Local Court of New South Wales CITATION: Re Jillian and Jacinta [2008] NSWLC 23 JURISDICTION: Children's Court PARTIES: Director General of Department of Community Services; Re Jillian and Jacinta FILE NUMBER: PLACE OF HEARING: Parramatta DATE OF DECISION: 07/01/2008 MAGISTRATE: Magistrate C O'Brien CATCHWORDS: Restoration a realistic possibility - permanency planning LEGISLATION CITED: Children and Young Person's Care and Protection Act 1998 CASES CITED: TEXTS CITED: REPRESENTATION: ORDERS: Introduction 1 On 16 January 2008 Heather Redman the delegate of the Director General of the Department of Community Services (DoCS) commenced care proceedings in this court in respect of the two children Jillian A and Josephina B born [ 2005] and [ 2006] respectively. The mother of both of these girls is Ms A. Jillian's father was not indicated to the court and the father of Jacinta is Mr B. On 6 February 2008 an order was made by consent and without admission finding that the children were in need of care and protection, thus establishing the court's power to further deal with the matter. 2 The Director General initially sought an order that parental responsibility be allocated to the Minister until each of the children respectively attained the age of eighteen years. At the hearing before me, which took place over 24, 25 and 26 June 2008 DoCS sought an order that parental responsibility be allocated to the maternal grandparents, Mr and Mrs RA in all respects save for contact. In relation to contact, DoCS sought an order that parental responsibility be shared between it and the maternal grandparents for a period of two years. The mother sought that the children be restored to her care. The father supported that contention and in the alternative sought that the children be restored to him. 3 At the placement hearing before me, Ms Askew appeared for DoCS. Ms Stanford for the mother. Mr Dougherty for the father and Ms King as separate representative for the children. Background 4 Jillian and Jacinta are now aged three years and two years respectively. Their mother Ms A was born on [ 1987] and is currently aged twenty one years. Mr B was born on [ 1977] and is aged thirty one years. Neither Ms A nor Mr B are currently in full time employment, although Ms A is engaged in some part time work in the kitchen of a local hotel. They do not live together although the evidence suggests that they may well do so at some time in the near future. They have been in a relationship for about three years. 5 Jillian and Jacinta were taken into care by the department on 15 January 2008 and since then have resided in the household of the maternal grandparents, Mr and Mrs RA at [ ]. Mr RA is the step-father of the mother Ms A. Mrs RA is her mother. Two of Mr and Mrs RA's other children Lilliana and Bryce who are aged thirteen years and twelve years also live in the household. The evidence shows that Jillian and Jacinta are settled and stable in this household. Their physical needs appear well catered for. They have an established routine and the report of Mr Ray Hodge dated 2 April 2008 (being annexure B to the affidavit of the case worker Nicole Andrewser sworn 19 June 2008) opines at para 2.1 the As "are offering a high standard of care and are totally committed to the children". I note that there had been two periods of temporary care for the children in this household in the past for a total of six months. 6 DoCS has had some involvement with the mother and the children since the second half of 2005. The involvement seems to have commenced within a few months of Jillian's birth. Following Jillian's birth the mother has lived in a number of different places and as at January 2008 until the hearing was residing in supported accommodation provided by the Salvation Army at [ ]. She has lived there since April 2007. She is to exit that accommodation at the end of July 2008 and the issue of her accommodation was one that loomed large for the court throughout the matter. I will return to this issue later in these reasons. 7 The mother has a history of mental health difficulties. These are clear from the subpoenaed material before the court. The evidence of the various witnesses. and the mother's candid and forthright admissions. She is currently being regularly treated by her general practitioner, Dr Seeto who manages her condition and has prescribed her medication. Unfortunately, there was no affidavit evidence provided by Dr Seeto although a report from Dr Garry Banks clinical and forensic psychologist dated 4 June 2008 was placed before the court in the mother's case. I note that Dr Banks is highly experienced and has been appointed to the New South Wales Children's Court clinic since its inception. The Issues for Determination 8 As in any placement proceedings under the Children and Young Persons Care and Protection Act the first question for the court's determination is whether there is a realistic possibility of restoration of the children to one or other of their parents. If there is not, as DoCS contend, then the court would need to be satisfied that the department's proposal for the children's future care fulfils the permanency planning requirements of the legislation. If there is a realistic possibility of restoration, then consideration would need to be given to the terms of that restoration and the department would then be required to prepare for the court's consideration a further permanency plan involving restoration. 9 As Senior Children's Magistrate Mitchell observed in his submissions to the Special Commission of Inquiry into child protection services in New South Wales, that is currently being conducted, " The Children's Court does not confuse realistic possibility of restoration with the mere hope that a parent's situation may improve. The body of decisions established by the court over the years requires that usually a realistic possibility be evidenced at the time of hearing by a coherent program already commenced and with some significant 'runs on the board'. The court needs to be able to see that a parent has already commenced a process of improving his or her parenting that there has already been significant success and that continuing success can confidentially be predicted. What is required can be likened to a prima facie case where absent some unforeseen and unexpected circumstance a safe and appropriate restoration will be possible in the near future". The Evidence 10 As is typically the case evidence was given in this matter by way of affidavit. Four witnesses, Ms Andrewser the DoCS case worker, the mother, the father and Captain Sandra Edge of the Salvation Army gave oral evidence. All four of these witnesses were cross-examined. The Department's Case 11 The department relied on affidavits of the case worker sworn 16 January 2008, 17 January 2008 and 19 June 2008. Various documents including photographs, file notes, correspondence from the maternal grandparents and a kinship placement assessment by Mr Ray Hodge were annexed to these affidavits. I also had the benefit of hearing oral evidence from Ms Andrewser. In summary it seems to me that the thrust of the department's case is as follows: (i) That the department has been involved with the mother since mid 2005 and shortly after Jillian's birth. (ii) That on two previous occasions temporary care arrangements had been put in place whereby the children lived with the maternal grandparents. (iii) That the mother's mental health difficulties pose a risk of harm to the children. (iv) That the mother has difficulties in coping with the two children and that in the period immediately prior to the children being taken into care they were dirty, neglected and the premises in which she resided were untidy and unkempt. (v) That this inability to cope was despite the fact that the mother was living in accommodation where support (from the Salvation Army) was readily available. (vi) That both the mother and the father have demonstrated difficulties in respect of financial management. (vii) That the mother's future accommodation circumstances are uncertain. (viii) That the mother lacks insight into the effect that her mental health difficulties have upon the children. (ix) That the children are now in a settled, stable and permanent family placement which should not be disturbed. (x) That the maternal grandparents and the mother have demonstrated an ability to work together in the past and that notwithstanding the current icy relationship between them, contact in the future for the parents can be assured. 12 During cross-examination Ms Andrewser made a number of fair and appropriate concessions in respect of the mother including the following: (i) She agreed that the mother had some insight into her mental health issues and that when confronted with difficulties has sought help and assistance. She further indicated that she would not expect this insight to diminish. (ii) She agreed that when she had supervised contact between the mother and the children she observed it to be a positive experience for all concerned. She agreed that the mother met the children's needs in an appropriate way, communicated well with them and that the children are well bonded to her. This evidence is of course corroborated by the report of the Cottage Family Care Centre dated 27 November 2007 which is annexure B to each of the care plans filed and describes "the positive attachment between Ms and her children". 13 Miss Andrewser was also cross-examined by Ms Stanford for the mother in relation to contact and how that would work if supervised and regulated by the maternal grandmother. While acknowledging the problematic nature of the relationship between the mother and her parents, Ms Andrewser expressed some confidence that positive contact between the mother and the children could be facilitated as envisaged in the care plan once the proceedings were completed. The evidence before the court, particularly that given by the mother in respect of her continuing difficulties in maintaining even phone contact, does not allow me to share the confidence expressed by Ms Andrewser. 14 In cross-examination by Mr Dougherty for Mr B, Ms Andrewser contended that the father's role with the children was so far as the department was aware minimal. She agreed that there were no relevant drug and alcohol, mental health, domestic violence or criminal history concerns in respect of Mr B. 15 During her cross-examination by Ms King, it emerged that both Jillian and Jacinta were in long day care five days per week between approximately 8am and 5.30pm. This is so the maternal grandmother can maintain her employment while the proceedings before the court are on foot. The Mother's Case 16 The mother swore three affidavits in the proceedings dated 4 February 2008, 10 March 2008 and 6 June 2008. Her most recent affidavit annexed a clinical psychological assessment prepared by Dr Garry Banks dated 4 June 2008 and a letter from Major Cheryl Hall of the Salvation Army dated 4 June 2008 in respect of the mother's participation in the positive lifestyles program conducted by that organisation. In addition, Ms A gave oral evidence and was cross-examined. At the outset I can indicate that I found the mother to be an impressive witness. She presented as a young woman who was making every effort to deal as best she could with the difficulties she had encountered and which had resulted in her children being removed from her care. She gave her evidence in a direct, calm, forthright and candid way and was prepared to acknowledge her prior failings. Evidence was also given in the mother's case by Captain Sandra Edge of the Salvation Army. Perhaps not surprisingly she was a similarly impressive witness. 17 Ms A is now aged twenty one years. She is employed part time in the kitchen of the [ ]. She works four shifts per week at the moment but would modify her employment to cater for the children if they were restored to her care. She is presently making inquiries in relation to suitable accommodation to house herself and the children in the Camden area as she will have to vacate her current supported accommodation at the end of July. She expressed confidence is being able to obtain such accommodation and has already spoken with the Department of Housing in respect of assistance if need be. Her confidence was well founded according to Captain Edge who said that never in the past has a resident of the supported accommodation program failed to obtain appropriate accommodation upon exiting. Captain Edge also gave evidence regarding the continuing support mechanisms that will be available to the mother upon her exiting her present accommodation. Ms A anticipates that her relationship with Mr B will continue and that they will commence to reside together. Mr B confirmed this in his evidence. Residing together in the Camden area would allow Mr B to continue his involvement and commitment to the care of his own mother who also resides in that area. 18 The thrust of the mother's case as I comprehend it as follows: (i) That whilst she acknowledges past difficulties, she has made significant strides to address the issues that caused the children to be removed from her care. (ii) That she has been and continues to be regularly assessed by her general practitioner Dr Seeto for mental health issues. (iii) That her medication for mental health difficulties has been stable for many months. (iv) That she has been mentally stable for many months despite the fact that the period since the children were removed has been the most stressful and anxious of her life. (v) That whilst a resident of the Salvation Army supported accommodation, she has completed the positive lifestyle program being a twelve week one on one program dealing with issues of self awareness, anger, depression, stress management, loneliness, grief and loss, problem solving, assertiveness, self esteem and goal setting. In addition she has undertaking pertaining broadly to financial management, budgeting and housekeeping. She contends that her skills in all of these areas have been enhanced. (vi) That her history demonstrates a willingness to work with the department ad a preparedness to seek assistance if and when required. (vii) That she will be able to obtain alternative accommodation at the end of July 2008. (viii) That her relationship with Mr B is stable and committed. (ix) That the report of Dr Garry Banks to which I have earlier made reference contained a number of significant matters including that the mother has recently completed a six week anger management program called "More Harmony, No Harm", conducted by Centacare. That following a series of unassociated criminal acts in 2006 where she was the victim, the mother was diagnosed as suffering post traumatic stress disorder. That her current medication of Lovan 10 milligrams in the morning and Zyprexa 10 milligrams at night have been stable for some months. That Ms A "appeared particularly well planned and informed of her finances" (that is p 7 of Dr Banks' report). That Ms A, reports "a positive attitude towards the possibility of personal change, the value of therapy and the importance of personal responsibility". That Ms A holds ongoing and obvious feelings of resentment towards her mother the maternal grandmother (that is p 12). That "Ms A's assessment revealed remarkably few factors to support the presence of clinical psycho-pathology. It is tentatively suggested that Ms A's psychiatric condition is currently well managed by her medication, routines and supplemental treatment by her psychiatrist". I took this to mean treatment by her general practitioner, Dr Seeto. Dr Banks noted "the court can be assured there do not appear sufficient mental health indicators present to preclude active consideration of Ms A as a viable and competent parent". I found the report of Dr Banks to be extremely helpful in the determination of the issues before the court. 19 The mother was cross-examined extensively and rigorously by Ms Askew for DoCS. Nothing particularly adverse to her emerged as a result of that cross-examination. The Father's Case 20 Mr B, the biological father of Jacinta and the father figure of Jillian affirmed three affidavits dated 1 February 2008, 25 March 2008 and 18 April 2008. He also gave oral evidence and was cross-examined. At the hearing he sought for the children to be restored to the mother and in the interim or in the alternative that they be placed with him. As Ms Askew fairly observed the hearing was the first time that Mr B had expressed a wish to care for Jillian. Although he provided an explanation for this change of position, this is a factor to which I have paid some regard. 21 Mr B contended in essence that he had always done the best he could to support the mother and both children. This was within the limits that he had imposed upon himself given his role in the support of his own mother. His proposal would involve the children living with him at the home of his mother. Relevantly no evidence of any sort was provided by Mrs B. This necessarily impacts upon the weight that the court can attach to his proposal. 22 While I accept that Mr B played some role in the care of the children and in supporting the mother, I am not satisfied that his involvement was all that it could have been. Certainly in the past Ms A and the children have not been his sole or prime priority. He has sought to balance them against his own needs and the needs of his mother. In saying this, I do not intend any criticism of Mr B. Indeed, he impressed me as a decent and kind man with a demonstrated devotion to his mother. It is to be hoped that the commitment he has displayed to his mother can in the near future be transposed more diligently to Ms A, Jillian and Jacinta. My impression of him in the witness box gives me some confidence in this regard. I note his willingness to undertake parenting courses as may be recommended and the absence of any of the typically disqualifying features that one observes in this court such as drug and alcohol abuse, mental illness, domestic violence and criminal antecedents. I accept the submission of Ms King for the children that Mr B has not demonstrated to the court the ability to parent required such as would entitle the children to be restored to his care exclusively. He has not in the past "stepped up to the plate" despite having a clear understanding of the various difficulties that Ms A has faced. That is not to say that I am not of the view that he will not so "step up" in the future. Relevant Legal Principles 23 Section 9 of the Children and Young Person's Care and Protection Act 1998 sets out the principles to be applied in the administration of the Act. In this matter, I have paid particular regard to the following: "9a . In all actions and decisions made under this Act, whether by legal or administrative process concerning a particular child or young person, the safety, welfare and well being of the child or young person must be the paramount consideration. In particular the safety, welfare and well being of a child or young person who has been removed from his or her parents are paramount over the rights of the parents". Section 9d, "In deciding what action it is necessary to take whether by legal or administrative process in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his and her family. That is consistent with the paramount concern to protect the child or young person from harm and promote the child's or young person's development". Section 9f, "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 or young person's circumstances and that the younger the age of the child the greater the need for early decisions to be made in relation to a permanent placement". And 9g, "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 of relationships with people significant to the child or young person including birth or adoptive parents, siblings, extended family, peers, family friends and community". 24 Section 79 sets out the variety of orders that the court can make and s 83 sets out the legislative requirements for permanency planning. Both of these sections have been carefully considered by me. I note in respect of s 83 that the Department of Community Services has assessed that there is not a realistic possibility of restoration to either parent. My task is to either accept or reject this assessment having regard to all of the evidence that has been presented to the court. 25 In doing so, I have borne in mind that most children have the benefit of being raised by their parents and that the relationship between them is probably the closest of all relationships within our community. It is a serious step for a court to make orders which result in children being removed from the care of their parents and such a course should only be taken if there is a real and unacceptable risk of harm to a child whether that be mentally, physically or in some other way. The Resolution of the Issues for Determination 26 It seems to me that I must ask myself in determining whether there is a realistic possibility of restoration whether or not the mother has demonstrated sufficient progress in addressing those issues that led to the removal of the children Jillian and Jacinta from her care. After very careful consideration I have concluded that she has and that there is a realistic possibility of restoration to her. It is more than the mere hope to which the Senior Children's Magistrate referred in the quote to which I have previously alluded. She has some real runs on the board. I have come to this conclusion based on the following: (i) Her demonstrated stability in mental health especially given the stress of these proceedings. (ii) Her demonstrated commitment to continuing treatment in respect of her mental health. (iii) Her developing insight into the effect of her illness upon the children. (iv) The completion by her of the various self development courses to which I have previously referred. (v) Her acknowledged willingness to work with the Department of Community Services and other agencies especially during times of need and to seek help and support when required. (vi) The availability to her of continuing support from the Salvation Army and from Mr B. (vii) The fact that Dr Banks concluded that there were no mental health indicators to preclude her from competent parenting at this time. 27 I have also borne in mind the close bond and attachment that clearly exists between the mother and the children and the likely solid support that will be provided into the future by Mr B. 28 I am of the view that the restoration of the children to the mother should be gradual and as urged by the children's representative Ms King over a period of not less than three months and not more than six months. This will be the least disruptive way of relocating the children. It will also allow the mother's uncertain accommodation position to be resolved. I have also concluded that it would be appropriate for the mother and Mr B to give undertakings pursuant to s 73 of the Act in the following terms for a period of two years. As to the mother, (a) To maintain contact with her general practitioner and other mental health professionals and to comply with directions as to treatment given by them. (b) To accept the advice, guidance and support of officers of the Department of Community Services respecting the care of the children and to undertake such parenting courses as may be recommended by the department. (c) To accept and follow up all referrals to agencies made by DoCS and to co-operate fully with those agencies. (d) To avail herself as required of such assistance as may be available to her from the Salvation Army. (e) To seek and maintain appropriate housing for herself and the children. (f) To keep officers of the department informed of her residential address and that of the children and not to change that address without first notifying such officers. (g) To take all reasonable steps to encourage and facilitate continuing contact between the children, their maternal grandparents and other extended family. As to the father, (a) To accept the advice, guidance and support of officers of the Department of Community Services respecting the care of the children and to undertake such parenting courses as may be recommended by the department. (b) To accept and follow up all referrals to agencies made by DoCS and to co-operate fully with those agencies. (c) To take all reasonable steps to encourage and facilitate continuing contact between the children and their maternal grandparents and other extended family. 29 Given my decision it will be necessary for the department to prepare a further permanency plan involving restoration and proceedings will need to be adjourned for that purpose. I also require the parties to prepare a minute of care order and undertakings by the mother and Mr B in the terms that I have outlined for my approval. In the meantime, the interim order providing parental responsibility to the Minister is to continue. 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.