Department of Human Services V RM & MW [2010] NSWLC 32

Local Court of New South Wales

CITATION: Department of Human Services V RM & MW [2010] NSWLC 32

JURISDICTION: Children's Court

Department of Human Services PARTIES: RM MW

FILE NUMBER: 8-11/2009

PLACE OF HEARING: Moree Local Court

DATE OF DECISION: 10/21/2010

MAGISTRATE: Magistrate Richardson

CATCHWORDS: Care and Protection - parental responsibility - whethr realistic possibility of restoration to mother's care - care plans - permanancy planning

LEGISLATION CITED: Children and Young Persons (Care and Protection) Act 1988

Re Helen [2004] CLN 2 Re Josie [2004] NSWSC 642 CASES CITED: Re Maree [2007] CLN 6 Re Nellie [2004] CLN 4 Re Rhett [2008] CLN 1 Re Sinead [2005] CLN 8

TEXTS CITED:

REPRESENTATION:

ORDERS:

- 13 -

IN THE MATTER OF "L", "S", "E" AND "D" 1 The Department of Human Services seek orders in respect of the children "L" (born in February 2004), "S" (born in September 2006), "E" (born in November 2005) and "D" (born in May 2008) that all aspects of parental responsibility be allocated to the Minister pursuant to section 79(1)(b) of the Children and Young Persons (Care and Protection) Act 1998 until each child attains the age of 18 years. 2 The application was made by the Department on 9 November 2009. All the children were taken from their parents on 3 November 2009. The children were placed with JM, a maternal relative and foster carer. The parents of the children, RM and MW, have had supervised contact with the children since they were taken. 3 The case was "established" for each of the four children on 22 March 2010. Establishment was based on the affidavit of Tania Davis sworn on 9 November 2009. That affidavit documented a number of domestic violence incidents between the parents from September 2004 to November 2009. Seventeen reports had been received that the children were at risk of harm. On some occasions the domestic violence was witnessed by one or some of the children and allegations are made of physical violence impacting on the children. The Court found that the children were in need of care and protection under section 71(1)(c)(d) and (e) of the Act. Provision had been made for the parents, who opposed establishment, to file evidence on their own behalf. Timetables were set but not adhered to by the parents. They have been represented by a number of different solicitors throughout the proceedings. 4 Following "establishment", orders were made for the Department to prepare care plans for each child. Care plans were prepared. Orders were made for the parents to file evidence in response to the care plans with which they disagreed. Affidavits were filed by the mother and father on 13 July 2010. 5 Evidence relied on by the Department includes: Affidavit of Tania Davis dated 9 November 2009; Affidavit of Tania Davis dated 7 January 2010; Affidavit of Shannon Rogers dated 25 February 2010; Affidavit of Shannon Rogers dated 15 March 2010; Affidavit of Shannon Rogers dated 21 May 2010; and Affidavit of Shannon Rogers dated 12 August 2010. The father, RM, filed an affidavit dated 13 July 2010. The mother, MW, also filed an affidavit on that date. 6 Submissions on the evidence and issues were made by the Department in a letter dated 10 September 2010, by the children's legal representative from Webb & Boland Lawyers in a letter dated 13 September 2010 and, belatedly, by Stuart Percy and Associates acting for both the mother and father by letter dated 24 September 2010. Orders had been made by the Court for written submissions to be filed by 13 September 2010 with a view to a decision being made on 23 September 2010 which was vacated because submissions on behalf of the parents had not been received. This adjournment enabled the Court to give proper consideration to the evidence, issues and submissions on the children's "placement". 7 There are a number of legal issues to consider before making "placement" decisions in relation to the four children in care. They are: