Children's Court New South Wales Medium Neutral Citation: Department of Communities and Justice (DCJ) and Jamzie [2022] NSWChC 1 Decision date: 29 July 2022 Jurisdiction: Care and protection Before: Children's Magistrate Hayes Decision: Section 61 application. Restoration to Mother. Catchwords: CHILDREN - Care and Protection – correct test for restoration – short term orders Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 Criminal Records Act 1991 Cases Cited: Department of Family and Community Services and Nathan [2018] NSWChC 1 Sudath v Health Care Complaints Commission [2012] NSWCA 171 Department of Communities and Justice (DCJ) and Bloom [2021] NSWChC 2. Re Tanya [2016] NSWSC 794 M v M [1988] HCA 68 Re Saunders and Morgan [2008] CLN In the matter of Campbell [2011] NSWSC 761 Category: Principal judgment Parties: The Secretary The Mother The Father The Child Representation: Solicitors: Ms Eveston (Secretary) Mr Russo (Mother) Ms Moran (Father) Ms Herridge (Independent Legal Representative for the Child) File Number(s): 2021/185311 Publication restriction: Pseudonyms have been used to protect the identity of the child and family. Judgment 1. Jamzie is Aboriginal. He is 1 year and 1 month old. 2. Jamzie's mother is Carol Antony (Ms Antony). His father is Jon Alex. 3. The maternal grandmother is Sue Antony (grandmother). 4. Jim Mulock is the most recent partner of the mother. 5. Jamzie was assumed into care at birth and placed under the care of the Minister. 6. The Secretary commenced these proceedings by filing an application pursuant to s 61 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care Act). 7. The Children's Court (Court) made an interim order allocating parental responsibility (PR) to the Minister: s 69. 8. The Summary of Proposed Plan (SOPP) was filed in July 2021. The Department of Communities and Justice (DCJ) considered restoration was a realistic possibility. 9. In August 2021 the Court made a finding that Jamzie was in need of care and protection: s 71. 10. In October 2021 the Care Plan was filed. The assessment was of no realistic possibility of restoration to either parent. 11. The mother seeks restoration of Jamzie to her care. 12. The Court found no realistic possibility of restoration of Jamzie to his father. 13. The father accepts that position and does not seek restoration but supports restoration of Jamzie to the mother. 14. The Secretary and ILR oppose restoration. 15. The hearing took three days. 16. Following evidence and submissions the Court delivered an ex-tempore decision not accepting the Secretary's assessment and directing the Secretary to prepare a different permanency plan: s 83(6). 17. The Court proposed a short-term order allocating PR to the Minister for 18 months, an order accepting undertakings, a s 90A to prohibit Mr Mulock having contact with Jamzie and a supervision order for 12 months. 18. Final orders were made on 29 July 2022. Time did not permit for an oral judgment, so the Court provides this written decision to the parties. Onus and Standard of Proof 1. The burden of proving this case falls upon the Secretary; and the standard of proof is on the balance of probabilities: s 93(4). Evidence 1. Ms Eveston presented the Secretary's case meticulously. A Court book was prepared, tabulated, and tendered, containing all filed material. 2. Four witnesses gave evidence in court. Three were relevant to a fact in issue, DCJ Caseworker Alison Brown, the mother Carol Antony and the grandmother Sue Antony. Issues in Dispute 1. The primary issue for determination is whether there is a realistic possibility of restoration of Jamzie to his mother within a reasonable period: s 83(5). 2. It is not in dispute that the mother has commenced a process of improving her parenting. 3. It is in dispute that the mother has had significant success that would enable a confident assessment that continuing success might be predicted. 4. It is not in dispute that restoration involves risks of mental health, drug use, and domestic violence. 5. It is in dispute that those risks are unacceptable risks. 6. It is in dispute that housing and parenting capacity are risks; and if they are found to be risks it is in dispute that those risks are unacceptable risks. 7. The facts leading to the removal of Jamzie are not in dispute. Other facts are. Facts in dispute are resolved by credit findings. 8. The mother's credit is in issue. Ms Brown and the grandmother's credit is not in issue. 9. It is not in dispute that the SOPP addresses the risks identified by the Secretary. 10. There were other consequential issues for determination, including contact for Jamzie with family members, a section 76 application from the current carer and the restoration plan. The court resolved these issues with the capable assistance of the legal representatives. Positions The Secretary's position 1. The Secretary's position is that the totality of the evidence establishes that there is no realistic possibility of restoration of Jamzie within a reasonable period, and that the only order facilitative of his safety, welfare and well-being is an order allocating PR to the Minister until Jamzie turns 18. 2. The Secretary submits the President's decision in DFACS & the Steward Children [2019] NSWChC 1 provides a two-stage test in determining whether a parent has met the threshold for restoration to be considered realistic within a reasonable period and would require the mother to have: 1. Commenced a process of improving her parenting and 2. Have some significant success which enables a confident assessment that continuing success might be predicted. 1. The Secretary submits at this time Ms Antony has not satisfactorily addressed any of the issues that had led to Jamzie's removal from her care. 2. The Secretary submits that the Court could not be satisfied that there has been significant success as of today's date, such as to enable an assessment that continuing success can be confidently predicted. The Mother's position 1. The Mother's position is that the totality of the evidence establishes that there is a realistic possibility of restoration of Jamzie within a reasonable period. 2. The Mother proposes that the Minister holds parental responsibility for 12 months and within that time Jamzie be transitioned into the mother's care; with a supervision order and undertakings as further protective measures. The Father's position 1. The Father supports the mother's position. The only caveat is that Mr Mulock has no contact with Jamzie. The ILR's position 1. The ILR's position aligns with the Secretary's. The ILR adopts the President's decision in (Re Steward), 2. The ILR submits that the Court could not be satisfied that there has been significant success as of today's date, such as to enable an assessment that continuing success can be confidently predicted. 3. The ILR submits that he cannot support the mother's case for restoration, and that this has not been a borderline case. Submissions The Secretary's submissions – Credit 1. The Secretary submits that the Court needs to consider whether the mother is in fact a reliable or credible witness. 2. The Secretary questions the mother's honesty in denying that Mr Mulock physically assaulted her. This denial is despite police suspicions and witness statements that Mr Mulock left the scene shortly after an argument. Whilst the mother maintains that police had it wrong, the Secretary asserts, there was no evidence produced to support this. 3. The Secretary submits that the only evidence of the mother's non drug use is over the last two months following urine testing. This implies the mother's claim of ceasing drug use from November the previous year is untrustworthy. 4. The context of the specific submission on the mother's credibility relates to the mother sending money to Mr Mulock yet relying on DCJ to provide fuel vouchers for travel to court to fight for the restoration of her son. The mother stated it was not true that she was relying on DCJ and that she would have come to court anyway. It was submitted that this does not reflect the events that transpired in court. The Secretary's submissions – Engagement with DCJ 1. The Secretary submits that on 29 June 2021 the mother attended the SOPP and Family Action Plan Meeting and was made aware of the tasks she was required to complete to seek restoration. Ms Antony did not initially engage with proceedings and did not engage with DCJ for a considerable period. The Secretary's submissions – Mental Health 1. The Secretary asserts that Ms Antony has not addressed her mental health. 2. Ms Antony advised that she is diagnosed with PTSD, anxiety and bipolar. The Secretary acknowledges that Ms Antony sought counselling offered by Kite Street Community Health Centre (Kite Street) and was recently prescribed medication by Dr Scott. The mother has attended two appointments with a psychiatrist for medical review. The Secretary accepts these are positive steps, but DCJ need to see ongoing engagement and commitment from Ms Antony to address her mental health. 3. It was submitted that when the mother was asked if she had raised any possible diagnosis, including mentions of a borderline personality disorder with her medical professionals, the mother responded "No". It appeared that those diagnosing did not have access to the mother's entire medical history. 4. Ms Antony previously divulged her drug use was 'out of control' and she was suicidal. Ms Antony disclosed a sexual assault in May 2020 which led to relapse. Ms Antony declined a referral to a sexual assault counsellor. The Secretary's submissions – Drug Use 1. The Secretary submits Ms Antony has not demonstrated ongoing abstinence from drugs, nor adequately addressed the underlying reasons for her drug use to a level that could give the court confidence she would not relapse or use drugs whilst caring for Jamzie. 2. Ms Antony did not attend scheduled urine testing following Jamzie's removal. 3. Ms Antony attended her appointment with Kite Street on 31 January 2022. This was 7 months after Jamzie's removal. 4. On 31 January 2022 Ms Antony attended Kite Street to undergo an assessment for drug use. The following was observed and discussed: * Ms Antony commenced cannabis use at 13 years of age and ceased at 22. Ms Antony recommenced May 2020 and was having 30-40 'cones' per day until reducing to 2-3 to help with sleep. She ceased use in November 2021. * Ms Antony commenced 'speed' at 16 years of age, ceased use at 22 for five years. * Ms Antony commenced using 'ICE' in May 2020 and was smoking 2-3 times per day, commenced intravenous use in July/August 2-3 times per day. * Ms Antony started using Heroin in September 2020, 2-3 times per week. * Ms Antony cut back her drug use and ceased use at seven months pregnant. * Ms Antony begun using when Jamzie was three months old and experienced withdrawal for two weeks when she stopped. * Ms Antony used GHB last in November 2021. She was taking it 4-5 times per day and it made her 'a bit trippy'. * Ms Antony disclosed 'mentally hanging out' for drugs but declined referral to the opioid treatment program. 1. The Secretary submits Ms Antony has remained abstinent since she commenced urinalysis on 29 March 2022. It is put that DCJ need to see Ms Antony's ongoing engagement with drug and alcohol counselling to address triggers for drug use. 2. The Secretary refers the Court to Department of Family and Community Services and Nathan [2018] NSWChC 1 the President of the Children's Court's states: it is my view that 18 months from a detox for someone who has been a drug addict, or drug dependant, for as long as the mother had been, is an insufficient period of time to be absolutely certain that there will be no relapse that would be deleterious in terms of the issue of safety: at [60]. 1. The Secretary calculates that the mother has attended fortnightly sessions totalling six hours as of today's date - after 20 years of drug use. The Secretary's submissions – Domestic Violence 1. DCJ are concerned about Ms Antony's re-entering a relationship with Mr Mulock or another person who uses drugs and falling into the pattern of using with her partner. 2. The Secretary submits Ms Antony has not yet engaged with any domestic violence programmes during Jamzie's life. Her choices in men are far from healthy and there is concern about Mr Mulock. 3. Mr Mulock appears to have significant emotional issues surrounding his relationship, having suffered suicidal ideations after arguments. 4. Mr Mulock's criminal history dates to 2016. His offences range from break and enter, child sex offences, resist officer in execution of duty and contravene an AVO. 5. Mr Mulock is subject to parole. His response to supervision is considered unsatisfactory due to further offending. 6. Mr Mulock's phone call records from 5 March 2022 to 19 April 2022 reveal multiple calls per day between him and Ms Antony. Community Correction records from 16 March 2022 states: "It concerns me the infatuation Jim demonstrates for Carol. He's future focused but mainly surrounding Carol, he mentions her in every aspect of the conversation. He swallowed razor blades after learning of her brain tumour. He refers to Carol as "wife" despite not being married. I believe intervention needs to focus on alcohol and drugs, mental health and impulsivity." The Secretary's submissions – Housing 1. Ms Antony has not demonstrated her ability to secure safe and suitable housing. 2. Ms Antony had a rental property with Propcare Property and was asked to leave on 3 December 2021. Concerns included noise complaints, people coming and going through the day and night and concerns of drug behaviour. 3. In December 2021, an exit completion report was completed. The condition report noted the following concerns: Broken windows, damage to walls and doors, drug paraphernalia including syringes a bong and ice pipe, used condoms and pregnancy tests. 4. Ms Antony is now residing with her mother, the grandmother. The grandmother has her own strained history and DCJ is concerned this living arrangement may not be sustainable long term. In the past the grandmother allegedly assaulted Ms Antony by throwing her against a wall and scraping her legs. 5. On 25 September 2006 a report was received by DCJ which stated the following: Carol had been drinking and has a history of self-harm that has required hospital treatment. Carol said her mum is trying to kick her out and she has nowhere to go, and also that her mother and she bash each other up all the time. 1. There were other reports from 2007. The Secretary's submissions – Parenting Capacity 1. No significant issues as to risk were raised by the Secretary. The Mother's submissions – Credit 1. Whilst Mr Russo did not address the court specifically on credit his submissions presumed that the court would accept the mother's evidence. This presumption was not misplaced. The Mother's submissions – Engagement with DCJ 1. Mr Russo highlights the responses by the mother to DCJ directions regarding contact, drug and alcohol counselling and the Women's Choice and Change program. The inference is that this participation is demonstrative of the commitment and the mother's ability to work with DCJ. The Mother's submissions – Mental Health 1. It was put that the mother is addressing her mental health issues and is taking anxiety medication and seeing Dr Scott, a psychiatrist. 2. It is observed that before May 2020 the mother had a long-term relationship of 14 years and appeared to have a stable lifestyle. From May 2020 the mother experienced traumatic episodes, she was sexually assaulted, and her long-term partner passed away. The Mother's submissions – Drug Use 1. The mother has not relapsed into illegal drug use since November 2021. 2. It is submitted that the mother followed the grandmother's footsteps into Kite Street. The grandmother had success with support from this service. The grandmother has been drug-free and employed for the last ten years. The Mother's submissions – Domestic Violence 1. It was put to the Court that the mother ended her relationship with Mr Mulock the evening following her giving evidence and discovering the full extent of Mr Mulock's criminal history and mental health state. Mr Russo has now sent the mother the Court book which comprises the Corrective Services file on Mr Mulock. 2. The mother began attending a Choice and Change seminar organised by Central West Women's Healthcare and Relationships Australia. This course is to develop an understanding on the impact of family violence, grief and loss, communication, conflict resolution, stress management, self-esteem, and equality in relationships. The Mother's submissions – Housing 1. It is submitted that the mother left chaotic circumstances in Sydney and moved to the grandmother's residence. The grandmother's home is appropriate accommodation for her and Jamzie. The mother has the support of her mother. The Mother's submissions – Parenting Capacity 1. Mr Russo argues that the mother has attended all contact visits, despite significant travel distances. The contact visits have been positive. Jamzie has bonded well with his mother, at one visit Jamzie fell asleep in her arms. The mother loves Jamzie dearly. The Father's submissions – Credit 1. The father submitted that the mother's evidence was given in a refreshingly straightforward and honest way, sometimes to her detriment, showing a strength of character. It was the father's assessment that the mother was frank about the issues of rehabilitation; and she had a genuine commitment to Jamzie's welfare. The Father's submissions – Engagement with DCJ 1. The father adopted the mother's submissions. The Father's submissions – Mental Health 1. The father adopted the mother's submissions. Additionally, it is put that the mother has developed self-coping strategies including breathing techniques in time of stress. The Father's submissions – Drug Use 1. The father adopted the mother's submissions. The Father's submissions – Domestic Violence 1. The father submits that the mother has developed an insight into what to look for when it comes to avoiding domestically violent partners. The Father's submissions – Housing 1. The father contends that the relationship between the mother and the grandmother is strong and supportive. 2. The grandmother describes the mother as one of the strongest persons she has ever met. The mother and grandmother are building a life together and doing well. It was put by the father that if anyone knows what the mother must do to successfully raise Jamzie then it is the grandmother. The grandmother will be the mother's greatest asset in a successful transition. This ensures a safe and secure home. 3. The mother has a budget and will reduce stress in the home. The Father's submissions - Parenting Capacity 1. The father refers the court to the permanent placement hierarchy: s10A. The father notes the mother has worked in early childcare and as a swimming instructor for children. The ILR's submissions - Credit 1. Mr Herridge sought to highlight not so much the truth or reliability of the mother's evidence but the weight that the court should attach to it. Mr Herridge submits that the mother was assertive and aspirational but predicated upon the basis that all is well enough for Jamzie to be restored straightaway. This was a red flag for the ILR because it demonstrates a lack of insight. 2. It was further put that whatever counselling the mother had done did not serve her well and that she is still making poor choices. For example, in cross-examination the mother said words to the effect that her gut tells her that Jim Mulock will be fine, only to find out moments later the extent of Mr Mulock's mental health and criminal history. The ILR's submissions - Engagement with DCJ 1. The ILR adopted the Secretary's submission. The ILR's submissions - Mental Health 1. The ILR observes that the mother claims plenty of counselling over the years of which there is little information. The mother says she now manages her mental health with mindfulness and breathing. Her words were, "her mood is currently stabilised by life". What the mother can evidence began this year - Kite Street began in January 2022 once a fortnight. The psychiatrist started March 2022. So far there has been one session with the psychologist. The ILR's submissions - Drug Use 1. The ILR recognises the mother has demonstrated six months continued abstinence, but that's against a background of a 14-year poly drug history. When the ILR asked the mother about her coping mechanisms, the response was that she uses what I have learnt over years of therapy. The ILR highlights the mother was not any more specific than that. The ILR's submissions - Domestic Violence 1. The ILR notes there is no significant evidence of domestic violence counselling. To the mother's credit she concedes that she has not done enough. The mother is on the waiting list for Women's Choice and Change, but the ILR submits that whatever counselling she has done has not served her well and that she is still making poor choices, even within the last year. 2. The ILR argues that the physical and sexual violence from partners of the grandmother, who as a child Carol was entitled to trust, impacted upon her life. The mother repeatedly misplaced her trust in her own partners. Dave Fernando died and Jim Mulock and Jon Alex are in prison. In the ILR's submission, the Court can draw no comfort from the assertion that the mother is separated from Jim Mulock, particularly as she said the same thing just under a year ago when she learnt that he was a convicted paedophile. The ILR's submissions - Housing 1. In terms of accommodation six to eight months ago the mother said she resumed her habitation with the grandmother after years of limited contact, if not total estrangement. The mother's history as a child; and fragile relationship with the grandmother, raise concerns about the grandmother as another member of the household in which the mother is seeking to care for Jamzie. If the grandmother was a completely benign and neutral presence one would still have concerns about this restoration, but the fact that the grandmother herself has that history and arguably the problems the mother has as an adult are the product of how she was parented. One would certainly have concerns about Jamzie joining that household. 2. The ILR concedes that the grandmother was definitely a very compelling witness and that she too made admissions that would not serve her well but unlike the mother, it is put, she made no attempt at all to cultivate a positive image of herself. The grandmother's evidence for all its integrity and candour does little to alleviate concerns about the appropriateness of restoring Jamzie to a household where she and the mother would be the primary care ticket, amid her own history of drug use and domestic violence which the mother was exposed to. The ILR's submissions - Parenting Capacity 1. About risk, the mother asserts that she can parent Jamzie immediately, but the mother does not offer one piece of independent evidence, apart from the drug testing, to support the assertion that she is ready to parent Jamzie. When one comes to Court for a three-day hearing, after months of litigation one could normally expect to see a letter from a psychologist, a letter from a psychiatrist, a letter from a counsellor, we have nothing like that in this case. There is nothing to independently support that remedial work is something from which the mother has drawn any benefit yet. In the ILR's submission the reason for that is that the therapy the mother is now receiving has just started. It just started this year within the last five months. Finding of Facts 1. DCJ Caseworker Alison Brown's evidence was largely uncontested. Ms Brown impressed as a good historian; and as a dedicated, conscientious case worker. 2. The mother, Carol Antony and the maternal grandmother, Sue Antony gave evidence. 3. The credit of the mother is an important determinative in this case and requires an assessment of the quality, consistency, and cogency of her evidence. 4. Two different aspects bear upon the question of credibility. The first is the demeanour of the witnesses. The Court observes the evidence as given and uses those observations to determine whether the witnesses gave evidence in a forthright and knowledgeable manner. This influences whether the witness's evidence is convincing or not. 5. The second aspect is the extent to which separate evidence may be admitted that has the specific function of either enhancing or destroying the credibility of a witness, whether by way of showing capacity or incapacity, consistency or inconsistency or evidence impacting character – positive or negative. 6. The mother impressed as a credible witness. She took time to properly understand questions before providing considered, thoughtful and measured responses. The mother's evidence was unrehearsed and spontaneous. Direct and unequivocal. The mother did not seek to avert blame or criticism from herself. 7. The mother's evidence was consistent with DCJ documents and other forensic material. There were no internal inconsistencies of note. 8. The Court disagreed with the Secretary's assertion regarding the domestic assault in June 2021 purportedly against the mother. The mother was challenged on her denials that an assault occurred. The Secretary cites police suspicion and witness statements as inconsistent with the mother's denials. 9. Police suspicion was based on anonymous complaints and second-hand hearsay. Whilst the Evidence Act does not apply: s 93(3), in Sudath v Health Care Complaints Commission [2012] NSWCA 171 Meagher JA said: the Court must base its decision upon material which tends logically to show the existence or non-existence of facts relevant to the issues to be determined: at [79]. 1. The Court accepts the mother's account. The Court notes the consistent explanations given by her, the denial that the mother gives under oath whilst subject to cross examination, the explanation attributable to Mr Mulock that was consistent with the mother's account, the availability of forensic evidence supporting the mother's version, the plausibility of her account, the decision by police not to lay charges and the withdrawal of the Apprehended Violence Order (AVO) initially taken out. 2. The Court disagreed with the Secretary's assertion that the only evidence of non-drug use was post urine testing. The mother gives evidence that she has not used drugs since November 2021. This is evidence. 3. The Secretary discounts the result of the hair follicle test that Ms Antony underwent. Testing indicated no drug use from 6 July 2021 to March 2022. The Secretary says, correctly, that the Court cannot rely on that test. 4. The reason the Court cannot rely on that test is because the mother made admissions that she used drugs during this period thereby bringing into question the reliability of the hair test. 5. The mother, in admitting drug use when the hair test that says she did not, is evidence against her self-interest. Evidence against self-interest is generally credible. 6. It seems incongruent to me for the Secretary to argue that the Court should accept the truthfulness of the mother's admission of using drugs yet not accept her evidence when she says she stopped using drugs. 7. The context of the specific submission as to the mother's credibility relates to the mother sending money to Mr Mulock hitherto relying on the Department to provide fuel vouchers for travel to court. 8. I made it clear that the mother had to be at court in person and I could not consider restoration without the Court having the opportunity to observe her. As I recall the evidence, Mr Russo raised costs of travel. I asked the Department to turn their mind to funding. 9. The mother is the respondent in court proceedings. The mother has attended all contacts since December 2021- travelling near enough to 400 kms as a round trip. These proceedings are taking place at Parramatta some 250 km away from the mother's residence. Jamzie is residing a similar distance away. The mother says she was attending court regardless of assistance; and I accept her evidence. 10. The mother accepts she transferred money to Mr Mulock. I accept that the provision of money to Mr Mulock whilst he is in custody shows the mother was beholden to him. The mother has exercised poor judgment in that regard, but not adverse to her credit. 11. During the hearing, facts emerged beneficial to the mother such as the mother previously being employed teaching swimming to "mums and bubs". Hidden in a contact report is the mother saying: 'I'm an early childhood educator.' Neither claim is doubted. The mother did not produce this evidence, nor raise it in submissions. It is not my view that the mother cultivated a positive image of herself. The mother's case did not present as a self-serving one. 12. The mother contends that she has gained insight into her past behaviour. That she accepts her role in the abuse of Jamzie in utero. The mother takes responsibility for it. 13. The mother asserts commitment to a plan that exists and is practicable and would address her deficiencies. 14. The mother says her relationship with the maternal grandmother is a safe and supportive one. 15. The mother attests to a positive working relationship with the Department and has demonstrated commitment and care during contact visits with Jamzie. The mother says she has stabilised her lifestyle. 16. The Court finds the mother to be a credible witness and accepts the mother's assertions. 17. The grandmother states that she has secure accommodation, stable employment, is drug free, has being living a positive contributing prosocial lifestyle for ten years and supports the mother in her quest. The Court finds the grandmother to be a credible witness and accepts her evidence. 18. The ILR's caution of the grandmother's drug and domestic violence history needs to be considered in light of the ten-year crime and drug free history. Even the Criminal Records Act 1991 (NSW) regards convictions being spent after the completion of ten-year crime-free period: s9. The grandmother should receive the recognition and respect of her remarkable rehabilitation. 19. Finally, on issues of credit, Mr Alex was a party. He was not questioned but filed evidence. Mr Alex appeared by AVL whilst in custody. The Court and legal representatives had an opportunity to make observations of Mr Alex. 20. Mr Alex found some of the evidence understandably uncomfortable. He was emotional at times but only when it was appropriate to be so. Mr Alex was upset at telephone transcripts when Mr Mulock referred to himself as dad. These transcripts were produced during the hearing and without notice to Mr Alex. His response was dignified yet raw. 21. Mr Alex was engaged in the proceedings, regularly asking Mr Moran to contact him during breaks and raising important issues such as contact. 22. Mr Alex supports restoration to the mother. The mother supports contact with the father. The Court did not assess this as mutual self-interest but rather each focussing on the needs of Jamzie. This reflected well on both the mother and father. Circumstances of Jamzie 1. Jamzie is in a safe and stable kinship placement. Jamzie needs the certainty of a secure home. 2. Ms Antony abandoned her child at birth. She did not involve herself initially in these proceedings or meaningfully engage with DCJ for five months after the birth. The mother had no contact with Jamzie till December 2021. 3. Since December the mother has enjoyed fortnightly contact. Contact is meaningful to both mother and child. Ms Brown confirms the mother's reliability and evaluates contact as positive. The grandmother frequently attends contact visits. 4. The family time reports are very assuring. For example, on 29 December 2021 it is recorded Jamzie began to cry loudly. The mother was observed to kiss Jamzie's forehead, gently rocking him. The mother said Jamzie seems really tired. She continued to try and rock him to sleep. The grandmother came over with a musical teddy bear. The grandmother asked Jamzie in soft tones what's up darling and the mother said I think he's just distressed. The worker said to the mother you are doing a great job mum. Later, the mother said 'too much sensory for him.' The mother gently rocked Jamzie to sleep. The mother had tears running down her face and told Jamzie she missed him so much. The mother wrapped Jamzie in a swaddle. The mother was observed to be very loving and nurturing. 1. At later contacts Jamzie was observed to be clingy to the mother; and was settled and relaxed with her. 2. Jamzie has no identified health needs. 3. Jamzie's father is in custody and has been since Jamzie's birth. 4. Jamzie is 1 year and one month old. 5. Mr Mark Allerton, Clinical Psychologist has written on the relevance of attachment theory in care proceedings, published in the Children's Court of NSW Handbook. The Court finds a break in an attachment is distressing and can potentially place a child at risk. From ages 1 to 3 years, separation is a traumatic loss and a developmental crisis. 6. A finding of no realistic possibility of restoration now will likely result in Jamzie remaining in out of home care and be deprived of the opportunity of being brought up by his mother. Circumstances of the Mother 1. The mother is 31 years of age with no discernible criminal history. Jamzie is her only child. 2. The mother was exposed to domestic violence, drug use and physical assault as a child. She was subject to a temporary care arrangement at 10 due to domestic violence. The mother received counselling. She began drug taking at 13. The mother self-harmed as a child and spent time in a refuge. 3. The mother's first meaningful relationship was for 14-years duration, characterised as domestically violent for the first three before her partner addressed his drug use. 4. The mother and her partner attended counselling. There was no further violence for 11 years. 5. During that period the mother gained employment including working with Goodstart; and as a swim coach for mothers and babies 6. The mother ended the relationship with her long-term partner in May 2020. At the time the mother was working at Baptist Care. 7. In that month the mother was the victim of a traumatic sexual assault. The mother recommenced drug use. 8. In October 2020 the mother was in a relationship with the father and fell pregnant. The relationship ended in January 2021 following a domestic violent incident that included physical assault. The mother pressed charges. Mr Alex was incarcerated. 9. In January 2021 the mother's former long-term partner passed away. 10. The mother has been involved in two relationships since. Dave Fernando, who passed away. Then Mr Mulock. 11. During this period the mother was experiencing mental health issues but stopped medication due to the possibility of birth defects during pregnancy. The mother did not cease drug use until two months prior to the birth of Jamzie. After the birth Mr Mulock's parole was revoked and he remains in custody. The issues that led to the removal of Jamzie from his mother. 1. When Jamzie was in utero, he was exposed to unacceptable risk: * The mother had suicidal ideation and did not seek appropriate mental health support to address her mental health. * The mother used heroin, ICE and cannabis. * The mother overdosed on heroin and did not seek medical attention. * The mother was in a relationship with Jim Mulock. The mother made plans to move in with him before Jamzie's birth potentially putting Jamzie at risk due to Mr Mulock's criminal history, drug use, mental state and controlling and abusive behaviour. * The mother was homeless and transient and did not engage with DCJ during pregnancy. * The mother did not access antenatal care and refused medical attention even though she was experiencing pain whilst pregnant. The evidence that the mother is likely to be able to satisfactorily address the issues that have led to the removal of Jamzie from her care 1. It is not in dispute that the mother has commenced a process of improving her parenting. Plan that prepares, educates, or assists parents in moving towards a restoration 1. In June 2021 the mother attended the SOPP and Family Action Plan Meeting and was made aware of the tasks and demonstrated changes relevant to Mental Health, Drug Use, Domestic Violence, Homelessness and Parenting Capacity that she was required to undertake for Jamzie to be returned to her safely. 2. The SOPP is a cohesive and viable plan that is sensible, practicable and sets tasks and timeframes. 3. The Plan has supports, scaffolding, treatment, training, and education. Engagement with DCJ 1. The mother did not commit or commence this plan for five months after the birth. However, since late November 2021 the mother demonstrated significant commitment to addressing the identified risk issues. 2. Ms Brown's affidavit of 1 April 2022 gives some insight to this commitment: On 17 December 2021 Ms Antony contacted me three times via email requesting the contact details for Relationship Australia, the Care Plan to be re-sent and drug screening to be completed. On 20 December 2021 Ms Antony contacted me three times via email requesting assistance with transport and accommodation for family time and …to let me know she has stable housing. On 21 December 2021 Ms Antony contacted me via email to advise that her mother would also be attending family time with Jamzie; and she found a parenting course to attend. On 22 December 2021 Ms Antony contacted me four times via email informing that she has attended Likemind, Orange; and NSW Health drug and alcohol would contact her in coming days. On 23 December 2021 Ms Antony contacted me via email five times to inform me that she had inquired with Relationships Australia to ask if the visit will be in the office and to advise that she will talk to her friend about… family time visits. On 28 December 2021 Ms Antony contacted me via email three times …. On 29 December 2021 I enquired with …advising the wrong night was booked accidently but Ms Antony was able to change the booking… On 5 January 2022 Ms Antony contacted me via email to advise me that she has a drug and alcohol assessment on Friday; and she will also seek help to be referred for a mental health assessment. On 7 January 2022 Ms Antony contacted me via email to provide me with details of the drug and alcohol clinician who undertook her assessment…. On 11 January 2022 Ms Antony contacted me via email with photos of Jamzie's bedroom. 1. Ms Brown admirably responded to the communications with the mother. 2. The Court assessed that the mother meaningfully engaged with DCJ and commenced the plan; and in doing so admitted the risks of harm, took responsibility for her actions and committed to further working with DCJ. 3. The Court finds that the mother has some significant success with the SOPP task of actively engaging with DCJ assessment, case planning, home visits (both planned and unannounced) and complying with any reasonable directions of DCJ. 4. The risk of not continuing to engage with DCJ in the context of the severity of possible consequences is moderate. However, it is unlikely that the risk will occur because of the mothers demonstrated commitment to working with DCJ. The mother continues to actively engage with DCJ assessments, case planning, home visits and complying with reasonable directions. A supervision order will mitigate any risk. Mental Health 1. The mother's mental health was impacted by trauma that she experienced as a child and manifested itself following the sexual assault. 2. The mother sought counselling offered by Kite Street and was recently prescribed medication by Dr Scott. The mother has attended two appointments with a psychiatrist for medical review. 3. Mental health is a major risk in the context of the severity of possible consequences because it may lead to drug use, jeopardise accommodation and result in a failed restoration. 4. Ms Antony sought counselling offered by Kite Street and is prescribed medication by Dr Scott. The mother has attended two appointments with a psychiatrist for medical review and is engaging with DCJ, consistent with the SOPP. 5. The mother is 'early on' in the required treatment for her mental health but her progress and independent resolve is admirable and the Court concludes whilst it is possible the risk will occur, a short-term order and a supervision order will mitigate this risk. 6. Before the sexual assault in May 2020 the mother had a long-term relationship of fourteen years and had a stable lifestyle. Drug Use 1. The mother has been drug free for 7 months. Her drug use is described by Ms Eveston as that of a situational user. The Court agrees with this assessment. The mother's level of drug use is miniscule in comparison to the long-term drug addiction that afflicted the mother in Re Nathan. 2. The mother stated she gave up illicit drugs cold turkey and has no cravings. 3. The mother attends Kite Street. Ms Antony has been honest regarding her drug use and non-drug use. 4. The SOPP required 12 weeks of attendances at Chain of Custody Urinalysis and the mother has exceeded this time period without relapse. 5. Drug use is a major risk in the context of the severity of possible consequences. In the Courts view the drug free period that the mother has undergone; and with relapse prevention measures learnt by ongoing counselling, it is unlikely that the risk will occur. 6. Any risk may be satisfactorily managed by continued involvement with Kite Street, a short-term order, undertakings and DCJ supervision. Domestic Violence 1. The mother sought counselling. 2. The mother reported the father for domestic violence to which he received a gaol term. 3. Whilst the mother does not have certificates, she was able to demonstrate an understanding of domestic violence. The mother benefited from counselling appreciating that it was not her fault, she didn't deserve it, she wasn't to blame. The mother spoke to an awareness of domestic violence as not just physical domestic violence but emotional and financial. The mother attests and evidenced having a good knowledge and understanding of domestic violence and its impact, consistent with the task in the SOPP. 4. Also, consistent with the task in the SOPP the mother has not engaged with unsafe people now having taken out an Apprehended Violence Order (AVO) against Mr Mulock and pressed charges. 5. The ILR has pointed to several failed relationships where domestic violence featured. 6. The question is not whether the mother made errors of judgement in past relationships but whether she is likely in the future to make similar or other significant errors of judgement that will or may affect Jamzie. 7. The mother is engaged with Relationships Australia in the course 'Women's Choice and Change' to learn more about domestic violence cycles and the impacts on women and children, as required in the SOPP. 8. The seriousness of the risk in the context of the severity of possible consequences is major however, the likelihood of the risk occurring is low, mitigated by adherence to any AVO in place protecting both herself and Jamzie. 9. A s 90A to prohibit Mr Mulock having contact with Jamzie lessens the identified risk that Mr Mulock poses. Homelessness 1. The mother has safe and secure accommodation with her mother. The mother has resided with the grandmother for 8 months. Ms Brown reports the grandmother has been a great support for the mother and they are getting along well. The SOPP required the mother to obtain safe and stable housing; and this is achieved. 2. The Court has observed the mother and grandmother and noted the past difficulties each have had in their relationship. The Court is impressed with the love and support they show to each other and the love and affection they share for Jamzie. 3. The Court is of the view that there is no risk regarding accommodation. Parenting Capacity 1. Jamzie and the mother are currently spending time with each other at contact. 2. During contact they are both observed to have a positive relationship with each and enjoy spending time together. The mother is observed to speak calmly and appropriately to Jamzie and is always attentive to his needs. 3. There have been no concerns noted regarding the mother presenting to the visits under the influence of illicit substances nor reported as being mentally unwell. 4. The mother has attended all contact visits as required by the SOPP. 5. The mother is undertaking the circle of security program and managing strong emotions through Relationships Australia, and has attended an appointment for counselling with Marie Weir of Kite Street. 6. The Court accepts the ILR's criticism of the mother when she says that she can parent Jamzie immediately. This is balanced against her insight in walking away from her child after birth and accepting that she could not properly look after her baby. The efforts the mother then took to get herself right and the motherly instinct shown in contact visits leads the Court to the view that there is no risk regarding parenting capacity. Benefit to the child of Restoration 1. The Court recognises the benefit of restoration of a child to a parent when safe to do so. Care Plan and Restoration Plan 1. A new Care Plan and restoration plan was received by the Court consistent with its ex-tempore decision. The legal framework applied in this matter 1. The Court applied the legal principles summarised by the President of the Children's Court in Department of Communities and Justice (DCJ) and Bloom [2021] NSWChC 2. Correct test to be applied for realistic possibility of restoration 1. The Secretary and the ILR submit that the test in Re Steward is applicable to determine whether a parent has met the threshold for restoration to be considered realistic within a reasonable period. 2. This would require the mother to have: 1. Commenced a process of improving her parenting and 2. Have some significant success which enables a confident assessment that continuing success might be predicted. 1. Re Steward was an ex-tempore decision focussing on the impact on the Children and Young Persons (Care and Protection) Amendment Act 2018 (NSW) that passed one month and 8 days prior. 2. The Secretary submits that Re Steward is a two-stage test. This is an incorrect interpretation. It is one step. It is incorrect to describe the test as a threshold test. 3. The origin of the test in Re Steward is Senior Magistrate Mitchell's submission to the Special Commission of Enquiry into child protection services in NSW: 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. 1. The submission explains that decisions by the court requires that usually a realistic possibility be evidenced by a coherent program already commenced and with some significant 'runs on the board': 1. Re Steward picks up on the second sentence of the words of Senior Magistrate Mitchell's submission: 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. 1. but without the context of the preceding sentence – that usually... 2. Consequently, Senior Magistrate Mitchell's formulation has come to be interpreted as requiring that parents must always have demonstrated participation in a program with some significant "runs on the board". 3. This is more formally put in Re Steward: namely to approve restoration in circumstances where a parent has already commenced a process of improving his or her parenting and that there has already been some significant success on the part of that parent that enables a confident assessment that continuing success might be predicted. 4. In my view the test in Re Steward is too onerous. * Justice Slattery in Re Campbell held: It is going too far to read into the expression a requirement that a parent must always at the time of hearing have demonstrated participation in a program with some significant "runs on the board": at [56]. * Justice Rein confirms this in Re Tanya [2016] NSWSC 794. * The President of the Children's Court in Saunders said of Senior Magistrate Mitchell formulation: 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: [12]. * Both Justice Slattery and President Johnstone recognise the conventional wisdom of Senior Magistrate Mitchell's formulation because it usually is the case that to properly assess the likelihood of a parent's ability to address reasons for removal one would ordinarily want to see commitment to an intelligible plan, evidenced by its commencement and with enough success that future success can be confidently predicted – but without the rigidity of a test that 'a parent must always at the time of hearing have demonstrated participation in a program with some significant runs on the board'. * The Children and Young Persons (Care and Protection) Amendment Act 2018 (NSW) by inserting the additional words "within a reasonable period" in my view does not alter Justice Slattery's or President Johnstone's statutory interpretation of s 83 but now enables the Court to take into account future likely events. The additional words also support short term orders. * The Court is still required to determine restoration and consider permanency planning before making a final order - consistent with Mr Herridge's well-argued presentation 'Short Term Care Orders Progress or propaganda.' However, the consideration of future likely events is a dramatic change, when correctly applied, would see more children restored to parents but only if it is safe and appropriate to do so. * In Re Bloom the President of the Children's Court's examines the phrase of a realistic possibility of restoration: A realistic possibility may be evidenced at the time of hearing by a coherent program already commenced and with some significant 'runs on the board', or by the development of and commitment to a cohesive and viable plan that is sensible, practicable and viable within a reasonable time at [173]. * The words 'may be evidenced' indicate an exercise of discretion contrasted with Re Steward and more in keeping with the Slattery J and Johnston J's interpretation in Re Campbell and Re Saunders. The proper interpretation is that usually this needs to be evidenced but the bar is too high for must be evidenced. * The comma before 'or' in Re Bloom - begins an independent clause - that sets a lower test than in Re Steward allowing for the development of and commitment to a cohesive and viable plan that is sensible, practicable and viable within a reasonable time * This test is consistent with Practice Note 5 that defines the SOPP: the tasks and demonstrated changes the parents need to undertake in order for the child/young person to be returned to their parents safely (including relevant timeframes for the tasks/changes to occur) * Practice Note 5 contrasts Re Steward in having already commenced a process of improving parenting where there has already been some significant success. * Reference to the court needing 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 is not referred to in Re Bloom. 1. The test in Re Steward is too onerous and should not be applied. The consequence of the application of a test that is too onerous is that children may end up in out of home care who should not be there. 2. In a recent snapshot of Aboriginal Young People in custody 45% had a previous out of home care placement. Integrating the Facts and Law 1. The mother is 31 years of age with no discernible criminal history. Jamzie is her only child. 2. In a period of a little under 18 months the mother's life completely spiralled downwards. In a little under 8 months the mother has meaningfully endeavoured to address the issues that led to Jamzie's removal. 3. The Court found that the mother has addressed the risks of homelessness and parental capacity. 4. The Court found that the mother has commenced a process of improving her parenting through a coherent program regarding Mental Health, Drug Use, Domestic Violence (of which there is no dispute) and with some significant success. 5. Further, there has been the development of a cohesive and viable plan that is sensible, practicable and viable within an 18-month period - that the mother has demonstrated commitment to. 6. In Re Bloom a realistic possibility may be evidenced at the time of hearing by a coherent program already commenced and with some significant 'runs on the board', or by the development of and commitment to a cohesive and viable plan that is sensible, practicable and viable within a reasonable time. Unacceptable Risk 1. The Court has found three risks - Mental Health, Drug Use and Domestic Violence. Each risk has been assessed, mental health being the most serious. 2. Each risk can be satisfactorily managed or otherwise ameliorated by a short-term order, an order accepting undertakings, a s90A to prohibit Mr Mulock having contact with Jamzie and a supervision order for 12 months. 3. The accumulation of those possible risks would not justify an overall finding of unacceptable risk. 4. The Court has also balanced this against the possibility of benefit to Jamzie of being raised by a parent. Findings 1. The Court finds that there is a realistic possibility of restoration within 18 months having regard to the circumstances of Jamzie and the evidence that the mother is likely to be able to satisfactorily address the issues that have led to the removal of Jamzie from her care. Considerations 1. The Court has considered the new Care Plan and restoration plan. The Court is encouraged by the continued progress the mother is making. 2. The court has considered the safety, welfare, and well-being of Jamzie, such considerations are paramount: s9 (1). 3. The court has considered the permanency plan for an Aboriginal child: s13. 4. The court has considered the least intrusive intervention in the life of Jamzie and his family that is consistent with the paramount concern to protect him from harm and promote his development. 5. The Court expressly finds that permanency planning for Jamzie has been appropriately and adequately addressed. 6. The court is invited to make orders in accordance with a minute of care order. 7. Each of the parties before the Court support the orders in accordance with the minute of care order. Orders 1. The Court makes the Orders in accordance with the minute of care order. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 August 2022