MC v Department of Human Services
[2011] NSWSC 374
•19 April 2011
Supreme Court
New South Wales
Medium Neutral Citation: MC & Anor v Department of Human Services & ors [2011] NSWSC 374 Hearing dates: 19 April 2011 Decision date: 19 April 2011 Jurisdiction: Equity Division Before: Hallen AsJ Decision: The Court:
(a) Orders that leave to the Plaintiffs to bring these proceedings out of time be granted.
(b) Orders in terms of Paragraphs 1, 2, 3, 5, 6, 7, 8, 10 and 11 of Terms of Settlement, dated 19 April 2011, signed by the legal representatives for the Plaintiffs, the second Defendants, and the independent legal representative of the children, which I have also signed, dated today, which are placed with the papers.
(c) Notes Paragraph 9 of the Terms of Settlement.
(d) Orders that the Court accepts the undertakings in Paragraph 12 given by the Plaintiffs pursuant to s 73 of the CYP Act as set out in Annexure "A" of the Terms of Settlement, which undertakings have been signed by each of them.
(e) Notes the agreement of the parties set out in the Transition Plan, a copy of which is annexed to the Terms of Settlement and marked "B".
(f) Notes that upon the children being transitioned into the full time care of the Plaintiffs, as set out in the Transition Plan, I shall make an order in terms of Paragraph 4 of the Terms of Settlement and that this can be done by filing with my Associate, at the conclusion of the transition plan, an order signed by the legal representatives of the Plaintiffs, the Director-General and Minister and the independent legal representative of the children.
(g) Notes that the legal representatives of the Director-General will, 7 days prior to the completion of the transition plan, inform, in writing, each of the other parties referred to, whether the order in terms of Paragraph 4 of the Terms of Settlement will be filed with the Court.
(g) Reserves further consideration for any party to apply in relation to the implementation of the orders upon 7 days' notice to each of the other parties.
Catchwords: Appeal commenced by Summons by the maternal grandmother of two children from decision of Presidential Children's Court - Appeal out of time - Leave to appeal required - No dispute that leave should be granted - Agreement reached by parties - Whether Court satisfied that orders sought should be made Legislation Cited: Children and Young Persons (Care and Protection) Act 1998
Children Legislation Amendment (Wood Inquiry Recommendations) Act 2009
Children's Court Act 1987
Children's Court Regulation 2009Cases Cited: Re Victoria [2002] NSWSC 647; (2002) 29 Fam LR 157 Category: Principal judgment Parties: Maternal Grandmother (first Plaintiff)
Maternal Grandfather (second Plaintiff)
Director-General, Department of Family and Community Services (formerly Department of Human Services) (first Defendant)
Minister for Family and Community Services (formerly Minister for Community Services) (second Defendant)
Paul Denmeade, Independent Legal Representative (third Defendant)
MC (mother) (fourth Defendant)
JJ (father) (fifth Defendant)
NT (foster carer) (six Defendant)
JJ (foster carer) (seventh Defendant)Representation: Counsel:
Ms D Black (first and second Plaintiffs)
Mr G Moore (first and second Defendants)
Mr B Snelling (third Defendant)
Solicitors:
G J Donaghy & Company (first Plaintiff)
Crown Solicitor's Office (first and second Defendants)
Paul Denmeade & Co (third Defendant)
File Number(s): 2010/272576
JUDGMENT - EX TEMPORE
Introduction
HIS HONOUR: These are proceedings in the nature of an appeal commenced by Summons filed on 2 August 2010, by the maternal grandmother of two children to whom I shall refer as "T" and "L".
The Director-General of the Department of Human Services (NSW) (now called the Department of Family and Community Services) ("the Department") and the Minister of Community Services (now the Minister for Family and Community Services) are the first Defendants to the appeal. The other Defendants include the independent legal representative for the children, the mother and father of the children, and the two foster carers, in whose care the children have been placed.
Because the appeal is out of time, leave to appeal is required. There is no dispute that leave should be granted. The principal relief sought is that the children reside with their maternal grandmother and that she has sole parental responsibility for them (see the Further Amended Summons). (Agreement has been reached that the maternal grandfather of the children should be joined as a party to the appeal, as he was a party to the proceedings in the Children's Court.)
Only the maternal grandparents, the Department, and the independent children's representative appeared at the hearing, although the foster carers were available by telephone link-up. During the course of the hearing, they were telephoned and the substance of the agreement that had been reached and the orders that were to be made were outlined to them. Each expressed her consent to what was proposed.
The decision appealed from was that of the President of the Children's Court, his Honour, Judge M C Marien SC, whose reasons for judgment were delivered on 29 March 2010. The order made by his Honour, who sat in Lismore to hear the case, was to dismiss the application to rescind or discharge an order made on 29 February 2008, allocating parental responsibility for the children to the Minister.
The matter comes to the Supreme Court pursuant to s 22A of the Children's Court Act 1987 , and Regulation 5 of the Children's Court Regulation 2009, which, respectively, provides:
"(1) In this section:
"appeal" includes the referral of any matter.
"decision" includes any order or judgment.
"Presidential Children's Court" means the Children's Court constituted by the President.
(2) An appeal to the District Court under any Act or other law in relation to a decision of the Presidential Children's Court is, despite the provisions of that Act or law, taken to be an appeal to the Supreme Court.
(3) Subsection (2) has effect only to the extent provided by the regulations.
(4) For the purposes of subsection (2), the provisions of any Act or law relating to appeals are subject to such modifications as may be prescribed by the regulations.
(5) The Governor may make regulations for the purposes of this section."
Regulation 5 relevantly provides:
"(1) An appeal or review under any of the following sections of the Children and Young Persons (Care and Protection) Act 1998 is, if the appeal or review relates to a decision of the Presidential Children's Court, taken to be an appeal to (or a review by) the Supreme Court and is subject to any relevant rules of court applying to appeals to (or reviews by) the Supreme Court:
(a) section 91 (Appeals),
(b) ...
(c) ...
(d)...
(2) For the purposes of subclause (1), a reference to the District Court in section 91, ... of the Children and Young Persons (Care and Protection) Act 1998 is to be construed as including a reference to the Supreme Court."
The section and the regulation were introduced following the passing of the Children Legislation Amendment (Wood Inquiry Recommendations) Act 2009 (which was assented to on 7 April 2009) and its date of commencement was 1 June 2009 (Sch 2.2 [12]).
The Respondents who appeared, initially, opposed the orders sought by the maternal grandmother. However, following a mediation and further discussions between the parties, agreement has been reached on the disposition of the appeal.
Whilst the parties have been able to resolve the dispute, it remains necessary for me to consider the basis upon which they have done so before making orders that determine the appeal.
Nature of Appeal
The appeal is one under s 91 of the Children and Young Persons (Care and Protection) Act 1998 ("the CYP Act"). As such, it is an appeal by way of a 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 the appeal (s 91(2) of the CYP Act).
The 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 (s 91(3) of the CYP Act).
The proceedings are not to be conducted in an adversarial manner, but should be conducted with as little formality and legal technicality and form as the circumstances of the case permit and the Court is not bound by the rules of evidence unless, in relation to particular proceedings or particular parts of proceedings before it, the Court determines that the rules of evidence, or such of those rules as are specified by the Court, are to apply to those proceedings or parts thereof (s 93 of the CYP Act).
Some of these matters in the conduct of an appeal from an order of the Children's Court were referred to by Palmer J in Re Victoria [2002] NSWSC 647 at [11]; (2002) 29 Fam LR 157.
These sections thus create a scheme for appeals (usually to the District Court). A consideration of the provisions referred to point in favour of the appeal being an appeal by way of re-hearing. In other words, they fix the character of the appeal as a "new hearing". On that footing, the Court may form its own view of the matter and prefer it to that of the President of the Children's Court and the Court is not restricted to intervening where there is a demonstrated error or where the order is shown to be manifestly insupportable.
The Court may confirm, vary, or set aside, the decision of the Children's Court (s 91(5) of the CYP Act).
Finally, reference should be made to s 247 of the CYP Act, which provides that nothing in the Act limits the jurisdiction of the Supreme Court.
In determining the appeal, the principles of the CYP Act and, in particular, s 9, must be applied. Section 9 provides:
"(1) This Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount.
(2) Subject to subsection (1), the other principles to be applied in the administration of this Act are as follows:
(a) Wherever a child or young person is able to form his or her own views on a matter concerning his or her safety, welfare and well-being, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child or young person and the circumstances.
(b) In all actions and decisions made under this Act (whether by legal or administrative process) that significantly affect a child or young person, account must be taken of the culture, disability, language, religion and sexuality of the child or young person and, if relevant, those with parental responsibility for the child or young person.
(c) In deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child's or young person's development.
(d) If a child or young person is temporarily or permanently deprived of his or her family environment, or cannot be allowed to remain in that environment in his or her own best interests, the child or young person is entitled to special protection and assistance from the State, and his or her name, identity, language, cultural and religious ties should, as far as possible, be preserved.
(e) If a child or young person is placed in out-of-home care, arrangements should be made, in a timely manner, to ensure the provision of a safe, nurturing, stable and secure environment, recognising the child's or young person's circumstances and that, the younger the age of the child, the greater the need for early decisions to be made in relation to a permanent placement.
(f) 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, and taking into account the wishes of the child or young person, 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."
Because any orders will involve the rescission or variation a care order, the Court must also consider s 90, which relevantly provides:
"(2A) Before granting leave to vary or rescind the care order, the Children's Court must take the following matters into consideration:
(a) the nature of the application, and
(b) the age of the child or young person, and
(c) the length of time for which the child or young person has been in the care of the present carer, and
(d) the plans for the child, and
(e) whether the applicant has an arguable case, and
(f) matters concerning the care and protection of the child or young person that are identified in:
(i) a report under section 82, or
(ii) a report that has been prepared in relation to a review directed by the Children's Guardian under section 85A or in accordance with section 150."
Background
The factual background is largely uncontroversial.
On 26 July 2007, Chief Children's Magistrate Mitchell, sitting at Lismore, placed the children under the care of the Minister until each child attained the age of 18 years.
On 13 August 2007, the mother appealed to the District Court. It was this appeal that Justice R.O. Blanch AM, the Chief Judge, dealt with on 29 February 2008.
The Orders of 29 February 2008 contemplated that the children would be restored to the care of their parents upon them achieving certain outcomes.
In May 2008, both parents tested positive for illegal drugs, following which any plan to restore the children to their parents was abandoned.
On 10 November 2008, the maternal grandparents filed an application pursuant to s 90 of the CYP Act in the Children's Court, at Lismore, seeking to rescind the orders made by the District Court at Lismore on 29 February 2008 and make further orders for the allocation of parental responsibility for the children to the maternal grandmother.
On 3 April 2009, Magistrate Denes in the Children's Court at Lismore granted leave to the maternal grandparents to apply to rescind the orders made by the District Court at Lismore on 29 February 2008.
On 9 April 2009, a s 82 report in relation to the children was filed with the Children's Court at Lismore.
On 14 April 2009, the maternal grandmother's application came before Magistrate Linden at the Children's Court at Lismore. Orders were made by consent that:
(a) the foster carers be joined as parties to the proceedings; and
(b) an assessment of the children pursuant to s 53 of the CYP Act and, an assessment of the maternal grandparents and the foster carers pursuant to s 54 of the CYP Act, should be prepared.
On 12 August 2009, a Children's Court Clinician's Assessment report prepared by Dr Jonathon Munro was released to the parties by the Children's Court at Lismore.
On 9 September 2009, Community Services filed care plans for both of the children in the Children's Court at Lismore, which recommended that:
(a) the Minister be allocated parental responsibility for the children until they attained 18 years of age; and
(b) the children remain placed with the foster carers.
On 15 October 2009, a Preliminary Conference was conducted by Registrar Gill at the Children's Court at Lismore, with all parties and their legal representatives present.
On 29 March 2010, the hearing concluded in the Children's Court at Lismore before Children's Court President, Judge Marien, who gave judgment that day, dismissing the application.
Family Details
The maternal grandparents have been living in a domestic relationship for over 30 years. They have borne 10 children together, one of whom is M, the mother of the children.
M lives in a domestic relationship with JJ, who is the father of the children.
The child, T, who is now 6 years old, was born in March 2005. The child, L, who is now almost 4.5 years old, was born in November 2006. Both are currently living with a foster family as a result of arrangements made through the Department.
The children were taken into care by the Department on 16 March 2007 and were placed into the care of the foster family in April 2007. The children have remained with the foster family since that time.
The children have been identified as Aboriginal children. Their father identifies himself as being of Aboriginal descent. The grandfather is also of Aboriginal descent, although this has not yet been confirmed.
The Director-General, in April 2007, had assessed the suitability of the maternal grandparents to care for the children. Ms S M, a Child Protection Caseworker, conducted that assessment. Ms M did not recommend that the children be placed with the maternal grandparents. They were deemed unsuitable for reasons that are no longer relevant to what is now being determined.
Despite the fact that the children have been in care for 4 years, it is fair to say that the evidence reveals that the maternal grandparents have a close relationship with the children, particularly with T. They are not as close to L, but this may be because he has been in care since he was about 4 months old. The bonding between the maternal grandparents and the children has been described as "very solid".
From 29 August 2009 until 17 April 2010, generally, contact visits between the children and the maternal grandparents have occurred each week for 4 hours. On occasions, the visits have been longer. From then, and currently, contact visits have changed to one visit each fortnight for 8 hours.
On occasions, there have been additional supervised contact visits with the children and their parents and the maternal grandparents and other members of their extended family.
The Director-General, more recently, has conducted a further assessment of the grandparents. Ms MR, another Child Protection Caseworker, conducted the assessment and provided a report dated 31 March 2011. Ms R recommends, subject to certain conditions being met, that the grandparents be authorised to provide relative care for T and L. A transition period of about 4 months is to occur before placement is altered completely.
The Terms of Settlement provide for the children to be placed with the maternal grandparents upon the grandparents providing undertakings including that they obtain suitable accommodation. These undertakings form part of the Terms of Settlement and are signed by each of them (Annexure "A" to the Terms of Settlement).
Generally, the contact visits between the children and their parents have been supervised for two hours every second month as well as on special occasions such as the birthday of each child and Christmas. These extra visits are shared with the maternal grandparents. These remain, generally, the current contact arrangements between the parents and the children. The agreement that has been reached provides for those contact arrangements to continue.
Assessment Reports
The children were referred for evaluation pursuant to an Assessment Order dated 14 April 2009, made at the Children's Court at Lismore, pursuant to s 53 and s 54 of the Children and Young Persons (Care and Protection) Act relating to the "care of the child/young person and to a person (or persons) with parental responsibility or seeking parental responsibility for the children to carry out that parental responsibility".
A supplementary assessment to the assessment report prepared by the Children's Court Clinician (AC) Dr Jonathon Munro was prepared on 21 March 2011. I have carefully read this assessment report.
An additional report was prepared by Dr Munro, pursuant to an order made by me on 7 April 2011, dealing with some matters that the parties, themselves, regarded as important and relating to how the children would be "transitioned" to the grandparents.
The additional report, dated 12 April 2011, was provided to the Court shortly after that date. I have carefully read this further assessment report.
In view of the fact that the parties have reached agreement, it is unnecessary for me to deal with the contents of these reports, other than to say that the recommendations contained in them were practical and, undoubtedly, helpful to the parties.
I should say, before leaving this topic, that the Court is most grateful for the assistance provided by the Children's Court Clinic, and, in particular, Dr Jonathon Munro, not only because of the assessments that have been conducted and the reports provided, but more recently, for the speed with which the further assessment report was prepared and provided to the Court and, hence, to the parties. I have no doubt that the parties would not have been able to resolve their disputes without the reports, which have provided valuable guidance to the way forward and identified, from the Clinician's point of view, what is believed to be in the best interests of the children.
The Resolution of the Appeal
The parties, as stated, have been able to resolve their disputes. However, before the Court makes orders, I am required to take into consideration the matter set out in s 90(6) of the Act as well as the overriding consideration of s 9(1).
I set out the relevant matters, which, because there was no dispute about them, I have taken directly from the submissions filed on behalf of the Director-General and the Minister:
(a) Section 90 (6)(a) - the ages of the children
They are aged 6 and 4 respectively.
(b) Section 90(6)(b) - the wishes of the children and the weight to be given to their wishes
Given the ages of the children, there is no evidence of the wishes of either of them.
(c) Section 90(6)(c) - the length of time the children have been in the care of the present carers
The children were placed with their present foster careers in March 2007. They have been with them for 4 years.
(d) Section 90(6)(d) - the strength of the children's attachments to the birth parents and the present caregivers
The children's primary attachments are to the current foster carers. The observations of the children with the foster careers are set out at page 16 of the report dated 9 March 2011 of the Children's Court Clinician, Dr Jonathon Munro. The children have not resided with their parents for 4 years. There is no suggestion that the children will be restored to their care.
(e) Section 90(6)(e) - the capacity of the birth parents to provide an adequate standard of care for the children
The parents are not participating directly, in these proceedings. The parties accept that the parents would not provide an adequate standard of care for the children.
(f) Section 90(6)(f) - the risk to the child or young person of psychological harm if the present care arrangements are varied or rescinded
The report of Dr Jonathon Munro dated 9 March 2011 supports the children remaining with the current foster carers. The last paragraph of page 19 of Dr Munro's report summarises the position:
"To consolidate what appears to be a good placement that meets the children's emotional needs, it would be in the children's interest to remain with their current cares, however the carers need to improve the quality of care being provided to the children in relation to their medical, educational and developmental needs. I believe the children's current needs can continue to be met in foster care, however should there be a problem with this placement, disrupting the children's permanency planning, the maternal grandparents have been developing the necessary resources that may eventually enable the maternal and/or paternal family to care for the children"
The improvement in care that Dr Munro refers to is set out at page 16 of his report. It includes L's poor attendance at Early Intervention and the lack of attendance of both children to therapeutic medical and dental appointments. The Director-General's evidence is that this has been a problem for some time.
However, Dr Munro, subsequently, recommended:
"1. Parental responsibility for T and L remain with the Minister.
2. CSD will need to assess the Maternal Grandparents' home environment in relation to the possibility of more unsupervised and eventually overnight contact and this would also address the Children's cultural awareness. However, such an assessment should take into account the possibility of harm to the Children should it disrupt their long-term care placement.
3. If for some reason the Children's current placement were to break down in the future, CSD would need to undertake an assessment of the Maternal Grandparents' capacity to provide for the ongoing care of the Children.
4. In the event that the Maternal Grandparents are unable to have sole responsibility for the day-to-day care of the Children then CSD undertake an assessment of the willingness of the Maternal Grandfather's younger sisters to assist in the ongoing care and support of the children in the long-term.
5. Consideration should be given to ongoing contact of the Children with the Parents for identity purposes.
6. The Children have regular paediatric Assessment to address their ongoing developmental needs."
In his subsequent report, Dr Munro opined:
"When deciding about the time needed to transition the Children to the Maternal Grandparents, it is important to keep in mind how all involved will react to the demands made of them, particularly the Children.
...
The longer the Children wait, the more they will have attached to the foster carers, the more the difficult the transition, and the more demands made of the Maternal Grandparents. A failed transition to the Maternal Grandparents will be damaging to the Children, and the carers. And then, even a change of placement between good carers is potentially damaging. 8:6 and 7:7 or other 50:50 transition schedules should not be considered unless the Maternal Grandparents and the carers are communicating well"
T has been diagnosed with Autism Spectrum Disorder and Hyperactivity. L was also diagnosed with a Global Development Delay.
Although not specifically provided for in s 90(6), it would be relevant for the Court to consider the relationship between the children and their maternal grandparents, as well as their capacity to provide for the needs of the children.
I have also been provided with a Care Plan in respect of each of the children, each of which has been marked as an exhibit in the proceedings and retained with the papers.
Having considered all of the matters that I am required to consider, I am satisfied that the care plan and the agreements reached provide for the safety, welfare and well-being of each child and I propose to make the orders sought in the Terms of Settlement as requested.
Accordingly, the Court:
(a) Orders that leave to the Plaintiffs to bring these proceedings out of time be granted.
(b) Orders in terms of Paragraphs 1, 2, 3, 5, 6, 7, 8, 10 and 11 of Terms of Settlement, dated 19 April 2011, signed by the legal representatives for the Plaintiffs, the second Defendants, and the independent legal representative of the children, which I have also signed, dated today, which are placed with the papers.
(c) Notes Paragraph 9 of the Terms of Settlement.
(d) Orders that the Court accepts the undertakings in Paragraph 12 given by the Plaintiffs pursuant to s 73 of the CYP Act as set out in Annexure "A" of the Terms of Settlement, which undertakings have been signed by each of them.
(e) Notes the agreement of the parties set out in the Transition Plan, a copy of which is annexed to the Terms of Settlement and marked "B".
(f) Notes that upon the children being transitioned into the full time care of the Plaintiffs, as set out in the Transition Plan, I shall make an order in terms of Paragraph 4 of the Terms of Settlement and that this can be done by filing with my Associate, at the conclusion of the Transition Plan, an order signed by the legal representatives of the Plaintiffs, the Director-General and Minister and the independent legal representative of the children.
(g) Notes that the legal representatives of the Director-General will, 7 days prior to the completion of the transition plan, inform, in writing, each of the other parties referred to, whether the order in terms of Paragraph 4 of the Terms of Settlement will be filed with the Court.
(g) Reserves further consideration for any party to apply in relation to the implementation of the orders upon 7 days' notice to each of the other parties.
**********
Decision last updated: 03 May 2011
0