Palmer & Palmer (No 4)
[2022] FedCFamC1F 634
•31 August 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Palmer & Palmer (No 4) [2022] FedCFamC1F 634
File number: CAC 617 of 2021 Judgment of: GILL J Date of judgment: 31 August 2022 Catchwords:
FAMILY LAW – PARENTING – Matter concerning the six youngest children of the parents where all of their older siblings have previously been removed pursuant to state welfare laws – Where both parents have limited capacity in caring for their children, as framed by instances of abuse and neglect – Where the parents’ respective challenges in prioritising the best interests of their children with the highest care needs, exemplifies their lack of capacity to care for their other children – Where the father initially sought sole parental responsibility for all six children – Intervention by the Minister for Families, Communities and Disability Services, NSW – Stark options of alternative care arrangements provided by the Minister in removing the children from parents’ residence – Where realities of alternate care include unspecified and uncertain stays in motel accommodation with supervision provided by rotating staff with minimal qualifications – Where it is determined that the least worst option involves the Minister being granted sole parental responsibility of all six children, including retaining capacity to determine the children’s residence, and providing intensive, practical support to scaffold care in the parents’ homes to counteract neglect.
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65DAA, 69ZK
Children and Young Persons (Care and Protection) Act 1988 (NSW) s 79
Cases cited: Isles & Nelissen [2022] FedCFamC1A 97
Jollie & Dysart [2014] FamCAFC 149
Marsden & Winch (No 3) [2007] FamCA 1364
M v M (1988) 166 CLR 69
Secretary, Department of Communities and Justice & Opunui [2021] FedCFamC1A 41
Phillips & Hansford (No 2) (2019) 60 Fam LR 160
Division: Division 1 First Instance Number of paragraphs: 346 Date of hearing: 1–9 August 2022 Place: Wagga Wagga Counsel for the Applicant: Mr Masters Solicitor for the Applicant: KPW Lawyers Counsel for the Respondent: Ms Bateman Solicitor for the Respondent: Inner West Solicitors Pty Ltd Counsel for the Independent Children’s Lawyer: Mr Stagg Solicitor for the Independent Children’s Lawyer: Legal Aid, NSW Counsel for the Intervener: Mr Moore Solicitor for the Intervener: Crown Solicitors Office ORDERS
CAC 617 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PALMER
Applicant
AND: MS PALMER
Respondent
SECRETARY, DEPARTMENT OF COMMUNITIES AND JUSTICE
Intervener
INDEPENDENT CHILDREN’S LAWYER
order made by:
GILL J
DATE OF ORDER:
31 AUGUST 2022
THE COURT ORDERS THAT:
1.All previous orders and undertakings in relation to X, born in 2008, Y, born in 2010, W, born in 2011, V and Q, both born in 2012 and Z, born in 2013 are discharged.
2.The Minister for Families, Communities and Disability Services New South Wales (“the Minister”) has sole parental responsibility for X, born in 2008, Y, born in 2010, W, born in 2011, V and Q, both born in 2012 and Z, born in 2013, with such parental responsibility to include, but not be limited to:
(a)where and with whom each child shall live;
(b)who a child may spend time with;
(c)what therapy or medical intervention will take place for each child; and
(d)each child’s attendance at school.
3.The mother and father are restrained by injunction from physically disciplining or punishing the children in any way and must use their best endeavours to prevent any third party from physically disciplining or harming the children.
4.The mother and father are restrained by injunction from leaving the children unattended in their home without adult supervision under any circumstances.
5.The mother and father are restrained by injunction from leaving the children in the care of any person under the age of 18 years.
6.The mother and father are restrained by injunction from leaving any of the children in the care of their siblings.
7.The mother and father are restrained by injunction from using any illicit substances (including marijuana) and must use their best endeavours to prevent any third party from using illicit substances in the family home and in the presence of the children.
8.The mother and father are restrained by injunction from consuming alcohol to a level above the legal limit for driving during any time the children are in their care pursuant to these orders.
9.These Orders act as an authority for the Independent Children’s Lawyer to provide a copy of these Orders to the children’s schools, treating therapists/medical practitioners and any other service providing assistance and support to the children and family.
10.The Independent Children’s Lawyer is permitted to explain the operation and practical effect of these orders to the children’s schools, treating therapists/medical practitioners and any other service providing assistance and support to the children and family.
11.The Independent Children’s Lawyer is to be discharged 7 (seven) days after the date Final Orders are made.
It is noted that the absence of an order for the children to spend time with a parent does not restrict the Minister from placing any child to live with, or arranging for any child to spend time with, a parent.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Palmer & Palmer has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
Introduction
These proceedings concern the best interests of six children, X, born in 2008 (14 years old), Y, born in 2010 (12 years old), W, born in 2011 (11 years old), V and Q, born in 2012 (9 years old) and Z, born in 2013 (8 years old) (the “children”).
They are the children of the applicant father, Mr Palmer (the father) and respondent mother, Ms Palmer (the mother). The parents married in 1998 and separated on or about early 2018. They have since divorced. They both live in G City.
X, Y and Z live with the mother.
W, V and Q live with the father. At the time of the final trial Q lived with the father pursuant to orders of the NSW Children’s Court, and so an issue of jurisdiction arose in this Court making orders in relation to Q. In support of such jurisdiction, the Secretary of the NSW Department of Communities and Justice (“the Secretary”) provided written consent to the proceedings pursuant to s 69ZK of the Family Law Act 1975 (Cth) (“the Act”) and also indicated that an urgent application would be made in the NSW Children’s Court seeking discharge of that order.
Prior to the delivery of judgment the Secretary provided to the Court a minute of care orders from the NSW Children’s Court dated mid-2022, rescinding the orders of that court in relation to Q, (which became Exhibit C3) removing any potential impediment to orders being made by this court, and removing the jurisdictional issue.
The children in the care of each parent do not, at present, spend time with their siblings that are in the care of the other parent, nor do they spend time with the other parent.
The parties also have other children.
Mr M, born in 2001 (now an adult), Ms F, born in 2001 (now an adult), Ms J, born in 2004 (now an adult), K, born in 2004 and L, born in 2006 are not the subject of these proceedings. As set out below they have previously been placed under the care of the Minister of Communities and Justice (“the Minister”).
The final sibling of the children is R (described as born sleeping).
Other than W, the children currently in the care of the parties each have significant needs stemming from their particular characteristics. Their diagnoses are as follows:
(a)X, born 10 January 2008 – mental health disorder and Attention Defiant Hyperactivity Disorder.
(b)Y, born 12 July 2010 – Autism Spectrum Disorder and a mild intellectual disability.
(c)V, born 6 September 2012 – … Autism Spectrum Disorder, Attention Defiant Hyperactivity Disorder, and other behavioural issues.
(d)Q, born 6 September 2012 –BN condition and developmental disorder and mental health disorder. She has a complex trauma history. Her speech and language are delayed. Her cognitive functioning is reported to be two years behind what is expected for her age. She also experiences (incontinence).[1]
(e)Z, born 11 October 2013 – BL disability, BM disorder and an intellectual disability, and is unable to walk and is non-verbal.
[1] Affidavit of Rhys Lonergan filed 12 July 2022, paragraph 28.
The key issues in the proceedings concern the issue of whether the children are at unacceptable risk of harm from their parents, being harm arising from either abuse or neglect.
As will be seen in the judgment, the children, in particular Q and Z, are at significant, persistent and unacceptable risk flowing from a lack of parental capacity on the part of the mother and father resulting in neglect and unacceptable risk of harm in the absence of adequate external intervention.
As will also be seen, the immediate removal of the children from the care of the parents also carries with it considerable adverse consequences for the children, due in part to the unavailability of appropriate places for any of the children to live if they are removed.
Litigation history
The father filed an Initiating Application, in the Federal Circuit Court (as it then was) on 24 March 2021. An Independent Children’s Lawyer (“ICL”) was requested, and subsequently appointed on 10 May 2021. On 6 July 2021, Judge Hughes made orders requesting the Secretary to intervene in the proceedings, and the proceedings were transferred to the Family Court of Australia (as it then was).
On 2 September 2021, the Secretary determined not to intervene in the proceedings.
On 16 September 2021, following an interim hearing, I made orders that X, Y and Z reside with the mother, and that W and V reside with the father. It was noted that Q was residing with the father pursuant to arrangements made by the Secretary who has parental responsibility for her. It was further ordered that the children would spend supervised time with the parent with whom they were not living, at the B Services. An injunction was ordered restraining the mother from leaving the children alone and unsupervised with her partner, Mr D.
On 22 December 2021, a Judicial Registrar again requested the Secretary to intervene in the proceedings. This has occurred in circumstances where the Secretary has had significant involvement with this family, and where there is a serious question of whether the children are at risk with both of their parents, and where neither parent might be a viable carer for the children.
On 16 May 2022, the Secretary filed a Notice of Intervention. On 18 May 2022, the Secretary was joined as a party to the proceedings and designated by the Court as the Intervener.
The final trial commenced in G City on 1 August 2022, running for a period of seven days. Prior to the commencement of the trial, the Secretary provided written consent to the proceedings insofar as they relate to Q.
Orders sought by the parties
By the end of the trial, the Secretary’s position was that the Secretary should be allocated sole parental responsibility for each of the children, including Q, in the expectation that the children would, at present, remain in the care of the parent with whom each child is currently living.
The ICL sought orders in accordance with Exhibit ICL 63 (annexed at the end of this judgment). The ICL sought orders to vest sole parental responsibility with the Secretary, but also sought that there be restraints preventing Q and Z from living with either parent. The ICL also sought a series of injunctions, including injunctions to compel the parties to comply with reasonable recommendations from medical professionals and therapists.
Although the father had previously sought that all children live with him, by the end of the trial he sought that the Secretary have sole parental responsibility for each of the children, in anticipation that the children would each remain with the parent that they are currently living with. In support of the orders covering Q, he indicated his support for the Secretary’s proposed application to the NSW Children’s Court to remove the order for Q.
Although the mother had sought that W move to live with her, she relinquished this aspect of her application on the basis that it would be sufficient for W to spend regular time with the mother. While she said that as W was becoming a “young lady” she wanted to be there for her, in the context of not having spent time with W for about two years, and with W’s expression to the Family Report writer that she wanted to live with the father and to spend two nights with the mother, she no longer pursued an order for W to live with her.
The mother opposed the allocation of parental responsibility to the Secretary, seeking rather that each parent hold sole parental responsibility for the children in that parent’s care. The mother further sought orders for the children to spend time with each parent, supported orders for the Secretary to supervise the parents for 12 months and offered an undertaking in support of such. She supported further authorisations for the Secretary in relation to medical treatment, schooling and the development of a National Disability Insurance Scheme (“NDIS”) plan for the children.
The mother sought various injunctions, and supported a variety of the ICL’s proposed injunctions, including to restrain the father from stalking her, restraining the parties from moving a distance greater than 50km from G City, and supported an order that the parties do all things to engage with an intensive program of support proposed by the Secretary.
In the event that the Secretary is given parental responsibility, the mother sought an injunction to prevent the Secretary from transferring the parental responsibility to another person or entity. The Secretary’s representative correctly accepted, however, that there is no scope for such a transfer, even absent such an injunction.
Material relied upon by the parties
Applicant Father
The father relied upon the following documents:
(a)Notice of Child Abuse, Family Violence or Risk filed 24 March 2021;
(b)Affidavit of the father filed 8 July 2022;
(c)Amended Application for Final Orders filed 8 July 2022;
(d)Affidavit of Mr N filed 12 July 2022;
(e)Affidavit of Ms O filed 12 July 2022; and
(f)Affidavit of Ms P filed 13 July 2022.
Respondent Mother
As per the case outline of the mother filed 31 July 2022, the mother relied upon:
(a)Affidavit of the mother filed 8 September 2021;
(b)Notice of Child Abuse, Family Violence or Risk filed 8 September 2021;
(c)Response to Final Orders filed 8 September 2021; and
(d)Affidavit of Ms U filed 28 July 2022.
Independent Children’s Lawyer
The ICL relied upon:
(a)Family Report written by Ms AB dated 16 December 2021;
(b)Case outline document; and
(c)Tender Bundle, provided electronically to the Court.
Intervener
The Intervener relied upon:
(a)Affidavit of Mr N filed 12 July 2022;
(b)Affidavit of Ms O filed 14 July 2022;
(c)Response filed 15 July 2022;
(d)Amended Response filed 20 July 2022;
(e)Written Consent pursuant to s 69ZK of the Act dated 19 July 2022;
(f)Affidavit of Ms U filed 29 July 2022; and
(g)Exhibit C3 being the orders of August 2022 from the NSW Children’s Court rescinding the care orders regarding Q.
Principles
As identified above, these proceedings concern X, Y, W, V, Q and Z. The focus and the paramount consideration in determining what order should be made for each child is, pursuant to s 60CA of the Act, the best interests of the child. That is to be determined on consideration of the matters set out at s 60CC of the Act, in the legislative context of the objects and principles set out in s 60B of the Act and, where applicable, following the reasoning process set out at s 65DAA of the Act.
The objects and principles give a legislative background for the examination of the considerations contained at s 60CC of the Act in determining best interests. They are as follows:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
It may be thought that in any individual case the objects and principles may point in different directions and find different emphasis, depending on the circumstances of the particular child. It might also be observed that the objects and principles contain a degree of circularity, themselves being conditioned on the notion of the best interests of the child.
Against this background, in determining a child’s best interests, the Court is required to evaluate the s 60CC considerations to the extent that they are at “issue in the proceedings,”[2] and are “relevant to the particular circumstances of the child.”[3] This calls for a focused examination of the considerations that arise in the individual case. While often the evidence filed in a case ranges across, and touches upon many of the considerations, those that require closest attention can usually be identified from the matters that the parties ultimately placed emphasis upon in the trial.
[2] Phillips & Hansford(No 2) (2019) 60 Fam LR 160 at [43].
[3] Jollie & Dysart [2014] FamCAFC 149 at [45].
As with the objects and principles, the s 60CC considerations may point in conflicting directions, and toward different outcomes and, by virtue of s 60CC(3)(m) may include any “fact or circumstance” relevant to the wellbeing of a child. It is the synthesis of the considerations that determines best interest.
The considerations have themselves been divided into primary and additional considerations.
The two primary considerations focus, respectively, upon the benefit to the child of a meaningful relationship with both parents, and the need to protect the child from physical or psychological harm from being subjected to abuse, neglect or family violence.
The structure of s 60CC points to some emphasis being given to the two primary considerations. In Marsden & Winch (No 3),[4] Warnick and Thackray JJ observed that the primary consideration are “manifestly of the utmost importance in determining what outcome will best advance a child’s interests.” Section 60CC(2A) requires the Court to place greater weight upon the second of these two primary considerations.
[4] [2007] FamCA 1364 at [78].
The primary considerations are to be considered as a part of the whole suite of considerations contained at s 60CC. Often there is overlap, between the considerations, and often many of the additional considerations are effectively subsumed into the primary considerations. For example, s 60CC(3)(j)’s reference to “any family violence involving the child or a member of the child’s family” necessarily forms a part of the protective considerations of s 60CC(2)(b) and may also form a part of the consideration of the degree of benefit flowing to the child from meaningful relationship with a parent at s 60CC(2)(a). Similarly, s 60CC(3)(f)’s reference to the capacity to provide for the needs of the child necessarily forms a part of the consideration of the benefits of meaningful relationship at s 60CC(2)(a).
In this case, the dominant issues were related to the protection of the children from harm occasioned by neglect, the neglect being the product of the capacity limitations of each parent, the particular characteristics of each child and also the limitations contained within the child welfare system.
The benefits of meaningful relationships with the parents are conditioned by the same issues of capacity and neglect. Further issues arise by virtue of the particular characteristics of each child, the views, to the extent that they were expressed by each child, and the relationships that the children have with other persons, including with each other.
It may be considered that the “physical or psychological harm” referred to in s 60CC(2)(b) is open ended in its content and, when considered in the light of the objects and principles is broad enough to incorporate the significant undermining of the development of a child physically or psychologically. Even if this were not so, such an effect, in a case such as this, would be picked up, at least, by s 60CC(3)(f) or (m) in a manner that would attract significant weight.
The focus of this trial was upon the assessment of risk of harm to the children, and the amelioration of that risk. As identified in the Full Court case of Isles & Nellisen,[5] the consideration of risk “is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm.” In considering the risk of harm flowing from abuse, the Full Court identified that, depending upon the evidence before the court, a risk of future abuse may be established by the possibility of past abuse, a conclusion consistent with the reasoning of the High Court in the foundational case about risk, M v M.[6]
[5] Isles & Nelissen [2022] FedCFamC1A 97 at [138].
[6] M v M (1988) 166 CLR 69.
While in this case the primary emphasis was potential harm occasioned by neglect, abuse being a secondary emphasis, there is no reason to consider that any different approach is warranted. That is, it is necessary to engage in a predictive exercise as to the potential for harm to the children being occasioned by neglect, considering both factual findings as to past neglect and as to possibilities of past neglect that inform that exercise.
This calls for a careful consideration of the care of the children, who are the subject of the proceedings, the arrangements available to the children, and more generally the parenting history of the parents. That history is set out below.
Factual Background
Evidence in relation to the parties and the care of children
It is appropriate to summarise the history leading up to the removal of the older children, then to set out the history of the care of the children leading up to and following the parents ceasing to live under the one roof, through to the hearing of the matter.
History of the older children leading up to orders of the NSW Children’s Court in early 2008
It is convenient to outline the care history of the Department of Communities and Justice (“DCJ”) involvement with the family in relation to the older siblings of the children, Mr M, Ms F, Ms J, K and L. This history may be recited in summary form, but is significant as it speaks to the capacity of each of the parents and as to risks to the older children that emerged whilst under the care of the parents.
It culminates in final orders being made, pursuant to s 79(1)(b) of the Children and Young Persons (Care and Protection) Act 1988 (NSW), by consent in the NSW Children’s Court allocating parental responsibility for the children to the Minister until the children are eighteen. Such an order is predicated upon the court concluding that the children are in need of care and protection. Those orders have resulted in the children being placed in various forms of out of home care.
The history underpinning those proceedings is contained in the affidavit of a DCJ caseworker prepared in support of the ultimate application before the NSW Children’s Court.[7] That affidavit outlines both numerous notifications made to DCJ along with the responses to such. As the notifications do not identify the notifier, only limited weight can be given to the notifications themselves. However, where the notifications were followed by direct interaction between DCJ caseworkers and the children and parents, the observations made, and conversations recited by the caseworkers are of assistance in identifying instances of harm occasioned to the older children.
[7] Exhibit ICL 2.
Similarly, the clinical assessment provided for those proceedings by Dr AC,[8] a clinical psychologist, is also of assistance in establishing the background to the earlier removal.
[8] Exhibit ICL 3.
Dr AC concluded that the parents “have minimal insight into developmentally appropriate expectations for their children.” Concerningly, the father’s view was that he had left the child rearing to the mother, whilst the mother “does not appear to have an ability to form an adequate attachment with [Ms F] or her other children.” Dr AC considered that the children were at risk of a disorganised attachment with the mother, being fearful of her responses to them, and at further risk of psychopathology. The father, however, appeared to Dr AC to be “more able to develop more appropriate attachment with the children,” and to be more emotionally available.
Dr AC thought that “[Mr M’s] reported history of disturbed behaviours have been in response to an environment characterised by neglect, poor behavioural management, and some physical abuse...[h]is reported history of difficulties appear to have related to the deficiencies in his parenting offered by his parents.”
Ms F was assessed by Dr AC as having “avoidant attachment with both of her parents” and, given her characteristics, was “at significant risk of her development of a dual diagnosis in the event she is not offered a stable and secure environment in which she can form secure and stable attachments.”
The first risk of significant harm report was received by DCJ in early 2003, in relation to domestic violence between the mother and father. On either parties’ account acts of violence occurred, although they differed as to who the aggressor was.
Multiple instances were reported of Mr M engaging in behaviour harmful to Ms F.
The record is replete with accounts of injuries to Ms F, bruising and other injuries being observed by caseworkers or teachers and resulting in medical examinations.[9] Some examples are set out below:
[9] Exhibit ICL 2.
(a)In mid-2005, the mother admitted to hitting Ms F with a piece of thin wood, leaving bruising on her leg. In her oral evidence before this Court, the mother rejected the idea that it was appropriate to smack Ms F with a piece of wood. The mother now says that in 2008 she realised that physical discipline was inappropriate, although she excludes from this hand smacking, which she maintains that she does for “cussing.”
(b)Further in mid-2005, the mother was also cautioned against leaving the children in the care of her grandfather who was facing child sexual assault charges. The mother was reported to have been dismissive in regard to this caution, and later described that she had used her father as the person that she would leave the children with. As identified below, Ms F was subsequently sexually abused by the mother’s grandfather.
(c)In late 2005, the mother admitted to a caseworker that Mr M had been burnt by a cigarette held by the mother, apparently as he ran into it.
(d)In early 2006, DCJ informed the parents that the file was being closed in relation to the family. As will be seen this was premature.
(e)A report of injury to Ms F in early 2006 where the injury was attributed to the mother, resulted in a direction being given by DCJ for medical examination of Ms F. In response, the father indicated that he had not been able to obtain an appointment, although contact with the relevant surgery indicated one was available, and that no request had come from the father for an appointment.
(f)In late 2006, Ms F was reported to have multiple injuries to her wrist, fingers, hand, elbow along with red to blue apparent bruising to her buttocks. The caseworker conversation with the mother contained an admission by the mother that the mother had smacked Ms F “a bit hard and it broke the capillaries.”[10] The caseworker advised the mother that smacking so as to cause such injury was not lawful, and that physical chastisement was not supported by DCJ.
[10] Exhibit ICL 2, page 10.
(g)DCJ caused Ms F to be medically examined, with the father taking her to a Dr AD, whose report indicated that Ms F reported to her that the mother had struck her with a wooden spoon and the father’s belt. The father complained that Dr AD had procured such description from Ms F by the offer of a lolly.
(h)The mother did not recall smacking with a hand, wooden spoon or belt. She accepted that she was still, possibly, using physical punishment on Ms F. She accepted that despite the interaction of agencies seeking to change the mother’s approach, she was frustrated that not smacking did not work.
(i)In late 2006, DCJ obtained information from one of the key agencies providing support for the family (AE Services) describing that, at that stage, they had been involved with the family since 2004, but that for the most recent parenting program the parents had attended only half of the sessions. This meagre engagement became a repeated theme over the ensuing years.
(j)In late 2006, the mother told the caseworker that Ms F had been getting a smack on her knuckles as punishment for pooing her pants. This was despite the recommendation against physical punishment.[11]A subsequent assessment by a caseworker recorded that the parents persisted in physical chastisement despite advice to the contrary, and of risks of physical, emotional and sexual harm to Ms F.
[11] Exhibit ICL 2, page 14.
(k)In early 2007, Ms F described to a caseworker that she had been the subject of sexual abuse by the mother’s grandfather. The mother confirmed to the caseworker that her father had made admissions of such to her. The mother subsequently described that she felt loyalty to her grandfather, whilst the father described that he thought that the touching may have been accidental and did not want him to be punished further.
(l)Although a sexual assault support worker had been engaged for Ms F, and although transport and care of the other children had been arranged by the support worker, the mother had attended on one out of five scheduled appointments. The file held by that service was subsequently closed.
(m)In her oral evidence, the mother accepted that she had attended the counsellor once, but Ms F had not at all, despite arrangements to support the attendance. This was despite the mother’s concession that this counselling was essential. This failure to cause Ms F to attend represents a significant deficiency in the capacity of both parents.
(n)In early 2007, the mother was observed by a caseworker to be smacking K for insignificant behaviour during an assessment session, whilst also admitting to negative feelings toward Ms F. The mother, in her oral evidence, accepted that in early 2007 she was having negative feelings to Ms F, which she attributed to a failure to bond with Ms F, in part due to post-natal depression.
(o)Further injuries were observed on Ms F in early 2007, with Ms F describing that the father had smacked her.[12]
(p)In early 2007, the mother described that she still struck the children with a wooden spoon. The mother, in her oral evidence, accepted that this was possibly the case. She was advised by the caseworker that this was not legally permissible. She described to the caseworker that she knew “the stuff” from parenting training, but did not have the “patience to implement it.”
(q)In early 2007, the mother reported that when she lost her temper, she now got the father to smack the children as he did not smack too hard. The mother explained that this was extracting herself from disciplining the children.
(r)In early 2007, AE Services reported to DCJ that the parents attended less than half of the group therapy sessions. The mother, in her oral evidence explained that she did not have a driving licence and was reliant on the father. She described that if he “did not want to do it, we did not do it”. This continues the pattern, attributable to both parents, of a lack of engagement with services that are necessary to the children.
(s)Information from Ms F’s school indicated that across the preceding months multiple occasions of injury or bruising were observed on Ms F, with multiple accounts of smacking by the mother, and then descriptions of smacking by the father. In mid-2007, a home visit by a caseworker revealed a highly dysfunctional household, redolent of a lack of care for, or capacity to care for the children, characterised by inconsistent and inappropriate discipline.[13]
(t)The mother agreed that in mid-2007, she and the father had asserted to DCJ that they intended to continue to use physical punishment. The mother explained that she believed that a smack on the hand for a minor thing like swearing was ok. The striking and bruising was explained to be because the parents were having difficulty with some of the behaviours of the children, on the basis that other forms of discipline were not working.
(u)In mid-2007, the parents described the prospect of the removal of the children as a “holiday from heaven,” which the father described as a joke made in poor taste.
(v)The caseworker noted lack of engagement on the part of the parents with services offered for the support of the children, such as sexual assault counselling for Ms F and education support.
(w)In mid-2007, the DCJ made an application to the NSW Children’s Court for orders for the allocation of parental responsibility to the Minister for Mr M, Ms F, K, Ms J and L.
(x)In early 2008, Final Orders were made in the G City Children’s Court placing Mr M, Ms F, K, Ms J and L under the parental responsibility of the Minister until they reach 18 years old.
[12] Exhibit ICL 2, page 20.
[13] Exhibit ICL 2, page 22.
Significance
The material tendered in relation to the older cohort of children that were removed from the parents in early 2008, is sufficient to conclude that the removed children were at unacceptable risk of harm in the care of the parents. The material marks out that, at that time, the deficiencies in each parent’s parenting capacity were such as to place the children at risk of harm from abuse and neglect.
In relation to the neglect aspect of the risk, a pattern of failure to engage with the support services that may assist to ameliorate risk, and to support in the necessary care of the children emerged. As will be seen further, it is a pattern that, rather than improving following the salutary result of the removal of the older cohort of children, worsened and became entrenched.
It may be observed that the elements of risk flowing from the parents were carried by the parents into their care of the younger cohort of children following the removal of the older children. In that manner, the background is useful for assessing the ongoing risks to the younger children and, in particular, the entrenched nature of the deficits in the parents’ capacity.
History of the care of the subject children following the removal of the older children
The parents’ relationship (which commenced in 1997) continued for some time following the removal of the older children in 2008, ending in 2018.
The current caseworker, Ms O, reported that DCJ has received 43 risk of significant harm reports in relation to the children since the older children were removed. These risk of significant harm reports related to the following issues:
(a)Failure to thrive in relation to X, Q and V as babies;
(b)Physical abuse by the mother of X, Y and Q;
(c)Inadequate supervision by the mother;
(d)Inadequate supervision by the father;
(e)Excessive discipline of the children by the mother and father;
(f)Neglect, including medical neglect and neglect relating to hygiene; and
(g)Risk of psychological harm to the children.
While the parties ultimately separated in early 2018, they remained under the one roof until late 2018 when the mother briefly moved with W, Z and Y to Queensland. The father was to have the care of Q, V and X. The father explained that this was in order to balance out the parenting responsibility between the parents, considering the particular needs of the children that remained in each parent’s care. The mother returned to G City in early 2019, resuming living under the one roof, but not their relationship, until the mother moved out in October 2019.
Although the mother had alleged violence on the part of the father during the relationship, this was not an issue pursued in any detail at trial.
Until early 2020, the children spent time with each of the parents, with W moving to live with the father and X to live with the mother. From early 2020, the children ceased to spend time with the parent that they did not live with.
In about June of 2019, Q was taken into care by the Secretary.
The father accepts that in the time following separation under the one roof in March 2018, he drank more heavily. The father accepted that at about mid-2019, he was consuming about four or five rums while making dinner, followed by another five or six rums after the children had gone to bed. At trial, he asserted that he was down to 10 drinks a week or sometimes none at all, having, he said, decreased his consumption about twelve months earlier.
In late 2020, Q was returned to the care of the father.
Particular incidents
In addition to the bare bones summary set out above, it is useful to examine a more detailed chronology of the events that were revealed by the tender of material produced on subpoena and the related oral evidence, commencing shortly after the breakdown of the relationship.
2018
Firstly, through 2018 and 2019, DCJ had an open case and AE Services was working with the family. Z was at that stage moving about on her bottom and knees.
In mid-2018, a cognitive assessment was prepared for Y. Y was performing in the “extremely low range of cognitive ability, in the range of mild intellectual disability, although his scores in school achievement were worse than would be suggested by his cognitive assessment.”
In late 2018, a report was received by DCJ regarding the parents hitting Q with a metal egg flip. The parents were interviewed regarding this, each denying it but accepting that they would threaten to hit Q with the metal egg flip.[14]
[14] Exhibit ICL 6, page 62.
2019
In early 2019, DCJ received a risk of significant harm report in relation Q. At this stage the parents were still sharing the same home. It recorded that:
[Q] presented with a very large bruise and egg-sized bump on her forehead. [Q] disclosed that her mother was angry that her room and shoes were messy, grabbed her by the hair and smashed her face and forehead into the hard floor.[15]
[15] Affidavit of Ms O filed 14 July 2022, paragraph 33.
The mother denied that she had caused the injury. As best as could be understood she described multiple mechanisms for Q to be injured. The earlier description was that Q had been twirling around at school and had struck her head on a pole. This, apparently, had not resulted in any medical intervention. Although the mother asserted that she had made an early report of this incident to the school, and that there had been other persons who had witnessed the accident, no such evidence was called, either in these proceedings or in the proceedings in the NSW Children’s Court which were commenced following Q’s explanation. Those proceedings were initially defended by the mother.
Somewhat confusingly, the mother also appeared to assert that the injury to Q was occasioned by Q crawling under her head and bumping her forehead on the bed frame, in circumstances where the mother was also denying having dragged Q out by her feet.
Q was admitted to the G City Hospital for assessment. The emergency doctor raised concerns with the caseworker that the mother’s explanation of the incident was not consistent with Q’s injury. Q was placed under the care of the Minister for the weekend, and the paternal grandmother, Ms P, was provisionally authorised to care for Q.
In early 2019, the Secretary filed an Application Initiating Care Proceedings in the NSW Children’s Court at G City.
Later, in mid-2019, DCJ conducted a Safety Assessment in relation to Q in response to the risk of significant harm report of early 2019. The assessment noted:
that when the caseworkers interviewed [Q], she was consistent with her story. The assessment indicated that the mother told caseworkers three different reasons why [Q] may have sustained the injury. The father told caseworkers that he did not see the incident. The assessment indicated that there were concerns about the protective abilities of the mother and father due to the reports of physical abuse by the mother and [Q’s] older siblings causing harm to her. The assessment indicated that there were a number of reports that [Q] was being scapegoated in the family. The assessment noted that if [Q] were to return home she would be at a higher risk from the mother, and the father would not have the capacity to protect [Q] if there was a future violence whilst residing with the mother.[16]
[16] Affidavit of Ms O filed 14 July 2022, paragraph 37.
The paternal grandmother initially cared for Q for approximately three months. Q was then placed in two subsequent foster care placements.[17]
[17] Affidavit of Mr N filed 12 July 2022, paragraph 33.
In mid-2019, an incident occurred where Z was seriously injured while in the mother’s care by pulling a hot pot onto herself from the stove, while the mother went to the toilet. The mother noted this as an example of how quickly Z can move and of the need to keep her under close supervision. The mother says that this incident was a “wake up call”. She also described consequences of failing to keep an eye on Z as including Z drawing on walls and absconding.
As can be seen later, although the mother regarded the hot pot incident as a wake-up call and illustration of the danger of a lapse in supervision of Z, more serious lapses continued (although without the same harm crystallising).
In mid-2019, when Z attended the hospital for her dressings to be changed (presumably following the serious burns sustained earlier in the year), she was noted to have significant body odour. Z appeared to be in the care of her father that weekend.
A significant part of Z’s therapy to promote her capacity to walk is the use of a brace devices on her legs known as AFOs.
The mother accepted that in mid-2019, Z did not attend her appointment for adjustment of her AFOs. She explained that it was because she had no licence then and the father did not want to take Z. This appears to have credence as the record indicates the father’s concern as being that he would (if Z was taken for the adjustment) then miss out on a good car park at the school.
Similarly, in mid-2019, Z was not taken to her appointment, the mother explaining that she had forgotten.
Physiotherapy also forms an important part of Z’s therapy. In late 2019, a physiotherapist attended the mother’s home for an appointment with Z. She attended at 3.30 pm and met the mother at the door who said that she would finish having a cigarette outside and then come inside the house. The physiotherapist proceeded inside but could not initially locate Z. X told the physiotherapist that Z was in the bath. The physiotherapist then found Z alone in the base of the shower over bath, fully clothed in her school uniform with shoes on. She had water from the shower pouring onto her head.[18] X explained to the physiotherapist that Z always gets in the bath with her clothes on, and can get in and out of the shower over bath independently. In cross-examination, the mother confirmed that Z was able to lock the bathroom door and adjust the taps between the hot and cold.
[18] Exhibit ICL 18.
Counsel for the ICL reiterated to the mother her statements that Z “can’t be left alone for more than a second” which the mother confirmed. The mother acknowledged that she had left Z for “more than a second” to have a cigarette and that it was very unsafe to leave her near water, which was a drowning hazard. It might also be considered that there is a burn risk associated with Z operating the hot water tap. The mother reflected on this incident as a “misjudgment” on her behalf. On X’s description it does not seem likely that this was an isolated incident.
In late 2019 Q was placed with a foster carer, under the parental responsibility of the Minister. During this placement the paternal grandmother provided respite care approximately one weekend per month. Q attended contact visits with the father, supervised by AF Services once per week for a period of five hours, until late 2020, with the period between early 2020 and mid-2020 being missed due to COVID-19 restrictions.
In late 2019, Z locked herself in the mother’s car. The mother explained that Z had left the house, describing that it was because the mother’s sister had failed to lock the door on her arrival at the home. She further explained that they subsequently changed the system when guests arrived to make sure that they locked the door.
The mother accepted that in late 2019, she was again outside the house having a cigarette whilst Z was in the shower-bath in her uniform. The mother described that at that time she was consuming five to ten cigarettes a day, presumably involving some lapses in Z’s supervision, inconsistent with the mother’s descriptions as to the necessary level of supervision for Z.
In late 2019, an appointment was scheduled for Z at the mother’s home with a physiotherapist, speech pathologist and occupational therapist. The mother failed to attend this appointment.[19] The speech pathologist provided reminders in the form of a text message and phone call to the mother in the lead up to the appointment. The last reminder from the speech pathologist was a phone call 20 minutes prior to the appointment for confirmation. The occupational therapist and physiotherapist attended the mother’s home 15 minutes after the scheduled appointment. Despite the numerous attempts to remind the mother, she was not present when they attended for the appointment. The mother confirmed that she recalled the incident but could not remember why she was not home. When asked whether she was doing something more important than Z’s appointment, she said that she could not remember.
[19] Exhibit ICL 19.
In late 2019, the NSW Children’s Court made final orders in relation to Q, providing parental responsibility allocated to the Minister for two years until late 2021. Those orders were premised on Q being in need of care, and followed consent being given on a without admissions basis by the parents.
At expiry of the two year period, parental responsibility was to be allocated to the father until Q attains 18 years, although until late 2022 the arrangement with the father is the subject of supervision by DCJ, with a further report to be provided to the NSW Children’s Court.
In late 2019, the mother failed to attend a home visit with AE Services for Y.[20] In the communication log from that time in 2019, it was noted that the mother reported that she was attending a school meeting for Y because he was telling students about scary things, he had watched on his iPad. The mother had not been monitoring the iPad because, she explained, Y knows what he is allowed to look at. When cross-examined, the mother said she thought the iPad had “been set up to be safe” and that she did not know much about technology and was “starting to learn about it”.
[20] Exhibit ICL 20.
In late 2019, the mother took Z to a review where she was remeasured for bilateral socks. The physiotherapist observed that Z’s hip looked dislocated. Following the appointment, the physiotherapist contacted the mother requesting that she seek urgent medical advice, to which the mother responded that she would take Z to the emergency department.[21] A follow up call was made the following day, regarding the hip dislocation concern. The mother stated that she “waited for hours but it took so long” so she left and rang the doctors. She further explained that the medical centre did not have an appointment for Friday, and was advised to call back on Saturday, otherwise she would have to arrange an appointment the following week.
[21] Exhibit ICL 21.
In late 2019 the mother sought to leave Z in the care of a youth worker, in the context of a sibling contact visit. The youth worker refused and Z was left in the care of an older sibling.
In late 2019 Q’s placement with her carer broke down and Q was placed with her paternal grandmother on a short-term basis until early 2020. Q was then returned to her previous carer.
2020
In early 2020 DCJ conducted a safety assessment in relation to the risks to X, Y and Z in the mother’s household. The final risk level was assessed as “high”, the risk of neglect was assessed as “high” and the risk of abuse was assessed as “moderate”.[22]
[22] Exhibit ICL 22.
As part of the assessment, the mother informed the caseworker that she “does leave the children unattended when she has to go to the shops or ‘around the corner,’” and in cross-examination the mother admitted that she would leave the children unsupervised when quickly going to the supermarket. This sharply contrasted with the mother’s descriptions that Z could not be left for a second, and her noting of the risks to Z from her use of the bath.
In early 2020, an incident occurred between the parents, where the mother had car issues and so told the father that he would need to collect the children that were in her care from the school. She described that the issue was resolved and so she was able to collect the children and left a message for the father to such effect.
However, on attendance at the school she found the father collecting the children. She said that he looked at her and smiled. She feared that he was using the situation to his advantage to remove the children from her care.
The mother became enraged, screaming “stop that fat cunt he is trying to kidnap my kids.” As he went to drive away she grabbed a door on the car and it came off. She pulled Z from the car without undoing the seatbelt. She thought that the children were surprised and confused in this exchange. It is unclear whether the father was seeking to provoke the mother, or make use of the situation to her disadvantage, but the mother’s response must have been at least troubling to the children.
In early 2020, Z had appointments scheduled for an Orthotic review. The AE Services communication log recorded that the family were called three times and sent a text message as reminders for the appointments. Despite the reminders, they failed to attend.[23]
[23] Exhibit ICL 23.
In early 2020 the mother failed to attend the BK Hospital with Z. Despite her acceptance that each booking was made at the end of the previous one, she attributed these misses to having changed address on separation and the father not having forwarded the communication onto her.
In early 2020, the AE Services communication log details an orthotics appointment with Z which notes that “due to very poor compliance, the AFO is unable to be tolerated for long periods and the hinge has not been altered in the last 4 months.”[24] During cross-examination, the mother explained the purpose of the AFO as assisting with Z’s tone within her legs for BL disability and to keep the muscles from shrinking. She confirmed that it is important to use the AFOs as directed. The mother stated that Z has her AFOs every day. The mother acknowledged that it is critical that Z wears the AFOs for her development of mobility and a future capacity to walk. The mother stated that the doctor said not to adjust the AFOs and that she was always expressing concerns to AE Services, but was advised to try different alternatives like warming Z’s legs.
[24] Exhibit ICL 24.
AF Services provided the casework for Q. Visits commenced with the father, but were apparently more than the father felt that he was able to cope with, it being reported by the AF Services caseworker that:
On [… 2020] [[Mr N]] attended a home visit at the father’s home. At that time, contact visits were occurring once per week for five hours. The father said that he felt that once per week was too long, due to him having back pain and due to [V] not being on medication... he requested that his contact visits with [Q] occur fortnightly.[25]
[25] Affidavit of Mr N filed 12 July 2022, paragraph 44.
The father commenced parenting sessions with Ms AG from AF Services to focus on building the father’s attachment and connection to Q and on modelling positive parenting techniques with Q. The sessions were conducted at the father’s home approximately once per week, and continued until mid-2021. Additionally, Ms AF attended some of the father’s contact visits with Q to provide coaching in positive parenting strategies.[26]
[26] Affidavit of Mr N filed 12 July 2022, paragraph 43.
During the foster care of Q there were only limited occasions of visits between the siblings, they being arranged to occur four times per year.14
There were also difficulties in arranging time between the mother and Q. It was noted by the AF Services caseworker that:
[AF Services] had difficulty making contact with the mother in order to arrange for [Q] to have supervised visits with her... [AF Services] also attempted to arrange video calls with the mother and [Q’s] sibling. these calls did not occur due to the mother not answering the calls or being unable to attend the video calls.[27]
[27] Affidavit of Mr N filed 12 July 2022, paragraph 87.
Even when there were attendances with the mother, they were far from trouble free, the caseworker from AF Services reporting:
In mid-2020, an incident occurred at the father’s house. The mother reportedly attended the home and was out the front arguing with the paternal grandmother and swearing at her. When I visited [Q] for a home visit after that incident, [Q] said to me: “I miss and love my mum, but she scared me and I do not want to see her for a little while”.[28]
[28] Affidavit of Mr N filed 12 July 2022, paragraph 92.
...
During mid-2020, [Q] had a contact visit with the mother at [AH Park] in [G City]. This was the first time that I had met the mother. The mother did not talk to me throughout the entire visit. It was a positive visit with [Q] and the other children. All the children enjoyed their time with their mother. At the closure of the visit, the mother was swearing at me as she was upset that she had not seen [Q] for some time and [AF Services] had dropped the ball. [Q] was not in the vicinity of this incident.[29]
[29] Affidavit of Mr N filed 12 July 2022, paragraph 99.
AE Services’ communication log from mid-2020 notes that a fourth attempt was made at delivering a letter regarding conducting an X-ray for Z.[30] The mother stated that she did not recall these attempts at letter delivery.
[30] Exhibit ICL 25.
In or about mid-2020, the father, Q, W and V commenced attending family therapy sessions through AE Services. This was arranged due to concerns raised by the father and children’s school that the children were aggressive towards each other. The sessions were conducted once per month and worked on issues such as showing respect for each other.
In mid-2020, an AF Services caseworker attended the father’s home for a parenting session with the father and Q. Mr N also attended the session. Q was brought to the father’s home from her placement. The caseworker explained to the father that what they were working towards was to help him understand Q’s behaviours, to respond to them in a supportive way and to give him strategies for working effectively with Q.[31]
[31] Affidavit of Mr N filed 12 July 2022, paragraph 45.
In mid-2020, AE Services had a scheduled appointment for Z’s physiotherapy at the mother’s home. Upon arrival at the appointment, the physiotherapist saw the mother preparing to leave her home. The mother explained that she would be back shortly as she was collecting the “mower man” who was “around the corner”. The mother drove to another suburb, leaving Z and Y in the care of Mr M, at home without parental supervision. The physiotherapist waited 25 minutes for the mother’s return, which did not eventuate. The file notes indicate that X informed the physiotherapist that the mother was travelling to Suburb AJ, quite some distance away.[32] The mother accepted that she needed to be there for the physiotherapy appointment, and what she was doing at the same time was not as high a priority as the physiotherapy session.
[32] Exhibit ICL 15.
While the mother sought to explain that the children were not left unsupervised, because Mr M was there, she then accepted that she did not regard him as an appropriate supervisor, because of his difficult history including assaulting the mother, putting a knife to her, drug use and threatening the other children.
In mid-2020, a AF Services caseworker attended the father’s home for a parenting session. During the session, the caseworker observed that there was a noticeable positive change in the interactions between the father, V and W, and considered that the father had been implementing some positive behaviour strategies from previous sessions.[33]
[33] Affidavit of Mr N filed 12 July 2022, paragraph 46.
In mid-2020, the mother was contacted on her mobile phone regarding an appointment booking for Z. She did not answer the phone and a message was left by AE Services.[34] The mother described that she would not check voice messages that were left on her telephone, meaning that she did not become aware of, or action such reminders.
[34] Exhibit ICL 26.
The mother also asserted that she would chase up the providers and would “call back” in such instances. This was not the impression given by the instances before the Court, and was inconsistent with her assertion that she would not check the voice messages. She also explained that as an alternative to mobile phone contact, she would receive text messages.
In mid-2020, Mr N prepared a Family Action Plan for the father which set out the steps to be taken by the father to create a positive, safe environment for the children in his care and to build the father’s protective capacity. This included that the father continue to work with a Therapeutic Outreach caseworker, and that the father smoke outside the house.[35]
[35] Affidavit of Mr N filed 12 July 2022, paragraph 47.
The father accepted that, at the time of the final hearing, his smoking inside the home had been an issue for about fifteen years. He told the Court that he has now ceased to smoke inside the home, from eight days prior to the trial. It was unclear why the father had such a change of heart, or whether the late change in behaviour was in contemplation of the fast approaching family law hearing.
For several days in mid-2020, multiple attempts were made by AE Services to contact the mother regarding Z.
In mid-2020, the mother was contacted on her mobile phone regarding an appointment for Y.[36] She did not answer the phone and a message was left by AE Services for the mother to call back. The mother stated that she remembered calling back.
[36] Exhibit ICL 27.
AE Services’ communication log from mid-2020, notes that an occupational therapist session was scheduled that day for Z.[37] Several attempts were made to contact the family regarding the session. The appointment was not attended.
[37] Exhibit ICL 28.
In late 2020, Z missed therapy at the school, despite the mother being called the afternoon prior as a reminder of the therapy. Z did not attend school.[38]
[38] Exhibit ICL 29.
At present, Z is unable to walk. She uses a frame, a wheelchair, or scoots around on her bottom. Unless her therapy is attended, she will be unable to develop the capacity to walk and will be confined to these other methods of movement, much to her detriment.
AE Services’ communication log from late 2020 notes a discussion regarding the mother’s non-engagement for Y. AE Services advised that they had periods of non-engagement, but have “supported the family for years” and “have to be quite firm to get her [the mother] to attend appointments”.[39]
[39] Exhibit ICL 30.
The mother stated that Y was attending appointments at school, and denied that he was missing school.
From late 2020, Mr N conducted home visits with Q at the father’s home on a monthly basis. He described that the father engaged well.
In late 2020, Z had a scheduled physiotherapist session at home. The notes from the session detail that Z’s AFOs were forgotten at school, which had concluded for the term the week before.[40] The school holiday period was from … September – … October 2020. The mother recalled this instance and stated that she tried to call the school, but had missed contact because the school was closed due to the holidays.
[40] Exhibit ICL 31.
In late 2020, Z had a scheduled physiotherapist appointment to make her temporary AFOs, because her regular set had been left at school during the holiday period.[41] The communication log from AE Services notes a failure to attend the appointment and inability to contact the mother. The mother re-stated that she attempted to get the AFOs from school. She did not recall the appointment and did not attend.
[41] Exhibit ICL 32.
As a part of her treatment, Z is from time-to-time administered Botox injections in addition to her various other therapies. AE Services’ communication log from late 2020 notes that Z had been seen once by the physiotherapist since her Botox injections and that all other subsequent appointments were not attended.[42] The mother had not returned calls, texts and emails. AE Services was ultimately able to contact the mother who explained that there was uncertainty regarding the family’s housing arrangement and consequently did not want to book appointments for Z.
[42] Exhibit ICL 33.
AE Services’ communication log from late 2020 notes that Z’s teachers report that she wears her AFOs for one hour daily as directed by the mother.[43] This was not the recommendation from the physiotherapist. They noted that the wheelchair has not been in school since the start of the year. The teachers further reported that Z is very happy staying in a Rifton chair all day and never asks to get out. The physiotherapist demonstrated the AFO application to the school and encouraged its gradual build up by increasing wear time by 30 minutes to an hour every day, until she is wearing them all day. When cross-examined, the mother stated that Z could tolerate the AFOs only for one hour. The mother stated that there was a lack of communication between the school and her regarding Z’s regular wearing of AFOs, and that sometimes the mother would forget to put the AFOs on when she was in a rush. The mother accepted again that it was critical that Z wear the AFOs, and if she does not, she would be crippled and unable to walk.
[43] Exhibit ICL 34.
Q was returned to live full time with the father in late 2020. Since late 2021 the father has had parental responsibility for Q, AF Services is conducting casework to supervise the placement with the father until late 2022.
In late 2020, teachers again met with the AE Services physiotherapist, reporting that the mother had instructed them that Z was to wear her AFOs for one hour per day at school. The physiotherapist again encouraged the teachers to increase the time in the AFOs gradually until it was all day. The mother again conceded that sometimes she forgot to send the AFOs with Z to school.
AE Services’ communication log from late 2020 notes discussion between Z’s physiotherapist and AE Services manager regarding the mother’s numerous failed appointment attendances.[44] The physiotherapist was of the view that a mandatory report needed to be made because of this, but the manager advised that due to the mother’s then current engagement in physiotherapy appoints, a report would not be necessary. The mother agreed that she had failed to make past appointments.
[44] Exhibit ICL 35.
AE Services’ communication log from late 2020 notes that the mother, Mr D and Z were 30 minutes late to an appointment with the physiotherapist, arriving without Z’s wheelchair. The wheelchair was brought in ten minutes later by the mother. The AFOs were not brought to the appointment. The physiotherapist strongly suggested “taking AFOs home from school to wear on the weekends” to reduce the chance of injury by weight bearing on her foot.[45] The mother acknowledged that Z would scoot around on her buttocks, and in the summer months this would bring discomfort to her. The mother further explained that there were challenges in trying to transport the wheelchair home, and that it was too big to fit through the doors. Additionally, someone would have to push the wheelchair for Z because she could not physically push it herself.
[45] Exhibit ICL 36.
In late 2020, AE Services contacted the mother to organise an occupational therapy appointment for Y and to see whether such therapy could be continued in a new NDIS plan.[46] It was noted that Y had not received any therapy over the course of the year. Despite an NDIS planning meeting coming up, the mother had not provided any contact regarding this. The mother stated that she did not recall the meeting, but was of the view that Y was receiving therapy through the school. The mother conceded that she had lacked judgment in not following up Y’s therapy, but rejected the proposition that she did not care.
[46] Exhibit ICL 37.
In late 2020, an assessment was completed for V, whose cognitive, adaptive and academic functioning were assessed as significantly below those of his peers, meeting the criteria for mild intellectual disability. Significant areas of follow up for V were identified.[47]
[47] Exhibit ICL 57.
In late 2020, the police were called to locate X following him leaving the family home after becoming “annoyed by an unknown comment” that Mr D made. The mother explained that the incident occurred late in the evening, X being up at 11.00 pm because he refused to go to bed. X had spoken to her in a disrespectful manner, calling her a “slut” and “whore”, that “his father was correct” and that she was being unfair in her punishments. Mr D called X out on his language and said “watch your mother, that’s your mother you’re speaking of”. The mother further explained that Mr D is deaf, and that when he speaks, he can sound much louder than he intends because of his condition.
The police report states that X left the home around 12.00 am to go for a walk. X was located 30 minutes later. The police report further notes that X “appeared to be well looked after and in good spirits” and “adequately cared for”. The report further states that X “went for a walk to clear his head.”
In early 2021, Z missed a therapy visit as she was asleep and the mother did not want to wake her.
In early 2021, [Q] was referred to the Child Protection Counselling Service by [AF Services].
In early 2021, Z was taken in an ambulance from the mother’s house because she ingested liquid contents of a glowstick and had a seizure. The ambulance report states that Z had been at home with her 13-year-old brother when she swallowed the contents.[48] The implication is that Z was not being supervised by an adult, despite the mother’s acceptance that Z had to be watched closely.
[48] Exhibit ICL 40.
Counsel for the ICL put to the mother that she was at a lunch with Mr D and Ms AK, at the home of the latter. The father asserted that Ms AK had told him of the lunch and that during this lunch, the mother received a phone call from X informing her that Z was having a seizure and turning purple. It was described that X called the mother back and further informed her that he had called an ambulance.
The mother denied that she was out of the home having a lunch with Mr D. She asserted that Z was not left at home alone in the care of X, and that she had not left the property, but rather was outside talking to her neighbour. The mother confirmed that it was X who contacted the ambulance because she was in the bathroom with Z.
Ms AK was not called by the father in his case. The mother did not lead evidence from Mr D on this issue and he was not cross-examined about it.
If the mother was at lunch this was a serious deficiency in the care of Z. If the mother was outside, on her own terms it again represented a significant lapse in the supervision of Z.
In early 2021, the father reported to AE Services that his eldest daughter Ms F had a falling out with the mother.[49] He described that Ms F told him that she is “really scared for the kids in [Ms Palmer’s] care.” The AE Services communication log records that Ms F reported the “physical, emotional and mental abuse of Y and X” and that the mother and Mr D “lock [Y] out of the house for at least 3 hours every day” and further that Mr D is “particularly targeting Y and X with nasty comments, heavy handedness and threats.” The record also states that “Ms F witnessed repeated physical violence towards the boys” with the mother and Mr D pulling Y out from his room “hurting his arms and shoulders, forcefully throwing him in his room and locking him in.” Additionally, the communication log states that “[Ms F] reports that [Ms Palmer] is almost always under influence of cannabis and alcohol and has been passing cannabis to [Ms J] [reference to the third child between the parties]”.
[49] Exhibit ICL 41.
The mother denied that Ms F stayed with her. She said that they had a falling out in early 2021. The mother was aware that Ms F went to the father and reported certain things occurring in the mother’s house. The mother admitted that she and Ms F did not have a great relationship and believed that Ms F said such things out of spite. The mother also denied that Mr D targeted Y with heavy-handedness.
While in the report the father states that the concern he expresses is from Ms F’s account to him, the report is anonymised of any direct input from Ms F.
The third hand nature of this report means that weight should not be placed upon it.
The AE Services notes also records a failed attempt by the speech pathologist to contact the mother regarding an upcoming session for Y.[50]
[50] Exhibit ICL 41.
In early 2021, the father contacted AF Services, advising that he had struck two of the children on their hands with a ruler. On this same day Q told staff at her school that both she and V had been in trouble from their father, being hit across the head. V also said that he got into trouble because of Q and that he had been hit by the ruler, and also that he had been hit across the head. The implication of the descriptions is that these were far from isolated instances. Q commented to the school staff that “dad’s aren’t supposed to hit us, they are supposed to be nice.”
The father explained that he had struck both Q and V across the backs of their hands with a ruler because, as he was preparing dinner, Q was repeatedly saying “fuck” and V was thrusting his hips.
It appears that the father’s account was somewhat understated.
The following day, V was further interviewed by the school counsellor, describing that the ruler had been used on himself, Q and W. He said that it had been used too hard. Significant sibling conflict was described with V saying that he had been planning to kill W with a knife.[51]
[51] Exhibit ICL 12.
The father accepted that it had been hard having Q returned to his care.
Z attended hospital in early 2021 for recurrent gastroenteritis. She was observed to be “unkept” (sic) with visible dirt over her legs.[52]
[52] Exhibit ICL 43.
Z was still in hospital two days later. The records indicate that Mr D was administering medication to Z without reference to nursing staff, and refusing to provide medication to them.[53] He explained that he did so in order to provide help to Z. His approach is not suggestive of insight on his part in relation to providing appropriate care to a child.
[53] Exhibit ICL 44.
In early 2021 Suburb T Public School wrote to V’s paediatrician, noting his diagnoses of autism and intellectual disability. V’s difficulties with Q’s return to the home were noted, as was a dramatic escalation in his behaviour at school, exhibited in particular with running away.[54]
[54] Exhibit ICL 58.
In early 2021 the father attended a meeting with AF Services. He accepted that this was the first time in many weeks that he had attended, having cancelled multiple appointments, explaining that it was due to sickness or double booking. He alleged that Q was defiant and was sabotaging restoration, and that she was trying to have her sister and brother removed, apparently, he explained, in order to make the father fight harder for them.
In early 2021, a report was produced by DCJ regarding the neglect that the children were facing in the mother’s home.[55] Portions of the report have been redacted. It includes numerous dates of reports where Y has been locked out of the house for between two and three hours. The report also states that there is suspected cannabis use for the mother and Mr D. The heavily redacted nature of the report means that reliance cannot be placed upon it to establish the allegations as it is not apparent what the source of the allegations is.
[55] Exhibit ICL 42.
The mother acknowledged that she would send Y out to the front of the house for a time out. She denied that it was for a period of three hours. The mother admitted conducting research into cannabis oil but denied passing cannabis to her daughter Ms J.
The report also concerned Z letting herself out of the house through a window. Again the report was heavily redacted, such as to not allow reliance on the report as to the incident.
Previous representations made by the mother to a caseworker from 2020 conceded that the mother would leave the X, Y and Z in the home unsupervised by an adult for 15-20 minute periods while she went for groceries. She contended that X was old enough to supervise and that she did not see the issue with doing so.[56]
[56] Exhibit ICL 42.
In early 2021 Z was to be remeasured for her wheelchair. AE Services was unable to make contact with the mother despite multiple attempts by telephone, text and email over the course of a week. AE Services contacted the school seeking to do the measurements at the school. The school informed AE Services that Z had not been to school for several weeks (note that this would have included the period of Z’s hospitalisation above for gastroenteritis). AE Services attended at the mother’s home and the mother agreed to bring Z for the measurement.[57]
[57] Exhibit ICL 45.
This is indicative of the nature of the efforts required of outside agencies to ensure that Z receives therapy.
In early 2021 a meeting between AE Services and the school indicated that Z had missed five weeks of school in the previous term. Further, Z’s wheelchair had not been provided for her at the school by the mother. More positively, Z was recorded to be wearing her AFOs each day at school without trouble.[58]
[58] Exhibit ICL 46.
In early 2021, at a Family Action Plan meeting held between the father and Mr N, the father reported an improvement in Q’s physical behaviour. Mr N acknowledged that there was greater self-reflection by the father on his parenting techniques, describing that he had been open and honest. The updated plan included that the father continue to work with the AF Services caseworker.
In contrast to the father’s report above, a school counsellor report for Q from early 2021 noted “very high levels of maladaptive or emotional and behaviour disturbances” which were indicative of “extreme concern.” While the counsellor was able to use responses obtained from Q’s teacher in the assessment, the father was not forthcoming in providing the responses requested of him.
Q’s adaptive skills were described as “significantly below her age peers” and her socialisation skills were consistently a “relative area of weakness”.
Importantly, in early 2021 the father expressed that he was considering having Q returned into foster care. He accepted that he had found Q incredibly difficult. At the same time he sought a break from dealing with Ms AG who was providing strategies for Q. He complained that she kept referring to past trauma for Q, that he wanted to move past. He said that he felt like he was hitting a wall and not making progress. In a number of areas Q was assessed as having results in the clinically significant range. Q presented with “indicators of emotional distress and a range of behavioural and social difficulties.”[59]
[59] Exhibit ICL 48.
In early 2021, a AF Services caseworker met with the father at his home for a Family Action Plan follow up. She acknowledged the progress that the father had made. The father also raised ongoing issues with Q including wetting herself, gorging on food (taking huge mouthfuls until she gagged) and continued defiant behaviour. The father reported that the medication Q was taking had helped with her physical aggression but had not helped with her defiance.
The AF Services caseworker reported that:
[Q’s] relationships with [V] and [W] are strained, and it is reported that they display aggression towards each other and have difficulties interacting with each other at times.[60]
[60] Affidavit of Mr N filed 12 July 2022, paragraph 29.
The dominant issue in this case is the risk of harm to the children arising from neglect occasioned by deficits in each parent’s parenting capacity. This raised the spectre of there being no parent available to care for the children without posing an unacceptable risk to the children. This spectre was the impetus for seeking and obtaining the intervention of the DCJ.
It was essential to the proper resolution of the case that the practical consequences of any potential outcome be identified, be they orders that allocated parental responsibility to the Minister, or that restrained the parents from having the children live with them, or alternatively that left the children with the parents while maintaining the involvement of DCJ.
To meet this need in the case, Ms U, the Manager of Client Services with DCJ based in G City was called by DCJ. She sits within the hierarchy of management as answerable to the Director of Community Services, and she is the person to whom the managers of the caseworkers in the area are answerable. This left her in a position to speak to the resources available and unavailable to the children and parents, both in Region AY and State wide.
In the event that the Minister was allocated sole parental responsibility (as ultimately sought by the Minister) the practicalities of the removal of one or all of the children from their parents was explored. This is a potential outcome either if the Minister’s parental responsibility is practically fettered by an order restraining the parents from having the children live with them or if the Minister, in the exercise of unfettered parental responsibility determines that the children should live other than with their parents.
The description of the available arrangements by Ms U leads to the conclusion that removal carries with it dire consequences for the removed children.
The first issue is that there are insufficient foster places available for the children in the Region AY, either for the children individually, together, or as two separate cohorts as they currently are. Ms U gave evidence that demand for foster carers in the Region AY “far exceeds the supply of foster carers.”
As a consequence, when asked about the prospective placements of the children on removal she gave the following evidence:
[Mr AZ]:Is it likely or unlikely that all of the children would be placed together in the one foster care placement?
[Ms U]:Very unlikely
[Mr AZ]: What about each individual child(ren) or groups of children. Is it likely or unlikely that the three that are in the care of the father, if they went into foster care, they would be placed with the one family?
[Ms U]:Very unlikely
[Mr AZ]:The same for the mother?
[Ms U]:Very unlikely.
[Mr AZ]: And as then you go down to each individual child, is it likely that any of the six would be placed in a foster care home in [Region AY]?
[Ms U]:Not at the moment.[106]
[106] Transcript 8 August 2022, p.2 lines 45–46, p.3 lines 1–9.
Accordingly, it may be concluded that there is no foster placement available for any individual or group of the children. This then leads to the question of what alternative is available if any of the children are unable to live with a parent.
Given that Z and Q present the highest vulnerability, they became the focus of the evidence as to available placements, in the absence of foster placements.
Ms U explained that the Secretary would be empowered to make a referral for Z to an Intensive Therapeutic Care Placement, and for Q into a Residential Home. Explaining that no such homes were available in Region AY Ms U gave the following evidence about care for Z and Q:
[Mr AZ]:Now, with someone with [Z’s] needs, are there specialist units under the auspices of the department or the department of health that would care for [Z]?
[Ms U]:There are intensive therapeutic care, significant disability placements across New South Wales. None in [Region AY].
….
His Honour: You’re familiar with [Z] in these proceedings?
[Ms U]:Yes. I think [Z] would possibly qualify. I don’t believe [Q] will. I believe [Z] would.
His Honour: Would qualify for which?
[Ms U]:A significant disability placement.
His Honour: And [Q] probably not. So [Q] may qualify for a residential home, but not a specialised unit?
[Ms U]:Yes.
His Honour: And what’s the differential in terms of therapeutic care that you get between those two?
[Ms U]:The significant disability homes are run by disability service providers.
….
[Ms U]:They (the non-specialist units) are run in a group home style accommodation which means there could be anything up to five children in the home that are not related…The majority of the children in those homes are aged between 12 and 18. We can get special permission to put children under the age of 12 into those places.
…
His Honour: And those homes could be anywhere in the state?
[Ms U]:Anywhere in the state.
His Honour: So [Z] could end up in [BA Town] or [BB Town]?
[Ms U]:[BC Town]
His Honour: [BC Town]. And [Q] if she was placed in a residential home could end up anywhere in the state?
[Ms U]:Yes. Yes.[107]
[107] Transcript 8 August 2022, p.3 lines 43–46, p.4 lines 5–10, p.5 line 44 to p.6 line 5, p.6 lines 27–32.
Further evidence was given as to the operation of both the Specialist and the Residential Homes:
[Mr AZ]:Is a residential home a home where – a house where children reside, but they are cared for by youth workers on a rotating shift?
[Ms U]:Yes. So in terms of therapeutic care…which is very similar, but is not about children with a significant disability. So otherwise…residential units.
[Mr AZ]:So does the department itself operate those placements?
[Ms U]:No. We fund agencies to do it.
…
His Honour: And what level of disability means that you’re suitable for a specialised unit, but not suitable for a residential home? What’s the cut off?[108]
[108] Transcript 8 August 2022, p.5 lines 9–17, lines 38–39.
Ms U emphasised that the specialist units are spread across the state, the closest being located in BD Town, Sydney or BB Town. Consequently, if this alternative were to be arranged, the reality is Z would be moved anywhere in the state where capacity for placement became available.
What flowed from this was the issue of what would happen in the immediate future should there be a removal. The description as to the immediate consequences was highly troubling:
[Mr AZ]:If it were the case that [Z] was removed from the care of her mother, let’s say tomorrow at lunchtime, where would she sleep tomorrow night?
[Ms U]:It’s most likely that she would sleep in a motel with youth workers.
[Mr AZ]:And the qualifications of those youth workers would be what?
[Ms U]:It’s very dependent. Some youth workers have no qualifications and other youth workers may have gone to TAFE and have done youth work studies.
[Mr AZ]:And with a child such as [Z], with her disabilities and the fact that she suffers from epilepsy, is there a certain level of experience of youth workers that you would be looking for?
[Ms U]:We would ideally like youth workers who could do that work but we can’t guarantee that.
[Mr AZ]:And how long…and where would the next placement be; what type of placement would it go from the motel to what?
[Ms U]:That’s unknown. We always look for the best possible placement for each individual child. Being an eight year old child, even with a disability, would be generally foster care. But we don’t have any generalist foster carers available within DCJ or with the NGO sector at this point in time in [Region AY].
[Mr AZ]:So how long would [Z] remain in the motel with being supervised by youth workers?
[Ms U]:I can’t give a timeframe.
[Mr AZ]: Weeks?
[Ms U]:Possibly weeks. There is currently children who are in alternative care arrangements which are the motel who have been there for over 12 months.
[Mr AZ]:In a motel with youth workers?
[Ms U]:Yes.[109]
[109] Transcript 8 August 2022, p.3 lines 12–41.
Adding to the uncertainty of timeframe Ms U described:
[Mr AZ]:Have you had cause to have a young person placed in one of these, I call it units?
[Ms U]: Yes. Yes. I have.
…
[Mr AZ]: And how long did he or she have to wait to get into that unit?
[Ms U]: 18 months…He’s also a teenager.[110]
[110] Transcript 8 August 2022, p.4 lines 37–38, lines 46–47.
It was apparent that Q also faced an immediate placement into a motel room if removed from her parents.
Ms U described that it may be possible for one motel to be secured for a period of four weeks, following which, another motel would be secured for the service. The implication being that the children relocate to another venue in a short timeframe. Additionally, DCJ contract this care service to agencies which have the direct discretion as to the staffing composition of the motels. In the G City context, there are no youth work services based in the city and such workers must be flown in.
Although Ms U emphasised that the motel stay was a last option, being a stopgap for a foster care or home placement, the reality was that children would often be residing in such fluid environments for extended periods of time. She provided a recent example to illuminate the option, wherein some young children were kept in a motel for over three months and had 22 different workers care for them in that period.
Ms U explained that the limitations and inadequacies of the stopgap measure are to be weighed in the consideration of the best interests of the children, and determined alongside the choice of keeping the children with their families in their current homes.
While Ms U was not asked to provide analysis regarding the impact of the disruptions and inconstancy of rotating staff and frequencies in changing motel venues upon the children, her description was sufficient to mark out the removal of a child as carrying significantly adverse consequences for a child. There is no soft landing for a child on being removed from the child’s parents, rather a landing into a highly undesirable, and potentially extended stop gap solution.
Ms U accepted that, if Z was to be removed, there is also an option where Z remains in the mother’s house while the Secretary obtains an alternate placement in a specialist unit for her. This would obviate the need for her to go to motel accommodation.
However, removal was not the only way of seeking to alleviate the risks of harm from neglect faced by the children. If the children are to remain living with their parents as they are at present Ms U recommended a new resource that was becoming available in G City for the first time, Program BF.
This service would be provided by Organisation BE. It works intensively with a family by being in the home as often as required, up to five days a week, for a minimum of six months and to a maximum of two years:
[Ms U]:So [Program BF] is a service that [G City] has never had before. [Program BF] will go into the family up to five days a week if needed and can spend three or four hours in the home for that entire – entire time. They also go for up to two years. Again, we’ve not had a level of service that can go for that period of time. They work a lot closer with DCJ than the other services. So [BG Services], for instance, will not work with the family if DCJ are involved, but [Program BF] will. So it’s a service that we haven’t tried before. They – it’s not a counselling service, but it is a very practical, hands-on, “let me show you how to do it”. So the idea is that they demonstrate, then they coach and then they watch you implement it and then they help you sustain that change.
[Mr BH]:Assuming that they are in place – and going from, again, what we pick up of the history form the department – what if the parents don’t want to engage with it? And I will use as an example. [AE Services] have been involved with the father throughout the time that the children have been in his care. As best we could determine at the end of his evidence, the children are not currently engaged with any therapeutic services, by way of speech therapy, occupational therapy or anything else in that relation simply because, over time, the father didn’t get them into services, didn’t engage and, therefore, ended up withdrawing. Can the same thing happen with [Program BF]?
[Ms U]:[Program BF] goes to them. It goes into the home, in preference to expecting the parents to go to the service. So [AE Services], etcetera, Mum and/or Dad need to get the children to the service. So it’s a – it’s a different mechanism…[111]
[111] Transcript 8 August 2022, p.15 line 31 to p.16 line 7.
The involvement of Program BF would result in a constant presence in the family home, with the youth workers directly involved with critical aids such as Z’s AFOs and wheelchair. Further, the youth workers would be required to rectify issues of non-compliance. Aside from the service, DCJ caseworkers would also be at the home between once a fortnight to once a month, depending on the risk level the families are assessed at. Regular communication with the school would also provide an additional awareness channel.
Ms U also (correctly) noted that if DCJ was allocated sole parental responsibility by the Court then DCJ would be unable to close its file:
His Honour: And how would you close your case if the Secretary is allocated parental responsibility?
[Ms U]:We, we can’t close our case if we have PR
…
His Honour: If there is [Program BF], say that lasts for two years. If the Secretary has still go parental responsibility after then, then the Secretary will still have to case manage whatever happens.
[Ms U]:Yes
His Honour: Even at the end of that?
[Ms U]:Absolutely.[112]
[112] Transcript 8 August 2022, p.18 line 14–15 to p.19 lines 1–6.
Ms U spoke about the support from interventions that the Secretary would be able to provide, to aid the children’s attendance upon school and therapeutic appointments. She explained that parental responsibility would give rise to the Secretary’s inclusion in an information mechanism with the children’s schools. She stated that the standard for most schools in G City is for a text message to be sent to the parent regarding their child’s attendance. In the case where the Secretary had parental responsibility, an arrangement could be made with schools such that it was the Secretary receiving such notification about the Palmer children’s attendance at school. If the Secretary were aware that the children were not attending school in a significant manner, a practical intervention could be arranged whereby a youth worker would be involved to make sure the children were attending school.
Ms U highlighted various options that the Secretary could take if they became aware, through similar information reporting mechanisms, that appointments with specialists and allied health professionals were not being attended, and that there was non-compliance with medical recommendations.
These options ranged from a representative of the Secretary such as a caseworker, attending the medical appointments, attending assessments and having regular monthly catch-ups with the treating team about progress. Arrangements would be made for allied health appointments to be conducted at school if possible. The involvement of Program BF would provide practical support, such that the children and the parent could be physically taken to the appointment.
Summary
In short, the evidence of Ms U establishes that if the children, or any of them, are removed from the parents, they face an immediate and indeterminate stay in a motel room, cared for by both qualified and unqualified youth workers. They face no prospect for placement together in Region AY, nor any current availability for a foster placement for any of them individually. Whilst specialist and non-specialist homes may become available, they could be anywhere in the State.
If the children are not removed, DCJ now has available for the family resources not previously available in the region which allow for intensive family support, in a context where the allocation of parental responsibility to the Minister would mean that the DCJ would be unable to close the case on any of the children.
Discussion
The history set out above paints a compelling picture of a lack of capacity on the part of each of the parents to do what is required to provide for the needs of the children towards their care and development. This is in the context that each child, save for W, has needs occasioned by that child’s diagnosis. This also means that it is appropriate to consider the collective effect of the needs of the children, which impact W despite her not sharing the special needs of her siblings, as identified by the Family Report writer. Ms AB observed that X, Y, V, Q and Z are vulnerable due to “their varying degrees of disabilities and impairment” and that W, who does not labour under the same, “probably finds it challenging having siblings with disabilities,” due to the father’s need to focus upon her siblings, probably also leaving W as vulnerable.[113]
[113] Family Report dated 16 December 2021, p.100.
That is, there is a collective effect of the needs of the children on each of the other children and on the capacity for the parents to provide adequate care for each of the children.
The bulk of the material at trial was directed to Z and Q, in a manner that demonstrated disengagement from and non-compliance with the children’s necessary professional supports, failure to supervise Z and some physical abuse of Q (in striking her).
For Z, it has meant that her physical needs, in terms of therapy and the use of items such as the AFOs have not been met, in a manner that compromises her future mobility and capacity to walk. The failure to engage in speech therapy with consistency compromises her longer-term capacity to communicate. The lack of supervision has placed her in danger. The failure to maintain school attendance may also be thought to compromise Z’s educational and social development.
For Q, it has meant disengagement from the support services that provide necessary counselling for both her and the father, given her particular and strong characteristics, and from professional support for her continence. This is reminiscent of the parties failure to engage adequate support for Ms F in the context of Ms F’s high need for such support. It has meant that rather than Q progressing in a manner supportive of her ongoing development, she has regressed to the point that the father considers that Q is back to where they started.
Strong signs are also present for other children in the failure to attend upon needed therapy, or to engage with therapeutic supports, or to supervise, or, in X’s case in X being left for a significant period in the care of another. Whilst it may be considered that the deficiencies differ between the households, in each they remain significant.
Although there was less identification of the failings in respect of the other children, it may be inferred that the collective effect of their needs exceeds those of either Q or Z to a significant degree, and that the parents’ incapacity as demonstrated through the lens of Z and Q is emblematic of their incapacity for each individual child more generally. It may be true to say that if the children did not have the high needs that they have then there would be less of a shortfall for the parents. However, the degree of shortfall in the context of these children runs the strong risk of the enduring compromise of the psychological, educational and social development of the children, and the physical development of Z with her BL disability, and Q with her incontinence. That potential compromise equates to a risk of serious harm for these children. It is a risk that is unacceptable for the children either individually or collectively.
The consequence is that neither parent has the capacity to provide adequate care for the children in a manner that does not expose them to unacceptable risk of harm. This raises questions of who can exercise parental responsibility in order to protect the children from harm, and whether arrangements should be made to prevent the children living with a parent who cannot adequately care for them. It also raises questions as to what degree the inadequacies may be answered by parenting orders.
Given those circumstances it was appropriate that the Secretary intervene in the proceedings, as the children are unsafe in the raw care of either parent.
However, what was also exposed in the proceedings were the severe practical limitations on alternative care for the children.
At present, there is no scope for foster care in region for any individual child, much less for either of the households of children, and even less so for the whole six children.
If an order was to be made, as pursued by the ICL, that the parents be restrained from permitting Q or Z live with them, the immediate consequence would be the Secretary causing the children to be housed in motel accommodation pending finding a specialist therapeutic home for Z or a residential home for Q. Such an arrangement is necessitated by the lack of foster care availability.
Further, the motel accommodation would be for an unknown duration of perhaps twelve or eighteen months, during which time the child would be moved from motel to motel, and would be cared for by qualified and unqualified youth workers who would operate on a fly in fly out basis.
Eventually, should relevant homes become available, and should Q and Z be accepted into them, they would be moved to wherever in the State the homes had become available.
It is difficult to conceive of this circumstance as other than one that will be productive of harm for Z or Q as they are removed from their current inadequate primary carers, their siblings, placed in the rotating care of youth workers in a transitory motel arrangement, ultimately to be removed from area and the schools and other surroundings and therapists with whom they are familiar. While it may be the case under such arrangements that Z and Q would be connected with therapies and supports that their parents have been unable to secure, it is at the cost of care occurring in consistent relationships and a consistent environment, denuding each child’s life of consistent, ongoing important relationships. It may be anticipated that Q and Z’s experiences under such arrangements would be characterised by unpredictability and instability.
That is, the removal of Z or Q carries with it a significant risk of harm, rather than a safe alternative to the inadequate care provided by the parents.
There remains a further option that goes some distance to answering the inadequacies in the parent’s households, without the deficits of removal. It is an arrangement that does not prevent the ultimate removal of the children should the option not prove successful in adequately ameliorating the neglect of the households.
That option is available on the allocation of parental responsibility to the Minister, absent any fetter that requires removal from the parents. In the event of such an order, while the Minister would retain the capacity to determine that the children do not live with the parents should their circumstances deteriorate, the Minister’s position was that the children would remain with the parents, albeit in circumstances where DCJ would provide scaffolding around the care of the children to counteract the neglect.
While it is difficult to hold a rosy view of this option, noting that DCJ has already been involved with the family for many years without the neglect being adequately addressed, the evidence given by Ms U of the resources now available to provide proactive support for the parents was compelling. The history of the care given by the parents is demonstrative that the parents cannot be relied upon to pursue supports for their children even if the children are at risk of harm in the absence of those supports, and even if all those supports require is engagement. The parents lack the capacity to do so.
What is required is the proactive engagement of the resources with the parents and children so as to fill the gap in the parents’ capacity that places the children at risk. Ms U’s evidence was that with the allocation of parental responsibility to the Minister, DCJ would be able to apply a programme, only recently available in the region, that provides such proactive intervention. Further, if allocated parental responsibility, the Minister would then have the responsibility to continue to make good the parenting shortfall even after the expiration of the programme. This second aspect is particularly important in this case as the long-term arc of the parties’ parenting indicates that their deficits are unlikely to be addressed during the minority of any of the children, meaning that these children will require active intervention until they reach eighteen. It may also be anticipated that the children will require significant support once they reach adulthood although that is not a matter for this Court.
While this approach does not remove all risk posed by the parents’ households, it is the best option, ameliorating the risks posed by either household and the risks associated with removal. It still allows removal should that become the least-worst option, but at present avoids the detrimental impact of removal while improving the children’s care by scaffolding their care in their parents’ homes.
It means that order should be made that provide for sole parental responsibility to be allocated to the Minister for each of the children, unfettered by a restriction that would necessarily prevent any of the children remaining with a parent. Whilst a risk persists in such an arrangement, at present it is the least-worst option and, in that sense, is in each child’s best interests.
The orders should make plain that the allocation of parental responsibility to the Minister permits the Minister to make all decisions about the welfare of the children, and that the parental responsibility includes, but is not limited to:
(a)where and with whom each child shall live;
(b)who a child may spend time with;
(c)what therapy or medical intervention will take place for each child; and
(d)each child’s attendance at school.
Whilst it was also suggested that injunctions be made, or undertakings given causing the parents to be subject to supervision and direction by the Minister, such should not be made or taken, for the reasons identified in Secretary, Department of Communities and Justice & Opunui.[114]I do not accept that the practical delegation of the injunctive power of the court to the discretion of the Minister in determining what direction might be given is within power, as such an approach renders the scope of the obligations cast by the injunction inherently uncertain, and without the directions given being the subject of judicial consideration to determine whether they are a justifiable use of the injunctive powers.
[114] [2021] FedCFamC1A 41.
Even though the objective apparent in the ICL’s proposed orders that the parents “comply with all reasonable recommendations made by treating medical practitioners and therapists” is laudable it falls foul of the same problems as the proposed supervision. It would involve an injunction of uncertain scope, with the injunctive powers effectively being exercised by a treating practitioner.
In any event, where the Minister holds parental responsibility, it is within the authority of the minister to give effect to treatment recommendations and to cause the children to attend for treatment and assessment.
Given the particular issues that have arisen in the parents’ care of the children, and the intention of the Minister to retain the children in the care of the parents, the injunctions otherwise proposed by the ICL regarding the use of illicit substances or alcohol, or physical punishment, or leaving the children unsupervised, or in the care of a sibling or a person under eighteen should be adopted as appropriately protective of the children.
The mother also sought an injunction to prevent the father from stalking her. This was in large part reliant upon the assertion that the father was unnecessarily passing by her home. The father accepts that he does drive past the home on the way to his mother’s home. I am not persuaded that circumstances establishing the need for such an injunction have been established.
Lastly, the mother sought an injunction preventing either party from moving more than fifty kilometres from G City. This was (it seems) reliant upon the father having formed a relationship with a woman who lives in Region BJ (a relationship that he was deceptive about in his affidavit evidence). Under circumstances where the Minister will have parental responsibility and so will be tasked with making decisions about where the children live and the arrangements that permit the children to spend time with each other and with the parents, such a restraint is not called for.
Conclusion
Orders will be made for the Minister to hold sole parental responsibility for each of the children, specifically including but not limited to:
(a)where and with whom each child shall live;
(b)who a child mat spend time with;
(c)what therapy or medical intervention will take place for each child; and
(d)each child’s attendance at school.
Injunctions will be made as identified above.
I certify that the preceding three hundred and forty-six (346) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 31 August 2022
Annexure A
Independent Children’s Lawyer’s final orders sought 9 August 2022.
THE COURT ORDERS THAT:1. All previous parenting orders are hereby discharged.
2. The Minister for Families, Communities and Disability Services (NSW) has parental responsibility for X born in 2008, Y born in 2010, W born in 2011, Q born in 2012, V born in 2012 and Z born in 2013 (“the children”).
Injunctions
3. Pursuant to section 68B(1) of the Family Law Act 1975 (Cth) the father (Mr Palmer) and the mother (Ms Palmer) are restrained from causing or permitting the child Q to live with either the father or the mother other than in accordance with a court order.
4. Pursuant to section 68B (1) of the Family Law Act 1975 (Cth) the mother (Ms Palmer) and the father (Mr Palmer) are restrained from causing or permitting the child Z to live with either the mother or the father other than in accordance with a court order.
5. The mother and father are restrained by injunction from physically disciplining or punishing the children in any way and must use their best endeavours to prevent any third party from physically disciplining or harming the children.
6. The mother and father are restrained by injunction from leaving the children unattended in their home without adult supervision under any circumstances.
7. The mother and father are restrained by injunction from leaving the children in the care of any person under the age of 18 years.
8. The mother and father are restrained by injunction from leaving any of the children in the care of their siblings.
9. The mother and father are restrained by injunction from using any illicit substances (including marijuana) and must use their best endeavours to prevent any third party from using illicit substances in the family home and in the presence of the children.
10. The mother and father are restrained by injunction from consuming alcohol to a level above the legal limit during any time the children are in their care pursuant to these orders.
Attendance at school and therapies
11. The mother and father must comply with all reasonable recommendations made by treating medical practitioners and therapists regarding the children including:
a. attendance at all appointments;
b. provision of prescription medication;
c. use of other therapeutic supports; and
d. undertaking therapeutic exercises as directed by the medical partitioner or therapist.
12. Provided that the school is open and willing to take the children, the mother and father must do all things to ensure the children attend school each school day.
13. In the event that any of the children are unable to attend school pursuant to Order 12 because they are medically unable to, the parent whose care the child is in must provide a medical certificate that sets out the medical condition the child is suffering from and is to provide a copy of this medical certificate to the child’s school and to the case worker assigned to them by the Department of Communities and Justice within 24 hours of the medical attendance.
Information sharing Orders
14. These Orders act as an authority for the Independent Children’s Lawyer to provide a copy of these Orders to the children’s schools, treating therapists/medical practitioners and any other service providing assistance and support to the children and family.
15. The Independent Children’s Lawyer is permitted to explain the operation and practical effect of these orders to the children’s schools, treating therapists/medical practitioners and any other service providing assistance and support to the children and family.
Miscellaneous
16. The Independent Children’s Lawyer is to be discharged 7 days after the date Final Orders are made.
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