Re Barbara

[2006] NSWSC 303

CITATION:	Re Barbara & Ors [2006] NSWSC 303
HEARING DATE(S):	13/04/06
JURISDICTION:	Equity Division
JUDGMENT OF:	Barrett J
EX TEMPORE JUDGMENT DATE:	04/13/2006
DECISION:	Undertaking of grandmother accepted pending return of summons.
CATCHWORDS:	FAMILY LAW - child welfare - application by Director-General for Community Services for final relief by way of order assigning to him care and custody of children - three siblings, one 12 days old - proceedings pending in Children's Court - interim position secured by undertaking from grandmother
LEGISLATION CITED:	Children and Young Persons (Care and Protection) Act 1998, ss.82, 248
PARTIES:	Director-General of the Department of Community Services - Plaintiff Mother - First Defendant Father - Second Defendant Grandmother - Third Defendant
FILE NUMBER(S):	SC 2368/06
COUNSEL:	Mr M.W. Anderson - Plaintiff Ms O. Conolly, Solicitor - First Defendant Mr S.P. Nasti, Solicitor - Second Defendant - Mentions for Ms Robertson, Solicitor, for Third Defendant Mr J. McCaffrey, Solicitor - One child - Mentions for Ms C. Valenti, Solicitor for Two children
SOLICITORS:	Mr I.V. Knight, Crown Solicitor - Plaintiff Legal Aid Commission - First, Second, Third Defendants and Children

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

THURSDAY, 13 APRIL 2006

2368/06 RE BARBARA & ORS

JUDGMENT

1 There were proceedings in the Children’s Court today in respect of all three children of the parents. They are a girl aged 8 years, a boy aged 14 months and a girl now 12 days old. The Children’s Court granted leave in respect of the two older children which paves the way for an application by the Director-General for new orders for parental arrangements in respect of them which would replace orders of November 2005. Under those existing orders, parental responsibility is shared between the parents, the paternal grandmother and the Director-General. The children are currently with the parents.

2 There was also before the Children’s Court today an application concerning the baby but no order was made beyond an order that the application stand over until 27 April 2006. On my understanding, the position of all three children will be back before the Children’s Court on that day.

3 The Children’s Court did today accept certain undertakings from the father, mother and paternal grandmother. As they were related to me in court this evening, the undertakings were that the parents would accept supervision by the Department; that the parents would provide a chain of custody urine analysis twice per week; and that the grandmother would attend the parents’ premises every day. These undertakings were given, I was told, on the Director-General’s making it clear that if he were granted parental responsibility he would remove the children from the parents.

4 This evening I heard the notice of motion by which the Director-General seeks, as an interlocutory measure in new proceedings in which the parens patrial jurisdiction is invoked, an order that all aspects of parental responsibility be allocated to the Minister. The application is opposed by the legal representatives of the parents and the grandmother and, indeed, the separate legal representatives of the children themselves. Mr McCaffrey appeared for the baby and made that position clear. The position in relation to the other two children is that Ms Valenti represented them in the Children’s Court and supported the grant of leave that was made but did not support the change in the placement arrangements. Mr McCaffrey has mentioned her appearance this evening and I infer that the attitude is the same here. That has been conveyed by Mr McCaffrey when mentioning Ms Valenti’s appearance.

5 The final relief sought in the summons filed in this court this evening is an order to the effect that the Minister have sole care of and responsibility for all three children. The summons is returnable on 28 April 2006.

6 One of the main themes in the opposition that has been voiced on behalf of the parents, children and grandmother is one of procedural fairness to the effect that the Children’s Court proceedings were brought on with what was regarded as great haste leaving very little time to deal with a large quantity of material which calls for reply. I am informed that this was a consideration that was placed before and referred to by the magistrate in the Children’s Court and may be assumed to have played a part in the decision to defer the applications to 27 April.

7 I do not intend to traverse all the evidence upon which the Director-General places reliance. The Director-General does however emphasise a very recent report of the Central Sydney Scarba Service which, albeit in a largely hearsay way, reports not only the history of the family but also recent events. The picture is one of drug problems and difficulties in coping, with reference also to the difficulties that the family will now face with the stresses and strains for all that come from having a newborn baby in the house, particularly where the mother in the later stages of pregnancy showed what was called in the report an idealised attitude to the birth.

8 Also in evidence is a report under s.82 of the Children and Young Persons (Care and Protection) Act 1998 dated 24 February 2006 which is a report to the Children’s Court on which that court itself may act of its own motion. That report refers to certain non-compliances with the applicable regime by the parents but it was not productive of any action by the Children’s Court.

9 The mother has admitted to lapses when it comes to drugs but lapses that she would categorise as minor, although whether there is such a thing when it comes to such a serious subject is a matter for debate. She denies, however, that she took drugs in the period immediately before the birth of the baby as would be indicated as possible by a pathology report of 30 March. I have heard from the bar table a suggestion that that report may be pharmacologically anomalous but, of course, I can make no finding on that. It does perhaps however emphasise the need for a measured approach to the testing of the material that the Director-General had adduced.

10 There are, I should say, some encouraging matters concerning drugs in the evidence. I refer to paragraph 19 of the affidavit of Ms French of 11 April 2006. She says that on 15 March the Department received urine analysis results for both the mother and the father. She says that the results were requested pursuant to s.248 of the Act. The results indicated that the father had provided samples for analysis on 6 January, 13 January, 7 February, 28 February and 7 March. Results only indicated the presence of methadone. The mother’s results indicated that she had provided samples on 6 January, 27 January, 7 February, 27 February and 7 March and again the results only indicated the presence of methadone. That material of course now is a month old.

11 Such evidence as I have before me also suggests non-compliance with undertakings by the parents. But it also notes that they have on occasions acted responsibly in accordance with the regime that they have accepted.

12 My task at this point is to decide the interlocutory application, that is basically to judge what is going to be best for the children for the next fortnight. The Director-General has, on the basis of the materials presented, expressed reservations about whether the grandmother takes sufficiently seriously matters of the children’s welfare. But it is clear that the grandmother has seen fit to involve herself in the family’s life in a positive and supportive way. It is not suggested that she has breached any undertakings given by her and I was informed of at least one undertaking she had given to the Children’s Court before the undertaking given today.

13 It is always a major and distressing step to take children away from their parents. That is particularly and emphatically so in the case of a newborn baby. If any way can reasonably be found consistently with the best interests of the children to avoid that, then that is the course the court should take.

14 So far as the interim position is concerned, that is to say the position until the summons comes back before the court on 28 April, by which time it will also have been back again before the Children’s Court, the solution in my mind lies with the grandmother. Mr Nasti mentioned an appearance of Ms Robertson this evening on behalf of the grandmother. I asked Mr Nasti if he was in a position to obtain instructions from the grandmother and he said that he was. He has now informed the court of the willingness of the grandmother to give the following undertaking, namely:

“That she will live in full time with the parents and the three children at their home at [address] up to and including 28 April 2006 and will
(a) adopt the role of full time carer looking after the children to the best of her ability;
(b) support and encourage the parents in their parenting responsibilities; and
(c) contact DOCS immediately she has any apprehension that the parents are not properly caring for the children.”

15 Upon the grandmother giving to the court through Mr Nasti, solicitor, that undertaking, I stand over the summons and the notice of motion to the Duty Judge’s List on 28 April 2006 at 10 am and otherwise make no further order on the notice of motion.

16 I would ask Mr Nasti to obtain from the grandmother a signed form of the undertaking and to deliver it to my Associate not later than Wednesday, 19 April 2006 with a copy of it delivered at the same time to the other parties. Particularly in light of that request as I have framed it, all parties have liberty to apply on 48 hours notice.

17 I note that the grandmother will begin living in in accordance with the undertaking at 9 o’clock tomorrow morning, it now being almost 11 pm.

[The legal representatives addressed on costs]

18 As to costs, I am of the view that the position is best addressed in the light of the final outcome on the summons. Accordingly, the costs of today’s interlocutory application are reserved.

19 I confirm that I do not intend to interfere with any undertaking given to the Children’s Court. Rather, this court has accepted an enlarged undertaking from the grandmother.

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