O'Connor v The Minister for Family and Community Services [2020] NSWDC 453

District Court New South Wales

Medium Neutral Citation: O'Connor v The Minister for Family and Community Services [2020] NSWDC 453 Hearing dates: 3 August 2020 – 4 August 2020 Date of orders: 4 August 2020 Decision date: 04 August 2020 Jurisdiction: Civil Before: Priestley SC DCJ Decision: See paragraphs [17 - 18] Catchwords: CHILD WELFARE — Care proceedings — Restoration Legislation Cited: Children & Young Person (Care and Protection) Act 1998 (NSW) Cases Cited: Re Tanya [2016] NSWSC 794 Texts Cited: Nil Category: Principal judgment Parties: Mother (Appellant) First respondent (Crown Solicitor) ILR Father Representation: Solicitor for the Appellant (McLachlan) Counsel for the First Respondent (Mahony) Counsel for the ILR (Boncardo) Counsel for the Father (Hill) File Number(s): 2019/00127479 / 2019/00137238 Publication restriction: Unrestricted

Judgment Introduction The case on appeal The appeal Determination Orders

Judgment

Introduction 1. This is an appeal under s91 of the Children & Young Person (Care and Protection) Act 1998, ("the Act"). By that section any party dissatisfied with final orders made by the Children's Court may appeal to the District Court. The District Court may confirm, vary or set aside the decision of the Children's Court. The District Court decision is taken to be the Children's Court decision. Section 91 by its terms makes it clear that this is a hearing de novo and that there is no need for the Court to find error in the decision being appealed. 2. Whilst consensus has been reach by the parties, by reason of the provisions of the Act, in particular sections 9 and 83(7), the Court must be satisfied that it is appropriate to make the orders. Section 9 provides that any decision under the Act must be made under the principle that the safety welfare and well being of the children are paramount. Section 83(7) provides a final order must not be made unless the Court finds that permanency planning has been appropriately addressed and that prior to approving restoration there is a realistic possibility of restoration within a reasonable time which s83(8A) provides is a period not exceeding 24 months. 3. The children concerned here identify as Aboriginal and their father is from the Wiradjuri nation. There are specific provisions of the Act concerning Aboriginal and Torres Strait Islander people. Section 11 provides such a principle to be that Aboriginal and Torres Strait Islander people are to participate in the care and protection of their children with as much self-determination as is possible. Section 10A makes an exception of Aboriginal children by providing that the last preference for a permanent placement of such a child is adoption. This provision is not relevant to the present case other than to highlight the importance of focusing attention on the particular case of the children the subject of the proceedings. There are difficulties in the ongoing involvement of the father with the children which are sought to be addressed by the agreed proposed care plan. Speaking plainly the father has now been incarcerated for violence against the mother and then of a sexual assault against another female and has a history of alcohol abuse. On the positive side since his release from prison on 1 July 2019 he has worked very hard, appears intent on getting ahead initially in his business and later other work ventures and has had positive interaction with the children. He is more likely on the evidence to promote the children's Aboriginal culture as there is little in the evidence that I have seen of the mother going to that issue. 4. If as here the Secretary assesses there is a realistic possibility of restoration then there is to be prepared a permanency plan involving restoration. Under section 83 (5) the court is then to decide whether to accept that assessment. 5. By section 83 (7) the court must not make a final care order unless it expressly finds the permanency planning has been appropriately and adequately addressed and that there is a realistic possibility of restoration within a reasonable period having regard to the circumstances of the child and the evidence of the parents addressing the issues that led to the removal of the child 6. By section 78 the planning must also make provision for the allocation of parental responsibility. 7. Particularly in the background of the history of this matter it is helpful to note what is meant by "a realistic possibility of restoration". In Re Tanya [2016] NSWSC 794, a decision of Justice Rein the position was summarised at [35] by in part that a possibility is something less than a probability. A possibility is something that may or may not happen. It is not an impossibility. The concept is not to be confused with the mere hope of a parent's situation improving. It must be a realistic possibility and not fanciful sentimental or idealistic. It needs to be sensible and commonsensical. Significantly in the facts of the present case it was said that a realistic possibility may be evidenced at the time of the hearing by a coherent program already commenced and with some significant "runs on the board", an expression found in Re Tanya, and before that in a submission by Senior Magistrate Mitchell to the Special Commission of Enquiry into child protection services in NSW. Further it was said that the Court should be able to see that a parent has already commenced a process of improving their parenting and that there has already been some success and further success can be predicted, but I would add without being certain. 8. I note by section 93 it is provided that the conduct of these proceedings is not to be adversarial but is to be as informal as possible. The Dispute Resolution Conference that took place by a Registrar of the Children's Court when the matter was listed before me last November is perhaps an extension of that, with apparent desirable results. So too is the day of discussions that the parties engaged in yesterday. All the parties are to be commended for their efforts, attitude and results.