Supreme Court New South Wales

• Medium Neutral Citation: Re Z [2011] NSWSC 1141
• Hearing dates: Thursday, 15 September 2011
• Decision date: 15 September 2011
• Jurisdiction: Equity Division - Protective List
• Before: White J

Decision

1. Order that the Amended Summons be dismissed.

2. Order that these proceedings be known as Re Z .

• Catchwords: FAMILY LAW AND CHILD WELFARE - appeal against orders of the Children's Court - s 91, Children and Young Persons (Care and Protection) Act 1998 - where judgment given by President of Children's Court - where judge refused to make a contact order under s 86, Children and Young Persons (Care and Protection) Act 1998 - contact between the plaintiff and his children would pose an unacceptable risk of harm to the children - appeal dismissed
• Legislation Cited: Children and Young Persons (Care and Protection) Act 1998; Children's Court Act 1987
• Cases Cited: M v M [1988] HCA 68; (1988) 166 CLR 69
• Category: Principal judgment
• Parties: Z (Plaintiff); Director General of Community Services, Department of Human Services (1st Defendant); Ms R (2nd Defendant)
• Representation: Ms J Griffin, solicitor (Plaintiff); Ms M Neville (Defendant); Mr G Moore (Children); In person (2nd Defendant); Jacqui Griffin, Solicitor (Plaintiff); Crown Solicitor's Office (Defendant); Legal Aid (Children)
• File Number(s): 2010/391335

Decision under appeal

• Jurisdiction: 9000

Judgment

1 HIS HONOUR : This is an appeal under s 91 of the Children and Young Persons (Care and Protection) Act 1998 against orders of the Children's Court of 17 September 2010.

2 The judgment was given by the President of the Children's Court, his Honour Judge Marien. Because His Honour holds office as a District Court Judge, the appeal under s 91 lies to this Court rather than to the District Court ( Children's Court Act 1987, s 22A).

3 The appeal under s 91 is by way of a new hearing and fresh evidence can be admitted.

4 The parties tendered the evidence that was before the Children's Court. In addition, a further affidavit of a case worker with the Department of Family and Community Services was read and she was briefly cross-examined.

5 The appeal concerns not so much the orders made by His Honour on 17 September 2010, but his Honour's not making an order that had been sought by the plaintiff for contact orders to be made under s 86 of the Act to allow contact between the plaintiff and his three children who are the subject of the proceedings in the Children's Court.

6 It is common ground that His Honour, in substance, refused to make such an order and the appeal is against that refusal.

7 I do not understand there to be any issue that an appeal lies against that refusal under s 91 and that the refusal can be treated as a final order for the purposes of that section.

8 His Honour ordered that each of the children be placed under the parental responsibility of the Minister until they attain the age of 18 years. The children are currently aged six, five and three. They were removed from their mother's care on 10 July 2009 and placed in Departmental foster care. The plaintiff, the father of the children, has not seen them since that time.

9 His Honour Judge Marien found that the making of a contact order would create an unacceptable risk of harm to the children. His Honour reached that conclusion even if the contact were supervised.

10 On the present application the plaintiff sought only supervised contact with his children and sought that contact four times a year or, in the alternative, once a year.

11 There was an issue raised initially as to whether contact, if permitted, should be supervised by the Department of Community Services or by a third person.

12 The plaintiff proposed supervision by his brother. There were concerns raised by the Department as to the suitability of the plaintiff's brother to act in that role. But the Department advised me, through counsel, that if a contact order were made then the Director General consented to contact being supervised by a person employed within the Department. The plaintiff agreed to such supervision.

13 Section 9 of the Act states the principles to be applied in the administration of the Act, including, in this case, a decision as to whether it is appropriate to make any contact order under s 86. The decision is to be made having regard to the safety, welfare and well-being of the children. That is the paramount consideration.

14 That having been said, the parental tie between the father and child provides at least a prima facie reason for the making of a contact order as it is usually in the interests of the child that that relationship be maintained.

15 This case is said to be an exception. There are good reasons so to characterise it.

16 The children's mother is the grand-daughter of the plaintiff's former wife. When the first of the children was conceived she was 17 and the plaintiff was 50.

17 The plaintiff has an extensive criminal record. It includes convictions for sexual offences against children and for indecent exposure.

18 It is said on his behalf that the sexual offences for which he was convicted took place 30 years ago or more. The last conviction for such an offence, namely, the offence of wilful and obscene exposure, was in 1982.

19 There have been later charges of offences of a sexual nature, but they were not proved and no convictions were recorded.

20 The plaintiff has been convicted on charges of assault and of offences involving the contravention of apprehended domestic violence orders in 1996 and in 2002.

21 Before the Children's Court and before me there was in evidence a report of a psychologist, Mr Gerard Webster.

22 There was no contradictory expert evidence in relation to the plaintiff's personality or as to the risks which might be posed by exposure of the children to the plaintiff.

23 His Honour, Judge Marien, who heard Mr Webster give oral evidence, accepted his opinions, and I see no reason to do otherwise.

24 Mr Webster's report is dated 26 February 2010. He said that the plaintiff is a very angry man with resentment towards anyone who stands in his way, and that his psychological profile identifies a range of emotional and cognitive compromises that predispose him to misunderstand the motives of others.

25 He described the plaintiff as having a paranoid personality and of having formed the view that he had been unfairly dealt with.

26 He said that the plaintiff exhibits poor judgment and irresponsible behaviour and has a tendency towards aggressive and anti-social or asocial behaviours.

27 He illustrated these findings by reporting the plaintiff's denial of most of the allegations of sexual offences for which he has been convicted.

28 He said that the plaintiff still minimises his planning strategies and feelings of anticipation and excitement that led to the plaintiff's engaging in exhibitionist behaviour and molestation.

29 Mr Webster said that whilst there was a clear drop off in the history of sexual offences, there remains a high concern that his attitudes and beliefs remain consistent with the thinking and behaviour of adult male sex offenders who abuse children.

30 It was Mr Webster's view that the plaintiff poses an extremely high risk of sexually abusing others and that he may well re-offend. He forms this view not only by reason of the plaintiff's past behaviour, but by reason of the plaintiff's failure to understand and accept full responsibility for his past acts.

31 He notes that the plaintiff's behaviours may well be affected by brain damage which he sustained when a young man.

32 His Honour Judge Marien, after hearing oral evidence from the plaintiff and the children's mother, found that there had been serious on-going domestic violence in their relationship.

33 There was evidence before his Honour and before me, albeit denied by the plaintiff, that justifies that conclusion.

34 Neither the plaintiff nor the children's mother was cross-examined on the hearing of the appeal before me. I see no reason to make a different finding from that made in the Children's Court.

35 Accepting that finding, it follows that the children, at least the two elder children, were exposed to serious domestic violence.

36 It is well accepted that exposure of children to domestic violence, even though the violence is not directed towards them, creates a serious risk of harm.

37 His Honour Judge Marien found that for the children to be exposed to their father, even by way of supervised contact, created the risk that they may be re-traumatised by that exposure.

38 I think that finding justified in the oral evidence given by Mr Webster and is inherently plausible. That is to say, exposure of a child, now aged six, to his father may well revive traumatic memories of the relationship between the plaintiff and the child's mother that would create a risk of psychological harm.

39 There is evidence that the children are experiencing some behavioural difficulties. It is on the cards that those difficulties would be exacerbated by contact, even supervised contact.

40 In M v M [1988] HCA 68; (1988) 166 CLR 69, the High Court observed in relation to access (at 77) that:

" Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. "

41 This is not such a case, but it would be a mistake to read that passage as suggesting that it is only in the case of the sexual abuse of a child that there may be a risk to the child's welfare from supervised access.

42 I agree with his Honour Judge Marien for substantially the reasons he gives, that even supervised contact between the plaintiff and his children would pose an unacceptable risk of harm to them.

43 I take into account the matters ably urged on me by Ms Griffin, solicitor, who appears for the plaintiff as to the advantages to children of maintaining contact with their parents. Those advantages vary from case to case.

44 The desirability of such contact will undoubtedly be stronger where a child has formed an attachment to his or her parent.

45 There was little evidence about the extent of the children's attachment to the plaintiff prior to their removal. There was evidence in general terms of the father having provided some care for the children which might be expected to create a bond, but it is impossible on that evidence to assess the strength of such a bond.

46 Other advantages of maintaining contact include giving children a sense of their origins and background.

47 As Ms Griffin submitted, there is a risk that if the children do not see their father, when they are older, perhaps in their teenage years, they may " glamorise " him, to use her expression, and seek him out in circumstances that do not provide for supervised contact.

48 I acknowledge such a risk, but I think it has to be weighed against the clear evidence of the present unacceptable risk of contact to which I have referred earlier.

49 As is submitted by counsel for the Director General in her written submissions, the orders of the Children's Court do not prohibit contact between the children and the plaintiff.

50 The notations to his Honour's orders include that contact between the children and the plaintiff might occur at the discretion of the Director General in the exercise of the Minister's parental responsibility.

51 As matters stand, it is the Director General's view that such contact should not take place and it is the understanding of the case worker who gave evidence that the current view of the Department is that such contact should not take place before the children are 18.

52 That does not exclude the possibility, although it does not encourage it, that if the Director General for the Minister formed the view that such contact was in the children's interests, the contact (presumably supervised contact) could take place.

53 As matters presently stand, I agree with the view of the Director General that such contact would pose an unacceptable risk to the welfare of the children.

54 For these reasons I order that the Amended Summons be dismissed.

Postscript

55 I order that these proceedings be known as Re Z . As this is a protective matter the case name on the court's database is suppressed.

Decision last updated: 23 September 2011