Children's Court New South Wales Medium Neutral Citation: DFaCS (NSW) re Carl [2013] NSWChC 2 Hearing dates: 20 December 2012 and 14 February 2013 Decision date: 26 February 2013 Jurisdiction: Care and protection Before: Magistrate Keogh Decision: There is no realistic possibility of restoration to the mother. The permanency planning for the child has been appropriately and adequately addressed. Catchwords: CHILDREN - Care and Protection - parental responsibility - permanency planning - realistic possibility of restoration - contact Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 Cases Cited: SB v Parramatta Children's Court [2007] NSWSC 1297 Category: Principal judgment Parties: Department of Family and Community Services (DFaCS) The Mother (Carl) The Child Representation: Ms Muggenthaler, solicitor (Department) Ms Leis, of counsel (Mother) Ms Miller, solicitor (Carl) Ms Mahony, solicitor instructing Ms Leis File Number(s): 156/2012 Publication restriction: Pseudonyms have been used in order to anonymise the child and parties. Judgment 1This application concerns Carl who was born on the 4 March 2012 and removed from his mother's care at the end of March 2012 whilst he was still in hospital. 2The Director-General has assessed that there is no realistic possibility of restoration of Carl to his mother and seeks the same determination from the Court. 3The mother seeks Carl's restoration. 4The father has not engaged in these proceedings. 5The Child's independent legal representative agrees with the Director-General's assessment and submits that the Department has found a suitable carer in whose care Carl should remain. History 6The mother had six children removed from her care in 2011 who were then placed permanently in Out-of-Home Care as a result of final orders made by this Court in March 2012. 7There were risk of harm reports in respect of these children dating back to 2002. These reports included reports of neglect, homelessness, excessive discipline, domestic violence, untreated depression and drug use. 8In 2011 the mother relinquished the care of her children to the Department because she couldn't cope and because her children were described by her as wild and their conduct unmanageable. 9She had had earlier involvement with the Department by way of the provision of respite care on occasion and the provision of accommodation when she had been evicted from public housing due to the non-payment of rent. 10Her neglect was exacerbated by an apparent lack of support from the fathers of her children and her family. She was frequently unable to supervise her children and on one occasion a child who required hospitalisation travelled to hospital alone and on the occasions of the birth of her two younger children (before Carl) she required the assistance of the Department to care for her other children when she attended hospital at the time of their birth. 11The father of those children was not available and at least in relation to one of them was in gaol at the time of birth. 12The children's behaviour was so extreme that they required reparative therapy at Redbank House. Redbank House is an offshoot of Westmead Children's Hospital that provides specialist intervention in relation to children's psychological/emotional and behavioural well-being. 13The children could not be placed together such was their extreme behaviour. The permanent carers allocated their care needed to be committed to providing reparative care with the assistance and consistent involvement of the professional team at Redbank house. Whilst receiving this care the children made further disclosures of the extent of their abuse and neglect. 14The children, particularly three of the younger children are still involved with Redbank house. All, as I understand it, are still receiving counselling and some require assistance with speech and learning difficulties. 15When her children were placed in temporary care after she relinquished them an examination of hers and there circumstances led to their permanent removal. The children disclosed a long history of neglect and abuse and their behavioural and conduct difficulties were observed to be profound. They also had learning and speech difficulties. 16The mother's history with the Department of Family and Community Services prior to the removal of the children was not a positive one. 17She is of the view that the Department and its caseworkers offered her little assistance whilst the Department says that she would accept respite care but shunned any programmes or counselling that they recommended to her and for her children. 18She had a history of transitory and sometimes violent liaisons with men and of forming relationships with men who offered her very little or no support to the children they fathered with her. 19DNA testing was required to determine the paternity of the then youngest child. 20The father of Carl is known as JS. At the commencement of these proceedings DNA testing was required to determine his paternity. He is an Indian national and a student. He was someone she expected significant support from. Indeed at the time of the last Court proceedings concerning her 6 older children she swore that he was prepared to live with her and be a father not only to Carl but her other 6 children. She informed the Court though, that he had not been told of the reasons for their removal or indeed that they had been removed. He was apparently under the misapprehension that they were with their respective fathers. He was also not told of their behavioural difficulties. At the time of the hearing he did not provide any evidence to the Court, he was apparently in India and the mother was uncertain of his return date. However his commitment to her was something that she was certain of. 21JS is no longer her partner. She is now in a relationship with HS and he is the father of the child that she is now carrying and due to give birth to in May of this year. HS is an Indian national and a student who can only stay in Australia with his parent's financial support and whose continued stay here requires that he maintain his studies or becomes a resident, by for instance, being sponsored. 22After the mother's older children were removed from her care she had contact with them only once between March and September. Contact with Carl has also been inconsistent with no contact between June and September. She has had some contact since then as has HS, her current partner. Section 106A of the Children and Young Persons (Care and Protection) Act 1998 23By operation of s 106A of the Act evidence adduced about the previous removal of a child or children must be admitted in these proceedings. 24Subsection (2) says that such evidence is prima facie evidence that the child or young person the subject of the subsequent proceedings is a child in need of care and protection. 25Where such evidence is adduced the parent may rebut the prima facie evidence by satisfying the court on the balance of probabilities that: "The circumstances that gave rise to the previous removal of the child or young person no longer exist." 26At the time that it was established that Carl was in need of care and protection, the mother had not been able to rebut that the circumstances that gave rise to her other children being in need of care no longer existed. 27The mother submits that she has now addressed the concerns that led to her older children's removal and consequently there is a realistic possibility of restoration such that the court would be confident that the circumstances that placed her children and potentially Carl at risk are no longer the circumstance that would apply to Carl, or that he would experience if restored to her care. 28The Director-General and the child's representative submit that this is not so and that despite the mother's attendance at numerous courses and continued attendance at counselling with a psychologist her circumstances are such that Carl would be at risk of the same neglect and abuse. 29His Honour Justice Price in SB v Parramatta Children's Court [2007] NSWSC 1297 said that it was permissible to identify the circumstances that gave rise to an earlier removal of children for the purpose of determining whether the circumstances that gave rise to the previous removal of the children still exist or not. The Mother's Evidence 30The mother gave evidence that she had completed numerous courses in 2012 to assist in her parenting capacity. 31She had attended the following: * Triple P * 123 Magic * Tuning into Kids * Managing children's behaviours * Protecting and keeping children safe * Managing anger course * Encouraging children's Development of self esteem 32Some of these courses required the commitment of regular attendance over a number of weeks and others were of very short duration. 33She also continued to see her psychologist on a regular basis and located local intensive support services that may assist her with the care of Carl when and if he is returned to her care. 34She has secured a tenancy from the Housing Department for a two bedroom unit at Telopea. 35She did these things because she dearly wishes to have Carl with her. 36The psychologist in his report dated July 2012 concluded that the mother had acknowledged concerns in relation to her parenting and "has made a genuine effort to redress these concerns". 37In her filed affidavits and evidence under oath the mother insisted that her children had not been removed from her care but rather relinquished by her. 38She also did not accept that her children had experienced neglect or abuse such that they were at risk of harm. She asserted that her appeal currently before the District Court was certain of success and she would soon have the care therefore of all of her children including Carl. Together with the birth of her child due in May she was confident that she could care for eight children. This was particularly so in light of the support that she would have from her new partner HS. 39She claimed that the children's behavioural concerns were due to their removal without acknowledging that she relinquished their care due to their conduct. 40She denied ever using excessive physical discipline but seemed to have forgotten about the incident that precipitated the relinquishment when "she lost it " with one of the younger children. 41Unfortunately in August, when the Court determined that this matter was established she physically attacked the caseworker in court. The sheriff's officer and the court officer had to intervene to stop the attack. The caseworker suffered some injuries but did not require medical attention. The mother was charged with and convicted of assault and was eventually placed on a bond. 42The mother said that she was provoked by some comments the caseworker made to her that were deliberately insensitive and deliberately confrontational. Another caseworker gave evidence that she did not hear the conversation that the mother claimed occurred although she was present at the time. 43Her attack, even if the caseworker did taunt her, was unjustified even in the context of the mother receiving the difficult and no doubt traumatic news that the matter was established. 44When the matter came on for hearing at the placement stage the mother had not filed any material to explain her conduct. Her newly appointed representative was advised of the incident and subsequently the mother provided some explanation of her behaviour. 45I doubt that the caseworker did use the words attributed to her, or taunted the mother, although I accept that the mother and the caseworker did not have a good working relationship. 46Some wariness by the Department of the mother from the outset of the proceedings was explicable bearing in mind that despite the mother being advised of the assumption of care she left the hospital with Carl prior to his discharge requiring his retrieval and return to hospital by departmental caseworkers. 47The mother refused to acknowledge that her children had any substantial behavioural problems. Despite being provided with the s 82 reports in respect of her other children on a previous court date she claimed she had not read them and then that she had not been provided with them. She requested that copies of the reports be provided to her again when she was in the witness box giving evidence. 48In light of all of the above it is hard to reconcile the psychologists conclusions as to her insight and that she has "acknowledged concerns in relation to her parenting and has made a genuine effort to address them". 49Finally the mother is again pregnant to another man, HS, whose evidence I will comment on shortly. The mother denied under oath, that she was pregnant when the hearing in this matter commenced in December last year. In February this year, when the hearing continued she initially claimed that she was not aware that she was pregnant when she gave that evidence. However subpoenaed documents reveal that she attended an ultrasound with HS in September at which her pregnancy was confirmed. She had earlier also given evidence about mistakenly believing that she was pregnant in June of last year to HS. 50Carl was removed from her care at Westmead Hospital. The anti natal care she is receiving for the child she is expecting in May is from Ryde Hospital although Westmead would have accepted care of her. Records from Ryde Hospital reveal that she did not advise the nurses or the social worker there of the removal of her other children or of the existence of Carl. She said she did advise the social worker of the removal of the older children and that Carl does not appear on any of the documentation because there was not enough room on the form to include Carl's details. She provided a postal address that was not her residential address. She said that mail may not reach her at the Telopea address because it could be stolen or tampered with. Instead she collects it from an old address. She was unable to name who lived at that address. 51She did not mention her pregnancy in any of her affidavits; neither did HS, her partner who attested that he would support her in the care of Carl if he were returned, even though he was not his child. 52Truthfulness was something she appeared to judge as being entirely unnecessary in these proceedings and accordingly her assertions of learning and attaining an increased understanding of her obligations as a parent carried little weight. 53HS filed one affidavit dated October 2012 in which he told the Court that his relationship with the mother commenced in June last year. He claimed that he was prepared to assist the mother in parenting Carl. He did not mention her pregnancy to him in the affidavit although he would have known about it then. He did not give any details of the extent of his commitment to the mother of her other children. He did not give any details of his residency status, of his ability to support the mother or indeed himself or any details of his knowledge, if he had any, of the mothers previous involvement with the Department and the removal of her other children. 54When he gave evidence he advised that he intended to marry the mother and could not explain why he had not included this in his affidavit. He also intended to care for all of the older children when and if they were returned together with Carl and the newborn. 55He said his parents were supportive of his relationship with the mother, but that they were not aware of the other children. 56As noted above HS is an Indian national whose continued presence in Australia depends on his continued study or ability to get sponsorship. He had limited ability to offer any financial support as his visa relies on him attending full time study with permission to work only a limited number of hours. The public housing that the mother has made enquiries of would not be available to him as he is not a citizen. His ability to offer any significant support is questionable. 57He was not aware of the behavioural or learning difficulties of the other children. 58It is difficult to accept that HS does not fall into the same category of the mother's previous partners and fathers to her children, men whose commitment to assist her is either non-existent or an empty promise. The Father 59As previously noted the father did not engage in these proceedings. He initially required paternity testing to confirm his parenthood. The Director-General's evidence was that he was aware of the proceedings but advised the Department that he did not wish to take any part in them and was not seeking restoration. He also advised the caseworkers in this matter that he wished to keep his distance from the mother. He made some other comments about the mother and whether he was aware of her other children and her stated intention to find another partner. Determination 60In all the circumstances, despite all the attendance at courses and on her psychologist and the presence of her new partner HS, I do not accept that the circumstances that gave rise to the removal of the older children no longer exist. I am satisfied that not only is Carl a child who is likely to be abused and ill-treated, whose basic physical, psychological or educational needs are likely not to be met and who is likely to suffer serious development impairment or psychological harm as of consequence of the mother's domestic environment but also that there is no realistic possibility of restoration to the mother's care. 61In the circumstances and despite the child representative's submissions I do not see any reason to change the care plan assessment that 6 visits a year of two hours duration is appropriate. Although the contacts are relatively positive, the mother has not played a significant role at all in Carl's life and his ability to attach without disruption to his permanent carers must be maximised. 62The care plan adequately and appropriately addresses permanency planning as is required by the Act. 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: 28 February 2013