Children's Court New South Wales Medium Neutral Citation: Department of Communities and Justice (DCJ) and the Prince and Johns Children [2023] NSWChC 8 Hearing dates: 17 and 18 February 2022 18 and 19 May 2022 17 October 2022 9 January 2023 27 and 28 April 2023 1 and 2 May 2023 Date of orders: 10 July 2023 Decision date: 10 July 2023 Jurisdiction: Care and protection Before: Children's Magistrate Crompton Decision: There is no realistic possibility of restoration to the mother or father Catchwords: CHILDREN – Care and Protection – Whether there is a realistic possibility of restoration – Permanency planning – Aboriginal children Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW) Cases Cited: The Secretary of the Department of Family and Community Services and the Harper Children [2016] NSWChC 3 The Matter of Campbell [2011] NSWSC 761 SS v Department of Human Services (NSW) [2010] NSWDC 279 Category: Principal judgment Parties: The Secretary, the Department of Communities and Justice The Mother The Prince and Johns Children Ms Eileen (Maternal Half-Sibling) Representation: Ms Power – solicitor (Secretary) Ms De Re – solicitor for part of proceedings (the Mother) Mr Sperling – counsel for part of proceedings, instructed by Ms Dodson – solicitor (Independent Legal Representative for the Children) Ms Kaiti – counsel for part of proceedings (Ms Eileen) Ms Duckham – solicitor for part of proceedings (Ms Eileen) File Number(s): 2020/00197026 Publication restriction: Pseudonyms have been used in order to anonymise the children and parties. JUDGMENT 1. These proceedings relate to the children Leo Prince (aged 11), Sandra Prince (aged 9), Alex Prince (aged 6) and Terry Johns (aged 5) (together 'the children') and arise from a s 61 care application under the Children and Young Persons (Care and Protection Act) 1998 (NSW) ('the Care Act'), filed by the Secretary on 2 July 2020. There are concerns regarding the children's mother's ('the mother') mental health issues including depression, neglect of the children (including medical neglect), excessive discipline, and exposure to historical and ongoing domestic violence perpetrated by the children's father ('the father'). 2. There were also concerns about the risk of sexual abuse of the children by the father and his illicit drug use, misuse of alcohol, excessive discipline, psychological harm and insufficient supervision. There are child protection histories for three older siblings who are not subject to these proceedings. Background 1. In early May 2020, the mother left the children in the care of the maternal grandmother and maternal half sibling Ms Eileen for a period of time and was uncontactable. On 29 May 2020, the children were transported to Sydney and placed in the care of Ms Eileen under a family arrangement. 2. On 29 June 2020, the children were assumed into the care of the Minister. On 7 July 2020, an interim order was made allocating parental responsibility for the children to the Minister until further order. On 13 August 2020, a finding was made that the children were in need of care and protection pursuant to s 71(1)(b),(c), and (e) of the Care Act. 3. Prior to and since assumption, all four children have been identified as having special needs to a greater or lesser extent. The children have all experienced placement breakdowns since coming into care. 4. On 20 April 2021, the Children's Court Clinician Dr Jennifer Piercy wrote an assessment report. She did not support restoration of any of the children to the mother. Ms Eileen was involved in the assessment mainly as a source of information for the clinician, but not as a person specifically seeking restoration. 5. On 29 July 2021, Ms Eileen was joined as a party to the proceedings. 6. The mother is seeking restoration of the children to her sole care. The father does not seek restoration and has not been involved in these proceedings. Ms Eileen is seeking to have the child Terry placed in her care. The law Objects and Principles 1. The objects and principles of the Care Act are found at ss 8 and 9. Relevantly: 1. in any action or decision concerning a child, the safety, welfare and well-being of the child are paramount: s 9(1); 2. in deciding what action is necessary to take – by legal or administrative process – in order to protect a child from harm, the course to be followed must be the least intrusive intervention in the life of the child and his or her family that is consistent with the paramount concern to protect the child from harm and promote the child's development: s 9(2)(c); 3. if a child or young person 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 or young person's circumstances: s 9(2)(e); 4. if a child or young person is placed in out of home care, the child or young person is entitled to a safe, nurturing, stable and secure environment. Unless it is contrary to his or her best interests and taking into account the wishes of the child or young person, this will include the retention by the child or young person including birth parents, siblings, extended family, peers, family friends and community: s 9(2)(f). Care order 1. Once the jurisdiction to make orders is enlivened by a finding that the child is in need of care and protection: s 72, the Court must then examine whether there is a realistic possibility of restoration of the child to their parents' care in a reasonable period of time and determine the orders necessary to meet the child's needs. 2. The Secretary must also assess whether there is a realistic possibility of restoration of the child to their parents within a reasonable time, having regard to: 1. the circumstances of child: s 83(1)(a); and 2. the evidence, if any, that the 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)(b). 1. The Court is to determine whether it accepts the Secretary's assessment: s 83(5). 2. The Children's Court must not make an order allocating parental responsibility unless it has given particular consideration to the permanent placement principles and is satisfied that the order is in the best interests of the child or young person: s 79(3). 3. The permanent placement principles are found at s 10A and provide (relevantly): (3) The permanent placement principles are as follows— (a) if it is practicable and in the best interests of a child or young person, the first preference for permanent placement of the child or young person is for the child or young person to be restored to the care of his or her parent (within the meaning of section 83) or parents so as to preserve the family relationship, (b) if it is not practicable or in the best interests of the child or young person to be placed in accordance with paragraph (a), the second preference for permanent placement of the child or young person is with a relative, kin or other suitable person in accordance with a guardianship order, (b1) if it is not practicable or in the best interests of the child or young person to be placed in accordance with paragraph (a) or (b), the next preference is placement with a suitable person or persons jointly in accordance with an order made under section 79(1)(f), with the support of the Secretary under section 153(1) or financial assistance of the Secretary under section 161(1), (c) if it is not practicable or in the best interests of the child or young person to be placed in accordance with paragraph (a), (b) or (b1), the next preference is (except in the case of an Aboriginal or Torres Strait Islander child or young person) for the child or young person to be adopted, (d) if it is not practicable or in the best interests of the child or young person to be placed in accordance with paragraph (a), (b), (b1) or (c), the last preference is for the child or young person to be placed under the parental responsibility of the Minister under this Act or any other law, (e) if it is not practicable or in the best interests of an Aboriginal or Torres Strait Islander child or young person to be placed in accordance with paragraph (a), (b), (b1) or (d), the last preference is for the child or young person to be adopted. Aboriginal and Torres Strait Islander Principles 1. In addition to the permanent placement principles, the Care Act provides placement principles for Aboriginal and Torres Strait Islander children at s 13 as follows. 2. Subject to the objects in s 8 and the principles in s 9, an Aboriginal or Torres Strait Islander child or young person who needs to be placed in statutory out of home care is to be placed with: Aboriginal and Torres Strait Islander Child and Young Person Placement Principles (1) The general order for placement Subject to the objects in section 8 and the principles in section 9, an Aboriginal or Torres Strait Islander child or young person who needs to be placed in statutory out-of-home care is to be placed with— (a) a member of the child's or young person's extended family or kinship group, as recognised by the Aboriginal or Torres Strait Islander community to which the child or young person belongs, or (b) if it is not practicable for the child or young person to be placed in accordance with paragraph (a) or it would not be in the best interests of the child or young person to be so placed—a member of the Aboriginal or Torres Strait Islander community to which the child or young person belongs, or (c) if it is not practicable for the child or young person to be placed in accordance with paragraph (a) or (b) or it would not be in the best interests of the child or young person to be so placed—a member of some other Aboriginal or Torres Strait Islander family residing in the vicinity of the child's or young person's usual place of residence, or (d) if it is not practicable for the child or young person to be placed in accordance with paragraph (a), (b) or (c) or it would be detrimental to the safety, welfare and well-being of the child or young person to be so placed—a suitable person approved by the Secretary after consultation with— (i) members of the child's or young person's extended family or kinship group, as recognised by the Aboriginal or Torres Strait Islander community to which the child or young person belongs, and (ii) such Aboriginal or Torres Strait Islander organisations as are appropriate to the child or young person. Unacceptable Risk, Realistic Possibility of Restoration 1. The mother submits that there is a realistic possibility of the children being restored to her care. The legislative framework governing the determination of care applications and the principles to be applied in the Court's determination of matters (including the manner in which the Court determines risk) under that framework has been comprehensively stated in various decisions of the Court including The Secretary of the Department of Family and Community Services and the Harper Children [2016] NSWChC 3 (at [8] – [44]). 2. The following relevant principles may be gleaned from the legislation and the judgment: 1. The phrase "realistic possibility of restoration" has been considered by Slattery J, in The Matter of Campbell [2011] NSWSC 761 (at [55] – [56]). In summary: 1. a "possibility" is something less than a probability and something that may or may not happen, but is something that is not impossible; and 2. it must be realistic, real or possible – not fanciful, sentimental, idealistic, or based upon 'unlikely hopes for the future'. Sensible or commonsensical. 1. In determining the issue of realistic possibility of restoration the Court examines whether there is an unacceptable risk of harm to the child. Risk of harm is not restricted to risk of physical or sexual harm, but can include any matter that compromises the safety, welfare and well-being of a child. 2. Assessment of unacceptable risk is a balancing exercise – risk of detriment to the child as against the benefit to the child of "parental access". 3. A positive finding that abuse has occurred is not always possible, nor is it always desirable. Where a finding is to be made, the requisite standard is the balance of probabilities. 4. The components that go to determining that there is an unacceptable risk need not each be established on the balance of probabilities. The Court may reach a conclusion on the accumulation of factors, none or some only of which, are proved to that standard. 1. The Court is assisted by authorities such as SS v Department of Human Services (NSW) [2010] NSWDC 279 in assessing the relevance of a parent's insight in assessing risks where it was held: "in this case there is in fact strong evidence to support the notion that the refusal, or failure, to acknowledge the abuse, leads to a comfortable satisfaction that there remains a continuing likelihood of physical abuse or ill-treatment, in respect of [subject children]. That evidence, in my view, accords with common sense." The Evidence 1. The Court heard evidence over nine days. The Court also received significant tender material. Dr Jennifer Piercy – Children's Court Clinician 1. The Children's Court Clinician Dr Jennifer Piercy gave evidence on 15 February 2022 and 18 May 2022. Dr Piercy has expertise over many years as a clinical psychologist, specialising in a range of fields including complex childhood trauma, learning disabilities in children and early intervention. 2. In her assessment report, Dr Piercy outlined minimum requirements for the mother to meet for restoration to her care to be considered. Dr Piercy was asked if, having considered the updating evidence, she would say that the mother had met the minimum requirements. Dr Piercy's response was negative. She was also asked if, having read the mother's latest affidavit of 11 May 2022, the mother had now addressed the child protection concerns that Dr Piercy had identified. She replied, no. 3. The mother has a long history of transience across three states including residing in various departmental houses, refuges, hotels and caravan parks. The mother and the children have also been homeless at times and allegedly spent nights sleeping in a car. 4. On 17 December 2021, the mother secured transitional housing for herself and Ari (a child not the subject of these proceedings) in a two-bedroom unit in Lismore, where they have resided continuously since that date. Whilst the mother is yet to make any arrangements to secure housing that would accommodate five children, Dr Piercy and the Secretary acknowledge that she has obtained stable accommodation and met that minimum requirement. 5. On 15 February 2022, Dr Piercy stated that if the mother's engagement with counselling was "very, very good engagement and progress… you'd be looking at a minimum of 12 months". However, the crucial aspect was not the timeframe but rather "it's a matter of that time being very positive and making insights and progress". 6. The mother undertook an intake assessment with a counsellor, Ms Kewell, at an Aboriginal health and wellbeing program on 31 July 2020 and commenced counselling sessions on 26 August 2023. On 9 September 2020, Ms Kewell said, "we are yet to start working on anything as she has either been moving or sick". Over an almost six-month period the mother attended eight sessions. During this time, she was sometimes uncontactable and often cancelled appointments. 7. On 18 May 2022, Dr Piercy raised concerns about the mother's transparency within those counselling sessions and agreed that her apparent lack of transparency would "certainly raise questions about engagement". 8. On 15 February 2022, Dr Piercy was concerned that there was a lack of evidence before the Court as to the mother's current mental health status and any progress made into developing insight into her mental health or her capacity to implement coping skills. Dr Piercy said that she could not be satisfied that the mother had demonstrated that she had adequately dealt with her mental health. 9. In Dr Piercy's report, she speaks about the mother's view that the children require counselling due to "the trauma related to their removal from her care rather than the long-term and repeated trauma they experienced in her care… and overall appears to have limited understanding of her children's psychological needs related to their trauma experiences". 10. There is evidence to suggest that the children have been exposed to trauma throughout their lives prior to their assumption into care from a range of factors including domestic violence, transience, neglect and reports by the children of sexual abuse. 11. Dr Piercy was concerned that the mother did not and could not acknowledge the sexualised behaviours displayed by all of the children but particularly by Leo, who had been reported to the helpline over a number of years while he was in the care of the mother. The mother remains adamant that there was no sexual abuse of the children while they were in her care. Dr Piercy gave evidence that "it raises concerns for me about her reflective capacity and capacity just to consider the possibility, given the number of risk factors, and the information that she has regarding what allegations have been made, that raises concern for me". 12. Dr Piercy stated that it was imperative that the mother accepted that the children were displaying sexualised behaviours. She said the mother's adamant denial of even the possibility of sexual abuse in the family is a significant barrier to the possibility of restoration. 13. Dr Piercy gave evidence that she has significant concerns about any of the children returning to the mother's care, and that the concerns would multiply if more than one child were to be resorted to her care, given their complex needs and the dynamics between the children. She stated that each of the children requires better than 'good enough' parenting. She further stated that the believes that it would be in the best interests of Leo, who has very high needs, to remain in his placement for a significant period of time, to consolidate his early gains. 14. In Dr Piercy's report she speaks about the mother's view that the children require counselling "due to the trauma related to their removal from her care rather than the long term and repeated trauma they experienced in her care…and overall appears to have limited understanding of her children's psychological needs related to their trauma experiences". 15. Dr Piercy gave evidence that 'good enough' parenting "would refer to not only the children's basic needs being met in terms of food, shelter etc, but also their emotional needs being met and a parent's responsivity to their child's needs. Good enough parenting can then shift when a child's needs are higher because the parent's capacity to meet those needs then needs to be at a higher threshold. My assessment concluded that there was enough risk in relation to (the mother's) parenting that I did not recommend restoration." The Mother 1. The mother is a proud Bundjalung woman and her country is in the Far North Coast region of New South Wales. She is the mother of Leo, Sandra, Alex and Terry, the children the subject of these proceedings. 2. The mother has two other children with the father, and another child, Ms Eileen, who was fathered by another man. 3. The mother filed five affidavits in the proceedings. In that material she gives evidence that she is seeking restoration of the four children to her care. She agrees that herself and the father have been in an on and off relationship for many years, however she has not seen him or spent time with him for years. She states she recently took another apprehended domestic violence order (ADVO) out against him when he showed up in the community abusing her. 4. The mother states that since returning from Sydney, she has attended the Aboriginal health and wellbeing program for trauma counselling. She also attended an Aboriginal medical service to obtain a mental health plan and intends to return to do a mental health assessment. 5. The mother believes strongly that the children should be placed in the Far North Coast area. The mother seeks the return of the children to her care and home on country. 6. The mother states that there was no sexual abuse while the children were in her care, and that their father was only ever in and out of their lives. She denies often leaving the children with other people. She states she never left the children alone with their father. She states that Ms Eileen has made the allegations regarding sexual abuse because she, the mother, and Ms Eileen do not have a good relationship. 7. The mother's evidence is that one of her other two children with the father, Ari, is living with her. She has been provided with a two-bedroom unit through Northern Rivers Housing. It is transitional housing. If the children were restored to her care, she could apply for a larger house. 8. The mother does not agree with the Secretary's assertion that she is unable to meet the children's needs. The mother also denies that she is in a relationship with the father. 9. On 27 April 2023, the mother gave evidence that she had engaged in counselling in the past and found that helpful. She gave evidence that she had attended counselling with Ms Kewell because the caseworker asked her to, and she did it as "part of tick the box". The mother did "not really" give any thought to the prospective counselling but when pressed said that it was about "everything that was going on in my life". The strategy for counselling sessions as identified by Ms Thompson was to look at why the children had been removed. 10. The mother believes that she engaged in trauma counselling. Ms Kewell's case notes refer to one discussion relating to the mother's trauma history, being the impacts of violence on the children and herself but with no discussion about strategies to manage trauma-triggered emotions. Ms Kewell referred mainly to discussing the mother's day-to-day life. In one session, they did discuss the allegations of the father's sexual abuse of the children, to which the mother said that Ms Eileen was making that up as she did not like the father. 11. On 27 April 2023, the mother was unable to explain what trauma counselling was except to say that it was "talking about things happening". The mother stated that her counselling sessions with Ms Thompson ceased because she had exhausted all her allocated sessions. 12. At the cessation of sessions in December 2020, Ms Kewell referred the mother to a psychotherapist with whom she talked about "general everyday life stuff". The purpose of those sessions was to fulfil parental responsibilities, achieve reunification with the children and attend parenting courses. The mother stated that she engaged with that psychotherapist for months, however there is no evidence to support this assertion or whether her engagement with that psychotherapist was more transparent or successful than her engagement with Ms Kewell. 13. The mother then engaged with another staff member from the Aboriginal health and wellbeing program, but it appears that was to help her manage her affairs including attending doctor's appointments. The mother gave evidence that she did not agree that she required assistance to manage her affairs despite the plethora of evidence that she was often uncontactable by services and frequently cancelled appointments and meetings. 14. The mother agreed that it was important for the children that she engaged in trauma counselling although she could not say why other than that she did it "to understand what trauma is and what it means". Is there a realistic possibility of restoration to the mother? 1. In conducting an assessment of risk to the children, there is evidence in these proceedings that the children have been exposed to a multitude of risks whilst in the care of their mother. 2. In relation to the allegations of the father sexually abusing the children, the mother gave evidence on 27 April 2023 that she "didn't know nothing about that". She stated she was unaware of the father's previous criminal history which includes a number of child sexual assault offences. 3. The mother recalled that Ms Eileen told her about the father sexually assaulting her as a child "twenty years later" and denied that she would stand outside the shower when Ms Eileen was in it to stop the father from coming in. 4. In her evidence Ms Eileen agreed that the father had abused her as a child and that her mother the mother knew as she was present when it was happening. 5. The mother denies being in a relationship with the father (despite having six children with him over a period of at least 13 years). Ms Eileen in her evidence confirmed that the father had stayed overnight on a regular basis even though he and the mother had an "on and off" relationship. Ms Eileen also gave evidence that the father lived with the family at times. 6. The mother denies any domestic violence between herself and the father. She stated that "not on my consent" he would come (to her) home and she would phone the police. When asked about domestic violence the mother stated, "he would come there drunk, try to hit me, that's about it". 7. There are a number of COPS events relating to the father and the mother. These include an episode when the father attended the mother's home threatening to kill her, with the mother being physically assaulted in front of the children who she had put in the car to try to escape the father (E 108077201). Another incident involved the father attending the home, breaking down the front door, entering the home and assaulting the mother. When police arrived, the children ran outside terrified (E 57865947). 8. A further incident involved the father smashing a window to enter the home in the middle of the night, waking the children (E 217917798). There have been a number of ADVOs to protect the mother and the children from the father, and a number of breach of ADVO charges. This included a time when the father threatened the mother, resulting in a sentence of imprisonment for the father of 12 months (E 63599012). 9. On 18 March 2023, the father attended the home of the mother's cousin very early in the morning. The mother had stayed there the previous night. He was banging loudly on the window, yelling abuse at the mother and calling her names. The mother telephoned the police who attended. She was visibly shaken and scared and afraid that the father's behaviour would escalate to the point where he may cause physical harm to her. The mother and Ari spent two nights in a hotel. 10. Police issued an ADVO as the father's behaviour appeared to be escalating and the mother held genuine fears for her safety. In mid-April of 2023, one of the mother's support workers installed a home security camera at her front door so that she could see if the father attended the home again. The mother agreed that there had been prior occurrences when the father had entered her home via a window. 11. On 1 May 2023, Ms Eileen in her evidence referred to a number of times in the past when she had been asked to take care of the children because the father was around and had done so because she was concerned for their safety, believing that the mother would not be able to keep them safe from the father. 12. Ms Eileen is aware that the mother and the father have been seen together recently in their local area. 13. The mother gave evidence on 28 April 2023 that she moved with the children "from places into refuges for a new beginning for me and the children", as she got sick of places and wanted to show them a better future. The mother admitted that they moved to escape from the father. Findings and Conclusions 1. There is little evidence before the Court that the mother has addressed her own trauma history within which she admitted there was domestic violence. The mother is unable to demonstrate how her own trauma history may relate to the child protection issues of her children. 2. The mother has not addressed the child protection concerns which brought the children into care. 3. The mother has not sufficiently addressed her mental health issues, nor has she demonstrated any improvement in her parenting capacity. There is little evidence of any insight into the effects of trauma on the children, or that she can consistently engage with services including the Department of Communities and Justice, medical services, or counselling services. 4. It is apparent from her answers to questions during the hearing that the mother continues not only to not accept that there was sexual abuse and that the children have displayed sexualised behaviours, but also to not acknowledge sexual abuse or the children exhibiting sexualised behaviours because she has not seen it herself. 5. The mother's lack of insight, especially regarding the risks posed to the children by the father, and her lack of transparency, operate to the effect that the child protection risks are unable to be satisfactorily managed or mitigated. 6. When considering the safety, welfare and wellbeing of the children as the paramount considerations, there is an unacceptable risk of harm to the children if they were to be restored to the mother's care, as she has been unable to demonstrate that she is able to keep the children safe or is likely to be able to keep the children safe in the future. DISPOsITION 1. For all the reasons outlined above, I find that there is no realistic possibility of restoration of the children to the mother within a reasonable period. 2. The father has not been a participant in these proceedings, however for completeness I find that there is no realistic possibility of restoration of the children to his care within a reasonable period. 3. Having made that finding, it is my intention that parental responsibility for the children ought to be allocated to the Minister for all aspects of their care. However, I am not satisfied that permanency planning has been appropriately and adequately addressed. Leo remains in a high-cost placement with funding presently approved on a month-to-month basis only, and at the time of the conclusion of the hearing an approval for funding for a full 12 months was still pending. 4. Terry's placement meanwhile is uncertain, as the previous plan for him to be transitioned into placement with his two sisters is no longer viable. As at the time of the conclusion of the hearing other placement options were being explored, including an assessment of Ms Eileen. 5. The unresolved issue of placement for Terry and the uncertainty of longer-term funding for Leo's placement impacts upon the contact arrangements which are contemplated for the four siblings, particularly as to how that may be facilitated on country. That being so, I direct the Secretary to provide updated and amended care plans for each of the four children before the making of final orders. ********** 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: 12 September 2023