Re - Leila

[2006] NSWSC 1482

CITATION:	Re - Leila [2006] NSWSC 1482
HEARING DATE(S):	6 and 8 June 2006
JUDGMENT DATE :	8 June 2006
JURISDICTION:	Equity Division
JUDGMENT OF:	Windeyer J at 1
DECISION:	Summons dismissed. Order plaintiff pay costs of first defendant of these proceedings. Otherwise no order as to costs.
CATCHWORDS:	CHILD WELFARE - wardship application by Director General of the Department of Community Services
LEGISLATION CITED:	Children and Young Persons (Care and Protection) Act 1998 s69, s73, s76, s247
PARTIES:	Department of Community Services (Plaintiff) Bill Bignall (First Defendant) NIcki McKinnon (Second Defendant) Children's Court of New South Wales (Third Defendant)
FILE NUMBER(S):	SC 3137 of 2006
COUNSEL:	R Bromwich (Plaintiff) S Gardiner (First Defendant) E Boyle (Leila) D Black (amicus - represented second defendant in Children's Court)
SOLICITORS:	I V Knight (Plaintiff) Kathryn Renshall (First Defendant)
LOWER COURT JURISDICTION:
LOWER COURT JUDICIAL OFFICER :	Magistrate Wahlquist
LOWER COURT DATE OF DECISION:	5 June 2006

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WINDEYER J

THURSDAY 8 JUNE 2006

3137/06 - RE LEILA

JUDGMENT

1 HIS HONOUR: This is an application commenced by summons by the Director General of the Department of Community Services for a wardship order pursuant to which the child the subject of these proceedings would be made a ward of the Court, and then an order would be made that either the Minister or the Director General assume custody and responsibility for that child until further order.

2 The summons does not claim that relief. It claims an order that an order of Magistrate Wahlquist in the Children’s Court on 5 June 2006 be quashed and that an order be made under s69 of the Children and Young Persons (Care and Protection) Act 1998 allocating interim parental responsibility of the child to the Minister for Community Services.

3 The application to the Children’s Court appears to have sought, in separate documents, two orders. One was that there be an order under section 54 of that Act for assessment of the capacity of the child’s father or mother, or both, to carry out the responsibility of being a parent of the child in question. That application has not been dealt with, but has been stood over pending the mention or hearing of the other application to which I now come.

4 That other application was for an order accepting undertakings under section 73 of the Act, although the undertakings were not then specified, and an order for supervision under section 76 of the Act. That second application was amended at the hearing to seek an interim care order in favour of the Director General under section 69 of the Act.

5 It is that last matter that is before the Court today. It is here because the learned Magistrate did not make an order, or interim order, under section 69 conferring interim care to the Director General, but, rather, made an order, the effect of which appears to have been that parental responsibility on an interim basis for the child was granted to the father of the child, a condition of that order being that the father give some specific undertakings, including undertakings one, that he would not allow contact to occur between the child and mother, except as directed and supervised by the Department of Community Services and two that he would accept supervision of the department; three, that he would co-operate with the department and accept referrals to agencies and services, including PANOC, and four, that he would allow the department to access the premises. The Magistrate further ordered that the mother not have contact with the child, except as directed and supervised by the department and that she attend for psychiatric assessment.

6 The matter has now been stood over until 19 June according to the notes taken by a solicitor for the department who was present at the hearing, for mention regarding the question of need of care, and to set the matter down for hearing on this issue.

7 The Act specifically provides, in section 247, that nothing in it limits the jurisdiction of the Supreme Court. So far as is relevant here, I am of the view that the jurisdiction of the Supreme Court, if appropriate, is exercised in its jurisdiction in wardship. That, as I understand, is not contested, at least at this stage.

8 It is necessary to set out some facts relevant to this matter. The baby known as Leila in these proceedings was born on 25 November 2005. The parents are not married. They appear to have had a relationship for some time before and since the birth. There were problems with the mother before the birth, in that she was not willing to accept antenatal services, and there were concerns about her accommodation and general mental wellbeing.

9 After the birth of the child a hospital psychologist reported that the mother presented as being a person with chronic mental health problems, but with no acute symptoms.

10 On 2 December 2005 the father signed an undertaking he would not leave the baby unsupervised with the mother. This undertaking was sought by the department as a result of some protection planning meetings. It is obvious enough the department had concern about this child from the beginning.

11 On 10 January 2006 bruising to the face of the baby was noticed. This was reported but it was apparently accepted that the bruising might have occurred for natural reasons, or at least non-intentional reasons.

12 On 17 January 2006 the baby was referred to the Child Protection Unit of Sydney Children’s Hospital at Randwick, as a result of a second episode of bruising. This is referred to in a report of Dr Moran, who leads the Child Protection Unit in that hospital.

13 On 4 February 2006 there were further unexplained episodes of bruising. On this occasion the child was admitted to hospital for eleven days. On the previous occasion the admission was for a period of seven days. Dr Moran was of the view, after all necessary investigations and tests had been carried out, that there was no medical cause for the bruising, and that the most likely diagnosis was - inflicted injury - so that he took the view that the child was at significant risk of harm.

14 Dr Moran gave evidence before the Court today. He said, amongst other things, that when a child presented with bruising such as was seen here, it was necessary to conduct further investigation to ensure that there was no, what he called, “covert” injury of a more serious nature, such as a fracture or intracranial injury. The necessary tests were carried out. There was no such injury found.

15 I understood the evidence to go to the fact that, on occasions, there may be what were called phoney injuries, which would cover more serious injuries. That turned out not to be the position. Dr Moran said because of the serious nature of the bruising, he did not consider it was caused through ignorance.

16 There are difficulties with this matter. The father did not give evidence before me, but I do not think he should necessarily be criticised for that. On the other hand, he did not give evidence he had not inflicted the injuries. It was clearly thought by the learned Magistrate that it was more likely than not that the injuries were inflicted by the mother, but the father was not willing to admit this.

17 The father has not complied with undertakings which he gave to the department, which would have prevented the mother having unsupervised access, even in his presence. In other words, access should have been with the assistance of DOCS. In addition, the father has disengaged himself, at least to some extent, from the services of the body called PANOC, namely, the Child Protection Counselling Service.

18 Whilst the father of the child did attend the unit at the Children’s Hospital on three occasions recently, and the mother attended on two of those occasions, neither attended for sessions booked on 16 May 2006, 23 May 2006 and 30 May 2006.

19 Having said that, the PANOC report does appear to indicate that the baby was well attached to the father, responded to him, and appeared well, or at least reasonably looked after, and he appeared to be capable of doing this.

20 The concerns of PANOC appear to have been related to the mental condition of the mother, and the fact that the father does not appear to have been willing to keep the mother away from the child except in supervised situations, and that it is still not known how the bruising was caused.

21 I accept that the bruising was not caused naturally, and was as a result of physical acts of either the father or mother. I consider the Magistrate had proper reason to consider them to be more likely caused by the mother. If that had not been the position it was perfectly clear she would not have made the orders which she did.

22 There is no true record of the decision of the Magistrate. I am told that these matters are determined on the papers, without oral evidence being given. The notes, which were taken by the solicitor for the Director General, indicate matters which the learned Magistrate referred to during her judgment, most of which I have already set out, including the mother’s psychiatric problems; the findings of Dr Moran; the view of Dr Moran of the child being at risk as there was no explanation as to how the bruising was occasioned; failure to abide by the undertaking previously given; the failure to attend PANOC appointments; the positive aspects in the PANOC report, to which I have just referred; and the fact that the overriding concern was for the safety and wellbeing of the child.

23 But, according to this note, the visit to the child must be balanced against the risk of harm caused by the removal of the child from her parents. The notes indicated the Magistrate was satisfied the child and father were well bonded, and she took into account the opinion of the department, that the mother was probably responsible for the injuries.

24 It appears from these notes the Magistrate said she thought the father should be given the opportunity to comply with the undertakings which she proposed to impose.

25 The statement about the balancing is a statement which might bring about a conclusion that the Magistrate failed to address the real question, namely, whether there was a risk to the child in being left in the care of the father, but, rather, balancing that against the risk of harm caused by the removal of the child from the parents. However, I do not think, on these notes, that it should be thought that the Magistrate did not address the true issue. I have expressed the view that these are not balancing items, and that the risk of harm caused by removal is not something which can be balanced against any risk of harm to the child by being left with the parents. If there is a genuine concern as to a risk to the child being left with the parent, in my view that is like a risk of a risk, which is unacceptable, and a risk which cannot be allowed to continue.

26 I do not find, however, that the Magistrate did deal with the matter that way, and did not address herself to the question to which she was required to address herself. In determining this matter, it follows, therefore, in accordance with the general principles on which these matters are handled in this Court, unless the Court is satisfied that the decision of the Magistrate was clearly incorrect, and had no proper basis, then the Court should not set it aside.

27 I do not wish it to be thought that I think the wardship jurisdiction of this Court is unimportant. I think it is very important, but I adhere to the view that has been expressed in all the cases, that one must take great care in interfering with the decisions of a court specially set up to deal with these matters, even having regard to the fact that there is no appeal to the District Court in the case of an interim order.

28 That does not mean, however, that just because there is disagreement with a decision of a Magistrate, this Court should interfere, unless it comes to the view that the Magistrate was clearly wrong in determining that a protection order or an interim parental order was not required thereby placing the child at risk.

29 There is one matter to which I have not referred, and that is one which I raised when the matter was originally before me two days ago. That was the fact that, while there had been some breach of the undertaking, the fact was that there had been no injury to the child since 7 February this year. Dr Moran thought this was not a matter to which any real attention should be given, or which should bring about any comfort to the Court, and I must accept his expert evidence on that matter.

30 Nevertheless, having, I hope, considered all the matters which I am required to consider in dealing with this matter, I have come to the conclusion that this Court should not interfere with the order which has been made and, therefore, that the summons should be dismissed.

31 I add that while I accept that this Court had no control over the proceedings in the Children’s Court, and while I accept that no decision should be made here, having regard to the shortness, or the length of time in which there will be a final hearing in the Children’s Court, it is a matter of importance that, so far as possible, this matter be determined on a final basis as soon as it can properly be done.

32 I note that the Magistrate made orders for the serving of any appropriate material by 16 June 2006. I should think that is a direction that ought be adhered to, particularly by the father.

33 In all the circumstances the order is that the summons be dismissed.

34 I order the plaintiff to pay the costs of the first defendant in these proceedings. Otherwise, no order as to costs.

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