Children's Court New South Wales

• Medium Neutral Citation: Department of Family and Community Services v Borg [2011] NSWChC 4
• Hearing dates: 10th June, 15th June and 12th August 2011
• Decision date: 22 September 2011
• Jurisdiction: Care and protection
• Before: Magistrate Bruce Williams

Decision

Realistic possibility of restoration

• Catchwords: CHILDREN - care - proceedings - realistic possibility of restoration - at the time of the hearing - parenting capacity - risk of harm - totality of the act - paramount considerations
• Legislation Cited: Children and Young Persons (Care and Protection) Act 1998
• Cases Cited: M v M [1988] HCA 68; 166 CLR 69; Saunders and Morgan & Anor v Department of Community Services [2008] CLN 10; The Dept. of Community Services v Grant and Reid, [2010] CLN 1; Re: Leonard [2009] CLN 2; The Matter of Campbell (2011) NSWSC 761
• Category: Principal judgment
• Parties: The Director General of Community Services
• Representation: Mr Gutteres for the mother, Ms Borg; Ms Reed as independent children's representative; Mr Ticehurst for the Department
• File Number(s): 183-185/2010
• Publication restriction: Any information that names or is likely to lead to the identification of a child or young person who is reasonably likely to involved or mentioned in Children's Court or non-Court proceedings in any capacity must not be published or broadcast in any form that may be accessible by a person in New South Wales whether the publication or broadcast occurs before any proceedings have commenced, during the proceedings or after they are disposed of. This prohibition applies until the child or young person turns 25 years of age or dies.; 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who is reasonably likely to involved or mentioned in Children's Court or non-Court proceedings in any capacity must not be published or broadcast in any form that may be accessible by a person in New South Wales whether the publication or broadcast occurs before any proceedings have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 On 9 August 2010 the Director General of Community Services (the Director) commenced proceedings in the Court, relating to Jeremy Borg (now aged 5), Tristan Russell and Sean Russell (both now aged 9).

2 Interim care orders were made on 10 August 2010 and on 16 September 2010 a finding was made that the children were in need of care and protection under section 71 of the Children and Young Persons (Care and Protection) Act 1998 (the Care Act).

3 Danielle Borg (Ms Borg) is the mother of all the children and Barry Russell is their natural father. Ms Borg is mother to another child, MJ, who is not the subject of these proceedings. Mr Y is the father of MJ.

4 The Director, who is represented by Mr Ticehurst, seeks an order for parental responsibility to the Minister until the age of 18 years, in respect of each of the children. The question for the Court to determine is whether pursuant to section 83 (5) of the Act, the Court accepts the Director's assessment that there is no realistic possibility of restoration.

5 The mother, who is represented in the proceedings by Mr Gutterez of Counsel, seeks the immediate restoration of each of the children to her.

6 The independent representative for the children Ms Reed of Counsel, supports the application by the mother.

7 The father, Mr Russell, has not participated in the proceedings.

Background

8 Ms Borg is aged 39 years

9 In support of his position, the Director submits that the mother has unresolved mental issues and lacks the protective capacity to provide for the safety, welfare and well being of the children.

10 Between January 2006 and the date of assumption the Department's records disclose eleven risk of harm reports. Many of these reports were challenged in cross examination of the case worker and whilst it appears many of the reports were not investigated and some were not investigated to such an extent that I could be fully satisfied as to their content, it is quite apparent from the material that the issues giving rise to the removal of the children revolved around the mother's mental condition, which was described as Borderline Personality Disorder; her drug use; past violent relationships; and issues surrounding her housing.

11 The evidence is that Ms Borg was diagnosed with clinical depression in about 2006, and in September 2010 was diagnosed with borderline personality disorder and posttraumatic stress disorder. The mother denied that she had ever been physically abusive towards her children. However, she acknowledged there were instances in June 2010 and August 2010 where her mental condition put her into such a state that she was verbally abusive towards the children to the extent that the children told the police they were scared of her. She had attempted suicide in 2009 and was admitted to a mental hospital in August 2010, on removal of her children.

12 Ms Borg has been a user of cannabis over a period of about 10 years. Her evidence was somewhat inconsistent as to her use, but it is clear that during the period of 10 years there were periods of abstinence. Her use of alcohol has also been problematic and resulted in her being charged with a drink driving offence in January 2010.

13 Ms Borg agreed that she was subjected to violence during her relationships with Mr Russell, Mr K and Mr Y (Mr K is a person with whom she has had a relationship). The evidence disclosed that in August 2010 Ms Borg recommenced a relationship with Mr K despite the past violence. She was cross-examined about her continued relationship with Mr Y during the course of the proceedings, but she denied being in a formal relationship with him, rather her contact is limited to those times when she has access to MJ, who is in Mr Y's care, and when he sometimes drives her to access visits. The Clinician gave evidence that a symptom of borderline personality disorder is an intense fear of abandonment, and her behaviour is consistent with this disorder.

14 In August 2010 the Director received a report regarding Ms Borg's inadequate housing. She had been admitted to hospital with an infection and had entrusted her children to the care of Mr K. Inquiries of Mr K revealed that child safety authorities in Queensland had assumed the care of his five children and that he had a criminal history in NSW and Qld. The following day Ms Borg was interviewed and became so distressed she was admitted to the Mater Mental Health Unit.

15 Ms Borg's children were removed from her care. The Director cited his concerns as, homelessness, the mother's emotional state, her drug use, risk of physical harm and exposure to domestic violence.

16 In her affidavit of 24th September 2010 Ms Borg deposed that:

(a) She had secured long term accommodation with her mother;

(b) On 3rd September 2010 she had visited her general practitioner who had referred her to the Taree Mental Health Service. On 15 September she was examined by a psychiatrist, diagnosed with a mood disorder, prescribed medication and a treatment programmed was devised for her;

(c) She had ceased using Indian Hemp and alcohol and would be willing to undergo regular drug screening;

(d) She placed herself on the waiting list for a number of parenting courses, and

(e) She had ceased contact with Mr K and whilst she had previously done a domestic violence course, she had placed herself on a waiting list for a course with Taree Family Relationship.

17 In her affidavit of 17 November 2010 Ms Borg deposed that she was:

(a) Continuing to see her G.P. Dr Begg;

(b) Continuing counselling with the Taree Mental Health Service;

(c) Had ceased seeing Dr Sharp (on his advice) and her mental health had stabilised. She was continuing with medication;

(d) Had booked into the Dialectic Behavioural Therapy Course (DBT) at Taree Mental Health and completed the intake appointment. The course is 12 month's duration and would involve weekly sessions;

(e) Had commenced drug and alcohol counselling, continued to be drug fee and was undertaking screening;

(f) Had commenced a parenting course with Taree Family Relationships Centre on 22 October 2010, and

(g) Was still on the wait list for the course on domestic violence.

18 The Court ordered that a Clinic Assessment be carried out to assess: - the bonding between the mother and her children; her parenting capacity; her mental status and its impact on her parenting; her drug and alcohol use; her capacity to protect the children from family violence; her family supports; her ability to co-operate with the Department; whether restoration was possible and if so the time frame and minimum outcomes she must achieve.

19 In his report dated 4th December 2010 Mr Waring, the Clinician found:

(a) That there was a significant and positive bond between the mother and her children;

(b) The main concerns about her parenting capacity were her mental health status, her drug use; and apparent inability to protect the children from domestic violence;

(c) She suffered from a borderline personality disorder which would need extensive and ongoing treatment;

(d) In the recent past, she has had a significant and long-term marijuana addiction. She has only been abstinent for a short period and would need to demonstrate abstinence for a much longer period before her drug addiction would not pose a risk, and before restoration of the children;

(e) She should not enter into any new relationships without that person being assessed by the Department;

(f) The above limitations were not insurmountable;

(g) That Ms Borg's mother was an appropriate person to provide support during any restoration;

(h) That Ms Borg was highly motivated and had the capacity to co-operate with the Department;

(i) That restoration was possible and in the best interests of the children. He recommended contact should be increased for the next 9 months with full restoration taking place after that period, and

(j) The minimum obligations the mother must achieve for restoration were to:

• Remain drug free and undertake screens
• Remain compliant with medication
• Commence a parenting course
• Commence drug and alcohol counselling
• Attend psychiatrists as requested by mental health services
• Commence DBT
• Undertake a counselling regarding effects of domestic violence
• Report any new significant relationships to the Department.

20 In January 2011 the Director prepared a Care Plan expressing a view that restoration was not a realistic possibility. It based that view on the following:

(a) That significant risks continue to exist if the children were restored. Ms Borg has a long history of drug and alcohol use, suffers from mental health issues and had established a pattern of relationships characterised by domestic violence;

(b) Whilst the Clinician had recommended restoration the Director was of the view that whilst Ms Borg had made attempts to address her issues, she had not addressed them to a satisfactory level to allow restoration, and

(c) Further the Director is of the view that Ms Borg has not provided truthful and frank information to the Director and the Clinician and this further militated against restoration.

21 At the hearing, which commenced in June 2011, the caseworker agreed that since the care plan had been devised, the Director had made no inquiry of the mother as to her progress nor had they inquired of the persons providing counselling and other services to her. Nonetheless she was of the view that the mother's progress was insufficient to entertain restoration.

22 The Clinician was cross examined by the lawyer for the Director and when certain material was put to him (which related to events prior to assumption of the children, but which for some reason had not been provided to the Clinician prior to him undertaking his investigation), the Clinician observed:

" I think there is a longer term and more grave pattern of personality dysfunction that has impacted on her parenting at a greater level over a greater length of time, so when I comment in my report that these issues were not insurmountable, I would now say that that is still true but that the time frame that I gave in my report is on the more optimistic level than - basically I'd want to see the mother successfully go through DBT for a longer period of time before commencing a possible restoration of the children to her" (page 65 transcript of 10.6.11)

23 The Clinician further stated:

"I would like to see a psychiatrist assessment of her current level of functioning and how she has responded or not to DBT so far." (P65 above)

24 He indicated that he could not pinpoint a time when restoration could take place.

25 In answers to counsel for the mother, the clinician stated:

• " It gives me confidence that Ms Lyn English is impressed with Danielle's change of that period and that she's eager to engage in more programmes.
• Given that this is written on 31 May (2011) that might show some positive gains from DBT." (P67 above)
• DBT when adhered to has a good deal of success in treating borderline personality disorder (p67 above)
• " It shows over a period of some months she's been committed to therapy and that is admirable" (p 67 above)
• The fact that she sought out mental health treatment and has continued with it demonstrates some insight into her issues. (P69 above)
• The fact that she has undertaken treatment of her own volition " gives me a lot of confidence because it's one of the most difficult things for a person with borderline personality disorder to do...." (Page 69 above)
• It was suggested that Ms Borg had made significant progress with her DBT and the Clinician observed "Certainly seems so yes" (page 75 above)

26 In response to a question by the Court about the possible timing of a restoration, the Clinician said:

" No. I think there needs to be a lot of credit acknowledged that there is some significant change that the mother has put in place, both in terms of her drug use and her commitment to therapy. But I still think that it may take longer than nine months." (P76 above)

27 The mother's evidence is that she commenced DBT in November 2010 and has continued treatment since that time. The psychologist from Manning Mental Health Service, Ms Macauslane, who in is involved with Ms Borg's therapy, was called to give evidence.

28 She told the Court that Ms Borg had commenced with her service on 18 November 2010. The treatment proposed involved 4-6 week pre-treatment sessions followed by 12 months therapy that will end in January 2012. Following that period a service is provided to allow for phone sessions if required.

29 Macauslane advised that Ms Borg had attended weekly sessions (other than some that had to be re-organised due to court and family commitments). She described Ms Borg as very engaged and willing, does all her set tasks and applies the skills learned. She has progressed to a senior role in her group.

30 Dr Begg, the mother's GP provided a letter to the Court that Ms Borg had been keen to engage in treatment and had been compliant with medication.

The Relevant Principles to be Applied

31 Section 9 of the Act sets out the principles to be applied in the administration of the Act. In particular, s 9 (a) provides:

"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".

and s 9 (d) of the Act provides:

"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".

32 Under section 83 (5) of the Act I must decide whether to accept the Director-General's assessment that there is no realistic possibility of restoration of any of the children to their mother. If I do not accept that assessment then I may direct the Director-General to prepare a different permanency plan.

33 In determining whether I accept the Director-General's assessment I must keep in mind that most children have the benefit of being raised by their parents and that the relationship between children and parents is probably the closest of all relationships in the community. It is an extremely serious step for a court to make an order resulting in the removal of a child from his or her parent's care. As was said by the High Court in M v M [1988] HCA 68; 166 CLR 69 at [20] in the context of proceedings in the Family Court for custody or access:

"In determining what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in the child's interests to maintain the filial relationship with both parents".

34 Those remarks apply equally to the making of determinations in care and protection proceedings under the Act.

35 Because in all decisions made under the Act concerning a particular child, the safety, welfare and well-being of the child must be "the paramount consideration" an order removing a child from the care of his or her parents should be made if there is an "unacceptable risk" of harm to the child: see M v M (supra) at [25].

36 The meaning of the phrase "realistic possibility" of restoration under s 83 of the Act was considered in an appeal from this Court to the District Court by his Honour Judge Johnstone in Saunders and Morgan & Anor v Department of Community Services [2008] CLN 10. His Honour referred to the following passage from the submission of the former Senior Children's Magistrate Mr Scott Mitchell to the Special Commission of Inquiry into Child Protection Services in NSW:

"The Children's Court does not confuse realistic possibility of restoration with the mere hope that a parent's situation may improve. The body of decisions established by the court over the years requires that usually a realistic possibility be evidenced at the time of the hearing by a coherent program already commenced and with some significant "runs on the board". The court needs to be able to see that a parent has already commenced a process of improving his or her parenting, that there has already been significant success and that continuing success can confidently be predicted."

37 Judge Johnstone said "[t]his passage has elements that resonate". His Honour said at [13]:

"There are aspects of a "possibility" that might be confidently stated as trite. First, a possibility is something less than a probability; that is, something that is likely to happen. Secondly, a possibility is something that may or may not happen. That said, it must be something that is not impossible".

38 His Honour goes on to say at [14]:

"The section requires, however, that the possibility be "realistic". That word is less easy to define, but clearly it was inserted to require that the possibility of restoration is real or practical. It must not be fanciful, sentimental or idealistic, or based upon "unlikely hopes for the future". Amongst a myriad of synonyms in the various dictionaries I consulted, the most apt in the context of the section were the words "sensible" and "commonsensical".

39 Finally, his Honour states that the determination of the meaning of "realistic possibility" of restoration must be undertaken in the context of the totality of the Act, in particular the objects and principles set out in ss 8 and 9 of the Act and other principles to be applied in the Act's administration.

40 In The Dept. of Community Services v Grant and Reid, [2010] CLN 1, His Honour Judge Marien SC President of the Children's Court referred to Judge Johnstone's remarks in Saunders (above) and said the following:

"I respectfully agree with this analysis of the meaning of "realistic possibility" of restoration as stated by Judge Johnstone. I would add the obvious statement that while a "realistic possibility" of restoration is something less that a "probability" of restoration, it must be something more that a mere "possibility" of restoration. That possibility of restoration must be "realistic" in the sense described by Judge Johnstone."

"However, in determining whether I accept the Director-General's assessment, I must bear in mind that the safety, welfare and well-being of the child are the paramount considerations. Further, in making that assessment, s 83 of the Act requires that regard must be had to the matters set out in s 83 (1) (a) and (b), namely:

(a) the circumstances of the child or young person, and

(b) the evidence, if any, that the child or young person's parents are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care."

41 Judge Marien went on to say:

"In the recent decision in this court of Re: Leonard [2009] CLN 2 the former Senior Children's Magistrate Mr Scott Mitchell referred to Saunders and Morgan v DoCS and said that it is important to keep in mind when considering "realistic possibility" of restoration that s 83 of the Act is cast in the present rather than the future tense.

His Honour said, "The realistic possibility [of restoration] needs to be shown as existing at the time of the hearing even if the appropriate time for effecting the restoration has not yet arrived. 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 deficits. Further, even if some successes have been achieved by the parent, the Children's Court will need to assess the likely time frame in which the restoration might be effected and may need to take into account the viability of such a restoration given the delay and the age, level of maturity, wishes and developing attachments of the child or young person. Further, the ability to predict a viable restoration may become less and less reliable as time passes".

42 The above cases were recently the subject of comment by Slattery J in The Matter of Campbell (2011) NSWSC 761. Whilst that case involved an application pursuant to s 90 for leave to vary an existing order, His Honour's comments in relation to realistic possibility of restoration have relevance to these proceedings. Slattery J had this to say in relation to Marien DCJ's comments in Grant:

"Marien DCJ referred to this passage with apparent approval in this decision on 20 September 2010 in this matter. What Johnstone DCJ says in paragraphs 13 and 14, is in my view, with respect to his Honour, correct and is about all that can usefully be said about the expression "realistic possibility". It is going too far to read into the expression a requirement that an applicant for rescission or variation have demonstrated participation in a programme with some significant runs on the board. That in my view is to put a gloss on the words which are not in the legislation."

43 The legislation provides that in determining if there is a realistic possibility of restoration I must have regard to the circumstances of the child and, any evidence that the parents are likely to be able to satisfactorily address the issues that have led to the removal of the child. Whilst I have never liked the expression "runs on the board" which has now been disapproved of by Slattery J in Campbell (above), it seems to me that in analysing whether the parent will be able to satisfactorily address the issues that led to removal of the child, the Court will necessarily have to look at the changes they have made or programmes the parent may have engaged in and make a qualitative assessment of the effectiveness of those changes or of their participation.

44 It should be noted that s 83(1)(b) does not require the parents to participate in programmes, rather the Court only has to assess whether they are likely to be able to satisfactorily address the issues. The issues leading to removal may be addressed in many ways, e.g. pure abstinence from certain substances or behaviour; forming new, more stable relationships; the provision of suitable accommodation to name a few. However, generally parents engage in programmes relevant to the parenting deficits they have displayed, and argue that their level of attainment in those programmes is such that the Court could conclude that they have, or are likely to be able to address the relevant issues and therefore, there is now a realistic possibility of restoration.

Resolution of the Issues

45 In determining whether I accept that there is no realistic possibility of restoration, I must take into account the principles and objects of the Act as stated in ss 8 and 9 of the Act together with the other provisions of the Act to which I have referred, including, pursuant to s 83 (1) (b) of the Act, any evidence that Ms Borg is likely to be able to satisfactorily address the issues that led to the removal of the children from her care.

46 To establish that there is no realistic possibility of restoration of the children to Ms Borg, the Director must establish that such a restoration is not a real, practical or sensible possibility that might be achieved within a viable time frame.

47 In this matter I am satisfied that the issues giving rise to the removal of the children are as described by the Director in paragraph 15 above and in the relevant part of the Care Plan. However after careful consideration of all the evidence I am satisfied that with respect of each of the children there is a realistic possibility of restoration to Ms Borg within a viable time frame.

48 I accept, that almost immediately after the children were removed, Ms Borg set about engaging in parenting, domestic violence and drug and alcohol programmes. More importantly she attended her medical advisors about her mental condition, obtained appropriate medication and referrals for treatment. She has maintained her medication and faithfully attended all the DBT sessions and participated in those sessions to the full extent required. She has also achieved significant progress in addressing her issues. I accept the Director's submission that whether she has fully addressed her issues will only be ascertained by an assessment at the end of the 12 month programme, which will be completed in about 5 months time in January 2012. However, on the evidence given to the Court I conclude that she is likely to address the issues leading to removal within a viable time frame.

49 In coming to this conclusion I place great weight on the evidence of the Clinician who despite reviewing his earlier optimism, was still able to say that Ms Borg had made significant progress with her issues but, would want to see her undertake a longer period of DBT before restoration was to occur. He did however concede that DBT usually lasts 6 to 12 months or longer. Having regard to the fact that she will have completed 12 months DBT in January 2012, if, at that time, an assessment is carried out by the psychiatrist who referred her to the DBT, and that assessment is favourable, I can see no reason why a restoration in the terms of those originally proposed by the Clinician, could not proceed. There would need to be an undertaking by the mother to attend follow-up counselling as required.

50 I also place considerable reliance on the evidence of Ms Macauslane as to the mother's engagement and progress in the DBT. I am satisfied that Ms Borg has developed an insight into, and is genuinely committed to addressing the issues that led to the removal of her children.

51 In coming to the conclusion that restoration is a realistic possibility I have taken into account the significant and positive bond between her and the children, as referred to by the Clinician.

52 The other issues which the Director is rightly concerned about, I believe can be adequately address by the mother meeting the minimum outcomes as suggested by the Clinician and appropriate supervision being carried out by the Director.

53 The issue of risk of harm to the children, as identified by the Director, can, I believe be satisfied by the mother's compliance with the minimum outcomes referred to by the Clinician and by an undertaking by her to provide random drug screens as requested, to notify the Director of any proposal to move out of her mother's house, and to advise the Director of any future relationships she may enter into. I am of the view that if the above matters are supervised by the Director, it could not be said that any risk of harm to the children is unacceptable.

54 If the above matters are put in place, I am of the view that restoration should occur over a period of not more 12 months. The order for restoration should be accompanied by orders accepting undertakings referred to above, supervision orders, and an order for a report under s 82 of the Act.

55 I direct the Director-General to prepare a new permanency plan involving restoration with respect of each of the children. The permanency plan should comply with s 84 of the Act, and the issues it should address should include:

• Services to be provided to Ms Borg
• What is expected of Ms Borg by way of undertakings
• A timetable for restoration, including what outcomes are to be demonstrated by Ms Borg at various points of the timetable, including increased contact during the period of restoration.

56 I will make final orders following the preparation of the new care plan and the preparation of a Minute of Care order.

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Amendments

08 June 2012 - Correction to name of party
Amended paragraphs: Casename

Decision last updated: 08 June 2012