QZ v Department of Family and Community Services
[2013] NSWDC 235
•06 December 2013
District Court
New South Wales
Case Title: QZ v Department of Family and Community Services Medium Neutral Citation: [2013] NSWDC 235 Hearing Date(s): 1,2,3,4,11 & 25 October, 7,25,26 & 27 November, 3 & 4 December 2013 Decision Date: 06 December 2013 Before: ML Williams SC DCJ Decision: Appeal dismissed
Catchwords: JOINDER - late application to join carers as party to the proceedings - procedural fairness - timing of application - Assessment by Court expert under s 55 Children & Young Persons (Care & Protection) Act 1998
CHILDREN - Care and Protection - parental responsibility - permanency planning - realistic possibility of restoration
APPEAL - under s 91 Children & Young Persons (Care & Protection) Act 1998 -application to set aside orders of Children's Court for restoration of child to mother -application for unsupervised contact under s86 Children & Young Persons (Care & Protection) Act 1998Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW). Children and Young Persons (Care and Protection) Act 1998 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
Director General of Department of Community Services; Re Sophie [2008] NSWCA 250.
Johnson v Page [2007] FAMCA 1235
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
M v M (1988) 166 CLR 169
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Re Campbell [2011] NSWSC 761
Re June (No2) (2013) NSWSC 1111
Re Francis and Benny [2005] NSWSC 1207
R v Tracey (2011) NSWCA 43
Re Bailey and Blake ( No 2 ) [2012] NSWCA 394Category: Principal judgment Parties: QZ (Mother)(Plaintiff)
Department of Family and Community Services (First Defendant)
HP (Father)(Second Defendant)
Independent Legal Representative (Third Defendant)
FC (Fourth defendant)
DB (Fifth Defendant)Representation - Counsel: S Leis - Plaintiff (Mother)
Ms M Neville - First Defendant (Director-General)
Mr HP in person - (Father) Second Defendant
Ms G Eldershaw - Third Defendant (ILR)
Mr M Lawson - Fourth and Fifth Defendant (FC & DB - carers)- Solicitors: Plaintiff: Kathryn Renshaw Solicitor
First Defendant Crown Solicitors Office
Second Defendant: Unrepresented
Third Defendant: Ananda Hall - Legal Aid
Fourth and Fifth Defendants: Pigott StinsonFile Number(s): 117636 of 2013
JUDGMENT
These proceedings relate to the care of DP born on 1 April 2009. Although the matter is an appeal, the parties adopted the terminology of plaintiff and defendants. For convenience I will refer to the parties as follows: the plaintiff QZ as the mother; the Independent Legal Representative for the child as the ILR; the child DP as D or the child; the Director-General of the Department of Family and Community Services as the Director; and Ms FC and Mr DB as the carers.
The matter was listed for hearing for four days commencing on 1 October. After four days of hearing the matter was adjourned for one week to allow counsel to prepare written admissions. On 11 October the hearing resumed for the purpose of counsel speaking to the written submissions. However, on that morning and, as it turns out, in the nick of time, Ms F C sought to intervene on behalf of herself and her husband, Mr DB. They had had care of the child since 6 March 2013. After some debate the matter was adjourned to see if Ms C could obtain legal advice. After the luncheon adjournment Mr James Lee of counsel appeared, apparently pro bono and on very short notice, to seek leave to appear for the carers.
Orders were made for filing of a Motion and any affidavit in support of an application to permit the carers to be heard or joined to the proceedings. The Motion and various affidavits were served together with extensive written submissions by all parties. The application was heard on 25 October 2013 and, for reasons which I will set out below, I permitted the carers to participate in the proceedings. I use that term loosely because the precise nature of their participation was the subject of some debate. In any event the parties agreed that Dr Gary Banks should then be retained as a Court appointed expert to prepare an assessment on short notice.
The extensive report of Dr Banks was provided to the parties and the hearing resumed on Monday, 25 November 2013 over three further days. Further evidence was taken from Dr Banks, the carers, and, in, affidavit form, Ms Heidi Thomson, a previous carer of the child. Counsel furnished final written submissions and spoke to those submissions over two days on 3 and 4 December.
The application for joinder
The Motion filed on 17 October sought an order that leave be granted to join the carers as party to the proceedings pursuant to R 6 .24 of the UCPR.
In support of the application affidavits were prepared by the carers. To put it shortly, the late application for joinder was said to be necessary because the carers had, in effect, been misled by the Department of Family and Community Services as to the likely outcome of the proceedings.
Ms C said that in May 2013 she attended the offices of Wesley Dalmar, the agency allocated to look after this case. The Department's representative was supposed to attend but did not do so. Following that meeting they understood that it was unlikely that the appeal against the Magistrate's decision would be successful. In August 2013 Ms C suggested that a report should be prepared regarding the child's settling into their home. After a conversation with Wesley Dalmar personnel Ms C felt reassured that it would require extraordinary circumstances to overturn the order which had led to D being in their care. In September 2013 Ms C sent a number of questions about the possible outcome of the proceedings, but received no response to the questions. She heard nothing further until 4 October 2013, the fourth day of the hearing. At that stage she was told that there was a possibility that care of the child would be restored to the mother. She says that she had never been advised of any rights that the carers might have in relation to separately participating in the proceedings. A further affidavit by DB points to the difficulties that the carers had experienced in obtaining information about the child. He relates a conversation with his wife in about September 2013 in which he said that she had been told that Wesley Dalmar had reassured her that "there is no new relevant evidence, nothing to change the situation with D, nothing to worry about and we've got a fantastic barrister that is totally committed". He recounts that on 4 October 2013 Ms C was distraught on hearing the news that the case may be decided adversely to their interests.
The submissions as to the involvement of the carers were characterised by a degree of imprecision as to the precise basis on which the carers might become involved. This was understandable due to the interplay between R 6.24 UCPR, s87 and s98 of the Children and Young Persons (Care and Protection) Act 1998 ("Care Act"). The term "joinder" was used loosely and interchangeably with "right to be heard" throughout the written and oral submissions, even though the term "joinder" does not appear in the Act and the question of joinder emerges only from R 6.24. Ultimately Mr Lawson of counsel for the carers sought to amend the Motion to move under s 98 of the Care Act in addition seeking joinder under R 6.24.
When the application came on for hearing on 25 October the debate essentially boiled down to a discretionary exercise, as even Ms Leis, counsel for the mother, conceded that, despite her primary opposition to the application, the Court should hear from the carers representatives only as to the matter of significant impact under s87.
Mr Lawson's submissions addressed joinder under R 6.24 and/or s 98 as well as the right to be heard under s 87 of the Care Act in the event that the primary application was declined. The ILR's submissions did not oppose the carers being heard under s87 and, in relation to s 98(3) the ILR conceded that the carers have a genuine concern for the safety welfare and well-being of D such as to satisfy the threshold requirement. Ultimately, but perhaps academically, the ILR opposed the carers being given the status and rights of a party, while not opposing their right to be heard. This distinction seemed to me to be more theoretical than real.
The submissions by Miss Neville for the Director-General did not consent to or oppose the application for joinder and indeed supported the carers in their application for an assessment.
As to the reason for the late application, the ILR submitted that:
The issues raised by the Carers were not known to the Director-General. This fact is of real concern to the ILR in that it exposes a breakdown in communication between the Department and the external agencies to which the oversight and management of all out-of-home placements has been delegated, or is in the process of being delegated. Hence, a real question arises as to the extent to which children in out-of-home care, arguably some of the most vulnerable people in the community, remain within the actual purview of the Minister to whom parental responsibility has been allocated and the possible implications for those children.
The Director appeared to concede a serious deficiency in his system, as the submissions state:
13. Upon review of the affidavit evidence prepared by the carers on this notice of motion, however, it has become apparent that D's attachment to the carers may be more significant than had been anticipated when preparing for hearing. It is also apparent that D has some issues in relation to anxiety type behaviour that the carers have been working to address.
14. Whilst these matters are not matters that came to light only after the Director-General had prepared the affidavits he relied upon, they are matters that were, to a large extent, unknown to the Director-General at the time of preparation for hearing. In time past, there may have been some direct communication between the Director-General's caseworkers and the carers resulting in this information becoming apparent other than on an application such as this. The carers, however, are not authorised through the Department. They are authorised, supervised and managed by Wesley Dalmar and direct communication does not occur between the Department and the carers. Direct knowledge of D's placement was not held by the Department providing instructions on the appeal, but rather, by a non-Government organisation responsible for carrying out casework for D.
15. Evidence was given in the proceedings about the confusion that emerged between Departmental caseworkers and Wesley Dalmar caseworkers as to which organisation was to prepare a report ordered by the Children's Court pursuant to s 82 of the Care Act. Such confusion is indicative of practical difficulties associated with the implementation new policies. Similarly, the Department's lack of direct knowledge about D's placement is a symptom of difficulty experienced in the implementation of the new policy to transition the provision of out-of-home care services to non-Government organisations.
16. It is submitted that the carers, in bringing this application, have revealed a lacuna in the evidence before the Court. There is no clear evidence before the Court as to the anticipated effects on D of a transition in his care arrangements, nor whether there are any particular behaviours the mother will be required to address if D is restored to her care.
By the time the Motion came on for hearing arrangements had been made for Dr Gary Banks, a well-recognised expert in the field, to conduct an assessment on 8 November and prepare a report by 22 November. In the light of these arrangements it could be seen that the earlier complaints as to likely lengthy delays in the event of an assessment fell away.
S 87 provides that the Court must not make an order that has a significant impact on a person who is not a party to the proceedings unless that person has been given an opportunity to be heard on the matter of significant impact. That opportunity does not give the person who is heard the status or the rights of a party to the proceedings. S 98 provides for rights of appearance to, relevantly, the child and the Director-General, to appear or be legally represented and examine and cross-examine witnesses. S 98 (3) provides that any other person who in the opinion of the Court has a genuine concern for the safety welfare and well-being of the young person may appear or be legally represented and may examine and cross-examine witnesses. That is, the grant of a right under s 98 (3) carries the same privileges as a right of appearance under s98 (1).
The decision of McDougall J in Re June (No2) (2013) NSWSC 1111 was the subject of extensive submissions. His Honour there rejected submissions which were in a sense redolent of the position put by counsel for the mother here, namely that the carers had already been afforded a right to be heard because their case was, in effect, put by the Director.
McDougall J noted that ss 87 and 98 cannot be read as mutually exclusive codes. That is, the carers could have a genuine concern for the safety welfare and well-being of the child in addition to any order having a significant impact on them. His Honour noted that it is a necessity to bear in mind at all times the paramount principle set out in s 9(1) of the Act as well as the general nature of the proceedings before the Court under s 93. His Honour recognised that there would be cases where it is appropriate for the person with the right to be heard under s 87 to have legal assistance and it may involve cross-examination if the matter of significant impact is the subject of evidence: [172], [189]
In the circumstances of this case and the way in which the submissions unfolded, it is unnecessary to deal in any detail with the authorities which have been cited.
The proposition underlying the mother's submissions, namely that the carers case has and would be effectively put by the Director-General, is extensively undermined by the unchallenged evidence as to the way in which the carers were kept in the dark as to the progress of the proceedings until a very late stage. The affidavits by the carers on the Motion disclosed a significant quantity of material which could and should have been used by the Director in the conduct of proceedings prior to the filing of the Motion. In particular, a lengthy 12-page report being annexure C to Ms C's affidavit was prepared in August 2013. It contains a significant quantity of material potentially relevant to the ultimate question, namely what is in the best interests of the child D. In the circumstances the carers would be entitled to have a lack of confidence that the Director would adequately put the case which they wished to make, namely that is in the best interests of the child for him to remain in their care.
The carer's affidavits described in considerable detail the evidence that would be adduced if leave was granted. It covered the history of the child's placement with them, including matters which they saw as significant in relation to the capacity of the mother to provide adequate parenting, and the difficulties which had accompanied contact visits with the mother. All of that material was clearly relevant, and the fact that none of it was ultimately objected to supports that view.
It was not contested that there was a power to join the carers under R 6.24, again the only question being whether this should be done in the exercise of the Court's discretion.
The objection by the mother to the carer's participation in the proceedings was also based on the proposition that their delay in seeking to become involved was unreasonable. Ms C was cross-examined on that proposition, and firmly rejected it. Yet the submission was maintained, even in the light of the unchallenged evidence as to the carers being effectively shut out the proceedings by the Director until the very late stage. There is no basis for concluding that the carers unreasonably delayed an application to participate in the proceedings.
During the hearing of the Motion, Mr Lawson for the carers conceded that he would not be seeking to recall any witnesses who had already given evidence in the proceedings. That largely removed the foundation for a submission put by the ILR that the joinder would become a very rich source of rights for the carers enabling them to, in effect, reopen the proceedings and cross-examine witnesses who had already given evidence. That concession, quite properly made in the circumstances, removed the floodgates element as the basis for any opposition to the carer's application.
Ms Eldershaw and Ms Leis both conceded that the carers have a genuine concern for the safety welfare and well-being of the child. That is, they surmount the threshold for a s 98 (3) order, and that left only the question of whether the order should be made in the exercise of the Court's discretion. Further it was conceded that whether joined under R 6.24 or given leave to appear, there was no practical difference in terms of the further conduct of the proceedings: T 63 on 25 October.
In these circumstances it was clear that my discretion should be exercised in favour of the carers under either R 6.24 and/or s 98 of the Care Act.
As to the application for assessment under s 55, as I have said the Director-General supported the carers application. There was clearly an advantage in having Dr Banks appointed as he was able to conduct the assessment and prepare a report within a fairly compressed timeframe so as to enable the case to proceed without significant further delay. It was therefore appropriate for Dr Banks to be appointed as a Court expert pursuant to Part 31.46.
It is convenient to deal here with submissions put at the conclusion of the hearing by counsel for the mother under the heading "Procedural Fairness", as it is said that these issues arise because of the joinder of the carers and the timing of the joinder. It was said that the mother's parenting capacity was not an issue seriously in dispute prior to the joinder of the carers; rather the issue was the mental health of the mother and its consequent effect on parenting capacity. It followed, according to the submission, that the mother did not run her case to challenge or explain matters raised in contact reports. Further, it was said that the mother then had to meet double representation for one position which raised "resourcing issues" with "practical consequences for the running of the case". It also meant that the time available for testing the evidence has been reduced.
Those written submissions were amplified by Ms Leis in oral submissions. She referred to Re Francis and Benny [2005] NSWSC 1207 where Young CJ in Eq said:
There is a rule which applies to all Courts that if a Judge, particularly a judge dealing with a matter involving children, comes to the view that he or she does not have sufficient material, it is the Courts duty not to dismiss the case but to adjourn it, making very clear what the Courts concerns are: [20].
The factual situation dealt with by His Honour was vastly different to that of the present case. Here, all parties have been represented by experienced counsel and solicitors, and the hearing has occupied many days of Court time. There has been adequate opportunity provided to the parties to agitate relevant issues. There has been no restriction on the right of any party, particularly the mother, to advance a case. Ms Leis declined to make any application to adjourn the case so as to enable her to bring any further evidence or recall any witnesses for further cross-examination. Instead she urged upon me that the Court should consider adjourning the case of its own motion so that the mother would have a better opportunity to prepare and run a case. That proposition needs only stating to be rejected in the circumstances of this case. Ms Leis further referred to an article by Children's Magistrate Crawford entitled "Joining of parties in Care and Protection Proceedings'. This was directed to the suggestion that the carers made no real contribution to the hearing, but I do not gain any assistance from that article. For the reasons given above and below it is clear that the carers did have a real contribution to make to the proceedings.
The submissions erroneously suggest that during the first stage of proceedings the issue was the mother's mental health and thus, so it is said, the mother did not introduce evidence as to parenting capacity. The issue has always been to inquire into what is in the best interests of the child. During oral submissions I pressed Ms Leis at to what relief, if any, she sought as a result of this alleged procedural unfairness but she was unable or unwilling to articulate any position. In written reply submissions Ms Leis appeared to acknowledge that there was no substance in the point, as she conceded that " the inescapable conclusion is that parenting deficits at the time of removal were directly related to mental health".
The Appeal
The substantive matter is an appeal under S 91 Care Act against final orders made by the Children's Court on 21 February 2013, to set aside orders made on 12 August 2010 ("the 2010 orders"). The Amended Summons filed on 4 October 2013 seeks to vary the decision of the Children's Court made on 21 February 2013 and direct the Director-General to prepare a different permanency plan for the child. It asserts that there is a realistic possibility of restoration of the child to the mother and alternatively seeks an order under s86 of the Act that the child have unsupervised contact with the mother for a minimum of two hours per week until the child is 18 years of age.
I have been provided with approximately 150 pages of written submissions on the substantive issues in the case (in addition to about 50 pages of submissions on the carers application). I have carefully considered all the oral and written submissions, but it will be apparent that I am not required to deal with, or summarise all the submissions in these reasons.
There has been little or no debate as to the applicable legal principles to be applied in determination of the appeal. Ms Neville prepared a very helpful overview of the applicable legal principles on 1 October 2013, and there has been no relevant challenge to that summary. In short I must bear in mind that the Act is to be administered under the principle that the safety, welfare and well-being of the child is paramount under s9 (1) and that whatever action is taken must be the least intrusive intervention in the life of the child: s 9 (2)(c). The significance of birth family relationships must be recognised: R v Tracey (2011) NSWCA 43. In considering whether there is a possibility of restoration of the child to the mother pursuant to s 83(1) regard must be had to the matters set out in s 90(6).
1. I adopt the summary of the task before me as set out in the ILR final submissions:
[29] Before making an order to vary or rescind the 2010 Orders, the Court must consider the factors set out in s 90(6), namely:
a. The age of the child;
b. The wishes of the child and the weight to be given to those wishes;
c. The length of time the child has been in the care of the present caregivers;
d. The strength of the child's attachment to the birth parents and the present carers;
e. The capacity of the birth parents to provide an adequate standard of care to the child;
f. The risk to the child of psychological harm is present care arrangements are varied or rescinded.[30]Pursuant to s 90(7), if the Court is satisfied that it is appropriate to do so:
It may, by order, vary or rescind an order for the care and protection of a child (ie, the 2010 Orders); and
If it rescinds such an order - it may, in accordance with this Chapter [being Chapter 5 containing ss 43 to 91], make any one of the orders that it could have made in relation to the child.[31]It is the application of all parties, including the mother that the August 2010 Orders should be rescinded or varied so this threshold question is not in doubt. On that basis, the Court moves to consider what new or different orders should be made pursuant to Chapter 5 of the Act.
To summarise, I refer to the ILR Supplementary Submissions of 24 October:
[12] As identified in the Joint Submissions, the legislative pathway is as follows:
(a) The Court begins its consideration at s 90(6) and (7).
(b) Its first task is to determine whether it is appropriate to vary or rescind the 2010 Order (s 90(7)).
(c) In making that determination, the Court must consider the factors contained in s 90(6)(a) to (f).
(d) Assuming the Court is satisfied that it is appropriate to rescind the 2010 Order, s 90(7)(b) permits it to make new orders under Chapter 5.
(e) In circumstances where the Director-General seeks an order allocating parental responsibility to the Minister to age 18 (and has prepared an assessment to that effect pursuant to s 83(1)), the Court must decide whether to accept that assessment (s 83(5)).
(f) If the Court does not accept the assessment of the Director-General, it may direct him to prepare a different permanency plan (s 83(6)). Implicitly, the different permanency plan would involve restoration of the child to the parent.
(g) Before it makes a new care order, the Court must expressly find that permanency planning has been appropriately and adequately addressed; and that there is a realistic possibility of restoration having regard to the circumstances of the child and the evidence that the parent is likely to be able to satisfactorily address the issues that have led to the removal of the child from their care (s 83(7) and s 80).
There is no dispute as to the test to be applied in determining whether there is a realistic possibility of restoration. It is conveniently set out in final submissions for the mother at [33] as follows:
"The law as to realistic possibility of restoration is set out in Re Campbell [2011] NSWSC 761 (per Slattery J).
That case provides that for there to be a realistic possibility of restoration for the purposes of section 83:a) It is not necessary for it to be demonstrated that a parent has demonstrated participation in a program with some significant 'runs on the board'
b) A possibility is something less than a probability; that is, something that is likely to happen. Secondly a possibility is something that may or may not happen. That said, it must be something that is not impossible.
c) The word "realistic" requires that the possibility of restoration is real or practical. It must not be fanciful, sentimental or idealistic, or based upon unlikely hopes for the future...sensible and commonsensical..."
I deal firstly with a submission by the mother that the " level of satisfaction" should be to the Briginshaw standard. The authority cited in written submissions is Director General of Department of Community Services; Re Sophie [2008] NSWCA 250. That dealt with the question of whether the Court applied the correct standard of proof on the issue of whether a father had committed a serious sexual offence by transmitting gonorrhoea to his daughter. As Sackville AJA noted at [68], referring to Neat Holdings v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, the standard remains proof on the balance of probabilities, but where a serious allegation is made one must reflect the conventional perception that members of society do not ordinarily engage in serious misconduct and that, accordingly, a finding of such misconduct should not be lightly made.
In oral submissions counsel for the mother addressed this issue and provided copies of a number of decisions. They followed the High Court decision in M v M [1988] 166 CLR 169, a case involving allegations that the father had sexually abused the child and that the child's welfare would be put at further risk. That case involved consideration of efforts to define the magnitude of the risk to the child. The Court was there concerned to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child for parental access. Next, reference was made to Johnson v Page [2007] FAMCA 1235, another case involving an allegation of sexual abuse by a father. The Full Court simply noted that it agreed with a summary in an article entitled 'Unacceptable risk -- a return to basics', pointing out that the Court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard. Paragraph 68 and 71 of the judgement was cited to me but these do not take the matter any further. There is nothing arising on the issues in this case which requires any special consideration beyond the conventional standard of proof on the balance of probabilities.
I deal firstly with the position of the father, Henryk P. He was unrepresented and appeared during the first four days of the proceedings with the assistance of an interpreter. He took no real part in proceedings although given every opportunity to do so. He has declined to accept an invitation to appear at subsequent days of the hearing.
The Director-General conducted a placement assessment of the father on 9 March 2012. That assessment identified a number of issues with placement with the father including inadequacy of accommodation and lack of insight into D's needs. Mr P lives in Victoria. It is clear that the father has not parented D since the mother separated from him in September 2009 and he has had very limited contact with D. There is no evidence from the father as to his current living situation, his understanding of D's needs or his ability to meet those needs or his plans for the future. In those circumstances it is unnecessary to consider the parenting relationship with the father any further.
I turn to the central issue, namely whether it is in the best interests of the child to be restored to the care of the mother.
The child was first taken into care at Royal Prince Alfred Hospital on 24 September 2009. The Department filed an application to the Children's Court and an assessment by Dr Friend diagnosed the mother with postpartum psychosis or an alternative diagnosis of schizophrenia. Final orders were made in the Children's Court on 12 August 2010 providing for the Minister to have parental responsibility for the child for two years and thereafter the mother to have sole parental responsibility with a supervision order to be in place for 12 months. The mother gave undertakings to comply with medication until a treating psychiatrist deemed that she no longer requires medication and a transition plan was to provide for restoration over a period of six months. Pursuant to those orders D was restored to the care of his mother on 30 August 2010 and remained there until 7 December 2011.
During this period, the caseworker, Rachel Coleman, expressed concerns about the mother's mental health. On 7 December 2011 the child was removed from the mother's care and placed with authorised carers in the Blacktown area. On 6 January 2012 the Director-General filed an application in the Children's Court pursuant to s 90 seeking to vary the August 2010 orders seeking parental responsibility for D to be vested in the Minister until the age of 18 years. That application came on for hearing for several days before Magistrate Hogg who determined, on 5 February 2013, that there was no realistic possibility of restoration of D to either parent. The Magistrate then determined that the orders of 12 August 2010 should be rescinded and a new order made giving parental responsibility to the Minister until D obtains 18 years of age. The transcript and most of the evidence before the Magistrate was also admitted before me.
Ms Neville said that her instructions were to seek to have the Magistrate's decision confirmed and that in those circumstances the onus fell on the Director-General to establish that the orders of 12 August 2010 should be rescinded and long-term parental responsibility allocated to the Minister. This was on the basis that the Director-General contended that there was no realistic possibility of restoration of the child to his mother on the basis of poor mental health and a history of non-compliance with treatment.
At the commencement of the case Ms Eldershaw, for the ILR, put the submission that restoration is a realistic possibility. Her interests were thus aligned with those of Ms Leis, for the child, and this led to the provision of joint submissions and proposed joint order at the end of the first stage of the evidence, before the intervention of the carers.
As the matter has taken much longer than anticipated, and in view of the desire of all parties to secure a resolution as promptly as possible in the interests of the child, I will deal briefly with the relevant evidence in the proceedings.
Rachel Coleman was the child protection caseworker employed by the Department of Family and Community Services (FACS) and the case worker assigned to D. She swore a number of affidavits in the proceedings before the Magistrate. A further affidavit of 14 August 2013 was admitted in these proceedings. Put shortly, the affidavit did not take matters very far. It simply asserted that given the mother's mental health history the Director-General holds concerns that her health has not been stable for a long enough period to be confident that she will not experience a relapse of her mental health issues, which would cause a breakdown in D's placement with her which would be unsettling disrupting and damaging to D.
Ms Coleman's oral evidence was also of very limited assistance. The final orders by the Magistrate required a s 82 report to be prepared within five months of final orders, but that had not been done by the time that she gave evidence on 1 October 2013. She said that she had made a request to Wesley Dalmar to prepare the report and it was only when she was having discussions with her manager, Linda Bucci, that they realised that the report had not been filed. She agreed that it may have been sensible to have retained casework responsibility given that an appeal had been lodged. She acknowledged that in hindsight this would have been a sensible course because it would have avoided an extra level of complication in the event that the Court was of a mind to restore the child to the mother. She agreed that it meant that the Department has not taken the position of rigorously investigating the restoration prospects because she had left the casework responsibility to Wesley Dalmar. This apparently occurred as a result of "a blanket referral" of all cases to agencies or more accurately, a rollout to out-of-home care over the next few years.
Ms Coleman had not observed any of the contact visits since the end of March 2013. This was because they had been organised by Wesley Dalmar. Ms Coleman rejected the proposition that there was an unacceptable risk of psychological harm to the child if the contact regime remains in its current form.
Danielle Thomson is the Wesley Dalmar caseworker for D and she gave evidence on the basis of an affidavit affirmed on 14 August. She has had day-to-day responsibility for the case since 26 April. She said that the carers provide a happy and stable home environment for D and he was progressing well in their care. He appears settled and comfortable in their home, shows ownership over his belongings and demonstrates affection towards them. She had no concerns about their capacity to meet D's needs and provide a high standard of care for him. As to contact visits with the mother, she had concerns about the type and amount of food that had been provided to D during the contact visits. Her annexed documents included contemporaneous notes of reports of D returning from a contact visit with a bloated stomach and complaining of feeling sick and at times being physically ill. She agreed that the second issue of concern, namely verbalisation, had been addressed and was no longer an issue by the time that she gave evidence. Further, by October, she also agreed that the food consumption was not now a major concern.
Ariane Boxall is a community rehabilitation and support worker with NEAMI Housing and Recovery Programme. She prepared a letter of September 13 in support of the mother's case in relation to her mental health. The project is to provide especially vulnerable clients with an opportunity to live in stable accommodation for a maximum of 18 months. The mother was accepted into this program named HHARP, and she sees workers on a weekly basis to work around goals that entail employment, study and emotional well-being. It is a transitional housing programme which involves living in a shared environment with other housemates.
The mother gave evidence and prepared an affidavit on 13 August 2013. Having resided at Charmian Clift Cottages from 31 August 2011 until May 2012 she said that her plan was to return to that residential program if D is restored to her care. She would then be able to be transferred to the care of Professor Boyce who was her previous treating psychiatrist. She hoped that her mother would be able to spend more time in Australia to assist her with the care of D and with her mental health. She has completed an eight week parenting course and is doing some volunteer work at St Vincent De Paul. Her affidavit annexed a report of Dr Mike Atherton, consultant psychiatrist, dated 15 August 2013. He said that she had a well confirmed diagnosis of schizophrenia for which she takes Abilify daily. In recent times she has been completely compliant with medication and reports no side-effects. She has been completely well with no evidence of psychosis or cognitive or personality decline. She remained warm and focused around her goals of pursuing an active productive life. She talks warmly and appropriately about her monthly visits with her son. There is no doubt that she is doing all that can be expected of her to remain well and avoid any risk of relapse. He said he continued to support the return of her son to her care as long as this could be done with adequate support. She is extremely well engaged with the service and has excellent insight.
The mother's affidavit also included a letter from Kellie Hamill-Downey, a community mental health rehabilitation worker with the Richmond PRA Women's and Children's programme. In cross-examination the mother agreed that D could not immediately come back to her care because he needs time to consider the emotional change which will occur. She said that she was feeling well supported by Dr Atherton, Dr Zhao and David Manley and it would be beneficial for her to remain in their care. She would expect to move from the Charmian Clift cottage into a Housing Commission home at some stage. She thought that she would have some priority in getting a house.
The mother's evidence continued by acknowledging that D may feel unsafe or nervous and may not like the food and clothes that he is provided if he comes back to her care. He may engage in challenging behaviours such as throwing books and toys and maybe hitting and biting her and she would deal with that with a timeout period. The mother was shown a series of undertakings contained in proposed orders which were at that stage agreed between the ILR and counsel for the mother. She said that she would give those undertakings in the event that D was restored to her care.
Dr Atherton gave evidence. He said that he would be prepared to provide continuing services to the mother even if she was temporarily housed outside the St Vincent's area. He said that the mother has as good an insight into her condition as any other client of his. He said that her baseline is extremely good so he would say that she is pretty much recovered from her psychotic episode of early 2012. He said the mother has a relatively low risk of being destabilised by stress. He said that they had had 18 months of wellness which was extremely encouraging so that her chances of relapse are ever diminishing but they still remain.
In cross-examination by Ms Neville, Dr Atherton agreed that he would not recommend an immediate return of D to the mother's care without support in place, and he acknowledged that she had not lived independently from support services in all the time that he had been treating her. That is, the proposition that she can function independently of psychosocial support services has not yet been tested. However, he said that he would have no concerns if she were to move out tomorrow and live in her own Department of Housing residence. He acknowledged that a combination of factors such as resumption of the care of the child, moving house and changing treatment team could give rise to concern about the mother's stability but he said that he had a relatively good plan to make those factors have as little impact as possible. He said that he thinks the mother will be able to cope with the Charmian Clift Cottage option. He was asked about the proposed orders put together on behalf of the ILR and the mother, containing a proposal that 12 months from the date of the orders the mother would have full responsibility for D, subject to the supervision of the Director-General. He said that it was reasonable and a good plan to think that within 12 months the mother would be in a position to assume responsibility for D. He was more assured because he was not aware that there was an overarching safety net in contemplation. He was not concerned that the mother had not discussed the safety net plan with him.
Ms Hamill Downey was an impressive witness who indicated a willingness to go to great lengths to assist the mother in securing suitable accommodation. She said that she had had a lot of success with Housing New South Wales as she was the squeaky wheel who, in effect, kept at them until they provided suitable accommodation. At the time that she gave her evidence there was a suggestion of some urgency in that a particular residence may not be available for an extended period of time. However, she said, in answer to Ms Neville, that there was a guarantee that the three-month placement phrase could be extended until more permanent accommodation could be arranged. She said that if D was restored to the mother then in her experience the application with Housing New South Wales takes on a much greater priority. She said that the plaintiff was in a much better position than she was in 2010 and 2011 because she has better insight and it is very different working with her at present.
At the conclusion of the first four days of evidence written submissions were put by the ILR and counsel for the mother which adopted a joint position of advocating restoration to the mother subject to strict undertakings in terms of the minute attached to the submissions. With some support from Dr Atherton, there was an arguable basis for that assertion. However in the absence of evidence from the carers and any assessment of the child's needs, such a preliminary view was open to revision.
As I have said, when the matter resumed on the eighth day, the evidence from the carers and Dr Banks put the matter in an entirely different light.
Before turning to that evidence I will deal with a submission put by the mother that the evidence of Dr Banks should be given no weight or alternatively held to be not admissible - and seeking an "extension of time pursuant to the UCPR " to make such objection. There is no substance in this submission. Objection was taken to various paragraphs between [107] and [123] of Dr Banks report after it was admitted and while Dr Banks was in the witness box. I asked counsel to provide written outlines on the objection so that it could be dealt with the next day. However, the need for that became otiose as most of the early part of Mr Lawson's cross-examination, for the carers, was in the nature of a voir dire which clearly established that Dr Banks had the necessary expertise to express the views set out in the paragraphs to which objection had been taken. On the following day Ms Leis, counsel for the mother, informed me that she did not press the objection, presumably in the light of the evidence elicited by Mr Lawson.
Nothing more was said and Dr Banks gave evidence without restriction. The written submissions for the mother then asserted, citing Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 and Dasreef v Hawchar (2011) 243 CLR 588, that Dr Banks' evidence is deficient (either in its entirety or part) such that its tender should be rejected as inadmissible. Further it was submitted that Dr Banks' evidence is irrelevant as it goes to findings that the child's best interests are served by remaining in the current placement and comparing this to the mother's position. The curious submission is made that there is no challenge to Dr Banks on the basis of expertise but that his opinion is not wholly or substantially based on his expert knowledge. It is conceded that his evidence going to best interests is permissible if it is restricted to guidance pursuant to s9 (1) of the Care Act. I reject those submissions. In my view Dr Banks demonstrated relevant expertise in a specialised field of knowledge, and expressed relevant opinions based upon that expertise.
I accept the submission put by Mr Lawson that the criticisms made of Dr Banks are in the most general terms and fail to identify any part of Dr Banks' opinion which the plaintiff says is infected by an alleged Makita v Sprowles deficiency. Further deficiencies alleged by the mother (at page 11 of the written submissions) were that Dr Banks' tests were culturally biased and, according to the characterisation by Mr Lawson of paragraph 65 (d) (i) (ii) Dr Banks was actually biased. I accept Dr Banks' evidence that he was aware of the risk of cultural bias and made appropriate allowances and adjustments in coming to his views.
After oral submissions by all counsel, Ms Leis was given leave to file written reply submissions. These submissions return to the question of Dr Banks' evidence and seem to concede that the issue is one of weight rather than admissibility. This is said to be on the basis of Re Bailey and Blake ( No 2 ) [2012] NSWCA 394, where Ball J said that a tribunal not bound by the rules of evidence need still be satisfied that the expert evidence provides a satisfactory basis upon which to make findings.
The carers have an adopted daughter of Chinese origin, now 8 years of age. Mr B described a well settled routine for the child D, and the efforts they are making to keep him connected to his Chinese heritage. It was clear that the child had formed a close bond with the carers and with the daughter, akin to a brother and sister relationship. He said that they were a hundred percent behind Ms Z and her family being involved to a greater extent than has been the case, and that there should definitely be increased contact between the child and the mother.
Ms C gave evidence consistent with that of Mr B. She also said that they feel there has to be a very strong role played by the mother in D's life, and was committed to increased contact.
Ms C and Mr B were tested in cross examination, and maintained a well founded impression of a dedicated and caring couple who are going to great lengths to provide a stable and warm environment for the child. They frankly acknowledged that they would eventually like to adopt the child, but recognise that this is something that may take many years to achieve. This is an indication of their long term concern with the best interests of the child. I formed a favourable impression of both witnesses and accept their evidence in its entirety. It was not suggested by the mother that any part of their evidence should not be accepted.
Dr Banks conducted his assessments and prepared a very lengthy report in a relatively short time. Notwithstanding the criticisms of Ms Leis, I found Dr Banks to be a very impressive and impartial witness. On many occasions he was asked to accept propositions which were adverse to the mother's case, but he declined to adopt them, describing them on occasions as "a bit harsh". In other words, he did not blindly accept criticism which might damage the mother's case. Rather he presented a very balanced and considered view on all the matters the subject of his evidence. I have no hesitation in accepting Dr Banks.
The essence of Dr Banks' view is stated in the concluding paragraphs of his report. His view is correctly summarised by Mr Lawson as being that while restoration is a possibility, this is not a realistic possibility while the mother lacks the tools to effectively parent the child. He said, at [124], that considerable work would be required to create a stable environment for the child to take another leap of faith, with the onus on the mother to attend to the various concerns listed there.
Dr Banks said that in the short term the child's needs are more likely to be adequately met by remaining with the present carers. The risks associated with a reunification with the mother potentially exceed those associated with continuing in his current stable placement. I accept the factors listed by Mr Lawson in [45] of his submissions as supporting Dr Banks view that restoration is not a realistic possibility. In short, Dr Banks recognised that it is a complex and difficult question, with no certainty attached to any outcome, but the child's needs were such that a conservative approach should be taken, namely remaining with the current carers. Ms Leis summarised, at [60]-[74] what were said to be deficiencies in Dr Banks evidence. One of the criticisms was that he opined on matters not previously in dispute in the proceedings. As I have said, I do not accept that there was any procedural unfairness in the absence of any application to correct such perceived unfairness. Further, I reject the assertion that Dr Banks views were contrary to those of Dr Atherton. Rather, he deferred to Dr Atherton where appropriate. Further, Dr Atherton's evidence did not, and could not, deal with the effect of the mother's condition upon the child and his development. Rather, it focussed on the mother's psychiatric condition and prognosis.
Wesley Dalmar prepares a Contact Report after each contact visit with the mother or father. Many of these are contained in exhibits E,F,G and Q. I have carefully considered all that material, particularly the passages flagged by Ms Leis as indicating the behaviour of D when he is with his mother. A fair summary is that on some occasions D appears warm and loving towards the mother, and on other occasions he is withdrawn and reluctant to engage affectionately with the mother, demonstrating some clear attachment to the carers and a reluctance to leave their presence. I do not think that I can draw any firm conclusions from these documents. However, it is clear that they were carefully considered by Dr Banks for the purpose of forming his opinion on the matter, and it cannot be said that his opinion has reduced weight by virtue of a lack of source material.
Ms Leis submitted that Dr Banks assumed as truth the matters set out in the contact reports, but these contained matters of opinion which were not tested. She said that the reason they were not tested was because the issue of parenting capacity was not tested until after the joinder of the carers. I do not accept that characterisation of the issues, as consideration of the mother's mental health must involve an element of her capacity to act as a parent and, as noted above at [29], so much was ultimately conceded by Ms Leis. But even if it was correct, there was no application to recall any witnesses to test the content of the reports, and there was no restriction placed on Ms Leis as to the conduct of her case. A more fundamental response to the submission is that the contact reports contain contemporaneous records by the carers of what was said, done and observed during the visits. They appear to be neutral recording of observations and cannot be said to be unreliable sources from which Dr Banks could form an opinion.
A central issue in the final submissions was as to whether there is a realistic possibility of restoration, with such decision informed by the views expressed by Slattery J in Campbell at [55] to [57]. Section 83 makes it clear that the realistic possibility must be assessed at the time when the application is before the Court, because s 83 (1) speaks in the present tense. As Slattery J said, it must not at the time of the recision or variation application be merely a future possibility. It must at that time be a realistic possibility.
At [124] Dr Banks was, in my view, clearly saying that restoration is only a realistic option or possibility if considerable work is done by the mother so as to create for D a stable and predictable environment. This would include her being far more well-informed than she is currently about the attachment disturbance, more emotionally attuned than she demonstrates currently and psychologically stronger to be able to set limits and establish consistency in order to meet D's needs effectively and handle her own distress in response to his displayed behaviours. Ms Leis submitted that Dr Banks' evidence at T 59 to 60 on 25 November represented a change in view, and that it should not be accepted. However Dr Banks appeared to me to be listening carefully to the questions and dealing appropriately with each proposition put to him. He said to Mr Lawson that before he recommended restoration of D to the mother he would like to see her address other issues and aspects of her parenting. He said he would like her to have a lot more training under her belt and for her to be a lot more prepared than what she had indicated to him during the course of the assessment. In summary, he agreed that paragraphs [124] to [129] of his report concluded that restoration would not be in D's best interests on the basis of the situation today. However if the mother was to address the concerns that he had then there may be a realistic possibility of restoration.
I do not accept the mother's criticism of Dr Banks' outlined in written and oral submissions by Ms Leis. Nor is it necessary to reconcile the views of Dr Atherton and Dr Banks, as they are not mutually exclusive. Dr Banks based his view on a number of peer reviewed studies into long term outcomes for patients with psychosis, and frankly acknowledged that predicting the likelihood of relapse in an individual is difficult. I accept the ILR submission that the evidence of the two doctors, taken together, establishes that the risk of relapse cannot be eliminated but that there is reason to be optimistic as the mother has a number of features that indicate a favourable outcome.
More importantly, as to the psychological care of D, Dr Banks said that he had been through a potentially traumatic process as a result of his placement history arising from repeated breached attachment processes. He displays a disorganised-insecure attachment and this indicates that D is unable to determine whether it is safe to trust his mother again, having twice been removed from her. He also noted delayed language development as an area of significant concern. Dr Banks was concerned as to how the mother could manage the child's developmental needs once the support structures proposed by Charmian Clift are removed.
It is significant, as submitted by the ILR, that this appeal occurs in the context of the child having been in a stable environment for some months, as distinct from the proceedings last year which involved, regardless of the outcome, another change of house for the child. Dr Banks said:
The only certainties we have at this point is that he is stable and progressing well. The only way to mitigate the risks of many of the above elements is to preserve his stability, minimise (or actively work to eliminate) further disruptions, while enriching his life as much as possible - hence the axiomatic concept of 'early intervention'.
Dr Banks identified significant risks if a return to the mother was, once again, unsuccessful. He said that there would then be two lots of breached trust so effectively the child would be put back even further, and that is simply doubling the risk. As Dr Banks noted in [124], the mother is, at present, insufficiently informed about attachment disturbance, does not demonstrate sufficient emotional attachment, and needs to be psychologically stronger to be able to set limits and establish consistency.
The evidence satisfies me that at the present time there is not a realistic possibility of restoration. Nor is it a realistic future possibility. That situation may change in the future.
Ms Leis submitted that the position taken by the other parties misconstrued or misapplied the relevant principles governing the determination of the case. In particular she relied on a failure to deal with s83 as a starting point of the deliberations. However, the submissions of the ILR and the Director, which conveniently capture the pathway and principles, sufficiently deal with s 83, and demonstrate that there is no real dispute between the parties as to the procedure to be followed in determination of the issue.
Much of the oral submissions were directed to the suggestion that there should not be a comparison of the parenting skills of the mother as against the carers. This seems to have dissipated, as the written reply submissions by Ms Leis adopt the position taken by Ms Neville on behalf of the Director. That is, it is not for the Court to compare the standard or quality of care offered by Ms Z as against the carers.
I should mention briefly a point taken by the ILR as to two alternative constructions of the term " current care arrangements" in s90(6). It was put that this could refer to either the care arrangements as at October 2013 or, alternatively, the arrangements as at the date of the 2010 orders. For the reasons summarised by Mr Lawson at [9] of his final submissions, I find that the references in s 90(6) are to the current care arrangements, and not the 2010 situation. This is the more natural and sensible construction of the legislation.
I find that the current Care Plan involving care by the carers is the appropriate method. In assessing whether there is any realistic possibility of restoration I take note of the Director's need to have regard to the circumstances of the child as well as whether the mother is likely to be able to satisfactorily address the issues that led to the removal of the child following the failed restoration plan. I accept the Director's submission that there is no sufficient evidence that the mother has embarked upon or made any progress towards addressing the issues raised by Dr Banks. Those concerns are in a different field, and more relevant to the issues raised here, than the conclusions by Dr Atherton that the mother has, in effect, made progress in adhering to her treatment regime .I find that there is, at present, no realistic possibility of restoration.
I accept the rider proposed by the ILR in [97], namely that additional supervised contact with the mother on a monthly and special occasions basis should be part of the plan.
I cannot leave this case without observing that I recognise the very heavy responsibility which rests upon me in deciding that the care of D should remain with the carers, and not with his natural mother. I have been particularly conscious of all the factors urged upon me by counsel for the mother, including those arising under the United Nations Convention on the Rights of the Child and the significance of birth family relationships. However, in the light of the evidence I am unable to come to any view other than that set out below.
Conclusion
In conclusion:
(1)I recognise that the Act is to be administered under the principle that the safety welfare and well-being of the child is paramount - s 9(1) Care Act.
(2)Other principles to be applied are:
(a)The course to be followed must be the least intrusive intervention in the life of the child that is consistent with the paramount concern to protect the child from harm and promote the child's or young person's development - s 9(2)(c).
(f)The child is entitled to a safe, nurturing, stable and secure environment and this will include the retention by the child of relationships with people significant to the child including birth parents and extended family.
(3)I accept that the Director has assessed that there is no realistic possibility of restoration of the child to the mother - s 83(1) and s 83(5).
(4)I find that permanency planning for the child has been appropriately and adequately addressed in the Care Plan dated 15 February 2013 at tab 37 of Exhibit A - s 83 (7)(a)
(5)I have taken into account the matters listed in s 90(6)(a)(c)(d)(e) and (f).
(6)I find that it is appropriate to rescind the 20 October 2013 orders - s 90(7)(b).
(7)I am satisfied that any order other than the current Care Plan would be insufficient to meet the needs of the child - s 79(3).
Having supported the Directors position on the current Care Plan, the ILR proposed two alternative notations in relation to contact arrangements, one supervised and one unsupervised, on at least monthly intervals with additional contact on special days. It is appropriate to make the notation sought in paragraph 97 of the ILR submissions, namely supervised contact.
I make orders as sought by the Director in paragraph 2 of the final submissions and by the ILR in paragraph [95] as follows:
(a) That the orders of the Children's Court on 21 February 2013 be confirmed; and
(b) Order that D have contact with his mother on at least monthly intervals and that such time be supervised.Notation: That D have contact with his mother on at least monthly intervals and supervision should be reviewed at intervals of not less than 12 months. It is further noted that the Minister or her delegate shall use all reasonable endeavours to facilitate contact between D and his mother on days of special significance to D including but not limited to his birthday, the mother's birthday, the birthday of each of D's father, maternal grandmother and maternal grandfather (if such family members be in Sydney on those dates), Chinese New Year, Christmas and (Australian) New Year.
(c) That the appeal otherwise be dismissed.
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