Re Karen and Kirsten

[2010] NSWSC 1125

CITATION:	Re Karen and Kirsten [2010] NSWSC 1125
HEARING DATE(S):	25 June 2010
JUDGMENT DATE :	25 June 2010
JURISDICTION:	Equity Division
JUDGMENT OF:	Rein J
DECISION:	1. The Orders made by the Children's Court at Parramatta on 25 June 2010 in relation to the children are stayed pending the filing of an appeal from those orders by the first plaintiff, the Director-General, Department of Human Services, in the District Court of NSW and orders in relation to the children being made by the District Court. 2. The proceedings are to be known as "Re Karen and Kirsten" and the children the subject of these proceedings are to be known respectively as "Karen" and "Kirsten". 3. There is to be no publication that would identify or tend to identify the children the subject of these proceedings except for the purpose of the proper conduct of the proceedings. 4. The children are to be separately represented for the purposes of these proceedings and the Legal Aid Commission of New South Wales is requested to arrange such representation. 5. On Saturday 26 June 2010, the mother will have contact with the children for a period of 4 hours between 8am-12pm, such contact to be supervised by the aunt. 6. On Sunday 27 June 2010, the mother will have contact with the children for a period of 4 hours between 10am-12pm, such contact to be supervised by the aunt. 7. Until Thursday 1 July 2010, or until the District Court makes further orders in relation to the children whichever is the sooner, the mother is to have contact with the children for a period of 3 hours each day, such contact to be supervised by the aunt, at such time as is agreed between the mother and the aunt. Either the mother or the aunt is to inform the delegate of the Director-General of the time of such contact prior to the contact occurring. 8. It is further noted that the father will have contact with the children for 3 hours, supervised by the aunt, to be exercised concurrently with the mother, on Monday 28 June 2010 and Wednesday 30 June 2010.
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE - child welfare - children in need of protection - appeal from Children's Court - parens patriae jurisdiction - whether exceptional circumstances or unacceptable risk to children from mother
CATEGORY:	Principal judgment
CASES CITED:	G v M (1995) 19 Fam LR 678 M v M (1988) 166 CLR 69 Re Alan (2008) 71 NSWLR 573 Re Victoria [2002] NSWSC 647
PARTIES:	Director-General, Department of Human Services (first plaintiff) Minister for Community Services (second plaintiff) Father (first defendant) Mother (second defendant)
FILE NUMBER(S):	SC 2010/207953
COUNSEL:	M Neville (plaintiffs) S Gardiner (children's representative) P Braine (first defendant) E A Lawson (second defendant)
SOLICITORS:	Crown Solicitor's Office (plaintiffs)
LOWER COURT JURISDICTION:	Children's Court
LOWER COURT JUDICIAL OFFICER :	Hogg CCM
LOWER COURT DATE OF DECISION:	25 June 2010

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Rein J

Date of Hearing: 25 June 2010
Date of Judgment: 25 June 2010

2010/207953 Re Karen and Kirsten

JUDGMENT (EX TEMPORE)

1 REIN J: This is a difficult matter because it involves a balancing of two competing principles: the overarching concern for the welfare of children and the need to bar interference with the established processes for dealing with children’s matters. The Department of Human Services, Community Services (“the Department”) seeks orders from this Court staying the decision of Hogg CCM made today in relation to two children whose names will be described as Karen and Kirsten. I do not have all of the material that the learned Magistrate had before him. I am told there were some four volumes of paper and that the matter took at least seven days of hearing in the Children’s Court.

2 The father (the first defendant) of the two children, Karen and Kirsten, had, in addition to Karen and Kirsten as his children, two boys by an earlier marriage. When he married the mother (the second defendant) of Karen and Kirsten, she became a stepmother to the two boys. There were significant problems in relation to the parenting of the boys, and last year they were removed from the parental responsibility of the first and second defendants. Karen and Kirsten, were also removed, but unlike the boys, they were placed in the care of their paternal aunt and uncle, and they have remained there with the approval of the Department since, I think, June last year, with the second defendant having access to them on a regular basis, I am told, three times a week for two hour periods.

3 There has been a clinical assessment. I have before me the Care Plans in relation to each of the four children and also the clinical assessment in relation to the children and the first and second defendants.

4 Today, Hogg CCM made orders in accordance with what has now become Exhibit F, following undertakings being given in the form of Exhibit G, which were apparently signed by the aunt and are to be signed by the uncle. Critical aspects of the orders are that the learned Magistrate granted parental responsibility for the children to the aunt and uncle, gave access or supervision for a period of 12 months to the Director-General of the Department, accepted undertakings given by the aunt and the uncle, and made orders in respect of the Care Plan, but noted that the mother, that is the second defendant, had agreed to live at the home of the aunt and uncle with day-to-day care of the children. It was also noted that the second defendant agreed to be supervised by the aunt and uncle when in the presence of Karen and Kirsten.

5 There is evidence that the boys have, and I think particularly one of them has, suffered injuries in respect of which inadequate explanations were given by the first and second defendants. I was informed in Court that the learned Magistrate today made a finding that the mother, the second defendant, was a perpetrator of physical abuse of those boys. No finding, I was told, was made in respect of any abuse by the mother in respect of her biological children, that is Karen and Kirsten, but nevertheless the concern the Department has as to the effect of the orders now made in the Children’s Court, together with the notations, is that the mother will now, in effect, be living at the home of the aunt and uncle and have day-to-day care of the children, albeit with supervision by the aunt and uncle.

6 What the Director-General wishes to do is to bring an appeal in the District Court from the Children’s Court decision, and the Director-General is prepared to give and does give an undertaking to apply on Monday to file the necessary papers in the District Court and to seek, if possible, time of the District Court Judge who is responsible for care matters to ventilate on Monday the concerns in relation to the orders made and to seek interim orders in a similar form or to a similar effect to those which are sought in this Court today.

7 The father and the mother both oppose the application of the Director-General. The aunt and uncle are not represented here this evening, but due to the late time at which notification was given, it is not surprising, in one sense, that the legal representative was not able to attend. I will assume that given the role that the aunt and uncle took in the Children’s Court, they would also oppose the application.

8 Importantly, in my view, the children’s representative, who is represented here by counsel, Mr Gardiner, has given support to the Director-General’s position. The difficulty is that this Court has in numerous cases stated although the Court has parens patriae jurisdiction, it will be very reluctant to exercise this jurisdiction where proceedings have been, or are being, brought in the Children’s Court, that being a specialist jurisdiction. In this case, there is the added fact that the matter has been obviously the subject of considerable time in the Children’s Court and consideration by that Court. The countervailing difficulty, however, is that I am informed that the Department sought a stay of the orders that were made in the Children’s Court today when those orders were made, which stay was refused, and there does not seem to be any immediate means of preventing the implementation of the orders.

9 The matter which now comes before me is whether or not there are extraordinary circumstances, as they have been characterised in cases such as Re Victoria [2002] NSWSC 647 and Re Alan (2008) 71 NSWLR 573, to warrant the grant of a stay for a limited period. It needs to be borne in mind that until today (and I understand that shortly after court this afternoon, the second defendant moved into the home of the aunt and uncle), contact between the second defendant and her daughters has been limited, and this is not a case where the Department is seeking to remove the children from the care of the aunt and uncle – what they seek to do is to prevent the mother from having 24 hour a day access and day-to-day care of the children in accordance with the orders made by the learned Magistrate.

10 I have had regard to the disruptive effect that preventing the mother from staying at the home will have, and that is a matter of concern. But on the other hand, this is not a case in which she has had a long period of contact with the children, or even any period other than a few hours a day to be with them. I have discussed with the representatives of the parties who are here a regime for more extensive contact by the mother over the weekend than might otherwise apply or have applied in the past, and the Director-General is willing to accept that that would be appropriate. Mr Gardiner does not have instructions, but would recommend that those more extensive hours be permitted, and of course a regime for more extensive contact is not opposed by the mother or the father.

11 I think that there are very weighty considerations which would discourage this Court from intervening in such cases, but in essence, the concern is that not only has the mother been found to have perpetrated physical abuse on one or more of the boys, there is also evidence before me which indicates that the older girl, Karen, has suffered injuries, which raises questions about the circumstances in which those injuries, including a burn and a bruise, came to be suffered. Accepting that the learned Magistrate did not find the mother responsible for those matters and that his Honour expressed a positive view of the mother, I am informed that the Director-General wishes to challenge the conclusion that the learned Magistrate came to in relation to those injuries, which have been documented by others, and they do justify, I think, a concern for contact by the mother which is far more extensive than the limited contact she has had up to now. A proposal which would see her, in effect, required to leave the home this evening, but give her time tomorrow between 8am and 12pm, and 10am to 2pm on Sunday would, I think, at least permit more extensive contact, but would be far less than is the result of the orders made today.

12 Not without hesitation, I have come to the conclusion that it is appropriate to make orders of the type sought by the Director-General, with the qualification I have just indicated (which is acceptable to the Director-General and, I think, to the other parties). I should also say that my attention has been drawn to the decision of M v M (1988) 166 CLR 69 in the High Court. Although I do not have the text of that judgment, counsel have helpfully drawn my attention to what that case says and to the case of G v M (1995) 19 Fam LR 678, in which the Full Court of the Family Court discussed M v M in the context of the Family Court.

13 The question is whether or not the extended contact which is contemplated by the Children’s Court orders proposes an unacceptable risk. I do not think that the fact that there has been no problem about contact by the mother with the children when supervised for limited two hour periods over the past year is sufficiently probative of a lack of unacceptable risk given the material to which I have referred and which is of concern to the Department. This is important, and another factor is the very limited stay of the orders, because I propose to stay the orders only until the matter can be properly ventilated in the District Court next week. I will hear from the counsel and solicitors in a moment in relation to the precise timing of that.

14 I grant the relief in paragraph 1 of the Summons. I grant the relief in paragraphs 2, 3, 4 and 5, but the grant of relief in paragraph 2 is subject to now formulating the precise orders.

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