Re: David and Ewen

[2003] NSWSC 279

CITATION:	Re: David and Ewen [2003] NSWSC 279
HEARING DATE(S):	28 March 2003
JUDGMENT DATE:	28 March 2003
JURISDICTION:	Equity
JUDGMENT OF:	Campbell J
DECISION:	Children placed in care temporarily
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE - CHILD WELFARE OTHER THAN UNDER FAMILY LAW ACT 1975 AND RELATED ACTS - children in care of State - Court's parens patriae jurisdiction to make order for care of children - effect of earlier decision of Magistrate in Children's Court on same question
LEGISLATION CITED:	Children and Young Persons (Care and Protection) Act 1998
CASES CITED:	Re Anna, Bruno, Courtney and Deepak [2001] NSWSC 79 Re Victoria [2002] NSWSC 647
PARTIES :	Director General of the Department of Community Services - (P) Mother of children - (D1) Father of children - (D2)
FILE NUMBER(S):	SC
COUNSEL:	M W Anderson - (P) C Sperling, solicitor (D1) K Renshall, solicitor (for children)
SOLICITORS:	Crown Solicitor - (P) Legal Aid Commission - (D1) Kathryn Renshall - (for children)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

FRIDAY 28 MARCH 2003

RE: DAVID AND EWEN

JUDGMENT – Ex tempore

1 HIS HONOUR: This is an application which is brought urgently by the Director General of the Department of Community Services. It relates to the immediate future care of two boys who I will refer to by pseudonyms as David and Ewen. They are brothers.

2 David was born in November 2001, and so is now sixteen months old. Ewen was born in mid-February 2003 so is only a little over six weeks old. The boys’ mother had lived in Queensland until very recently. She came from Queensland when her time for delivery with Ewen was near, partly because her mother lives in Sydney.

3 At the time that Ewen’s birth was near, an arrangement was made for David to be placed voluntarily into care. He has been in care in New South Wales from 12 February this year. The precise circumstances of that have changed a little over the time since 12 February.

4 On 17 March 2003 the boys’ mother went into the Tresillian home with both boys, and she stayed there with them until 21 March. The reason for her referral was to observe her ability to parent the two children. The objectives that were identified as being the mother’s goal in relation to David at the time of entry, were to learn to manage his tantrums, to learn to get into a routine with him and to gain confidence in herself as a mother to him.

5 Concerning Ewen her goals were to get into a good routine, to learn a bit more about bottle-feeding him and to gain confidence in herself as a mother.

6 Over the time she was there there was explanation given as to the detail of both breast feeding and formula making and administration for the new baby. The results of that instruction were not satisfactory. It was observed that on one occasion she took forty minutes to change two Milton tanks which would normally take about ten minutes. It was noted that she needed reminding of the next breast feeding time. She did not master the way of mixing formula and heating it. There were also some problems concerning hygiene and sterilisation of the baby’s dummy.

7 At the beginning of the week she was there she needed some direction to check the nappy of the older boy before putting him to bed. She was observed to take a long time to change a nappy and needed assistance and also needed reminding to wash her hands before attending to the baby’s dummy replacement.

8 The overall summary of the Tresillian staff was that during her stay the mother required twenty-four hour supervision and support to provide basic parenting care for the two boys.

9 There is in evidence a report which was prepared by a Queensland psychologist on 11 October 2000, concerning the circumstances in which the mother was caring for four other children which she had. Those four children are now being cared for by people other than their mother. The report is quite detailed and provides grounds for concern about her ability to maintain an appropriately clean environment for the children. At that stage those four children were reported to have had head lice for an infinitely long time. The home was reported to have both animal and human faeces throughout. The children were said to be constantly sick, mostly with asthma. In the time since the mother has been in Sydney there has been a recurrence of a problem of head lice, so far as David is concerned.

An order was made by the Children’s Court Magistrate on Tuesday of this week, 25 March 2003. It was an order made under the provisions of the Children and Young Persons(Care and Protection) Act (1998) dealing with emergency care and protection orders. That order was made, under s 46 of that Act, for three days. Today an application for extension of the order was made to the Children’s Court. The application was for an extension of the order for fourteen days. The learned Magistrate dismissed that application. The effect of dismissing the application is that the children would go back into the care of their mother.

10 When she first came to Sydney the mother found accommodation at a backpackers hostel. She has, since then, found accommodation in a cottage at Caringbah. Even though her mother lives in Sydney it is common ground between those who appeared before me today that it is not practicable for the boys’ mother to stay with her own mother, as she has the care of a mentally ill daughter.

11 The application that is made before me today is one which was expressed to be that the order of the Children’s Court made today, that the children be returned to their mother forthwith, be stayed. I do not think that that way of expressing the order captures the substance of what has been argued before me. It is really not possible to stay an order that dismisses an application. Rather what is being sought is an exercise of the court’s parens patriae jurisdiction to make an order for the care of the children on a short term basis.

12 I mention that s 247 of the Children and Young Persons (Care and Protection) Act 1998 makes clear that nothing in that Act interferes with the jurisdiction of the Supreme Court. For the reasons that were given by Palmer J in Re Victoria [2002] NSWSC 647, it is only in unusual situations that this Court would involve itself in what amounts to an appeal from a decision of a Magistrate in the Children’s Court. However, the jurisdiction of the Court to do so is undoubted.

13 Further, the approach that the Court should take in a case such as this is that which was outlined by Hodgson CJ in Eq in Re Anna, Bruno, Courtney and Deepak [2001] NSWSC 79 at pars 20-22. That is that the Court should not take the same attitude of one Court hearing an appeal from another court, particularly where there is an appeal from a discretionary judgment, but rather should regard itself as exercising its own jurisdiction.

14 The Department plans to make an application to the Children’s Court for a longer term order to be made in relation to the care of these children. That application will probably be made next week. The order that the Department seeks today is one which is limited to fourteen days. Depending on what happens in the Children’s Court, if any order were to be made, it might in practice operate for even less than fourteen days.

15 The fundamental concern that the Court addresses in this application is what is in the best interests of the children. So far as the older boy is concerned, he has never been out of his mother’s care, in the period up to 12 February 2003. There is evidence that he is suffering from separation anxiety, in his present foster care. There has been a problem with the Department, this weekend, in arranging the transportation necessary for contact with the mother to occur and this was, I was informed, one of the factors which was placed before the learned Magistrate at the time he made his decision.

16 Also relevant is the fact that the mother wants to return to Queensland. She has said, through her legal representative, that she wants to enter into a residential program to assist her with parenting. I am told that the first vacancy for such a program which is available, is not until 6 May this year.

17 The mother has placed before the Court a document where she sets out her statement of matters which are relevant, and her concerns. She says that David had started to throw tantrums when the new baby was coming. She says that he screams loudly whenever he is taken away from her after an access visit. She says that his behaviour while in foster care is not the behaviour that she has usually observed him to engage in. She says that her breast milk has almost dried up.

18 So far as the younger child is concerned I would have serious concerns about him being returned to his mother’s custody even for a few days. When he is so young, and so dependent on being able to be fed and cared for properly by someone else, I feel that he needs to have the care of someone who the Court can be confident is well able to provide that care. On the material before me I am not convinced that the mother is in a position to do so. With little breast milk, and imperfect mastery of formula preparation, the mother is not someone I am confident would feed the baby properly. Even a little lapse in care with a child so small could be very serious.

19 So far as the older boy is concerned there are difficulties with being able to be confident that he would be properly cared for. His concern and emotional upset at being separated from his mother is real, but that cannot be allowed to dominate the question of what is in his best interests. Given the difficulties which I have adverted to earlier, in my view his interests are best served also by, in the short term, remaining in foster custody. That effectively means that an order should be made placing him in the care of the Director General.

20 I have not overlooked the fact that the boys’ grandmother has offered to supervise over this weekend. The difficulty that I have is that there is no material before me concerning her, and I would need to be confident that there was someone well able to at all times look after the interests of these little ones.

21 It is highly desirable that there be as much contact as is possible within the administrative arrangements of the Department, between the boys and their mother. Even bearing that in mind, and in the situation where no such contact can be arranged this weekend, it still seems to me preferable that they should stay where they are. I also bear in mind the fact that the an application will be made next week, the outcome of which is uncertain but one possible outcome of which might be that the boys are placed in care for some future period of time. It would not be in their interests for their primary carer to be chopping and changing.

22 I make orders in accordance with paras 4, 5,6 and 7 of the notice of motion in this matter.

23 I order that the children be placed in the care and protection of the plaintiff until 5 p.m. Friday 11 April 2003. In nominating that time I am seeking to fix an outer limit of the time that the present order is aimed to run for.

24 I grant leave to any party to apply to the duty Judge on four hours’ notice.

25 I would not regard the order, which I have made, which is made specifically for the purpose of a very interim arrangement, as in any way confining or influencing the decision which might be made by the Children’s Court if an application were to be made next week.

26 I note an undertaking proffered on behalf of the Department that during the time this order runs there will be contact between the mother and the boys on three hours of the day five days a week at the Department of Community Services at Redfern, that contact being supervised contact and with the possibility of the boys' grandmother also being present at that contact, if she so wishes.

27 I note that the undertaking that the Department gives will also permit contact by the father of the boys should he desire to avail himself of that opportunity.

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Last Modified: 05/07/2003