Children's Court New South Wales

• Medium Neutral Citation: In the matter of D, R, J, and W [2011] NSWChC 3
• Decision date: 22 November 2011
• Jurisdiction: Care and protection
• Before: Magistrate Keogh

Decision

Contact orders made for all children, as proposed by the Director General

• Catchwords: CHILDREN - care proceedings - contact - United Nations Convention on the Rights of the Child - Contact Guidelines
• Legislation Cited: Children and Young Persons (Care and Protection) Act 1998; United Nations Convention on the Rights of the Child
• Cases Cited: Re Tracey [2011] NSWCA 43; Le v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 875
• Category: Interlocutory applications
• Parties: The mother; The father of D and his family; The paternal grandparents of the three younger children, R, J and W
• File Number(s): 253-256/10-002

Judgment

1 The Courts determination in relation to contact remains outstanding. A determination that there is no realistic possibility of restoration to the mother was made on the 16th November as was a decision that placement with the paternal grandparents was not in the children's interests, in that, it did not adequately address their safety, welfare and well being.

2 The mother, 'B' and her family, the father of 'D' (the eldest sibling by another father) and his family Mr 'E' and the paternal grandparents of the three youngest children, all seek contact. Contact with all of them including contact between the siblings, is appropriate and in the children's interests, indeed section 9 of the Act states that if a child is placed in out of home care:

"unless it is contrary to his or her best interest and taking into account the wishes of the child or young person, relationships with people significant to the child of young persons, including birth or adoptive parents, siblings, extended family, peers, family friends and community, should be retained."

3 In relation to 'D', a current proposal is that:

• the mother should have supervised contact with 'D' at the same time as she have contact with her siblings once a month with additional contact with her mother alone (supervised) on a number of occasions.
• that 'D's father should have contact with 'D' unsupervised once a month and on occasion the contact would be overnight.
• that if 'D' so desired she could have contact with the paternal step grandparents if she so desired when they were having access to their grandchildren.

This contact would occur taking into account her wishes, a particularly important proviso, bearing in mind her age.

4 Another important consideration is that 'D' has unfortunately had a number of interim placements that have broken down. The identified placement for her and her brother 'W' is one that needs to be supported to enable a secure and stable environment to develop to allow for the best possible attachment between the new carers and the children.

5 Contact between the younger children and their mother is less complex because their father is not requesting contact. Therefore the demands on their time and on any carer's time to accommodate contact are less complex as well.

6 Ms Miller for 'D' is concerned that due to 'D's age she would benefit from greater contact with her mother. Indeed that it is necessary to ensure her emotional security.

7 Ms Miller asked the court to bear in mind the United Nations Convention on the Rights of the Child and in particular the application of the convention to domestic legislation as discussed in the recent case of Re Tracey [2011] NSWCA 43.

8 The Supreme Court in Re Tracey found that the Convention was a relevant consideration when considering the provisions of the Children and Young Persons (Care and Protection) Act 1998.

9 It was noted that a number of Commonwealth cases, particularly in relation to immigration matters had held that Australia's international obligations under a number of relevant conventions were relevant to the exercise of discretions by decision makers.

10 Justice French in Le v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 875 said though that:

"The existence of that obligation at international law does not, unless incorporated by Parliament into domestic legislation give rise to a corresponding substantive obligation, which conditions the exercise of statutory powers. The provision of an international treaty to which Australia is a party may be a relevant consideration in the exercise of statutory discretion, such considerations do not thereby become mandatory."

11 Therefore, the United Nations Convention in relation to Children's Rights while relevant is not conclusive in regard to the interpretation of the requirements of domestic legislation.

12 Furthermore the Convention's application in the Family Law jurisdiction is well established and the Court in Re Tracey commented that its application in that jurisdiction cannot be distinguished from its use in this jurisdiction. (At Para 41 Re Tracey)

13 Therefore the Convention should be used to inform the Court when it makes a decision in relation to children, as it does in this case.

14 It is interesting to note His Honour Giles JA observations in Re Tracey that in respect of the NSW legislation, the principles and objects of the Act (sections 8 and 9) appear to go beyond the stated objects of the Convention, in that section 9 states that the safety, security and wellbeing of a child or young person are paramount whilst the convention states that the best interest of the child should be a primary consideration.

15 Of particular relevance to this case are the following articles:

• Article 3 - to act in the best interest of the child;
• Article 5 - respect the rights and duties of parents;
• Article 8 - the importance of the preservation of identity and in particular family relationships;
• Article 9 - ensures that a child should not be separated from a parent against her will "except when a competent authority subject to judicial review determines the same in accordance with applicable law";
• Article 14 - the State should respect the rights and duties of a parent to provide direction to a child consistent with the evolving capacity of the child;
• Article 20 - when a child is permanently or temporarily deprived of her family environment and in her own best interest cannot be allowed to remain in that environment she should be entitled to special protection and assistance;
• Article 33 - a child must be protected from all forms of sexual exploitation and sexual abuse and the State must take all appropriate steps to prevent the same, and
• Article 39 - the State shall take all appropriate measures to provide physical and psychological recovery and social re-integration of a child victim of any form of neglect be it exploitation abuse, torture or any other form of cruel, inhuman or degrading treatment or punishment ...such recovery and re-integration should take place in an environment which fosters health, self-respect and dignity.

16 These principles are reflected in the objects and principles of the Act, in the body of the Act as well of the body of law, which has developed over the years. These all require the court to assess the safety, wellbeing and welfare of 'D' and her siblings in the light of the abuse she suffered and the lack of support and lack of protectiveness she experienced after that abuse came to light.

17 This requires a balancing of the need to protect her from further abuse, physical, emotional and psychological, with the need to assist her to recover from this and to retain relationships with significant others, relationships that are not only meaningful but that she may need as she progresses to adulthood.

18 In addition to being guided by the United Nations Convention on the Rights of the Child the Court can also be informed by the Contact Guidelines developed by the Children's Court in response to recommendations made by the Special Commission of Inquiry into Child Protection Services in NSW (The Wood Report).

19 When determining an appropriate contact regime the Court should consider the context of the contact proposed:

• For example, is restoration being proposed or is the child going to have limited contact because of the damage he or she has suffered at the hands of the parent?
• Is the purpose of contact to maintain a relationship that has some positive features?
• Is the parent unable to care for a child but ideally should be able to love and affirm the child through contact and not undermine the placement with another carer?
• Will frequency of contact enhance or destabilise the new placement?
• Will it provide to a child a sense of identity in the context of their birth family and cultural background?
• Will it provide a child with a realistic understanding of who their parent is so that the child does not idealise an unsuitable parent and develop unrealistic hopes of being reunited with the parent who was not protective of them?

20 Ms Starkey indicated that monthly contact between the mother and the children would be appropriate. This seemed to indicate a path to be navigated somewhere between maintaining the identity of 'B' as the natural mother and maintaining a meaningful relationship with her. Ms Starkey acknowledged the meaningfulness of the relationship between 'B' and her children.

21 Due to 'D's age and her disrupted placements, it is acknowledged that her relationship with her mother has more significance at this stage of her life. The task is to ensure, as much as it is possible, that the relationship is a positive one, that it won't undermine the permanent placement identified for her and her brother and more importantly that it will not undermine her.

22 Usually less contact helps to ensure that a placement will not be undermined but 'D' is nearly 12 and has expressed a wish to have greater contact with her mother. In the not too distant future she will be able to act on her frustrations, disappointments or setbacks. She may react impulsively and identify her placement as a problem and view her mother as a solution. Due to 'D's age a carer will have less ability to control this and therefore will have less ability to act protectively however capable and well intentioned he or she is.

23 The issue for the court is to determine how contact with the mother will retain the meaningfulness of that relationship and ensure that it remains inherently positive without undermining her placement as well as her own safety, security and well being.

24 An examination and consideration of Ms Starkey's report and her evidence makes it clear that 'D' requires:

• a secure placement;
• a mother who, although not living with her, is available to express her love and support and affirm that she was wronged but did nothing wrong;
• carers and significant others in her life who will be able to acknowledge that she was right to speak out and to protect herself;
• that she has a right to expect condemnation of the abuser by those who care for her and care about her, and
• for those who care about her to act protectively towards her and those she cares about.

25 She has a right to expect love and support from her mother and those others significant in her life. None of them directly or indirectly should express any views of theirs or others that would cause her to doubt herself or to blame herself for the removal of her or her siblings from the unsafe environment they were found to be in.

26 If the mother can ensure that the contact with her children is positive and that she will be supportive of her daughter in particular, I am of the view that monthly-supervised contact is appropriate at least for the next 12 months to two years. I am also of the view that additional supervised contact with her daughter alone would be beneficial to 'D'.

27 The Director General's suggestion of an additional 4 contacts is adequate, particularly in light of the need to "secure" the new placement. The requirement to take into account 'D's wishes and the demands on her time in relation to other contacts should allow for any adjustments that may be appropriate in the future.

28 Some thought needs to be given to phone contact in the future if the mother maintains positive and consistent contact. At the moment it is premature unless it can be supervised effectively. This may be something that can be foreshadowed in the s 82 reports.

29 A notation without a contact order is appropriate bearing in mind the number of contact obligations that may or may not be taken up by the interested parties in this matter. This will provide greater flexibility and may enhance the mother's progress to greater contact, possibly unsupervised in the future, if that is what she wishes to work towards and if that is what is in the best interest of the children.

30 I propose to make the orders as proposed by the director General in respect of the younger children and 'D'.

31 I agree with Ms Miller's submission that a report sooner rather than later would be preferable. The first report should be prepared within three months.

32 'D' should continue to be offered counselling to assist her to overcome the abuse and upheaval she has suffered. The section 82 reports should specifically detail the support she has received and what she requires to continue.

33 Finally, I note that no party submitted on the application of section 13 of the Act despite 'B's expression of aboriginality in her testimony.

34 Her links with her aboriginality do appear feint and her children's are also tenuous, however, although the objects and principles of section 9 and 8 and the requirement of section 83 in regard to permanency planning have been met by the care plans for each of the children and the orders proposed by the Director General it may still be appropriate, even if the children may not identify as Aboriginal, for the Minister to investigate their family and cultural heritage in that regard and provide some information about those investigations and how they may affect the children and their care in the section 82 reports.

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Decision last updated: 07 June 2012