Children's Court New South Wales

• Medium Neutral Citation: Department of Family and Community Services v Veronica [2012] NSWChC 5
• Hearing dates: 3 February 2012
• Decision date: 22 February 2012
• Jurisdiction: Care and protection
• Before: Magistrate Graham Blewitt AM

Decision

Parental responsibility for contact allocated to Minister. All other aspects of parental responsibility allocated to maternal grandparents, except parental responsibility for Aboriginal identity and cultural awareness, which is allocated to the paternal grandmother.

• Catchwords: CHILDREN - child in need of care and protection - no realistic possibility of restoration - permanency planning - court to determine various aspects of parental responsibility including contact and Aboriginal identity and cultural awareness
• Legislation Cited: Children and Young Persons (Care and Protection) Act 1998
• Cases Cited: Re Sinead [2005] CLN 8; Young children [2004] CLN 9; In the matter of Anthony [2008] NSWLC 21; In the matter of Julian and Allen [2006] CLN 6; In the matter of Tom [2007] CLN 4
• Category: Principal judgment
• Parties: The Director of Family and Community Services; Kate Jones (mother); Chris Bell (father); Mary and Stuart Jones (maternal grandparents); Vera Bell (paternal grandmother)
• Representation: Mr Lawson on behalf of the Director of Family and Community Services; Mr Clack on behalf of the mother; Ms Corbin on behalf of the father; Mr Robertson on behalf of the maternal grandparents; Mr Pottenger on behalf of the paternal grandmother; Ms Muggenthaler as independent legal representative for the child
• File Number(s): 68/2010
• Publication restriction: Any information that names or is likely to lead to the identification of a child or young person who is reasonably likely to involved or mentioned in Children's Court or non-Court proceedings in any capacity must not be published or broadcast in any form that may be accessible by a person in New South Wales whether the publication or broadcast occurs before any proceedings have commenced, during the proceedings or after they are disposed of. This prohibition applies until the child or young person turns 25 years of age or dies.

Judgment

1 These proceedings involve a young child, Veronica, who was born in July 2010.

2 The following facts are not in dispute, and for this reason it is not necessary to give a detailed account of the history leading to the child being taken into care and subsequently being placed with the maternal grandparents.

3 Veronica was admitted to hospital on 15 December 2010, when she was almost five months old, suffering unexplained and non-accidental head injuries involving bleeding in the brain, as well as other injuries (numerous bruises to legs and buttocks and retinal haemorrhages). These injuries were consistent with the child having been shaken. When transferred to Sydney Children's Hospital an examination also revealed an old shoulder fracture.

4 These injuries were occasioned whilst in the care of the parents, Kate Jones (the natural mother - aged 18 (aged 17 at the time of the incident)) and Chris Bell (the natural father - aged 23).

5 In relation to the brain injury sustained by the child, the medical evidence is that there were two brain bleeds, one appearing to be older than the other.

6 There is a dispute between the parents in relation to how the injuries were occasioned and inconsistent accounts have been given by both of them, none of which were consistent with Veronica's injuries. Subsequent disclosures and allegations by the mother, however, disclose that the father was responsible for the child's injuries.

7 In this regard the mother revealed a history of domestic violence during which the father had assaulted her and the child on many occasions. The mother disclosed this history to Departmental caseworkers on 23 December 2010, during a home visit to the home of the maternal grandparents. The mother said the father regularly held and shook Veronica and smacked her. The mother repeated these allegations when interviewed by police on 6 January 2011.

8 The father denies having injured the child, and blames the mother, but he has been charged by the police and serious assault charges are pending in the District Court.

9 Following Veronica's admission to hospital on 15 December, there was a domestic violence incident involving both parents at the hospital on 20 December 2010, when the mother was holding the child. Following this incident, Veronica was assumed into care.

10 Care proceedings were commenced on 22 December 2010 and on 23 December the Court made an interim order allocating parental responsibility for the child to the Minister. A finding was made on 20 January 2011, by consent and without admissions, that the child was in need of care and protection.

11 Following her assumption into care, and on her discharge from hospital, Veronica was placed with an authorised foster carer. Thereafter, there were a number of placements, including the maternal grandparents. Ultimately on 29 April 2011 the child was placed again with the maternal grandparents, Mary and Stuart Jones. The child remains in that placement. All reports are that this placement is meeting all of Veronica's needs.

12 On 21 April 2011 the Court made an order that the maternal grandparents, Mary and Stuart Jones, and the paternal grandmother, Vera Bell (and her now deceased husband) be joined as parties to the proceedings.

13 The matter came on for hearing on 3 February 2012, with the hearing proceeding on the papers and with oral and written submissions being made by the parties.

The position of the parties

14 There is no dispute, and the parents agree, that there is no realistic possibility of restoration of the child to either parent. Having considered the evidence filed in this case, I agree with that position and accordingly find that there is no realistic possibility of restoration of Veronica to either parent.

15 Placement is not in dispute, the child is to be placed with the maternal grandparents until the age of 18 years of age.

16 The issues for the Court to determine relate to the allocation of various aspects of parental responsibility including contact.

17 In this regard the parties seek the following orders:

(1) The Director-General: seeks that all aspects of parental responsibility be allocated to the Minister until Veronica attains the age of 18 years. The Department proposes to place the child with the maternal grandparents. The Department opposes the making of contact orders, under section 86 of the Children and Young Persons (Care and Protection) Act 1998 (the Care Act), but does not oppose the making of orders requiring section 82 reports.

(2) The mother: supports the position of her parents, and seeks unsupervised contact.

(3) The father: supports the position of his mother and the making of section 86 contact orders.

(4) The maternal grandparents: seek all aspects of parental responsibility, with the exception of contact with the paternal family, which should be allocated to the Minister, and culture, which should be allocated to the paternal grandmother. The maternal grandparents also support the mother's position that her contact with the child should be unsupervised.

(5) The paternal grandmother: seeks shared responsibility as proposed by the Independent Legal Representative for the child, agreeing that most aspects of parental responsibility for Veronica be allocated to the Minister; that the maternal grandparents have responsibility for day to day care and minor medical and dental treatment; and that she, the paternal grandmother, have responsibility for Aboriginal identity and cultural awareness. The paternal grandmother also submits that the Court should make section 86 contact orders.

(6) The child's representative: seeks shared responsibility, namely, parental responsibility for Veronica be allocated to the Minister; that the maternal grandparents have responsibility for day to day care and minor medical and dental treatment; and that the paternal grandmother have responsibility for Aboriginal identity and cultural awareness. The independent legal representative also submits that the Court should make section 86 contact orders and section 82 reports.

18 There has been a history of conflict, animosity and mistrust between the maternal and paternal families, but their ability to resolve their differences seems to have been improving since the Dispute Resolution Conference held in October 2011 and as a result there is a more positive relationship developing between them. This more positive relationship has manifested itself in incident free handovers of the child at fortnightly and additional contacts. It is hoped this positive relationship will develop and continue into the future, for the interests of the child.

Submissions

Parental Responsibility

19 Dealing first with the question of parental responsibility, Mr Lawson for the Director-General, submits that the Minister should retain all aspects of parental responsibility for the child, due to the fact that a full assessment of the impact of Veronica's injuries cannot be made at this stage, as she is too young. Having regard to the unknown impact of her injuries, and her health and psychological needs in the future, he submits that, significantly, if health or psychological difficulties arise in the future whilst Veronica is in the maternal grandparents care, automatic assistance would be available to them if the child was under the parental responsibility of the Minister.

20 Mr Lawson further submits that an additional reason for the Minister retaining parental responsibility for the child, is the past hostile relationship between the families, conceding there have been recent improvements, but it is nevertheless necessary for the Minister to maintain parental responsibility in the event there is future conflict. Having had parental responsibility since these proceeding commenced, he submits that the Department has been able to deal with the problems in a positive way and work with the families. Mr Lawson submits that the Court cannot ignore the history of conflict when considering the question of parental responsibility, and having regard to the best interests of the child, it would be simpler, if conflict did arise in the future, that the Minister retained all aspects of parental responsibility.

21 In relation to the submissions made on behalf of the child and the paternal family, Mr Lawson says there is no need to allocate parental responsibility to the maternal family in respect of day to day care and control and minor medical and dental treatment, because they are approved designated carers, therefore they already have the authority to make the day to day decisions regarding the care of Veronica.

22 Finally Mr Lawson reminded the Court that the Children's Court Clinician, Martin O'Grady, recommended in his report dated 28 June 2011 that parental responsibility for Veronica remain with the Minister until the child attains the age of 18 years.

23 Mr Clack, for the mother, prepared written submissions, which I have read and considered. They are on file and I do not intend to re-state them in this judgment. In short, relying on the provisions of sections 9 and 79 of the Care Act and the decision of Magistrate Bone in the case of Re Sinead [2005] CLN 8, Mr Clack submits that under the circumstances of this case, with Veronica remaining with the maternal grandparents until the child attains the age of 18 years, allocating parental responsibility to the Minister would be too intrusive and complicated, and should be an order of last resort. Further that the orders proposed by the child's representative and the paternal family for diversifying parental responsibility are unnecessarily intrusive and overly complicated.

24 Ms Corbin, for the father, submitted that he had accepted that there was no realistic possibility of restoration and he supports the position of his mother in relation to the orders she is seeking.

25 Mr Robinson, for the maternal grandparents made oral submissions, which had been reduced to writing and are now are on file. I have also read and considered those submissions and I do not intend to re-state them all in this judgment.

26 In adopting a similar position to that of Mr Clack for the mother, Mr Robinson also relies on the provisions of sections 9 and 79 of the Care Act. He also relies on the decision of Magistrate Crawford in the 2004 case involving the Young children [2004] CLN 9; of Senior Children's Magistrate Mitchell, In the matter of Anthony [2008] NSWLC 21; of Justice McDougall in Re Liam [2005] NSWSC 75 (followed by Magistrate Crawford In the matter of Julian and Allen [2006] CLN 6; and In the matter of Tom [2007] CLN 4. I accept the propositions of law outlined in Mr Robinson's submissions.

27 In short, Mr Robinson submits that the maternal grandparents are in an awkward position if, when having Veronica placed in their care for the long term, they do not also have parental responsibility. The history of this case already demonstrates that in January 2011, when Veronica was placed in their care, she was removed following an incident at contact when the maternal grandfather, Stuart Jones, intervened to protect the child from a situation he regarded as impacting on her safety.

28 The requirements for the Court to consider whether permanency planning has been adequately addressed cannot be met, Mr Robinson submits, in a situation where the Department can remove Veronica from the maternal grandparents, on a whim of a Departmental caseworker. He submits that it is an unusual situation for the Department to seek parental responsibility to the Minister when a child is placed in long term care with the maternal grandparents.

29 Mr Robinson also submits that the history of conflict between the two families should not be a reason for them not having parental responsibility. He rejects Mr Lawson's submissions that parental responsibility be allocated to the Minister for the sake of simplicity or for the purpose of providing quick access to services if the need arises - such considerations falling outside the ambit of section 9 of the Care Act.

30 Mr Pottenger for the paternal grandmother also made oral and written submissions. Briefly put, he says that the paternal grandmother supports the child's placement with the maternal grandparents, but considers that it is appropriate for all aspects of parental responsibility to remain with the Minister.

31 Ms Muggenthaler, the child's independent legal representative, has submitted a draft minute of care order, setting out the position mentioned in paragraph 17 above. Ms Muggenthaler supports Mr Robinson's position that it is not necessary, having regard to the provisions of section 79 (3) and 9 (2) (c) of the Care Act, that all aspects of parental responsibility be allocated to the Minister, in light of the fact that a family kinship placement is available. The existence of tensions between the families is no need to allocate all aspects of parental responsibility to the Minister. Given those difficulties between the families, it would be necessary for the Minister to retain parental responsibility for contact, and Ms Muggenthaler submits, for major medical decisions.

Contact

32 Mr Lawson submits to the Court that the contact regime as set out in the Care Plan is working and the Department has no objections if the families arrange additional contact between them. He submits that the making of section 86 contact orders complicates the situation and does not provided flexibility as circumstances change in the future.

33 He further submits that the undertakings sought by Ms Muggenthaler, (non denigration), are not required because the Department could resolve any issues provided the Minister retains parental responsibility.

34 Mr Clack submits by allocating parental responsibility to the Minister in relation to contact, this should overcome any difficulties should conflict or hostilities re-emerge between the families in the future.

35 In relation to the question of supervision of the mother's contact, Mr Clack is critical of the Department maintaining a negative position in relation to the mother, who was a very young mother when Veronica was in her care and who was a victim caught in a cycle of domestic violence, fearing to go against the father. Since she has separated from the father, she has cooperated with the police. Mr Clack is also critical of the Children's Court Clinician report, which he submits is superficial regarding the basis of the conclusions reached by the clinician and is otherwise inconsistent with available evidence.

36 Mr Clack submitted that there have been sufficient positive changes in the mother's circumstances, since she has separated from the father, that the child's safety would not be compromised if the mother was permitted to have unsupervised contact with Veronica whilst ever she is in the care of the maternal grandparents, who would be alert to any safety concerns.

37 In the event that the Court is not prepared to order unsupervised contact for the mother, Mr Clack submits that the need for supervision should be reviewed on a six monthly basis and that section 82 reports be ordered in relation to the question of contact.

38 Ms Corbin, for the father, indicated that he supports the position of his mother in relation to the question of contact, and having regard to the history of hostilities between the families, some of which remain, it is therefore necessary for the Court to make contact orders.

39 Mr Robinson agrees with Mr Lawson that having regard to the possibility that the relationship between the families may worsen in the future, it is advisable for parental responsibility for contact to be allocated to the Minister. Having said this, Mr Robinson says that the maternal grandparents propose generous contact with the paternal family and this will become more generous in the future.

40 Mr Robinson submits that the maternal grandparents support the position that the circumstances of this case do not require that contact between the child and her mother be supervised, but in the event that the Court finds supervision to be necessary, then it should only be limited to contacts taking place in the evenings, and the requirement for supervision should remain in force for a shorter period than waiting until the child turns 5 years of age, as provided for in the Care Plan.

41 Mr Pottenger, for the paternal grandmother, supports the Department's position in relation to the need for the Department to act as an independent umpire if there are future troubles. Whilst supporting the draft minute of care order submitted by the child's representative, which provides for contact with the paternal grandmother, Mr Pottenger submits that because kinship ties are stronger in the Aboriginal community than within the non-Aboriginal community, then contact for one day each week would not be unreasonable. The fact that the parties live near each other would not cause any inconvenience if there was weekly contact.

42 Mr Pottenger submits that issues remain between the families and accordingly formal order regarding contact should be put in place and there should be formal contact schedules to avoid the necessity to bring the matter back to Court, and to ensure that the paternal family have sufficient contact with Veronica.

43 Ms Muggenthaler referred the Court to the draft minute of care order submitted by her in these proceedings, which sets out a contact schedule, and which provides the flexibility needed in this case.

44 Ms Muggenthaler supports supervision of the mother's contact until Veronica turns 5 years of age and thereafter the need for contact to remain supervised is to be reviewed annually by the Director-General.

Aboriginal identity and cultural awareness

45 Mr Lawson submitted that the Department would have no opposition to the Court making orders allocating parental responsibility for Aboriginal identity and cultural awareness to the paternal grandmother.

46 All other parties either support or do not oppose this position.

Conclusions

47 I have already indicated earlier in this judgment that I find that there is no realistic possibility of restoration of Veronica to either parent.

48 There is agreement between all parties that the child Veronica is to be placed with the maternal grandparents, Mary and Stuart Jones, until the child attains the age of 18 years. There are no identified risks with Veronica's placement with her maternal grandparent and the Court approves this placement. I find that the Care Plan adequately addresses the issue of permanency planning.

49 I am satisfied, considering the provisions of Section 9 (2) (c) of the Care Act, and having regard to the evidence and submissions, that allocating all aspects of parental responsibility to the Minister, in circumstances where Veronica is to be placed a long term family placement with the maternal grandparents, would be more intrusive in the life of the child and her carers than warranted, consistent with the paramount concern to protect her from harm and promote her development. In coming to this conclusion I reject the reasons outlined above, which were advanced by the Department in relation to all aspects of parental responsibility being allocated to the Minister, as being too tenuous under the circumstances.

50 I am satisfied, however, that it is appropriate, and again considering the evidence and submissions of the parties, having regard to the potential for the relationship between the paternal and maternal families to deteriorate in the future, that parental responsibility for contact be allocated to the Minister, until the child attains the age of 18 years.

51 I am also satisfied, consistent with the position of all the parties, that it is appropriate for parental responsibility for Aboriginal identity and cultural awareness to be allocated to the paternal grandmother, Vera Bell.

52 The question of contact orders pursuant to section 86 is a more vexed question. Only the paternal family and the child's representative support the making of section 86 orders. On balance I accept the submissions of Mr Lawson, Mr Clack and Mr Robinson that if the Minister is to retain parental responsibility for contact, then it should not be necessary for the court to make contact orders. Mr Robinson has submitted to the Court that the maternal grandparents are willing to allow generous contact with the paternal family.

53 Supervision of the mother's contact is also a difficult question. Mr Lawson did not cover this issue in his submissions, however, the Care Plan provides for supervision of the mother's contact by the maternal grandparents and for this to be reviewed annually, until the child attains the age of 5 years of age. Ms Muggenthaler also supports the mother's contact being supervised as just outlined. The mother and maternal grandparents adopt the opposite position, submitting that there is no need for supervision of the mother's contact with Veronica. In the event that the Court orders that such contact be supervised, it is submitted that the need for supervision to be maintained should be reviewed every six months, and Mr Robinson submits that supervision, if required, only be imposed for contacts in the evenings. Notwithstanding the strong arguments put forward by Mr Clack, the fact is that Veronica did suffer serious injuries in the mother's care, and she did not act to protect her from her father who, on the mother's account, shook Veronica violently on numerous occasions. On balance, I am satisfied that it is necessary to supervise the mother's contact, at least in the short term.

54 Under the circumstances and considering the position in relation to contact mentioned above, it is appropriate for section 82 reports to be prepared and filed in 6 and 12 months from the date of these orders, addressing the issues identified in Ms Muggenthaler's draft minute of care order, namely progress of the placement, the child's health and education, and contact with the mother and paternal family.

Orders

55 Accordingly I propose to make the following orders:

(1) Pursuant to section 79 (1) (iii) all aspects of parental responsibility, save contact and Aboriginal identity and cultural awareness, for the child Veronica are to be allocated to the maternal grandparents, Mary and Stuart Jones, until the child attains the age of 18 years;

(2) Pursuant to section 79 (1) (b) parental responsibility for contact to be allocated to the Minister until the child attains the age of 18 years;

(3) Pursuant to section 79 (1) (iii) parental responsibility for Aboriginal identity and cultural awareness to be allocated to the paternal grandmother, Vera Bell, until the child attains the age of 18 years, and

(4) The Department is to file reports to the Court, pursuant to section 82, in 6 and 12 months from the date of these orders, addressing the progress of the placement, the child's health and education, and contact with the mother and paternal family.

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Decision last updated: 14 June 2012