Children's Court New South Wales Medium Neutral Citation: Re Alison [2022] NSWChC 8 Hearing dates: 14 February, 25 March 2022 Date of orders: 25 March 2022 Decision date: 25 March 2022 Jurisdiction: Care and protection Before: Children's Magistrate Crompton Decision: Applications by mother dismissed Catchwords: CHILDREN – Care and Protection – application under s 90 of the Care Act for variation of final Care orders – application for contact – child's best interests – further assessment of the child Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW) Cases Cited: Re Helen [2004] NSWLC 7 Category: Principal judgment Parties: The Secretary, Department of Communities and Justice Rochelle Smith (the Mother) Jonathan Murray (the Father) Alison (the child) Representation: Ms Hall (for Alison) Ms Meehan (for the Father) Mr Manning (for the Mother) Ms Eveston (for Department of Communities and Justice) File Number(s): 2017/00207640 Publication restriction: Pseudonyms have been used for the children, family members, carers and medical professionals. JUDGMENT Background 1. Final orders were made in respect of Alison on 11 October 2017, granting parental responsibility to the Minister. 2. The mother of the child is Rochelle Smith. 3. The father of the child is Jonathan Murray. 4. Each of the parents are seeking orders under s 90 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the 'Care Act') to rescind the previous care orders of 11 October 2017. The Mother's application for contact orders 1. The mother makes a number of interlocutory applications and has also filed an application for contact. I will determine the contact application first. 2. By way of amended application filed 16 February 2022, the mother seeks orders pursuant to s 86 of the Care Act for contact between herself and Alison as follows: 1. That Alison spend time with her mother every weekend commencing from 6pm Friday to 6pm Sunday until further order of the Court. 2. That the mother is to collect Alison from the carer's residence and return her to the carer's residence by the times stipulated above. 3. That the mother submit to any random drug test request by the Department of Communities and Justice ('DCJ') within the time specified by them. 4. That pending further order of the court, Alison has contact with her father by telephone/video link every Wednesday between 6pm and 7pm and by telephone/video link at any time suitable to the parties whilst Alison is residing with the mother on weekends at 24 hours' notice. That Alison has contact with her father for one week of the New South Wales school holiday period commencing on 11 April 2022 to 25 April 2022 and for one week of the New South Wales school holiday period commencing on 6 July 2022 to 15 July 2022 with the specific weeks to occur as agreed between the mother and father. The father shall meet all costs associated with the time he spends with Alison including but not limited to transport and accommodation costs incurred by him if he elects to have said contact between himself and Alison in New South Wales. The father shall meet all costs associated with the time he spends with Alison if such is to occur outside of New South Wales including all transportation costs for Alison from New South Wales to Rockhampton and return. 5. While Alison resides with the carer, that Alison has contact with the mother and father as follows: telephone contact each day Alison is not otherwise in the mother's care between 6 pm and 8 pm; and by telephone/ video link with the father at any time other than stipulated as agreed with Challenge Community Services, the Department of Communities and Justice or Alison's carer. 6. That the mother is to provide the father with all information and correspondence relating to any and all sporting, school, social and religious events in which Alison is affiliated with or participating in within two days' notice or a soon as practicable. 7. That the mother is to do all things necessary to ensure that all schools, doctors, dentists, professional carers and any other professional involved in the care and treatment of Alison are authorised at all times to communicate with and provide information and copies of documents in relation to Alison to the father. 8. That the mother and father do all things necessary to ensure the other is kept informed at all times and in writing of the residential telephone number, mobile telephone number and residential address of each of them. 9. That in the event of a medical emergency involving Alison, the parent with the care of Alison is to notify the other parent within two hours or as soon as practicable. 10. That in the event that Alison requires medical care the parent with the care of Alison is to notify the other parent of the details of such care and any treatment or medication prescribed or recommended within 24 hours. 11. That each parent is hereby restrained from denigrating the other parent, the other parent's spouse and/or partner or immediate family in the presence or hearing of Alison, or allow or submit to any other person doing so. 12. That Challenge Community Services or any other such nominated person and/or entity continue to supervise Alison whilst residing with the mother until further order of the court. In support of the application the mother reads her affidavit sworn/affirmed on 8 February 2022 and the affidavit of Sara Smith sworn/affirmed on 8 February 2022 and documents annexed to the affidavit of Rebecca Johns Sworn 3 February 2022. Those documents are material from Concept Psychology, documents created by Ignite Support Services, and results of hair follicle drug testing in relation to the mother and the father. The relevant law regarding contact orders 1. Section 86 of the Care Act provides that an order may be made by the Children's Court stipulating minimum requirements concerning: * The frequency and duration of contact between a child or young person and his or her parents * Relatives or other persons of significance to the child or young person * Requiring contact with a specified person to be supervised * Denying contact with a specified person if contact with that person is not in the best interests of the child or young person. 1. In the case of Re Helen [2004] NSWLC 7, Senior Children's Court Magistrate Mitchell articulated a number of considerations for the court to consider when dealing with contact applications. It was said that the best approach may be for the court to identify the range of contact arrangements which will properly answer the needs of the individual child or young person, taking into account his or her age, developmental level, background, attachments, life experiences, personality, talents, emotional resilience, defects and wishes. Then, when the appropriate range or spectrum of contact arrangements has been identified, the court should consider the safety of the child or young person, the circumstances which brought him or her into care, the fitness and willingness of the parents to cooperate in the contact process and the degree to which the parents might support the child in the placement or act to undermine it. The Clinician's Report 1. In support of the application, it is submitted that the most recent report of the Children's Court Clinician Dr M, filed 21 December 2021, provides an opinion that while consideration might be given to restoring Alison to the care of her mother which would be consistent with her currently expressed wishes, it would not be without risk. 2. Dr M acknowledges that Ms Smith has a number of strengths in her parenting capacity including a close and affectionate relationship with Alison, a reasonable understanding of the child protection concerns, understanding of Alison's care needs, having suitable accommodation, her capacity to support Alison in accessing knowledge of Aboriginal heritage and culture, her successful abstinence and treatment for her long-standing methamphetamine addiction and her willingness to ensure Alison's ongoing relationship with her father. 3. It is submitted that it remains open to the court to determine that Alison may be restored to either parent on the present evidence. It is noted that Alison identifies as an Aboriginal person and that Aboriginal placement principles should apply to the application for contact as well as to the substantive applications. The Children's Court contact guidelines are instructive. They provide that contact prior to restoration should be sufficiently frequent to maintain or develop the relationship between the parent and the child and that the contact should also make provision for the child's cultural background. 4. When making a decision regarding contact the court must always focus on the needs of the child, what is in the best interest of the child and how the child will benefit from contact with a parent. The contact must be considered from the child's perspective. The court should also consider the wishes of the child regarding contact. In this case Alison is currently expressing her wish to live with her mother and has also expressed that wish to her legal representative and to her Challenge Community Services caseworker. Her direct legal representative confirms that this remains Alison's wish. 5. It is submitted that the notes from Concepts Psychology, Ignite Support Services and Dr M do not identify a present and real risk to the safety, welfare and well-being of Alison whilst in the presence of either her mother or father. It is submitted that whilst Dr M is more supportive of restoration of Alison to her father, he has not excluded restoration of Alison to her mother. And it is submitted that is open to the court to conclude that Dr M's view in regard to restoration of Alison to the mother may change when the doctor has the material now available from Concepts Psychology and Ignite Support Services. Determination of the mother's application for contact orders 1. In considering the mother's application for contact I have had regard to the fact that the Department of Communities and Justice remains unsupportive of the restoration of Alison to her mother's care whilst supporting the restoration of Alison to her father. 2. I have also considered the Clinician's view that while it is important to place some weight on Alison's wish to live with her mother this needs to be considered with some caution as she does not have the capacity to understand potential risks should she be placed with her. 3. The Clinician also notes that Alison has a long history of trauma due to her experience of neglect during the early developmental period, parental drug use, as well as exposure to family violence and the disruption to her attachment relationships due to being removed from the care of her parents when she was three years old. 4. Alison was described by the carer as having significant behavioural difficulties as well as depression and is currently being treated with antidepressant medication. The Clinician is of the view that she is a young girl who can be considered to have emotional, psychological and behavioural symptoms consistent with a diagnosis of complex relational trauma for which she is yet to receive therapy. 5. The Clinician also notes risk factors in relation to the mother regarding her parenting capacity and the fact that she is in the early stages of her recovery from a long-standing methamphetamine addiction and that she does not acknowledge the comorbid mental health issues associated with her diagnosis of ADHD, and nor has she accessed psychological intervention for those issues. Hence why consideration might be given to restoring Alison to the care of her mother, it would not be without risk. Whilst it remains open to the court ultimately to consider restoration of Alison to her mother it is difficult at this stage to predict that outcome. 6. At this time, I am not persuaded that it would be in Alison's best interest to have increased and unsupervised contact with her mother. The contact regime which is presently in place is sufficient for her to maintain and develop a relationship with her mother. It is also important to ensure that Alison's current placement is not destabilised and to protect against any potential detrimental impact on Alison that an increase in contact with her mother may occasion. 7. Alison has identified issues regarding attachment and fear of rejection and there is a real risk that if the contact arrangements were changed in such a way as to increase the time Alison spends with her mother, but if ultimately she is not restored to the mother's care or indeed is restored to the father's care, that more changes to the contact regime could be extremely confusing for her and detrimental to her well-being. 8. I am not persuaded that it would be in Alison's best interests to disrupt the status quo between now and when the mother and father's applications are finally determined. That being so the application for contact is refused and dismissed. The Mother's application for interlocutory orders 1. The Mother seeks also seeks other interlocutory orders: 1. An order pursuant to section 68(1) of the Care Act granting the applicant the leave of the court to file further documentary evidence from Ms Kane, psychologist in respect of Alison. 2. An ancillary order pursuant to section 9 of the Care Act granting Ms Kane access to Alison for the purposes of her investigations and report. 3. An order pursuant to section 68 (1) of the Care Act granting the applicant the leave of the court to file further documentary evidence from Ms Crouch, the present carer for Alison, in respect of Alison. 1. In support of the applications for orders one, two and three the applicant reads the affidavit of Mr Brendan Manning, solicitor for the mother, sworn on 9 February 2022. The applicant has engaged the services of Ms Kane, psychologist, for the purpose of preparing a report as to the mother's capacity to care for Alison and to interview Alison to ascertain her wishes with regard to with whom she wishes to live if an order is made for restoration. There have been two assessments conducted by the Court Clinician, Dr M with reports filed on 3 June 2021 and 21 December 2021. The relevant law regarding assessment orders 1. Matters for consideration in making an assessment order are set out in section 56(1) of the Care Act: (a) whether the proposed assessment is likely to provide relevant information that is unlikely to be obtained elsewhere, (b) whether any distress the assessment is likely to cause the child or young person will be outweighed by the value of the information that might be obtained, (c) any distress already caused to the child or young person by any previous assessment undertaken for the same or another purpose, (d) any other matter the Children's Court considers relevant. 1. Section 56(2) provides: In making an assessment order, the Children's Court must ensure that a child or young person is not subjected to unnecessary assessment. 1. The Children's Court Practice Note 6 at clause 4.1 provides: a child or young person who is the subject of care proceedings must not be examined or assessed for the purpose of placing evidence before the court without the leave of the court except pursuant to an assessment order made under section 53 or 54 of the Care Act. 1. If the court grants leave for such assessment, the court may make such directions as it considers appropriate for the provision of any report of that assessment. Determination of the mother's interlocutory applications 1. The Department opposes the application and has not provided consent for Alison to be assessed as part of any proposed assessment by Ms Kane. The Department oppose the court granting leave for further assessment of Alison in circumstances where an independent court appointed assessor has already assessed Alison and provided two reports to the court. 2. The Act provides in section 9 that in all actions and decisions made concerning a particular child or young person the safety welfare and well-being of the child or young person must be the paramount consideration. 3. It is not in dispute that Alison, 12, has expressed a desire to live with her mother. The applicant mother wishes to supplement her substantive application for restoration of Alison to her care with the inclusion of additional documentary evidence from the witnesses Ms Kane and Ms Crouch. 4. The Act limits the circumstances in which an assessment order should be made. An expert assessment should only be required when the evidence relating to the disputed issues is equivocal or unreliable or when there is insufficient relevant evidence available on which the court can base its decision including decisions relating to permanency planning for the child. 5. The principal underlying the rule requiring leave of the court to assess the child is to limit assessment of the child, to minimise the likelihood of systems abuse of children through multiple assessments. 6. Section 56(2) makes it plain that the Childrens Court must ensure that a child or young person is not subjected to unnecessary assessment. In considering the matters provided for in section 56 as to whether to make an assessment order, I'm not convinced for the purposes of section 56(1)(a) that the proposed assessment is likely to provide relevant information that is unlikely to be obtained elsewhere, and considering other matters which I consider relevant for the purposes of section 56(1)(d), it is the case that Alison has already been interviewed twice by the court Clinician and also undertakes counselling with a psychologist. Orders 1. As there is no contest that Alison has expressed a desire to live with her mother, the real issue is what weight is to be given by the court to that wish and whether it is in Alison's best interest to live with her mother. This question will fall for consideration at the final hearing. The applicant mother will be able to provide her own expert report by Ms Kane irrespective of whether or not Alison is assessed. In my view the proposed further assessment of Alison as sought is unnecessary and that being so the application for leave to grant Ms Kane access to Alison is refused (Order 2). 2. As to the relief sought in order one, the applicant will be given leave to file further documentary evidence from Ms Kane, psychologist, in respect of any matters as to the mother's parenting capacity for Alison. That leave is granted pursuant to section 68 of the Care Act as I am satisfied pursuant to section 68(3) that granting the leave will not result in delay in the matter being finalised. That further documentary evidence should be filed so that there is sufficient time for the parties to consider it and respond before the final hearing (Order 1). 3. As to the orders sought in order three, the carer Ms Crouch is not a party to the proceedings and is a foster carer. The order sought is to obtain an affidavit from the carer regarding statements made in Dr M's report of 20 December 2021. It is not in the public interest to require carers to provide evidence in these matters as to do so can jeopardise people's willingness to be foster carers. The present placement with Ms Crouch is a short term one and there is a history of prior placement breakdowns for Alison. Ms Crouch has not filed any affidavit in this proceeding and it would not be in the public interest to require her to do so. Accordingly, that application for leave is refused. ********** 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: 27 April 2023