Department of Family and Community Services re Kylie [2012] NSWChC 20

Children's Court New South Wales

Medium Neutral Citation: Department of Family and Community Services re Kylie [2012] NSWChC 20 Hearing dates: 13/05/11 & 07/07/11 Decision date: 08 May 2012 Jurisdiction: Care and protection Before: Magistrate Ellis Decision: Leave to rescind refused Catchwords: Does self-placement to a parent of a Young Person constitute "Significant Change" sufficient to grant leave under s 90 Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 Cases Cited: In the matter of Campbell [2011] NSWSC 761 Darren Jones v Tenille [2006] CLN 7 Shercliff and another v Engadine Acceptance Corp Pty Limited (1978) 1 NSWLR 729 Saunders and Morgan & Anor v Department of Community Services [2008] CLN 10 Category: Principal judgment Parties: The Mother (KS) The Young Person (Kylie) Department of Family and Community Services Representation: Ms Shuwayhat for the Director-General Mr Mara for the Mother Mr Whelan for the Young Person File Number(s): 2010/168 Publication restriction: Pseudonyms have been used in order to anonymise the child and parties

Judgment 115-year-old Kylie is the eldest of KS's four children. All were the subject of final orders in the Children's Court on 7 July 2011. Her mother conceded that there was no realistic possibility of restoration of the youngest three children to her. She sought restoration of Kylie to her care. 2On 13 May 2011 (the 2011 Court proceedings) I decided there was no realistic possibility of restoration of Kylie to KS. Kylie was placed with her brother, in the care of her maternal aunt. This placement quickly broke down. The official explanation was that the aunt believed she could not meet Kylie's needs as well as the brother's. As Kylie had always held the view she wanted to be returned to her mother's care, I query whether it was that factor that led to the breakdown. This suspicion is highlighted by the affidavit of Jennifer McDonald filed 29 March 2012. 3Referring to an earlier carer for Kylie, Exhibit 5 at Para 4 states: "I asked Adam McMahon a caseworker in the Carer Support Team whether there would be a realistic possibility of Kylie returning to her placement with Ms M with whom Kylie was placed prior to the permanency planning arrangement with the aunt. Adam advised the two younger children had been placed with the maternal aunt since Kylie left however the maternal aunt would be willing to provide the placement on the conditions of:" Relevant ones being: "(b), Ms M has requested to have her mobile phone removed." This was necessary as it has been reported that the placement was somewhat sabotaged by Kylie's communication with her family until all hours of the morning. (c) There was also reported issues of Kylie using her involvement with Hillsong as an opportunity to go and get drunk with friends and spend extra time with her mother." 4In addition, the maternal aunt said that Kylie was "dictating orders" in regards to her placement with her. 5No interventions were put in place immediately upon final orders of 7 July to support the maternal aunt. 6In disregard to the Court finding of No Realistic Possibility of Restoration, the Department allowed Kylie to self-place to her mother's care in October 2011. The first the Court was aware of this was in a s 82 report filed in February 2012. That report did not come before me. The Magistrate who released the report was unaware of the significance of that issue. Even if I had seen the report, the major factor of Kylie selfplacing into her mother's care may well have been missed. Instead of it being clearly flagged as a major factor the information is buried in page 5 of the seven-page report. 7The Solicitor for the mother, Mr Mara, has advised the Court that he was not aware of the report. Kylie's Solicitor was acting on direct instructions. He was not instructed to relist the case before the Court. It was not until 5 March 2012, eight months after Final Orders and ten months after the Court found no realistic possibility of restoration, that the Department informed the Court of this relocation. 8The application is one pursuant to s 90 of the Children and Young Persons (Care and Protection) Act. Section 90 of The Act specifies that if there has been a "significant change in relevant circumstances since the care order was made" leave to rescind those orders may be granted (s 90 subs (2)). The Director-General says the significant change has been, inter alia, Kylie's self-placement to her mother. 9The mother and Kylie support the Director-General's Application. 10In determining whether there has been a "significant change" I must revisit the reasons for determining that there was, in May 2011, no realistic possibility of restoration. Subs (2A) include several factors I "must" take into account. I incorporate with this ex tempore judgment my reasons as set out in the transcript of 13 May 2011 pp 1 to 10 inclusive. 11In summary there were three essential areas I delineated: 1. The mother's relationship with her children's fathers as it relates to domestic violence, identified as a major feature; 2. Whether the mother had dealt with her drug and alcohol issue; 3. The relationship between Kylie and her mother. 12Given that these are leave proceedings I would add a further three categories for the purposes of this application: 4. Does the failure of the Addendum Care Plan and Permanency Planning for Kylie provide evidence sufficient to grant leave? 5. The issues set out in s 90 including subs (1), (2), (2A) and (6) of The Act. 6. Does s 136 of itself play a part in determining that leave is appropriate? 13The sole relevant order of 7 July 2011 for Kylie was Parental Responsibility to the Minister until she attained the age of eighteen years. 14Submissions of all parties touch upon the need to re-visit the 2011 Orders, not least because a Permanency Plan approved by the Court for the 2011 Orders is now in disarray. The Director-General must therefore satisfy the Court there has been a "significant change of relevant circumstances". The onus of proof is the balance of probabilities. If the Director-General satisfies the Court of this then leave would flow. If not, the application should be dismissed.