In the matter of Connor [2012] NSWChC 17

Children's Court New South Wales

Medium Neutral Citation: In the matter of Connor [2012] NSWChC 17 Hearing dates: 25 September and 9 October 2012 Decision date: 23 October 2012 Jurisdiction: Care and protection Before: Magistrate Paula Russell Decision: Application for Care Order adjourned Catchwords: CHILDREN - Care and protection - children in need of care and protection - permanency planning - realistic possibility of restoration - sufficiency of material presented to the Court for it to consider whether or not to accept the assessment of the Director-General Legislation Cited: Children and Young Persons (Care and Protection Act) 1998 Cases Cited: Attorney General (NSW) v Wentworth (1991) 42 NSWLR 347 at 350 Everlyn (1998) 23 Fam LR 53 at 65 Frances and Benny (2005) NSWSC 2107 Category: Interlocutory applications Parties: The Mother (FF) The Father (SC) Department of Family and Community Services (NSW) Representation: Ms Stirling (Director-General) Mr Jurd (Mother) Mr McLachlan (Father) Ms Stanford (Child) File Number(s): 2012/142 Publication restriction: Pseudonyms have been used in order to anonymise the child and parties

Judgment 1Connor, whose date of birth is the 23 February 2012, is the son of FF and SC. 2On the 1 March 2012 the Director-General made an application for a Care Order pursuant to s 61 of the Children and Young Persons Care and Protection Act 1998 (the Act) seeking an order pursuant to s 79 (1) of the Act allocating parental responsibility for Connor to the Minister until he obtains the age of 18 years and in the interim, pursuant to s 69 of the Act, an order, allocating parental responsibility for Connor to the Minister until the application is finally determined. 3On 2 March 2012 an Interim Order was made, as sought by the Director-General and unopposed. 4It would appear that on 3 April 2012 a finding was made pursuant to s 72 of the Act that the child was in need of care and protection. That finding, as I read the court record, was made without opposition by the parents and was expressed, in the brief note of proceedings on the bench sheet, to be 'without admissions'. 5On 25 September 2012 the matter was one of a large number of matters before me in the list court. On that day the Director-General was represented by Ms Stirling who was mentioning the matter for Ms Costello, the solicitor with carriage of the matter for the Director-General, Mr Jurd appeared for the mother, Ms Wells appeared as agent for Mr McLachlan for the father, and Ms Stirling mentioned the matter for Ms Stanford, the Independent Legal Representative for the child. 6A draft Minute of Care Order was handed to me and I was invited to make orders in accordance with that Minute which proposed, inter alia, orders as follows: (2). Pursuant to s 79 (1)(b) of the Act, that the child be placed under the parental responsibility of the Minister of Family and Community Services for a period of 6 months from the date of the orders (3). Pursuant to s 81 (1)(b) of the Act that the Minister be allocated all aspects of parental responsibility for a period of 6 months from the date of the orders, and (4). Pursuant to s 76 (6) of the Act and to commence immediately on expiration of the orders 2 and 3, child be placed under the supervision of the Director-General for a period of 12 months. 7Orders were also sought pursuant to s 73 of the Act, for the Court to accept undertakings from the mother and the father for a period of 18 months. 8The mother, father and the Independent Legal Representative for the child, I was informed, each supported orders in accordance with the draft Minute of Care Order and each supported the Care Plan filed on 3 September 2012, which sets out the Director-General's assessment that there is a realistic possibility of restoration of Connor to his parents. 9In accordance with s 83 of the Act, the Court is to determine whether to accept that assessment. On 25 September 2012 I raised concerns with the parties as to whether I could accept the assessment. The matter was adjourned to 9 October 2012 for the solicitor principals to appear. On that day they each argued for acceptance of the Care Plan and of the Director-General's assessment that there was a realistic possibility of the child being restored to his parents' care. I do not have the benefit of a transcript of that day but as I recall her submissions, the child's representative expressed what she termed 'great hope' for the family. 10S 9 of the Act makes the paramount concern of this court the safety, welfare and wellbeing of the child. 11S 93 of the Act is in the following terms: (1) Proceedings before the Children's Court are not to be conducted in an adversarial manner. (2) Proceedings before the Children's Court are to be conducted with as little formality and legal technicality and form as the circumstances of the case permit. (3) The Children's Court is not bound by the rules of evidence unless, in relation to particular proceedings or particular parts of proceedings before it, the Children's Court determines that the rules of evidence, or such of those rules as are specified by the Children's Court, are to apply to those proceedings or parts. (4) In any proceedings before the Children's Court, the standard of proof is proof on the balance of probabilities. (5) Without limiting subsection (4), any requirement under this Act that the Children's Court be satisfied as to a particular matter is a requirement that the Children's Court be satisfied on the balance of probabilities. 12His Honour Justice Young, the then Chief Judge in Equity, in Re Frances and Benny (2005) NSWSC 2107, considered s 93 of the Act and rejected a submission that proceedings under the Act were 'actually adversarial'. 13In the light, of ss 9 and 93 of the Act, the court cannot satisfy the requirement found in s 83 (5) of the Act for the Court to determine whether to accept the assessment of the Director-General merely by endorsing the combined positions of the parties. 14I cannot on the material presently before me accept the assessment. In my view the material filed is seriously deficient in providing a basis for the assessment I am encouraged to accept. 15The material filed does not allow me to exercise properly the function conferred upon the court by the Act. In such circumstances, as is made clear in Re Frances and Benny, Re Evelyn (1998) 23 Fam LR 53 at 65 and the Attorney General (NSW) v Wentworth (1991) 24 NSWLR 347 at 350, the Court should adjourn the matter making clear what its concerns are. 16The documents filed by the Director-General reveal that the mother has had 3 other children. Each of those children is, pursuant to orders made on the 19 August 2008, under the parental responsibility of the Minister until each child obtains the age of 18 years old. 17The mother has been diagnosed with schizophrenia and is under a Community Treatment Order which is due to expire on 14 November. She is assessed as stable with no psychotic or depressive symptoms, but in the past, including during her pregnancy with Connor, she has not been compliant with treatment and that has significantly and adversely affected her mental health. 18There is some opinion to the contrary (from the Marrickville Community Health Service), but I have not been able to find, and have not been taken to, any opinion that the mother is likely to adhere to her treatment regime in the absence of a Community Treatment Order. I ask the Director-General and the Independent Legal Representative for the child, in particular, how it is proposed that the risk of the mother's non-compliance with treatment, in the absence of a Community Treatment Order, is to be ameliorated? 19The mother has a history of excessive alcohol consumption. The case plan promulgated by the Director-General early in the proceedings contemplated the mother completing a Carbohydrate Deficient Transferrin test with respect to her alcohol use. The documents filed do not make clear whether that has been done and its outcome, or if not, why not? 20The mother has recently been diagnosed with cervical cancer. It is unclear from the documents filed what the mothers prognosis is, or whether there are likely to be any significant and/or continuing problems associated with that diagnosis. 21She has had a history of being the victim of significant domestic violence. Not, it is true, at the hands of the father but she was not living with him when any assessment of their relationship was done and the father is said to have an extensive criminal history. Apart from some description of that in the Clinician's report, it is not clear what that criminal history is. 22According to the report of 18 July 2012 of Susan Diggs, the Clinician appointed by the Children's Court clinic, the father was, on the 30 December 2010 admitted to hospital after a suicide attempt. He was admitted to a Psychiatric Unit. On discharge, 5 days later, he was referred to the Aboriginal Medical Service. His diagnosis on discharge, the Clinician noted, was 'personality disorder'. 23When the Clinician interviewed the father on 9 July she observed that he could not identify the month or what season it was. She noted his '[e]ye contact was poor and his affect extremely restricted'. He appeared, she said, 'depressed and reported that he felt "sad". He was a poor historian and at times he appeared irritated when questioned. There was extreme poverty of content in his responses. He reported sleeping up to 14 hours a day and having low energy levels and no motivation to do anything but watch television and eat all day. He reported increased appetite and significant weight gain over a 12 month period... He displayed limited insight' she said 'into his past and current difficulties'. 24She noted that he had 'a complex range of physical and mental health problems' in addition to 'substance abuse issues and psychosocial disadvantage'. She noted that he appeared to lack insight into his difficulties and the impact of his problems on his parenting capacity. She noted that his 'chronic health and psychosocial problems as well as his poor coping ability render him vulnerable to a relapse in drug taking behaviour as a way of coping'. 25In her report of 18 July the Clinician recommended that the father be assessed by a psychiatrist at the Community Health Service and, it would appear, that she anticipated that that psychiatric assessment would, or may well, result in treatment being proposed for the father. It is clear from the documents filed that the Clinician, at the time she made that recommendation, was aware of a Mental Health assessment conducted by the Community Health Service sometime before 16 April 2012. 26The material relied on by the parties is silent as to whether such a psychiatric assessment has been undertaken, if it has, what its outcome was, and if it has not, why not? 27It is also unclear whether the Clinician would adhere to the recommendations she made as to the restoration of the child to his parents in the absence of such a psychiatric assessment of the father and any proposed treatment. There would be great benefit in hearing from the Clinician on this and other matters. 28With reference to the very positive changes which the parents have made to their lives while Connor has been in out-of-home care, the Clinician noted that these advances have occurred without the day-to-day stressors of a little baby. 29At the time she interviewed the parents they were not living together. They, therefore, had not been required, she said, to resolve the conflicts which would inevitably arise were that the case. She noted that were they living together the father 'may struggle to make a significant contribution to the functioning of the family' and that that would put additional stress on the mother. 30The Care Plan appears to hint, without actually stating, that the father and mother live together. It is not clear if this is so, or, if so, when that commenced and with what outcome? 31It is unclear from the documents filed how extensive, or limiting, the physical health problems of the father, who has recently suffered a heart attack, in fact are, or, indeed, as I have said, those of the mother. 32I propose to adjourn the matter and exhort the Director-General to file appropriate additional material and the Independent Legal Representative for the child to give consideration to whether the Clinician should be called to give evidence. 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: 01 February 2013