Children's Court New South Wales Medium Neutral Citation: Department of Communities and Justice (DCJ) and May, June and Roy [2023] NSWChC 15 Hearing dates: 30 August, 13 September, 3 October 2023 Date of orders: 1 December 2023 Decision date: 01 December 2023 Jurisdiction: Care and protection Before: Children's Magistrate Hayes Decision: Guardianship order made Catchwords: CHILDREN - Care and Protection – Section 90 - Interim Order – Court has power to make an interim order prior to leave being granted – Jurisdiction – Cannot rescind or vary an order that is not in existence – Unacceptable risk is not determinative of best interests – Determination of 'best interests' – Consideration of 'least intrusiveness' and 'placement principles' Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW) Children and Young Persons (Care and Protection) Regulations 2022 (NSW) Children's Court Rule 2000 (NSW) Cases Cited: Briginshaw v Briginshaw [1938] HCA 34 Brett v Children's Court of NSW [2006] NSWSC 984 Department of Communities and Justice (DCJ) and Bloom [2021] NSWChC 2. Department of Communities and Justice (DCJ) and Evie and Grace [2023] NSWChC 1 Isles & Nelissen [2022] FedCFamC1A 97 (1 July 2022) M v M [1988] HCA 68 Re Edward [2001] NSWSC 284 Re: Elizabeth [2011] NSWDC 245 Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89 Re Louise and Belinda [2009] NSWSC 534 "V V" v District Court of New South Wales [2013] NSWCA 469 Category: Principal judgment Parties: May, June and Roy (the Children) The Mother The Father The Secretary, Department of Communities and Justice Representation: Solicitors/Counsel: Mr Higgins (Secretary) Ms Connor (Mother) Ms Ng (Father) Ms Turgut (Independent Legal Representative for the child) File Number(s): 2019/317643 Publication restriction: Pseudonyms have been used to protect the identity of the children and family members. JUDGMENT 1. This matter requires the Court to determine whether it has jurisdiction to deal with a s 90 application after the original orders have expired. 2. The first legal issue to be resolved is the legitimacy of the interim order, then the issue of jurisdiction. 3. If the Court has jurisdiction, the Court is then required to assess whether there is a realistic possibility of restoration to the Mother within a reasonable period. 4. The Mother is seeking an order of parental responsibility ('PR') to the exclusion of the Father. 5. The Secretary is seeking a guardianship order. The proposed guardian is the Maternal Grandmother ('MGM'). 6. The test when making an order allocating PR is: what is in the best interest of the child or young person ('CYP'). 7. Determining the best interests requires a comparative examination of available placement options that best suit in securing the child's safety, welfare, and well-being. This includes the consideration of 'least intrusiveness' and 'placement principles'. 8. The available placement options require determining whether there is a realistic possibility of restoration and eliminating any option that presents as an unacceptable risk to the CYP. Background 1. These proceedings involve 3 children: May aged 5, June aged 4 and Roy aged 3. 2. The children were removed because of non-accidental injuries. 3. In late 2020, the Children's Court at Campbelltown made Final Orders (the 'original orders'). 4. The original orders allocated PR to the Minister for 2 years by way of a short-term order with a view to guardianship. 5. On 12 September 2022, the Secretary filed a s 90 application under the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the 'Care Act'). 6. The Secretary sought 3 orders: leave, that the original orders be rescinded and a guardianship order. 7. On 21 September 2022, the Court made an interim order of PR to the Minister till further order. 8. On 19 October 2022, the Court granted leave. 9. On 18 November 2022, the original orders expired. 10. On 26 April 2023, leave was granted for the Mother to seek PR to the exclusion of the Father pursuant to the Secretary's section 90 application. 11. The hearing took 6 days. 12. The Father did not appear at the hearing but sought to be heard on contact prior to any final order involving guardianship: see s 86(8). 13. A Dispute Resolution Conference was held on 21 November 2023. Onus 1. The burden of proving the case for a guardianship order falls to the Secretary. 2. The burden falls to the Mother in seeking PR. Standard of Proof 1. The standard of proof is on the balance of probabilities: see s 93(4). 2. However, in Isles & Nelissen [2022] FedCFamC1A 97 (1 July 2022) the Federal Circuit and Family Court of Australia distinguished between proceedings in respect of children and other civil law proceedings. Such a distinction exists in care proceedings where the paramount consideration is the safety, welfare and well-being of the CYP: see s 9. 3. In addition, whilst care proceedings are premised upon proof of relevant facts and circumstances, the law distinguishes between proof of historical facts decided on the balance of probabilities and the prediction of future possibilities. 4. The standard of proof when determining whether there is a realistic possibility of restoration within a reasonable period often looks to possibilities in a prospective sense, hypothesised from known historical facts and present circumstances. 5. The Court is entitled to consider any matter that the Court finds is probative or convincing. Legal Issues – Interim Order and Jurisdiction Section 90: Rescission and Variation of Care Orders 1. Part 2 of Chapter 5 relates to Care applications. 2. Section 60 defines a care application and a care order. 3. A care application is an application for a care order. 4. A care order is an order with respect to the care and protection of a CYP. 5. Section 61 states that a care order may be made only on the application of the Secretary, except as provided by Chapter 5. 6. Section 90 is found in Chapter 5 of the Act. 7. Section 90 allows an application for rescission or variation of a care order to be made by the Secretary - and by others. Others include a CYP or a person having PR or a person from whom PR has been removed or a person that the Court considers has a sufficient interest in the welfare of the CYP: see sub-s (1AA) and sub-s (4). 8. Subsection (1A) requires notice to the parties in the proceedings in which the original care order was made. 9. Subsection (1) requires the leave of the Children's Court. 10. Subsection (2) allows the Court the discretion to grant leave if it appears there has been a significant change in relevant circumstances. 11. Clause 4 of the Children and Young Persons (Care and Protection) Regulations 2022 (the 'Care Regulations') refers to matters that the Court may consider in determining a significant change. Matters include: parents not meeting their responsibility under a care plan, or the Court is not satisfied proper arrangements have been made for the care and protection of the CYP following a progress review, or there is an application for a guardianship order, or a guardian is unable or unwilling to meet the guardian's responsibilities to the CYP. 12. Subsection (2) states that before granting leave the court must consider those matters set out in sub-ss (2B) and (2C). 13. Subsection (2B) sets out the primary considerations such as the views of the CYP and the length of the present care arrangements; and if the Court considers the present care arrangements are stable and secure the course that would be the least intrusiveness and whether that would be in the best interests of the CYP. 14. Subsection (2C) covers the age of the CYP, the nature of the application, plans for the CYP, whether the applicant has an arguable case or matters in s 82 reports or s 85A (review of permanency plans involving restoration) or s 150 (review of placements effected by order of Children's Court). 15. Subsections (2D) and (2E) provides circumstances that allow a court to dismiss an application for leave. 16. Subsection (3A) entitles the Secretary to notice; and to be a party. 17. Subsection (5) refers to an application for variation made or opposed by the Secretary and the proving of a fresh ground. 18. Subsection (6) states that before making an order to rescind or vary a care order that places a CYP under the PR of the Minister or allocates aspects of PR from the Minister to another (such as the original order), the Court must consider matters including the age and views and length of time the CYP has been in the current care arrangement and the stability of that arrangement, the strength of attachments to birth parents and present caregivers, the capacity of birth parents to provide an adequate standard of care and the risk if present care arrangements are varied or rescinded. 19. Subsection (7) provides that the source of power for the Court to vary or rescind an order - and if it rescinds any order, it may make any one of the orders that it could have made had an application been made to the Court. 20. If the Court makes an order under sub-s (7), then sub-s (8) requires notice to the Secretary. 21. Subsection (9) provides that s 90 does not apply to an application to vary an interim care order. Consideration of the legitimacy of the interim order made 21 September 2022 1. Section 69 allows the Court to make an interim care order but only after a care application is made. 2. Section 60 defines a care application as an application for a care order. 3. A care order is an order for or with respect to the care and protection of a CYP. 4. In Re Edward [2001] NSWSC 284 ('re Edward'), Justice Kirby found at [37] that an application for leave under s 90 cannot be described as an application for the care of a child. It is an application for leave. 5. However, Justice Kirby also found at [31] that once leave is granted the application can be described as an application for the care of a child. 6. The import of that decision is that the Court had no power to make an interim order on 21 September 2022 (prior to leave being granted) because there was no care order before it. 7. If the interim order was invalid, then that invalidity continued. 8. The aftermath is, when the original order expired on 18 November 2022, the Children were not subject to a care order and were not in statutory out of home care. No guardianship order could be made. The common law would apply and the Children could return to their parents. 9. In re Brett v Children's Court of NSW [2006] NSWSC 984 ('re Brett'), Justice Sully at [51] disagrees, in part, with Justice Kirby. 10. In re Brett, Justice Sully says at [53] that he is unpersuaded that an application for leave to bring an application under s 90 is not a proceeding with respect to a CYP. 11. Justice Kirby's view is that an application for leave is not interparty. Justice Sully's view is, when considering notice (s 90(1A)) and the right of appearance (s 98), that an application for leave is interparty. 12. Justice Sully says the making of a leave application is a procedural step taken in aid of a projected substantive application. 13. Justice Sully looks to the intended effect with respect to the regime of care and protection. 14. This Court prefers the arguments of Justice Sully. Such an approach sits comfortably with s 9 principles and is consistent with the practice in care proceedings of allowing parties to address on leave in s 90 leave applications (interparty). 15. Mr Higgins submits that the interim order was valid because s 61(2A)(a), introduced after the decision of Re Edward, refers to a written report not being required to accompany a care application if it is an application for the rescission or variation of a care order. The inference is that a s 90 application is described as a care application upon filing and before leave is considered. This is a sound submission. 16. The Court finds that the interim order made on 21 September 2022 is valid and, more generally, the Court has power to make an interim order in s 90 applications prior to leave being granted. Whether the Court has the jurisdiction to deal with a s 90 application after the expiration of the original orders 1. The Secretary submits that s 90 no longer applies because of the expiry of the original order. 2. The Secretary's primary position is that the application should be determined pursuant to the principles in s 9, s 83 and s 79A. 3. The Mother submits that if the Court is satisfied that the original order cannot be rescinded because it has expired then the Court cannot make final orders. An application under s 61 is required. 4. The ILR's position is that the application was filed pursuant to s 90 and the interim order was made prior to the expiration of the final order. As such, the proceedings are governed by s 90 and the Court must make an order under s 90(7). 5. The Secretary submits that s 90 does not apply to vary or rescind an interim order. 6. During oral submissions Mr Higgins adopted the position that the Court has a s 90 application as well as an application seeking a guardianship order. 7. Ms Connor and Ms Turgut submitted that an application for a care order can be made in only two ways, either pursuant to s 61 or a s 90 application. That the Act does not provide for an application under s 79A. 8. During oral submissions Ms Turgut agreed with Ms Connor's view that the Secretary would need to file a s 61 application. Consideration 1. The Court cannot rescind or vary an order that is not in existence. The Court finds that s 90(7) is no longer a source of power. 2. But the Court is satisfied that there is a care application. A care application is an application for a care order: s 60. 3. The s 90 application seeks a care order - specified as a guardianship order. The application passed through the filters of 'a significant change' and the granting of 'leave'. 4. The application for an order of PR to the Mother to the exclusion of the Father is a care order. 5. There is no express restriction in s 90 that prevents the court from dealing with the application as an application for a care order under s 79A or under s 79(1)(a). 6. Returning to the decision of re Brett, Justice Sully looks to the intended effect with respect to the care and protection regime. 7. The 'intended effect' of the s 90 application is a guardianship order. 8. The Court, in granting leave to the Mother, had the 'intended effect' to consider a care order of PR solely to the Mother. 9. It was on those 'intended effects' that the parties focussed on over the 6-day hearing. 10. Further, there are application forms in care proceedings beyond s 61 or s 90 forms. Such forms are approved under the Children's Court Rule 2000. 11. Under rule 6 of the Children's Court Rule 2000, the Court may waive any of the requirements of practice and procedure before or after compliance arises. 12. It was this process that allowed the Mother to seek the Court's leave to have the care orders that she is seeking join the Secretary's s 90 application, rather than take out her own s 90 application. 13. If need be, the Court could waive a requirement of an application to be on a particular form. 14. A form is a way of starting a legal proceeding – to put a matter before a court for adjudication; and setting out orders sought. There are sometimes gateways such as s 61 (1) where 'a care order may be made only on the application of the Secretary except as provided by this Chapter', or s 90 by way of a 'significant change'. 15. The Court's view is that the s 90 application is an application for a care order because it seeks a guardianship order. A guardianship order is a care order. 16. Section 79A(2) allows for a guardianship order and sits under Part 2 of Chapter 5 that relates to care applications. 17. Similarly, s 79(1)(a) allows for an order of PR to the Mother to the exclusion of the Father. This is a care order. 18. The application was drafted correctly, specified the care order sought, was validly filed, properly served, placed before the Court, acted upon by all parties, passed the statutory filters and leave was granted. 19. The Court has jurisdiction, and the source of power is s 79(1)(a) and s 79A(2). Issues not in Dispute 1. The Children were removed because of non-accidental injury to June. 2. The Mother was charged with Assault Occasioning Actual Bodily Harm. The Mother was found not guilty at hearing. 3. The Court made an Apprehended Domestic Violence Order. 4. A transcript of the evidence in the criminal proceeding is evidence before this Court. 5. The Children are in the care of the MGM. This arrangement is safe and stable. 6. The Children have a strong attachment to the MGM. 7. The Mother loves the Children. Issues in Dispute 1. The Court is asked to make an order allocating PR to the Mother to the exclusion of the Father, or for a guardianship order to the MGM. 2. The primary issue in dispute is whether there is a realistic possibility of restoration of the Children to the Mother within a reasonable period. Evidence 1. Witnesses included the DCJ Manager Casework, DCJ Caseworker, Funded Service Provider (FSP) Team Leader, FSP Caseworker, the MGM, the Mother, a Forensic Psychologist, and a Clinical Psychologist. Submissions 1. Mr Higgins, Ms Connor, and Ms Turgut provided comprehensive written submissions to the Court on the facts and circumstances. 2. The Secretary submits that there is no realistic possibility of restoration. Mr Higgins submits that the mother has not satisfactorily addressed the issues that led to removal. Further, the circumstances of the Children are such that it would not serve their safety, welfare and wellbeing to be moved from their current placement with the MGM. 3. Mr Higgins comprehensively and compellingly sets out the evidence that supports the Secretary's position. 4. The Mother largely relies on the hierarchy of preferences for permanency planning, the transition plan of the Forensic Psychologist, the courses she has undertaken, the assertion that DCJ and the FSP have not properly considered restoration (because of the focus on guardianship) and the decision in Department of Communities and Justice (DCJ) and Evie and Grace [2023] NSWChC 1 ('Evie and Grace'). 5. The ILR submits that the Children's primary attachment figure is the MGM, that the Mother's capacity to manage the Children is untested and the least intrusive intervention would be for the Children to remain in the care of the MGM. Facts and Circumstances 1. The Children are aged 5, 4 and 3 years. 2. The ILR says the Children's views were not obtained given their age. 3. Even if the Children expressed a wish their age, maturity and cognitive development is such that the Court would place little to no weight on any view. 4. The Children require full time attention, support, guidance, and direction. 5. The Children have no identified health needs or specific vulnerabilities. 6. The Children are Aboriginal through their Father. The Mother is not Aboriginal. 7. The two older Children have been with their MGM for nearly 3 years and 5 months and, for the youngest child, since birth. 8. The placement is stable, secure, and loving. 9. There are no concerns about the quality of care from DCJ or the FSP who regularly monitor the Children. 10. The Clinical Psychologist stated, without challenge, that there is clear evidence of a close, loving and nurturing bidirectional relationship between the MGM and the Children. 11. The MGM is attuned, attentive, and can assist the Children to process situations in a calm, patient, and tolerant manner. 12. The Clinical Psychologist's view is that separating the Children from the MGM will result in potential trauma and be a source of grief and loss for them. 13. The Children are accustomed to having the MGM immediately available. This is particularly pertinent for the two older children who are in their fifth care placement. 14. June has displayed separation anxiety. Even in a secure and familiar educational environment, June displays difficulty with emotional regulation. 15. For the Children to leave the care of an attentive, attuned, and nurturing caregiver will be profound. 16. The risk to the Children of psychological harm if present care arrangements are varied or rescinded is real. 17. The Clinical Psychologist concludes that the MGM is the primary attachment figure. 18. This robust attachment means that the Children have the social and emotional structures in place for additional positive attachment relationships. Consequently, there is evidence of good attachment between the Mother and her three Children within the limits of their current care situation. 19. However, the capacity of the Mother to manage the care of three Children on her own is untested. 20. The Mother's current pregnancy changes the circumstances for the Children. The Mother will have to divide her attention as she prepares for the birth of the child and negotiates the first years of that child's life on her own. The Father of baby-to-be is unknown. 21. The reason for removal was non accidental injury to June. 22. June was taken to hospital by the Mother and Father and noted to have an acute fracture to her humerus, multiple rib fractures, distal femoral fracture and numerous bruising to her face, neck and arm. The injuries had been caused at different times. The injuries went unexplained but could not have been caused from everyday care. 23. In addition, there was an incidental concern as to May's failure to thrive. 24. The Mother and Father have since separated. 25. The Mother denies culpability for the injuries and seeks to divert responsibility for the causation of the injuries away from herself. 26. The Court finds on the balance of probabilities - allowing for the onus and Briginshaw v Briginshaw [1938] HCA 34 – the Mother responsible for the injury leading to the hospitalisation of June on 2 October 2019. The Court accepts the comprehensive reasoning set out in the Secretary's written submissions. 27. The Court is unaware as to what contributed to the mother inflicting the injuries. 28. The Court is unaware as to the Mother's insight or her ability to address the factors that led to the injuries. The lack of explanation by the Mother fundamentally undermines her ability to address the factors of causation. 29. The Clinical Psychologist's view is the Mother fails to demonstrate a commitment to address factors that would mitigate the safety concerns highlighted in the initial care proceedings. 30. The propensity to lay unwarranted responsibility for the injuries on others is concerning; and adversely affects the Mother's credibility. 31. The Mother was initially critical of the MGM. The shift in the Mother's evidence regarding the relationship with the MGM was self-serving. The shift came after the Forensic Psychologist's second report spoke of the importance of that relationship if there was to be restoration. 32. The perceived manipulation by the Mother of the MGM's evidence in the criminal proceedings puts strain on that relationship and undermines trust. 33. The Mother has completed 9 parenting courses, two domestic violence courses, an Aboriginal awareness course and a First-Aid course. 34. There is no evidence to indicate what the Mother had meaningfully learnt from such courses. 35. There is no acknowledgement by the Mother as to what led the Children coming into care. Legal Framework 1. The test to be applied when making an order allocating PR is: what is in the best interest of the CYP. 2. Determining the best interests of a CYP demands a comparative examination of available placement options that best suit in securing the child's safety, welfare and well-being. This includes the consideration of the comparative assessments of the term 'least intrusiveness' and the statutory 'placement principles'. 3. The first task is to determine the available placement options through permanency planning. This requires determining whether there is a realistic possibility of restoration and eliminating any option that presents as an unacceptable risk to the CYP. 4. Evidence includes any matter that is probative or convincing. Applying s 83 and s 79A 1. Section 83(7) applies to the Mother's application. 2. Section 83(7)(b) requires the Court to consider whether there is a realistic possibility of restoration within a reasonable period, having regard to – 1. the circumstances of the child or young person, and 2. the evidence, if any, that the child or young person's 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. 1. Section 79A(3)(a) applies to the Secretary's application. The Children's Court must not make a guardianship order unless it is satisfied that there is no realistic possibility of restoration of the child or young person to his or her parents. 2. Section 79A(3)(a) does not set out the test for a realistic possibility of restoration. It is reasonable for the Court to inform itself consistent with the words set out in s 83. 3. Section 79A does not refer to a reasonable period. A reasonable period is not relevant when considering a guardianship order. Realistic Possibility of Restoration 1. In considering whether there is a realistic possibility of restoration within a reasonable period the Court must have regard to the circumstances of the CYP, and the evidence that the parents are likely to be able to satisfactorily address the issues that have led to removal: see generally s 83, sub-ss (1), (5) and (7). Circumstances of the child 1. In Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89 at [43] it was observed that the 'circumstances of the child' is 'the whole of the child's situation', including any aspects of the situation in which a child is placed, the setting in which he or she is living and the influences bearing upon his or her wellbeing and 'potential harm': "V V" v District Court of New South Wales [2013] NSWCA 469 at [67] – [69]. 2. Some of the factors that fall within the circumstances of the child are referred to in s 90(6): * the age of the CYP * the views of the CYP and the weight to be given to those views * the length of time the child or young person has been in the care of the present caregivers and the stability of present care arrangements * the strength of the child's or young person's attachments to the birth parents and the present caregivers * the risk to the child or young person of psychological harm if present care arrangements are varied or rescinded 1. Characteristics of the child include maturity, gender, lifestyle, background, health, development, previous dislocation and the need for predictability, past trauma, specific vulnerabilities and whether the child is Aboriginal or Torres Strait Islander. 2. Factors include the strength or risks of siblings, and other family and community relationship connections. 3. The circumstances also may include the child's experiences or need to maintain a connectivity with a lifestyle. Evidence the parents are likely to be able to satisfactorily address the issues that have led to the removal – non-accidental injury 1. The need to protect the CYP from physical or psychological harm caused, or that may be caused, by being subjected to or exposed to abuse, ill-treatment or violence is fundamental to their safety, welfare and wellbeing. 2. In Evie and Grace, the President of the Children's Court, before analysing several authorities, observes in a matter involving non accidental injury: Policy and practical reasons support the line of authority that unless a parent identifies the cause of harm, accepts responsibility for the harm and addresses the factors that led to the harm, the risk of further harm to a child will be unacceptable and a child cannot be restored. Many parents are driven by a desire to be reunited with their children and will more likely be transparent with the Department and the Courts if their disclosure of the cause of harm increases the likelihood of the restoration of their children. Practically, disclosure enables targeted responses to address the risk factors and provide strategies to mitigate future risk. Absent this evidence it is difficult to conclude that the risk can be mitigated. 1. In Evie and Grace, Judge Skinner restored the children but noted the matter involved extraordinary circumstances - including the parents monitoring each other and a family well-qualified for identifying and responding to physical harm. 2. At [54] of that judgment, it was determined that restoration is unlikely to cause trauma or psychological harm whereas ongoing displacement from the home may have psychological consequences. Meaning of realistic possibility of restoration 1. Judge Johnstone in Department of Communities and Justice (DCJ) and Bloom [2021] NSWChC 2 ('re Bloom') summarises at [173] the principles relating to the phrase 'a realistic possibility of restoration': A possibility is something less than a probability; that is, something that is likely to happen. A possibility is something that may or may not happen. That said, it must be not impossible. The concept of realistic possibility of restoration is not to be confused with the mere hope that a parent's situation may improve. The possibility must be 'realistic', that is, it must be real or practical. The possibility must not be fanciful, sentimental or idealistic, or based upon 'unlikely hopes for the future'. It needs to be 'sensible' and 'commonsensical'. 1. In re Bloom, at [173] it was also said that: 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 period. 1. A reasonable period for the purposes of this section must not exceed 24 months: see s 83(8A). This enables the Court to take into account future likely events. 2. A realistic possibility may be evaluated in ways – other than the above. The phrase must be interpreted in a way that promotes the purpose of the legislation to give effect to the purpose of the Act and not in a restricted way – albeit generally 'runs on the board' is required. 3. 'Runs on the board' may be evidenced by the completion of tasks identified in the summary of proposed plan. 4. Whilst s 83 refers to a consideration of the circumstances of the CYP and a consideration of the evidence, if any, that the parent(s) are likely to be able to satisfactorily address issues that led to the removal - the task of assessing a realistic possibility of restoration is significantly broader. 5. Section 83 uses the expression 'having regard to'. 6. The meaning of 'have regard to' in matters concerning children should be interpreted very broadly. This is more likely to achieve the objectives and principles of the Act. 7. Consistent with this wider interpretation of the expression 'having regard to', Johnstone J in re Bloom at [173] refers to the determination to be undertaken in the context of the totality of the Care Act, in particular the objects set out in s 8 and other principles to be applied in its administration, including the notion of unacceptable risk of harm. 8. Matters that the Court is to have regard to include: * The Act is to be administered under the principle that the safety, welfare and well-being of the CYP are paramount: s 9(1) * Wherever a CYP is able to form their own views on a matter concerning their safety, welfare and well-being, they must be given an opportunity to express those views freely and given due weight in accordance with their developmental capacity and circumstances: s 9(2)(a) * In all actions and decisions made under this Act that significantly affect a CYP, account must be taken of the culture, disability, language, religion and sexuality and, if relevant, those with parental responsibility for the CYP: s 9(2)(b) 1. Arguably, the proper application of the assessment as to whether there is a realistic possibility of restoration is wide enough to embrace all assertions of an "unacceptable risk" of harm. Unacceptable Risk of Harm 1. The unacceptable risk of harm test, as pronounced in M v M [1988] HCA 68 in the context of a realistic possibility of restoration, may be expressed by saying a court will not grant restoration to a parent if restoration would expose the child to an unacceptable risk of harm. 2. The test allows for the: * identification of risk * an assessment of the seriousness of the risk, in the context of the severity of possible consequences * the likelihood of the risk occurring * whether that risk might be satisfactorily managed or otherwise ameliorated and the likelihood of compliance. (If there is to be restoration such matters to be incorporated in the Care Plan per s 84) * balanced against the possibility of benefit to the child 1. However, it may be that there is an acceptable risk, but it is not in the best interests to restore a CYP to a parent – more often in s 90 matters. An example given in Re: Elizabeth [2011] NSWDC 245 at [64] was a parent having a chronic drug problem who ultimately addressed such issues but takes ten years to do so during which the child 'has been stabilised in long term care'. 2. The nature of the unacceptable risk of harm test is exclusionary and assists the Court in what not to do, i.e. to not restore. But it is not determinative of the wider issue, that being the best interests of the CYP. Best Interests of the Children or Young Person 1. The test to be applied in care proceedings in respect of final orders is that the Court must not make an order allocating parental responsibility unless it has considered the permanent placement principles and is satisfied that the order is in the best interests of the CYP: s 79(3). 2. Determining the best interests of a CYP demands a comparative examination of available options that best suits in securing the child's safety, welfare and well-being. 3. The meaning of best interests is informed by the Care Act. 4. The Act recognises that the primary means of providing for the safety, welfare and well-being of CYPs is by providing long-term, safe, nurturing, stable and secure environments in accordance with the permanent placement principles: see s 8(a1). 5. This may involve an analysis of a range of relevant and conceivably competing factors. 6. For example, the permanent placement principles set out a preference order if it is practicable and in the best interests of a CYP. The first preference for permanent placement is for the CYP to be restored to the care of a parent or parents to preserve the family relationship: s 10A(3). 7. The Act also dictates the course to be followed to be the least intrusive intervention in the life of a child/YP and their family that is consistent with the paramount concern to protect from harm and promote the CYP's development: s 9(2)(c). 8. In Re Louise and Belinda [2009] NSWSC 534, Justice Foster considered least intrusive intervention as promoting stability, absence of change and the maintenance of the status quo. 9. In that case, it was observed, that a care application under the equivalent of s 61 had the effect of requiring the court to be reluctant to remove a child from the parents unless there is a compelling reason to do so. 10. On the other hand, Justice Foster says: where an application is made under s 90 there is a different effect. In that case, the least intrusive form of intervention would normally mean not interfering with existing care arrangements which may sit uncomfortably with the permanent placement principles preference order. 11. It may be preferable, in the best interests of the CYP, to make the order that would be least likely to lead to the institution of further proceedings. 12. The Court must give due weight to the views of the CYP and consider the culture, disability, language, religion, and sexuality of the CYP, and those with PR. 13. The Children's Court must not make a final order for the removal of a child from the care and protection of his or her parents, or for the allocation of parental responsibility in respect of the child unless it has considered a care plan: see s 80. 14. For the requirements of permanency plans involving conditional restoration: see s 84. 15. To reinforce the obligation and power of the Court to make an order in the best interests of the CYP, s 67 allows the Court to make an order different from the order for which the application was made, provided all prerequisites are satisfied; and without the necessity of a particular form filed. 16. Guardianship orders provide a stable, nurturing and safe home for CYP's when they cannot live with parents but without cutting legal ties to their family. Under a guardianship order, a CYP is not in foster or out-of-home care but in the independent care of their guardian. Applying the Facts to the Law 1. The circumstances of the Children are such that their separation from the MGM will result in potential trauma and be a source of grief and loss for them. 2. The Mother has not and is not likely to be able to satisfactorily address the issues that have led to the removal of the Children from her care. 3. The Mother has not identified the cause of harm. 4. The Mother has not accepted responsibility for the harm. 5. The Mother has not addressed the factors that have led to harm. 6. In Evie and Grace, the children were restored but the matter involved extraordinary circumstances. 7. In this case, there are no such extraordinary circumstances. 8. In Evie and Grace, it was found that it was highly unlikely that the injuries were caused by both parents. Consequently, the exposure of harm will cause both parents to reflect on the way they have handled the children and to closely observe the other when handling the children. 9. In this case, it is the Mother that caused the harm. The Mother and Father are no longer in a relationship. 10. In Evie and Grace, the parents had a family well-qualified family for identifying and responding to physical harm. 11. In this case, the only significant potential support to the Mother is the MGM. That relationship is fraught. If the Children were restored to the Mother, there would be nothing to prevent the mother from isolating the MGM. 12. In Evie and Grace, it was said that restoration is unlikely to cause trauma or psychological harm whereas ongoing displacement from the home may have psychological consequences. 13. In this case, it is restoration that will cause the Children trauma and psychological harm. 14. Further, the mother is untested caring for the three Children on her own and in addition, she will be coping with a newborn. Findings and Orders 1. There is no realistic possibility of restoration of the Children to the Mother. 2. The available placement options are the status quo or a guardianship order. 3. A guardianship order provides a stable, nurturing, and safe home. 4. A guardianship order is in the best interest of the Children. 5. The Court is satisfied that the Children are in statutory out-of-home care pursuant to s 135A and the Children are in need of care and protection: see ss 71 and 72. 6. The Court is satisfied that each parent has been given a reasonable opportunity to obtain independent legal advice about the application and be heard pursuant to s 79B(4) of the Care Act. 7. The Children are under 12 years of age - the consent of the Children, pursuant to clause 12 of the Care Regulations, is not required. 8. The Court is in receipt of a suitability statement pursuant to clause 13 of the Care regulations. 9. The Court is satisfied the prospective guardian has been given an opportunity to be heard pursuant to s 87 of the Care Act; and is aware of their obligation. 10. The Court has considered the Care Plans pursuant to s 80 of the Care Act. 11. The Court has considered the information that must be contained in a care plan pursuant to s 79B (9) of the Care Act. 12. The Court finds that there is no realistic possibility of restoration of the Children to either their Mother or Father. 13. The Court is satisfied that - * the prospective guardian, the MGM, will provide a safe, nurturing, stable and secure environment for the Children – as she has done in the past and will continue to do so in the future, and * the permanent placement of the Children under the guardianship order to the MGM is in accordance with the Aboriginal and Torres Strait Islander Child and Young Person Placement Principles that apply to placement of such children in statutory out-of-home care under section 13. * the Children have the opportunity for continuing contact with their Aboriginal family, community and culture. 1. The Court is invited to make orders in accordance with a minute of care order. 2. Each of the parties, including the Father, support the orders in accordance with the minute of care order. 3. The Court agrees. 4. The s 90A order, made on 18 November 2020, is rescinded. 5. Pursuant to s 83(7), the Court expressly finds that permanency planning for the Children has been appropriately and adequately addressed. 6. Pursuant to s 79A (2), the Court makes a guardianship order allocating to the MGM all aspects of parental responsibility for the Children until each child reaches 18 years of age. 7. 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: 04 December 2023