KL v Department of Community Services (NSW)

[2008] NSWDC 96

CITATION:	KL v Department of Community Services (NSW) [2008] NSWDC 96
HEARING DATE(S):	23 January 2008
JUDGMENT DATE:	23 January 2008
EX TEMPORE JUDGMENT DATE:	23 January 2008
JUDGMENT OF:	Johnstone DCJ at 1
DECISION:	Conditional upon Shine for Kids providing its consent as to supervision, order that the mother have fortnightly contact with her infant child of not less than two hours.
CATCHWORDS:	CARE and PROTECTION of CHILDREN - infant child taken into care when her mother, a foreign national, was taken into custody at Sydney airport for for illegally attempting to import a large amount of pure heroin and was subsequently imprisoned - the Department proposed that the child only have four contact visits a year with her natural mother whilst in prison - the Children's Court ordered monthly contact - the mother appealed to the District Court - consideration of expert evidence as to the safety, welfare and well being of the child - discussion of the child's emotional needs, the retention of her relationships with her natural mother and the preservation of her name, identity, language, cultural and religious ties - finding that the best interests of the child will be served by every available opportunity to have contact with her natural mother that can be achieved, weekly and also for longer than two hours if possible
LEGISLATION CITED:	Children and Young Persons (Care and Protection) Act 1998 (NSW)
PARTIES:	KL (a mother) - Appellant KR (her infant child) Department of Communiity Services (NSW) - Respondent
FILE NUMBER(S):	556/07
COUNSEL:	Mr R McLachlan for the mother Mr G Moore for the Department Mr S Gardiner for the infant child
SOLICITORS:	Ellis McLachlan for the mother The Crown Solicitor for the Department

JUDGMENT

1. KR (the child) was born in a foreign country on 22 August 2005 and she is now some two and a half years old. She arrived in Australia with her mother on 10 October 2006. Her mother was detained at the airport and subsequently arrested for illegally attempting to import a large amount of pure heroin. She was later convicted of drug trafficking and imprisoned. She is currently detained in a correctional facility and is not due to be released until 9 July 2009. That date may change depending on the outcome of appeals as to the leniency/severity of the sentence.

2. As a result of these events, the child came under the care and protection of the Department and placed in foster care. For reasons it is unnecessary to deal with here it was not considered appropriate for the child to be returned to her father or her extended family in her home country. On 22 January 2007, the Children’s Court made a final placement order placing the child under the parental responsibility of the Minister until the age of eighteen.

3. Final orders as to contact for the child with her mother were not made until 22 July 2007. A Care Plan prepared by the Department (exhibit A at tab 13) proposed that she have supervised contact with her mother a minimum of four times a year. The Children’s Court, however, ordered that there be supervised monthly contact with her mother of not less than two hours. (It is to be noted that the Minute of Order at tab 2 of exhibit A incorrectly records that contact is to be fortnightly whereas it is agreed by all parties that the order was in fact only for monthly contact).

4. The mother brought this appeal against the orders of the Children’s Court. Originally, she sought orders to the effect that the allocation of parental responsibility to the Department be limited with a view to a restoration of the child to her. This was not pressed and the appeal was thus limited to an application for increased contact, namely, for fortnightly contact. The Department, however, maintains its opposition to fortnightly contact. Due to the limited nature of the appeal I am required to determine the dispute as to contact in the context of a permanent placement even though that may not ultimately be the actual eventuality.

5. The determination of this dispute is informed by the provisions of the Children and Young Persons (Care and Protection) Act 1998 (the Care Act). Section 86 empowers the Court to make an order stipulating minimum requirements concerning the frequency and duration of contact between the child and her parents. Section 9 sets out the principles to be applied in the administration of the Act.

6. The safety, welfare and well being of the child is the paramount consideration in any decision or action taken under the Care Act, paramount even over the rights of the parents: subsection (a). However, account must be taken of the culture from which the child comes: subsection (c); and so far as is possible the child’s name, identity, language, cultural and religious ties are to be preserved: subsection (e). Most importantly in the context of this appeal subsection (g) provides:

“If a child or young person is placed in out of home care the child or young person is entitled to a safe nurturing stable and secure environment. Unless it is contrary to his or her best interests ... this will include the retention by the child or young person of relationships with people significant to the child or young person including birth or adoptive parents, siblings, extended family, peers, family friends and community.”

7. It was submitted on behalf of the mother that the provision of contact is to benefit the child. I think that submission may be accepted as trite. There is, however, in this case an apparent divergence of opinion as to how the welfare and well being of this child should best be served.

8. The Department seeks dismissal of the mother’s appeal. In its submission monthly contact is said to be sufficient and it does not consent to supervised contact any more than once a month (see paras 8 to 21 of the written submissions). The Department relies principally on the opinion of a clinical psychologist, Ms Teresa Lindfield, retained by the Department to support its position.

9. The opinion of Ms Lindfield is contained in a written report dated 10 April 2007 (exhibit A at tab 14). Unfortunately, none of the expert witnesses, including Ms Lindfield, was called to give oral evidence and I am left to evaluate their opinions, as it were, ‘on the papers’, without the benefit of seeing them or having their views tested by cross-examination. I note at the outset that Ms Lindfield’s report was provided over six months ago and that there have since been significant developments that in my view are relevant to the determination of this dispute. Furthermore, she did not have the benefit of interviewing or evaluating either the child or her mother. To that extent, as I observed during submissions, her opinion is to some extent theoretical in nature.

10. Ms Lindfield’s opinion on the issue of frequency of contact might be encapsulated in the following propositions:

A frequency of four times a year (as proposed by the Department in its Care Plan) is “probably not likely to enable the child to come to regard her mother as a person who in the future is going to become increasingly significant to her”: (at page 6);

The then current twice-weekly contact was too disruptive for a child of the child’s age and for a child whose main developmental task was to form emotional bonds to a new carer. Such frequency of contact militates against the formation of strong new bonds to her carer; and twice weekly contact would be confusing and unsettling: (at page 6);

Monthly contact would enable the child to grow up knowing who her mother is. “The monthly contact is suggested as being a frequency that is not so disruptive that it interferes with good bonding to her new carer, yet it is of sufficient frequency to give the child the opportunity to eventually come to know and understand her circumstances: (at page 7).

Ms Lindfield, therefore, recommended a transition schedule whereby contact was ultimately reduced from twice weekly to monthly and that such an arrangement would be suitable for the child up to school age.

11. I have a number of problems with Ms Lindfield’s opinion as to the frequency of contact and the Department’s reliance on it. The formation of her opinion is inconsistent with other expert opinion and, it seems to me, with the Care Act itself. It is, in my view, also inconsistent with other views expressed in her own report.

12. The essence of Ms Lindfield’s opinion on the issue of frequency of contact was driven by the view that the child’s “emotional needs will be met almost exclusively by her foster carer” and that, in fact, “the intention of contact is not for the child to maintain a primary bond with her mother.” In fact, in her view, such an intention was contraindicated and not in the child’s interests for that to be a casework goal. Rather her contact enabled her to know her mother as a familiar face in her life. In my view, these propositions are inconsistent with the provisions of the Care Act, in particular the requirement in s 9(g) for the child to retain a relationship with her natural mother. In my view, that requires something more than simply knowing her natural mother as a familiar face.

13. As I have suggested, Ms Lindfield’s opinion is also contraindicated by other views expressed within her own report. For example, she says at p 5:

“Within the overall context of the child’s case plan she needs contact with her birth mother to ensure that she grows up with an awareness of her identity and birth family origins and connections. In the case of the child her identity very much involved consideration of her cultural origins. She is a young child who is isolated from all family as well as isolated from her home country culture (which is significantly different to the Australian culture). It is in the short term and long-term interests of all children in care to retain relationships with people who are significant to them. In the child’s case the history suggests this is primarily her birth mother. I note that contact with her birth father is not a possibility. There is no real mention of the maternal grandmother.

Considerable research has shown that maintaining some form of contact with birth family is important to young children growing up in care. Some of the reasons why this is important are that it helps a child develop his sense of worth and attain good mental health. It resolves issues of trauma and loss and it is necessary to achieve a strong sense of personal identity, cultural identity and biological connectedness. Contact arrangements need to consider the child’s individual needs, capacities and circumstances. In this regard, her home contry heritage is a highly significant factor and should not be overlooked.”

14. It is also illustrative that Ms Lindfield regarded the quality and nature of contact and the child’s reactions to contact as issues of relevance in determining the frequency of contact (at p 5). As I have already pointed out she had no direct information on those matters at the time of formulating her opinion.

15. For all these reasons I am not prepared to accept the opinion of Ms Lindfield as to the frequency of contact as determinative of the issue and I prefer to rely on other opinions which accord more closely to my own instinctive evaluation of how the future safety, welfare and well being of the child will be better served. In this regard there is, in my view, simply no acceptable evidence that it is contrary to the best interests of the child to restrict contact with her mother to monthly visits of two hours.

16. Indeed the evidence to the contrary is overwhelming. There is evidence to the effect that such contact as has been permitted to occur has been beneficial. There is also evidence that the restricted nature of the existing contact regime is undermining the ability of the child and her mother to communicate effectively, there being little or no opportunity for the child to learn the language of her home country. I regard it as somewhat absurd that a foreign child who by unfortunate circumstance finds herself in a foreign country at the age of two is denied the opportunity of learning her native language, let alone learning something of her own culture.

17. The other expert opinion is also contraindicative of the Department’s position. I refer in particular to the opinion of Sarah Armstrong as set out in her report of 9 August 2007. She has a most impressive CV with extensive experience in the field of inter country adoptions and out of home care. She was of the clear view that it is essential for the child’s welfare that she have an ongoing close relationship with her natural mother and that for a person of the child’s age such contact would need to be frequent to maintain that attachment, with weekly contact being optimal. That accords with my view and what I would regard as the application of commonsense.

18. For all these reasons it is my view that the best interests of this child will be served by every available opportunity to have contact with her natural mother that can be achieved, even weekly if that were possible and also for longer than two hours if that were possible.

19. I need to address two further issues raised by the Department.

20. The first is the submission at para 25 of the Department’s written submissions. Assuming the question of convenience of the foster parents is in fact a relevant consideration, I would simply adopt the comment of Ms Armstrong (at p 8) to the effect:

“The challenges of arranging such contact are significant but notwithstanding this, adequate and effective arrangements should be made in order to serve the child’s best interests.”

In my view the relative inconvenience of the carers is insignificant in the overall context of the best interests of the child. In any event, it seems likely that this problem can be overcome with the assistance of the organisation Shine for Kids, an organisation which I can say from personal experience is outstanding in the services it provides to children in need.

21. The second obstacle thrown up by the Department is compliance with s 86(4) of the Care Act, which provides that an order for contact may be made only with the consent of the person required to supervise the contact. It is not disputed that in the circumstances of this case supervision is required, but the Department will not provide any assistance additional to once a month. It seems likely that Shine for Kids will, in fact, provide that supervision but the evidence does not enable me to be satisfied that it has in fact given its consent, as yet.

22. I therefore propose to accede to the orders sought on behalf of the mother either on the basis that it is conditional upon Shine for Kids providing its consent or by deferring the entry of final orders until it does so. I will leave it to the parties to determine the preferred alternative.