Department of Communities and Justice and Ziggy Smith [2025] NSWChC 2

Children's Court New South Wales

Medium Neutral Citation: Department of Communities and Justice and Ziggy Smith [2025] NSWChC 2 Hearing dates: 16 January 2025 Decision date: 16 January 2025 Jurisdiction: Care and protection Before: Children's Magistrate Herridge Decision: Parental responsibility to the minister to age 18. The Secretary to file an amended care plan predicated on the above order. Catchwords: CHILD WELFARE — Care proceedings — Care plan — Permanency planning Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 Category: Principal judgment Parties: Secretary (Department of Communities and Justice) The Mother The Young Person Representation: Ms McPhillips (Mother) Mr Gonzales (For Ms Lam) Ms Lam (ILR) Ms Moulatsiotis (Secretary) File Number(s): 2023/00184386 Publication restriction: Pseudonyms have been used to protect the identity of the child.

JUDGMENT 1. Ziggy Smith was born on 9 February 2023. He is a Wiradjuri boy born to Caitlyn Majors and Timothy Smith. He has two paternal sisters, Nina and Billy, both of whom are adults, and three maternal siblings, Jack, Fiona, and William. Jack was born in 2011, Fiona in 2013, and William in 2016. 2. William is currently cared for by his maternal uncle, Gregory McDonald, and his wife, maternal aunt, Belinda Riggall. Belinda has five children, all living independently and four grandchildren. Her youngest daughter Talia who is 19 is part of her household. 3. Ziggy was born 9 February 2023 and was removed from the care of his mother and placed with - I will call them Gregory and Belinda, for ease - upon removal. He has effectively been in their care since he was four months old. 4. By an application dated 7 June 2023, the Secretary seeks a care order. The basis of the application was a likelihood of harm arising from concerns pertaining to the elder children to the mother that were the subject of court proceedings, in particular, concerns of drug use. The current concerns were ones of inadequate shelter, domestic violence, and ongoing drug use. 5. Ziggy was found to be in need of care on 19 July 2023 and the care plan that I am asked to move on today was published on 1 November 2024, and that care plan proposes that Ziggy be the subject of a guardianship order to Gregory and Belinda to give effect to Ziggy's ongoing placement with them. That care plan also contains a cultural plan which had been approved by the Aboriginal Consultation Plan and certainly appears to be appropriate. 6. The contact section proposes contact between Ziggy and his mother monthly plus special occasions, supervised by the carers and other nominated persons and sibling contact with Nina and Billy who are adults to be arranged between them and the carers. 7. Sadly, the father of maternal siblings Jack and Fiona with whom they are placed, has not cooperated in attempts made by the DCJ and or Belinda to effect contact which is sad because it denies Ziggy the opportunity of a relationship with those children. 8. On its face, in terms of its constituent parts, the care plan appears to be complete and to her credit through her counsel today the mum concedes that there is currently no realistic possibility of restoration of Ziggy to her care. That does not mean to say that she cannot make an application for that to be different in the future if her circumstances change. But certainly in terms of my decision making today, I accept that concession, and I commend mum for making it because I have no doubt that that would have been a decision that took some courage and I interpret that having been made in Ziggy's best interest. 9. Just turning briefly to Ziggy's father. He has not taken up the opportunity of engaging in a relationship with Ziggy since his removal and has not participated in the proceedings. I will therefore find that there is no realistic possibility of restoration of Ziggy to his father either. 10. That requires me then to move on to the consideration of whether or not the permanency plan, contained in the care plan, is appropriate and adequate. In many respects it is. The mother herself, again to her credit, agrees that Ziggy should continue to be placed with Belinda and Gregory. Belinda and Gregory are both Aboriginal themselves. Gregory is Wiradjuri as well. They appear to be in a stable relationship. They have been married for four years. They have been together for 12. This is information that I have gleaned from a guardianship assessment which has been filed. They already care for the maternal sibling William under a guardianship order which means that Ziggy and William are brothers in the same placement. The benefits of that are obvious. 11. The placement has been approved by the Aboriginal Consultation Panel, and I think I can go so far as to say that that panel has also approved making the guardianship order, although it is not clear whether the panel would have been aware of the concerns that the mother has, which I will come to in a moment, about the implications that that may have on Ziggy's contact needs being met. 12. So as I said, he has been in the placement since his removal at four months old. He attends childcare and appears to be meeting his milestones. He is connected with his culture on a daily basis as a part of a household with his sibling and a larger family which includes other children including two about his age and by that I am referring to Belinda's grandchildren. 13. I have seen and accept the validity of a consent to guardianship, a suitability statement with a financial plan. So in that sense, evidence in support of the guardianship application is complete, and the DCJ urges me today to make that order under s 79A to give effect to this placement. 14. The mother argues that Ziggy's contact needs will not be met if a guardianship order is made and I will come back to that in a moment. The father, as I said, has not been engaged and the ILR describes the guardianship order as premature. 15. In the court's assessment, this is an appropriate placement which meets Ziggy's developmental and cultural needs and that does not appear to be in dispute. The question is the legal basis for that care arrangement. The options are a guardianship order under s 79A, the effect of which would be to allocate parental responsibility to the carers, Gregory and Belinda. It will also mean that beyond paying a guardianship allowance, the DCJ will no longer have any involvement with the family and that the carers will be left to meet Ziggy's needs and make the arrangements to meet Ziggy's needs themselves including his contact needs. 16. Under a guardianship order, it is also the case that ancillary orders, pursuant to ss 73 and 76, for undertakings and for supervision, and s 82, are not available because those specific sections specifically exclude their application when a guardianship order is made under s 79A. That means that not only would the carers not be subject to any scrutiny by the DCJ but effectively they would not be subject to any scrutiny by the court either. And therefore, before making a guardianship order, the court would need to be satisfied and confident that Ziggy's needs would be met if that order was made. And in fact the very philosophy of a guardianship order is to free a family from the burden and the stigma of DCJ involvement beyond the provision of a guardianship allowance and in many cases a guardianship order would be appropriate. 17. The alternative to give effect to this placement would be an order under s 79(1)(b) allocating parent responsibility to the Minister to age 18, and with that, the Minister would retain parental responsibility and with that would come the legal responsibility to ensure that all needs are met including contact needs. 18. Another alternative is an order to be made allocating parental responsibility to the carers under s 79(1)(f) which would mean that they could still be allocated parental responsibility but the ancillary orders, if the Court considered them to be appropriate, and if needed under s 73 such as undertakings and supervision, and reporting under s 82, would be available. 19. With both a guardianship order and an order under s 79(1)(f) or indeed s 79(1)(e) which would be a sharing of the PR between the Minister and the carers, either way a contact order under s 86 can be made. If it is under a guardianship order, it can be longer than 12 months. If it ancillary to an order under any other part of s 79(1)(b), (e), or (f) then it will be limited to 12 months. 20. Contact orders are not common in the current Care and Protection space, the reason being that, particularly for children as young as Ziggy, to make an order at his age which would have the effect of lasting for the remainder of his minority, would have the capacity to become outdated quite quickly. So more commonly these days, the question of contact is left to the discretion of the party with parental responsibility which adds to the weight of the decision to allocate parental responsibility. 21. I will go into a bit more detail about the mother's concerns. She refers, quite properly, to how contact has gone with William and under the guardianship order since it was made with her consent in December 2017. She says that her contact with William between 2017 and now has been erratic and she takes some responsibility for that. She accepts that, for some of that time, she was in custody, certainly between 2016 and 2021. But she then says that - I am paraphrasing now - that since 2021 when she has been available to have contact with William, she did not receive updates about him and she has only seen him on a handful of occasions since then, and that during that time, Belinda and Gregory blocked her number and blocked her on social media. 22. She says that Belinda and Gregory, when she did have contact, made derogatory and belittling remarks; that William was not told that she was his mother until 2022. She says that in December 2023, she broached with Belinda the subject of Ziggy growing up knowing who his family is. She says she did not want him to have the same reaction as William had which was to refer to her as a friend. 23. It is alleged - and I am only quoting from the mother's affidavit here, so I have not heard DCJ's version in relation to this - but mum alleges that she was told by Belinda that telling Ziggy that she was his mother would confuse Ziggy because William calls them mum and dad. She says - and this has been accepted from the bar table - that in relation to Ziggy, the interim order was made in July 2023, contact was supervised for three months by Belinda and Gregory, and she says that they decided they would not supervise contact which has since been supervised by the DCJ which the DCJ lawyer has confirmed. 24. Mum says that, "Belinda will only talk to me in writing and Gregory has not communicated with me at all. They have both blocked my phone again." That evidence was filed on the 2nd of December, and I have to say I am bewildered at the reasons why this matter has proceeded so slowly but I say that without having delved deeply into the file. For the large majority of the period that the proceedings cover, I have just referred to the matters which directly inform my decision today. 25. The DCJ's version of events, such as it is, is to be found in an affidavit which was filed under the hand of the case worker Marko, on 17 September 2024, in which it said that the 18 visits between July 2024 and December 2024 - four being cancelled as a result of mum being unwell and eight as the result of Ziggy being unwell - has been positive for all concerned. 26. The DCJ casework team have not alluded to the progress of contact between mother and William to the extent that the mother has and there does not appear to be much evidence about the concerns which the mother has about what appears to be a breakdown in the relationship between she and her brother and Belinda. 27. The guardianship assessment report which was dated 24 June 2024, authored, as is often the case, by a former employee of DCJ, Cassie Andrews, which was annexed to an affidavit filed on behalf of the Secretary on 30 October 2024, under the section headed "Applicant's relationships and views of the child's parents and family members", it says that Belinda and Gregory report that they are not prepared to engage with people who pose a risk to their family and they view the birth parents Timothy and Caitlyn as risks to Ziggy currently. 28. Page 21 of the guardianship assessment about halfway down the page it says: "The assessor noted some discord in the relationship between Belinda, Gregory and Caitlyn currently which appears linked to worries that Caitlyn is drug using and concerns the applicants have about potential conflict during family time. The assessor reports that William is not currently spending time with his mother and has reported that family time ceased because Caitlyn failed to attend planned visits, keeping William waiting and culminating in Belinda and Gregory observing aggressive and concerning behaviours from William as a result of what they assume as a feeling of abandonment and disappointment for William. Belinda reported this has been communicated to caseworkers. For this reason, the applicants plan to have William minded by Talia when family time for Ziggy occurs." "It is noted that Belinda and Gregory have no current role in family time but both report they are willing to assume responsibility for planning and facilitating family time between Ziggy and Caitlyn. But they have expressed worries about her drug use and ability to attend reliably without conflict. There was also uncertainty for the applicants to the DCJ intention in relation to Timothy's family time with Ziggy and what safety issues may need resolution prior to that commencing and how they might progress if a guardianship order is made." 1. This decision really turns on the ability of the carers and mum collectively to meet Ziggy's contact needs. It is not singularly the responsibility of any one of the three of them, but collectively under a guardianship arrangement they must be able to meet Ziggy's contact needs. 2. The two narratives that I have just summarised give a very different history and different reasons for - I think the common acceptance - the contact between William and his mother since the guardianship order was made in relation to him in December 2017 has not worked. Also, in spite of what the guardianship assessment says, the fact is that on the DCJ's evidence, contact was already being supervised by the carers and they, the DCJ, took back the responsibility for supervising the contact between Ziggy and his mother. Further, even to the guardianship assessor the carers say that if there was a guardianship order made in their favour, it would not be them, it would be Talia, Belinda's 19-year-old daughter, who will be supervising the contact. 3. Now, it may be that the concerns raised by the carers are partly, mainly, or wholly true. It may be that mum, Caitlyn, has been unreliable; she has been aggressive; and that she is still using drugs. All those things may be true. It may also be the case that none of those things are true and as it appears from my assessment of her evidence that the underlying problem with the contact which has occurred between she and William and between she and Ziggy is that Gregory and Belinda simply don't trust her, and reading between the lines of the mother's version of events, Gregory and Belinda may even be of the view that she should not be having contact at all. 4. I do not know where the truth lies, but for the purposes of determining the suitability and viability of a guardianship order, I do not actually need to know because one conclusion I can comfortably draw from the evidence that I have read and on behalf of both parties is that collectively the carers and the mother cannot be left to meet Ziggy's contact needs, and that means in my assessment that the ongoing involvement of the Minister is required. 5. I therefore accept that there is no realistic possibility of restoration of Ziggy to his mother, but I direct that the DCJ file an alternative care plan. 6. Section 83(6) gives the court power to direct the Secretary to file a different permanency plan if it does not accept the Secretary's assessment that there is no realistic possibility of restoration. I do accept that assessment and therefore section 83 does not specifically empower me to direct an alternative care plan. However, whilst it is not something that I can order, the fact is that I cannot make a final order until I am satisfied a permanency plan for Ziggy has been appropriately and adequately addressed. For the reasons I have stated, I am unable to find that a permanency plan which is predicated upon a guardianship order appropriately and adequately meets Ziggy's needs. 7. In my assessment, the only order I can make is one allocating parental responsibility to the minister to age 18, and therefore I invite the Secretary to file an amended care plan which should be predicated on that order.