District Court New South Wales Medium Neutral Citation: David White v The Director-General Department of Human Services, Ms Green and Ms Wells (Independent Children's Lawyer) [2011] NSWDC 106 Decision date: 12 May 2011 Jurisdiction: Civil Before: Cogswell SC DCJ Decision: See [111] Catchwords: CIVIL LAW - appeal against care orders made by the Children's Court - whether the children are in need of care and protection - whether there is a realistic possibility of restoration - paramountcy principle - whether basic needs are likely to be met - allegation of sexual abuse by father from eldest child - another child engaging in sexualised behaviour - several children 'high needs' - financial stability of parents - suitability of accommodation - parenting skills - father's anger management issues - desire of eldest child to remain with carer - construction of s 9(2)(c) of Children and Young Persons (Care and Protection) Act 1998 "child...and...family" - Re Tracey distinguished Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 s 9, s 61, s 72, s 79, s 80, s 83, s 91 Consumer, Trader and Tenancy Tribunal Act 2001 s 67 Crime (Appeal and Review) Act 2001 s 28 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Director-General of Department of Community Services; Re Sophie [2008] NSWCA 250 M v M (1988) 166 CLR 69 Re Tracey [2011] NSWCA 43 Category: Principal judgment Parties: David White Director-General Department of Human Services Ms Green Ms Wells (Independent Children's Lawyer) Representation: Mr P Braine for Mr White and MsGreen Mr M Higgins for the Director-General Ms M Barnett for the Independent Children's Lawyer File Number(s): 2009/2715 Judgment Introduction 1. On 25 July 2008 Jennifer Green* was at home with three of her five young children when two child protection case workers from the Department of Human Services knocked on her door. The case workers were accompanied by the police. The case workers looked through her home and asked her questions. In particular they asked questions about Ms Green's two-month-old son Edward who was at that stage in hospital. 2. Towards the end of the visit case worker Karleen Dove said that the Department had received a number of very concerning reports about her children and that Ms Dove was " therefore left with little option but to remove your children from your care ." She asked Ms Green " what can you say to me to convince me that I don't need to do this? " Ms Green replied that she and the children's father were " going to get some food today and clean the house today, it's not our fault we always have to move around ." This did not convince Ms Dove who correctly pointed out that it was " your responsibility to take care of your children ." She observed that it was " not fair on the children living like this" and added that she was "going to take the children into care and here is the paperwork ." 3. The case workers then took the three children with them and Ms Green, escorted by a police officer, was also taken " out to the car where she kissed the children goodbye ." The case workers then went on to a nearby public school where they collected the fourth of the five children. 4. When the case workers with the four children got back to the Community Services Centre, Ms Green and her partner Mr White were waiting in the foyer. Mr White, as the children's father, was also served with removal papers and exchanged some heated words with the case workers. He was told that they could not see the children until the matter went to court a few days later. Mr White " stood up at this time " and Ms Dove " took a step back as he was clearly angry. " Mr White said " Why are you scared of me, I'm not going to hit you with the police here, I'm pissed off because you have took my kids ." The parents were told to leave the building and they did so with Mr White making a lot of commotion and it was reported to Ms Dove that Mr White " said that he was going to get you ". 5. Case workers employed by the Department have the power to remove children where they are satisfied on reasonable grounds that the children are at immediate risk of serious harm and that an apprehended violence order would not provide sufficient protection. The grounds on which the case workers exercised that power in this case were that the youngest child - a 2 month old baby - " presented to hospital with a life-threatening illness " with the parents failing to seek any prior medical attention. In addition there was " minimal food in the family home to feed a large family" and the " children slept in a room that had mould spores growing on every wall ". 6. The Director-General brought care proceedings in the Children's Court. The proceedings concerned all 5 children. The Director-General was successful in having parental responsibility for all children allocated away from their parents. 7. The father has appeal against those care orders made by the Children's Court. He is supported in his appeal by the mother. 8. What I have to decide is whether to confirm, vary or set aside the decisions of the Children's Court. The people in the case 9. The Director-General of the Department of Community Services was the successful applicant in the Children's Court and is now a respondent to the appeal. The father, David White, is the appellant to this Court. The mother, Jennifer Green, supports the father's appeal and has been formally included as another respondent. The case concerns Amy Green aged 8, Benjamin Green who is approaching 7, Colin Green who is 5, Diane Green aged 4 and Edward Green who has just turned 3. They are represented by the Independent Children's Lawyer. 10. I will refer to David White and Jennifer Green as the father and the mother or parents. I will refer to the children by their first names. The Director-General I will refer to by that title and the Independent Children's Lawyer as the ICL. The legislation which governs this case is the Children and Young Persons (Care and Protection) Act 1998. I will refer to it as " the Act ". 11. Mr Peter Braine of counsel appeared for the parents. Mr Mark Higgins of counsel appeared for the Director-General. Ms Martha Barnett of counsel appeared for the Independent Children's Lawyer. All provided very helpful written submissions which I will refer to as AWS, RWS and ICLWS respectively. Issues in the case 12. I have to decide whether to allow some, none or all of these appeals. As I will explain below, I am undertaking a new hearing of the Director-General's applications for care orders for these 5 children. That means I have to decide whether or not to make care orders removing the children from their parents and allocating parental responsibility for them to others until each is 18 years of age. That is what the Director-General wants. The Director-General has assessed that there is no realistic possibility of any of the children being restored to their parents. I have to decide whether or not I agree with those assessments. The Children's Court 13. I should say something more about the original proceedings. They were commenced by the Director-General on 28 July 2008 by the filing of an application seeking orders for " Interim Parental Responsibility to the Minister " in respect of the 5 children. The application was made under s 69 of the Act which provides that the Children's Court " may make interim orders in relation to a child ... after a care application is made and before the application is finally determined ." 14. The Director-General was successful in this application and the following day, 29 July 2008, the Children's Court made an interim order that the 5 children be placed under the parental responsibility of the Minister pending further order of the court. (Section 62 provides for interim and final orders.) 15. After a hearing the following year which lasted 6 days the Children's Court made final orders on 14 April 2009 that " parental responsibility for the children [Colin Green] and [Benjamin Green] be allocated to their maternal aunt, [Joan Black], until each such child shall have attained the age of 18 years except that parental responsibility for the facilitation of contact, major medical matters and education and training be allocated to the said [Joan Black] and the Minister jointly". The following month, on 29 May 2009, the Children's Court made an order that "parental responsibility for the children [Amy Green]..., [Diane Green]... and [Edward Green]... be allocated to the Minister until each such child shall have attained the age of 18 years ". The Appeal 16. In this appeal the Director-General is seeking to uphold the Children's Court orders. Since I am hearing the original proceedings again it seems I should regard the care order sought by the Director-General as needing to be varied to accord with the final orders made. The Director-General will need to make an application under s 61(3)(a) or I will need to grant leave under s 61(3)(b). 17. It is an appeal " by way of a new hearing ". Fresh, additional or substituted evidence may be given. I am not looking for error, unlike Consumer, Trader and Tenancy Tribunal Act 2001 (s67) or Victims Support and Rehabilitation Act 1996 (s 39). I am not restricted to the evidence before the lower court, unlike the Crimes (Appeal and Review) Act 2001 . Like the Crimes (Appeal and Review) Act (s 28) I may exercise any function of the magistrate. Not only that, I may exercise " all the functions and discretions that the Children's Court has under this Chapter or Chapter 6 " (s 91(4)of the Act). So it is, as s 91(2) says, a new hearing of the original proceedings. It is an "appeal " in that sense. 18. Accordingly what I am undertaking is a new hearing of the Director-General 's applications as varied to accord with the final orders of the Children's Court. The Orders being sought 19. It is important to say something more about the kinds of orders which the Director-General is seeking. 20. First, the Director-General 's application is an application for a "care order". This triggers s 72(1). Second, the nature of the care order sought is an allocation of parental responsibility to the Minister and others. This triggers s 79(3) and s 80. Thirdly, it is also an application for a care order for the removal of children. This triggers s 83, in particular s 83(7). 21. The reason I refer to these sections is that they each contain important guidance - usually expressed in mandatory terms - for how I determine this case. I shall briefly examine each of those orders 22. Section 72(1) says that I may make any care order " only if " I am satisfied that the children are in need of care and protection. The Director-General asserts they are in need of care and protection for the reason that their " basic physical, psychological and education needs are not being met, or are likely not to be met " by their parents (s 71(1)(d)). This circumstance does not arise only because of poverty the Director-General says. 23. Next is s 80. I cannot make an order for removal of the children from their parents' care and protection - which the Director-General seeks - or for the allocation of Parental Responsibility - which the Director-General also seeks - unless I have considered a care plan from the Director-General . 24. Section 79(3) provides that I " must not" make an order " allocating parental responsibility...unless " I have " given particular consideration to the principle in section 9 (2) (c)" and am satisfied that " any other order would be insufficient " to meet the needs of the respective children. 25. Finally I turn to s 83. Because the Director-General is seeking the " removal " of the children the Director-General has had to assess " whether there is a realistic possibility of the child or young person being restored to his or her parents ". That assessment had to be made having regard to - "(a) the circumstances of the child or young person, and (b) 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 " (s 83(1)). In this case the Director-General has assessed that there is not a realistic possibility of restoration and has prepared permancy plans for other suitable long-term placements for the children and has submitted them to the Children's Court. The care plans which incorporated permanency plans were all filed in the Children's Court on 7 November 2008 and supplementary reports were filed on 17 April 2009 for all children and further plans on 11 May 2009 for 3 of the children. 26. No up to date permancy plans have been submitted to this court on the appeal. 27. The question posed for me to decide by s 83(5) is " whether to accept the assessment of the Director-General " that there is not a realistic possibility of restoration. Furthermore, I " must not make a final care order unless" I "expressly find " - "(a) that permancy planning for the child or young person has been appropriately and adequately addressed, and (b) that prior to approving a permanency plan involving restoration there is a realistic possibility of restoration having regard to: (i) the circumstances of the child or young person, and (ii) 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. " (s 83(7)) Section 79 and Re Tracey 28. A closer examination of s 79 is necessary at this stage because of a recent Court of Appeal decision. 29. The Director-General was successful in having parental responsibility allocated to persons other than the children's parents. In this appeal the Director-General maintains that position - that I should allocate parental responsibility away from the parents. In those circumstances the Act makes itself very clear : I " must not make an order allocating parental responsibility unless " I have given " particular consideration " to the s 9(2)(c)) principle and unless I have satisfied myself that " any other order would be insufficient " to meet the needs of the child. (I must of course treat each child separately, although the five are subject to only two orders.) 30. I should address the question whether s 79(3) applies at all in this case. This is because the appellants are asking that " existing care arrangements [be] displaced " and that the children be returned to their parents. I have quoted from [79] in the judgment of Giles JA in Re Tracey [2011] NSWCA 43 because his Honour says that section 9(2)(c)is " confined to when it is necessary to take action in order to protect a child...from harm ". Any harm arising from removing a child from or leaving a child with an existing carer is not harm against which it is necessary to take action to protect the child. ([79]) 31. In my opinion Re Tracey is distinguishable and does not apply in this case. In my view I am still required in this case to give "particular consideration to the principle in s 9(2)(c) ". I will explain why I have formed that opinion. 32. First, no submission was made by any of the parties that I should not consider it. 33. Secondly, the Court of Appeal was dealing with an application by a mother to rescind or vary orders already made against her. Here the Director-General is maintaining the position that the children are in need of care and protection because their " basic physical psychological and education needs " are " likely not to be met " by their parents. In Re Tracey the mother needed leave which required the court to consider specified matters (s 90(2A)) before granting leave and separately listed matters before ordering the recission or variation of an existing care order (s 90(6)). Here the Director-General removed the children from their parents and, as required, made a care application to the Children's Court which made interim orders followed by final orders on that application. The appeal to me is from the Children's Court's final disposal of that application. I am undertaking a "new hearing " of the Director-General 's application (s 91(2)). That application urges me to take action (grant the care orders sought) " in order to protect " the children from alleged harm (their " basic physical, psychological and education needs " were not being met by the parents). Specifically, the harm the children needed protection from included, for one of them, failure to thrive and, for all of them, a lack of food and proper accommodation. 34. Finally, because this is a new hearing of the proceedings, an issue on this appeal is whether the children should be removed from their parents. A question related to that issue is whether the children were protected in their family. In those circumstances s 9(2)(c) applies, as Giles JA said at [80]. 35. If s 9(2)(c) ceased to apply because the passage of time has caused the question to shift from the protection of the children from harm to whether existing care arrangements should be displaced (to use Giles JA's terminology) then the parents could lose the benefit of s 9(2)(c) because of normal bureaucratic delays outside their control within the Director-General's office or within the court system. They would lose much of the benefit of an appeal. 36. It is not surprising that orders allocating parental responsibility should attract consideration of s 9(2)(c). The Act defines " parental responsibility " to mean " all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children " (s3). It is an extensive order, more so than, for example, supervision or treatment or contact. It makes sense that before a court interferes with such a basic societal relationship that Parliament would expect the Court to take the course of action which involved the " least intrusive intervention in the life of the child...and his or her family " consistent with the paramountcy principle. 37. I therefore propose to determine the question whether I should grant the Director-General's application for the allocation of parental responsibility after giving " particular consideration to the principle in s9(2)(c)": s 79(3). Nor will I make any such orders unless I am " satisfied that any other order would be insufficient to meet the needs " of the children. The Director-General's argument about s 9(2)(c) 38. The Director-General argues that s 9(2)(c) refers to the child within the environment of the family, not the child and its family. It maintains, the Director-General argues, the focus on the child within the family consistent with the paramountcy principle. I do not accept that submission. First the clause clearly provides for " the child...and his or her family ". Secondly, the following clause (d) refers to a child's " family environment " and one would expect, if the Director-General 's argument is right, that clause (c) would have said " the child...within his or her family environment ". Thirdly, the paramountcy principle does not need the Director-General 's interpretation to be preserved within clause (c). The whole subsection is "[s]ubject to subsection (1)" and the course to be followed which clause (c) provides for must be " consistent with the paramount concern to protect the child...from harm and promote the child's...development ." 39. The focus of the Director-General 's submissions in RWS [26] is that it is " paramount that the least intrusive intervention in the life of the child be followed ." I reject that submission because it ignores clause (c)'s provision for " and his or her family ". 40. Also the Director-General points to, in RWS [27], examples of the " harm of removing those children from their placements which justifies the application of the least intrusive intervention policy ". That is not a relevant harm for reasons I have already given : see [33] above. Dealing with the Director-General's Assessment 41. In determining another important question before me - whether the accept the assessment of the Director-General on restoration by reference to whether there is a realistic possibility of restoration - I will have regard to the circumstances of the children and the evidence that the parents " are likely to be able to satisfactorily address " the issues that led to the removal of the children from their care. Given that the Director-General must make an assessment by reference to those statutory issues and that I cannot make a final care order unless I make express findings on those two issues, it seems to me by necessary implication that I need to consider at least those two issues in deciding whether to accept the assessment of the Director-General . So an important focus will be the present circumstances of the children and the evidence that the parents are likely to be able to satisfactorily address the issues that led to the removal of the children from them. Resolving factual issues 42. There are a number of factual issues raised in the case which I need to resolve and I will now turn to those. Alleged sexual assault 43. Almost two years after the children were removed from the parents, and when Amy was being interviewed by the court clinician so she could update her report for this appeal, Amy claimed that when she was still at home with her parents, her father used to sexually abuse her. The father flatly denies that anything like that happened. 44. This assertion by Amy obviously looms large not only as a fresh matter since the Children's Court decision but also as a very weighty consideration amongst the other factors I have to take into account. As a consideration, it is multi-faceted. Did it happen? If it didn't happen Amy apparently believes it happened. If it happened Amy obviously should not be returned. But can the other children be returned to a home which includes the father? What does it say about the mother's capacity to protect her children? What is the relevance of the mother's attitude to the allegation? 45. The Director-General points to the High Court's decision in M v M (1988) 166 CLR 69 (at 78, [25]) as providing for a useful guideline in determining an allegation of abuse: does it expose the child to an unacceptable risk of harm? The Director-General goes on at RWS [32] to say this - " There are two views as to the Court's assessment of an unacceptable risk of harm to the child arising from an allegation of abuse: the first is that the decision of the court must be based upon findings of fact which are relevant to the assessment of risk. Thus, if no positive findings of fact can be made which indicate a risk of abuse, then no order should be made adverse to the party against whom allegations are made on the sole basis of such allegations or reports The second view is that the unacceptable risk test comes down in practice, in many cases, to an assessment of the degree of concern the court has with the evidence. This view gains support from the decision in M v M itself, in which the High Court upheld the decision of a trial judge to deny access based upon his 'lingering doubts' that the allegations may be true" 46. The Director-General submits at RWS [35] that " the Court's assessment of the unnecessary risk of harm does not adopt a binary approach to the assessment. It is not an assessment as to simply whether the fact of the abuse is established or not" . I accept that submission. It has support from the High Court in M v M and from the Court of Appeal in Director-General of Department of Community Services; Re Sophie [2008] NSWCA 250 per Sackville AJA (with whom Giles JA and Handley AJA agreed) at [21]. It is relevant to the Director-General's allegation that the children's - especially Amy's - " basic...needs...are likely not to be met" . 47. Nevertheless the first question for me is whether or not I find that Amy's allegation is made out. 48. The Director-General argues at RWS [36] that there is a " credible basis for concluding that it could be comfortably satisfied that the father did abuse [Amy] as alleged by her " and sets out over RWS [36-38] factors which the Director-General says are relevant to my finding. 49. ICL also argues at ICLWS [95] that " the Court is able to find that on the balance of probabilities, to the requisite degree, that the father did sexually assault [Amy]". 50. The appellant argues over pp 9-11 of AWS that " the court can not make a positive finding that Amy was sexually abused by her father " 51. I accept for the reasons set out at the top of p.10 of AWS that I should approach this finding bearing in mind what the High Court said in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 (see M v M at [22]). I note that I am " not bound by the rules of evidence " (s.93(3)). 52. I am not satisfied on the balance of probabilities (s.93(4)) that Amy's allegation is made out. The main considerations in reaching that conclusion are the delay of some years before the allegation emerged and its emergence in the context of an interview with a person about where Amy would live in the future. Amy's desire was to stay where she was " forever ". The allegation has not been tested in court (properly so, as AWS points out). The claimed perpetrator has denied the allegation under oath. As the High Court said in M v M at [23], I am not " impelled by the particular circumstances of the case " to find the allegations proved. 53. Despite this conclusion, the existence of the allegations remains relevant and I now turn to that. 54. First, the factors highlighted by the Director-General and ICL obviously point to the argument for Amy's allegation being true. We will never know, of course, the truth without irrefutable corroboration of Amy's account or an irrefutable alibi from the father. Not being satisfied to a significant standard that Amy's account has been made out is not the same as being clearly satisfied that the events did not occur. 55. I think the existence and maintenance of the articulated allegation by Amy and her apparent belief in it means that she should not be returned to a home which includes the father. Also relevant to this view are the ICL's instructions conveyed to me that Amy does not wish to be returned to her parents. I give those expressed views - especially in the context of the allegation - some weight in accordance with s 9(2)(a). There is also evidence - pointed to at ICLWS [98] - of " some concerns for a child to spend time with a parent who they have alleged sexually assaulted them". Also, as ICL says at ICLWS [101], the " fact that [Amy] made the disclosure, whether true or not, is an indication of the strength of her wish to remain in her current placement ". Also relevant, of course, is that a home in those circumstances would include the mother who is apparently a " non-believer " of the allegation. 56. Apart from these considerations, is there a risk of harm to Amy, that harm being in the form of sexual abuse by her father? If so, what is the magnitude of that risk? Is it an unacceptable risk? There is obviously a risk because I might be wrong in not finding her allegation proved. Perhaps she is telling the truth. But I do not regard that risk as unacceptably high. Such an event is inherently unlikely (a father molesting his infant daughter). There is no evidence to suggest that the father was inclined to do that. I can see no obvious reason to reject his sworn denial. The allegation has been made years later for the first time to a stranger who will have a say in whether or not the complainant can stay where she has expressed the desire to stay " forever ". 57. However, on the other hand, based on the evidence and on common sense, as the High Court said in M v M at [24], "there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent...whom the child believes to have sexually abused her." That presents an unacceptable risk of harm in my view or, to put it more correctly in the terms of the statute I am applying, Amy is in need of care and protection for the reason that her psychological needs are likely not to be met if this order for removal sought by the Director-General is not made. Sexualised behaviour 58. Benjamin has been reported as engaging in sexualised behaviour. It is referred to in ICLWS [102] ff and RWS [42]. 59. This raises a few issues. Can I make a finding about where he learnt it? What does it mean for contact between him and the other children? How would the parents manage it? 60. I accept ICLWS [110] and find, on the balance of probabilities, that Benjamin learned this behaviour at home before being taken into care and as a result of seeing his parents engaged in sexual activity. Benjamin himself has acknowledged that and the parents' denial is understandable: they may not have realised. Their care of their children was not good; they were overwhelmed and may have been careless especially since all or most of them occupied the same bedroom. 61. I do not find that there was any deliberate sexual abuse of Benjamin by either of the parents. 62. Both the Director-General and the ICL draw my attention to Mr Elms' evidence that some vigilance would be appropriate if Benjamin were in the same household as Amy and Diane. I think it would be appropriate for any contact between Benjamin and his sisters to be supervised for the time being. What is the " time being " could be best assessed by progress and Mr Elms' opinion. 63. I think that the parents should get support in managing Benjamin's behaviour. There is some evidence that the father has not taken it seriously. On the other hand, it is important to keep it in perspective. Although probably learned at home by carelessness on his parents' part, it is being monitored and managed by Mr Elms whose evidence impressed me as balanced and not alarmist. But the parents probably should see Mr Elms and get advice and guidance about the best way for them to deal with any such behaviour. Effective parenting 64. The Director-General argues that the mother would be a poor protective parent. She told the Director-General that she was unwilling to separate from the father and she does not believe Amy's allegation; nor has she questioned the father about the allegation. Nor did she follow up a complaint by Amy that she did not feel comfortable with her carer (RWS [51-54]). 65. There is some force in this point. But three observations need to be made about it. First is that Amy's allegation would be an extraordinary one for any parent to deal with. It polarises the loyalty of the wife and mother in respect of two of her most intimate relationships. Without excusing her failure to enquire of the father, she obviously knows him very well and over a good deal of time for someone of her age. The child has been separated from them and would also now have divided loyalties. As the Director-General fairly points out, "[ s]ome capital must be recognised in a relationship for one partner to know the other and have a level of trust in that other. " (The Director-General goes on to say that some level of scrutiny should however follow such an allegation.) 66. The second observation is that I am not looking to the mother to provide perfect parenting. It may well be that in this extraordinary circumstance she falls short of an appropriate response. An appropriate response is something that can be taught to and learned by a willing parent. 67. Finally I do not regard a failure to follow up the child's observations about not feeling comfortable with her carer as significant. It would hardly be a surprising disclosure and did not appear to be anything specific. 68. In oral submissions the Director-General pointed to a discrepancy between the mother's expectations of shared parenting and the father's employment commitments. This raises the question of the mother's capacity as a sole parent for 4 or 5 children. Her experience as a parent of 5 children is limited to the few weeks between Edward's birth and the children's removal. Also some of the children have special needs and there is a question about the mother's capacity to exercise the required degree of vigilance. 69. Here s 79(3) becomes important. The Director-General is seeking the allocation of parental responsibility so I need to give particular consideration to the principle in s 9(2)(c). In protecting the children from the harm of their basic physical, psychological and educational needs not being likely to be met I " must " take the course which will be " the least intrusive intervention in the life of the child or young person and his or 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" . 70. I must also be " satisfied that any other order would be insufficient to meet the needs " of the children. 71. To my mind the orders being sought by the Director-General in respect of Benjamin, Colin and Edward do not represent the least intrusive intervention in the lives of the children and this family. Nor am I satisfied that any other order would be insufficient. 72. The Director-General rightly points to concerns about the mother's capacity. I do not think the response to this is to take away all the children until they are 18. I think the appropriate response is a gradual restoration of some of the children so that the mother's capacity to cope can be assessed and supported over a period of time. I think such a process will also assess another concern of the Director-General about the mother's social isolation. Such isolation is something she needs help in dealing with or overcoming. (RWS [58-62]) Managing finances 73. The Director-General raises concerns about the parents' financial stability. They are dependent on Centrelink payments. The Director-General points out that it is not at all clear what impact employment obtained by the father would have on this income stream. The Director-General argues in RWS [74] that " the current financial stability of the parents is predicated on the financial assistance of Centrelink ." I appreciate that the submission was in the context of the continued provision of that assistance and other problems but I must be careful here to avoid the conclusion prohibited by s 71(2) that the basic needs of the children are likely not to be met " only because of...poverty ". The fact that a family of 7 is dependant on Centrelink is of course not a ground to remove the children. (I do not suggest that anyone is making that submission.) The impact of any income the father receives from employment needs to be carefully assessed and the family needs to be helped in managing that impact. 74. The Director-General correctly pointed out that financial instability and a failure to manage finances has an impact on accommodation and provision of necessities for the family. The parents have already learnt to put in place a system of budgeting so that their rent and other financial obligations are taken out of their income in advance so that essentials are covered. The Director-General fairly acknowledges that the parents' current accommodation is of a good standard but adds that it is just for the two of them. It seems obvious to me that they should be given a measured opportunity to maintain that standard with some of their children. Credibility of mother 75. The Director-General argues over RWS [55-57] that I should make an unfavourable finding about " the mother's truthfulness " as a witness. This is relevant, the Director-General says, to my acceptance of her assurances about placing the children's interests first and the extent to which they have addressed the issues leading to the removal of the children. In support of making this unfavourable finding the Director-General points to evidence of the mother before me that she had lied to the clinician at the second assessment. (T676-681) 76. I think there is some force in this point. The mother has admitted lying to the clinician to help produce a more favourable result for her and the father in the court case. On the other hand, there was no malice or calculated attempt to pervert the course of justice in this. As the Director-General said in oral submissions, there is no doubt the mother loves the children and dearly wants to be their mother. I think she was driven by this desire to make an unsophisticated attempt to influence the children being returned to her. I think she is easily led. Mrs Brown as a carer 77. There was a proposal that Mrs Brown (the father's mother) would be a suitable carer for the children. The Director-General opposes this. The Director-General acknowledges that Mrs Brown has a genuine desire to do what is best for the children but questions her capacity to undertake the role of a carer. 78. The Director-General developed arguments under three broad headings opposing Mrs Brown as a suitable carer: poor protective parenting behaviour, her adequacy as a placement option and the quality of her relationships with various people. 79. I do not regard Mrs Brown as having the capacity to be a suitable carer. I do not accept all of the Director-General's arguments but the ones I do base my finding on are briefly these. She would be unwilling to engage Amy regarding the allegation of sexual assault even if I found that it had occurred. She was not prepared to seek more detail regarding Benjamin's sexualised behaviour. These examples affect her capacity to act in a protective manner and to put the children's interests above her own views and attitudes. I accept also that she lacks the information needed to make a realistic self-assessment as a placement option especially regarding Amy's allegation, Benjamin's behaviour and Colin's speech issue. 80. Also whilst not rejecting her evidence as genuine I think there was, as the Director-General puts it, a lack of candour about some aspects. I found it extraordinary that she would not have noticed the state of the kitchen and bedrooms and the contents of the refrigerator and cupboards. 81. Finally I think the Director-General makes a good point about the quality of a relationship between a grandmother and her grandchildren being different to a carer and her charges. She has not shown herself to be as proactive in obtaining essential information about the children as a carer would be. Realistic possibility of restoration? 82. What were " the issues that have led to the removal " of the children from the parents' care? 83. There was no doubt, to my mind, that the children were properly removed by the Director-General. What I am not clear about are the issues that should be included in " the issues that have led to the removal " of the children. 84. Some are obvious and form an obvious justification for the children's removal. They include the matters listed in each child's care plan prepared under s 78 of the Act: Edward's " serious medical neglect " and " the ongoing lack of medical attention of all 5 children, lack of food in the home and excessive mould in the room where everyone slept. " 85. Others are not so obvious and include a file kept by the Director-General regarding all 5 children. It is referred to in para 46 of Karleen Dove's affidavit of 28 July 2008 and annexure " D ". It includes reports to the Director-General about various matters - the father's " erratic " moods and tendency to " explode suddenly " and a " violent temper " which the mother fears; the mother's immaturity and non-coping with Amy when she was a baby; the father slapping Amy as a baby; verbal arguments between the parents and verbal abuse of the mother by the father; the children being "without food all the time "; marijuana smoking by the father; constant dirty nappies; inadequate shelter or homelessness. These various reports were usually note and " filed ". Hence I am not sure that they can be included amongst " issues that have led to the removal " of the children. 86. I think there is a good deal of evidence that the mother is likely to be able to satisfactorily address the issues that have led to the removal of her children. Within a couple of months of the children's removal the mother was referred to the Uniting Care Burnside's " Newpin " program which is " a therapeutic support program for parents with children 0-5 years. " She received a glowing report from the program's co-ordinator on 14 November 2008. The mother says she remained engaged until about September 2009. She had enrolled in several additional parenting courses detailed in her affidavit dated 2 March 2011 (exhibit R). Neither the Director-General nor the ICL submitted hat these courses lacked merit. The parents have moved into new and affordable accommodation from 5 December 2008 and the rent is paid from the father's allowance and is " always on time ". The house is described in the father's affidavit of 29 March 2010. The social worker from the Children's Court Clinic described the accommodation in the following terms - " It has to be stated that the changes in presentation of [Jennifer] and [David's] four bedroom home is quite spectacular. The house was spotlessly clean and tidy, child friendly with toys, clothes, beds and bed covers. The was ample food in the cupboards and fridge." The transformation in the standard of accommodation is depicted in exhibits H, J and K. 87. There is a good deal of evidence that the father has had a bad temper, or " anger management problem " as it is called these days. He himself acknowledged in evidence that he had abused Ms Dove, that his behaviour to her and others involved shouting and yelling and that he had " carried on like a hooligan ". There is evidence that the mother has had concerns about the father's anger. 88. The evidence that the father is " likely to be able to satisfactorily address the issues that have led to the removal " of the children has to be considered separately. It can be said at the outset though that the accommodation issue is very satisfactorily addressed, as I have already mentioned. Although the Clinic social worker said that "[n]o recommendations can be made about the parenting capacity " of the parents and the care of the 5 children, she was not impressed by her limited observations of the father at the time of her report of 27 June 2010 - "In view of the limited nature of the information gathered many things could not be followed through. [David] may have completed an anger management course but was not able to give clear indicators of changes he has made. He appears to not have taken onboard any responsibility for what happened to [Edward] or for the condition of housing or physical care of the children at the time of the removal of the children. His relationship with Community Services or other agency as recommended in the previous Assessment had not developed to any positive level. " 89. The father undertook some courses including Newpin and anger management but progress was frustrated by the removal of the children from their care by the Children's Court and the process of being engaged in litigation, including this appeal. However he and the mother completed a positive parenting program conducted by Anglicare on 13 September 2010. The father has casual employment with a fencing company and is hoping for other more permanent employment. He has put in place financial management plans to ensure the rent and other basic outlays are always paid and there is money left over for day to day needs. 90. The father acknowledges that he and the mother were not coping. However he still denies that Edward's condition was the result of neglect. There does not appear to be any evidence that his anger management has erupted into violence. 91. I think what these parents need is ongoing support in learning how to be better (not perfect) parents. I think both have shown a commitment to such a goal and have taken practical steps towards it. There is, in my opinion, evidence that they are likely to be able to satisfactorily address the issues that have led to the removal of their children. 92. I turn now to the " circumstances " of the children. 93. Colin was not observed by the Clinic social worker in preparing her second report. The Director-General argues correctly that Colin "is a high needs child requiring a multi-layered therapeutic intervention ". However the Director-General then goes on to argue that in " the event that the Minister does not get parental responsibility there is no funding available from the department for the occupational and speech therapists ." That argument, in my opinion, cannot alone support removal of the child because it would invite the Court to reach the prohibited conclusion that Colin's " basic needs...are likely not to be met only because of...poverty " contrary to s 71(2)(b). But it would be relevant to the s 83(7)(b) question of restoration with regard to Colin's " circumstances ". 94. The Clinic social worker expects the children, including Colin, " would have quite a strong level of attachment " (T 214) to their carers by now, having been with them for some 2 years. 95. That period of time with their carers was one of the factors (T 228) influencing the Clinic social worker to change her former recommendation of restoration. Other factors were the father still having " quite a degree of anger...towards the departmental officer " (T 227) and an " inability to work with services " (T 227). The mother not believing Amy's allegation was also a factor (T 228). She added as a factor "further moves where there is some lack of trust...that parents can put things in place " (T 228). That factor " tips me a little bit towards keeping them where they are " (T 228). 96. A child's resilience to recover from the original harm will be affected by the factors being addressed which brought about the harm (T 282). They would need help and good nurturing care. Asked about Colin and Benjamin the Clinic social worker found it " hard to comment...because I don't know - I haven't met the carer " (T 283). After some general discussion about children faring better in family or foster placement the social worker said she did not have enough information " to be able to say that these children would do better in this family placement than they would in their current placements " (T 298). 97. I think it is clear that the Clinic social worker herself does not strongly urge that the children should stay where they are. The scales for her appear to be slightly tipped against restoration. 98. It needs to be remembered that the Clinic social worker formed a favourable view about the children's needs being met within their primary family. At page 32 of her first report she said - " The children were observed to be healthy looking, bright eyed, outgoing, energetic, noisy, attention seeking within normal bounds, and able to be calmed, able to spend time in positive interactions and able to concentrate for reasonably long periods of time with particular activities, interacting with parents or with each other or on their own, all behaviours which show a normal range of emotional maturity for their ages. It appears that these children have had their emotional needs met which can safely be assumed to be by their parents as they have been in Care for too short a period to undo any deficits in their emotional well being ." 99. I turn now to look specifically at the Director-General's assessments of whether there is a realistic possibility of the children being restored to their parents. Those assessments are in the same form in each of the Care Plans. 100. I do not accept those assessments in so far as they related to the issues leading to the removal of the children. The parents - more so the mother - have now undertaken parenting courses and the father anger management courses. The accommodation is now more than satisfactory. The father acknowledges the inappropriateness of his anger-driven behaviour and both parents acknowledge how overwhelmed they were. It is of some concern that the father still regards Edward's condition to be the result of some medical problem diagnosed by himself rather than neglect but he acknowledged in cross-examination that " 90% of it was our fault " (T 656). Their financial circumstances are far from perfect but are in better control so far as major responsibilities are concerned. The evidence of domestic violence amounts to no more than verbal arguments. Although not by random sampling, the father was clean at urinalysis. 101. In so far as the assessments relate to the circumstances of the children, all of the assessments are over 2 years old, some 2 years old. Are the children in need of care and protection? 102. For reasons set out above I am of the opinion that Amy is still in need of care and protection. 103. Regarding Benjamin and Colin I take into account the steps the parents have made to address the issues which led to the removal of the children. I take into account the issue regarding the sexualised behaviour of Benjamin and what I have found can be done to manage that. I take into account Colin's high needs but not the funding issue regarding his treatment. I am of the opinion that Benjamin and Colin are still in need of care and protection but specifically concerning limited needs likely not to be met by their parents. 104. Regarding Edward I think his needs are likely not to be met by his parents if he were to be restored at the same time as Benjamin and Colin. One of the issues underlying the removal of the children was the parents' ability to cope with all the children at once. Benjamin and Colin both have particular needs and I think the parents have to have a satisfactory regime in place to nurture and manage both those boys before Edward can be returned. I expect such a regime should be demonstrated within 6 to 12 months. I propose to reconsider after 6 months from now whether Edward is still in need of care and protection. 105. Determining whether Diane is still in need of care and protection is more problematic. For the same reasons as I gave concerning Amy, I do not regard restoration as exposing her to an unacceptable risk of sexual abuse. However there is still a risk of exposure to the possible sexualised behaviour of her brother Benjamin. In addition there is the concern I expressed for Edward of the parents' ability to cope, especially given the total number of children would be 4 including a 3 year old, two boys with particular needs and a potential issue between Benjamin and Diane which would need vigilance. At this stage, in my opinion, Diane is still in need of care and protection because her needs are likely not to be met by her parents. I am not sure whether to reconsider the question after, say, 12 months or to dismiss the appeal and confirm the decision of the Children's Court concerning Diane and leave the parents with the option of bringing an application in the future to rescind the care order. I propose to invite further submissions on that specific issue. Parental responsibility 106. Each of the children is still in need of care and protection but to different degrees and for different reasons. 107. Regarding Amy I am satisfied, having considered her care plan and given particular consideration to the principle in s 9(2)(c) of the Act, that any other order than the one made in the Children's Court would be insufficient to meet her needs. 108. Regarding Benjamin and Colin, I give significant weight to the principle in s9(2)(c) of the Act. I have considered their care plans. Although I regard an order allocating parental responsibility as appropriate (and any other order insufficient), I think parental responsibility should be shared between the parents and the Minister regarding their respective particular needs. Permanency plans 109. I do not accept the Director-General's assessment about whether there is a realistic possibility of Benjamin and Colin being restored to their parents and I will direct the Director-General to prepare different permanency plans involving their restoration. 110. Nor do I accept the assessment regarding Edward, although his case is less clear. I think I would be assisted - in reconsidering his case after 6 months - by another care plan and a different permanency plan, one involving restoration. Orders 111. The orders I will make are these - 1. Accept the assessment of the Director-General in respect of Amy and confirm the decision of the Children's Court in respect of Amy. 2. Direct the Director-General to prepare different permanency plans, involving restoration, for Benjamin and Colin. 3. Direct the Director-General to prepare a different permanency plan for Edward, involving restoration some time after 6 months from now. 5. Direct the parties to make further submissions (including proposed short minutes) in respect of order to be made regarding Diane. *NB NAMES OF PARTIES HAVE BEEN CHANGED TO PROTECT IDENTITIES. 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: 23 August 2011