emotional and physical needs during supervised contact without assistance from the supervisor.

120. The mother demonstrates appropriate parental capacity to meet the psychological and physical needs of the children during contact, including:

1. adequate protection from and exposure to domestic violence;

2. prioritizing the children’s care as demonstrated through positive and appropriate engagement with the children.

Personal development

121. The mother needs to demonstrate a period of abstinence from drug use following the birth of her impending third child expected in 2018. This includes participating in a drug and alcohol assessment, and following a recommended treatment plan to achieve abstinence and include relapse prevention strategies to maintain abstinence.

122. Undertake random urinalysis when required by the Department and such urinalysis is to be supervised.

123. The mother needs to demonstrate a period of stability in her current housing not punctuated with any period of homelessness, for a period of at least 6 months.

124. The mother not engage in dishonest behaviour.

125. The mother meaningfully engages in a parenting program appropriate for the children’s ages and developmental needs as approved by the Department.

Insight into past behaviours

126. The mother, through her words and actions:

1. Acknowledge the harm the children have been exposed to in the past; and

2. Demonstrate an understanding of how violence and inconsistent care impact the children’s development.

3. Demonstrate an understanding of how her own emotional wellbeing impacts on the children.

127. In respect of the period between 16 March 2017 until 16 August 2017, through her words and actions:

1. accepts responsibility for her failure to do all things necessary to facilitate contact during that period;

2. demonstrates an understanding of the consequences of her actions on the children.

Professional assessments and relationships

128. The mother undertake a formal comprehensive psychiatric assessment, informed by a factual account of the events as provided by the Secretary that have occurred between 2014 until the time of assessment to review her current mental health diagnosis, prognosis and treatment plan and provides a letter from the assessing psychiatrist reporting to the Secretary on that assessment, prognosis and treatment plan.

129. The mother consistently engage in services as recommended through the psychiatric assessment and for the period recommended, including but not limited to medical and psychological professionals to address any issues identified in the assessment as recommended.

130. The mother, following engagements with services:

1. Demonstrates significant and permanent change in her behaviour; and

2. Improvements in her capacity to meet the needs of the children.

131. The mother engage appropriately with Community Services staff and other service providers.

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Decision last updated: 23 April 2018