Children's Court New South Wales

• Medium Neutral Citation: Director of Family and Community Services v Jack [2012] NSWChC 7
• Hearing dates: 29 February and 13 March 2012
• Decision date: 13 April 2012
• Jurisdiction: Care and protection
• Before: Magistrate Christopher Bone

Decision

Parental responsibility for the child allocated to the Minister until the child reaches the age of eighteen years.

• Catchwords: CHILDREN - parental responsibility - realistic possibility - undertakings by father - criminal history of father - history of drug use by parents - child witness to violence - indications of neglect - likelihood that basic needs not being met - likely to suffer harm in the domestic environment - long-term placement with Aboriginal carer proposed - ss 9 and 79 of Care Act
• Legislation Cited: Children and Young Persons (Care and Protection) Act 1998; Child Welfare Act 1939
• Cases Cited: Re Leonard [2009] CLN 2; FaCS v Grant & ors (2009) CLN 10; L v Director of Family Services (1997) 22 FAM LR 275; CD v Chief Executive (2000) 27 FAM LR 19; Ex Parte Minister for Child Welfare: Re Hancock & Anor [1968] 86 WN (Pt 2) NSW 371; (1968) 1 NSWR 26; Re Saunders and Morgan & Anor v FaCS (2008) CLN 10
• Category: Principal judgment
• Parties: The Director of Family and Community Services; Mr Walker (the father); Ms Smythe (the mother); Jack (the child)
• Representation: Mr M.J Bartlett for FaCS (applicant); Mr Couchman on behalf of the mother; Ms J Heinz on behalf of the father; Mr M.P. Fitzgerald for the child
• File Number(s): 7b/11
• 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who is reasonably likely to involved or mentioned in Children's Court or non-Court proceedings in any capacity must not be published or broadcast in any form that may be accessible by a person in New South Wales whether the publication or broadcast occurs before any proceedings have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 Jack Ethan Walker was born on 3 July, 2009, and is the son of Simon Walker (occasionally referred to in some documents as Simon Harper) and Amanda Smythe. The parents lived together for about eighteen months, separating when Jack was somewhere between four and six months old. From that time until Jack was taken into care on 19 March, 2011, he spent about three months with his father and the balance of the time with his mother. Jack was living with his mother when taken into care. The application, which was filed in this court on 23 March, 2011, was based on grounds that Jack was, or was likely to be, physically or sexually abused or ill-treated, that his basic physical, psychological or educational needs were not being, or were not likely to be, met and that he was suffering or was likely to suffer serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which he was living.

2 A Family Law Act order was in existence at the time that Jack was taken into care, the essence of that order being that Jack was to live with his mother and that his father was to have contact.

3 At the time that Jack was taken into care, he was living with his mother and his half-sister, Kylie Cooper. Kylie, who was six at the time, is Ms Smythe's daughter by another father. An identical care application was made in relation to Kylie and she also was taken into care (her case is finalised). The decision by FaCS to remove the children was made because it was considered that they were at immediate risk of significant harm based on the following factors:

• The children had been exposed to a physical altercation between their mother and Samantha (Sammy) Walker, Jack's father's sister;

• Their mother was under the influence of drugs;

• There was a history of drug use by the mother and the two fathers;

• The home was unhygienic and unsafe;

• There was a history of physical and verbal altercations between the mother and the two fathers, those altercations occurring in the presence of the children, and

• The mother and the fathers had not responded adequately to attempts that FaCS had made to redress the problems.

4 FaCS' contention that Jack was a child in need of care was not opposed and a finding was accordingly made. It appears that the circumstances that have prevailed in relation to the litigation since that finding was made are quite complex. At one stage, Sammy Walker was given leave to appear as she indicated that she wished to have Jack live with her. At the commencement of the hearing, however, she did not appear and her solicitor was given leave to withdraw. The view of the parties who remain in the proceedings are as follows:

• FaCS ask that parental responsibility be given to the Minister until Jack is eighteen;

• The father asks that Jack be restored to his father over a period of not more than two years, that FaCS prepare a permanency plan to include the services to be provided to the father, undertakings to be made by the father and a timetable for restoration and that, until restoration is effected, parental responsibility for Jack is to be shared by the Minister and the father;

• The mother supports FaCS' position, and

• The child's solicitor also supports FaCS' position.

Simon Walker, the father

5 Simon Walker was, apart from FaCS officers, the only person to provide evidence. His evidence-in-chief was as follows. After he had separated from Jack's mother, Jack lived with Ms Smythe. The boy then lived with Mr Walker for about three months leading up until October, 2010. During that period Ms Smythe had obtained a recovery order from the Federal Magistrates' Court and police removed the child from Mr Walker. Mr Walker took proceedings in the Federal Magistrate's Court after the removal, the case was settled in December 2010, and Mr Walker was then able to have Jack with him on two nights a fortnight.

6 Mr Walker indicated that he had had a criminal history which included assaults, aggravated robbery and traffic offences although the only offences which he had committed in the last three years were traffic offences. He acknowledged that he had commenced using drugs unlawfully when he was thirteen but was currently free from drugs and was taking buprenorphine as part of his opoid replacement therapy. He was never a heavy drinker.

7 Mr Walker indicated that he had a daughter, Emily, to Deborah Phillips. Emily is eleven. Mother and daughter live in Queensland, Mr Walker has a good relationship with the mother, rings her every week and sees Emily during school holidays.

8 Mr Walker was concerned that Jack see his half-sister Kylie regularly as he had lived with her until his removal into care. He also pointed out that his sister, Sammy Walker, had assisted him with the care of Jack in the past, has two children of her own and was a good female role model for Jack. Mr Walker also indicated that his father lived in Queanbeyan and would provide support.

9 Mr Walker, who is currently serving a term of imprisonment for unlicensed driving matters, said that he was due to be released on 6 June, 2012, that he was undergoing the Smart Programme and the Relapse Prevention Programme while in custody, would be seeking employment and was prepared to comply with any requirements relating to supervision, drug-testing and parenting courses in an attempt to have Jack returned to him.

10 Mr Walker was cross-examined quite extensively. The following matters emerged from that cross-examination. Mr Walker began his current term of imprisonment in September 2011. He acknowledged that he had used heroin in the past. He confirmed that he had served a number of prison terms, receiving a sentence of six months for an offence of violence in 1999, three and a half years for aggravated robbery in 2002, twelve months with a four months non-parole period in 2005 and twelve months with a one month non-parole period for an assault and breach of apprehended violence order on Ms Smythe in 2009. Mr Walker said that he would, if Jack was with him, allow Ms Smythe to have contact unless that was vetoed by FaCS. Mr Walker indicated that he had undertaken a detoxification programme.

11 Mr Walker produced a Triple P certificate which had been awarded to him in June 2011, in recognition of his having completed a positive parenting programme (Indigenous triple P). The course involved, in particular, issues relating to health and bonding for children up to two years old.

FaCS evidence relating to Mr Walker

12 The bulk of evidence from FaCS related to the relationship between Jack and his mother and to his mother's shortcomings. Some of the evidence relating to Mr Walker is as follows. Mr Walker has exposed Jack to domestic violence as he had conflict with the mother and this domestic violence has included both verbal and significant physical violence (ex. 1 p.19). Mr Walker did not protect Jack from Ms Smythe in that he failed to remove the child from her (ex. 1 p. 19). Mr Walker has a history of drug use which has caused risk to Jack (ex. 1 p. 19). A care plan prepared in October, 2011, stated that the relationship between Jack and his father had been positive although Mr Walker had limited insights as to how to put limitations in place to adequately parent Jack (ex. 9 p.9). The plan stated, as an objective, the maintenance of contact between Jack and Mr Walker so that they could have a meaningful and healthy relationship (ex. 9 p. 13).

13 Ms Jasna Putica, a child protection worker with FaCS, gave evidence. She is the personnel currently tending to the case but she succeeded another person in this regard. She accepted that, on occasions, when matters adverse to Ms Smythe's care of Jack resulted in FaCS' intervention, FaCS had placed Jack with Mr Walker on a temporary basis. She was not aware of any material which suggested that Mr Walker was a worse than average parent although she had concerns about his past drug history and the fact that he was prepared to leave the child with Ms Smythe. Ms Putica said, in cross-examination, that a person in Mr Walker's position would need to do or demonstrate a number of things to establish that he was a fit person to care for a child:

• obtain appropriate accommodation;

• obtain the support of relevant services;

• co-operate with FaCS;

• demonstrate appropriate parenting ability over a long period;

• be free from drugs, reside in an appropriate social environment, and

• be the subject of an appropriate psychological survey.

Ms Putica adamantly expressed her opinion that parental responsibility should go to the Minister because it was essential that the child had stability. She did concede, however, that if a final order was made giving parental responsibility to the Minister, Jack would be moved from his current carer to a long-term Aboriginal carer.

Submissions

14 The submission made on behalf of FaCS' contention that parental responsibility should be with the Minister highlighted the following matters:

• the child is two;

• the father is in gaol until June;

• the father has a long criminal history, he has a history of violence and long-term drug abuse involving cannabis and heroin (he was in detoxification when Jack was taken into care);

• he has no history of stable accommodation;

• he supported his sister's position that she should care for the child (implying that he was unfit to do so), and

• he failed to take adequate steps to protect Jack from Ms Smythe's neglect and abuse and he would still be prepared to leave the child with her.

15 The submission made on behalf of the father that an order should be made that would enable the father to have Jack returned to him in the short to medium future emphasised the fact that Ms Putica had stated that if a final order was made giving parental responsibility to the Minister, Jack would be moved to a long-term Aboriginal carer. There was, therefore, going to be a change to Jack's environment one way or another and a need to maintain stability could not be a feature of the case. The only feature of the case was the father's ability and adequacy to care for Jack. Ms Heinz highlighted the following matters:

• the father knows that he had drug issues and the fact that he went into a detoxification programme demonstrates an insight into the fact that he knows what he has to do to address that problem;

• the father is in prison for traffic offences and has not committed an act of violence since Jack was born, and

• the father will address matters that relate to the appropriate care of a child and, to the extent that he may not have done so in the past, he had not been told what he had to do to have the child returned to him.

• A reference was made to Re Leonard [2009] CLN 2 in which Mitchell SCM, said:

"A court is unlikely to be satisfied merely because a party is about to begin or is contemplating commencing a process from which a realistic possibility of restoration might or might not emerge. It is for that reason that the court usually looks for 'runs on the board' and some success, already achieved, in addressing parenting defects".

• Ms Heinz said that the father had "runs on the board" - he had made an application for accommodation on his release from prison, he has been drug free for twelve months, he is no longer in a tempestuous relationship and he had the child at different times prior to the filing of the present application and there were no adverse reports received by FaCS during those times.

16 The submission made on behalf of the mother that parental responsibility should be with the Minister was wholly in writing and highlighted the following matters:

• the father is in prison, will not be released for some months and has a long history of crimes of violence, the most recent being an assault upon Jack's mother;

• the father was vague when first asked about his criminal history,

• the father has a lengthy history of drug use and has not completed a drug rehabilitation programme, there is some evidence in the FaCS papers that the father provided drugs to the mother, the father knew that the mother used drugs and could not properly care for Jack but he returned the child regularly after periods of contact, he consented to a Family Law Act order which placed the child with the mother even though he was fully aware of the mother's difficulties in caring for Jack,

• the father has no guarantee of reasonable accommodation following his release from prison and there is no evidence from family members to support his contention that they will assist him with the child.

Mr Couchman referred to FaCS v Grant & ors (2009) CLN 10 (a decision of Marien J PCC, in the Parramatta Children's Court on 14 August, 2009) which discussed the principles to be applied in such a case and he finalised his submission by saying "the father's application .......... is entirely fanciful and based on expressed intentions and hopes rather than on a realistic possibility" and (referring to the reference in Re Leonard to "runs on the board") "far from having 'runs on the board', it could be said that the father has yet to even strap on his pads and pick up the bat".

17 The submission made on behalf of the child that parental responsibility should be with the Minister highlighted the following matters:

• although there is a possibility of restoration, it could not be suggested that it is as high as realistic;

• the father's accommodation prospects are unresolved;

• there has been long-term drug use which has not been finally addressed, and

• the father stresses that he has family support but there is no evidence from those family members.

Mr Fitzgerald completed his submission by stating that "there are too many question marks" to justify the order sought by the father.

Legal Principles

18 The most relevant statutory provisions relating to the issues concerning a final order are to be found in s 79 and s 9 of the Children and Young Persons Care and Protection) Act 1998 (the Care Act).

19 Relevant parts of section 79 of the Care Act state:

(1) If the Children's Court finds that a child or young person is in need of care and protection, it may:

(a) make an order allocating the parental responsibility for the child or young person, or specific aspects of parental responsibility:

(i) to one parent to the exclusion of the other parent, or

(ii) to one or both parents and to the Minister or another person jointly, or

(iii) to another suitable person, or

(b) make an order placing the child or young person under the parental responsibility of the Minister.

(2) The specific aspects of parental responsibility that may be allocated by an order of the Children's Court include, but are not limited to, the following:

(a) the residence of the child or young person,

(b) contact,

(c) the education and training of the child or young person,

(d) the religious upbringing of the child or young person,

(e) the medical treatment of the child or young person.

(3) The Children's Court must not make an order allocating parental responsibility unless it has given particular consideration to the principle in section 9 (d) and is satisfied that any other order would be insufficient to meet the needs of the child or young person.

20 Relevant parts of section 9 of the Care Act state:

The principles to be applied in the administration of this Act are as follows:

(a) In all actions and decisions made under this Act (whether by legal or administrative process) concerning a particular child or young person, the safety, welfare and well-being of the child or young person must be the paramount consideration. In particular, the safety, welfare and well-being of a child or young person who has been removed from his or her parents are paramount over the rights of the parents.

(b) Wherever a child or young person is able to form his or her own views on a matter concerning his or her safety, welfare and well-being, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child or young person and the circumstances.

(c) In all actions and decisions made under this Act (whether by legal or administrative process) that significantly affect a child or young person, account must be taken of the culture, disability, language, religion and sexuality of the child or young person and, if relevant, those with parental responsibility for the child or young person.

(d) In deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child's or young person's development.

(e) If a child or young person is temporarily or permanently deprived of his or her family environment, or cannot be allowed to remain in that environment in his or her own best interests, the child or young person is entitled to special protection and assistance from the State, and his or her name, identity, language, cultural and religious ties should, as far as possible, be preserved.

21 There is nothing in the Act which specifically indicates that a child should remain with a parent unless the court is positively satisfied that such a placement would be contrary to the child's best interests. The statutory provisions outlined above, however, suggest to me that an order giving responsibility of a child to the Minister should only be made as an order of last resort. The majority of children are raised by their parents, the relationship between parent and child is one of the closest, if not the closest, of all relationships and the mere fact of the relationship will invariably receive substantial weight in any given case. This view receives support from decisions of the High Court and courts in the Australian Capital Territory and New South Wales. In L v Director of Family Services (1997) 22 FAM LR 275, Higgins J said, in referring to the removal of children from the care of parents:

"It cannot be emphasised too strongly, in my view, that the best interests of a child require the ............... powers of the State to intervene between a child and his or her family only where not to do so creates an unacceptable risk of real harm, mentally or physically to that child. To do otherwise is simply to cause serious harm on the pre-text of doing good".

This approach was supported by Crispen J, in CD v Chief Executive (2000) 27 FAM LR 19. It was also the view maintained by the New South Wales Supreme Court in Ex Parte Minister for Child Welfare: Re Hancock & Anor [1968] 86 WN (Pt 2) NSW 371; (1968) 1 NSWR 26. In that case the court was dealing with an application under s 82 of the Child Welfare Act 1939, which contained provisions similar to the legislation which I am considering. The court was specifically considering the impact of making an order which would deprive parents of their child and Herron CJ, said " ............... a court should not make such an order unless it is satisfied that no other course under s.82 would have been better suited to the occasion". Much the same view was expressed by the High Court in Minister for the Interior v Neynes (1964) 113 CLR 411.

22 Ms Heinz referred in her submission to the Children's Court Practice Note 4. That practice note endorses the views expressed by the judges of the superior courts. The preamble to the practice note states:

"Community Services is undertaking a twelve month pilot project ........ to increase the use of short term care orders with the aim of keeping children in the care of their families or restoring children to .......... their families in an expeditious manner and avoiding long term care orders wherever possible".

23 As previously indicated, the representatives of the parents referred in submissions to FaCS v Grant & ors and Re Leonard. I have already quoted a passage from Re Leonard. That passage was considered and its thrust was supported by the President of the Children's Court in FaCS v Grant & Ors, and by Johnstone DCJ, in Re Saunders and Morgan & Anor v FaCS (2008) CLN 10.

24 It is clearly the case that courts make orders depriving parents of responsibility for their children only as a matter of last resort.

Conclusion

25 As previously indicated, Ms Putica adamantly expressed her opinion that parental responsibility should go to the Minister because it was essential that the child had stability. Also as previously indicated, Ms Heinz submitted on the father's behalf that Ms Putica had stated that if a final order was made giving parental responsibility to the Minister, Jack would be moved to a long term Aboriginal carer, there was, therefore, going to be a change to Jack's environment one way or another and a need to maintain stability could not be a feature of the case, the only feature of the case was the father's ability and adequacy to care for Jack. There is no doubt that Jack is going to moved - if the application of FaCS is successful, he will be moved virtually immediately to a long term carer; if the father's application is successful he may or not be moved from his current carer (there was no evidence on that point) but he would be moved into the care of his father when the father was able to properly care for him. I am inclined to think, under those circumstances, that as Jack's stability is going to be affected in any event, that issue is not as important as it might otherwise be. I do accept, however, that the child's interests would not be well served if he was to remain where he was for a further lengthy period only then to find that his father was not a suitable carer and that he was to be placed elsewhere. The child must, one assumes, be bonding with his current carers but that situation is going to end and, within reasonable limits, the sooner it ends the better for the child.

26 There is no evidence whatsoever that Mr Walker has treated his son badly. Mr Walker has, during the short time that his son was in his physical custody, provided the boy with adequate food, shelter and clothing and has not hurt him or neglected him. His greatest failing as a parent has been to leave Jack with a mother who did neglect the child and who Mr Walker knew was neglecting the child. When Family Law Act proceedings were commenced by the mother Mr Walker consented to an order placing the child with Ms Smythe.

27 The proposal put forward by Mr Walker is obviously based upon an acceptance by him that he cannot adequately care for Jack at present and will almost certainly not be able to do so immediately upon his release from prison. The future cannot be predicted with certainty but it is reasonable to look at the past in an attempt to make a prediction as to the future. Mr Walker has spent considerable periods in prison and has had a significant drug problem for many years. He asserts that he has now conquered his drug problem but there is little of an objective nature to support that contention. He was undergoing a detoxification programme when Jack was taken into care in March 2011 and he himself went into prison in September 2011. There is no evidence that he used drugs in the intervening period but it is difficult to accept, in the absence of corroborative evidence, that he overcame, in that short period, the deep-seated habit of many years. Mr Walker asserts that he will have family support as a parent but there is no evidence to corroborate that assertion.

28 Mr Walker cannot care for Jack at present and, in my opinion, there is no realistic possibility that he will be able to do so in the foreseeable future.

29 An order will be made allocating parental responsibility to the Minister until Jack attains his eighteenth birthday.

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Decision last updated: 15 June 2012