Children's Court New South Wales

• Medium Neutral Citation: DFaCS (NSW) re Amanda & Tony [2012] NSWChC 13
• Hearing dates: 4, 5, and 6 July, 13, 14 and 15 August 2012 at Grafton
• Decision date: 15 August 2012
• Jurisdiction: Care and protection
• Before: Judge Peter Johnstone, President of the Children's Court of New South Wales

Decision

Parental responsibility for the children allocated to the Minister until each child turns 18

• Catchwords: CHILDREN - Care and Protection - children in need of care and protection - whether there is a realistic possibility of restoration to the parents - permanency planning and contact
• Legislation Cited: Children and Young Persons (Care and Protection) Act 1998
• Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; In the matter of Campbell [2011] NSWSC 761; Department of Community Services v "Rachel Grant", "Tracy Reid", "Sharon Reid" and "Frank Reid" [2010] CLN 1; Director-General of Department of Community Services; Re Sophie [2008] NSWCA 250; Johnson v Page [2007] Fam CA 1235; Re; Kerry (No 2) [2012] NSWCA 127; M v M [1988] HCA 68; Re Saunders and Morgan and Anor v Department of Community Services, Unreported, 12/12/2008; Re Tracey [2011] NSWCA 43
• Category: Principal judgment
• Parties: The Mother; The Father; DFaCS (NSW)
• Representation: Mr C Wheelahan, solicitor (Department); Mr S Hammond, solicitor (Children); Mr J Fahey, solicitor (Father); Mr G Coombes, solicitor (Mother)
• File Number(s): 2011/39 and 2011/40
• Publication restriction: Children's names changed.

REASONS FOR DECISION

The proceedings

1 These proceedings concern two young children, Amanda (aged 6) and Tony (aged 1).

2 The mother (28) and the father (37) are the parents of both children.

3 The Children's Court has previously determined that the two children are in need of care and protection, and parental responsibility has been allocated to the Minister on an interim basis, until further order. The children have been removed and placed into foster care.

4 The proceedings have now come before this Court, sitting at Grafton, for final orders. The Director-General seeks final care orders involving the removal of the children, and their placement together in a single long-term out-of-home care placement till the age of 18. He seeks allocation of sole parental responsibility for the children to the Minister until the age of 18.

5 The parents oppose those final orders and seek a staged restoration to the father over a period of 12 months.

6 The proceedings are governed by the Children and Young Persons (Care and Protection) Act 1998 (the Care Act 1998). Decisions are to be made consistently with the objects, provisions and principles provided for in the Care Act 1998, and where appropriate, the United Nations Convention on the Rights of the Child 1989 (CROC).

7 The Director-General has prepared permanency plans in respect of the two children consisting of the Care Plans previously filed (Exhibits U and V) and a further document (Exhibit W), which sets out some adjustments to the plans as regards arrangements for contact.

8 The Director-General has made an assessment that there is no realistic possibility of the children being restored to their parents: s 83(1). The permanency plans therefore propose another suitable long-term placement for the children for consideration by the Court: s 83(3).

9 The first issue for decision, therefore, is whether this Court should or should not accept that assessment: s 83(5).

10 If, on the other hand, the Court decides to accept the assessment of the Director-General that there is no realistic possibility of restoration, it must proceed to consider the permanency plans proposed. The Court must not make a final care order unless it expressly finds that the permanency planning has been appropriately and adequately addressed: s 83(7)(a).

11 Permanency planning means the making of a plan that aims to provide a child or young person with a stable placement that offers long-term security: s 78A. The plan must:

(a) have regard, in particular, to the principle that if a child is placed in out-of-home care, arrangements should be made, in a timely manner, to ensure the provision of a safe, nurturing, stable and secure environment, recognising the child's circumstances and that, the younger the age of the child, the greater the need for early decisions to be made in relation to a permanent placement s 9(2)(e),

(b) meet the needs of the child: s 78A(1)(b), and

(c) avoid the instability and uncertainty arising through a succession of different placements or temporary care arrangements: s 78A(1)(c).

12 The plan must also include provision for appropriate and adequate arrangements for contact. The Court may also, on application, make orders in relation to contact, including orders for contact between children and their parents, relatives or other persons of significance.

13 Finally, the Care Act 1998 provides that the Court must not make an order allocating parental responsibility unless it has given particular consideration to the principle in s 9(2)(c) and is satisfied that any other order would be insufficient to meet the needs of the children: s 79(3).

14 The principle in s 9(2)(c) of the Care Act is:

"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."

15 The principal issues that arise for decision in these proceedings are:

(a) Whether there is a realistic possibility of restoration to the parents.

(b) If not, has the Director-General appropriately and adequately addressed the permanency planning:

(i) as to placement and the allocation of parental responsibility;

(ii) as to contact.

(c) Does the permanency planning involve the least intrusive intervention in the life of the children and their 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.

16 I turn now to consider the relevant legal framework for deciding these issues.

The relevant legal framework

17 The objects of the Care Act 1998, as set out in s 8, are: To provide:

(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.

18 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.

19 Most, if not all, of the provisions in CROC have been incorporated into or are reflected in the Care Act 1998. The circumstances in Re Tracey were unusual and unique. The parties made no submissions based on the Convention. It was agreed by the parties in the present case that the Court did not need 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.

20 The Care Act 1998 is to be administered under the principle that the safety, welfare, and well-being of the children are paramount (the paramount concern): s 9(1).

21 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 sections 9(2), 10, 11, 12 and 13.

22 Principles of particular relevance to the present matter include the following. I paraphrase the provisions concerned:

• Wherever a child is able to form their own view, they are to be given an opportunity to express that view freely. Those views are to be given due weight in accordance with the child's developmental capacity, and the circumstances: s 9(2)(a). See also s 10.

• Account must be taken of the culture, disability, language, religion and sexuality of the child and, if relevant, those with parental responsibility for the child or young person: s 9(2)(b).

• 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).

• That 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) and (f). This includes the retention of relationships with people significant to the children.

23 The parties have agreed that the provisions of s 13 of the Care Act 1998 in relation to aboriginality do not arise in the case, because only one of the parents has an aboriginal heritage: s 13(4). The parents have expressly advised the Court that if the children are not to be returned to them, they do not oppose placement with the person with whom the best interests of the children will be served having regard to the principles of the Care Act 1998. That person need not be aboriginal.

24 The 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.

25 The court is not bound by the rules of evidence unless, in relation to particular proceedings or particular parts of proceedings before it, the Court determines that the rules of evidence, or such of those rules as are specified, are to apply: s 93(3). That did not occur in these proceedings.

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

27 When assessing whether there is a realistic possibility of restoration, the Director-General is required to have regard to:

(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: s 83(1).

28 It follows that when deciding whether to accept the assessment of the Director-General, the Court should also have regard to those considerations: s 83(5).

29 Until recently, there had been no consideration by a superior court of the concept of "a realistic possibility of restoration". Then came the decision of Slattery J: In the matter of Campbell [2011] NSWSC 761, in which he discusses the concept of "a realistic possibility of restoration" as follows at [55]:

"The expression "realistic possibility of restoration" has often been interpreted by the Children's Court and on appeal to the District Court. I was not referred in argument to particular judicial pronouncements on the meaning of "realistic possibility of restoration". But when Johnstone J considered this same matter in December 2008 [Re Saunders and Morgan & Anor v Department of Community Services, 12/12/2008, NSWDC, Unreported, Judge Johnstone], he drew upon a summary of Children's Courts practice given by Senior Children's Magistrate Mitchell. Johnstone J accepted the practical wisdom of Senior Children's Magistrate Mitchell's summary but found the words "realistic possibility" to set a somewhat less onerous test than Senior Magistrate Mitchell had set."

30 Slattery J then cited with approval the following paragraphs from Re Saunders and Morgan v Department of Community Services [2008] NSWDC, unreported, Judge Johnstone 12/12/2008 at [11] - [14]:

"[11] I was unable to discover any judicial pronunciation on the meaning of a 'realistic possibility' of restoration. I was directed to the following passage in the submissions of Senior Children's Magistrate Mitchell to the Special Commission of Enquiry 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 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.

What is required can be likened to a prima facie case where absent some unforeseen and unexpected circumstance a safe and appropriate restoration will be possible in the near future'.

[12] This passage has elements that resonate. With respect, however, to liken the determination to the concept of a prima facie case is alien to the fact that these are civil proceedings. It is also at odds with the natural meaning of the words themselves, and in my view a purposive and beneficial construction of the legislation does not require such an onerous test.

[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 it 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.

[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'."

31 His Honour went on to note that Judge Marien, as then President of the Children's Court, had referred to Saunders and Morgan with apparent approval in a decision on 20 September 2010.

32 Justice Slattery then went on to add the following additional remarks, at [56] - [57].

"What Johnstone J 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 must always at the time of hearing of the application for rescission or variation have demonstrated participation in a program 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.

The Care Act, s 83(1) makes clear at what time the "realistic possibility" of restoration should be assessed. When the application for rescission or variation of a care order is before the Court, it is at that time the Court must assess "whether there is a realistic possibility" [Emphasis added]. It must not at the time of the rescission or variation application be merely a future possibility. It must at that time be a realistic possibility. But when leave to bring such an application is sought under s 90(1), as counsel for KC pointed out, the whole case for rescission or variation is not being presented now..."

33 As noted above, there are two limbs to the requirements for assessing whether there is a realistic possibility of restoration, whether the assessment is made under s 83(1), 83(5) or s 83(7), to each of which regard must be had.

34 The first limb is the "circumstances of the child", and the second limb is "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".

35 I turn now to record other provisions and cases relevant to the issues for decision in this case.

36 Section 106A of the Care Act 1998 is relevant because of the birth of the second child, Tony.

37 That section provides:

"106A Admissibility of certain other evidence

(1) The Children's Court must admit in proceedings before it any evidence adduced that a parent or primary care-giver of a child or young person the subject of a care application:

(a) is a person:

(i) from whose care and protection a child or young person was previously removed by a court under this Act or the Children (Care and Protection) Act 1987, or by a court of another jurisdiction under an Act of that jurisdiction, and

(ii) to whose care and protection the child or young person has not been restored, or

(2) Evidence adduced under subsection (1) is prima facie evidence that the child or young person the subject of the care application is in need of care and protection.

(3) A parent or primary care-giver in respect of whom evidence referred to in subsection (1) has been adduced may rebut the prima facie evidence referred to in subsection (2) by satisfying the Children's Court that, on the balance of probabilities:

(a) the circumstances that gave rise to the previous removal of the child or young person concerned no longer exist, or

(b) the parent or primary care-giver concerned was not involved in causing the relevant reviewable death of the child or young person, as the case may require.

38 The next relevant section is Section 71(c) of the Care Act 1998, which provides:

"The Children's Court may make a care order in relation to a child or young person if it is satisfied that the child or young person is in need of care and protection for any reason including, without limitation, any of the following:

(c) the child or young person has been, or is likely to be, physically or sexually abused or ill-treated..."

39 Decisions concerning out of home placement of children in need of care and protection are not decisions that this Court undertakes lightly or easily. But at the end of the day, a risk assessment is required, in accordance with the principle that the safety, welfare, and well-being of the children are paramount. The Court is required to assess whether allocation of parental responsibility to a particular person is consistent with that paramountcy principle. If it is not, the allocation will not be made: Re Kerry (No 2) [2012] NSWCA 127.

40 It is now well settled law that in all decisions under the Care Act involving the paramount concern of 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": The Department of Community Services v "Rachel Grant", "Tracy Reid", "Sharon Reid and "Frank Reid" [2010] CLN 1 per Judge Marien at [61]. The appropriate test is whether there is an "unacceptable risk" of harm to the child: see M v M [1988] HCA 68 at [25]. 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.

41 I turn then to consider the issues in the present case against the background of this legal framework.

Credit

42 It is necessary in the present case that I make findings as to the credibility of the mother and father of these children arising from their evidence before me.

43 It is a sad reality that neither parent left the witness box with their integrity intact. Both of them were totally lacking in candour and gave misleading and dishonest evidence.

44 Both parents resolutely, unrepentantly, even arrogantly at times, steadfastly refused to acknowledge an extensive history of complaints made by each of them about the other over a long period of time during which they were engaged in a bitter custody battle in family law proceedings over the custody of and contact with their child, Amanda.

45 There was in fact an abundance of documentary material recording numerous calls to the police, to the local mental health help line, and as to other episodes, that record serious accusations of physical altercations, loud and heated arguments, vituperative verbal abuse, threats, smashing of property, and other domestic disharmony. Unfortunately, many of the recorded episodes were demonstrated to have taken place in the presence of the child, Amanda, or in her vicinity, and on occasions she was alleged to have been the victim, including episodes of physical violence having been perpetrated against her.

46 The Magistrate who determined establishment in the earlier proceedings made it clear that it was conduct of this kind that persuaded him that the children were in need of care and protection.

47 He said, for example:

"There were portions of the evidence that were extremely strong and I need to refer to those. Firstly, there is Amanda's comments herself: I agree with the submissions made by the Department that the context in which they were made and the persons who they were to, is strong evidence in favour of the case that there is domestic violence. The fact that she refers to pulling hair, not only is there an admission by the father in the affidavit of Mr Jenkins that he does pull her by the hair. It says, 'The father later confirmed that he has pulled the mother out of the house by her hair during a heated argument'.

...So we have Amanda's comments about pulling the hair; we have admissions about pulling the hair. Then I will turn to the mental health records which have been tendered and of course the business records. There is reference in there to ongoing domestic violence and allegations being made, not just by the mother, who by her own admission makes things up, but also by the father recorded in the material and also by the paternal grandmother recorded in the material... In other words I have to ask myself how likely is it that the mental health workers are just completely making things up when they are stated by the mother and the father and the paternal grandmother.

The answer to that is, it is extremely unlikely... There are also some worrisome matters which I take into account in determining the veracity of the father's evidence. There are inherent and concerning inconsistencies in his evidence...

Now if it is true then that it is consistent with evidence of ongoing domestic violence in the premises... The mother's evidence was of concern because quite clearly for her to say for one moment that she has not had involvement with mental health since the birth of her child is suggesting that when the vast bulk of reports and the clear evidence is that there has been ongoing issues - that in my view apart from the fact that she herself says she is not telling the truth; then it combines to create a situation where I need to evaluate whether these children are exposed at the time to ongoing significant extensive domestic violence which is now being covered up by the parents; covered up by the father by suggesting that it never occurs...and covering up by the mother by suggesting that she cannot remember it, that I cannot take what either of them say about the domestic violence seriously.

In my view it is more likely than not that the children have been exposed to significant ongoing domestic violence in that home and that therefore as at 28 October 2010 the children were in need of care and protection."

48 Yet these parents came to my Court asking me to accept that the domestic violence didn't occur.

49 I was told that the documented complaints, in large part, were never even made, indeed they were fabricated by the relevant reporters, including both police and medical and other employees of the hospital. Where the records were actually acknowledged, I was told that the episodes recorded did not actually occur. Rather, such episodes were made up by one or other of the mother or the father to hurt the other or to make them look bad in order to bolster their competing claims for custody of Amanda. It was submitted by the solicitor for the father that maybe one-tenth of the complaints related to actual events, and the rest were fabricated. Thus, the parents attempted to present to me a united front to the effect that the preponderance of their complaints were a concoction, fabricated by the one against the other, to denigrate the other, to assist their case for custody of Amanda.

50 This proposition may be doubted, having regard to the detail and the consistency of all the reports and other material, such as the affidavits in the family law proceedings, the matters disclosed to caseworkers, and the clinician, and accounts of things said by Amanda herself. Even recently, Amanda is reported as saying words to the effect, "Is Daddy still hitting Mummy?"

51 All of this material tends to confirm and demonstrate that in large part, the complaints present an accurate picture of what the solicitor for the Independent Legal Representative described as a violent, dysfunctional and chaotic household, attended by regular disputation and disharmony, and involving physical abuse, threats of self-harm, and damage to property. This was the view to which the Children's Court Magistrate came in the establishment proceedings, which I have already read out.

52 The documented complaints and reports are set out in Exhibits D, E, F, G, K, M, N, O, P, R, S, and T. They include records of COPS entries, and records of the local Mental Health Service. The effect of the parents' evidence, as I have said, was that the authors of these entries concocted them.

53 Indeed, it seems that the parents would have it that there was a conspiracy of some sort between the police, the hospital staff, and DFaCS, to fabricate and concoct a litany of lies, with a view to damaging and denigrating them, and impugning them, to justify the removal of their children.

54 Just why the police or hospital staff would want to participate in that sort of conspiracy was not explained.

55 For my part, the proposition only has to be stated to demonstrate its absurdity.

56 There were two low points in this parade of self-obsession on the part of the parents. The first was the father's accusation that the Independent Legal Representative of the children, a female solicitor appointed by the Children's Court, and the male solicitor retained to represent her at this hearing, were also "in cahoots" with the Department.

57 The second was the personal attack on the solicitor appearing for the Department, when the father accused him from the witness box of being "a sick bastard" when the solicitor put to the father, in cross-examination, that the father had told the police in a complaint made on 1 September 2009 to the effect that the mother had inserted her finger in the child's vagina while bathing her. What the father seemed to fail to appreciate was that he was the author of the complaint, not the solicitor representing the Department.

58 As indicated I now propose to examine some of those entries and I will paraphrase them.

• A report to the police dated 29 September 2009 records:

"The argument accelerated and the accused has pushed, hit and punched the victim with both hands and at times a closed fist. During the assault the victim was knocked to the ground where the accused then proceeded to king her (sic) a number of times in the back of the side area. The accused has then said to the victim 'Get up. Get up, you fucking cunt.' The assault has occurred in front of the couple's three year old child and the accused has then attempted to take the victim's mobile phone from her to stop her from contacting help."

Later in the report it is recorded:

"It is said that the accused attended and collected the victim and the child and returned to their address at the property. They've again started to argue and the accused has said to the victim, 'There will be a gunfight. I'll shoot the coppers and then I'll shoot you and your daughter.' This has terrified the victim and she has taken the child to bed."

• A COPS entry dated 15 May 2010 records:

"Between 8.30am and 10.30am on Saturday, 15 May, 2010 an argument occurred between the victim and the person of interest over an unknown matter. Towards the end of the argument the person of interest threatened the victim with a large kitchen knife. Both had conflicting stories as to the other's actions during the assault. The person of interest said the victim punched her to the back of the head. The victim said that the person of interest punched him to the nose. The person of interest admitted to throwing a dinner plate at the victim."

• A COPS entry dated 14 June 2010 records:

"Police have attended the dwelling and spoken with the victim who was found lying in a bed fully clothed. The victim stated that the person of interest wanted her to put pumpkin seeds into punnets of mulch, but she didn't want to. The person of interest became angry at the victim for not helping and wouldn't let her outside to have a cigarette. Police formed the opinion that both parties seemed to have varying degrees of mental health problems. The person of interest continued to yell about the lack of assistance from the victim and his inability to run the farm; look after their daughter; and cook on his own. Police asked the victim if she felt comfortable staying with the person of interest and she said she did not. The victim was conveyed to her friend's home."

• A COPS entry on 17 July 2010 records:

"About 6.30pm on Friday, 16 July 2010, police were called to the property by a friend of the mothers who resides in ... to check on her welfare as she had been in a domestic argument earlier in the day with her de facto, the father. When police arrived around 8.20pm police spoke to the mother who was standing outside the father's new residence on the property. She told police that the father wouldn't let her inside and that she was locked out. Both she and the father claimed that they had been assaulted by each other, a common occurrence between the parties. However, neither party had any visible injuries; neither of the parties wanted to give the police any further details."

• A COPS entry on 28 August 2010 records:

"At the present time the mother has been staying there for the past three weeks. In the afternoon of this day an argument ensued between both parties when the victim, the father, received paperwork in the mail informing him that he had sole custody of the child. The person of interest was not happy with this news, as both parties had been before the courts attempting to gain custody.

The argument continued into the evening until the father went to bed. About 11pm that evening the father was awoken by the sound of smashing glass. The person of interest had punched the bedroom window smashing the same. She has also ripped up the custody papers he had received in the mail. The person of interest then walked to the nearby shed on the rural property and locked herself inside. The father contacted the police."

The report goes on:

"The child, Amanda, was sighted and spoken to and she was in good health. Clean and tidy and did not appear affected by what she was seeing. Unfortunately, this little girl has grown up with this type of occurrence happening on a regular basis."

I interpolate here to say that the mother's explanation for the broken window is that at 11 o'clock at night she was cleaning the window and it just broke. I do not accept that evidence.

 

• There is an entry on 28 August 2010 from the Mental Health Team as follows:

"The Mental Health Access Line reports an inbound call from the father who wanted the mother removed from his house. She smashed a window last night and cut her arms. In the morning she kicked a big hole in the bedroom door. She is angry over custody issues. She is traumatising her daughter with her behaviour. She tried to stab her husband last night. She smashed the phones at home and there is no way to contact her. She has knives in the house and has threatened to stab her husband if he returns."

• An entry from the same organisation on 10 September 2010 records an inbound call from the father presenting as distressed:

"He reported that his expartner, the mother, had locked herself in the shed at his property, threatening selfharm. He and his four-year-old daughter have been outside trying to get her to come out for some time. She is not currently taking any medication. She has smashed windows and put holes in walls and the floor on occasions in the past month in front of her four year old daughter."

• A COPS entry on 4 October 2010 records:

"The length of the mother's stay varies from a few days to months at a time. An argument ensued on this day. This was over the victim not cleaning up et cetera. This upset the person of interest and he allegedly punched the victim to the right side of her body in the ribs area and kicked her to the lower abdomen area. This has caused some pain to the victim and she left and contacted triple0 and waited in the rain for a period of time. Ambulance attended and conveyed her to ... Hospital. Police later attended the ... Hospital and spoke to her."

As a result of that incident a COPS reports note that an AVO was granted. It was served on the father at 8.55pm on 4 October. When served he stated 'What? She smashed the place up. Pulled knives on me. Who put the order on me?' When spoken to further he stated, 'Get fucked.' He slammed the sliding door on police."

• A report the next day, 5 October 2010, from the local Area Health Service records:

 

"I have just had a phone call from the father from his property. He has left messages at ... Mental Health, but no one will ring him back and talk to him. He is very distressed. He said that the mother smashed his six-week-old house up last night and his car and then rang an ambulance and said that he had bashed her. He said that he has to go to court in a few weeks time about custody of his four year old daughter and this is why she has smashed his stuff.

She has taken out an AVO against him and now he says that the AVO comes up at court the same day as he has a custody hearing and he won't be able to be represented. This is the second or third time she has done this when a custody hearing is coming up. He wants to know why Mental Health Team were not called yesterday as she has a history of false accusations and false allegations all known by the police, ambulance and the local Hospital. He also said that she has attempted suicide on 20 occasions in front of their four-year-old daughter. He also said that his daughter had been molested when she was in her mother's care on several occasions. He said that he has never touched the mother. She just goes off if she received a solicitor's letter or the like."

• There is a COPS entry on 3 November 2010 that records:

"There is a current enforceable AVO between the pair, in force since 23 October 2010. The AVO includes standard orders. Police were contacted stating that the patient had stolen his car; had caused damage to it. She was observed to be standing at the front gate of the rural property next to a Holden Commodore. The vehicle had a smashed windscreen. She said, 'It's my car and now I have nothing left. I suppose now I'll just go and kill myself.' Police have conveyed her to the local District Hospital."

• Then there is an entry on 3 November 2010 in the records of the local New South Wales Health. This is handwritten and it records:

"The mother is now pregnant with a second child. Planned. Following an argument with the father yesterday over her refusal to weed the garden. He allegedly grabbed and dragged her by her hair. She responded by getting in her car; overrevving the motor; blowing it up. She then punched a hole with her fist in the car window ("To hurt myself,") He called police who responded and when the officer asked the mother where she would like to go she replied 'She would kill herself'."

• A record from the local Mental Health Access Line, 10 December 2010, reports an inbound call from the paternal grandmother reporting that the mother needed help:

 

"Her son the father has just called her and said that the mother has gone crazy. A door has been completely wrecked. She has pushed and hit her daughter Amanda. She has put holes in the wall; smashed up the car with a hammer; she has threatened him with knives and scissors in the past. Every time there is a custody hearing she puts an AVO on him."

• There is a record on 10 December 2010, on the same day of a complaint from the mother.

"She reported he had pushed her over; kicked, punched and pulled her hair. He's been hurting her every day. He hurts his daughter. She punched him in the legs. He has her in the head (as said) Then she hit him. He's controlling. She has no car. She can't go anywhere. He's the one that needs help. He smokes THC to calm himself.

He reported, 'She is bipolar. Schizophrenic.' When asked whether this was a confirmed diagnosis he said that this is what he had been told at the hospital."

I interpolate to say that the father denied in this court there was ever such a diagnosis. The record then goes on as follows:

"Twenty suicide attempts on the property. Just written off his Commodore. She pushed him into his daughter this morning. He fell on her and she hurt her hand. When asked about the daughter's wellbeing he said 'She's right as rain. That's not the point'."

Sadly, it is.

• Then there is an entry of 6 February 2011 in the COPS record that records:

"The person of interest and the victim in this matter have been in an onoff domestic relationship for the past twelve years. As a result of that relationship they have a child, Amanda, aged four. The father resides with the small child at his residence, while the mother resides there on access visits and when invited by the father. The length of her stay varies from a few days to months at a time. At about 6.30pm on Sunday, 6 February, 2011 both the victim, the father, and the acc, the mother, were at the rural premises. Also present was their four year old daughter, Amanda. The mother is six months pregnant.

The victim was inside the premises at this time when he heard the accused call out to him from the veranda. The victim looked out towards the veranda and saw the accused standing there holding the household telephone with its cord attached. The accused shouted 'Look at this, you can't ring anyone.' The accused then ran off the veranda to the victim's blue Mitsubishi Magna station wagon which was parked near the house.

The victim saw the accused start punching the bonnet of his Magna numerous times, so the victim walked down to the accused to stop her from damaging his car. The accused ran over to the house and picked up a plastic grass rake. The accused 'raised the rake above her head and hit me on the head.' The accused dropped the rake and picked up a stick. The victim then ran up the stairs to the house before being struck twice to the right arm with the stick by the accused. As a result the victim received a cut to his elbow and forearm."

• Then, finally, there is a medical record of a report from an independent person from the local Hospital on 8 August 2011 where the reporter records that during a hospital visit:

"Father was physically aggressive and verbally aggressive to their daughter whilst on the ward. Mother was verbally aggressive to the daughter whilst on the ward. Father stating to the five year old child that he would pull her hair again if she didn't settle. Mother heard saying to the daughter, 'Be quiet or your hair will be pulled'."

59 Those are just a smattering of the records, but perhaps the most telling and the most recent.

60 When assessing credibility the court seeks to rely as much as possible on contemporary materials; objectively established facts; independent support from other material; and the apparent logic of events. In this case, there is of course an abundance of material upon which the court might draw to demonstrate the falsity of the parents' evidence. But in this case the court cannot ignore the demeanour and conduct of the parents in court and in the witness box.

61 The father presented as an angry, aggressive single minded protagonist who is not prepared to see anything but his own view of the world. He was sly and evasive in the way he answered questions; aggressive in his denials of even the most patent of factual assertions laid before him. The mother was sullen, uncooperative and similarly evasive. Her evidence was glib, contrived, and had a distinct flavour of being coached or rehearsed.

62 I am comfortably satisfied that each of the parents was an unreliable witness. Accordingly I will not accept any of their evidence unless it relates to episodes or events that have been otherwise independently verified or supported as being in accordance with their assertions. As to any assurances that they give in respect of the future, this court is unable to accept such assurances as having any substance or any reliability.

Restoration

63 I turn now to consider whether this court should accept the assessment of the Director-General that there is no realistic possibility of restoration of these children to their parents.

64 The Director-General submits that the evidence establishes that the parents are not likely to be able to satisfactorily address the issues that led to the removal of their children from their care. It was also submitted that the circumstances of the children themselves militate against a restoration.

65 The Director-General relies upon the totality of the material before the Court, but in particular the evidence that the historical relationship between the parents involved, as I have described, heated and unruly arguments and confrontations, occasional violence both to property and person, often in the presence of the child Amanda and sometimes directly to her.

66 I am satisfied that it has been proved to the requisite standard that the domestic discord involved and included violence and included such physical abuse. Most significant in this case was the fact that the parents not only denied the violence and abuse which I have found did occur, but they were also incapable of understanding the effect of it on the child Amanda. They seem to think that it was acceptable to conduct themselves in the way they did as long as the child herself was not abused or present, and that everything else was acceptable.

67 The parents sought to contend first that no abuse was occasioned directly to Amanda, but I am comfortably satisfied that it did. There are several undisputed examples. Perhaps the most telling was the episode in the hospital when the father threatened to pull her hair.

68 The suggestion that such incidents were confined to circumstances in which the child Amanda was not present is both tendentious and misleading. It also indicates more starkly the lack of insight that these parents display. There is recurring evidence of Amanda witnessing incidents or being in the vicinity of them. More probably than not she was present at or heard many of the heated arguments and altercations, the violence and the property damage and her mother locking herself in the shed. She no doubt experienced firsthand the distress and tension that accompanies such incidents and situations. Amanda herself confirms the fact of domestic disturbance and violence and sadly she became accustomed to it. The parents' conduct was of a nature that was inevitably conducive to and productive of harm, physical, emotional and psychological to Amanda.

69 The situation is exacerbated by the continuing disavowal of the parents of the impugned conduct and their minimisation of its nature and effect and the consequences of it.

70 Both parents denied any physical violence and as I have said I am comfortably satisfied that there was and that it was frequent and prevalent.

71 This inability of the parents to demonstrate appropriate insight into their conduct is manifested in other ways, I make particular reference to the attribution of blame on the Department and its caseworkers, rather than understand and accept that it was the conduct of the parents that led to the removal of the children.

72 I am especially troubled by the evidence of harassment, abuse and stalking of the caseworkers by these parents, in particular the father. This includes evidence about the occasion on which he deliberately bumped into one of the caseworkers in a supermarket and threatened another in the street. The attempts to downplay these incidents as innocent, accidental or coincidental demonstrate the lack of insight and the disdain these parents have for proper community standards.

73 The incidents which are denied by the parents did in my view occur and I am comfortably satisfied that they occurred in the way described by the caseworkers who gave evidence of them. I find it intolerable that people who are trying to go about their daily jobs in a professional and caring manner should be put in fear and subjected to threats and harassment, such as has occurred in this case.

74 Furthermore, the parents sought to assert that their arguments and altercations had occurred in the absence of Amanda. I am comfortably satisfied that on numerous occasions she was present or in the vicinity. It is now well established in the literature to the point of being trite that secondary exposure of young children to violence and domestic disharmony is as equally damaging to their emotional wellbeing as direct physical abuse. There are some stark examples in the evidence of how Amanda had become accustomed to and inured by the domestic disharmony and violence that went on around her on a regular basis.

75 I turn now to consider the evidence of the expert witnesses. There is a conflict between this expert evidence. Sadly in this case I am compelled to reject the opinion of the Children's Court clinician, Dr Rich. She is a lone voice in the evidence supporting a restoration of these children to their parents, albeit on a staged basis. In her report she concludes:

"I respectfully recommend that both parents are provided with an opportunity for regular supervised weekly access with their children for the next few months. This should occur as soon as possible. These visits would enable the parents to demonstrate to the court that they can work together as a team and jointly provide reliable and safe parental care to the children.

During this time the father and the mother should be supported to participate in the abovementioned counselling and therapy.

If the parents demonstrate during the initial two or three months that they are capable of providing proper parental guidance and care during these access visits a process of the children's restoration to their parents should be initiated.

If the children's current carers are unwilling or unable to provide care for the children for the next few months the department could investigate family care options with paternal relatives to limit any potential adverse impacts of yet another significant change to carer.

Due to Amanda's loose social attachment and Tony's young age the restoration of the children could occur in a relatively short period of time; for these same reasons the two children should be stabilised ideally with their natural parents as soon as practically possible."

76 In my view, however, the reasoning process by which the clinician came to these recommendations is demonstrably flawed. The clinician, in forming her opinion, downplays the nature and extent of the domestic violence and disharmony that was prevalent. She even described the father as being 'polite and calm'. She then accepts without any analysis the assertions of the parents that they have put all that behind them. This is evident from her unquestioning acceptance of the opinion of the parents' psychologist, Mr Jenkins (see paragraph 63 of her report).

77 I have now read a large number of reports by Children's Court clinicians; unfortunately I found this report superficial and poorly reasoned. It is onesided. I do not say 'partial', but it accepts the parents' version of events and their position without objective analysis and without giving any weight to the contrary factors. A stark example is the clinician's ready acceptance of the father's explanation for Amanda's unwillingness to see him (see paragraphs 65, 68, and 69 of her report.

78 Perhaps the most disturbing feature of the clinician's report appears at paragraph 70 of her report:

"The mother has poor understanding of what domestic violence entails, but understands that shouting and fighting in the presence of children is bad for them and would not do this if they were around. The father fully understands the meaning and impact of domestic violence on children, explaining 'I would never fight before my kids and I never have. My childhood was loving and good and that is what I want for my kids. I want to have a big family. I love my kids'."

79 That paragraph demonstrates the extent to which the clinician disregarded what was before me in terms of the extensive history of physical altercations that I have described and it provides the basis of the flawed reasoning to which I have referred. The clinician's opinions are at odds with the other experts who have had a far closer involvement over a longer period of time with the history and circumstances of these parents and these children. To a person they all strongly oppose restoration of the children to the parents.

80 For these reasons I place no reliance on the opinion of the clinician in this case.

81 The first limb of the assessment required by the Care Act in relation to a realistic possibility of restoration involves consideration of the circumstances of the children. In the present case there are many features particular to these children that indicate that they would be much better served by an out of home placement than a restoration. The solicitor for the Department gave examples with which I agree when he said that:

"Given what Amanda has been through she needs careful and prolonged counselling which is unlikely to be obtained if she is returned to her parents. She needs the certainty of a safe secure placement. She doesn't want to be concerned with domestic violence between her parents. Similar considerations apply to Tony and it is better that the children are kept together."

82 The second limb of the assessment requires the court to have regard to the evidence that the parents are unlikely to be able to satisfactorily address the issues that led to the removal of the children from their care. Perhaps the high point of their evidence was that they have attended some courses. Nevertheless, when asked about what they learned from those courses, they were not really able to particularly enunciate anything that they learned that would indicate any advancement of their position.

83 Fundamentally, such courses are valueless if the underlying issues are unacknowledged, as they are in this case.

84 For these reasons I am comfortably satisfied that the parents have not and show no signs of even starting to satisfactorily address the issues that led to the removal of the children from their care. They have shown no improvement of any tangible or credible nature in their understanding of parenting or the needs of children, and it is not possible to confidently predict any in the foreseeable future.

85 In my view, any restoration of these children to these parents at this time would present an unacceptable risk of harm to those children.

86 For these reasons I accept the assessment of the Director-General that there is no realistic possibility of restoration.

Permanency planning

87 In my view, for all the reasons I have given, these children remain in need of care and protection.

88 Accordingly, I will turn to consider the permanency planning proposed. I will deal first with the placement and the allocation of parental responsibility, as there is no dispute of any substance or no apparent dispute about this issue. None of the parties, including the Independent Legal Representative, raised any matter for consideration in respect of the permanency planning so far as placement is concerned in the event that I were to accept the assessment of the Director-General as to restoration.

89 I have carefully read the Care Plans and the document amending the contact arrangements and in my assessment the plans appropriately and adequately address the permanency planning required for the two children in the context of a permanent out-of-home placement. The plans provide for a stable placement that offers them longterm security. Important in this context is that the arrangements are to be made in a timely manner to ensure the provision of a safe, nurturing, stable and secure environment as required by s 9(2)(3) and 9(2)(f) of the Care Act. These are young children such that the need for early decisions is the greater.

90 I am also satisfied that the permanency plans meet the needs of both the children and will avoid the instability and uncertainty of a succession of different placements or temporary care arrangements.

91 I will now consider whether the permanency planning appropriately and adequately addresses the issue of contact and whether it includes provisions that involve the retention of relationships with people significant to the children.

92 The Care Plans as modified by the amendments set out in Exhibit W provide for minimum contact with the mother, the father and the paternal grandmother. There is a detailed contact plan. The plan accommodates contact with all relevant persons and it was not suggested that anyone else was required to be included.

93 The points of contention revolved around issues of frequency and supervision. The parents obviously want more contact than the minimum currently proposed. The Independent Legal Representative supported an increase in the frequency of contact for the children with the mother.

94 There were also issues in this case about the wishes of Amanda herself, and there are conflicting reports about what it is she really wants. For example, some of the things that it is reported that Amanda has said include, as I have said before, "Is Daddy still hitting Mummy?" and "Tell the Judge I want to live with another family." Her parents suggest, however, that any expressions by Amanda indicating resistance to contact are a product of coaching by the Department and the caseworkers.

95 I reject that proposition. It is simply unsupported by any objective assessment of the material in evidence. Sadly, there have been issues surrounding contact episodes in the past, even recently. The parents seem to be entrenching themselves into a siege position where they refuse to have contact with the children unless it involves both parents with both children. That situation has the potential to be further exacerbated as the mother revealed in evidence yesterday that she is expecting a third child early in 2013. Having regard to the difficulties surrounding contact it is inappropriate for the court to be proscriptive, and in my view all decisions are best left to the discretion of the Director General as advised by the caseworkers on advice from appropriate specialists at the relevant time.

96 This leaves the question of frequency of contact for consideration.

97 In this context it is appropriate to raise the issue as to the extent to which the views of the children, or at least of Amanda, should be taken into account. Clearly, they need to be given the opportunity to express their views freely. Obviously, at Tony's age this is not particularly possible, but it will become so as he grows older. Their views, however, are only a factor and should be given such weight or due weight in accordance with their developmental capacity and their circumstances.

98 I should record that I was disappointed in this case, not to have had the benefit of learning the content of the discussion that took place between the Independent Legal Representative and Amanda, given the clear independence of the Independent Legal Representative. Despite the accusations of the father, that sort of insight would have been invaluable to the Court.

99 The wishes of the parents are understandable, nevertheless it is not about them. Of paramount concern is the safety, welfare and wellbeing of the children. In all the circumstances of this case, in my assessment the contact proposed by the Director-General is appropriate and adequate.

100 I therefore make the following express findings.

(a) The permanency planning proposed involves the least intrusive intervention in the life of the children and their family that is consistent with the paramount concern to protect the children from harm and promote their development.

(b) The permanency planning proposed has been appropriately and adequately addressed both as to placement and as to contact.

(c) Any order other than an order allocating parental responsibility to the Minister till the children turn 18 would be insufficient to meet the needs of the children.

101 I make the following orders:

1. Amanda is to be placed under the parental responsibility of the Minister until she turns 18.

2. Tony is to be placed under the parental responsibility of the Minister until he turns 18.

3. All contact between the children and anybody else is to be at the discretion of the Director-General as to frequency and as to such other conditions as may be appropriate in the opinion of the Director-General. Contact is to be supervised at the discretion of the Director-General.

Amendments

22 February 2013 - Missing information on coversheet and 2011 doubled up in paragraph 29
Amended paragraphs: Coversheet and Paragraph 29

Decision last updated: 22 February 2013