Children's Court New South Wales

• Medium Neutral Citation: Community Services (NSW) and the Knoll Children [2014] NSWChC 6
• Hearing dates: 5 August 2014 at Ballina and 16 - 17 September 2014 at Parramatta
• Decision date: 01 October 2014
• Jurisdiction: Care and protection
• Before: Judge Peter Johnstone, President of the Children's Court of New South Wales

Decision

Application by paternal grandmother dismissed

• Catchwords: CHILDREN - Care and Protection - application under s 90 of the Care Act for variation of final Care orders - whether previous orders should be varied so as to make specific orders for contact with the paternal grandmother and aunt under s 86
• Legislation Cited: Children and Young Persons (Care and Protection Act) 1998
• Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; Director-General of Department of Community Services; Re "Sophie" [2008] NSWCA 250; George v Children's Court of NSW [2003] NSWCA 389; In the matter of Helen [2004] CLN 2; Johnson v Page [2007] Fam CA 1235; M v M [1988] HCA 68; Re Felicity (No 3) [2014] NSWCA 226; Re Liam [2005] NSWSC 75; Re Tracey [2011] NSWCA 43
• Category: Principal judgment
• Parties: The Secretary, Department of Family and Community Services (DFaCS); The Children; The Paternal Grandmother; The Carers
• Representation: Ms C Delaney, solicitor, for the Secretary; Ms S Ryder, solicitor, for the Children; Mr G Donaghy, solicitor, for the Paternal Grandmother; Mr M Anderson, of counsel, for the Carers
• File Number(s): 2014/34 - 35
• Publication restriction: Pseudonyms have been used in order to anonymise the children and parties

Judgment

Background to the present proceedings

1 These proceedings concern two young children, Felix and Clark Knoll, who were taken into care by the Secretary of the Department of Family and Community Services (DFaCS) under the Children and Young Persons (Care and Protection) Act 1998 (the Care Act) on 14 October 2009.

2 In December 2009, shortly after their removal, the children were placed into the care of Lucas and John Bollard, who had been in a long-term relationship for over 17 years.

3 Care Plans were filed in the Children's Court, in which the Secretary assessed that there was no realistic possibility of restoration of the children to their parents and proposed that they be placed with the carers permanently. The Court approved the proposed permanency planning and made final Care orders on 29 July 2010 placing the children under the parental responsibility of the Minister till age 18.

4 The children have been in the care of Lucas and John Bollard (the carers) ever since. Thus, they have been in the continuous care of these carers for a period of some 4¾ years.

5 There were no specific orders made by the Court in respect of contact. The approved permanency planning, however, made provision for contact with the birth parents and with the paternal grandmother, Gina Rumble, the Applicant in the present proceedings.

6 Specifically it was recommended that there be a minimum of 4 contact visits per annum with the paternal grandmother in addition to 4 contact visits with the birth mother and 4 contact visits with the birth father.

7 Initially, in the 7 months between their removal and the final orders made on 29 July 2010, the children had regular supervised contact with the paternal grandmother, largely on a fortnightly basis and mostly in the Lismore area, near to her place of residence.

8 Over the next 4 years, however, since the final orders, there has been contact between the boys and their paternal grandmother on only 9 occasions, that is, about twice per annum.

9 Up until late December 2013, the carers resided with the children in the Lismore area. On 27 December 2013, following discussions with the Department, the carers relocated with the children to Sydney.

10 Shortly thereafter the paternal grandmother filed the present application under s 90 of the Care Act, on 18 March 2014, seeking leave on behalf of herself and the paternal aunt, Carolyn Rumble, to apply for rescission of the final Care orders made on 29 July 2010, with a view to the Children's Court making orders for contact under s 86. Originally, the paternal grandmother sought an order for minimum unsupervised contact with the boys to take place with her and the paternal aunt, in the Lismore area, 6 times a year for a period of 6 hours on each contact occasion (her affidavit of 18 March 2014 at [4]). The frequency of contact sought was subsequently reduced to 4 occasions per annum.

11 It is to be noted that the contact sought is in addition to any other contact that might occur between the children and their mother. (At the present time, no contact is occurring between the children and their father.)

12 The original parties to the present application were the paternal grandmother as the Applicant, the Secretary of DFaCS, and the children (represented by an independent children's lawyer appointed by the Court). The carers were subsequently joined as parties pursuant to an order made by the Court on 10 July 2014.

The issues in the present proceedings

13 Felix is now 8 and Clark is now 6. They are currently under the parental responsibility of the Minister.

14 They have been in the continuous care of the current carers for a period of some 4¾ years. It is clear that they are thriving in that environment.

15 The birth father has not been involved in the present proceedings. It was undisputed that he has ongoing personal problems involving drug dependence, mental health problems, violence, and anger management issues. His contact with the children has been suspended for some time, and the paternal grandmother has an AVO in her favour against him. According to her, she has been the victim of threats made against her by her son as recently as the last few weeks.

16 Nor is the birth mother involved in the present proceedings, although an affidavit by her was read, in which she indicates her support for the application made by the paternal grandmother. In 2012 she unsuccessfully applied to the Children's Court seeking rescission of the final Care orders made on 29 July 2010, with a view to having the children restored to her care. She remarried in 2013 and has had a further child. She now lives in Queensland with her new husband and child.

17 Prior to 2014, the carers were residing in the northern rivers area, but relocated with the children to Sydney in late 2013. They maintain that the primary purpose of the move was to enhance the boys' schooling opportunities.

18 The paternal grandmother and aunt complain that the relocation was attended by deception and secrecy, and that the birth family was not consulted about the proposed move, which was only communicated subsequent to the move, as a fait accompli.

19 In her affidavit, the birth mother stated that she was not consulted in relation to the proposed move by the carers to Sydney, and only found out when she received a letter from the Department on 13 January 2014, after the move had already taken place.

20 There is also controversy surrounding the circumstances of the relocation, including the basis upon which approval for the move was given by the Department, as the Minister's delegate, it being the paternal grandmother's contention that the carers deceived the Department about the proposed duration of the relocation.

21 The paternal grandmother contends that the prompting for her application was the discovery that the children had been moved away from the Lismore area without any consultation with the birth family.

22 It was also submitted on her behalf that the true focus for the relocation was to remove the birth family, and indeed the Department, from the lives of the children.

23 It is the paternal grandmother's case, supported by the paternal aunt, that they have been systematically frustrated in their attempts to have contact with the children from the time of the final Care orders, that the supervision of the contact they have been allowed diminishes the quality of their interaction with the children, and that they are missing out on watching the children grow and reach milestones in their lives. The position has been exacerbated by the children's move to Sydney, which has created additional obstacles and difficulties to contact, having regard to their financial circumstances.

24 She contends that the history of obstruction and poor communication in connection with contact, and the fractious and disharmonious nature of the relationship between the carers and the Department dictates a need for certainty in the form of specific, mandated contact.

25 It is the paternal grandmother's case that 6 contact visits for the children per annum with her and the paternal aunt is in the children's best interest with a view to them maintaining a relationship with them.

26 It was further submitted that neither the paternal grandmother nor the paternal aunt poses any risk to the children that necessitates any need for contact to be supervised. It is unreasonable to suggest that the paternal grandmother and aunt should incur the cost of travelling to Sydney for contact, and that it should be required to occur in the Lismore area, as before the children were relocated. Given the geographical disparity that now prevails, it is also appropriate to require that the contact visits be of longer duration, and that a period of 6 hours for each visit is appropriate and reasonable.

27 The application by the paternal grandmother for specifically mandated contact, in the terms indicated, or at all, is opposed by all other parties. Their primary position is that the existing arrangements are sufficient to meet the needs of the birth family, that the contact sought would be excessive, unduly onerous and disruptive for the children. The current arrangements are adequate to ensure the children maintain a sense of identity and to form a realistic view of their birth family. The carers have consistently co-operated and facilitated appropriate and sufficient contact with the birth family, and intend to continue doing so in the future.

28 The other parties also question her motives for bringing this application and suggest it is less than genuine, having regard the history and the apparent disinterest of the paternal grandmother in the children and a lack of genuine attachment between them, evidenced for example by the absence of letters to them, and her unwillingness to avail herself of opportunities for contact, particularly in conjunction with the hearing of these proceedings at Parramatta. They point also to her lack of co-operation with the carers, in particular her refusal to provide information to the carers to enable them to complete the children's Life Story Books.

29 It is contended that the need for supervision of contact with the paternal grandmother remains, having regard to her history, including her treatment of her own children when they were growing up, the risk of her undermining the placement, and the need for the children to be supported during contact.

30 Nor can it be ignored that the present application has been brought against the background of a process commenced with a view to the carers adopting the children.

The applicable legal framework

31 I now proceed to briefly outline the legal framework within which these issues are to be addressed and determined by the Court.

32 The proceedings are brought pursuant to the Care Act, which governs all aspects of care and protection in New South Wales, both administrative and legal, including proceedings before the Children's Court.

33 The provisions of the United Nations Convention on the Rights of the Child 1989 (CROC) are capable of being relevant to the exercise of discretions under the Care Act: Re Tracey [2011] NSWCA 43. Most, if not all, of the provisions in CROC have been incorporated into or are reflected in the Care Act. The circumstances in Re Tracey were unusual and unique.

34 The parties in the present matter made no submissions based on the Convention. There was, therefore, no suggestion that this Court needed to take into account any provision in CROC such that there was some different requirement, some additional principle, or some gloss that required the Court to have particular regard to in determining this case, such that I was required to go beyond the Care Act and the case law interpreting that Act and the relevant provisions.

35 The Care Act contains a number of important Objects, which are set out in s 9. These Objects are intended to give guidance and direction in the administration of the Act. The Objects of the Care Act are set out in s 8, which provides:

(a) that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and

(b) that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and

(c) that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment.

36 The Care Act is required to be administered under the principle that the safety, welfare, and well-being of the children are paramount (the paramount concern): s 9(1) of the Care Act. Subject to that, the Care Act sets out other, particular principles to be applied in the administration of the Act. These are set out in ss 9(2), 10, 11, 12 and 13. Principles of potential relevance to the present matter include the following. The provisions concerned include the following:

• Any action to be taken to protect the children from harm must be the least intrusive intervention in the life of the children and their family that is consistent with the paramount concern to protect them from harm and promote their development: s 9(2)(c).

• Any out-of-home care arrangements are to be made in a timely manner, to ensure the provision of a safe, nurturing, stable, and secure environment, recognising the children's circumstances and that, the younger the age of the child, the greater the need for early decisions to be made s 9(2)(e).

• If a child is placed in out-of-home care, the child is entitled to a safe, nurturing, stable and secure environment. Unless it is contrary to his or her best interests, and taking into account the wishes of the child, this will include the retention of relationships with people significant to the child, including birth or adoptive parents, siblings, extended family, peers, family friends and community.

37 It is now well settled law that in all decisions under the Care Act 1998 involving the paramount concern for the safety, welfare and well-being of a child, including issues of removal, restoration, contact, custody and placement, the proper test to be applied is that of "unacceptable risk to the child": M v M [1988] HCA 68 at [25].

38 Whether there is an "unacceptable risk" of harm to the child is to be assessed from the accumulation of factors proved according to the relevant civil standard, as discussed above: see Johnson v Page [2007] Fam CA 1235.

39 Care and protection proceedings are not to be conducted in an adversarial manner, and are to be conducted with as little formality and legal technicality and form as the circumstances permit: s 93.

40 The Court is not bound by the rules of evidence, unless it so determines, and in this matter it did not make such a determination.

41 The standard of proof is on the balance of probabilities: s 93(4) of the Care Act.

42 The High Court decision in Briginshaw v Briginshaw [1938] HCA 34 is relevant in determining whether the burden of proof, on the balance of probabilities, has been achieved: Director-General of Department of Community Services; Re "Sophie" [2008] NSWCA 250.

43 The present application is brought pursuant to leave granted on 10 July 2014 under s 90 of the Care Act. If the Court is satisfied that it is appropriate to do so it may vary or rescind previous Care orders and make any one of the orders that it could have made in relation to the child had an application been made to it with respect to the child: s 90(7).

44 Before making an order to rescind or vary a Care order that places a child or young person under the parental responsibility of the Minister, the Children's Court must take the following matters into consideration: s 90(7).

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

(b) the wishes of the child or young person and the weight to be given to those wishes,

(c) the length of time the child or young person has been in the care of the present caregivers,

(d) the strength of the child's or young person's attachments to the birth parents and the present caregivers,

(e) the capacity of the birth parents to provide an adequate standard of care for the child or young person,

(f) the risk to the child or young person of psychological harm if present care arrangements are varied or rescinded.

45 The paternal grandmother seeks orders under s 86 of the Care Act, which provides as follows:

"86 Contact orders

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

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

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

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

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

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

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

46 The issue of appropriate contact for children who have been permanently removed from the care of their parents, particularly young children, remains vexed.

47 The Report of the Special Commission of Inquiry into Child Protection Services in NSW (the Wood Report) recommended that evidence based guidelines for contact orders be developed by the Children's Court to assist judicial officers and to achieve a greater degree of consistency in the kinds of matters taken into account when making contact orders in Care proceedings.

48 In response to that recommendation the Children's Court issued Contact Guidelines in 2011 designed to provide assistance to judicial officers, practitioners and parties, which were based upon available research and the Court's "accumulated expertise and experience as a specialist court" in Care proceedings. The guidelines were tendered in these proceedings and are relied on by the Secretary, the carers and the independent legal representative of the children.

49 Some relevant statements in the guidelines are:

"For some children the benefit of contact will be primarily that they understand who they are in the context of their birth family and cultural background. Contact might also help ensure that the child has a realistic understanding of who their parent is and that the child does not idealise an unsuitable parent and develop unrealistic hopes of being reunited with the parent."

"The focus must always be on the needs of the child and what is in the best interests of the child. How will the child benefit from contact with parents and siblings? Some benefit may be achieved over a long term, i.e. by providing the foundation for a relationship between the child and the parent which will develop later."

"Younger children will usually need more frequent contact for a shorter duration than older children to maintain a relationship. Younger children especially should not be subjected to long travel to attend contact."

"Sometimes a carer will live some distance from the parent either because the care could not be found in the local community or because a parent has changed address. Ordinarily the onus should be on the parent to travel to the contact rather than having the child travel,especially younger children. If a parent is to be travelling, cost issues might need to be addressed. Enquiries should be made as to whether the Department can assist the parent with the cost of travelling to contact."

"Children and carer families will have their own commitments and patterns involving such things as sport, cultural activities, spending time with friends and church attendance."

"It is important to ensure that a child is not made to feel greatly different from others in the household because they are at contact rather than participating in carer family events. It is also important that the child does not resent attendance at contact because it takes them away from something that they enjoy doing."

"It is very important to see children in the context of their extended family and not just their parents. Particular attention should be paid to supporting sibling relationships. Even if extended family members are unable to care for a child it is still likely that contact will be beneficial - providing information and family and cultural identity. Existing healthy relationships should be supported even if a child is to remain in out-of-home care."

"Balancing extended family contact and placement stability and normality requires careful consideration. For example, what would be usual contact with grandparents if the child were not in care?"

"Contact can occur in other ways than face-to-face. In some situations it will be necessary to limit or prohibit indirect contact or to ensure that it is supervised. It may also be necessary to prohibit a parent from making any reference to the child on a social networking website. Alternatively, especially if the parent is at some distance from the child, the use of electronic communication should be encouraged."

"A long-term contact order may create problems as a child's circumstances change, particularly if the contact is to be relatively frequent. School, sport, cultural activities and friendship dynamics are just some of the factors which change over time. As a child gets older less frequent but longer contact may be appropriate."

"The need for contact to be supervised may also change as the child and the parents' circumstances change."

"For many parents and children it is difficult to predict future circumstances, particularly if a specific long-term carer has not yet been identified. Care should be exercised in ensuring that an unduly limiting contact order is not made. It may be preferable to ensure that plans for contact are clearly set out in the Care Plan without contact orders being made."

"Where a child has been removed from his or her family as a result of physical or sexual abuse, contact visits will most likely need to be supervised in order to ensure the safety of the child. If there has been trauma caused by a parent a child may not feel safe unless contact is closely supervised."

50 There are some relevant judicial pronouncements that guide the resolution of the issues in the present matter, including the decisions in Re Liam [2005] NSWSC 75, George v Children's Court of NSW [2003] NSWCA 389, and Re Felicity (No 3) [2014] NSWCA 226 at [42].

51 Specifically, in Re Liam it was held:

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

52 It was held in George:

"It is to be noted that s 86 makes no reference to the making of contact orders against the Minister, even though "contact", by s 79(2) is part of parental responsibility. Moreover, while s 79 provides that parental responsibility may be allocated to the Minister, there is no provision under the (Care Act) for parental responsibility to be allocated to the (Secretary)": [84].

"It is to be noted that, while s 86(2) provides for the making of orders that contact be supervised by the (Secretary), the section says nothing about the detail of orders that can be made against the (Secretary) for the purposes of giving effect to an order for supervision. In particular, the section does not provide that the (Secretary) may be ordered to provide support or services as part of a contact order": [85].

"In essence, the allocation of money and other resources for the care and protection of children and young persons is a matter of policy.

It is preferable that such policy decisions be made by the body vested with the administrative responsibility for the proper use of the resources in question, and not by a court on an ad hoc basis": [130].

"...all parents have to make choices in regard to their children. These choices involve such matters as the place of family residence, the kind and place of education each child is to receive, and the kind and standard of medical treatment each child is to receive. The number of choices that parents are required to make through the lifetime of their children is infinite. While parents will ordinarily have the welfare of their children at heart, the choices that parents will make will be dictated, largely, by the funds that they have at their disposal. It would be unthinkable to compel parents to make choices which they could not afford simply because those choices would advance the interests of a child": [133].

"...the same approach has to be taken when parental responsibility is allocated to the Minister pursuant to the (Care Act). What is in the best interests of the child one would readily expect to be left to the discretion of the Minister and the (Secretary), having regard to the limited funds allotted to DOCS for the protection of children in need of care, generally": [134].

"In my opinion, the (Care Act) provides exclusively and exhaustively for the relief the Children's Court may order arising out of obligations imposed on the (Secretary), (and the Minister) by that Act, and that Act imposes limitations on the power of the Children's Court to grant such relief": [138].

"For the reasons I have expressed, I conclude that the supply of services and support by the (Secretary)...was a matter that fell within the discretion of the (Secretary)..., and (in the absence of the agreement of the Secretary) the Children's Court was not empowered by s 74(3) or s 86 of the (Care Act) (or any other part of that Act or the Children (Care and Protection) Act, to order DOCS or the (Secretary), to provide the services, the subject of the challenged order": [140].

53 There continues to be a wide range of opinion as to the value of contact.

54 Perceived benefits to be derived by children from contact include developing and continuing meaningful relationships. On the other hand, contact can have an unsettling effect on a child, act as a distraction, impede attachment to new carers, and disrupt the placement.

55 It is generally accepted that a child benefits from some contact with the family of origin (except in extreme cases). Much depends on the level of trust and co-operation that exists between the carers and the birth family. In some cases the birth family can play a positive and supportive role. In other cases, members of the birth family can put the stability of the placement at risk.

56 There is a strong body of opinion that contact should not interfere with a child's growing attachment to the new family. The younger the child, and the less time the child has been with the birth parents, the less the need for other than minimal contact, for identification purposes.

57 Conventional wisdom is to the effect that sufficient 'identification' contact consists of 4 contact occasions per annum for 2 hours each, and that anything more has the potential to distract and become disruptive to the placement. It follows that contact with more remote members of the birth family should be even less.

58 The issue of contact in Care cases requires the consideration of a range of factors, having regard to the exigencies and circumstances of the particular case, both advantageous and disadvantageous, and balancing the benefits against the risks, the primary focus being on the needs and best interests of the child, and any risk of unacceptable harm: In the matter of Helen [2004] CLN 2.

59 The decision should be based on relevant, reliable and current information.

60 Factors include the level of attachment to the relevant member of the birth family, the degree of animosity displayed by the birth family against the carers, the level of demonstrated co-operation and engagement with the carers, and the commitment to supporting the placement, the degree of any abusive experience while in the care of the birth family and any ongoing emotional sequelae, the competing demands of the children's educational, cultural, social and sporting activities, the proposed location of the contact, the travel and other disruption involved, the quality of the contact, the safety of the children during contact, and any other risk factors associated with contact, including the potential for denigration of the carers or other undermining of the placement, and the potential for other negative persons or influences to be present at the visit.

61 Preferably, contact should be left to the discretion of the person having parental responsibility, taking into account the advice of any professionals retained to assist with the children and the views of all those affected, including the children themselves (having regard to their age, their level of emotional and psychosocial development, and other factors).

62 The regime for contact should be flexible, recognizing that circumstances change as children grow older and their emotional, social and other needs develop.

63 The introduction of s 86 into the Care Act in 2000 permitted the Children's Court, for the first time, to make contact orders beyond the life of the particular proceedings. The section does not, however, create any right or other entitlement to contact in Care cases. Nor, in my view, does it create any presumption that contact should exist. Contact, although recognised in s 9(2)(f), remains subject always to the safety welfare and well-being of the child. An order under s 86 mandating contact arrangements should, therefore, only be used sparingly, in cases of demonstrated need, such as intransigence, inflexibility, or a failure to have proper regard to the needs and best interests of the child.

The historical background

64 I will now briefly relate the historical background relevant to the issues relating to contact raised in the present proceedings.

65 As previously noted, the original Care Plans approved as part of the permanency planning at the time of the final Care orders made on 29 July 2010 contemplated a minimum of 4 contact visits per annum with the paternal grandmother in addition to 4 contact visits with the birth mother and 4 contact visits with the birth father.

66 The paternal grandmother maintains she was unaware of the arrangements in the original Care Plans for contact between her and the children. That struck me as somewhat odd, given that her solicitor, Mr Donaghy, represented the mother in her restoration application in 2012.

67 The first contact visit attended by the paternal grandmother with the children following the final Care orders occurred on 20 September 2010 at the Lismore CSC. Also in attendance were the father and others, including the paternal aunt. The contact was supervised by a Departmental caseworker.

68 The second contact visit attended by the paternal grandmother after the final Care orders did not occur until 7 July 2011. This again took place at the Lismore CSC and was also attended by the paternal aunt, and was supervised by a Departmental caseworker.

69 Some time in 2011 the first annual case plan review took place. Just what was said at that meeting is shrouded in mystery. The paternal grandmother met with someone from the Department whose name she could not recall, and the purpose of which was unclear (T 41.23ff). What is clear is that as a result of that meeting, the contact regime contemplated for the paternal grandmother was reduced to 2 visits a year (Exhibit 2).

70 The third contact visit attended by the paternal grandmother after the final Care orders occurred on 22 December 2011, again at the Lismore CSC, also attended by the paternal aunt and her children. The visit was supervised.

71 Further contact visits involving the paternal grandmother took place on 13 April 2012, 14 December 2012, and 24 June 2013, all at Lismore, all supervised.

72 The grandmother was extensively cross-examined by the independent legal representative as to her efforts to obtain more contact than that which actually took place (T 33 - 42). It was my impression on listening to that evidence that the paternal grandmother was less than convincing in her explanation. Upon re-reading it now, that impression has been reinforced. She was evasive and inconsistent in her answers and gave little or no detail. I thought her attempts at justification were specious and hollow, viewed particularly in light of the absence of any attempt to formally write and request further contact (T 34.7) or to obtain legal advice (T 36.34).

73 One of the telling pieces of evidence in this matter is the 4 newsletters sent by the carers on behalf of the children to members of the birth family, detailing recent activities. The first of these newsletters went out in August 2011 (Exhibit 1). It starts:

"Dear Dad, Mum and Nanna.

We thought you might like to hear about what we have been up to and the activities we like to do, also to keep you informed as to our achievement and milestones. What better way to do this than a newsletter.

Through the newsletter we can communicate to you questions we may have and information we may like to have regarding our family. Papa John is putting together our Life Story Books and he needs some help from you to do this."

74 Later in that first newsletter the boys ask:

"As mentioned Papa John is doing our Life Story Books. This is so we will always know where we come from and continue throughout our lives. Included are birth certificates, photos, birthday cards, letters, artwork, certificates and anything that will preserve our memories.

We have some really big holes in our Life Story Books and ask that you help us fill them please...

Nan

Nan can we please have some photos of our family as we don't have many. Could you please tell us our birth story as well?

Can you please do a family tree for us including our half sisters?

We would like it if they could send us a letter and photograph, can you please ask them for us?

Can you please tell us about yourself, where you come from, lived, married? And lastly can you ask family members if they could write letters to us please.

Please Nan!"

75 These requests were ignored by the paternal grandmother.

76 Further newsletters sent to the birth family in October 2011, December 2013 and June 2014 were put before the Court. These contained reminders for information to assist with the Life Story Books. These requests were likewise ignored by the paternal grandmother. Nor did the paternal grandmother make any attempt to communicate with the boys by letter or otherwise.

77 In cross-examination the paternal grandmother was asked why she hadn't responded or provided any of the material requested. She responded:

"Because I didn't feel that the carers should have been given that because I didn't feel that they were going to be fully taken away, like to adoption and that but kept being spoken about all the time and I just don't feel that I had to, to give them stuff of that to concern them." (T 28.44)

"...because I have been thinking about it lately but I still feel that I don't feel that the children should not be with the family...I feel they should, well I feel they should be put back into the family..." (T 29.22).

78 The idea of the carers adopting the children emerged in May 2011. It was then discussed at a meeting on 29 July 2011 with officers from DFaCS. Over the next 12 months an Adoption Plan was developed. In July 2012, the DFaCS Manager Casework, JR wrote to the paternal grandmother and paternal aunt inviting them to a meeting on 31 July 2012 to discuss the proposal and to have input into the plan. They declined to attend, "as they had been advised not to attend by their legal representative": JRs affidavit of 22 April 2014 at [8]. The Adoption Plan was "broadly agreed" to by the Department around November 2012, and a copy sent to the mother who was then living with the paternal grandmother.

79 The Department received no response from anyone in the birth family.

80 The Adoption Plan was signed by the carers and JR on 16 May 2013. It contains the following provisions as to contact:

"John and Lucas are willing to support face to face contact between Clark and Felix and their mother. Their mother will contact John and Lucas to arrange contact visits.

John and/or Lucas will attend all contact visits with Clark and Felix. The frequency of contact visits will depend on the children's needs and wishes, however, it is proposed there will be four contact visits per year, preferably around school holidays or around special occasions (e.g. birthdays and Christmas). It is proposed that each contact visit be of two hours duration, although this can be adjusted by mutual agreement.

John and Lucas are willing to support face to face contact between Clark and Felix and their paternal grandmother, Gina, and paternal aunt, Carolyn, and cousins. Gina and Carolyn will contact John and Lucas to arrange contact visits. John and/or Lucas will attend all contact visits with Clark and Felix. The frequency of contact visits will depend on the children's needs and wishes, however, it is proposed there will be two contact visits per year, preferably around school holidays. The duration of the contact visits will depend on the children's needs and wishes."

81 It was during the course of working up the Adoption Plan that the idea of the carers relocating to Sydney was first raised: Lucas Bollard's affidavit of 7 July 2014 at [32].

82 In September 2013 the carers decided to look at options for schooling of the children in Sydney and the idea of moving was discussed with the boys: Lucas Bollard's affidavit of 8 July 2014 at [39].

83 In October 2013 the manager caseworker indicated that subject to approval there would be no impediments to the carers relocating to Sydney with the children. This was confirmed by the manager caseworker at a meeting on 29 November 2013. By email sent on 5 December 2013, JR reported that approval for the move had been given by her manager, LG, provided the carers indicated they would continue to support contact visits with the mother, paternal grandmother and paternal aunt "to proceed according to the usual frequency": Lucas Bollard's affidavit of 8 July 2014 at [40] - [42].

84 It is to be noted that there was no mention in the email of the approval being limited to one year.

85 In an email dated 4 December 2013, JR wrote to her Manager, LG as follows:

"I met with Lucas and John Bollard last week, carers for Felix and Clark Knoll, and they spoke to me about their intentions to relocate to...Sydney for at least 12 months, commencing prior to Christmas 2013..."

86 Lucas Bollard replied to JR by email on 5 December 2013:

"Many thanks,

We will at all times support contact visits, the frequency of which has already been agreed and formally committed to by way of an executed Adoption Plan. History provides us with an impeccable visitation record and there is no reason to deviate from that record.

We will accompany the boys to prearranged visits as agreed by the parties. Some of those may be in the GC or Lismore if we are in the area I from time to time do some work in Brisbane and this may also be a further opportunity as long as it is convenient and agreement can be reached between parties.

As and when the birth family visit Sydney, we of course would arrange pickups and residual arrangements as deemed to be appropriate...

We will however, not fund third party travel or accommodation costs whatsoever...

Hope that works for you and LG. If not can you kindly let me know..."

87 There does not appear to have been a reply.

88 It is from this point that the circumstances surrounding the Department's approval for the carers to move to Sydney appear to become contentious.

89 On 16 December 2013 the boys participated in a contact visit at Lismore with the paternal grandmother. There is no written record of the visit, which was attended and supervised by John Bollard. The paternal grandmother was not informed at that visit about the proposed relocation to Sydney. John Bollard, in his oral evidence, explained why. Although it was intended that he should tell the paternal grandmother, he felt uncomfortable about doing so in the context of a contact visit, lest the paternal grandmother might react, which could be damaging to the quality of the contact. He discussed this with JR, who agreed that the disclosure should be deferred, until the next visit.

90 The carers relocated to Sydney with the children on 27 December 2013.

91 It was not until 9 January 2014, subsequent to the move, that JR wrote to the parents notifying them of the move.

92 On 12 April 2014 the paternal grandmother participated in a contact visit with the children (her 8th since the final Care orders of 29 July 2010). This visit took place at a bowling alley in Brisbane, and was also attended by the birth mother with her new baby and the paternal aunt and was supervised by the carers.

93 The 9th contact visit with the paternal grandmother took place at Lismore on 28 June 2014, which was also attended by the paternal aunt. Prior to that visit, the paternal grandmother's solicitor wrote to the Department requesting that the visit be unsupervised. This request was declined (Exhibit 3). The paternal grandmother makes significant complaints about the quality of the contact visit (her affidavit of 29 July 2014 from [58]).

94 There has been correspondence between the carers and LG which indicates an ongoing dispute about various matters as set out in Annexure B to the affidavit of Lucas Bollard of 21 July 2014. It is not necessary that I set out the detail of the points of contention as in my view they are not germane to the matters for decision in relation to the paternal grandmother's application, for the reasons that follow below.

95 The hearing of the paternal grandmother's application commenced at Ballina on 5 August 2014. It was adjourned part heard to resume at Parramatta on Tuesday 16 September 2014.

96 One would have thought that in the interim the paternal grandmother might have made some effort to provide the details that the children requested from her to enable their Life Story Books to be completed. But no.

97 Similarly, one would have expected the paternal grandmother to use the trip to Sydney to see the children. Indeed, the carers wrote to the paternal grandmother offering to fix a mutually agreeable time for such a visit. The paternal grandmother replied in the following terms:

"Hi, Lucas,

We do not agree to having a visit in Sydney as our visits have always been in Lismore, except the one off visit in Brisbane and we feel that the day you have proposed to have the visit is not in the best interests of the children" (Exhibit 5).

98 I allowed further cross-examination of the paternal grandmother about her position. She said she thought she might be upset and that would be bad for the children if she saw them during the court case. But why couldn't you come earlier, on the weekend? Answer: "Because I don't know where they live, and I couldn't afford the additional cost."

The evidence of Ms LG, the Manager Client Services

99 Ms LG is the Manager Client Services at the Lismore Community Services Centre (CSC). She is an experienced child protection worker who has been employed by DFaCS for over 25 years.

100 She explained that the Manager Casework responsible for these children, JR, was unable to attend court due to personal circumstances including severe illness of her husband and the need to look after a frail, aged father.

101 She gave important evidence, based on her expertise and experience, as to the appropriate level of contact that should be afforded the paternal grandmother, and as to the need for that contact to be supervised. Her evidence on these matters was uncontradicted.

102 Her evidence was:

"Q. What is your current view as to an appropriate level of contact with the family of origin?

A. Well it does depend on the individual circumstances but my view is that four times a year is generally the preferred frequency to reduce the level of disruption when children are considered to be in a permanent placement.

Q. And when you say four times a year, do you mean with the totality of the family or origin or does it depend on whether say the parents are still together, whether that contact can occur together with grandparents et cetera?

A. Well your Honour, generally we try and coincide.

If the parents aren't together, we try and coincide the day of the contact at the same time to reduce the level of disruption. So if they were to see their mother and father separately, it would be hopefully on the same day.

Q. So there may be circumstances where the four times a year has to be more because of particular family circumstances?

A. That's right.

Q. And where do you get the four times a year from?

A. Well it varies between four to six times a year. Some of it comes from - some of the policies, research articles, there's a number of different views around the level of contact for children through the Children's Court but generally - some kids see their - see their family more frequently. It depends on the relationship, the circumstances around why they came into care. So if there's been a lot of trauma in the experience of the child, we would probably argue for less frequent contact than if there was a reasonable relationship with a parent and the child wasn't - probably an older child that had a significant attachment relationship with that parent may be more frequent than a child that was quite young.

ANDERSON

Q. So in terms of the contact level for a paternal grandmother of children where one of the children was taken into care at about 10 months of age and the other child was I think about three and a half years of age, that wouldn't be the same level as four times a year that a parent would exercise with the child for identity purposes?

A. Generally no and - and in these circumstances I have to clarify that it was considered that the grandmother would attend with either the mother or the father.

Q. As well as any times that she had provided for her in any care plan or case plan?

A. I understood from my conversations with JR before she went on leave that it was generally - the contact was for the grandmother with either the mother or the father. I did not understand that she had separate contact arrangements.

Q. And if the evidence is that she did exercise contact arrangements with the father, for instance, fortnightly after the children were removed into care and then exercised occasions of contact together with the mother, even as recently as April and June, that's the type of contact that was emphasised for the paternal grandmother?

A. That's my understanding.

Q. And that could still continue, that is the contact could happen at the same time as contact happens for the mother or the paternal grandmother and the paternal family?

A. That's my understanding."

103 On the question of supervision, Ms LG said:

"Q. You don't have any concerns as far as contact with the paternal grandmother is concerned that she will commit any physical violence towards the children?

A. Not whilst there's supervision.

Q. Well even without supervision?

A. I - I do.

Q. Tell me why?

A. Well the father has said things to me that has suggested that he claims that he was treated very harshly by his mother. So he has expressed concerns about his mother having unsupervised contact with the children and has made claims about his own childhood that have raised concerns for me about how his mother may parent a child and - and - and--

Q. Well I haven't seen anything in the other documentation about this. Where did you get that from? I mean it may be there I just haven't--

A. Well recently the father - the father has been in contact with me up - up until as recently as two weeks ago and - and has received papers for this matter and did say that he was going to appear today but he didn't.

Q. Anyway your bottom line is you say there is a risk based on what you've been told about the grandmother and her relationship with the father when he was a boy?

A. Well I - in my role I would not - I'd be remiss in my duty to discount what I've been told.

Q. So the answer is yes?

A. Yes I have got concerns."

104 And later in her evidence, she said:

"Q. But would you agree with me that that attitude that the maternal grandmother as she says in her affidavit that the mother feels like the criminal because she's the father's mother - the paternal grandmother feels like she's a criminal because she's the father's mother, would you agree with me that given what you've just said the department would appear to hold Ms Rumble responsible for the father's actions, would you agree with me that there's some substance on what Ms Rumble's feeling?

A. I think any mother that has a child that has demonstrated some of the behaviours and some of the hostility and difficulties in just about every aspect of their life would feel some sense of where did I go wrong. But I'm not judging Mrs Rumble as far as whether or not she is the reason that the father is. I have to consider what he's told me and other aspects of the assessment that was conducted...

Q. But would you agree that when they were brought into care though the paternal grandmother was never considered as a placement option?

A. I think there were - there were preliminary assessments that suggested that that was not a wise placement option.

Q. Well what are your concerns about unsupervised contact?

A. My main concerns about unsupervised contact besides what I've already said is that I'm not sure how Mrs Rumble would, for example, discipline the children or manage their distress if they became so, is the concern I have about the potential for disruption of the stability in the placement. I could go on. I know that these little boys have been talked with about the long term plans for them and they are - they have expressed concern about when those, you know when it will be that they will have some permanent decisions made about their current placements.

So - so I am concerned about unsupervised contact because in my experience children's sense of stability and - and sense of security around their placement have often been undermined by the unfortunate things that are said and if those things are not monitored and at least reported back to the carers and those working in the department with those children or if it's a foster care agency, if those incidents are reported there's often a lack of awareness about why that child might be acting out or behaving in a distressed way and that doesn't do well for that child when people don't understand what's going on.

So unsupervised contact is something that I very rarely support. If there's a permanent - if the permanency plans for children to be in a long - long term care of those carers."

105 Finally, Ms LG gave evidence about the quality of care provided by the carers and their support for the building of a relationship with the birth family, explaining that there is no way that a grandparent is going to have the same kind of relationship or attachment that they would have in a normal family situation compared with when a child is under the care of the Minister.

106 Ms LG went on to explain:

"Q. What I'm getting to is that when you read a paragraph like that, doesn't it raise concerns that the carers don't - that may not understand that from the children's point of view, that the children have a right to know their birth family and that that may cause some give and take?

A. Well Mr Donaghy, since I've known the carers, which has been for the last few years, I've seen the actions that they've undertaken to actually support the relationship of the children with their birth family and there are things in that affidavit that actually identify that like undertaking to take the children to their grandmother's place of work to see her, for example. So not everything that's written there has been compatible with the actions that I've seen, the newsletters, their attempts to build the life story work for the kids, those kinds of things are seeking the support of the family in building those stories for the children. I've seen their disappointment when they've had no response to those requests. So I am concerned that when Ms Rumble and her family read what's written, that they may a tenuous relationship now and I hope they can overcome that for the future needs of the kids and - and when they're having contact. I hope that they can build on what seems to me have been a fairly positive situation, given the circumstances."

The paternal grandmother

107 There were a number of unsatisfactory features in connection with the paternal grandmother, her evidence, and some of the submissions made on her behalf.

108 First, there can be no doubt that in her view the children should not be placed with the carers at all, and that they should be restored to the birth family, to either the mother, or even to her. As Ms Delaney submitted, this indicates an ongoing lack of insight on her part.

109 Hence her refusal to provide the carers with the material requested by the children to enable completion of their Life Story Books. In my view, her failure to respond to the children's request is demonstrative of both her lack of insight, but also that she places her own needs above the interests of the children.

110 The submission made on her behalf that the true focus for the relocation of the carers to Sydney was designed to remove the birth family, and indeed the Department, from the lives of the children is a further indicator of her lack of insight. That proposition is so lacking in any evidentiary basis as to amount to the absurd.

111 Secondly, I found the paternal grandmother to be lacking in candour. There were a number of examples. I found her explanation for her failure to ask for additional contact after the making of the final Care orders unconvincing and specious. Similarly, her failure to have contact with the children on her recent trip to Sydney. To my mind her explanation for that was particularly tendentious. Notwithstanding extensive cross-examination about visiting other grandchildren in Adelaide, she failed to tell the Court that she had booked a trip to Adelaide and was planning to go there within weeks of the hearing. Her evidence about her understanding of the case plan meeting and the reduction in the contact for her from 4 visits per annum to 2 was in my view calculated to mislead the Court.

112 Thirdly, the efforts made by the paternal grandmother to build any sort of genuine relationship with the children has been superficial and insincere. In addition to the matters to which I have already adverted, she has made no effort to write to them, or to recognise their important milestones, such as birthdays. Her disdain for the carers and the quality of their care for these children was particularly disturbing.

113 Overall, I found the paternal grandmother to be an implausible and unreliable witness, who dissembled on a number of important matters.

What is an appropriate level of contact for the paternal grandmother?

114 The evidence clearly establishes that the two contact visits per annum for the children with the paternal grandmother contemplated by the existing arrangements, and in the adoption planning, is sufficient for the children having regard to their needs. Identification contact is all that is required. Given that the children will be having four contact visits per annum with the birth mother, I see no need for additional contact with the paternal grandmother other than what is proposed.

115 This clearly emerges from Ms LG's evidence, which was not only uncontradicted, but was in my view plausible and sensible, according as it did with the Court's guidelines, and soundly based on the relevant literature, and on her own experience and expertise.

116 I find, therefore, that the existing arrangements for contact with the paternal grandmother are appropriate and adequate.

The need for supervision

117 Similarly, the need for ongoing supervision of contact with the paternal grandmother and paternal aunt was clearly established. For my part, Ms LG's view on the issue is conclusive, but the submissions made by Ms Delaney lend additional verisimilitude to the proposition:

"Supervision of contact is appropriate for the following reasons":

• The children are still young and vulnerable.

• They have been living with their carers since approximately February 2010, and the carers are for all intents and purposes their parents.

• This is not accepted by Ms Rumble, who on her own evidence still considers restoration to be a realistic possibility, and is determined that the children will reside with their birth family.

• Apart from that being an unrealistic option in the present circumstances, Ms Rumble has not demonstrated any insight into the enormous impact restoration or placement with herself would have on the children.

• Contact has been supervised by the carers since at least December 2012.

• Neither Gina Rumble nor Carolyn Rumble has demonstrated that they are child-focussed in the past. For example, Ms Rumble has not provided any information for the children's Life Story Books, and when asked why not, she responded with words to the effect of I didn't feel that they should have that. Whether by "they" she was referring to the carers or the children, this attitude displays an alarming lack of insight. Additionally, Ms Rumble chose not to spend time with the children whilst in Sydney for this hearing.

• Ms Rumble does not have appropriate insight into the child protection issues relating to the mother that led to the children coming into care, and that she chooses instead to blame the father for the events that led to the children coming into care, and this is a risk to the children.

• Lucas Bollard gave evidence about the children needing to be "prepped" for contact, and in particular referred to Felix's anxiety prior to contact occurring.

118 I find, therefore, that any contact with the paternal grandmother, and the paternal aunt, requires supervision.

Other matters

119 I do not propose to make a finding about whether the approval for the carers to relocate to Sydney with the children was limited to one year.

120 First, the year has not yet expired.

121 Secondly, in my assessment of the evidence, that there was a disconnect in the communication passing between the Department and the carers. It is clear to me that the carers were seeking approval for an unrestricted relocation, on a trial basis. There was never any mention to them in the correspondence of a limit of one year. I am also critical of JR's tardiness in communicating with the birth family about the proposed move. It seems to me that failure has led to a lot of misunderstanding and unnecessary angst.

122 Thirdly, to suggest that it was other than entirely appropriate for the carers to be allowed to move is facile. The attempts by the Department to place retrospective conditions on the carers, and to attempt to require them to contribute to the cost of contact with the birth family, is inappropriate and unseemly.

123 The submissions made by Mr Donaghy that the carers set out to deceive the Department were factitious and not fairly based on the objective evidence.

Is an order under s 86 indicated?

124 I am comfortably satisfied that an order mandating contact with the paternal grandmother is neither necessary nor appropriate.

125 In my view, questions surrounding contact with the paternal grandmother, and paternal aunt, including duration, location, and frequency, are best left to the judgment of the Minister as the person with parental responsibility, or his delegate, having regard to all the matters I have already discussed.

Disposition

126 I have considered each of the matters set out in s 90(6) of the Care Act. In my assessment, the evidence in respect of each of those considerations, as discussed above, contraindicates the need or the desirability of rescinding or varying the final Care orders made by the Children's Court on 29 July 2010.

127 For all the reasons indicated, the application made by the paternal grandmother should be dismissed.

128 I therefore order that her application be dismissed.

129 I reserve the question of costs. I invite any party that wishes to make an application for costs to advise the other parties and the Court within 28 days of the fact, setting out briefly the grounds. I will then determine whether the application should proceed on the papers, in chambers, by way of written submissions, or whether a hearing date for oral submissions, or if appropriate, evidence, should be allocated.

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Decision last updated: 14 October 2014