District Court New South Wales

• Medium Neutral Citation: PP v Director General of Department of Human Services, Re: Julia [2012] NSWDC 16
• Hearing dates: 13 - 17 February 2012
• Decision date: 20 February 2012
• Before: Knox SC DCJ

Decision

Appeal upheld in part

• Catchwords: CARE APPEAL- young child- purpose of contact- hostility between carers and natural parent- need for supervised contact- costs of supervised contact- limitation on future proceedings- referral to registrar
• Legislation Cited: Children and Young Persons (Care and Protection) Act 1998
• Cases Cited: Re: Julia [2010] NSW SC 1373; Teoh v Hunters Hill Council (No 4) [2011] NSWCA 324
• Category: Principal judgment
• Parties: Mr PP; Department of Human Services (DoHS); Guardian ad Litem for Ms KL; Independent Children's Lawyer
• Representation: Mr G Moore (First respondent); Rowley and Associates Solicitors (Second respondent); Robertson Solicitors (Independent Children’s Lawyer); Litigant in person (Appellant)
• File Number(s): 2011/317537
• Publication restriction: Suppression of names and identifying features of the parties.

Decision under appeal

• Date of Decision: 2011-09-09 00:00:00
• Before: Children's Magistrate Ellis
• File Number(s): 78/2011

Judgment

Name of the Child

1 These proceedings concern a young girl, SP (aged 6 and a half). SP was given the pseudonym " Julia " in earlier Supreme Court proceedings in this matter (Re: Julia [2010] NSW SC 1373). It is appropriate that any reference to her in these proceedings be made under that name. For personal identification security reasons her date of birth is not given.

Proceedings and application

2 This is an appeal against an order made in the Children's Court of NSW on 9 September 2011.

3 The precise terms of the orders sought and the grounds for the appeal were unclear. At the outset, PP indicated that he was seeking orders for the sole guardianship as well as the care and control of his daughter Julia and in the alternative, unsupervised contact. That application was refined during the course of the hearing.

4 The hearing proceeded on the basis of determining the extent of contact and in particular, whether PP's contact should be supervised.

5 PP's case is that the supervised contact is not in the child's interests. He also seeks unsupervised contact including overnight and weekend access and half of each school holiday. PP submits that he has the capacity and intention - and the history supports - his desire to pursue contact for Julia's benefit.

Parties

6 Father: PP (born 1944 - aged 68) (" the father ")

Mother: KL (born 1967, aged 44) (" the mother ")

Foster parents: CP (DOB: 1945) and HP (DOB: 1947) (" the carers ") - They are aged 66 and 64 respectively. CP is PP's brother.

7 PP is unrepresented. For reasons which will become apparent, it is appropriate that these reasons include substantial parts of the evidence given so that matters are not re-ventilated and so that any persons or institutions involved in any on-going disputation can be aware of the evidence on which the orders and notations are based.

Background

8 PP and KL met in May 1998. After some interruptions there was the resumption of the relationship between them ultimately leading to the birth of Julia.

9 Both PP and the mother, KL, were distressed by - and apparently disorganised at the time of -Julia's birth. Neither of them, either individually or together, had made any real preparation for the child's arrival.

10 It seems clear on the material that the mother had suffered from various forms of mental dysfunction for some time - including schizophrenia. Her relationship with PP had been punctuated by separations and breakdowns. ADVOs had been made against PP from about 2003 and continued. PP's account of why that domestic violence occurred is set out - see affidavit 6 April 2008 para 11. In my view he has minimised both his actions and the significance of them.

11 The mother continued to experience emotional and personal fluctuations, which are detailed in the Clinician's report prepared at the time. That included threats of violence and self-harm.

12 PP was originally diagnosed with schizophrenia, which he has said was a mis-diagnosis or that it was an ambivalent or ambiguous diagnosis. There is also a family history of diagnosis of schizophrenia - including in PP's youngest brother, EP.

13 Within 9 days of the child's birth, Julia was taken into the care of the Department by consent . Consent orders were made granting the Minister the care and responsibility of the child on 26 April 2006. She has remained with the carers from the age of eight months to the present time.

14 The basis on which Julia came to live with - and stay with - the carers has been the subject of considerable controversy. PP has never really accepted that situation. He said that he felt betrayed by the carers. His view was that they originally said that they would assist him with getting Julia back; instead, they ended up with the care of Julia. In his view they have been at least partially responsible for limiting his contact with her.

15 That interpretation of the history is disputed by the carers. They originally hoped for the three of them to be involved in Julia's upbringing. The carers responded to an approach by PP for assistance. To the dismay, frustration and annoyance of both carers, they have been the subject of continuing and unwarranted criticism by PP of their subsequent parenting and upbringing of Julia.

16 PP was previously married and had children from that relationship. At the time of Julia ' s birth and early life, PP was also in a position of some emotional turmoil following the suicide of his son from an earlier marriage. PP feels strongly that his son suicided because of a lack of contact with him, PP. It is clear that he wants to ensure the same fate does not befall Julia.

Julia

17 From the description of Julia given by all the witnesses and the photographs tendered, it is clear that she is an intelligent and beautiful little girl who is in the fortunate position of being loved by all those involved in her upbringing in their own different ways.

18 Julia refers to PP as "Daddy" to HP as "Mummy" and to CP as "Uncle C". Mr CP has stressed to Julia that PP is her daddy, not him.

19 HP said that Julia takes a lot of notice of what her father says. She is an impressionable little girl.

20 Julia has an awareness of her natural mother and has asked questions about her. She has not seen her mother for three years. The natural mother has been to Julia's present home. Mrs HP is prepared to take Julia to see her natural mother.

21 Although there are orders for PP to be involved in the religious and cultural upbringing of Julia, there appears to be little emphasis on exposing Julia to the Greek language and culture by any of those involved in her welfare or to any aspect of her religious upbringing. There has been no discussion, for example, with the carers about Julia being baptised.

22 Julia does not speak Greek nor has she been raised by the carers in the Greek Orthodox Church or culture. It seems that there has been little effort made by anyone to expose her to her Greek background. Greek is not spoken in the carers' home.

Medical

23 PP considered that Julia is short in stature. He thought she suffered from a form of dysmorphia. That diagnosis has been excluded. To the extent that Julia has short stature it is probably familial in origin. Both her parents are short. There is no evidence that she is nutritionally undernourished. If anything, her increasing weight centile suggest that she is receiving more that adequate calories and her good health reflects her satisfactory nutrition. That opinion is backed by the Endocrine and the Genetics teams at Sydney Children's Hospital, Randwick.

24 There is a series of reports by Dr Greg Rowell, consultant paediatric physician, dated 7 February 2012 and 19 January 2012 following his most recent consultations with Julia and PP. On the basis of those reports, it is clear that Julia has satisfactory nutritional status and that her growth has conformed to her previous pattern of short stature. Her height is at or just above the 3 rd centile and her weight has increased to close to the 50 th centile for age.

25 There have been tensions between PP and Dr Rowell. PP harbours some concerns about the appropriateness of the diagnosis by, and treatment provided by, Dr Rowell.

26 PP attended one consultation and asked for "four day dietetic analysis". HP declined to undertake the assessment. I do not regard the evidence as establishing that need.

Diet

27 PP considered that Julia had dietary problems from an early age. HP detailed what he has done over the years Julia has been living with them. I do not regard the evidence as establishing any deficiencies in that regard.

28 There have been specific complaints which have caused tensions. Areas of concern that HP had were that PP was feeding Julia nuts, insisting that HP gave Julia raw egg and other medication which he had had prescribed by his own doctor - who had not seen Julia.

29 Julia is now in a situation where, according to HP, she "eats anything and everything you put in front of her".

Education

30 The evidence in relation to Julia's education is as follows:-

31 27 September 2011 - there was a satisfactory kindergarten report in relation to Julia.

32 19 January 2012 - Julia had satisfactorily completed Kindergarten and received a Principal's award for mathematics. Her end of year reports were satisfactory and socially she was doing well. She received a merit award for dancing.

33 Julia currently attends a local primary school where she is happy. She participates in swimming (weekly) and ballet (twice weekly).She has made a number of friends and has coped well.

34 PP says he has attempted to become involved in Julia's education. The carers and caseworkers criticise some of his interactions. He has been placed on the watch-list for the school.

Carers

35 The carers feel they are unable to maintain their parental responsibility or to either oversee or supervise the contact when they are subject to constant criticism and antagonism from Mr PP.

36 CP, who has lived in Australia since she was 9, is aged 64. She has other children and grandchildren, some of whom are of Julia's age. Some of them have lived as part of the family constellation when Julia was younger. One of the daughters-in-law (who was with the family in Julia's earlier years) was a dietician. CP is a retired electrical engineer who worked for a major bank. He occasionally travels away pursuant to that employment.

37 The relationship broke down in about February 2010 - mainly at the time of the contemplated Family Court litigation for increased contact. There were some major confrontations about issues and allegations which HP regarded as either minor, irrelevant or mistaken, in some cases, insulting.

38 HP has strongly disputed the care arrangement s which PP proposes for Julia in terms of the facilities available which are inadequate or worse. HP also pointed to deficiencies in PP's parenting of his other children - particularly of his own children when they were at comparable ages.

39 Both carers said that, while PP would comply with directions or orders given to him, he would continue to pursue his own objective and views.

40 There is clear suspicion between HP and PP in relation to past activities. This Court is not in a position to determine or make findings in relation to those. All that is relevant in that regard is that what relationship there was, between the carers and PP has almost completely disintegrated. The question then becomes: what contact should take place in that environment when the existing care arrangements are clearly in Julia's interests and any interference or interruption of them would cause problems for the carers and, indirectly, Julia?

41 HP doesn't have any objection to increased contact by PP provided she doesn't have to come into contact with him during those events. She is also prepared for PP to come to Julia ' s school for significant events. While both carers are clearly frustrated with PP, they have worked to maintain his status in Julia's eyes. I do not accept PP's submissions to the contrary.

42 PP also said that the continued litigation had placed a great deal of stress on her and her husband as well as on the care arrangements for Julia. She said that, while she would go to any counselling sessions that were ordered, if she had to, she was clearly reluctant to be involved any further in discussions with PP.

Relationship between carers and PP

43 Unfortunately, there have been a series of incidents which have precipitated the decline and ultimate disintegration of the relationship between the carers and PP. The carers hope that the three of them could have been jointly involved in Julia's upbringing. Those hopes were discussed but not realised.

44 PP's evidence made it clear that he has had continuing difficulties and tensions with the carers. He has not had contact with, nor even spoken to, his brother since 2010. He said he went to their home but was threatened by them or one of them. PP also had arguments with his brother's wife - there was for example, an incident when he took Julia away for a walk and lost the carer's family dog. A solicitor's letter was sent and his contact with Julia was terminated thereafter for a ten week period. He continues to feel angered by what he regards as the termination of contact with Julia in an arbitrary and unfair way.

45 On one occasion PP produced a measuring tape to measure Julia - he said for her clothing size. That kind of conduct had been the subject of criticism in the Children's Court proceedings as it was viewed as being capable of interpretation by Julia of her father inspecting her height, weight and build as part of his continuing concern about her stature.

46 On another occasion PP accused his brother, CP of spending more time with the family dog rather than with Julia. He said he meant that comment - but said it was not made in a derogatory way. He has been critical of the carers in other respects. In giving his evidence he said he feared the carers would bully her.

47 Conversely, the carers have felt enormous frustration arising from PP's criticisms of their parenting and care for Julia. That hostility has spilled over to one situation apparently where PP spat in HP's face. They feel that PP is volatile and has a temper which is easily provoked. This has also led to tensions in their own relationship.

48 There were some very willing exchanges during the court proceedings which made it clear that the relationship has totally deteriorated. Further, it appears that any court contact will only exacerbate that situation.

49 The carers each feel considerable apprehension about PP's temper and volatility. That goes back, at least, to the time when PP struck KL, even though it was clear at the time that he loved her - and continues to have strong feelings for her.

50 HP said PP had taken off Julia's swimming costume while she was swimming in a backyard pool, leaving her naked. PP's evidence was that if he had taken off Julia's swimming costume, it was because he wanted to ensure that she received Vitamin D through exposure to sunshine.

51 PP said he couldn't recall the incident precisely in that he had instructed a former solicitor to write about his concerns that Julia had been properly exposed to sunlight. He though that action, at that age, was appropriate.

52 HP was also concerned that PP was in a toilet cubicle with Julia on one occasion at the Kids Club during a contact event about 12 months ago. PP said that if he had been in the toilet block with Julia at the Kids Club, it was not damaging to her. "I could not recall the event but it may have been part of a game of hide and seek". He said that he didn't deliberately go into the toilet block. While he didn't specifically recall the incident, he thought it might have resulted from a "small accident".

Litigation history

53 Julia's placement and issues arising from that have been the subject of litigation throughout her life: there were proceedings in 2006, 2007, 2008, 2010, 2011 and 2012.

54 An order was made in the Children's Court of NSW on 26 April 2006 vesting parental responsibility for Julia with the Minister and, pursuant to section 81(1)(c) of the Children and Young Persons (Care and Protection) Act 1998 ( "the Act" ), that parental responsibility be exercised jointly between the Minister and HP and CP.

55 The Children's Court orders of 2006 followed a thorough and insightful Clinician's report by Ms Sheila Gray dated 23 January 2006. It was not recommended by the Children's Court Clinic report writer that either parent have the care of and responsibility for the child. The child was placed with the carers.

56 The Minutes of Care Order dated 26.04.2006 provided:

57 Parental responsibility - general: allocated to the minister until she attain the age of 18 years.

Parental responsibility - contact: to be exercised jointly between HP and CP and the Minister for 12 months.

Upon expiry of 12 months the court ordered that parental responsibility in relationship to the contact with the father become the sole responsibility of HP and CP.

Parental Responsibility -Religion/culture: Orders were also made vesting parental responsibility in relation to matters of religion/culture jointly in HP, CP and PP.

Parental responsibility - all other respects residence, day-to-day care, medical treatment: vested solely in HP and CP.

58 The orders were made, subject to the following notation:

(1) Julia will be gradually placed with HP and CP over a period of one month from the date of this order

(2) The contact of both parents shall be subject to the father (PP),

(a) direction and supervision of HP and CP Behaving in an appropriate manner at contact and

(b) Accepting the reasonable

(3) The father's agreement and understanding of the particular importance whilst Julia is settling into her placement that he should accept the direction of HP and CP and/or the Director-General in relation to the frequency and duration of his contact.

(4) The Department of Community Services will assist the father in his efforts to obtain a place at a Triple P or other parenting course.

(5) The Department of Community Services will ensure that Julia undergoes a full paediatric assessment within six months.

Contact

59 Initially the contact between the father, HP and CP took place three times a week. There were a series of incidents and consequential arguments between PP and the carers and the contact was then reduced to twice a week. There was a hiatus period in their contact between 25 March and 3 June 2011.

60 Those disagreements arose for a number of reasons - at least one reason being advanced on behalf of HP and CP, being the fact that legal proceedings were foreshadowed by a solicitor acting on behalf of PP. Thereafter the contact between the father and Julia has been reduced to two hours per month and has always been supervised. The supervisor is HP and, on occasions, DoHS caseworkers. That contact takes place at the Kids Club, a contact supervision facility where it is said that the toilet incident took place. Annexed to the affidavit of Ms Deborah O'Toole, the case-worker involved until very recently, are photographs of Julia and the activities in which she and PP engage during contact.

61 The contact was supervised at the Kids Club. It is proposed that future contact take place at the DoHS offices and nearby park. Any supervision will be very resource intensive or, alternatively, place considerable pressure on the carers or either of them, most likely HP.

62 PP wants to take Julia to other places - he would be prepared to notify the carers in writing of where he would take her. His bona fides in that regard are strongly disputed by the carers.

63 PP dismisses allegations that he cannot properly care for his own daughter. He points out that he has taken the carers' own children out without the carers being present.

Future Contact at School Events

64 HP said that she would be prepared for PP to go with her to school functions. HP said that she thought Julia would like to have her father at those school functions and that she thought that would be in Julia's interests provided there was no interference by him with her nor contact with her teachers. He would have to go with her because he was on the watch list at the school - at her instigation. Provided he came with her, there would be no problems with the school. However, she would not want to stay with him. Both she and the relevant caseworker had experienced difficulties with PP approaching school authorities and personnel and were concerned, for example, about suggestions that he would approach canteen managers about Julia's diet and her behaviour.

65 There would be difficulties if PP sought to attend at either the ballet classes that Julia attended or the swimming coaching sessions. In any event, there are certain restrictions on the relevant authorities in those areas where there are a number of children present of those ages.

Supreme Court proceedings

66 PP appealed against the orders made in 2006 to the Supreme Court. That appeal was dismissed by Justice White on 3 August 2007. The application for leave to vary the orders was refused. There was no appeal against that refusal.

67 Justice White summarily dismissed PP's application on 19 September 2010. The Children's Court Orders remained in existence.

Further proceedings Children's Court 7 June - 9 September 2011

68 The matter came back before Magistrate Ellis in the Children's Court. Her Honour dealt with an application for leave to vary the orders made in the Children's Court in April 2006. Leave was granted to seek a variation of the contact orders only. To the extent that there was an application for the care of Julia by PP, it was not dealt with.

69 The Magistrate proceeded on the basis that, with respect, it seems to be consistent with all the medical evidence, that Julia is a young girl who does not need any further intervention medically. She was being appropriately overseen by her paediatrician.

70 The Magistrate expressed concern as to whether PP would, if given unsupervised contact, try to take Julia to other practitioners or alternative practitioners to gain a foothold in that area at this stage of Julia's life.

71 The Magistrate found that PP:

"has expressed today almost paranoid behaviour in relation to his feelings that in fact her current carers are out to get him, that they have betrayed him, that they think he's too close to Julia and that therefore their closing down the supervised contact by them is nothing but a behaviour by them to get rid of him."

72 The Magistrate also found on the evidence that to take Julia out of the environment that she is in, and put her in her father's home where she has never stayed before, would cause her a great deal of upset and confusion. If she was suddenly to spend every weekend in her father's home or every holiday in her father's home, that would disrupt what was found to be her "flourishing in the environment that she is in."

73 Accordingly the learned Magistrate rejected the father's application for unsupervised contact and maintained a regime of contact for a minimum of twelve times per year for two hours on each occasion supervised by the Director General.

District Court Proceedings

74 That application foreshadowed by PP is contrary to the orders made by Judge Colefax SC of this Court on December 2012 when he noted in PP's presence that the District Court proceedings are for a variation in contact orders only. The relevant orders and notations were as follows.

(1) Note that the appeal arises out of an application to the Children's Court pursuant to section 90.

(2) Further note that the Children's Court did not grant leave with respect to the establishment order; but did grant leave with respect to contact - but thereafter dismissed the application.

(3) Further note the appeal relates to the refusal of leave regarding establishment and the dismissal of the application regarding contact.

(4) Direct that the evidence on appeal, subject to the following directions, be limited to the evidence (regarding affidavits, transcripts and exhibits) before the Children's Court.

(5) Leave is granted to the appellant to rely upon his updating affidavit filed in court on 12 December 2011.

(6) Leave to the respondents to rely upon any updating material to be served by 16 January 2012.

(7) Direct cross-examination, if any, be limited to updating material - subject to any contrary order of the Trial Judge.

75 It is worth noting that notwithstanding those orders, PP wished to reventilate the overall care arrangement. The nature of those orders is set out in detail because it is submitted by the other parties to the proceedings that continued litigation in these proceedings is having a disturbing and unsettling effect on the existing carers of the child.

PP's concerns

76 From the affidavits filed and the submissions made, PP's concerns appear to be as follows:

Procedural

77 That his application was dealt with in breach of the rules of natural justice in that he was not permitted to rely on his application. In the context of the evidence given and the exchanges set out in the transcript, I do not consider this ground has been made out.

Placement/Parental responsibility orders

78 PP considers that the carers have not advanced Julia's interests in terms of overcoming her health and developmental problems including being underweight, having stunted growth, failing to thrive, developmental delay, asthma and skin rashes. Further, that Julia has been adversely affected by reason of the care she was receiving, in particular, by reason of receiving inadequate nutrition.

79 PP also argues that the carers, HP and CP, have not facilitated contact in the child's interests. Indeed, that their actions in interfering with PP's contact with Julia have amounted to a punishing of Julia. Further, that they have been hostile to him. As I have indicated elsewhere, that criticism is not made out.

80 The father seeks weekly, unsupervised, overnight contact. He does so on the basis that

(1) The existing regime is not in Julia's interests, inferentially that it is an artificial situation which prevents him having a meaningful relationship with his daughter.

(2) That the carers have instilled a fear of him with Julia.

81 In response to the allegations that he has difficulties in caring for Julia, PP says that he has undertaken courses in parenting and personal relationships and will attend counselling sessions as may be needed to ensure he can have unsupervised contact.

Position of Department

82 The view of the caseworker associated with Julia is that she is progressing well and that there should be no interference with the contact and current supervision arrangements. Contact arrangements can be increased if appropriate, following negotiations between the carers, relevant case workers and PP.

Evidence

83 I have read the transcript of the proceedings before Magistrate Ellis on and 9 September 2011, the tenders DoHS material (file exhibit 1), including the care plan and PP's affidavits. PP has also given oral evidence and been present when CP and HP, the carers, have given evidence.

Submissions

Position of Independent Child Representative

84 The Independent Child Representative, Ms Robertson, solicitor, who has met Julia continues to support the proposal that leave be granted for these proceedings but that there should be no change in the status quo - either as to the residence and responsibility arrangements for Julia or PP's contact with her.

85 Ms Robertson submits that the current arrangements, whereby the contact is exercised pursuant to a Notation rather that an order, permits increased or varied contact arrangements in the event that there are future negotiations for changes without resort to the courts.

86 Ms Robertson further submits that in the event that an order is made and variations are sought then it would be necessary to come back to court with all the attendant difficulties that there are in contact.

Impact of Continued Litigation

87 Ms Robertson also submits that litigation has placed pressure on the placement between Julia, the carers and PP. Ms Robertson urges that arrangements be made where possible to prevent any such litigation causing stress to the carers and Julia and having an impact on the placement.

Mother's position

88 Ms Rowley, solicitor, appears for the mother. The mother has been appointed with a Guardian ad Litem pursuant to section 101 of the Act.

89 Orders were made by the NSW Guardianship Tribunal in 2004 that KL be placed under Limited Guardianship with the Public Guardian and appointed a Financial Manager with the Office of the Protective Commissioner.

90 The report (undated) of Ms Joanne Fletcher of DADHC Illawarrra Community Team to the Guardianship Tribunal for the hearing review of the order dated 24 March 2004 outlines LK's diagnosis of schizo-affective disorder and mild intellectual disability.

91 The report discloses the significant mental health issues of the mother including a history of disordered thinking, verbal and physical aggression towards her mother and brother, poor self-care, difficulty engaging meaningfully with support services and managing her financial affairs. The report outlines the intervention of the Community Team (following the imposition of the Guardianship Tribunal orders) in stabilising her medication, assisting her with her financial and housing arrangements and assisting with daily living skills around personal hygiene and diet. The report concludes with a recommendation that she remain under the care orders of the Office of the Public Guardian.

92 The mother continues to have mental health issues. The Guardian ad Litem confirms that the mother has had no significant role in the child's life nor has made any attempt to do so, nor has any current desire to do so.

93 That is disputed by PP. It is clear that he wishes to introduce Julia to the natural mother.

94 On behalf of the Mother, the Guardian ad Litem submits that the status quo should remain. No further contact orders are sought on behalf of the mother. For the reasons set out in the transcript, I consider it important that Julia not be brought into contact with her mother without a prior assessment made and short plan prepared as to how that interaction takes place.

Departmental concerns and obligations to increase contact

95 The relevant Community Services caseworker, Deborah O'Toole gave evidence and provided an affidavit sworn 23 June 2011. DoHS submits that contact should be supervised for the following reasons;

• The carers have not been able to establish a collaborative relationship with PP due to his provocative behaviour in particular his negative feelings associated with Julia being placed in their care;

• The carers do not wish to supervise his contact; he demonstrates limited insight into Julia's needs and that of a developing child in general;

• His inability to remain child focused and to not let his feelings spill over and impact upon the contact.

• PP has limited acceptance of alternative views and feelings to those of his own;

• PP has a police record for assaults against significant partners.

• DoHS submits that the contact should be monthly for two hours supervised until Julia is 12.

• That proposal is subject to PP behaving in an appropriate manner and accepting reasonable direction and supervision by DoHS or its delegate.

96 Affidavit of Deborah O'Toole dated 31 March 2011 :

• On 25 March 2011, the Carers contacted Community Services to advise that they were unable to have a collaborative relationship with PP due to a history of provocative behaviours linked to his negative feelings associated with Julia being placed in their care.

• Community Services acknowledges the relationship between PP and the carers has broken down and as such contact between Julia and PP ceased after a contact that occurred on 19 March 2011 (PP agrees).

• On 31 March 2011 Community Services arranged a specialist consultation with Senior psychologist at Central Sydney CSC to discuss the relationship breakdown and the impact of this on Julia. It was noted that PP continues to demonstrate limited insight into age appropriate developmental stages of Julia and as such a limited capacity to appropriately address her needs.

• The carers have continued to provide ongoing supervision to address issues relating to PP's concept of what is acceptable or not acceptable parenting. PP tends to respond negatively to most rules and routines that have been in place historically for Julia.

• Community Services have intervened previously and offered the family a referral to Relationships Australia to resolve the family dispute.

• Community Services have previously intervened to support ongoing contact between PP and Julia.

• On 12 April 2011 and 18 April 2011 Community Services attempted to contact PP to arrange a 1 hour supervised contact between Julia and himself to occur on 18 April 2011. Community Services left messages requesting that PP contact the Caseworker.

• PP has not responded to the request to contact Community Services to arrange supervised contact between himself and Julia at this time.

• It is noted that all contact between Julia and PP be supervised to ensure Julia's ongoing safety, welfare and wellbeing.

Ms O'Toole's Evidence

97 Ms O'Toole gave evidence about her experiences with Julia, the carers and PP. In response to cross-examination by PP, she agreed that counselling for PP would be a good idea provided that it was not seen as simply a "ticking of the box" to enable him to have unsupervised contact. In Ms O'Toole's view - which I share - whatever counselling occurs needs to take place on the basis that PP comes to the realisation that what contact he has with Julia needs to be in Julia's interests. It should not be pursued to meet his own needs - in particular, his desires to find out information which would support his ultimate claim for Julia to come to live with him or to support attacks on the care arrangements which have been made by the carers.

98 Ms O'Toole was quite specific that PP had been raising concerns constantly about Julia's upbringing over a six year period and trying to gather evidence to support his case. His affidavit material and other documents filed over the course of that period made it clear that what he was attempting to do was to appeal against the original placement. Further, that he had used litigation for precisely the same purposes. His approach had been simply to obtain material which would feed into and buttress his own beliefs. In Ms O'Toole's view, PP had not come to terms with the original placement.

99 Ms O'Toole also emphasised that Julia had been exposed to numerous testings and assessments. It was necessary to protect her from further intrusions unless there was clearly demonstrated and objective need for any such assessments.

100 Ms O'Toole also referred to the incident where during one supervised contact session PP had pulled out a tape to measure Julia's weight and height. Given the ostensible reason that he wanted to buy her clothing, that was in Ms O'Toole's view only a pretext for him to provide information to support his view that she was both underweight and underfed.

101 Ms O'Toole recounted instances where Julia had tried to demonstrate to PP that she was okay, particularly physically: for example, saying about herself that she was a "strong little girl". It was most likely that that demonstration was a response by Julia to her awareness of PP's repeated concerns about her height, weight and build.

102 In Ms O'Toole's view, there should be no unsupervised contact between Julia and PP until it had been satisfactorily determined that he was focussed on Julia's needs and behaviour. Ms O'Toole was not confident based on her experience of PP over the last six years that he would be able to do that or to change his attitudes and conduct.

103 Ms O'Toole recommended that if there was to be any counselling it should take place through the Child Protection Counselling Service attached to the Prince of Wales Hospital and administered in co-operation with the DoHS. That would start off with the benchmark of an initial assessment of PP and his concerns and behaviour, in particular, whether his attitudes were so clearly entrenched to determine if they could be changed.

104 I have read the transcript of Magistrate McIntyre on 9 September 2011 and in particular the evidence given by Ms Deborah O'Toole, the caseworker who has been closely associated with the supervision arrangements for PP's contact with Julia - see particularly pages 43 and following.

105 Ms O'Toole's opinion based on her long association with the contact arrangements and PP is that further or extended contact including unsupervised contact would not be in Julia's interests:

I think that it would be an enormous leap that would be detrimental to Julia. I think at this point in time she is flourishing, she's going very well. She's just started her school. She's starting to expand her friendship circle and her peers. She's been invited to birthday parties.

There's a lot of great things that are happening with Julia at the moment. She's also engaging in activities to help her with development including ballet and swimming. She's enjoying those times and I think for her to then be taken out of that very comfortable environment, to be placed in your home would be foreign and would make her very nervous. That's based on evidence from Dr Rowell who has seen her since she was 9 months old. She's only now getting comfortable in spending that time with him. She takes her time with those things so I think it would be too much for her, too extreme.

106 At a later stage (T 45) Ms O'Toole after cross-examination from PP said:

[PP] I have been engaged with the family for two years and I think that throughout that entire period of time you've had issues with the placement and I think that's evident in the consistency of you coming back through the Children's Court and the other Court Processes...I think there are also issues between you and your brother and your brother's wife, so I think you would need to be showing a consistent child-focus in regard to your contact with Julia for us all to feel that you are supporting the placement and, in essence, supporting Julia and her stability.

107 It was also made clear through Ms O'Toole's evidence that the primary thrust of the departmental caseworker's plan was to support the placement of Julia with the caseworkers as her primary carers. Ms O'Toole went on to say:

I think she really enjoys her time with you [PP] when you are just simply being present with her... When you start thinking about the reasons why she's not with you or the reasons that she's with your brother you're not thinking about Julia, you lose sight of Julia and then you start asking her questions which are inappropriate for her age and that creates stress with her.

So I think that if you can move past that and stop doing that then she's going to certainly enjoy her time with you more and we will be able to step back further out of the life of your family.

Evidence of Ms Rebecca Packman

108 Ms Rebecca Packman, the relevant DoHS casework manager for Julia gave evidence as to future proposals for contact and arrangements between PP and the carers.

109 The Child Protection Counselling Service is run through the NSW Department of Health for children where there are parenting and protection issues. The service runs a course in "Strengthening Contact" as well as counselling services.

Evidence

110 The current Care Plan (exhibit 5) is dated 14 July 2011. It proposes that the case plan be reviewed nine months from the date of those orders and then annually until Julia attains the age of 18.

111 The variation to the contact regime contained in these orders is that PP is to have supervised contact with Julia on the days before or after his birthday provided that contact is supervised.

112 I have considered the Care Plan against the evidence. In my view the Care Plan, though prepared in 2011 is relevant to the current circumstances - Re Tracey [2001] NSWCA 43.

Wishes of the child/ Submissions of separate representative

113 The Independent Child's Lawyer submits that there should be only supervised contact and that should continue until there is clear and demonstrable evidence that PP is able to focus on Julia's needs and not denigrate the carers or either of them.

114 After some refinement, the essence of her submissions is in accordance with the orders and notations to be made.

Law

115 These applications need to be considered under the provisions of the Children and Young Persons (Care and Protection) Act 1998 .

116 The object of the Act, which guides decision-making in this area, is provided by section 8. Section 8 sets out the principles to be applied in decisions concerning children, namely, the safety, welfare and wellbeing of the child must be the paramount consideration.

117 Here also a relevant question is the need (recognised by paragraph 9(d) of the Act) to determine what order will protect the child from the least intrusive intervention in her life, consistent with the paramount concern to protect her from harm and to promote her development.

Consideration

118 Julia is a six year old girl who has been living with her carers, the paternal uncle and his wife since she was an infant. The evidence is that she has her primary attachments to her carers. That is unsurprising - not least because of the length of time she has had with them since the original placement when she was less than 8 months of age.

119 Julia appears to have progressed well - in fact, given the situation into which she was born, extremely well.

120 The proceedings before Magistrate Ellis were conducted on the basis of the documents filed by PP at Exhibit 1 tab 6. PP relies on a change of circumstances set out in a letter attached to his documents. Essentially that is because there was a change in the relationship between himself and the carers - that relationship having broken down. Secondly, the change of circumstances was based on the assertion that there had been no visitation to the home by the mother.

121 In my view, neither of those matters - in the context of this case and the evidence that I have read and heard - constitute a change in circumstances sufficient to warrant the question of the placement of the child being ventilated. I have outlined that preliminary view to PP. He conceded that Julia is doing well in her present environment apart from the emotional pressure that she may feel if she considers she is being punished by the cessation or limitation of her contact with her father.

122 In my view there is little or no evidence to that effect which I accept.

123 Looking at the totality of the evidence, I do not consider that this is the situation of a child who is at imminent risk in any way. I do not consider there are extraordinary circumstances which may agitate any inherent jurisdiction that this Court as compared to the Supreme Court may have to intervene. What changes there have been would appear to be in Julia's best interests.

124 I do not consider that the carers have in any way instilled a fear of him in Julia, rather they have done what they can to maintain PP's position in Julia's eyes. I do not regard the carers, or either of them, as having acted unreasonably towards PP. Further, that his conduct towards them has been critical of their actions on unjustified grounds. It has had the effect of denigrating the considerable and commendable efforts they have made to bring up Julia from a situation where she was at some risk.

125 On the material before me, I do not consider that it is demonstrated that there is any urgency in the situation concerning Julia's health or education or general upbringing which would warrant an urgent review of those arrangements in this Court. If PP wishes to challenge the existing parenting arrangements he should do so in the Children's Court pursuant to an application properly made. Subject to the matters of concern that I have outlined below, that can then be subject to the normal case management and reporting considerations of that court.

126 The Care Plan notes that PP lacks empathy and that he has difficulties in understanding and accepting that others have different views and feelings to him. PP disputes that. In my view his evidence, his presentation and conduct in court confirmed that assessment.

127 To the extent necessary, I vary the orders of the Children's Court pursuant to section 91 of the Act to permit the two additional contact proposals to take place as well as the undertakings to be received under section 73 and the section 82 reports which I have ordered.

Relationship between PP and the Carers

128 Despite PP's protestations of a good relationship and attitude towards the carers, his conduct and evidence belies a critical attitude towards them and at least partial responsibility on his part for the continuing tension that there is.

129 He said in his evidence that he accepts that Julia will live with the carers. I have doubts whether that is the case. Further, I have concerns as to whether he is able to come to grips with the impact of his own behaviour and how to change it.

130 It is also clear that PP still has strong, residual feelings towards the Mother. I have real concerns about whether he will make efforts to expose Julia to the natural mother, in circumstances which may be traumatic for her, unless proper structures are put in place.

131 Julia is a girl who is likely to question her mother's situation and will need a stable background on which she can rely in that event and to deal with any questions she may have.

132 It is clear from the Magistrate's decision (T 47) that it was accepted that PP was a loving father and that he clearly loved his daughter and is very concerned for her. Indeed, that was conceded in these proceedings. Having observed him giving his evidence there is no doubting his love for his daughter. It is his other behaviour - particularly towards the carers - which may jeopardise his relationship with his daughter. The Magistrate also found that PP had what was described as a misplaced infatuation with the health, diet and stature of his young daughter. While it may have been that Julia was underweight and undersized prior to being taken in to care the evidence does not disclose any continuing or real concerns about her in that regard.

133 The appropriate testing was undertaken and continues to be undertaken by Dr Rowell. Julia is adequately reaching the developmental milestones and she is not unhealthily small. What is of concern is that PP will not engage with Dr Rowell and rejects his assessments outright.

134 I consider it to be important for Julia that she knows that her father is able to see her at landmark events, including her school, end of year concerts and functions but that there should be no interference with her schooling or activities. It may also be of assistance if her school reports are forwarded to PP but again only on the clear understanding that he does not approach the teachers, nor any other school authorities, unless in the company of at least one of the carers.

PP: proposals for contact

135 It needs to be emphasised to PP that contact is not necessarily "good" in itself and the "rights of the natural father" which he has reiterated are subordinate to factors that will advance the best interests of Julia.

136 Contact arrangements need to ensure the safety and wellbeing of the child at all times - that includes protecting the child from conflicting or confusing messages or other activities which would interfere with the stability of Julia's upbringing.

137 The approach which has been adopted in the care jurisdiction to determining whether there should be increased face to face contact is whether there is a plan or a realistic possibility of restoration of the child to the natural parents.

138 Whether that is the right criterion or whether there should be different criteria as are applied in the Family Law jurisdiction - particularly given the different statutory frameworks which operate - it is not for me to determine in the context of this case.

139 Here I do not consider that there is any realistic possibility of Julia being restored to PP's care in the foreseeable future. Whether there should be any increase in his contact beyond that provided for in these orders will very much depend on the outcome of the therapeutic counselling program envisaged in the orders.

140 I also have concerns about unsupervised access in the light of what plans, if any, PP has to take the child to his home. There is no one else living in his unit other than him and it is an unfamiliar environment to Julia. While it may be that, down the track, Julia should be able to go to his home, that should only be when she is of an age and a degree of maturity to be able to exercise her own judgment about the circumstances in which she might find herself.

141 In my view, the proposal that PP have unsupervised contact for half of the school-holidays and each alternate weekend is impractical and unrealistic at this time.

142 I agree that the carers and, where appropriate, the Department of Human Services workers are the appropriate people to supervise that contact. If there are to be any changes to that, the matter can come back to court to give an appropriate formal authorisation - Re Liam [2005] NSWSC 75.

143 PP also has continuing concerns about Julia's medical and other treatment. He has said that he wants to have another test done to check for her calcium intake and that he doesn't accept Dr Rowell's evidence about Julia's welfare nor the genetic testing which has taken place at the hospital. I accept that PP has a fixation about Julia's weight and size, which will motivate him to continue to agitate this issue, in circumstances which are not in Julia's best interests. He agreed that he had told the carers that the child is undeveloped and malnourished. It seems clear that that and similar criticism has led to a situation where the carers have excluded PP from activities with Julia. For example, PP not being permitted to eat at the same table as her, given his queries on matters of diet. The orders and notations to be made, reflect that concern.

Limitation on future proceedings

144 These proceedings have continued through three courts over a five year period. The ancillary procedures have required clinician reports, plans, assessments, affidavits and other pleadings. They have required expert evidence and reports. The supervision arrangements have required considerable usage of Departmental resources, supervision centres' time and efforts in behalf of the carers.

145 I also have concerns that PP will continue litigating these proceedings in his desire to obtain unsupervised access. He agreed in cross-examination that he had been working at this objective for some six years. My concern is that those processes are not only very time consuming and resource intensive but also have potential to cause disruption to Julia, the carers and her existing family care structure.

146 I emphasise that such proceedings should not be commenced unless there is clear evidence of a change of circumstances warranting a change in her placement.

147 I also emphasise that such processes - and the attendant excesses and costs - should not be continued without some preliminary determination by a registrar or judicial officer of the Children's Court that is either desirable or necessary in Julia ' s interests.

148 Having regard to the matters set out in Teoh v Hunters Hill Council (No 4) [2011] NSWCA 324 it would be appropriate in the event that PP files any other proceedings under the act in relation to Julia for the Registrar of either this court or the Children's Court (wherever such proceedings are commenced) to vacate any return date, notify the Department of Human Services and refer the application to a Judge or Magistrate to determine whether the application be listed for summary dismissal.

Orders

(1) Pursuant to S 91 of the Children and Young Persons (Care & Protection) Act 1998 the Summons Commencing the Appeal filed on 5 October 2011 in the District Court of New South Wales, Sydney Registry by PP is allowed only as it pertains to the Issue of Contact between the child and her father PP.

(2) Summons Commencing the Appeal filed on 5 October 2011 in the District Court of New South Wales, Sydney Registry by PP the Plaintiff pertaining to the issue of Parental Responsibility was withdrawn by PP (and by consent of the 3 Defendants to the Appeal) and dismissed.

(3) That there is no variation as to Orders made at Bidura Children's Court on 9 September 2011.

(4) That there is a variation to the Notations made at Bidura Children's Court made on 9 September 2011 as follows:

(a) The Director General intends the father will have contact with Julia for a minimum of 12 times per year, for a period of two (2) hours supervised by the Director General. Such venues for contact may also include the father attending at functions such as School Concerts and extra curricular activities.

(b) One additional contact period to take place at the child's end of year school Speech Night/function provided the father attends the function with the carers or either of them.

(c) One additional contact period on the father's birthday or, depending on the child's schooling or other commitments, a day either side of that birthday.

(5) In addition to the Orders made at Bidura Children's Court on 9 September 2011 the following orders are made:

(a) The Court grants leave to Community Services, Department of Family and Community Services Officers to provide Tender Bundle I, Exhibit 3, transcript of evidence of the Appeal in the District Court of New South Wales at Sydney Registry on 13, 14, 15, 16, 17 February 2012 and copy of the Judgment and Orders made to the Child Protection Counselling Service for the purposes of counselling with PP.

(b) Pursuant to S 82 of the Children and Young Persons (Care & Protection) Act 1998, the Director General to file and serve a report in five (5) months and eleven (11) months from date of order detailing inter alia the following matters:

(i) The progress of the arrangements for contact between the child and her father including the following issues:

- The progress of the counselling between the father and the Child Protection Counselling Service

- Details of Review meetings undertaken to assess the progress of the father's insight and other related matters as it pertains to the child and contact

- The plans for any variation to future contact arrangements including frequency and form of such contact between the child and the father

- The current status of the relationship between HP and CP and PP as it pertains to the facilitation of contact between the child and her father and other related matters

- The compliance of the father with the undertakings

(ii) The impact, including the benefits of the current contact arrangements on the child and her placement

(iii) The progress if any of the contact arrangements between the child and her mother including reports as to what strategies have been implemented (if appropriate) to prepare the child to have contact with her mother

(6) Pursuant to S 73 of the Children and Young Persons (Care & Protection) Act 1998 PP to enter into the Undertakings until the child attains the age of 18 years

(i) To accept the directions and supervision of the Contact Supervisor.

(ii) To accept reasonable referrals from Community Services as they pertain to contact and attend upon and engage with those nominated service providers. Noting that the proposed Services providers include but are not limited to the Child Protection Counselling Service.

(iii) To attend upon and engage with services such as but not limited to the Child Protection Counselling Service for the Assessment and thereafter any counselling and continue with such counselling until discharged by that service from further attendance.

(iv) To attend upon a neuropsychologist or another equivalent service as suggested by Community Services, Department of Family and Community Services for an assessment as to cognitive functioning and mental health issues.

(v) To provide Community Services with an Authority to Release Information forthwith and upon request thereof in relation to services attended, reports prepared to assist in counselling in relation to contact.

(vi) Not to take Julia to any medical appointments including but not limited to Medical Practitioners, Alternate therapists, nutritionalists nor to give her medication or dietary supplements.

(vii) Not to take Julia to visit her mother KL or allow Julia to have any contact with KL unless such contact has been agreed to by Community Services and CP and HP and arranged and supervised by the Minister or a nominated delegate. Such contact includes face to face, telephone, electronic or third party communications and showing photographs, videos etc of the mother to the child.

(viii) Not to question the teachers, principal, canteen or other staff at Julia's school at any school events that he attends in relation to Julia's health, diet, exercise, education or wellbeing.

(ix) Not to attend or approach the child's school without being in the presence of Mr CP or HP or a delegated officer from Community Services, Department of Community Services or their nominated agents.

(x) Not to approach or be present at any school or place of extra curricular activity that Julia attends except in the company of at least CP and/or HP or a delegated officer from Community Services or their nominated agent.

(xi) Not to inappropriately question Julia, CP or HP about Julia's living arrangements health, education or wellbeing, at any of the contact visits with Julia or at any of Julia's school or other functions attended.

(xii) Not to criticise the placement or the care afforded to the child by HP and CP to the carers or child or in the presence of the carers or child.

(7) With the consent of PP, I order that he participate in any assessments which may be required by the NSW Health, Child Protection Counselling Service.

(8) I authorise the release of the reasons and all pleadings and affidavits filed in the proceedings to the carers and to NSW Health Child Protection Counselling Service or any professional instructed by them. A copy of those reasons be provided to the Child Protection Counselling Service or any other professional counselling service which may be consulted in relation to Julia or PP.

Notations

A. The Court recommends that if the father, PP has any issues/concerns in relation to contact or placement and related matters, those issues in the first instance are to be attempted to be resolved with the assistance of Community Services, Family and Community Services and if no resolution at that time a referral made by Community Services to an appropriately Accredited mediator with expertise in parenting and child protection matters.

B. The Court encourages the father and HP and CP to resolve any differences as they pertain to the child in relation to the facilitation of contact and related matters with the assistance of Community Service, Department of Family and Community Services and/or related agencies.

C. The Court attaches to the Orders made in the District Court of New South Wales a copy of the Judgment delivered by Judge Knox which reasons and orders should also be given to the carers.

D. To the extent necessary to ensure the supervision of those orders by the Director-General, I note the consent of the Director-General.

Directions

149 In the event that PP files any other proceedings under the act in relation to Julia the Registrar of either this court or the Children's Court (wherever such proceedings are commenced) to vacate any return date, notify the Department of Human Services and refer the application to a Judge or Magistrate to determine whether the application be listed for summary dismissal.

Exhibits

150 I direct that the exhibits be returned to the tendering party at the expiration of 28 days from today.

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Decision last updated: 01 March 2012