SM v Director-General of the Department of Human Services and SG - [2010] NSWDC 250

No judgment structure available for this case.

CITATION: SM v Director-General of the Department of Human Services & SG [2010] NSWDC 250

HEARING DATE(S): 16/06/2010 & 18/06/2010

JUDGMENT DATE:
1 July 2010

JURISDICTION: Civil

JUDGMENT OF: Truss DCJ

DECISION: The Court orders that:
1. The appeals are dismissed.
2. The orders of the Children’s Court at Woy Woy made on 22 August 2008 are confirmed.
3. Pursuant to s 86 of the Children and Young Persons (Care and Protection) Act 1998 (“the Act”), C and K are to each have the following minimum contact with family members:
3.1 The mother’s contact will be five times a year, for a period of three hours, to be supervised by a delegate of the Director-General or, a person approved by the Director-General.
3.2 The mother’s partner, SB, and the maternal grandmother, JM, shall be at liberty to attend such contact.
3.3 The mother shall have four occasions of telephone contact with the children in each year.
3.4 The father’s contact will be five times a year, for a period of three hours, to be supervised by a delegate of the Director-General or, a person approved by the Director-General.
3.5 The father’s partner, DD, and the children’s half-siblings shall be at liberty to attend such contact.
3.6 The father shall have four occasions of telephone contact with the children in each year.
3.7 The contact referred to in 3.1 and 3.4 shall occur, as far as practicable, during the NSW school holidays, or as otherwise arranged.
3.8 These orders for contact are to commence from the date of this order and are to be reviewed twelve months from the date of this order.
3.9 Contact will be subject to the respective child’s wishes upon each attaining the age of 12 years.
4. Pursuant to s 82 of the Act, the Court orders a report to the Children’s Court at Woy Woy at six months from the date of making of these orders. That report is to address the following:
(a) the progress of C in counselling and schooling; and
(b) contact arrangements for C and K.
The Court notes that with the prior approval of a delegate of the Director-General, maternal and paternal extended family members of C and K may attend contact as set out in 3.1 and 3.4 respectively.

CATCHWORDS: contact - supervision - frequency

LEGISLATION CITED: Children and Young Persons (Care & Protection) Act 1998
Children Legislation Amendment (Wood Inquiry Recommendations) Act 2009

CASES CITED: M v M (1998) 166 CLR 69
Re: Liam [2005] NSWSC 75

PARTIES: SM (plaintiff/applicant)
Director-General of the Department of Human Services (first defendant/respondent)
SG (fourth defendant/respondent)

FILE NUMBER(S): 2009/333663

COUNSEL: Ms M Neville for the Director-General of the Department of Human Services.
Mr D Chapman for the mother.
Mr D Barry for the father.
Ms E Moran for the children.

SOLICITORS: Crown Solicitor's Office for the Director-General of the Department of Human Services.

JUDGMENT (RE CONTACT)

Issue for determination

1 This judgment concerns contact in relation to a boy C, aged six years and his sister K, aged four years.

2 On 2 December 2009, in a judgment delivered in the substantive proceedings the Court made the following findings:

3 The Court also directed the Director-General to prepare further care plans for each child, in particular to address the matters canvassed in my judgment in relation to contact.

4 In [121] of the judgment I said: -

As stated earlier, it is clear that there have been significant and positive developments in the 15 month period since the care plans were prepared and having regard to the evidence in this case I consider that the level of contact proposed by the Minister is inadequate. This is because the mother ought have the opportunity to maintain an ongoing relationship with the children in anticipation that she may, in the not too distant future, make an application under s 90, if considered appropriate, when she is further advanced and more secure with regard to her rehabilitation and the other matters. For this reason the court considers it appropriate that new care plans be prepared to address principally the issue of contact with the mother, father and paternal aunt and uncle, in particular in the short term.

5 At the hearing the Court Clinician, Dr Szyndler, recommended contact for a minimum four times per year for each of the mother, the father and possibly also the maternal aunt. In my judgment I recorded that it was the Minister’s stated intention to reduce supervised contact with the mother to four times per year for two hours in accordance with the amended care plans.

6 Amended care plans were filed on 19 February 2010. The relevant recommendations are:

The parties’ respective positions

The Director-General

7 The Director-General asks the Court to make orders as to minimum contact in accordance with the care plans: -

and consents to supervising the contact at the frequency and duration set out therein.

The father

8 The father asks the Court to make orders in accordance with the care plans and did not wish to be heard in relation to contact with the mother.

The mother

9 The mother seeks the following:

The children’s representative

10 Ms Moran acknowledged that the Court’s decision as to whether or not contact ought be supervised will largely determine the other orders. She did, however, inform the Court that she had suggested to the Department that the mother ought have more than five contacts per year supervised by the Department or by someone approved by the Director-General. Ultimately her position was that contact be flexible with ongoing monitoring by supervision.

11 Supervision was the principal issue for consideration because it is clear from Re: Liam [2005] NSWSC 75 that if the Court decides that supervision is required, contact cannot be ordered without the consent of the supervisor. At [48] Justice McDougall said:

48 In any event, the form of the order makes it tolerably clear that the learned magistrate did not determine whether or not supervision was necessary. He left it to the discretion of the Director-General. In my judgment, that is not within the power granted by s 86, or otherwise authorised by any provision of the Act to which I have been referred in argument. It is for the Children’s Court, taking into account, among other things, the paramount consideration referred to in s 9(a), to decide whether supervision is required. If it is, the Court should, with the consent of the proposed supervisor, order it. If the supervisor does not accept the requirement then contact should not be given. But the Court should not delegate its duty to consider, and if necessary (and with consent) impose, a requirement for supervision on the Director-General, or for that matter, on anyone else.

12 The issues to be determined are in short:

Relevant statutory provisions

13 As the amendments to s 86 enacted by the Children Legislation Amendment (Wood Inquiry Recommendations) Act 2009 have not yet commenced, the section currently provides:

86 Contact orders

(1) If a child or young person is the subject of proceedings before the Children’s Court, the Children’s Court may, on application made by any party to the proceedings, do any one or more of the following:

(a) make an order stipulating minimum requirements concerning the frequency and duration of contact between the child or young person and his or her parents, relatives or other persons of significance to the child or young person,

(b) make an order that contact with a specified person be supervised,

(c) make an order denying contact with a specified person if contact with that person is not in the best interests of the child or young person.

(2) The Children’s Court may make an order that contact be supervised by the Director-General or a person employed in that part of the Department comprising those members of staff who are principally involved in the administration of this Act only with the Director-General’s or person’s consent.

(3) An order of the kind referred to in subsection (1) (a) does not prevent more frequent contact with a child or young person with the consent of a person having parental responsibility for the child or young person.

(4) An order of the kind referred to in subsection (1) (b) may be made only with the consent of the person specified in the order and the person who is required to supervise the contact.

14 In the course of submissions, the Court was referred to the objects and principles of the Act (ss 8 and 9) to which I referred in [12] – [14] of my previous judgment and do not need to repeat.

15 S 9(a) makes it clear that the safety, welfare and wellbeing of the children are paramount over the rights of the parents. In my previous judgment I dealt with the children’s health and needs as well as the circumstances which led to their removal. Contact must be considered in this context but with regard to subsequent events and the further evidence before the Court.

Whether contact ought be supervised

16 The focus of the submissions by the Director-General and children’s representative relevant to this issue was the past history of drug use by both the mother and SB. I dealt with this matter in some detail in [61] –[83] and [116] of my judgment.

17 It emerged from cross-examination of the mother on 16 June 2010 that neither she nor SB have undergone any urinalysis since 26 and 24 October 2009 respectively. In [5] of Exhibit 3, the mother deposes that I have now been clear of marijuana for over 12 months. There is no objective evidence to support this apart from one clear test in October 2009. The Court accepts that there was no evidence to suggest any drugs use since October 2009.

18 In [79]-[82] of my judgment, I referred to Dr Szyndler’s evidence as to what would be desirable to give confidence in the mother’s rehabilitation.

19 As I observed in my previous judgment, and it was not disputed by the mother in cross-examination on this application, she is aware of the Department’s position as to the need for testing and she accepted that being drug-free was an important issue. When she was cross-examined as to why she has not undergone further testing, several reasons were advanced:

until the Department does what it says it will do, I won’t. It’s not fair.

20 I do not consider that the mother’s attitude indicated by these responses suggests that she would be likely to cooperate with the Department if an order for unsupervised contact were made. Further, I do consider that her responses indicate an appreciation of the fact that the needs of the children ought take priority over hers.

21 It is apparent from my earlier judgment that drug use was one of the major issues leading to the finding of no realistic possibility of restoration. Contact, therefore, needs to be considered in this context. Whilst domestic violence was an issue in the past there is no suggestion of any violence in the mother’s relationship with SB and there is no evidence to suggest other than that their relationship is stable, as is their housing.

22 It follows that as the mother is seeking unsupervised contact, she must satisfy the Court that there is no longer any risk of harm associated with drug use. In the course of submissions her solicitor relied upon the fact that there was no evidence to rebut the mother’s evidence that she was drug-free. However, as she is seeking unsupervised access, the onus of proof rests on her. To the extent that her solicitor also relied upon the absence of evidence as to her being observed affected by drugs in public places, I do not find this submission persuasive.

23 In support of her application, the mother, through her solicitor, offered the following undertakings in accordance with s 73:

24 It was submitted, in accordance with the principles in M v M (1998) 166 CLR 69, that with these undertakings in place there would not be any unacceptable risk to the children and they would be properly protected. This is not the only consideration, however, as the Court also needs to be satisfied that it is in the children’s best interests to have contact sought.

25 In the course of her submissions, Ms Moran relied upon the evidence at the hearing as to the extent that the children, especially C, were disturbed by their experiences in the circumstances which led to their removal. I refer, in particular, to [29]-[48] in my earlier judgment.

26 For these reasons, combined with the reasons expressed later in this judgment on the issue of frequency of contact, the Court concludes that contact with the mother ought be supervised.

Suitable supervisors

27 In the event of the Court ordering that contact be supervised the mother nominated three persons:

(a) The maternal grandmother

28 The maternal grandmother swore an affidavit (Exhibit 5) and was cross-examined. She is a housing manager employed by Pacific Link Community Housing Association. In her affidavit she deposed to the fact that last year she completed a Child Protection Safety course through Wyong TAFE. This was an employment requirement because she is a mandatory reporter to DOCS. She was unable to recall the length of the course but said that all housing managers were required to attend and the purpose of the course was so that they could identify and report children at risk.

29 In her affidavit she stated that she was well aware of the safety, welfare and wellbeing issues of the children, that she would not expose them to any adverse issues and she was aware that she must report any drug use or domestic violence during contact.

30 In late 2007 the maternal grandmother was assessed as a relative carer and considered unsuitable. She was, however, granted unsupervised contact and the mother had separate supervised contact. In February 2008, the Department advised her of the contact arrangements and explained that this was to be her contact time not the mother’s. In cross-examination, she agreed that she was directed by the Department that the mother was not to be present when she had contact and that despite these instructions, she allowed the mother to attend a contact visit on 5 March 2008.

31 Ms Tascher of the Department spoke to the grandmother about this on 2 July 2008 and the grandmother said in evidence that she disobeyed the Department’s directions because she considered it would be beneficial to the mother to have her drop by when she was having contact with the children. She agreed that Ms Tascher made it clear that contact was to be with her only. However, when she was having contact on 27 September 2008 she allowed the mother to take the children to visit a friend who lived nearby.

32 Thereafter the Department decided it was not in the children’s best interests for her to continue having unsupervised overnight contact and she was informed that her contact visits would then be with the mother. She has not been reassessed as the Department did not consider that she would work appropriately with it.

33 In cross-examination the grandmother agreed that the mother had asked her on more than one occasion if she could attend contact and although she permitted her to do so she denied that she finds it difficult to refuse her daughter. The mother gave evidence that when her mother was having unsupervised contact she was depressed and put pressure on her to let her see the children and the grandmother said she relented because she thought it would help her daughter.

34 In any event, the grandmother said in re-examination that she acknowledged her mistake in the past and that it would not happen again. She insisted that if she were to supervise contact she would be able to deal with any situation which arose, would be firm with her daughter and if necessary, call the police. When asked about her motivation to become a supervisor she said, I’m just wanting to see my grandchildren. This evidence, combined with the evidence as to what occurred in 2008, does in my view raise two questions:

35 It was submitted on the mother’s behalf, and the Court accepts that:

water has flown under the bridge

36 It was further submitted that the Minister has adopted a harsh approach towards her, that she has suffered by not being able to see her grandchildren and she has learned a hard lesson and been punished by the Department. In my view, this submission disregards the proper focus, being the children whose interests are paramount to that of the grandmother, in determining the issue.

37 For these reasons the Court is not persuaded that the maternal grandmother is a suitable supervisor.

(b) KB (mother of SB, the mother’s partner)

38 Exhibit 4 is an affidavit from KB. She asserts that she has no criminal record nor is addicted to any form of illegal drug and there is no evidence to the contrary.

39 In her affidavit she also set out the reasons why she put herself forward as a nominated supervisor. This includes her experience with children (three children and eight grandchildren), her awareness of the need to report any issues of drug use or domestic violence involving the mother and that she will not undermine the Minister’s responsibility.

40 The Director-General gave notice that KB was required to attend for cross-examination but she did not attend. The mother offered two reasons. Firstly, her religious beliefs and secondly, that she is a soft, gentle person who has never been to court before and was even worried about attending an appointment with solicitors. The statements in her affidavit could, therefore, not be tested and the Court was unable to form any impression of her and was, therefore, unable to form an opinion as to whether she was a person capable of dealing with any issues which may arise on contact between the mother and the children. In any event, it emerged in evidence that she had not met the children.

41 She is currently in the process of being assessed by the Department as a possible carer. If she is considered to be suitable, it would be open to the Director-General to appoint KB as her delegate if considered appropriate.

(c) SB (the mother’s partner)

42 It was not until the further hearing before the Court on 16 June 2010 that SB was proposed for the first time, as a suitable supervisor for contact. The Department, therefore, had not had the opportunity to assess him.

43 The only evidence from SB is the affidavits which he swore in the previous proceedings (Exhibit 6). What he states in these affidavits is that he and his parents fully support the mother and that he is willing to assist her with her children in the event that she is allowed to have them returned to their home.

44 There was no evidence before the Court as to his suitability and no evidence, other than from the mother, as to his not being a user of drugs since October 2009.

45 Having regard to these matters the Court concludes that there was insufficient evidence to support a finding that he would be an appropriate supervisor.

Frequency of contact

46 As indicated earlier, I consider the evidence in relation to this issue to be relevant also to the issue of supervision.

47 On the present application, Ms Boehm, a psychologist and child protection family counsellor gave the following evidence in relation to C:

48 The mother’s representative was not only critical of Ms Boehm’s evidence but submitted that she demonstrated bias against the mother in that she did not consider the matter from her perspective. However, regard must be had to the circumstances in which she came to be involved, namely, to assist the carers in relation to C’s behaviour. It was not part of her brief to consider matters relevant to the mother’s perspective.

49 The Court accepts that Ms Boehm relied upon and accepted information provided by the carer, which the mother has not had the opportunity to test. The Court is also aware of the fact that she was not provided with information such as the transcript and judgment in the earlier proceedings nor the contact reports. However, in my view, her evidence sits comfortably with the evidence of Dr Szyndler, which was tested at the hearing, although I accept not updated for the purpose of this application.

50 It is pleasing to note the progress which C has achieved over the last 12 months in relation to behavioural issues and it is to be hoped that the counselling to be provided by Ms Boehm will result in further improvement. The Court accepts the submission by Ms Moran that this is a factor to which regard needs to be had when considering contact and that the mother’s situation ought not be considered in isolation as the Court must have regard to the cumulative effect of contact (with both mother and father) and the counselling as well as the potential for increased contact to jeopardise the counselling position.

51 The contact reports in evidence suggest that contact has been positive with no unacceptable incidents or behaviour recorded. Ms Buckland confirmed this in her evidence and agreed that affection and positive interaction between mother, grandmother and children was observed. She also said that the children said they enjoyed contact.

52 Despite this, the carers have reported unsettled behaviour after contact visits with both parents especially in respect of C. Ms Buckland gave evidence that after contact, C has become aggressive towards the carers, other people and animals and that this can last for up to four weeks. In considering what weight ought to be given to this evidence, again allowance must be made for the fact that the mother has not had the opportunity to test the carer’s assertions.

53 It was submitted on the mother’s behalf that if frequency of contact is increased as she proposes, the children’s lives would be more settled by more regular contact because they may be missing their family. There is no evidence to support this submission, which I reject. I also reject the submission that increased contact with the mother would not be disruptive unless she behaved badly.

54 For all of these reasons the Court concludes that contact in excess of what is proposed by the Director-General would be inconsistent with the safety, welfare and wellbeing of the children and would, therefore, not be in their best interests.

55 In any event, in view of the Court’s determination that contact ought be supervised by the Director-General or a person approved by her, it follows from s 86 and Re: Liam, to which I have referred already, that the proper order for minimum contact is what is proposed by the Director-General.

Orders and notations

The Court orders that:

Children and Young Persons (Care and Protection) Act

1. The Court notes that with the prior approval of a delegate of the Director-General, maternal and paternal extended family members of C and K may attend contact as set out in 3.1 and 3.4 respectively.

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Citations

SM v Director-General of the Department of Human Services and SG [2010] NSWDC 250

Cases Citing This Decision

0

Cases Cited

2

Statutory Material Cited

2

Re Liam [2005] NSWSC 75

Stott & Holgar [2017] FamCAFC 152

CITATION:	SM v Director-General of the Department of Human Services & SG [2010] NSWDC 250
HEARING DATE(S):	16/06/2010 & 18/06/2010
JUDGMENT DATE:	1 July 2010
JURISDICTION:	Civil
JUDGMENT OF:	Truss DCJ
DECISION:	The Court orders that: 1. The appeals are dismissed. 2. The orders of the Children’s Court at Woy Woy made on 22 August 2008 are confirmed. 3. Pursuant to s 86 of the Children and Young Persons (Care and Protection) Act 1998 (“the Act”), C and K are to each have the following minimum contact with family members: 3.1 The mother’s contact will be five times a year, for a period of three hours, to be supervised by a delegate of the Director-General or, a person approved by the Director-General. 3.2 The mother’s partner, SB, and the maternal grandmother, JM, shall be at liberty to attend such contact. 3.3 The mother shall have four occasions of telephone contact with the children in each year. 3.4 The father’s contact will be five times a year, for a period of three hours, to be supervised by a delegate of the Director-General or, a person approved by the Director-General. 3.5 The father’s partner, DD, and the children’s half-siblings shall be at liberty to attend such contact. 3.6 The father shall have four occasions of telephone contact with the children in each year. 3.7 The contact referred to in 3.1 and 3.4 shall occur, as far as practicable, during the NSW school holidays, or as otherwise arranged. 3.8 These orders for contact are to commence from the date of this order and are to be reviewed twelve months from the date of this order. 3.9 Contact will be subject to the respective child’s wishes upon each attaining the age of 12 years. 4. Pursuant to s 82 of the Act, the Court orders a report to the Children’s Court at Woy Woy at six months from the date of making of these orders. That report is to address the following: (a) the progress of C in counselling and schooling; and (b) contact arrangements for C and K. The Court notes that with the prior approval of a delegate of the Director-General, maternal and paternal extended family members of C and K may attend contact as set out in 3.1 and 3.4 respectively.
CATCHWORDS:	contact - supervision - frequency
LEGISLATION CITED:	Children and Young Persons (Care & Protection) Act 1998 Children Legislation Amendment (Wood Inquiry Recommendations) Act 2009
CASES CITED:	M v M (1998) 166 CLR 69 Re: Liam [2005] NSWSC 75
PARTIES:	SM (plaintiff/applicant) Director-General of the Department of Human Services (first defendant/respondent) SG (fourth defendant/respondent)
FILE NUMBER(S):	2009/333663
COUNSEL:	Ms M Neville for the Director-General of the Department of Human Services. Mr D Chapman for the mother. Mr D Barry for the father. Ms E Moran for the children.
SOLICITORS:	Crown Solicitor's Office for the Director-General of the Department of Human Services.