Department of Communities and Justice (DCJ) and Murphy [2020] NSWChC 11

Children's Court New South Wales

Medium Neutral Citation: Department of Communities and Justice (DCJ) and Murphy [2020] NSWChC 11 Hearing dates: 11, 12 and 13 December 2019 Decision date: 03 February 2020 Jurisdiction: Care and protection Before: Children's Magistrate Sheedy Decision: (1) There is no realistic possibility of restoration of Jay to Ms Murphy (2) Permanency Planning has not been appropriately and adequately addressed Catchwords: Restoration, Permanency Planning, short-term orders Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 Mental Health Act 2007 Cases Cited: The Secretary of the Department of Communities and Justice and Fiona Farmer [2019] NSWChC5 The Stonsky Children [2019] NSWCHC 8 Category: Principal judgment Parties: The Secretary, Department of Communities and Justice Ms Zala Murphy (mother) Jay Murphy (child) Representation: Ms Millers for the Secretary, Department of Communities and Justice Mr Herridge for Ms Murphy Ms Rowley as the Independent Legal Representative File Number(s): 2020 (Parramatta) Publication restriction: Pseudonyms have been used for the child and his family

Judgment

Background 1. Jay Murphy was born on [ ] 2018. His mother is Zala Murphy. 2. Ms Murphy reports that she does not know the full name of Jay's father nor does she have any way of contacting him. He is of West African descent. 3. Ms Murphy was born in Ethiopia and came to Australia for medical treatment and was then adopted by an Anglo-Australian couple when she was 3 or 4. Ms Murphy left the home of her adoptive family when she was 16 due to a deterioration in her home life. She does not have contact with her adoptive family and her adoptive parents have not expressed any wish to have any contact with Jay. 4. Jay was assumed into care from hospital on 25 January 2018. The Secretary of the Department of Family and Community Services (now the Department of Communities and Justice) ('the Secretary') made that decision having assessed that Jay would be at risk of serious harm if he were discharged from hospital into the care of his mother. The Secretary's assessment at that time was that Ms Murphy was unable to demonstrate capacity to meet Jay's basic care needs as a newborn infant. It was alleged that Ms Murphy was refusing to engage in the feeding process and general care of Jay while in hospital and was having difficulty articulating her care of Jay and what preparations she had made for his care after discharge. 5. The Secretary, shortly thereafter, lodged a care application and then on 11 October 2018, filed a Care Plan recommending restoration of Jay to Ms Murphy's care. 6. On 31 October 2018 the Children's Court found that there was a realistic possibility of restoration of Jay to Ms Murphy. The Court made an order of parental responsibility to the Minister for a period of 6 months and then jointly to the Minister and Ms Murphy for 6 months, and thereafter to Ms Murphy. 7. The Children's Court also accepted undertakings from Ms Murphy which included that she: * not use illicit substances or expose Jay to any persons affected by illicit substances * undergo drug testing for a period of two years * engage with a restoration service * attend and engage with Newpin * continue to engage with Headspace * engage with Flourish Australia as directed by Community Services (It is noted that the placement with Flourish was not arranged by Community Services) 1. On 18 April 2019 the Secretary lodged an application pursuant to section 90 of the Children and Young Persons (Care and Protection) Act 1998 ('the Act') to vary the order of 31 October 2018 with an order of parental responsibility to the Minister to 18. 2. In support of the s90 application the Secretary stated that Ms Murphy had not met the minimum outcomes outlined in the Care Plan for Jay to be restored to her care. 3. On 23 April 2019 the Children's Court made an interim order of parental responsibility to the Minister and then on, 31 May 2019, granted the Secretary leave to bring the s90 application. 4. Jay was placed with his current carers on 29 January 2018, just days after his birth, and he has remained in this placement. The placement, case managed by MacKillop Family Services, is not a culturally appropriate placement. 5. On 29 March 2019 until 1 April 2019 and then again on 2 April 2019 to 4 April 2019 Ms Murphy was admitted to the mental health unit at Campbelltown Hospital. 6. On 31 October 2019/1 November 2019 and 2 November 2019 Ms Murphy was admitted as an inpatient to a mental health unit. On 4 November 2019 Ms Murphy was re-admitted and remained at Banks House, the Mental Health Unit at Bankstown Hospital until discharged on 26 November 2019. 7. The Secretary filed a Care Plan and Permanency Plan for Jay on 8 November 2019. The Secretary assessed there was no realistic possibility of restoration of Jay to Ms Murphy and proposed that Jay remain in his current placement permanently. The Secretary seeks an order of parental responsibility to the Minister for 2 years because the Secretary's states that his plan is for Jay's current carers to become his guardians within that time. 8. On 28 November 2019 the Secretary filed a single page Addendum to Care Plan stating that: Prior to the expiration of the two year order the Secretary will file a Section 90 application including a guardianship application in relation to Jay. Should anything arise during the two year period that contraindicates guardianship or should an unfavourable assessment be received, the Secretary will file a Section 90 Application prior to the expiration of the two year order seeking an alternate long term order in respect of Jay.