Re Dakota

[2024] NSWSC 1333

Supreme Court

New South Wales

Medium Neutral Citation:

Re Dakota [2024] NSWSC 1333

Hearing dates:

16 October 2024

Date of orders:

17 October 2024

Decision date:

17 October 2024

Jurisdiction:

Equity - Duty List

Before:

Pike J

Decision:

Summons dismissed

Catchwords:

CHILD WELFARE – parens patriae jurisdiction – where mother of child in foster care seeking injunction against Minister removing the child from the State of New South Wales – where mother’s application in the Children’s Court for recovery of the child is pending – whether in the best interests of the child

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW) ss 9A and 10A

Cases Cited:

Re Victoria (2002) 29 Fam LR 157

The Secretary of the Department of Communities and Justice (DCJ) and Fiona Farmer [2019] NSWChC 5

Texts Cited:

Nil

Category:

Principal judgment

Parties:

NB (Plaintiff)
Secretary, New South Wales Department of Communities and Justice (First Defendant)
Minister for Families, Communities and Disability Services (Second Defendant)
The Child (Third Defendant)

Representation:

Counsel:
K Shea (Plaintiff)
R Turnbull (First and Second Defendants)
B Dean (Third Defendant)

Solicitors:
P Beaumont (Plaintiff)
Crown Solicitors (First and Second Defendants)
James McCaffrey & Associates (Third Defendant)

File Number(s):

2024/00380358

Publication restriction:

On 16 October 2024, the Court made orders prohibiting the publication or disclosure of information that would identify, or tend to identify, the identity of the young person in these proceedings (known as “Dakota”).

JUDGMENT (EX TEMPORE – REVISED FROM TRANSCRIPT)

1. These proceedings concern a young person known by the pseudonym Dakota who was born on 7 July 2023 and is thus 15 months old.

2. By summons filed 14 October 2024 the plaintiff, Dakota's birth mother, seeks to invoke the Court's parens patriae jurisdiction to obtain the following order:

That the Minister for Families, Community and Disability Services and any delegate of the Minister be restrained from removing Dakota from the State of New South Wales pending the determination of the Children's Court proceedings in relation to Dakota, except where the Secretary or his delegate reasonably considers there is an immediate risk of harm to Dakota.

3. The proceedings have a degree of urgency about them in that, unless restrained, Dakota's current carers propose to move to Queensland with Dakota this weekend. The Department of Communities and Justice (DCJ) has only authorised Dakota to be outside New South Wales for three months.

4. The proceedings were heard on the afternoon of 16 October 2024. The plaintiff was represented by Ms K Shea of counsel and the defendants were represented by Mr R Turnbull of counsel.

5. At the commencement of the hearing an order was made that Mr James McCaffrey be appointed the Independent Legal Representative for Dakota and Mr B Dean of counsel thereafter appear for Mr McCaffrey and made submissions.

6. The plaintiff relied on an affidavit of Dakota's birth mother dated 13 October 2024. The defendants relied on an affidavit of Ms Rebecca Ferris, a Manager Casework employed by DCJ, made on 15 October 2024. There was no cross-examination of either witness.

7. I thank counsel and the legal representatives for the considerable assistance which they have provided to the Court in what is a difficult matter.

FACTUAL BACKGROUND

8. Most of the relevant facts are not in dispute. For the purposes of the present proceedings, they may be summarised as follows.

9. Dakota was born on 7 July 2023, prematurely at 23 weeks. As a result, she has some health problems.

10. Dakota's mother is a Māori person who was born on 2 January 1995 in New Zealand.

11. She has birthed five children:

1. Her first child, known as Wavey, born on 20 February 2014. Wavey was removed from Dakota's mother's care by DCJ in September 2022 and currently lives with Dakota's mother's aunt Cheryl in Perth. This was done through the Children's Court in September 2023;

2. Her second child, her daughter known as Demi, born on 26 June 2015 who has lived with paternal family members in Western Australia since 2018;

3. Her third child, her son known as Jiger, born on 11 October 2016 who has also lived with paternal family members in Western Australia since 2018;

4. Her fourth child, her daughter known as Ezra, who was born on 29 November 2021 who unfortunately passed away from sudden infant death syndrome on 23 February 2022; and

5. Dakota, born on 7 July 2023.

12. Dakota was assumed into care on 18 July 2023 and care proceedings were commenced in the Children's Court of New South Wales at Surry Hills on 21 July 2023 (Children’s Court proceedings).

13. An interim care order was made by the Children's Court on 25 July 2023 pursuant to s 69 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (Care Act) allocating all aspects of parental responsibility for Dakota to the Minister for Families, Communities and Disability Services until 17 August 2023. On 17 August 2023 that order was made until further order.

14. Day-to-day responsibility for Dakota's care has been delegated to Key Assets.

15. Dakota was placed into the care of her current carers – Carissa and Chrissy – on 6 December 2023 and she has remained in their care ever since. That was upon Dakota's discharge from the Royal Women's Hospital. Whilst she was in hospital, Dakota was regularly visited by her mother, including three times a week from 12 October 2023 until Dakota's discharge on 6 December 2023.

16. Between December 2023 and February 2024, Dakota and her mother had supervised contact visits twice a week.

17. No contact between Dakota and her mother occurred between February and about July 2024, during which period Dakota's mother disengaged from all services and could not be contacted by Key Assets. Dakota's mother gives evidence that during this period she suffered from a mental health decline.

18. Face-to-face family time between Dakota and her mother resumed on 22 August 2024 and has continued on an almost weekly basis since.

19. Mr McCaffrey, a solicitor, has been appointed as the Independent Legal Representative for Dakota in the Children's Court proceedings.

20. On 28 August 2023, a finding was made pursuant to s 79(1)(d) of the Care Act that Dakota was a child in need of care and protection.

21. DCJ filed a care plan in the Children's Court in respect of Dakota on 3 July 2024 which concluded that there was no realistic prospect of restoration of Dakota to the mother's care.

22. Dakota's mother is seeking restoration of Dakota to her care in the Children's Court proceedings.

23. Dakota's mother gives evidence of the considerable steps she has engaged in since about August 2024 to assist her claim for restoration and to deal with concerns which she understands that the DCJ has.

24. DCJ's position is that Dakota's mother has not demonstrated sustainable positive change in addressing her parenting capacity, her mental health, her drug use and her violence towards Dakota. In these circumstances, DCJ is of the view that there is no realistic possibility of restoration of Dakota to Dakota's mother.

25. DCJ is seeking final care orders that parental responsibility for Dakota be allocated to the Minister until Dakota attains the age of 18 years. There is no present intention to place Dakota on an adoption pathway.

26. The matter is listed for final hearing in the Children's Court on 16 and 17 December 2024 with the need to obtain a further three hearing dates (likely in January 2025 but with no certainty in relation to this).

27. DCJ intends that Dakota will remain placed with Carissa and Chrissy on a long-term basis.

28. The case worker from Key Assets has recently reported observing that Dakota has a strong connection with her carers and presents as happy and calm in their presence. Dakota regularly looks to her carers for comfort and becomes unsettled when separated from them. It has also been reported that Dakota developed separation anxiety with the carers, especially Carissa.

29. A cultural support plan has been prepared by Key Assets on 14 August 2024 to support Dakota with her cultural needs as Māori.

30. DCJ's position is that Dakota continues to thrive in the placement and has formed a strong bond and attachment to the carers. The carers demonstrate flexibility and responsiveness to Dakota's needs. Dakota has a consistent and predictable routine.

31. Dakota's carers continue to provide full-time support to Dakota, including taking her to all of her health appointments, therapies, activities, family time visits, those visits incorporating her Māori culture as guided by Dakota's mother. Ms Ferris, the Manager Casework employed by DCJ with managerial responsibility for Dakota since July 2023, has formed the view that it is in the best interests of Dakota to remain in the care of Carissa and Chrissy and for Dakota to relocate to Queensland.

32. Key Assets has apparently been aware at all times of Carissa and Chrissy's long-term plans to return to Queensland. In September 2023, Carissa and Chrissy were anticipating returning in 2026. In July 2024, they were anticipating returning by July 2025. On 2 September 2024, the carers notified Key Assets that they would need to leave Sydney on 11 October 2024.

33. On 17 September 2024, Dakota's mother was informed of the potential move.

34. DCJ has granted permission for Dakota to travel to Queensland for a maximum period of three months, until 19 January 2025.

35. It was not in dispute that, due to being born prematurely, Dakota has a number of health issues. It is not necessary to go into detail in relation to these issues in these reasons. She currently sees a number of health and medical professionals at regular intervals ranging from weekly to every six months. These professionals are all obviously located in Sydney.

36. The evidence disclosed that if Dakota and her carers are permitted to move to Queensland, arrangements have been made to ensure that Dakota's health and medical needs continue to be met. This is through a combination of visits to existing professionals in Sydney, telehealth visits or appropriate professionals located in Queensland.

37. In terms of family time arrangements with Dakota's mother if the move to Queensland occurs, what is proposed is that supervised family time will occur on a fortnightly basis with Dakota's mother flying to Queensland each fortnight unless Dakota is in Sydney. This proposal is subject to funding approval being given by the DCJ Director, which has not yet occurred.

38. There is also a plan that there be at least weekly video calls with Dakota's mother. The carers are also open to Dakota's mother attending some of Dakota's medical appointments in Sydney, as they plan to schedule the appointments to coincide with family time.

39. If Dakota is not permitted to travel to Queensland, it appeared to be accepted that alternate care arrangements for Dakota would need to be found now. Apparently, an alternate carer has been identified, but I was informed by counsel for the defendants from the Bar table that the carer identified had concerns about whether they would be able to meet Dakota's current care needs.

RELEVANT PRINCIPLES

40. The relevant principles in relation to the Court's parens patriae jurisdiction were not in dispute. Those principles were helpfully summarised in the written submissions of counsel for the defendants and need not be exhaustively set out in this judgment.

41. Counsel for the plaintiff accepted that the plaintiff needed to establish exceptional circumstances.

42. It was also not in dispute that the paramount consideration is the best interests of the child: See Re Victoria (2002) 29 Fam LR 157 at [11] per Palmer J.

OVERVIEW OF THE ARGUMENTS ADVANCED

43. Central to the plaintiff's claim that exceptional circumstances exist in the present case is the contention that, if Dakota is to move to Queensland, this will necessarily reduce the family time which Dakota has with her mother in the next few months. Even if funding approval is given to the planned visits every two weeks by Dakota's mother to Queensland, there will necessarily be a reduction from the present weekly visits to every two weeks at an extremely important stage in Dakota's life.

44. The plaintiff contended that the Court can have no certainty that funding will be provided and, if it is not, there will be an even greater reduction in the face-to-face visits. Even if the funding is provided, there is still an issue as to the extent of that funding and whether Dakota's mother will therefore be able to travel to Brisbane.

45. The mother's capacity to demonstrate that she has addressed (or is likely to be able to address) the issues leading to Dakota being removed from her care will diminish with the reduction in opportunity to demonstrate her parenting capacity and to continue to bond with Dakota during contact visits.

46. This is in the context of the provisions of the Care Act, including the permanent placement principles set out in s 10A, which provide that, if it is practicable and in the best interests of the child, the first preference for permanent placement is for the child to be restored to the care of his or her parent(s). This is also said to be consistent with the principle in s 9A – that the Secretary is obliged to make "active efforts" to (a) prevent a child from entering into out-of-home care and (b) to restore the child to his or her parent(s).

47. As such, the very aim of the Care Act – to restore children to the care of their parent(s) wherever possible – would apparently be defeated by permitting Dakota's relocation to Queensland prior to the determination of the Children's Court proceedings. This was thus contended to be not in Dakota's best interests.

48. Reliance was also placed on the fact that it was in Dakota's best interests to remain in Sydney so as to continue receiving her existing medical care until her permanent placement is decided.

49. Counsel for the defendants contended that there are no exceptional circumstances warranting the injunction. Reliance is placed, inter alia, on the fact that the Children's Court, exercising its specialist jurisdiction, has allocated interim parental responsibility to the Minister and any injunction would usurp that allocation of parental responsibility and would involve this Court in making decisions for Dakota which the Secretary and his delegates are best placed to make.

50. It was contended that if the critical issue for Dakota's mother is the reduction in contact visits if there is a move to Queensland and the impact of that on Dakota and on Dakota's mother's application in the Children's Court for parental responsibility to return to her, then she has the ability under the Care Act to apply to the Children's Court for an increase in contact visits.

51. It was contended that the best interests of Dakota are best served by maintaining her relationship with her existing carers with whom she has formed a close bond. Restraining Dakota from leaving New South Wales would sever that relationship and force Dakota to be placed in a new placement where, given the unimpeachable care currently being provided, could be no better and could potentially be worse for Dakota.

52. It was further contended that moving Dakota to Queensland for the initial three-month period would still enable Dakota's mother to have visits every two weeks and in any event, this would not be fatal to Dakota's mother's position in the Children's Court in circumstances where the reduction in contact visits is not due in any way to Dakota's mother. In relation to the likelihood of the number of contact visits, I was asked to infer that there was a likelihood of funding being approved. Reliance was also placed on the fact that arrangements had been made for Dakota to continue to receive proper medical and other treatment.

53. Mr Dean, for the Independent Legal Representative, adopted the submissions made by the defendants and made further submissions essentially focused on the existing strong relationship formed between Dakota and her existing carers with whom she has been living for the past ten-plus months since she was discharged from hospital.

DETERMINATION

54. It must be appreciated at the outset that this is a difficult case which, whatever decision the Court makes, will necessarily have a significant impact on the unsuccessful party. This is not lost on me.

55. In the circumstances, I am not satisfied that the Court should exercise its jurisdiction to restrain the Minister from removing Dakota from New South Wales pending the determination of the Children's Court proceedings.

56. As is clear, Dakota's interests are paramount, and I am particularly mindful of the strong relationship that she has formed with her current carers and the likely impact on Dakota of being placed in alternate care arrangements which would be the inevitable consequence of the order sought.

57. I am also particularly conscious of the views expressed by Ms Ferris that, having considered and weighed up the relevant circumstances, it is in Dakota's best interests to remain with her current carers and relocate to Queensland. The Children's Court has made interim care orders allocating parental responsibility to the Minister and as such Ms Ferris's views should not lightly be interfered with.

58. Whilst I am conscious that a move to Queensland would likely lead to a reduction in contact visits with Dakota's mother, this is only one factor that I have to consider. The reduction in visits needs to be viewed in light of the contact that has occurred to date and particularly that there was no contact at all between February and late August 2024. Whilst there has been quite regular contact since late August, that contact has obviously been for defined periods. By contrast, Dakota's current carers are obviously providing full-time care to Dakota and have formed a close bond with her.

59. I have carefully considered the relevant framework for care applications as summarised by the then President of the Children’s Court, Judge Johnstone, in The Secretary of the Department of Communities and Justice (DCJ) and Fiona Farmer [2019] NSWChC 5 at [58]-[137].

60. I accept that an application under the Care Act for increased contact visits is unlikely to be of practical assistance to Dakota's mother if Dakota is living in Queensland and Dakota's mother is living in Sydney. It is, however, by no means clear to me that the reduction in visits will necessarily significantly reduce Dakota's mother's prospects of success in the Children's Court proceedings particularly where the situation is not of her making.

61. In any event, any potential impact on Dakota's mother, and her position in the Children's Court, with the consequent potential impact on Dakota in not being returned to her mother, contrary to what is said to be the very aim of the Care Act, is not such as to justify the order sought. This is particularly in light of the impact on Dakota of being removed from her current carers with whom she has formed a close bond.

62. I am conscious that there is no certainty that funding will be provided to permit the fortnightly contact visits. I think there is a reasonable likelihood that funding will be approved, but this is not the basis of my decision. As set out above, I am particularly focused on Dakota's relationship with her current carers and the impact on her of being separated from them, which would be the inevitable result of preventing Dakota from leaving New South Wales.

63. Even if an alternate carer could be found to immediately take over, this would likely have a significant adverse effect on Dakota. There was no dispute that the level of care being provided by Dakota's current carers is unimpeachable and, as such, putting to one side the significant impact on Dakota simply by changing carers, the level of care provided by the new carers could only be the same as Dakota is currently receiving and could well be less.

54. A change of carers now is also to be viewed in circumstances where, regardless of the outcome of the Children's Court hearing, there will then be another change. Dakota will either be returned to her current carers or alternatively be returned to her mother. Any change now will thus only be for a short period and will likely have a significant impact on Dakota.

55. I am also satisfied that if Dakota does move to Queensland with her current carers, that there will be adequate arrangements in place for her ongoing medical and health issues to be met.

56. A further relevant factor in my view is that approval has only been granted for a three-month period and the situation will be reviewed by the DCJ.

57. Finally, I am conscious of the plaintiff's contention that this Court is the only court which can make the order sought. So much did not appear to be in dispute. This does not, in my view, make out exceptional circumstances. The critical issue is whether the facts of the case warrant the making of the relief sought. For the reasons set out above, in my view they do not.

58. For these reasons, I decline to make the injunctive relief sought. Accordingly, I order that the summons be dismissed.

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Decision last updated: 22 October 2024