O'Connor v The Minister for Family and Community Services

[2020] NSWDC 453

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	O'Connor v The Minister for Family and Community Services [2020] NSWDC 453
Hearing dates:	3 August 2020 – 4 August 2020
Date of orders:	4 August 2020
Decision date:	04 August 2020
Jurisdiction:	Civil
Before:	Priestley SC DCJ
Decision:	See paragraphs [17 - 18]
Catchwords:	CHILD WELFARE — Care proceedings — Restoration
Legislation Cited:	Children & Young Person (Care and Protection) Act 1998 (NSW)
Cases Cited:	Re Tanya [2016] NSWSC 794
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Mother (Appellant) First respondent (Crown Solicitor) ILR Father
Representation:	Solicitor for the Appellant (McLachlan) Counsel for the First Respondent (Mahony) Counsel for the ILR (Boncardo) Counsel for the Father (Hill)
File Number(s):	2019/00127479 / 2019/00137238
Publication restriction:	Unrestricted

Judgment

Introduction

The case on appeal

The appeal

Determination

Orders

Judgment

Introduction

1. This is an appeal under s91 of the Children & Young Person (Care and Protection) Act 1998, (“the Act”). By that section any party dissatisfied with final orders made by the Children’s Court may appeal to the District Court. The District Court may confirm, vary or set aside the decision of the Children’s Court. The District Court decision is taken to be the Children’s Court decision. Section 91 by its terms makes it clear that this is a hearing de novo and that there is no need for the Court to find error in the decision being appealed.

2. Whilst consensus has been reach by the parties, by reason of the provisions of the Act, in particular sections 9 and 83(7), the Court must be satisfied that it is appropriate to make the orders. Section 9 provides that any decision under the Act must be made under the principle that the safety welfare and well being of the children are paramount. Section 83(7) provides a final order must not be made unless the Court finds that permanency planning has been appropriately addressed and that prior to approving restoration there is a realistic possibility of restoration within a reasonable time which s83(8A) provides is a period not exceeding 24 months.

3. The children concerned here identify as Aboriginal and their father is from the Wiradjuri nation. There are specific provisions of the Act concerning Aboriginal and Torres Strait Islander people. Section 11 provides such a principle to be that Aboriginal and Torres Strait Islander people are to participate in the care and protection of their children with as much self-determination as is possible. Section 10A makes an exception of Aboriginal children by providing that the last preference for a permanent placement of such a child is adoption. This provision is not relevant to the present case other than to highlight the importance of focusing attention on the particular case of the children the subject of the proceedings. There are difficulties in the ongoing involvement of the father with the children which are sought to be addressed by the agreed proposed care plan. Speaking plainly the father has now been incarcerated for violence against the mother and then of a sexual assault against another female and has a history of alcohol abuse. On the positive side since his release from prison on 1 July 2019 he has worked very hard, appears intent on getting ahead initially in his business and later other work ventures and has had positive interaction with the children. He is more likely on the evidence to promote the children’s Aboriginal culture as there is little in the evidence that I have seen of the mother going to that issue.

4. If as here the Secretary assesses there is a realistic possibility of restoration then there is to be prepared a permanency plan involving restoration. Under section 83 (5) the court is then to decide whether to accept that assessment.

5. By section 83 (7) the court must not make a final care order unless it expressly finds the permanency planning has been appropriately and adequately addressed and that there is a realistic possibility of restoration within a reasonable period having regard to the circumstances of the child and the evidence of the parents addressing the issues that led to the removal of the child

6. By section 78 the planning must also make provision for the allocation of parental responsibility.

7. Particularly in the background of the history of this matter it is helpful to note what is meant by “a realistic possibility of restoration”. In Re Tanya [2016] NSWSC 794, a decision of Justice Rein the position was summarised at [35] by in part that a possibility is something less than a probability. A possibility is something that may or may not happen. It is not an impossibility. The concept is not to be confused with the mere hope of a parent’s situation improving. It must be a realistic possibility and not fanciful sentimental or idealistic. It needs to be sensible and commonsensical. Significantly in the facts of the present case it was said that a realistic possibility may be evidenced at the time of the hearing by a coherent program already commenced and with some significant “runs on the board”, an expression found in Re Tanya, and before that in a submission by Senior Magistrate Mitchell to the Special Commission of Enquiry into child protection services in NSW. Further it was said that the Court should be able to see that a parent has already commenced a process of improving their parenting and that there has already been some success and further success can be predicted, but I would add without being certain.

8. I note by section 93 it is provided that the conduct of these proceedings is not to be adversarial but is to be as informal as possible. The Dispute Resolution Conference that took place by a Registrar of the Children’s Court when the matter was listed before me last November is perhaps an extension of that, with apparent desirable results. So too is the day of discussions that the parties engaged in yesterday. All the parties are to be commended for their efforts, attitude and results.

The case on appeal

9. On 28 February 2019 Children’s Magistrate Virgo gave her reasons determining proceedings under the Act in relation to 3 children whose names will be anonymised in keeping with other provisions of the Act to be Valerie, born 6 September 2012, Zach born 11 September 2014 and Jenny born 1 August 2016. The applicant was the Secretary of what is now the Department of Community and Justice. In the case of Jenny the application was brought under section 61 of the Act, that is an application for a care order, no orders for care having previously been made in relation to her. In respect of Valerie and Zach the application was under section 90 of the Act which is an application to rescind or vary a care order already made. The hearing to determine those applications was held on 10, 11 and 12 December 2018.

10. A very brief and incomplete history of the orders made under the Act up to that time is that on 25 May 2016 final orders were made placing Valerie and Zach under the parental responsibility of the minister until age 18. The found concerns were under section 71 (1) (c) (d) and (e) and largely related to domestic violence perpetrated by the children’s father. Subsequent to those orders the father moved out and the mother made an application under section 90 in March 2017 supported by the organisation Anglicare and also the Secretary of the Department. That application resulted in orders of the Children’s Court restoring the children to the care of the mother by an order dated 24 May 2017. In the interim Jenny had been born so that as at 24 May 2017 all three children were with the mother.

11. In August 2017 Zach suffered injuries to his genitals. There is no suggestion the mother inflicted those injuries. The injuries caused concern to a doctor who described them as very concerning and unlikely to have been caused by Zach’s sibling which had been the view expressed by the mother. The mother was in fact charged with two counts of breaching section 228 of the Act. Those proceedings remain to be determined.

12. Due to Zach’s injuries, all 3 children were removed from the mother’s care on 11 August 2017. An application was made in respect of Jenny on 16 August 2017 and an interim order made placing her in the care of the minister but with Jenny being restored to the mother’s care also on an interim basis. Then in October 2017 the Department brought a section 90 application seeking to rescind the orders made on 24 May 2017 in relation to Valerie and Zach. In January 2018 those proceedings were consolidated with the proceedings in respect of Jenny. Significantly at about that same time the mother was recommended to receive trauma informed counselling which she had commenced by no later than April 2018. In light of later developments this would seem to be a very significant occurrence. To appreciate its significance it needs to be appreciated that the mother was the victim of sexual abuse by her father for a significant period of time and then in her late teenage years apparently engaged in a sexual relationship with her stepfather the exact characterisation of which is not necessarily clear on the papers I have seen but seems to be considered by all to be at the very least inappropriate and one in which the mother, if not abused was certainly taken advantage of. Regardless of how that relationship might be described the mother very much was in need of assistance to deal with issues arising in her life as a result of abuse of her as a child and it was that assistance she was receiving by what is referred to as psychoeducation counselling using trauma informed parenting concepts.

13. It was these consolidated proceedings that were determined by the learned Children’s Court magistrate. Despite the fact that the Department had commenced those proceedings with a view to the children (certainly the elder two, perhaps not the youngest) being removed from the mother the position taken by the Department at the hearing following assessments conducted by the Department was that restoration to the mother should occur on the basis that the assessed dangers that led to the children’s removal had been satisfactorily addressed. To inadequately express those concerns they were concerned about the children’s safety and well-being due to the mother being incapable of placing their needs above hers, which had manifested itself in at least two ways. One was the alleged attempted concealment of the injuries to Zach. A second was to blame Valerie for the injuries suffered by Zach.

14. At the time of the children’s Court hearing, there were two reports of Dr Lennings. The first is dated 19 May 2018. That is a detailed report canvassing in depth the history of this family. Without intending any disrespect to that report its ultimate conclusion as to the mother’s capacity to parent was, at paragraph 137 to state that he thought “there is a concerning inability on (the mother’s) part to engage in consistently appropriate parenting”. He went on to say that parenting competence in (the mother’s) case appeared poor in the absence of significant external monitoring and resourcing and that the mother lacked insight into her psychological needs and trauma and abuse background. He expressed the view that the mother made poor choices and continued to make poor choices concerning her partners and not being able to act protectively to put her children’s needs above her own. It noted an improvement in 2016 when the mother did engage with personal and parenting resources and appeared more stable and settled as a result. However, Dr Lennings considered that process was unlikely to endure. He cited examples of ongoing poor judgement such as casual relationships and reaching out to her stepfather. Paragraph 142 concludes with “the combination of defensiveness lack of insight and ongoing poor judgement bodes poorly and does suggest that there is a genuine likelihood of further abuse or neglect and if it occurred such abuse or neglect would be severe”. At paragraph 143 Dr Lennings said “(the mother) does not appear to understand her children’s needs. She does not understand her older children’s needs for safety, Valerie’s need for protection or Jenny’s developmental needs”.

15. In Dr Lennings’ second report dated 2 December 2018 that is eight days before the Children’s Court hearing his view could be described as not as adverse to the mother as before but one where there were still significant misgivings which he expressed in relation to Valerie and Zach and that considerable faith in the permanency of the mother’s changed behaviour has to be assumed for restoration to be recommended. Quite properly Dr Lennings was not seeking to substitute his view for any decision of the court though a fair reading of the first and second reports would come to the conclusion that he did not have that degree of faith in the mother’s behaviour. He did express greater confidence in restoring Jenny to the mother’s care.

16. Dr Lennings was requested to provide an updated report for these proceedings. In these proceedings both the Department and the mother by separate summonses appeal the decision of the magistrate. By s91 of the Act this appeal is 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, or the appeal may be conducted on the transcripts of the proceedings before the Children’s Court.

17. In this case there is a great deal of documentary material much of which was the Department’s records, updating affidavits and reports and the transcript of the proceedings below. In those proceedings Dr Lennings was cross examined, as was the mother. A crucial finding against the mother was her evidence concerning the injuries suffered by Zach about which the magistrate considered she had concerns as to whether the mother was telling the truth and whether the reason for that was due to her having a real belief that someone other than Valerie hurt Zach or whether her view of the matter is coloured by her traumatic childhood. Suffice to say this amounted to a finding of a failure on the part of the mother to recognise and deal with appropriately the injuries of Zach with the result of a potential risk to the well-being of the children. That finding coupled with the unenthusiastic if not simply unfavourable report and update report of Dr Lennings led to the result now being appealed.

18. The magistrate having seen the mother in the witness box also made findings more favourable to her including that the magistrate was satisfied that Jenny was safe in her mother’s care and the magistrate accepted that the mother had made progress and had taken steps towards obtaining better parenting capacity.

19. I would note here that Dr Lennings first two reports canvassed issues which prior to the magistrate’s decision had not been factually determined. I note that in this hearing de novo before me, the evidence has not been tested, and I infer the mother would challenge the adverse findings of the magistrate concerning her. I note also that in the material now is a decision of NCAT which traversed the facts of Zach’s injuries, and which accepted the mother as a reliable witness, somewhat at odds with the tenet of the magistrate’s findings.

The appeal

20. The nature of this appeal by s91 is that it is a new hearing. That is, to succeed, error does not need to be found in the decision below. There have been some subsequent developments, and as noted above, fresh evidence is permitted.

21. When these proceedings were to commence before me on 4 November 2019 most of the first day was spent in a dispute resolution conference conducted by a registrar of the Children’s Court. This resulted in the parties informing the court of an agreement in principle having been reached, although that agreement did not come to pass. The essential elements of that proposal ultimately saw the children restored to the mother subject to certain pre conditions and also would see the children have contact with the father. That proposal was similar, but more cautious, than the proposal now being considered.

22. I note in respect of contact of the children with the father the mother is against any unsupervised time of the father with the children and would seem to be of the primary view that she does not want any review of the current supervised regime at all but if it is to happen would rather it be as late as possible.

23. Agreement has been reached between the parties to the litigation. However as is plain from s9 and s83(7) of the Act, it is not simply a case of the Court making the orders but rather the Court needs to satisfy itself that the position reached as between the parties shows the safety welfare and well being of the children is paramount. That decision needs to be based not just on the evidence but arrived at upon a proper application of the provisions of the legislation.

24. There is now evidence before the court of the mother’s ongoing engagement with counselling services. Forming an appendix to these reasons is a document prepared by the Secretary’s representatives which sets out the issues connected to this, and the evidence of how those issues, which the Department argued founded risks to the children, have been and will be addressed. I emphasise that document is not agreed as to the facts giving rise to the concerns initially and subsequently held for the children. For example the cause of Zach’s injuries in 2017. The basis for the resolution of these proceedings in the way proposed is that even if the Secretary’s concern is true, the steps taken by the mother and her parenting approach are such that the orders are appropriate. Coupled with that is the markedly different report of Dr Lennings of September 2019. No criticism is intended of Dr Lennings; on the contrary it is to his credit that he is prepared to change his opinion rather than being dogmatic when faced with material that suggests that things he thought the mother was not capable of have in fact been occurring.

25. The essential views of Dr Lennings in his third report were:

1. there is now a positive response of Department; I take this to mean there is now a more constructive and progressive and more desirable relationship between the Department and the mother;

2. he notes with concern that there is no change in the mother’s view concerning possible involvement of her former partner Lucy with Valerie in an inappropriate way; see par 64. In some ways this is unclear. It does seem however that a problem exists in relation to Zach’s injuries. I note the mother no longer has significant contact with Lucy, though I note Ms Debbie, who I understand to be her mother, was in Court as a support person. Dr Lennings also noted that there is a likelihood of ongoing difficulties with a mix of 6 children, the now 4 children of the mother (who was pregnant with the fourth at the time of the report), and the two children of the new partner given the insecurities of the mother’s children. I might add in that connection some involvement with Brett, the father’s eldest child could also be expected. These observations show that Dr Lennings change of view was not one arrived at through rose coloured glasses;

3. The positive relationship between the mother and her new partner, (to whom I note she is now married and they have a young baby and they now live together).

4. Jenny, now 3, is developing well in the mother’s care;

5. There is a solid attachment of all the children to the mother;

6. The children’s wishes are to live with the mother. The weight of this is somewhat diluted given the age of the children;

7. Improvements in the mother’s insight, and engagement with services, including gaining psychological support, and the mother avoiding her family of origin, support a conclusion the mother is able to act to protect the children. Dr Lennings noted the mother was involved with counselling including with Ms X once per fortnight, Ms Y once per fortnight (since 2016) and that the children’s counsellor based in Woodville will continue to see them if they live in Smallville (though I note the assistance of Ms Y is to soon cease, if it has not already ended);

1. Dr Lennings states the mother’s parenting capacity is significantly improved and that he considers there is a low risk of harm to children.

26. Ultimately Dr Lennings states the earlier conclusion expressed in his first two reports is not warranted.

27. In Dr Lennings’ fourth report dated 10 July 2020 he refers to the further evidence since November 2019. This includes a further affidavit of a Departmental case worker, which I have read and consider to show a high level of positive communication and cooperation between the mother and the Department. He also refers to the recent affidavits of the mother, father and the mother’s now husband.

28. Dr Lennings noted:

1. The cooperation evident between mother and father;

2. He notes the fear of the mother of unsupervised time of the children with the father;

3. Notes concerns about the behaviour of Valerie;

4. Notes the mother’s views as to what may have occurred at Smalltown. This is a disputed matter, referred to above where the view is that regardless of where the truth may lie, the capabilities of the mother are such as to support restoration;

5. Notes the mother is still seeing Ms X and Ms Y, which aids the managing of the children, and of her own traumatic past;

6. Notes the respite care provided by former carers known as Nan and Pop to the children; I note this is likely to continue, which sounds positive as being something of a constant for the children;

7. The father supports restoration to the mother;

8. The father wishes to engage with the children regarding their Aboriginality, a course the mother does not challenge;

9. Whilst some criticisms were made of the time the father was observed with the children, the underlying observation was of the children enjoying being with him;

10. Favourable observations were made of the mother and her husband with the children.

29. The findings of Dr Lennings at [74] were in effect that after his interviews with the parties, his observations, and reading of the material, it remains his view that the mother is “competent and capable of providing a protective environment for Valerie and Zach along with” the other two children. Dr Lennings notes favourably the supports the mother receives, both from her husband and professionally, ie including Ms X, and I would note, the Department.

30. Dr Lennings expressly deals with the issues of Zach’s injuries in 2017, and the mother’s belief that was done by Valerie. The concern is that the mother scapegoats Valerie. Dr Lenning says this is not so. The view expressed at [76] is significant in favouring the orders being proposed. Dr Lennings says that whilst the mother and the Department may differ on these facts, the mother is highly motivated to provide the best possible opportunity for Valerie to overcome her trauma based difficulties and have a full life. As Mr McLachlan, solicitor for the mother, noted, these children have had some 16 placements. The point I take out of all this is that both children have suffered trauma; from their father, their many placements, and these injuries to Zach. Whether or not Valerie caused them, the point is that Valerie, probably more so than Zach, requires assistance in dealing with the undisputed traumas she has suffered. I would note here that whilst Zach may not appear as affected as Valerie, he should not by that reason not be given just as much care and love as his sister. The mother in the role she has played in care proceedings which in one form or another have been on foot since 2015 has demonstrated the love and care she has for both children, and that is reason enough to give support for the view she will not make the mistake of overlooking Zach.

31. Dr Lennings concludes at [76] that he does not believe there is any risk of harm psychological or otherwise from the mother to Valerie or any of her children.

32. Dr Lennings notes other positive aspects of the mother; her good mental health, her positive, caring and stable relationship with her husband, in addition to the matters mentioned above.

33. As to contact with the father the view expressed is that he is unlikely to perpetrate neglect or abuse towards the children. Dr Lennings supports the contact becoming monthly, and eventually overnight, and I assume unsupervised. He sees benefits in this in establishing identity, particularly their Aboriginality; he also notes his view that there is a strong relationship between the children and their father. The proposed orders reflect this opinion.

34. Counselling is recommended for Valerie.

35. The report is therefore a firm endorsement of the conclusions of the third report.

Determination

36. The keyword of section 83 is “possibility”. What is being assessed here is the possibility of a restoration, the meaning of which was discussed above and in short form means not a certainty, nor at the other extreme a hope, but rather that something that is possible viewed in a common sense way. The restoration being considered is a restoration to the mother, not the father.

37. Having reviewed the material as set out above, and in particular the now fourth report of Dr Lennings, which significantly bears out the constancy in the increasing parenting capacity of the mother over a period of some 11 months, reports which the parties do not challenge and which I accept, I am satisfied that there is a realistic possibility of restoration within the defined reasonable period to the mother. The material shows a sound basis to conclude that restoration to the mother is in accordance with the principles set out in the Act. I am not satisfied that there is a reasonable possibility of restoration to the father within that reasonable time.

38. Further, I have considered the Care Plans for the children Valerie and Zach and find that permanency planning has been appropriately and adequately addressed by the Care Plans handed up and filed in court on 4 August 2020, and approve that permanency plan involving restoration to the mother.

39. For those reasons I am satisfied that the proposal being put forward as set out in the Care Plans and reflected in the form of orders handed up and which I will make, is one that is in accordance with the principles set out in the Act.

Orders

40. The Court makes the following findings

1. Pursuant to section 83(5) of the Children and Young Persons (care and Protection) Act 1998 ("the Act"), the Court finds there is a realistic possibility of restoration within a reasonable period of the children, Valerie born 6 September 2012 and Zach born 11 September 2014 (collectively "the children'') to the mother.

2. Pursuant to section 83(5) of the Act, the Court finds there is no realistic possibility of restoration within a reasonable period of the children, Valerie born 6 September 2012 and Zach born 11 September 2014 (collectively ''the children'') to the father.

3. Pursuant to section 83(7) of the Act, permanency planning has been appropriately and adequately addressed as per the Care Plans filed on 4 August 2020.

3A. The permanency plan involving restoration to the mother is approved.

The Court makes the following orders and notations:

4. Appeal in proceedings 2019/00127479 allowed.

5. Appeal in proceedings 2019/00137238 allowed.

6. All previous care orders are rescinded.

7. Pursuant to section 79(1)(b) of the Act, all aspects of parental responsibility for the children are allocated to the Minister for Families, Communities and Disability Services for a period of six (6) months from the date of these orders, with a view to transitioning and restoring the children to the care of their mother.

8. At the expiration of Order 7 and pursuant to s. 79(1)(a) of the Act, all aspects of parental responsibility for the children are allocated soley mother, to the exclusion of the father, save as for contact, which is allocated jointly to the Minister and the mother pursuant to s. 79(1)(c) of the Act for a period of 12 months; and, thereafter, all aspects are allocated solely to the mother until each of the children attains the age of 18 years.

9. Pursuant to section 73 of the Act, the Court accepts the Undertakings given by the mother on 3 August 2020 for a period of 18 months from the date of these orders.

10. Pursuant to section 82(1) of the Act, the Secretary is to furnish a written report to the Court, within two (2), five (5) and eleven (11) months from the date of these orders.

11. The section 82 report due two months from the date of these orders (being 4 October 2020) is to address the following matters:

a. The children's general health and well-being, including progress with any counselling service;

b. The progress of contact between the children and the mother, particularly block and weekend contact;

c. Contact between the children and their father and other family members and significant persons;

d. The progress of the implementation of the Care Plans filed 4 August 2020;

e. The progress of restoration of the children to their mother;

f. The suitability of the arrangements made for the care and protection of the children;

g. Adherence and compliance of the mother, the mother, with her undertakings; and

h. Any other relevant issues.

12. Each section 82 report due at five months (being 4 January 2021) and eleven months (being 4 July 2021) from the date of these orders is to address the following matters:

a. Progress of the children in the care of their mother, including progress with any counselling service;

b. Information in relation to the children's health and well-being.

c. The progress of the mother's engagement with the Intensive Family Preservation Service and/or Intensive Family Based Services or any other similar program;

d. Adherence and compliance of the mother, with her undertakings.

e. Contact between the children and their father and other family members and

significant persons;

f. The outcome of a review of the contact arrangements between the children and their father by the Secretary including whether supervision is a necessary component of contact.

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Amendments

17 September 2020 - 17/09/2020 - Further anonymisation of names at para 25 and 27

Decision last updated: 17 September 2020