Lv v Secretary of Department of Communities and Justice

[2022] NSWDC 43

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

LV v Secretary of Department of Communities and Justice [2022] NSWDC 43

Hearing dates:

28 February 2022 – 1 March 2022

Date of orders:

4 March 2022

Decision date:

04 March 2022

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraph 179

Catchwords:

FAMILY LAW AND CHILD WELFARE – application for contact orders by biological mother – her child is permanently cared for by his maternal aunt, and her family, in Queensland – Department’s application to transfer child protective care to the Chief Executive of the Queensland Department of Children Youth Justice and Multicultural Affairs – appeals from decisions of Children’s Court of NSW transferring care orders to Queensland and refusing the mother’s contact application – whether appeal against decision to transfer care orders is out of time and cannot be extended - Children and Young Persons (Care and Protection) Act 1998 (NSW), s 231K(2) and (3) - whether contact order under s 86 should be made in circumstances where care of the child is to be transferred to Queensland Department – whether contact order should be made in any event – proper approach to appeal under s 91 with reference to the way the parties conducted their cases

Legislation Cited:

Child Protection Act1999 (Qld) ss 13, 61, 86, 87

Children and Young Persons (Care and Protection) Act 1998 (NSW) ss 61, 90, 91, 86, 231

Privacy Act1988 (Cth)

Uniform Civil Procedural Rules 2005 (NSW) r 6.2

Cases Cited:

Lunney v DPP (2021) 105 NSWLR 236

George v Children’s Court of NSW [2003] NSWCA 389

Texts Cited:

Nil

Category:

Principal judgment

Parties:

The mother (plaintiff)
Secretary of Department of Communities and Justice (defendant)

Representation:

Plaintiff, in person
Ms J Wong, Solicitor Advocate for the defendant
Ms D Neligan, Independent Legal Representative

File Number(s):

2021/00209322

Publication restriction:

Children and Young Persons names anonymised in accordance with s 105 of the children and Young Persons (Care and Protection) Act 1998 (NSW). The mothers and primary caretakers names also anonymised.

 Decision under appeal 

Court or tribunal:

Children’s Court of NSW

Jurisdiction:

Children’s Court

Date of Decision:

25 June 2021

Before:

Magistrate Sheedy

File Number(s):

2017/329411

Judgment

BACKGROUND

1. The plaintiff is the mother of a child, who was born on 14 February 2016. I will henceforth refer to the child as “the child”. The child has an older half-sister, AJ who was born in March 2002 and who is now nearly 20 years of age. The mother has another child, XC, born in June 2018, who lives with the mother. The child’s father has never been completely identified and has never had contact with the child.

2. The day after he was born, the child was assumed into care at the Westmead Hospital following concerns about the mother’s ongoing substance abuse during pregnancy, lack of insight into the impact of her drug use upon her newly born child, inconsistent antenatal care and a failure to engage with services. On 16 February 2016, the Secretary (‘the Secretary’) of the Department of Communities and Justice (‘DCJ’) applied for a care order (pursuant to s 61 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the ‘Care Act’)). ^[1] The Secretary’s originally proposed that the Care Plan featured the mother having supervised face-to-face contact with the child at least six times a year, expected to occur around special occasions such as birthdays, Christmas and Easter.

   1. Later in these reasons, reference is made to the child Protection Act 1999 (Qld), which I will refer to as the “Queensland Care Act” in contradistinction to the (NSW) “Care Act”

3. A final order was made in the Children’s Court at Parramatta on 24 February 2017, which determined that parental responsibility for the child was to be allocated to the Minister ^[2] until the child attained the age of 18 years.

   2. This is the Minister for Families and Communities as she is now known

4. On 11 March 2017, at the age of almost 13 months, and after being placed briefly with two separate foster carers, the child was placed into the care of his maternal aunt (‘the aunt’) and maternal uncle (‘the uncle’). He has lived with the aunt and the uncle, their children (the child’s cousins, who are all now young adults), and AJ ever since.

5. On 11 September 2019 the Secretary applied, under s 231G of the Care Act, for a transfer of the child’s care orders to Queensland, where the aunt and uncle live. (The mother had received written notice of the DCJ’s intention to transfer the care order on 30 July 2019). At about this time, the Care Plan was amended to increase the contact between the mother and the child to eight times a year, with visits to occur eight times a year (running over two consecutive days four times a year). As indicated, this was an increase from the original plan, which envisaged that she would have face-to-face contact at least 6 times a year. At all times, the mother opposed the transfer application.

6. On 19 February 2020, the mother applied to rescind the care order made on 24 February 2017 and for the child to be restored to her care. The DCJ’s transfer application was held in abeyance until after her s 90 application had been determined. The mother’s s 90 application was finally determined (following an unsuccessful appeal to this Court) on 12 November 2020.

7. On 17 February 2021, the mother filed an application under s 86 of the Care Act. By this application, the mother sought a regime of contact with the child which featured, amongst other things, unsupervised monthly overnight visits and school holiday time. This application would, if acceded to, alter the existing informal contact arrangement (i.e. one not sanctioned by a prior contact order) whereby the mother has face to contact eight times each year, comprised by supervised contact, over two consecutive days, four times a year (not including Skype contact).

8. On 21 May 2021, in the Children’s Court at Tweed Heads, Magistrate Sheedy heard the mother’s contact application and the Secretary’s transfer application together. During the hearing, the mother’s then legal representative indicated to the Children’s Court that should her contact application fail, she was neutral on the question whether the orders should be transferred.

9. By judgment given on 25 June 2021, her Honour refused both the mother’s contact application (the ‘contact decision’) and ordered the transfer of the care orders to Queensland (the ‘transfer decision’).

10. By summons filed on 16 July 2021, the mother seeks leave to appeal and, if leave be granted, applies to set aside the decisions made on 25 June 2021 and in lieu, applies for a contact order. However, by reason of s 91 of the Care Act, the mother does not require leave to appeal those decisions. The Independent Legal Representative, acting in the child’s interests (the ‘ILR’) contended that her application be treated as a summons filed in accordance with r 6.2 of the Uniform Civil Procedural Rules 2005 (NSW). The Court acceded to that contention at the outset of the hearing.

11. As to the transfer process to Queensland, that has been put on hold pending the outcome of this appeal in relation to the contact decision. It has now been 8 months since the transfer decision was made by the Children’s Court.

12. The respondent to the summons, the Secretary, and the ILR, oppose the appeals. In relation to the appeal against the transfer decision, the Secretary and ILR both contend – and the Secretary has conveyed to the mother its view – that her application for leave to appeal the transfer decision was filed out of time and that the time limit for appeal is not susceptible of extension. In the face of that contention, the mother continues to pursue the appeal of the transfer decision.

UNDISPUTED FACTS

Approach to appeals under s 91 of the Care Act

13. At the hearing of this appeal, the parties jointly prepared a large two volume Court Book (comprising 847 pages). It appeared to comprise not only new or fresh evidence prepared in the appeal proceeding, but large swabs of evidence that was relied upon the parties, respectively, in the s 61 (care) proceeding; the s 90 (restoration) proceeding and in the proceedings for the contact and transfer applications in the Children’s Court. Whether all of the evidence that was before the Children’s Court at the hearing the contact application was placed before this Court uncertain – no one at the hearing of the appeal suggested that it was not. It appeared to me that it was.

14. At any rate, the presentation of the Court Book gave rise to an interesting question as to the approach to appeals under s 91 of the Care Act. Section 91(2) provides that:

“An appeal is to be way of new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence on which the order was made, may be given on appeal.”

15. But s 91(3) provides that:

“Without limiting subsection (2), the District Court may, instead of taking fresh evidence, decide to admit as evidence the transcript of proceedings before the Children’s Court and any exhibit tendered during those proceedings.”

16. A question arises as to whether an appeal to this Court from the learned Magistrate’s refusal to make the contact order is an appeal de novo, or a rehearing, at which fresh or new evidence could also be supplied. The presentation of the Court Book suggested that the parties in this appeal proceeded on the latter basis. That would accord with the practice in this Court, as indicated by paragraphs 2.1- 2.3 of Practice Note DC (Civil) 5. As is noted in the Practice Note, conducting an appeal in this way, essentially (though not exclusively) as a rehearing on the basis of the evidence before the Children’s Court is conducive to the efficient and timely disposition of appeals.

17. Conducting the appeal in this fashion does, however, carry some forensic consequences. Importantly, when considering the testimonial evidence that was before the Children’s Court, this Court should take into account the fact that the Magistrate had the advantages of seeing the relevant witnesses and assessing their demeanour. For example, the ILR, in particular, responded to the mother’s criticism of the aunt in the former’s submissions by referring to positive findings of the Magistrate about the aunt which were undoubtedly based, at least partly, upon the Magistrate’s assessment of the aunt’s credibility and reliability as a witness. Such finding may legitimately be taken into account by this Court on appeal, noting that the aunt was not called to give evidence in this appeal.

18. More generally, given that the nature of the appeal, in the manner that it has been conducted by the parties, is essentially a rehearing on the basis of the evidence before the Children’s Court, as supplemented by new (factually, more recent) evidence, in my view the task is for this Court to make up its own mind as to whether a contact order should be made, however it is to do so with reference to the issues and arguments that are raised by the parties. In this way, in the circumstances I have identified, the task is comparable to the task of this Court, in its criminal jurisdiction, determining conviction appeals from the Local Court see Lunney v DPP (2021) 105 NSWLR 236. As Lunney also made clear in that different context, there are not only natural limitations upon an appellate court in appeals primarily reviewing evidence on the basis of the transcript and exhibits below, but further, the appellate court is not required to undertake a “free-standing” review of the evidence, in the absence of guidance and particular submissions by the parties (per McCallum JA, Meagher JA and White JA agreeing, at [29]-[30]).

19. This explains why I indicated to the parties, early in the hearing of the appeals, that although the Court was willing to have the Court Book tendered in its entirety (Exhibits A.1 and A.2), the parties could not assume that the Court would refer, much less rely upon evidentiary material not specifically brought to its attention. No party objected to that indication. In the circumstances that occurred, it is fair to say that in final submissions, limited reference was made by the parties to this large volume of evidentiary material. Further, the approach I have identified indicates why I propose to determine the appeal in accordance with the issues raised and the submissions made by the parties.

20. I wish to emphasise that in stating this approach, I do not intend to suggest that it would be appropriate to all care appeals. Fundamentally, the parties approached this appeal on the basis that no complaint was made about the factual matters identified by the learned Magistrate in refusing the mother’s contact application, but rather, the Court was asked to consider the matter afresh due to subsequent circumstances (identified by both the mother and the Secretary) occurring since the Children’s Court made its decision on 25 June 2021. For her part, the mother pointed to her further efforts to rehabilitate itself and strengthening bonds between herself (and her other child) with the child. For its part (amongst other things), the Secretary, supported by the ILR, pointed to the circumstance of what the Secretary argued was the final determination of the transfer of the care orders following the expiry of a limitation period as being conclusive against the success of the appeal on the contact application.

21. Located within the Court Book was a chronology (Tab 32 of the Court Book, pp 829-833), which had been prepared by the ILR and whose accuracy was not challenged on this appeal. Some of the items included in that chronology concern procedural events in litigation, which, to some extent, have already been touched upon. What follows contains the salient factual matters identified in that document.

22. On 1 December 2009, the Children’s Court at Parramatta made a final order allocating parental responsibility for AJ to the Minister until she attained 18 years of age. In July 2012, final orders were made transferring those orders to Queensland.

23. In 2014 and 2015, the mother was charged with assaulting her long-term partner, Kathy.

24. In September 2019, the mother admitted using amphetamines on one occasion after feeling pressured to do so by a support worker.

25. On 15 October 2019, Ms Robyn Wills, of the Queensland Department of Child Safety, Youth and Women, advised DCJ by email that the Department could not commit to any particular contact regime should the child protection order be transferred to Queensland, as arrangements were fluid and subject to change, based on case planning with the child and his care team.

26. On 25 November 2019, the mother sent an email to the aunt (at 1:57pm). It ended with the mother stating to the aunt “don’t email me again you are shit to me your days are numbered with (the child) because he’ll be coming back to me on 21 February”. In an earlier email sent by the mother to the aunt that same day (1:00pm), the mother stated “...I don’t want to hear from you as you are nothing to me I have no sister...” These emails were sent in a context where the aunt was conveying AJ’s availability for calls. On 25 November, the mother informed a DCJ caseworker, Ms Kayla-Anne Clark, that she did not want the aunt to facilitate the scheduled Skype call as the child’s sister, AJ, usually facilitated such calls.

27. On 27 November 2019, there was a report from to the Department about XC. Concern was expressed about family violence. XC’s father had reportedly been residing at the home in the previous 5 weeks, although had since left.

28. On 10 December 2019, in emails to a caseworker with the Department, the mother indicated that she did not want anything to do with the aunt after she had attempted to make contact and resolve the family issue with her. She also indicated that she wanted the caseworker to facilitate phone calls with the child since the “minimum contact (from the aunt) the better”.

29. On 4 September 2020, the mother attended an assessment with the Children’s Court clinician, Dr Lizabeth Tong. This was relevant to the mother’s restoration application. The mother informed Dr Tong that her skype access with the child had been suspended due to her conflict-ridden relationship with the aunt. In her report dated 18 September 2020, Dr Tong recommended against restoration. On the subject of the mother’s contact with the child, Dr Tong opined that after the NSW/Qld border restrictions were lifted, face-to-face contact between the mother and the child should be contingent upon the mother’s demonstratively positive trajectory in achieving a sustained recovery from her long-term dependency on illicit drugs.

30. On 3 October 2020, Dr Jonathon Munro completed another assessment for the Children’s Court. In the course of this, he opined that the child was very well cared for, that he was a dearly loved part pf the maternal aunty and uncle’s family, and that his primary attachments are to member of that family. He also did not recommend a restoration. In the same way to Dr Tong, he recommended that the current level of frequency and supervised contact between the mother and the child continue until such times as the mother proactively engaged with her mental health issues and was fully rehabilitated from her long-term drug dependency, for a minimum of 12 months. He also agreed with Dr Tong’s recommendation about the extent of face-to-face contact.

31. On 11 February 2021, as AJ was dropping the child off to a contact visit there was an incident between Ms Amos (the child’s maternal grandmother) and AJ the child. A note on DCJ’s electronic records indicated that AJ had become unsettled when dropping off the child.

32. On 12 February 2021, Harmony House recommended to Ms Redenbach that the maternal grandmother and XC should not be present for both visits and consider that they attend either half of each day, or only one of the two days for the face-to-face visits. That would allow the child and the mother more one-on-one time together so as to avoid the problem, which often happened, of the child being distracted by XC’s presence. Ms Redenbach rang the mother to discuss this recommendation and, according to Ms Redenbach, the mother agreed to consider this, and agreed to discussing it with the grandmother.

33. On 17 February 2021, the mother brought her contact application.

34. Between 24 and 26 February 2021, the mother rang Ms Redenbach several times and reported that she was experiencing some issues with the Skype calls with the child: there were instances where the call was muted, or she could not hear what the child was saying, or where calls completely cut out; all of which was frustrating to her.

35. On 26 February 2021 and again on 3 and March 2021, Ms Redenbach rang the aunt to discuss issues with the call. The aunt assured her that the difficulties were not deliberate, but attributed the problems to other causes, such as service provider issues or possibly the child touching the screen in a way which accidentally caused the termination of the call. The aunt passed on to Ms Redenbach an email that the mother had sent to her, suggesting that the child have his own mobile phone. When the aunt raised this for the DCJ’s consideration, Ms Redenbach indicated that the DCJ would not approve of such purchase given the child’s age.

36. On 18 March 2021, Ms Redenbach rang the aunt to discuss the mother’s request for family members to engage in a family therapy session. According to Ms Redenbach, the aunt’s initial response was that she was unwilling to consider this, based upon her historical experiences with the mother, however, she was willing to discuss the idea with AJ and allow AJ to make her own decision. She also expressed concern about the appearance of her willingness to engage in family therapy, given the litigation on foot.

16. Communications continued, as between Ms Redenbach and the aunt about family therapy. The aunt questioned the mother’s motivations. There were subsequent indications, on 25 March 2021 and throughout April 2021, that the aunt might provide a letter setting out her position.

17. Eventually, on 16 April 2021, the aunt sent an email to Ms Redenbach explaining why, at that time, she was unwilling to agree to a family therapy session. After citing some of the history, she concluded by writing:

“Due to all that has happened in the pass (sic) and in recent times I am not prepared to put myself in a situation that may turn hostile or aggressive if (the mother) can show over a period of time that she has worked through her issues towards me and my family I will revisit the matter but at this point in time, I will not subject myself to the uncertainly (sic) of these sessions.”

THE CONTACT APPLICATION

39. In the hearing of this appeal, the mother affirmed her contact proposals as they were in the Children’s Court, though substituting 2022 for 2021.

40. With that variation, they are:

1. During the first term of the 2022 Queensland school term:

1. on the fourth Saturday, for a period of 4-hours supervised at a contact centre arranged by the DCJ within close proximity to where the child resides; and

2. for four hours on two consecutive days, as arranged between the DCJ and the mother, supervised at a contact centre within close proximity to where the child resides, as arranged by the DJC.

2. During term two of the 2022 Queensland school term: on the second and third Saturday for a period of 6 hours, unsupervised, with a changeover to occur at a contact centre arranged by the DCJ within close proximity to where the child resides;

3. During the Queensland 2022 July school holidays: from 9:00am on the first Saturday of the school holiday period to 10:00am on Sunday (the following day) unsupervised, with changeover to occur at a contact centre arranged by the DCJ, within close proximity to where the child resides;

4. From term three of the 2022 Queensland school term and continuing each school term thereafter: on the fourth weekend from 10:00am on Saturday to 4:00pm on Sunday, unsupervised with changeover to occur at a location close to where the child resides as agreed between the child’s carers and the mother.

5. From the 2022 September school holidays and continuing each school holiday period thereafter: from 9:00am on the first Saturday of the school holiday period to 3:00pm on Monday, unsupervised with changeover to occur at a location close to where the child resides as agreed to between the child’s carers and the mother.

6. Video conference time: every alternative Tuesday between 6:00pm and 7:00pm with the carers to facilitate video conference time.

41. As was emphasised by the Secretary and ILR, there was nothing in the written application providing for review of these orders.

the Children’s Court MAGISTRATE’S REASONS FOR DECISIONS

42. These reasons were in evidence (Tabs 25 and 26 of the Court Book). None of the parties took issue with the factual findings or conclusions of the learned Magistrate. It is unnecessary for the parties to establish actual error in the Magistrate’s factual findings. Nevertheless, as indicated, the thrust of the mother’s appeal is that subsequent circumstances, since her Honour’s decision, have materially altered the terrain. That being so, I proceed on the basis that the factual findings made by her Honour are correct and I adopt them. I also adopt, as correct, the facts identified in the ILR’s chronology, alluded to earlier in these reasons.

43. The Magistrate made positive observations about the aunt’s evidence. Her Honour referred to and accepted the mother’s evidence about the many positive changes she had made to her life which assisted her to successfully parent XC; and also recorded the positive engagement she had with her psychiatrist and the assistance she was receiving from an National Disability Insurance Scheme (NDIS) support worker.

44. The Magistrate addressed the mother’s criticism of the aunt for not providing an adequate number of updates of the child’s progress; stating that in more than four years of face-to-face contact regime, not one contact visit had been missed.

45. The Magistrate addressed the submissions of the parties. One of those, which was reprised in this appeal, concerned the mother’s hope, or aspiration, that she, but not the aunt, is willing to undergo family therapy to address a relationship between carer and mother that has broken down. The Magistrate found that the relationship between the mother and the aunt had been problematic for a long time, but still, the aunt had been committed to and had facilitated the mother’s contact with the child. Her Honour also considered that the aunt had sound reason for refusing to be involved in family therapy unless there had been a sustained change in the mother’s attitude towards her over an extended period. She did not think that it was likely that there would be any family therapy resulting in positive and permanent change within 12 months. But even if it was, her Honour noted that the aunt had no decision-making capacity and that was not indispensable to the aunt’s continued commitment to the child and the mother.

46. Her Honour found that since the final orders were made in December 2017, the mother’s circumstances had vastly improved: she no longer used illicit substances, she had appropriate treatment for her mental health; she had stable and suitable accommodation, she was receiving NDIS supports. She was demonstrably providing care to XC, at least to such extent that the DCJ had no concerns about that care. Since November 2020, a good working relationship was in place between the mother and the DCJ case worker. She accepted that the mother loved the child very much and ideally wanted him to live with her. Since that was not possible, she wanted to spend as much time with him as possible and to also help the child develop a close sibling relationship with XC. All of these things supported her application.

47. However, the child had lived virtually all his life with the aunt and her family since he was a (one year old) ‘toddler’. He was secure and stable in his placement. Since it was the mother’s application, she bore the onus of proving a need for change to contact arrangements in the child’s best interests. The learned Magistrate was not satisfied that any change would be in the child’s best interests. In doing so, her Honour did not take into account the effect of the change consequent from the transfer orders.

48. Her Honour acknowledged the great strides that the mother had made and her care for XC, but that was not enough to satisfy her that it was in the best interests for there to be increased contact, including unsupervised and overnight contact.

49. There were, in her Honour’s view, countervailing concerns. the mother had a history of being abusive, threatening and insulting to the aunt. There had been episodes where she has not been able to put aside her own feelings, against the aunt, in preference to the child’s interests.

50. Her Honour was particularly concerned about unsupervised and overnight contact. She considered that relations between the mother and the aunt were poor; and this was contributed to, in no small way, by the mother’s conduct. Her Honour was concerned, specifically, that there was an unacceptable risk of the mother speaking negatively about the aunt to the child in a way that would be harmful to him. She noted that the child had never spent a night away from home.

51. Her Honour commented that although the mother had suggested that she could obtain support from NDIS if she was granted increased contact, she had not provided evidence of the extent of that support. That finding may arguably be of less force now in view of evidence of NDIS funding that the mother puts before this Court.

52. Returning to her Honour’s findings, however, she remained unpersuaded that the mother had the necessary skills and support to provide an appropriate level of care to the child during unsupervised or overnight contact.

NEW EVIDENCE

53. The Care Act facilitates the provision, in Care Appeals, of fresh or new evidence that was not before the Magistrate (s 91(2) of the Care Act).

54. The mother swore an affidavit in this appeal proceeding and the Secretary relied upon an affidavit of Ms Redenbach.

Affidavit evidence for the mother

General

55. The mother swore an affidavit on 18 February 2022. In its form, it was incomplete or irregular. It stopped at paragraph 9 and, after reference to some documents that were annexed to the affidavit, resumed again at paragraph 34. the mother, who represented herself at the hearing of her appeal, explained that her purpose was to amend her affidavit (sworn 17 May 2021) which had been read in the Children’s Court and to supplement that evidence by the inclusion of the annexures.

56. She cares for her son XC, who is now aged 3.

57. She lives in a townhouse in Constitution Hill rented through the Department of Housing.

58. She deposed to being a recipient of a single parent pension from Centrelink, and Family Tax benefits (A & B). The mother is currently undertaking a home maintenance course through her local community centre. She has already completed a Certificate III and is currently completing a Certificate IV level through a TAFE course being conducted online.

59. This course occupies two hours of her time each week. During this period, XC attends pre-school at a community centre. Indeed, XC attends pre-school three days a week. The mother deposes to XC informing her how much he enjoys attending pre-school.

60. Before XC’s birth, the mother worked with the DCJ on a pre-natal safety plan. After he was born, she worked with ‘Hope Connect’ to assist her with his care. She completed a range of parenting courses.

61. The mother is aggrieved with the lack of regularity in updates about the child she receives from the aunt. She feels that she is not taken notice of, notwithstanding that she has tried to address all of the issues that led to the child’s removal from her care.

62. Whilst acknowledging the difficulties caused by COVID-19, the mother was dissatisfied with the level of contact with the child in 2020 and believes that the aunt did not assist, either in relation to encouraging the child to stay on the call or, as in October 2020, forgetting a scheduled call altogether. She deposed to a very positive visit to see the child in December 2020, which also involved AJ. She emphasised the strong connection between the child and XC. She deposed to a similarly positive experience with the child, apparently in similar circumstances involving XC, earlier this year.

Additional documents relied upon by the mother

63. As explained, the main purpose of the mother’s recent affidavit was to prove certain documents.

64. Annexed to her affidavit was a letter from her psychologist, Mr Jay Hobbs, who practices from Capablaba in Queensland. The letter was erroneously dated 10 October 2002 when it should have been dated 7 January 2022. Mr Hobbs confirmed his work, and the number of sessions, he had with the mother since October 2020. He has assisted her to help her understand the significance of her ADHD diagnosis and has treated the mother with cognitive behavioural therapy. He commented positively upon the effectiveness of her treatment: she had managed raising a son (XC) whilst studying, improved her relationship with her mother and created some friendships through her involvement in community activities. He reported that the mother had ‘celebrated’ two years of abstinence from drugs. He considered that she would continue to benefit from receiving access to a support worker, monthly psychology sessions and access to a psychiatrist.

65. Another annexure was a certificate (dated 8 June 2021) confirming her consulting the psychiatrist, Dr Dona Biswas, to treat her ADHD and her being prescribed dexamphetamine for that disorder. Contrary to the mother’s understanding, this certificate was not new evidence, but was evidence admitted in the Children’s Court.

66. Unfortunately, no report had been furnished from Dr Biswas, notwithstanding the mother’s efforts to acquire one: her GP requested a report in May 2021 (another document that was before the Children’s Court).

67. There was also a typed letter from Shobna Nath, dated 18 January 2022. Ms Nath is the mother’s support worker and has worked with her for two years. She confirmed the mother’s spending (positive) time with XC and her mother and her general busyness. She indicated that she travelled to Queensland with the mother in 2020 to visit the child. She perceived that the mother was engaging well with the child. She formed positive views as to the mother’s love for her children.

68. Ms Nath indicated that she is willing and able to continue to support the mother with her future trips to Queensland.

69. Finally, the mother relied upon a text message she received from the aunt. This text was not dated. The subject matter of the message was the nature of the mother’s contact with AJ. To use the aunt’s words “What I am asking for is your support in not putting extra pressure on her, with regards to her being 18 and making a choice of where to live”.

70. The mother took this request badly. It was one of the reasons why she sought an order for the issue of a subpoena for the aunt and AJ to attend Court (an application which the Court refused). The mother perceived that the aunt was blocking her access to AJ since she had become an adult and apprehended that something like that may happen with the child after he became an adult.

71. The mother also generated an extract of a letter received from the National Disability Insurance Agency (NDIA), dated 10 November 2021, which the DCJ later tendered (Exhibit 1). Amongst other things, the document indicated that for the year 10 November 2021 to 10 November 2022, she would receive, in total the sum of $24,141.14, made up of two components: $22,357.14 for daily activities and $1,784, for transport.

Supplementary oral evidence

72. I also gave the mother the opportunity to supplement her evidence verbally at the appeal. The mother availed herself of that opportunity.

73. She said that since Dr Tong’s report, she had been abstinent from drugs now for a total period of 28 months. She said that since the report, in November 2020, she had received a diagnosis of ADHD. She said that she has been seeing a psychiatrist every 3 months (the last occasion being on 25 January 2022) and seeing a psychologist (the last occasion being 24 February 2022). Her psychologist was assisting her to manage her ADHD, as well as other conditions of anxiety and panic attacks. She said that her dosage of prescribed medication (lisdexamf) to treat her ADHD had altered. She believed that the medication and management that she was receiving to treat her conditions was effective.

74. The mother alluded to the Children’s Court Magistrate’s concern about and absence of NDIS funding. the mother said that she has received information to suggest that she can obtain NDIS funding to provide a support worker to assist her with visitations with the child.

75. The mother complained that when the matter was in the Children’s Court, the mother was in what should have been a ‘closed court’. She was aggrieved that the disclosure, in Court, of her ADHD diagnosis was made in the aunt’s presence. In her affidavit, there is reference to some provisions in the Privacy Act1988 (Cth) which, the mother says, have been infringed.

76. Finally, in oral evidence, the mother asserted her beliefs that her life had “changed totally” since the decisions in the Children’s Court and that she had positive communications and had received, respect, from Mr Redenbach.

Cross-examination

77. The mother was cross-examined by the legal representative for the DCJ and the ILR.

78. Points that emerged from the cross-examination were that:

1. she expected to ‘dip in’ to the budget she received from the NDIS to facilitate her contact with the child, as well as drawing upon the ‘travel’ component sum to travel to Queensland;

2. when she sees the child in Queensland, she does so at the Harmony House and the DCJ meets the cost of the supervised contact;

3. she assumes, or expects, that the NDIS worker will accompany her during proposed ‘overnight’ contact with the child and to conduct an unofficial supervisory role over her;

4. she expected her support worker to identify the cost of being supported by the NDIS;

5. she agreed that if the contact orders were made for the next 12 months, there was no guarantee that they might continue when authority is transferred to the Queensland authorities, but she expected that similar arrangements could be put in place.

6. when her ADHD diagnosis was disclosed with the aunt being in Court, she was represented by a legal representative who did not complain about the aunt being in the Court;

7. she last saw the child in February 2022, but the previous face-to-face visit with him was in September 2021 and the previous time before that was in February 2021;

8. she accepted that it might take time for the child to get used to longer visits with her;

9. when asked what she would do if, for example, on overnight visits, the child got upset, she said she would contact the aunt (by email or, if necessary, by phone) and if he was truly distressed, make arrangements for the child to be returned to the aunt;

10. she acknowledged that relations between herself and the aunt were “not great”, although she asserts that she has tried to communicate with the aunt, but it is the aunt who has been unwilling to communicate with her;

11. she maintained her willingness to act upon information the aunt imparted to her regarding the child’s care even if she had trouble accepting it.

Evidence for the Secretary

Ms Rednbach’s evidence

79. The Department relies upon the evidence of Ms Natasha Redenbach, who affirmed an affidavit dated 7 February 2022. Ms Redenbach is a caseworker employed by the Department in Tweed Heads and, whilst working under the supervision of Ms Misty Taurima, she has been the child’s allocated caseworker since November 2020.

80. The purpose of Ms Redenbach’s evidence was to update developments affecting the child since the orders of the Children’s Court were made on 25 June 2021.

The child’s placement

81. Ms Redenbach deposed that she, and two other caseworkers from the Queensland Department of Children, Youth Justice and Multicultural Affairs (Ms Rozynski and Ms Norris) conducted home visits to see the child on a range of dates from the second half of 2021. In Ms Redenbach’s case, she visited the child on 10 August and 4 November 2021. Based on her own observations on those two occasions, and her inspection of the records of the visits from Ms Rozysnki and Ms Norris, she formed the opinion that the child was a “positive, happy, fun-loving little boy” and “very settled” in his placement. She opined that the aunt and uncle thought (and presumably treated) the child as if he was their own child. She observed that the aunt, in particular, was affectionate with the child and the child reported to her how much he loved his cousin (Jarrod) which, according to what Jarrod told Ms Redenbach, appeared reciprocated.

82. Ms Redenbach completes progress reports every 3 months. These are for ‘internal’ purposes. Her most recent report was prepared on 31 January 2022. On the subject of family contact, Ms Redenbach reported the child’s “great relationship” with his authorised carers and family. The caseworker provided regular updates to the mother about the child’s progress and care. The aunt provided photos of the child monthly via email.

83. As to the Skype schedule of fortnightly calls, Ms Redenbach reported that those conversations were previously not long at all. The aunt observed that there had not been much interaction between the child and the mother, but that had slowly improved, and the child and the mother now tended to speak between 20 and 30 minutes.

81. The child reportedly enjoyed his visits to Harmony House and had many days where he enjoyed speaking to the mother.

82. Later in the report, at its conclusion, Ms Redenbach recorded that the child spoke to the mother on Christmas and New Years Day and had received gifts from the mother (and XC). Plans to visit the child in February were affected by COVID-19 restrictions.

Aspects of the child’s development

Education

86. The child is now in Year 1. Ms Redenbach deposed that in his final report for what is the equivalent of kindergarten in this state, he was achieving satisfactory academic outcomes. His teacher reportedly spoke positively about his easy-going nature and popularity with peers. In terms of his academic development, he exhibited a tendency to mix his letters and sounds, but according to the teacher’s report, that was only when he was in a hurry. He had, however, been moved into a specific group within the classroom following the recommendation of a speech therapist, who had identified mild speech sound errors. The speech therapist indicated that an ‘at home’ program could be provided to his carers.

87. The aunt and the child’s teacher indicated to Ms Redenbach (during the latter’s home visit in November 2021) that they would monitor his speech development and report if there was any change.

Health

88. Ms Redenbach indicated that on her reading of records, the child was healthy and active, enjoying different forms of outdoor activities with the aunt and uncle and their family.

89. Checks of his general health, eyesight and teeth undertaken during 2021 did not disclose any matters of concern.

Family time

Face-to-face visits

90. The child’s Amended Care Plan (11 September 2019) provided for contact in-person the child eight times a year with the mother, XC (sibling to the child, who is 2 years of age) and Ms Grace Amo (the child’s maternal grandmother). The plan was to have these family members visit the child four times a year, with visits stretching over 2 days each time.

91. Scheduled trips for the child’s mother, maternal grandmother and sibling for July 2021 did not proceed because of the COVID-19 lockdown restrictions.

92. On 17 and 19 December 2021, the child had family time, for two hours, on these two days. The family time over these two days was the child’s first family time since February 2021 due to the COVID-19 restrictions.

93. Ms Redenbach inquired of the mother as to how this family visit went. the mother conveyed that it went “very well” despite some initial unease in the visit on 17 December. The mother did, however, raise a concern about the aunt not working with her: Ms Redenbach inferred ongoing difficulties in the relationship between mother and carer. Ms Redenbach indicated that, so long as the difficulties in their relationship did not impact upon the child, the Department’s attitude was not to intervene.

94. Face-to-face family visits of the mother, the maternal grandmother and sibling were scheduled for 10 and 11 February, 30 June and 1 July, 22-23 September and 15-16 December this year.

Skype and phone calls

95. The child has fortnightly Skype calls with his mother, which are scheduled to last for 30 minutes.

96. In late June and early July 2021, there was some upset in the mother about a phone call which did not proceed. The mother had hoped that a phone call could coincide with XC’s birthday, which was on 2 July, but the aunt indicated that this was not convenient as the call should proceed on 30 June.

97. The mother was dissatisfied with a video call with the child on 21 October 2021. Apparently, the child was playing on his ‘PlayStation’ during the call and was distracted. The mother does not consider that the game he was playing (which featured shooting) was suitable for someone of his age. The mother contacted Ms Redenbach.

98. Ms Redenbach spoke to the aunt on 25 October 2021, and again on 28 October 2021. The aunt informed her that she had experienced struggle in getting the child to interact with his mother in Skype calls. The aunt indicated that she had offered to the mother cutting off the child’s access to the PlayStation game, but the mother would not agree, if that meant upsetting the child. The aunt told Ms Redenbach that he was not playing ‘shooting’ games on PlayStation anyway; and that all the games he played were age appropriate.

99. Ms Redenbach noted in her January 2022 review that after some earlier calls were brief, between the child and his mother, more recently they had extended in length.

100. A note by Ms Norris, one of the Queensland caseworkers, recorded that the mother had extra phone contact with the child over Christmas.

Written updates

101. The Department supplies written updates to the mother regarding the child’s progress every three months. As at the date of Ms Redenbach’s affidavit, the last one was on 19 November 2021.

Cross-examination of Ms Redenbach

102. Ms Redenbach was cross-examined by the ILR and the mother.

103. In response to questioning by the ILR, she indicated:

1. she believed that if the contact orders were made, it would put on hold the processing of transfer orders;

2. if the contact orders were made, she believed that the DCJ would remain responsible for organising contact. (Once the transfer orders were made, it would be the Queensland Department of Communities Justice and Multicultural Affairs who would be responsible for the child’s care).

3. she had no concern about the aunt’s on-going co-operation with the Queensland Department based upon her experience with her.

4. in relation to the mother’s concern about having ‘make up’ visits to see the child following the loss of visits, she could not say whether they could occur in Harmony House, certainly in relation to visits during the week; although there may be greater flexibility in visits on weekends;

5. she is unaware whether the DCJ might agree to fund the level of trips that the mother would like to undertake during school holidays;

6. she understood DCJ did not support overnight visits;

7. she did not believe that the child could cope with face-to-face visits lasting 6 hours with the mother. She perceived that whilst the child had a good rapport with the mother, that was when he was in a ‘safe space’. There was a risk that the ‘novelty’ of his being with the mother and XC would wear off. She thought that if the time spent was to exceed the current 2-hour intervals, it would be appropriate to build up the time more slowly; perhaps up to 3 hours;

8. if it was necessary, she thought she could make herself available to provide support on a Saturday;

9. she had her doubts whether, if it became necessary, the mother would implement any advice or information the aunt might impart to her, in dealing with the child. She was concerned about the quality of their communications.

104. In response to questioning by the mother, she indicated:

1. her view that, based on what she knew (she was not privy to all communications), although the mother had attempted to communicate with the aunt, she had not been successful;

2. when it was suggested that she had not seen any abusive emails sent by the mother to the aunt, she recalled one email, after May 2021, which she regarded as threatening;

3. her agreement to the proposition that it is in the child’s interests if she and the aunt could get along;

4. her understanding that the aunt might reconsider her earlier disinclination from engaging in ‘family therapy’ should the nature and tone of the mother’s communications with her continue to improve;

5. the mother had asked her to confirm that a support worker had travelled with her to and from Sydney for a community visit, which the DCJ had arranged;

6. the mother had asked her for a change in the location for the supervised visits but after the mother was informed that a Queensland Child Safety Officer could supervise, the mother had refused that officer’s further involvement;

7. if Harmony House was unavailable to provide supervised contact, it was possible for the DCJ to explore further options;

8. she had informed the mother that face-to-face visits lost because of the COVID-19 border restrictions could not be made up;

9. a difficulty with varying current contact arrangements is the need to accommodate the aunt’s (and her family’s) schedule. It was to be expected, for example, that the aunt would have her own plans in place for school holidays;

10. she agrees that the mother’s last few face-to-face visits went well;

11. she has no concern about the mother’s drug use, but could not say whether the DCJ would be in a position to monitor her situation in that regard.

Dr Lizabeth Tong’s evidence

105. Dr Tong is a well-credentialled psychologist with extensive academic qualifications. She prepared a report in the plaintiff’s s 90 proceeding finally determined in late 2020. The report was dated 18 September 2020. In that report, Dr Tong only touched upon issues about the mother’s contact with the child (paragraph 145) in the way I referred to earlier in the basic chronology.

106. However, she was called as a witness when the mother’s contact application was before the Children’s Court and was cross-examined by the then IRL. She was asked to update her opinion about contact in the event, which has since materialised, that the care orders were transferred to Queensland. Specifically, she was asked about the appropriate level of face-to-face contact between the mother and the child if his care was transferred. She said she considered that if face-to-face contact was to occur (whether it be in New South Wales or Queensland) it should be supervised. She considered she should obtain more than what she understood was the prevailing period of 8 hours in order to retain the relationship.

107. Dr Tong did not prepare a report in this appeal, enabling her to consider more recent developments since her report from September 2020.

108. I am informed by the legal representative for the Secretary that at a case management hearing, Judge Olsson rejected an application for a new clinician assessment report be prepared in an advance of the appeal.

109. Dr Tong was called by the Secretary to give evidence in this appeal. All parties sought to obtain opinions from Dr Tong about ‘contact’ issues which, unsurprisingly, she expressed reluctance to supply; based as they were on selective assumptions and without her having had the benefit of conducting any real assessment. At best she could only supply views expressed at a very high level.

110. Dr Tong, however, said that if contact between the mother and the child was going well, it would be preferable for there to be greater face-to-face contact than 4 times a year; however, that depended on what was suitable for the child. Dr Tong emphasised the desirability for contact arrangements to be reviewed continuously and, if there was to be any change, for a process of further review to occur to ascertain the effect of the changes.

111. In answer from a question from myself, which posed the scenario of care being under the control from Queensland authorities whilst contact was administered by the DCJ in New South Wales, Dr Tong said that she could conceive that there may be cross-jurisdictional consultation, although hastened to add that she could not comment upon legal issues that may arise. She did indicate, however, that it was intrinsically desirable that the entity responsible for care overall have responsibility for overseeing contact arrangements.

112. Dr Tong also indicated, at a high level, that there is always a problem for children with long-term carers (to whom they are primarily attached) in another state spending significant periods of time with their biological parents. That, in her experience, was psychologically troubling for the child. Nevertheless, she recognised that it was important for the child to continue his relationship with the mother and XC.

THE PARTIES’ CONTENTIONS

113. Before turning to the merits of the parties’ contentions, a question arises as to which of the two decisions appealed from should be addressed first.

114. The ILR argues that the appeal against the transfer decision is out of time and should be dismissed. The ILR argues, further, that on the assumption that the transfer decision stands, the mother’s contact appeal should fail for that reason alone. The ILR argues, in the alternative, that her contact appeal should be dismissed in any event.

115. Given the argument, raised by the Secretary and ILR, that it could and should be dispositive of the contact appeal, and given further that the position of the Secretary and the ILR that the appeal can be disposed of as a matter of law, it is convenient to deal with the transfer appeal first.

The appeal against the transfer order

116. Part 2 of Chapter 14A of the Care Act provides for the judicial transfer of child protection orders. The Final Order made by the Children’s Court on 24 February 2017, which allocated parenting responsibility for the child to the Minister, constituted a “child protection order” within the meaning of s 231B of the Care Act, which is capable of judicial transfer to Queensland.

117. Before such judicial transfer is ordered, the Children’s Court must be satisfied that the order to be transferred could be made under child welfare law of the receiving State, Queensland (s 231I of the Care Act).

118. By s 61 of the child Protection Act 1999 (Qld) (the ‘Queensland Care Act’), one of the orders that might be made by the Children’s Court (in Queensland) was an order for the long-term guardianship of a child to the Chief Executive. It is common ground that the order made by the Children’s Court on 24 February 2017 closely corresponds to the Queensland law, such that it will be in Queensland treated as a guardianship order allocating parental responsibility to the Chief Executive until the child attained majority.

119. The transfer decision and order were made by the Children’s Court on 25 June 2021.

120. By s 231K(2)(a) of the Care Act, a party dissatisfied with an order of the Children’s Court transferring a child protection order to another state has 10 working days to file an appeal. By s 231K(3) of the Care Act, on an appeal, this Court is prohibited from extending the time limit.

121. The provisions of the Care Act so identified required the mother to appeal the transfer decision by 9 July 2021. When she filed her summons on 19 July 2021, she was out of time.

122. The mother did not cite any power in the Court, on this appeal, to extend the time to appeal the transfer orders. All she indicated was that, without blame on her part, her appeal was not commenced within the time. As explained to her in argument, however, the Court is not empowered to extend the time bar on account of blamelessness on her part.

123. The decision, formalised by Order 1 in a Minute of Care Order made by the Children’s Court on 25 June 2021, is confirmed.

The appeal against the contact order

The mother’s submissions

124. The mother submits that it is in the child’s best interests that he has a more meaningful relationship with her and his younger brother XC. She says that the Department has no concerns with her care of XC and the child has a right ‘to know’ XC. She feels that the child bonds well with her and is very excited to see XC. She adds that when she sees the child, her mother is with her and that her mother focusses her attention on XC so as to enable the mother to focus on the child.

125. The mother feels chafes at the current restrictions for her contact with the child to chafe at her: she cannot practicably take the child to the movies, or tenpin bowling, given the time constraints. As I understood her evidence on appeal, she considers that she could get help from an NDIS support person if some level of supervision of her was required; or, as she later submitted, she might prevail upon AJ to look after XC, so she could focus on the child.

126. The mother indicated her concern if contact arrangements passed to Queensland. She did not believe that she had been dealt with fairly in Queensland in the past relation to her contact with AJ. She thought that her interests in reviews of contact arrangements had not been properly considered. She wants the DCJ, with whom she has good relations, to still administer contact arrangements. When asked by me, the mother was unable to point to any instance of unfair treatment of her in relation to her contact with the child.

The ILR’s submissions

127. The ILR argued that whereas a care order could be transferred to Queensland and treated in Queensland as if it placed guardianship in the Chief Executive, a contact order could not be made under the Queensland Care Act. By s 87 of the Queensland Care Act decisions about and obligations concerning contact rest with the Chief Executive ^[3] ; not any child welfare law of Queensland. Accordingly, the Secretary could not seek, and the Children’s Court could not order, transfer of a contact order under s 86 of the Care Act .

     3. Presumably the Chief Executive of the department in which the Working with Children (Risk Management and Screening Act 2000 (Qld) is administered

128. Once the care order had been transferred, Queensland authorities will make their own determination about the level of contact that the mother has with the child. If the Children’s Court or (on appeal) this Court, made a contact order now, to alter the level of contact the child will have with his mother (and XC), there is a real possibility that whatever regime for contact was now put in place would itself be altered by the Queensland Chief Executive.

129. The child has, for the last four years, had a consistent and stable level of contact with the mother, albeit disrupted, to some extent, by the border restrictions that have arisen to deal with the COVID-19 Pandemic over the last two years. The status quo regarding the mother’s contact should hold until the Queensland authorities make their own decision.

130. None of this means that the transfer of the care order to Queensland will necessarily result in the cessation or reduction in the existing contact. Rather, the contact arrangements will be re-assessed by caseworkers who are in the same state as the child and as contact supervisors, they can determine the appropriate level of contact for him.

131. Alternatively, addressing the merits of the mother’s appeal on the premise that the DCJ remains responsible for supervising the mother’s contact, the ILR submitted that the Court would not be persuaded that it is in the child’s best interests for contact to be increased, or altered, in the sense of unsupervised visits. There is no evidence of the impact upon the proposal upon him. the child’s primary attachment is with the aunt and the uncle, and their family (including his sister AJ). Dr Munro opined, in a report dated 3 October 2020, which was before the Children’s Court, that with the aunt and the uncle and their family, the child has a sense of security and belonging. He had never spent a night away from them. There is nothing to indicate how he would likely cope with a night away with the mother.

132. There was real concern whether, if unsupervised access was to occur which troubled the child, the mother would genuinely consult the aunt. It was clear that the mother did not have good relations with the aunt, whatever the rights and wrongs of that position. The aunt told the Children’s Court that the mother does not speak to or acknowledge her (and there was some evidence that on occasion she was rude about the aunt in the presence of the child). That would present significant logistical concerns in relation to unsupervised visits.

133. In terms of sleep-over arrangements, there were too many details not addressed, such as where the child would sleep; and questions as to how the mother could transport and care for the child and XC at the same time. There were doubts about her capacity to fund this, even with NDIS assistance and if that was to occur, the DCJ could not be ordered to meet her costs of travel and accommodation for contact visits.

127. Neither Dr Munro, nor Dr Tong, recommended any increase in contact (although the question of contact was peripheral to the opinions they were both asked about in the s 90 proceeding). There was no mechanism for review.

128. In oral argument, and in response to matters that the mother had raised, the ILR noted that the mother’s contact had increased from the original 6 times a year. To the extent that the mother criticised the aunt’s influence, this had been canvassed in the Children’s Court and the learned Magistrate made a finding suggestive that the criticism was unfounded. It appeared unrealistic that any support person from NDIS, assuming the mother could afford it, would be satisfactory for supervision purposes. Although the mother said that if problems emerged, she would seek out the aunt, the history, including recent history, indicated that she and the aunt did not get on. The mother’s proposal did not provide for regular review of the kind needed if the contact level was increased.

The Secretary’s submissions

136. The Secretary adopted the ILR’s analysis of the operation of the law regarding prospective contact arrangements considering the transfer of the care order.

137. The Secretary indicated that the current contact arrangements were not the product of any earlier order by the Court under s 86, but had developed, essentially organically, following interactions between the DCJ, the mother and the aunt, and others. They had, indeed progressed fluidly since the original care plan. The relationship between the mother (and XC) with the child had flourished independently of any contact order made by the Court.

138. For the Court to now intervene would be at best, futile, in circumstances where the child’s care will, as a result of the dismissal of the transfer appeal, be transferred to Queensland. The attitude of the Queensland authority was best gauged by an email from Ms Robyn Wills, a Senior Adviser – Interstate Liaison Officer of the Queensland Department of Child Safety, Youth and Women, to her NSW counterpart, dated 15 October 2019. This effectively conveyed that once care had been transferred to Queensland, no commitments could be made to the continuation of whatever contact arrangements that the mother had in place with the child. They would continue to be treated as ‘fluid’ and were ‘subject to change’ based on a range of considerations. The Secretary argued that when the Queensland authorities came to review the contact position, it would be expected that the DCJ would be consulted. Ordinarily, however, any contact order made by this Court would not have any effect beyond 12 months.

139. But in all probability, the consequences of making a contact order now would be worse for interested parties, for various reasons. The first is the fact that as part of the transfer process, Queensland made it clear that they could not accept the transfer of care whilst remaining bound by current contact arrangements. Inevitably, any contact order made by the Court now for contact would effectively stymie, or frustrate, the efficacy of the order of the Children’s Court (now confirmed) to transfer the child’s care arrangement. That would not be a desirable outcome from the result of the exercise of discretionary power that exists under s 86 of the Care Act .

140. Secondly, any order for contact now would (in addition to frustrating the transfer order) necessarily be of an interim nature (for 12 months), and, eventually liable to be overridden by the Queensland authority within a reasonably short period of time. It could be conceived that, in the short term, contact between the mother (and XC) and the child might increase, but putting the matter bluntly, even if it was supposed that this had beneficial outcomes, what good would it ultimately do for the child if the increased contact now could potentially be reversed later by authorities in Queensland?

141. The Secretary argued that there was no objective basis for the mother’s concern that she may not receive fair treatment in her dealings with the Queensland authorities, based upon her interactions with it concerning AJ. Suppose it was that she might carry some ‘baggage’ with some personnel within the Queensland authorities, there was reason to suppose that new personnel would consider her position fairly, particularly in relation to her progress over the last two years. The Queensland Care Act conferred, by s 87(1), a statutory right (or more accurately ‘opportunity’) for contact between the mother and the child, albeit a right or opportunity that could be altered: by s 87(2), the Chief Executive (who, by s 13, had guardianship rights over the child) could refuse to allow, restrict or impose conditions on contact, but if s/he did so, (by s 87(3)) s/he was obliged to provide written notice to the mother. If the mother was dissatisfied by any such decision, the Chief Executive’s decision under s 87(2) was reviewable to the Queensland Civil and Administrative Tribunal (‘QCAT’) on the mother’s application as a “person affected”(per s 247 and schedule 2 of the Queensland Care Act).

142. Alternatively, in response to the merits of the appeal, the Secretary submitted that there was insufficient detail to support any application for contact. This was in relation to locations and times. Flowing from the first point mentioned above, such increases in ‘contact’ that the mother had to date with the child had occurred through a consensual process. The DCJ had, thus far, interacted with her and the aunt, and a process of regular review was in place. Contrary to the flavour of some of the mother’s submissions, there was no real evidence of the aunt inhibiting what contact there was. That was certainly the case of face-to-face visits and in relation to Skype calls, there was nothing to prove any bad faith from the aunt in the efficacy of those calls.

143. The Secretary argued that the mother’s evidence about the support from a NDIS worker was concerning. It was unclear whether the increased costs of travel to Queensland could be met but even if it was, Dr Wong’s evidence was that it would be inappropriate for an adult who was not specifically trained in looking after the welfare of children to be involved in supervision.

144. The Secretary submitted that the mother had made no provision for any review within any contact orders made. That meant that if contact arrangements did not work out, there was, within the 12-month period, no facility for correction, other than a fresh application for a new order under s 86 (see s 86(7)).

The mother’s submissions in reply

145. The mother argued that Dr Tong’s views about what was appropriate for contact carried no real weight. She argued that, based upon her simple calculations of 26 hours contact at a rate of $50 an hour, she could well afford the support of an NDIS worker.

146. She suggested that any impediment arising from the aunt’s attitude towards her could be resolved by a court-ordered mediation, which she is personally amenable to.

147. She argued that her achievement in rehabilitating herself over the last few years should be recognised and, implicitly, be translated into increased contact with the child, who she clearly loves. She indicated that she was frustrated that she has suggested mediation, in good faith, with the aunt, but her overtures in that regard have been rebuffed.

148. I asked the mother what prejudice she envisaged she might sustain if the issue of contact was left to the Queensland authorities, given her right to seek review of any decision by the Chief Executive curtailing, refusing or limiting her contact. The mother pointed out that she was doubtful whether she could get legal aid to have her interests represented in such forum and that she had difficulties arguing for herself. She submitted that it was desirable for the DCJ to remain involved in supervision or administration of contact even if the care was to be placed in the hands of the Queensland department.

Consideration

149. On appeal, this Court has all the functions and discretions that the Children’s Court has under Chapter 5 (and Chapter 6) (s 91(4) of the Care Act). This relevantly includes the discretion to make a contact order under s 86 of the Care Act. The paramount consideration is the “safety, welfare and well-being” of the child (s 9(a) of the Care Act).

150. As was pointed out, in circumstances where it has been found that there is no realistic possibility of restoration of a child to his or her parent, following the earlier order allocating personal responsibility for the child in the Minister until he reaches the age of 18, the maximum period for any contact order that the Court may now be inclined to make under s 86 is 12 months (s 86(6) of the Care Act).

151. However, the Children’s Court ordered that the care be transferred to Queensland authorities. By this judgment, that order has been confirmed. The Children’s Court’s judicial transfer proceeded on the common basis, or understanding, that Queensland could not accept the transfer of care whilst being, in effect, hamstrung by the continuation of existing contact arrangements that had been developed (independently of any contact orders imposed by the Children’s Court).

152. In my opinion, the discretion under s 86 to make a contact order should not be exercised in the mother’s favour on the basis that the child’s care is, henceforth, to be regulated in Queensland. I agree with the Secretary and ILR that it would be an improper, if not inappropriate, exercise of discretion under s 86 to make a contact order which would frustrate the effective implementation of the decision of the Children’s Court, now confirmed, to transfer the child’s care to the Queensland authorities. It is not disputed that for this Court to make a contact order now would, in fact, result in the delay of the processing, or effective implementation, of the transfer of the child’s care. The situation would bring about a legal and practical “no man’s land” or, if that is too much of an exaggeration, at least significant complexity. That cannot be in the child’s best interests. I accept the evidence of Dr Tong relevantly supports the common sense notion that it is appropriate for contact arrangements to be vested in the same entity responsible for the child’s care. I also place weight upon the view expressed by the Queensland Department of Child Safety, Youth and Women, back in October 2019, that contact arrangements are inherently fluid, being susceptible to change, in the light of the case planning undertaken with the child and his care team, inclusive of the wishes of the child. As a result of the transfer orders, these people will be in Queensland. It will be the caseworkers and professionals in Queensland who the Chief Executive will rely upon when making decisions about the nature and extent of the mother’s contact.

153. The Care Act itself demonstrates the connection between the entity responsible for care and the nature and extent of contact. Section 86(3) of the Care Act indicates that any minimum requirements for the frequency and duration of contact represent an effective baseline: they may be altered (separately from any application to a Court for variation) with the consent of the person having parental responsibility. Prior to the recent orders of the Children’s Court, that was the Minister (in New South Wales). However, with the confirmation of the Children’s Court’s transfer of the care order, it is now the Chief Executive of the Queensland Department of Children, Youth Justice and Multicultural Affairs. The Chief Executive, when exercising his or her functions under s 87 of the Queensland Care Act, will look to those involved in day-to-day care, including the carers and the persons within the Queensland Department who are involved with the child. The Care Act therefore itself indicates that it is inexpedient for contact to continue to be administered or supervised by the DCJ whilst the care is administered by a Queensland Government department, however much the mother wishes to continue dealing with personnel within the DCJ.

154. I am not persuaded, even if it was legally possible, that a hybrid situation of Queensland looking after the child’s care whilst the DCJ would continue to supervise the extent of the mother’s contact with the child, would be beneficial to the child (most importantly), or other interested persons, including the aunt (and her family) and the mother (and the rest of her family). Nor would it likely be of administrative convenience to either the DCJ or its Queensland equivalent. It is entirely understandable, notwithstanding the dedication of its personnel to caring for the child and assisting and supervising the mother’s contact, why, now that care for the child is to be reposed in the Queensland authorities, the DCJ is unwilling to play any further role in assisting the mother with supervising her contact with the child.

155. I agree with the submissions advanced by the ILR and DCJ that there is a real concern that any contact order that I make now could very well be altered, eventually, by the Chief Executive in Queensland. That concern is not merely theoretical. The extent of contact between the mother and the child has, until now, been worked out, to a significant degree, in a practical way for a period of four years. The actual contact has increased in that time. It has been by this process, and not by any order imposed under s 86 of the Care Act, that the mother and her son XC, have developed good associations with the child whilst, at the same time, allowing the child to thrive in a stable and secure primary care arrangement with the aunt and her family (and AJ).

156. To materially increase that level of contact now, as the mother seeks, carries a real risk of dislocation and disruption if, in 12 months’ time, or before, the contact arrangement is upended.

157. Contrary to the mother’s manifest fear or apprehension about what might occur in Queensland regarding the frequency and nature of contact, the process of identifying appropriate contact arrangements, as between the mother and the child is best left to the procedures available in Queensland. It is in Queensland that locations for supervision may be more suitably ascertained, and where the content of visits most appropriately identified in the light of the child’s needs, now as a young boy, as well as the needs of his primary carers. Conceivably, what the Queensland authorities determine may be influenced by their understanding of what has passed whilst contact has been supervised by the DCJ. Whether the mother likes it or not, she cannot continue to frustrate the transfer of care to the Queensland authorities by a desire to have contact dealt with by the DCJ, because of any fear as to how her interests are dealt with in Queensland. If the mother is dissatisfied with what the Chief Executive decides in relation to her contact, she has the option of seeking independent merits review of it to the QCAT in the QCAT. Like many (perhaps most) people who appear in the NCAT in this State, it is possible that she may not be capable of securing legal representation, but it should not be thought for a moment that she would not receive a full and effective hearing if a dispute was to go to the QCAT regarding the adequacy of contact that she is permitted.

158. If I was wrong about my dispositive finding regarding the significance of the transfer order, I would still not have been inclined to accede to the contact application in the terms proposed by the mother. What follows is what I would describe as review of the Magistrate’s decision on the merits on the premise (contrary to what I have found) that it remains appropriate for the DCJ to continue to supervise contact.

159. I recognise, as did the learned Magistrate, the strides that the mother has taken in the last few years: to abstain from drugs, to obtain a diagnosis for her mental health condition and take apparently effective medication (and psychotherapy) to manage that condition; her palpable love for the child and demonstrable capacity to bring up her younger son, XC. I also acknowledge that her dealings with the child have ‘warmed’ since the beginning and that there is a developing connection between the child and XC. In the abstract, it is perfectly understandable and indeed, logical, that the mother may think that as her relationship with the child has improved, and further, that as a positive association has developed as between the child and XC, the level of her contact should commensurately increase. Finally, the Court understands the sincerity and strength of the mother’s conviction, and vision, that it is desirable that relations between the biological mother and her child, and the relations between that child and another child of that biological mother should be enhanced.

160. However, all of that being accepted, it still begs the question of the propriety of the intervention of the Children’s Court or, on appeal, this Court, to intervene now to regulate such contact. That brings to bear other practical matters affecting the ultimate and paramount question of what is in the child’s best interests; including the interests of the child’s carers. The issue is not simply to be addressed based on rewarding the mother for the further advances in her self-improvement since the Children’s Court judgment last June.

161. At its highest, the mother’s case rests upon her own subjective views as to what will suit the child in terms of increased contact, based on an (understandably) emotive view of what she thinks will enhance the child’s interests. But on the evidence before this Court on appeal, the Court has no way of knowing whether, objectively, the increased contact, to the extent that it is sought by the mother, is likely to be beneficial to him. The DCJ, through the views of its dedicated caseworkers, clearly does not think that it will. Nor does the ILR. The Court would be reluctant to go against their positions unless there is compelling evidence that increase contact will benefit the child. I am not persuaded that the evidence rises so highly.

162. I place significant weight upon the opinion of Ms Redenbach (whom the mother identified as having a good rapport with her) in finding that it is not established that face-to-face contact with the mother (with or without XC and the maternal grandmother) of more than 3 hours would not be in the child’s interests. I am even less satisfied that nightly sleepovers or unsupervised visits would be appropriate. Ms Redenbach did not endorse the notion of sleepovers or generalised unsupervised contact. Her approach, which I consider is sensible, is, at best, only for small incremental increases, to be monitored by caseworkers, in review. This is a preferable approach, to a ‘top down’ or inflexible edict from the Court.

163. Pivotal to these findings are my concerns, shared by the learned Magistrate, that there is an endemic level of mutual distrust and suspicion as between the mother and the aunt. Although the mother was at pains at the hearing of this appeal to put across that she has done what she can to deal co-operatively with the aunt, the evidence of the aunt at the hearing in the Children’s Court was to a very different effect. As the Magistrate noted, the aunt said that although the mother had not been “as” rude or aggressive on phone calls, she herself did not talk to the mother, or at least, as I read her evidence, any more than was necessary: “(the mother) won’t talk to me on the phone. (the mother) won’t acknowledge me. If I try to bring something up or correct something, I will get, ‘I’m not talking to you” (Court Book p 556, lines 26-27). I think it most likely that the mother resents that the aunt has provided the primary care for the child. Most concerning is the finding of the Magistrate that the mother has not been able to conceal her resentment towards the aunt. An example of this, identified by the Magistrate, was the aunt’s evidence in the Children’s Court arose when the child attempted to show the mother his painting the aunt’s fingernails and when he did, the mother provided a response which ‘deflated’ the child (Court Book p 556, lines 35-40). I can understand why the mother might respond like this. It might be thought that human nature is such as to make it unlikely that any different result would be likely. Another example of rudeness towards the aunt was on a Skype or FaceTime call in the child’s presence (Court Book, 559, lines 5-44). What is pertinent is that I share the Magistrate’s concern that there is a real risk that extended contact, in terms of length, and especially if the heightened contact was to take the form of sleepovers or even simply an absence of supervision, would carry the risk that the mother would disparage the aunt to the child, to his psychological detriment.

149. Even if the mother was capable of resisting any urge to disparage the aunt, I am concerned about the hypothetical scenario of the mother’s response, ‘five minutes to midnight’, about the child being distressed and how she would respond. I share the ILR’s concern that even if the mother was capable and willing of getting in touch with the aunt, there is a real risk that she would still act with reference to her own views of what is appropriate parenting which may not align with the child’s needs.

150. This problem should not be resolved by mandatory action by this Court. I do not accede to what I understood to be the mother’s suggestion that a term or condition to a contact order is to coerce the aunt into a ‘family therapy’ session. Even if it is assumed that the Court was empowered under s 86 to impose such term (which strikes me as dubious)^[4] the Court would not contemplate making such order without clear evidence of the aunt’s willingness and identification of the parameters for such session. This was not apparent. Indeed, the aunt’s attitude was made pellucidly clear when she gave evidence in the Children’s Court (on 21 May 2021):

“I believe that until (the mother) deals with her resentment of myself and my family that I am not going to put myself or my mental wellbeing in a situation that could turn hostile or be resentful. I think (the mother) needs to start with having a decent relationship conversation-wise with me and then in the future if that continues and that can be stabilised, we may have a look at that …. I don’t think it’s fair to expect me to put myself in a position, which I have a number of times, to be treated unfairly, to receive emails telling me I’m ‘scum’ and I’m ‘nothing’, to then two weeks later saying ‘I want a relationship with you’ to then three months later copping the same thing. I, for myself, need to see some stability before I put myself in that situation again” (Court Book 557).

4. See the Court of Appeal’s rejection of the proposition that the Children’s Court is empowered to order the (then) DOCS to pay transport fees and accommodation expenses for the contact: George v Children’s Court of NSW [2003] NSWCA 389

166. I am not persuaded that this has materially changed since the Children’s Court decision last June. In her most recent affidavit filed in this appeal proceeding, the mother gave no evidence to indicate her efforts to bring about the ‘decent relationship conversation-wise’ which the aunt alluded to in the latter’s evidence in the Children’s Court.

167. A measure of continuing antipathy between the mother and aunt was revealed at the hearing of this appeal, when the mother sought, unsuccessfully, an order for the Court to issue a subpoena to the aunt to attend on the expressed basis that the mother wanted to cross-examine the aunt upon her attitude to the mother’s contact with AJ. Plainly, the mother remains hostile towards the aunt.

168. At the hearing of this appeal, the mother appeared to suggest that she had made efforts with the aunt, but she had been rebuffed. Whether that is true or not, and whether the aunt is able to overcome, or possibly overlook past mistreatment of her by the mother, are questions which this Court cannot resolve and, it is not for this Court, on appeal, to make a coercive order for family therapy.

169. My concerns about the nature of supervision not addressed by the possible presence of NDIS support workers, even if I was prepared to accept that the mother was capable to finance having an NDIS support worker in tow with the child. I accept Dr Tong’s view that any supervisor would need specialist skills in child protection. In my view, the position is unsatisfactory as the NDIS support worker would face potential conflicts of duty or loyalty, in trying to assist the mother whilst being expected to have some vague sense of responsibility for protecting the child.

170. I also consider that this Court cannot presume, contrary to the mother’s expectation, that AJ would consent to looking after XC whilst the mother focused on the child. AJ is a young adult and, I expect, will wish to lead her own busy life untrammelled by her mother’s expectations; even if she is fond of XC.

171. So far, I have addressed the mother’s interests in increased contact. But as part of the overall evaluation of what is in the child’s best interests, consideration needs to be given to the position of the authorised carer and her family and other practical considerations. Ms Redenbach indicated some doubt as to whether, at least on weekdays, Harmony House may be available for further visits. Substantial additional contact time during Queensland School holidays will likely involve greater dislocation and disruption to the holiday plans of the aunt and uncle’s family. As I understand the position, the aunt has been very accommodating to date in terms of meeting the mother’s desire to have face-to-face visits (under the prevailing border restrictions for 2020 and 2021), but extra demands on contact will impose extra burdens upon the aunt and her family. The child is now 6 years of age and has just started a new year.

172. The Court is concerned that any specific contact orders it makes now, without any provision for review, may be regarded by the aunt and uncle’s family as too inflexible and inconvenient in practice. I apprehend the child’s own social life is likely to develop further (he is reportedly a popular boy) who will probably wish to have an increase in ‘playdates’ with friends outside his family circle. There may be other sporting activities that he will wish to become immersed in on weekends (the child reportedly like outdoor activities). In Judge Neilson’s reasons for decision on the s 90 application, his Honour noted (at [54]) the child’s interest in playing soccer in his ‘soccer-mad’ carer family. It is not inconceivable, for example, that notwithstanding his love for the mother and good relations with XC, the child might really prefer a social outing with a friend from Year 1 at school on a Saturday, or to play sport at a local community sports club on Saturdays. A problem would therefore potentially arise if, because of a Court order, he is required, instead, to routinely see his mother for a 6 hour (unsupervised) interval every second and third Saturdays during term 2. There is an additional risk that as extra contact is mandated, it may come to be resented by the child in conspicuous ways that upset the mother’s expectations.

173. I place weight on the circumstance that, over the last four years, contact arrangements have developed, as I have described it, ‘organically’, featuring the input of not only the mother and the aunt, but other caseworkers of the DCJ. This has occurred without the Court needing to intervene by making an order under s 86 of the Care Act; even when, as I indicated earlier, opportunities have previously presented themselves to the mother to seek the Court’s intervention. The Court is, however, concerned, that if orders are made now, then absent a mechanism for review (which Dr Tong regarded as being something that should occur continuously), any order now made is likely to be something of a blunt instrument: it will only subsist for 12 months at a maximum and would require a new application under s 86 of the Care Act to deal with any necessary changes. In this area, this Court, on appeals, would not be minded to act in a way which, very possibly, will spur or necessitate future and further litigation.

174. No mechanism for review of the increased contact has been proposed, as to frequency, or method. When this matter was raised with the mother, when she was making verbal submissions in reply, she indicated that she was not averse to a mechanism for review. However, she did not articulate (in the absence of a review mechanism being proposed in her formal contact application) what that might comprise. Although proceedings in the Children’s Court and, on appeal, to this Court, are not conducted with undue formality, elementary procedural fairness suggests that the proponent for change should put up appropriate conditions, such as review mechanisms. That did not happen in the Children’s Court, in respect to the mother’s application, and it has not happened on this appeal. The Secretary and the ILR were entitled to notice of what terms or conditions should be imposed for increased contact. It is not for this Court, on appeal, to conjure what such a mechanism might look like where that is contested; particularly when this issue was not considered in the Children’s Court.

175. Generally, I am not satisfied that the circumstances have materially altered since the Children’s Court made its decision to refuse the mother’s contact application. Since, as I have indicated, the mother did not complain about the learned Magistrate’s justification for refusing that application and in the light of my adoption of the Magistrate’s factual findings, the mother has not persuaded me to reach any contrary conclusion.

176. Further, I take into account the Independent Legal Representative, acting in the child’s interests, does not support the application.

177. Accordingly, even if I had thought differently about the consequence of the care being transferred to Queensland, I would still not have been persuaded that it is in the best interests of the child for the mother’s consent application to be acceded to. The Children’s Court’s decision rejecting that application is accordingly confirmed.

178. Finally, I note the mother’s complaint about her mental health diagnosis being disclosed in what she expected was a closed court, in the presence of the aunt. Whilst the Court can understand her sensitivity to such disclosure, this Court, and this appeal, is not the forum for her to ventilate such concerns as she may have about that circumstance. It is irrelevant to the issues the Court must decide.

179. To reiterate, the two decisions, the contact decision and the transfer decision, made by the Children’s Court on 25 June 2021 are both confirmed. The Summons is dismissed.

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Endnotes

Amendments

05 March 2022 - Paragraph 26 - child's name anonymised

Decision last updated: 05 March 2022