Children's Court New South Wales Medium Neutral Citation: DFaCS (NSW) and Abbey [2013] NSWChC 3 Hearing dates: 16 and 18 April at Bidura and 5 June 2013 at Parramatta Decision date: 19 July 2013 Jurisdiction: Care and protection Before: Judge Peter Johnstone, President of the Children's Court of New South Wales Decision: There is no realistic possibility of restoration to the mother or the father. 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: Briginshaw v Briginshaw [1938] HCA 34 Director-General of Department of Community Services; Re "Sophie" [2008] NSWCA 250 In the matter of Campbell [2011] NSWSC 761 Johnson v Page [2007] Fam CA 1235 M v M [1988] HCA 68Re Tracey [2011] NSWCA 43 The Department of Community Services v "Rachel Grant", "Tracy Reid", "Sharon Reid and "Frank Reid" [2010] CLN 1 Category: Principal judgment Parties: Department of Family and Community Services (DFaCS) The Mother The Father Representation: Ms Collopy, solicitor (Department) Ms Wells, solicitor (Mother) Mr Braine of counsel (Father) Mr Whelan, solicitor, independent legal representative for the child File Number(s): 2013/252 Publication restriction: Pseudonyms have been used in order to anonymise the child and parties REASONS FOR DECISION The nature of the proceedings and the issues 1These proceedings concern Abbey, a baby who is now one year old, assumed into care on 4 May 2012, three days after she was born. Her mother is aged 32. Her father is aged 27. 2On 31 May 2013 the Children's Court determined that the child was in need of care and protection, and parental responsibility was allocated to the Minister on an interim basis, until further order. 3The proceedings came before me for final orders. I have conducted a hearing and now give these reasons for decision. The proceedings are governed by the Children and Young Persons (Care and Protection) Act 1998 (the Care Act 1998). Decisions are to be made consistently with the objects, provisions and principles provided for in the Care Act 1998, and where appropriate, the United Nations Convention on the Rights of the Child 1989 (CROC). 4The Director-General has made an assessment that there is no realistic possibility of the child being restored to either of her parents: s 83(1). The Department therefore seeks final care orders involving placement of the child in out-of-home care, and allocation of sole parental responsibility to the Minister, until the child attains the age of 18. 5The Director-General has submitted permanency planning for consideration by the Court consisting of an Amended Care Plan dated 24 January 2013, which proposes arrangements for a long-term placement for the child: s 83(3). 6The parents oppose the permanency planning and the final orders sought, and seek restoration of the child to the father. 7The mother has conceded that there is no realistic possibility of restoration of the child to her. The first issue for decision, therefore, is whether this Court should or should not accept the assessment of the Director-General that there is no realistic possibility of restoration of the child to the father: s 83(5). 8If the Court accepts that assessment, the second issue is the appropriate allocation of parental responsibility: s 79. 9Finally, the Court must not make a final care order unless it expressly finds that the permanency planning for the child has been appropriately and adequately addressed: s 83(7)(a). 10I turn first to outline briefly some legal principles relevant to the making of these decisions. The applicable legal framework 11The objects of the Care Act, as set out in s 8. The Act is required to be administered according to various principles set out, the overriding principle being that the safety, welfare, and well-being of the child is paramount, even to the exclusion of the interests of any parent: s 9(1). 12Subject to that, the Care Act sets out other, particular principles to be applied, in various sections, including sections 9(2), 10, 11, 12 and 13. 13Principles of particular relevance to the present matter include: * That any action to be taken to protect the child from harm must be the least intrusive intervention in her life and that of her family that is consistent with the paramount concern to protect her from harm and promote her development: s 9(2)(c). * That any out-of-home care arrangements are to be made in a timely manner, to ensure the provision of a safe, nurturing, stable, and secure environment, recognising the child's circumstances and that, the younger the age of the child, the greater the need for early decisions to be made s 9(2)(e). This includes the retention of relationships with people significant to the child: s 9(2)(f). 14It is now well settled law that in all decisions under the Care Act involving the paramount concern for the safety, welfare and well-being of a child, including issues of removal, restoration, contact, custody and placement, the proper test to be applied is that of "unacceptable risk to the child": The Department of Community Services v "Rachel Grant", "Tracy Reid", "Sharon Reid and "Frank Reid" [2010] CLN 1 per Judge Marien at [61]. The appropriate test is whether there is an "unacceptable risk" of harm to the child: see M v M [1988] HCA 68 at [25]. 15Whether there is an "unacceptable risk" of harm to the child is to be assessed from the accumulation of factors proved according to the relevant civil standard, as discussed above: see Johnson v Page [2007] Fam CA 1235. 16The standard of proof is on the balance of probabilities: s 93(4) of the Care Act. The High Court decision in Briginshaw v Briginshaw [1938] HCA 34 is relevant in determining whether the burden of proof, on the balance of probabilities, has been achieved: Director-General of Department of Community Services; Re "Sophie" [2008] NSWCA 250. 17When assessing whether there is a realistic possibility of restoration, the Director-General is required to have 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). 18It follows that when deciding whether to accept the assessment of the Director-General, the Court should also have regard to those considerations: s 83(5). 19I have set out in a number of recent judgments a summary of the case law surrounding the concept of realistic possibility of restoration. A summary follows: * A possibility is something less than a probability; that is, something that it is likely to happen. A possibility is something that may or may not happen. That said, it must be something that is not impossible. * The concept of realistic possibility of restoration is not to be confused with the mere hope that a parent's situation may improve. The possibility must be 'realistic', that is, it must be real or practical. It must not be fanciful, sentimental or idealistic, or based upon 'unlikely hopes for the future'. It needs to be 'sensible' and 'commonsensical". * It is going too far to read into the expression a requirement that a parent must always at the time of hearing have demonstrated participation in a program with some significant "runs on the board": In the matter of Campbell [2011] NSWSC 761 at [56]. 20The Care Act, s 83(1) makes clear at what time the "realistic possibility" of restoration should be assessed. When the application for...a care order is before the Court, it is at that time the Court must assess "whether there is a realistic possibility" [Emphasis added]. It must not at the time of the... application be merely a future possibility. It must at that time be a realistic possibility": In the matter of Campbell [2011] NSWSC 761 at [57]. 21As noted above, there are two limbs to the requirements for assessing whether there is a realistic possibility of restoration, whether the assessment is made under s 83(1), 83(5) or s 83(7), to each of which regard must be had. 22The first limb is the "circumstances of the child", and the second limb is "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". 23Turning to the next issue, namely the allocation of parental responsibility, the Court must first give particular consideration to the principle in s 9(2)(c) that must also be satisfied that any other order would be insufficient to meet the needs of the children: s 79(3). 24The principle in s 9(2)(c) of the Care Act is: "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 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." 25I turn finally to set out briefly the legal principles concerning the making of findings concerning the adequacy and appropriateness of the permanency planning proposed by the Department. 26Permanency planning means the making of a plan that aims to provide a child or young person with a stable placement that offers long-term security: s 78A. 27The permanency plan must: (a) have regard, in particular, to the principle that if a child 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'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 s 9(2)(e), (b) meet the needs of the child: s 78A(1)(b), and (c) avoid the instability and uncertainty arising through a succession of different placements or temporary care arrangements: s 78A(1)(c). 28The plan must also include provision for appropriate and adequate arrangements for contact for the child with persons of significance. Background 29The mother was a long-term addict, with a 15-year history of intermittent polydrug use from the age of 15. 30On 16 January 2005 the mother's first child, James, died at the age of six months as a result of the ingestion of methadone. She was arraigned on a charge of murder, convicted of manslaughter, and sentenced to a period of imprisonment. The mother maintained at trial and indeed continues to maintain, that she was not responsible for the child ingesting the methadone, and blames the child's father. She acknowledges her role in the death, but this is limited to conceding that her relationship with the father put James at risk, and that she should have taken positive steps to seek earlier medical intervention for the child. 31During her incarceration, the mother completed several Alcohol and Other Drugs (AOD) courses. Following upon her release to parole in 2009, after 4½ years in prison, she completed residential rehabilitation. However, her attempts to remain drug free failed. She suffered a relapse and was returned to prison. When finally released in 2010, the mother appeared to remain stable on methadone, however she resumed the use of illicit drugs after several months, with urinalysis results collected in February 2011 disclosing the use of heroin, amphetamine and methamphetamine. Information available through urinalysis indicate that she last tested positive for amphetamine and methamphetamine in August 2011, but that she tested positive for cannabis after that date, up until February 2012 when she was pregnant with Abbey. She maintains that she used cannabis to alleviate symptoms of morning sickness. 32After her release from prison, the mother started several relationships, including a short-term relationship with a man, who was physically abusive towards her, but to whom, it appears, she fell pregnant. She suffered a miscarriage around July 2011. 33She broke off her relationship with that man and started seeing the father, who she met through mutual friends. Some six to eight weeks later, he moved in with the mother, and by September 2011 she realised she was pregnant again. 34Abbey was born on 1 May 2012, then on 4 May 2012, she was assumed into care by the Director-General. The stated basis for the child's assumption included the mother's history of drug use, an insufficient change in her circumstances since she was convicted of the manslaughter of her son James, "issues of concern for the father's mental health, his parenting capacity and insight, and the history held by the Joint Investigative Response Team (JIRT) which confirmed the sexual assault of his step-sister over a two year period; and both parent's transience both historical and recent". 35On 31 May 2012 the Children's Court made a finding that Abbey was in need of care and protection under s 71 of the Care Act and in reliance upon evidence admitted pursuant to s106A (1) (b) concerning the mother's involvement in the death of James. 36The parents demonstrated a strong desire to have Abbey restored to their care. The Department was at that time disposed to investigating whether that was a realistic possibility. 37Upon request, the Court made orders for assessment of Abbey and her parents by the Children's Court Clinic, pursuant to which an Assessment Report was prepared by Ms Bronwen Elliott, an authorised clinician, and presented to the Court on 20 August 2012, at a time when the mother and father were still a couple, living together in a mutual relationship. 38The Clinician had serious concerns about the prospect of restoring Abbey to the care of the parents, but on balance believed consideration should be given to a restoration plan. She said in her report: "Because of the serious consequences of the mother's failings in relation to James, and the very negative consequences for a child who is sexually abused by a parent, even though her parents are advocating strongly that they are well placed to care for her it is important that careful consideration be given Abbey's best interests. Removing a child from their family has lasting consequences, and even for a young child such as Abbey there is no guarantee that out-of-home care will provide a secure alternative. While mindful of concerns that the mother has relapsed in the past, because of the positive nature of her and the father's relationship, their ability to reflect on their own childhood experiences and the way these have impacted on them, and their positive engagement with Abbey, in my view consideration could be given to a restoration plan": Assessment Report at [84]. 39On the basis of the Clinician's view, the Department prepared and presented the original Care Plan dated 9 October 2012, which proposed a restoration that was to be implemented by way of an extended transition period of 2 years. The plan set out certain assumptions, including the need for the parents to continue to work closely with Departmental workers to ensure the safety of Abbey, including undertaking random urinalysis and hair follicle testing as directed. The Care Plan stated: "Community Services is of the view, however, that while the mother and the father are taking all the necessary steps to have their daughter in their care, the changes that have been implemented have not been sustained over a significant period of time that would minimise the risk of harm to Abbey." 40Nevertheless, on balance, the Director-General made an assessment that there was, at that time, a realistic possibility of restoration of Abbey to the parents. That decision was influenced substantially by the views expressed by the Clinician, and by results from urinalysis undertaken by the mother. The Care Plan quoted from the Clinician's Assessment Report at [80]: "While it is not possible to say that she (the mother) could not relapse, she does seem to have in place more foundations for success than previously." 41Hence the proposal for an extended transition period: "The mother would need to demonstrate her ability to remain abstinent for a period of at lease 24 months given her adherence to treatment plans to address drug dependency issues in the past have failed." 42The Director-General subsequently felt constrained to change his position on restoration when he became aware that the mother had been using benzodiazepines, prescribed by Dr Lenthen, who was not her regular doctor, as far back as August 2012. 43The father attended the medical practice with the mother and was aware she was prescribed benzodiazepines. 44The mother's use of benzodiazepines was not disclosed to the Department, or any caseworker, or to the Clinician, despite numerous opportunities. 45The mother in fact told the Clinician that she was "not currently taking any regular medication apart from buprenorphine", that she was "no longer taking anti-depressants or benzodiazepines", and that "the doctor she is currently attending does not prescribe sedatives": Assessment Report at [34]. 46The father, despite having telephone contact with the Clinician on a date subsequent to the appointment with Dr Lenthen, did not tell the Clinician that the mother had been prescribed benzodiazepines. 47After consultation with the Clinical Issues Unit and after meeting with the parents, the Director-General reassessed the permanency planning for the child and presented an Amended Care Plan on 23 January 2013. In this plan, the Director-General made an assessment that there was no realistic possibility of restoration of Abbey to the parents. The plan proposed long term orders allocating parental responsibility to the Minister till the age of 18, and placement of Abbey in out-of-home care. Long term out-of-home carers have since been identified and a carer profile has been provided to the Court: Exhibit A. 48According to the father, he and the mother split up in late January 2013, and he moved into separate accommodation because he "needed to put Abbey's wellbeing ahead of our relationship". Oddly, however, on 8 March 2013 the mother swore an affidavit in which she stated: "I do not agree with the change (in the Director-General's position) and still seek joint restoration". 49On 16 April 2013, on the first day of the placement hearing, the mother indicated to the Court that she was no longer seeking restoration of the child to herself, but that she supported restoration to the father. 50The father continues to seek restoration of Abbey to him. He has no other children. The Department's Case 51The Department notes that the mother no longer seeks restoration of Abbey; nevertheless it maintains its opposition to the restoration of Abbey to the sole care of her father. 52In broad terms, the Department questions the sincerity of the parents' stated 'separation', criticises the mother's credibility, and submits that the father is not capable of adequately parenting Abbey on his own, nor is he capable of acting as an effective gatekeeper against the risks posed by the mother to Abbey. He lacks adequate insight into the role played by the mother in James's death, and her drug issues. Further, the father lacks adequate family or other social supports, and has demonstrated a poor appreciation of Abbey's developmental needs. 53Specifically, the Department submits that it is open to the Court to question the motivation of the mother's late change of position, and that oral evidence about the nature of the parents relationship and future plans was not clear. The Court should also question the mother's insight into her past parenting history, her substance abuse, and her history of domestic relationships as it impacts on the father's capacity to be a gatekeeper in the event that Abbey were to be restored to his sole care. 54The Department is also critical of the mother's veracity, submitting that her evidence was inconsistent with other, independent material before the Court. 55In particular, it is submitted that the oral evidence she gave as to her participation in James's death was unsatisfactory; that it was inconsistent with what she has said on previous occasions, and minimised the extent of her involvement, and her level of culpability. Her blaming of the father as the person who administered the methadone to James, which lead to his death, is inconsistent with the evidence presented at her trial, and specifically excluded as a possibility by the trial judge in his remarks on sentence. 56Further, the mother's evidence about her history of drug abuse was inconsistent and lacking in candour: "The mother claims to be free of any substance abuse as at May 2011 despite her urinalysis results showing the presence of methamphetamine, metabolites of heroin, benzos and cannabis over the months up to and including Feb 2012 (Records of Garden Court Clinic - Annexure to the affidavit Elizabeth Rigney)." 57The Department also points to the mother's oral testimony attributing the cause of her relapse into amphetamine use to death of her brother, despite evidence showing that the date of her brother's death post-dated her relapse into methamphetamine and other drug use: see the Garden Court notes and urinalysis results. 58The Department next points to the unsatisfactory nature of the mother's evidence in relation to her consultation of Dr Lenthen: "Her sworn evidence is that Dr Lenthen was aware of her history of drug use, and her circumstances yet Dr Lenthen's evidence - notes and oral testimony - was that he was not aware at the time he prescribed benzodiazepines in August 2013 that she was on the buprenorphine programme." 59Nor was Dr Lenthen aware of the circumstances surrounding the death of James or the mother's conviction for his manslaughter. The doctor said that was information that would have given him considerable pause before prescribing benzodiazepines for her. 60It was submitted that the mother's description of her relationship with Dr Lenthen as her general practitioner in the affidavit she swore on 8 March 2013 was "elaborate" and consistent with "doctor-shopping", a practice she conceded she had engaged in, in the past. 61In short, the mother presents as someone that poses unacceptable risk of harm to Abbey, a risk which the father fails to appreciate and understand, rendering him an ineffective 'gatekeeper': "It is submitted that the father's failure to act appropriately and inform FaCS in a reasonable timeframe indicates an incapacity to be protective in the future in that he does not recognise, understand or acknowledge the impact of the mother's substance use, including benzodiazepines on her past or future parenting and the nature of his relationship with her has overwhelmed his stated good intentions in the past and is more likely than not to do so in the future." 62The Department points to the father's evidence that in his "heart of hearts" he is unable to accept the mother's role in the death of James, and would not, therefore, see any need for supervision of any contact between the mother and Abbey. 63The Department was also sceptical of the father's claim that he has never seen the mother under the influence of any substance in spite of their period of cohabitation including the period of time when the Garden Court Clinic urinalysis results show positive tests for illicit substances. He did concede, however, having observed her "smoke a joint when pregnant" to help her eat, something he thought was appropriate to help her gain weight. 64Thus, the Department submits, there is an unacceptable risk of harm to Abbey posed by any placement with her father by reason of the absence of any demonstrated insight into the issues of concern related to the mother's drug use. 65Whilst the sincerity of the father in his desire to parent Abbey, the Department submits that he simply does not have the capacity. Even the Clinician's recommendations were predicated upon a restoration to the joint care of the mother and father. The Clinician acknowledged that she had not made an assessment of the father's capacity to parent Abbey alone. Strangely, no one was prepared to ask her in the witness box whether she had a view on that question. 66What the Department does say, however, is that the father's capacity to appreciate Abbey's needs is inadequate, and that he would need considerable help and support, which does not exist, or may be doubted: "Other supports proposed by the father are closely aligned with the mother. The father proposes his cousin as a support. The mother in her affidavit of 6 December 2013 describes the cousin as a very good friend of hers. The mother told the clinician that she had "a friend who lives in Ashfield and has known for a long time. They were close friends at school and resumed contact about 18 months ago on Facebook. She liked the fact that she knew everything about her and did not use drugs": Assessment Report at [56]."The mother's stepfather is proposed both as a support and as a contact supervisor...It must remain unclear how that relationship will evolve in circumstances where the mother would necessarily be excluded from the family group should Abbey be placed with her father. Indeed the manageability of the exclusion of the mother from the family group would be challenging in circumstances where neither father nor stepfather have concerns about the risk associated with the mother." The Father's Case 67The father asks the Court not to accept the Director-General's assessment and to find that there is a realistic possibility of restoration of Abbey to his sole care, and further, pursuant to s 83(6), to direct the Director-General to prepare a fresh care plan/permanency plan involving restoration. 68Abbey is his first and only child. He loves her very much, and is committed to bringing her up with as much care and diligence as he can bring to bear, is co-operative, amenable to advice, and open to any available assistance. 69It was submitted on his behalf that there is no evidence to suggest that he has ever placed his daughter at risk, or that he has ever abused her or neglected her. He has remained polite and courteous in relation to all his dealings with Departmental officers, has followed faithfully all of the instructions given to him and pursued all recommendations from the Department to improve his parenting skills. He has remained committed and reliable in relation to attending contact and has followed all of the suggestions and directions of Departmental contact supervisors. The father has undertaken and completed "My Kids and Me" parenting program as well as the "Circle of Security" program. He has appeared to understand and put into practice that which he had learnt during the various parenting programs he has undertaken. 70The father does not have a criminal record; there is no evidence to suggest that he has any problem with either drugs or alcohol; he has never been involved in any domestic violence either in his relationship with Abbey's mother, or with any other person; nor there is any suggestion that he has a specific problem with anger. 71The father acknowledged that there had been an allegation regarding an assault of his stepsister when he was younger. 72He denied abusing his stepsister. As I indicated during the hearing, this is a non-issue so far as my assessment of the father and his capacity to care for Abbey is concerned. 73The Department has reflected on the father's past mental health issues, in particular his depression and bi-polar disorder. The Clinician, however, was of the view that his mental health as currently assessed cannot be regarded as a risk in relation to Abbey's care. It is also accepted that "The father has been diligent in following appropriate psychological treatment and support and Community Services would like this to continue for a significant period." 74So far as the father's relationship with the mother is concerned, the father has been open and transparent with the Department. He advised the Department in an interview on 16 January 2013 of his change of circumstances regarding his relationship with Abbey's mother. When the Department withdrew support for joint care at Christmas 2012, he acted promptly to make the necessary arrangements to care for Abbey as a sole parent. He made clear on a number of occasions during cross-examination that he had made the decision to place Abbey ahead of his relationship as he did not wish his daughter to go into long term foster care. And: (a) The mother has never attended the father's new residence. (b) The sexual relationship between the parents has ended and they do not see each other socially. (c) The father has been able to maintain an amicable relationship with the mother at contact visits. 75Recently, the Department has introduced some contact visits where the father sees Abbey alone. At the resumed hearing the Department raised concern about the father's capacity to settle Abbey when she was separated from her current foster carer. 76I place no weight on the evidence surrounding what was, in fact, a single episode, when it took the father some time to settle the baby, as against other evidence that on other occasions there had been no such difficulty. 77The father acknowledges a learning difficulty during his formative years, but any difficulty he may suffer from did not significantly impact on either his capacity to learn and integrate information regarding parenting nor significantly impede him digesting significant amounts of written material generated by the Department. "Most recently, he was invited to carefully read through the judgment following the death of the mother's child, James, and was able to answer questions in cross-examination concerning the content of that judgement." 78On the question of support, it was submitted that the father was able to demonstrate he had reflected upon this, and pointed in particular to his aunt and his cousin, the latter of whom resides close by - these being people who could assist him with the day to day care of Abbey should she be placed with him. 79Finally, the submissions address the role of the father as an effective gatekeeper in the event of restoration. 80On the question of his insight into the role of the mother in James's death, it was suggested: "...the father was able to appropriately reflect upon the judgement and reinforced his commitment to ensure that future contact between Abbey and the mother should be supervised." 81It is the father's submission that the Court should remain cautious in assessing risk associated with the mother. The Court is unable to assess any findings of fact consequent upon a jury verdict of manslaughter in circumstances where a conviction for murder was not made out. 82The father accepts that the mother should not have unsupervised contact and seeks the intercession of the Department to conduct such supervised visits with the mother for the foreseeable future and consents to the Court making a s 90A order prohibiting the mother from attending his home or having contact with Abbey other than as directed. It was submitted that appropriate undertakings together with the injunctive nature of a s 90A order should provide the Court with comfort especially in circumstances where it has never been alleged that the father has ever disobeyed a direction of the Department concerning Abbey's care. This is an appropriately protective position for the father to adopt. 83The Court can be further comforted by an order of parental responsibility to the Minister for a further period of twelve months so that the Department can oversight a careful and staged restoration of Abbey to the father. 84It was further submitted that the Court should not to follow "a risk adverse strategy" but rather, assess the risk of the father inappropriately allowing contact between Abbey and her mother as being low in light of the behaviour he has demonstrated to date and the veracity of his posture with the Department. 85Hence, the father should be assessed as an appropriate "gatekeeper", that is, the risk is now assessed based upon his genuine commitment to follow the advice of the Department and the Court and to keep to his word that he will not permit contact between Abbey and her mother except as directed by the Department or the Court. The Mother's submissions 86The mother conceded on the first day of the hearing that there was no realistic possibility of restoration of Abbey to her care. She supports the father in his desire to have Abbey restored to his sole care. 87It is the mother's concession that despite the efforts made by her throughout the proceedings, more time is needed to prove to the Court that she could remain free of illegal and non-prescribed drugs; and that she can be a good and proper parent who can provide for the safety, welfare and wellbeing of Abbey. It is her intention to bring a s 90 Application when she is able to show the Court that she is stable on appropriate prescription medication, and that she has had a longer period of being free of illicit drugs. 88In the meantime, she is adamant that she does not want Abbey in long- term foster care and as such, changed her position to support a restoration of Abbey to the father's sole care. 89The mother submits that there is a realistic possibility of restoration of Abbey to the father. He has attended parenting programs and contact visits with the mother and she has at all times observed him to be appropriate and child focussed. The fact that he is a first time father should not rule him out as a carer for Abbey. He is a person "known to the Court". He has been willing to accept the guidance and direction of the Department, and is willing to continue to engage with any support services or supervision recommended to support him learn to be a great dad. 90Conversely, the proposed foster carers are unknown to the Court. All that is known is that the foster mother herself suffers extreme health issues, a potential risk to the level of care that would be able to be provided to Abbey. The caseworker in cross-examination admitting that she knew nothing of the proposed carers, that they had been put forward by an agency, and was unable to comment on their ability to meet Abbey's needs. 91The mother makes several submissions on the issue of the Department's concerns about the risk to Abbey of any ongoing role of the mother, should she be restored to the father. 92The mother's written submissions make the following points: * The parents now have separate residences and separate social lives. The mother has not attended the father's residence, and there is no evidence of any ongoing physical or sexual relationship between the parents. * The mother gave very clear evidence that she has no intention of jeopardising the father's chances of restoration, and made the brave and difficult decision to not seek joint care of Abbey, to ensure that the father's chances were maximised. * The mother is willing to give any undertakings necessary to the Court to limit her contact and interaction with Abbey to only that agreed upon by the Court. * There is no suggestion that the mother is any risk to Abbey during any supervised time. In fact the contact reports in relation to the mother are glowing. Abbey very much knows who her mother is, and loves her and interacts with her freely and happily at contact. There has never been any suggestion of the mother inappropriately parenting or disciplining Abbey at contact. * The mother is child focused and appropriate on all accounts. * The mother understands the Department's concern that the prescription and use of benzodiazepines triggers alarm bells as they are some of the drugs found in baby James's system. However, they were drugs taken as prescribed to assist the mother to sleep during this stressful time. She accepts that she should have provided a full history to the GP, however says that in 6-minute appointment sessions it is very difficult to build the necessary rapport to confide such a traumatic history. 93The mother disputes that she did not disclose her prescription of benzodiazepines to caseworkers until 2 January 2013. It was her evidence that she provided these prescriptions to the Department upon the caseworker's return from leave, which in turn was the cause of the investigations of PBS and later hair follicle testing. 94The mother disputes that her evidence about her relationship with the father was unclear. She was in fact very clear in her evidence that she and the father had separated so that he could seek the sole care of Abbey and that she supported that and would only seek monthly contact with her to enable her to settle with and be safe with her father. 95The mother submits it is incorrect to say that she has never acknowledged her role in James's death. Nor did this seem to be a factor when the Department initially assessed that there was a realistic possibility of restoration to the parents jointly. The mother has always acknowledged that as a result of being in that relationship with James's father she put James at risk, and further that she should have sought earlier medical intervention for the child. 96The submissions also seek to put this issue in context, relying upon the view expressed by the Clinician: "In my view James's death took place in a context which is very different from the mother's current circumstances, and it is not necessary for her to admit that's he gave James medication to ensure that Abbey is protected from a similar event. In accepting responsibility for failing to protect James from the consequences of living in a dangerous environment, and from medical neglect, the mother has accepted responsibility for the aspects of his care that would pose the most risk to Abbey, in that they relate to general circumstances rather than one event, and therefore could more readily occur again": Assessment Report at [79]. 97In summary, it was submitted for the mother: "The mother is a totally different woman to the lady she was at the time of James's death. She is not in a domestic violence relationship, she is free of illicit drugs and has been since at least January 2012. She is actively engaged in many services to better herself and ensure that she does not fall back into the same state she was in almost 10 years ago. She disclosed her pregnancy to the Department and has been working with them without question. There is only one suggestion of the mother not working with the Department and that is when she says she did not give her prescription to them whilst the caseworker and manager were on leave. She did however provide them with the prescription upon their return. She did that in circumstances where there was no longer any testing of her and was being upfront with the Department." The submissions of the Independent Legal Representative 98On balance, the Independent Legal Representative supports the assessment by the Director-General that there is not a realistic possibility of restoration of the child to the care of the father. He submits: "This is a sad and difficult matter. The father presented as someone who loves his daughter and earnestly wanted to do what was best for her. He also presented as a man who still very much loves Abbey's mother. Unfortunately, the totality of the evidence does not suggest that he has appropriate insight into the risks posed by the mother and raises real concerns about his capacity to perform the gatekeeper role." 99This view was formed, notwithstanding that Abbey has been in a short-term foster care placement since being assumed into care, and whatever the outcome of the current proceedings, Abbey will have to move placement. 100The Independent Legal Representative for Abbey discusses the significance of the death of James to the assessment of unacceptable risk of harm in the present case, and submits it is a relevant consideration, having regard to the seriousness of the event. He goes on to submit, correctly in my view, that this Court is not required to make the finding about which of the circumstances relating to James's death is the correct one. All that is required is for the Court to accept that on any version of the circumstances, the fact remains that the risk posed to Abbey by unsupervised contact with her mother is very high. He cites what the High Court said in M v M [1988] HCA 68 at [20] - [21]: "But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of [in that case] sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence...The resolution of an allegation of sexual abuse against the parent is subservient and ancillary to the Court's determination of what is in the best interest of the child's. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be averted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide ranging discretion to decide what is in the child's best interest cannot be qualified by requiring the Court to try the case as if it were no more between a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities." 101Also relevant in this context are the remarks of Sackville JA in Director General of Department of Community Services; Re "Sophie" [2008] NSWCA 250 at [67] - [68]. 102What is also concerning are some aspects of the mother's evidence about the circumstances of James's death to which the Independent Legal Representative for Abbey points. 103These aspects are described at [21] - [29] of his written submissions, as follows: "She says in paragraph 25 of her affidavit of the 6th of June 2012 that she spoke to the Police only at the hospital, helped them with the video drive of where she had driven and that she 'never spoke to the Police again'. This is simply untrue. She gave a two hour, twenty-one minute recorded interview occupying some seventy pages. This appears as Annexure G to the affidavit of Mark Ambrose Whelan on the 2nd of April 2013.The mother, when cross-examined about this inconsistency about the evidence on her affidavit, indicated that she had forgotten about that interview because she was traumatized, it being the day after James's death. Whilst she would no doubt have been traumatized at that time, it is difficult to accept that she completely forgot about a two and a half hour interview. This interview was also referred to by Justice Howie in his remarks on sentencing paragraph 8, when he states that whilst she did not give evidence at the trial, she 'engaged in a lengthy formal interview with police. She'd also participated in a video interview in a police vehicle retracing her steps on the night the child died and later back to the unit'.The mother would have heard those remarks from the Judge and the interview was referred to at some length in the trial. Accordingly it in inconceivable that by the time she swore her affidavit in 2012 that she still was unaware that she had given a lengthy police interview.Another troubling aspect about the mothers position with respect to the circumstances of James's death, is that in that interview with Police she makes no mention whatsoever of what she says is her view as to how he died, namely that her then partner administered the methadone and the benzodiazepine to him.Further, the mother also clearly lied in her account of the circumstances leading up to James's death in that she said she was driven to the premises where she sought help for the child when it was clear that she was the driver. At paragraph 8 on the sentencing Remarks, Justice Howie says: '...this may have been because she was concerned about driving a motor vehicle without a licence but she persisted in the lie and embellished it in a way that destroys her general credit. She denied giving any illegal drugs to the child but I am satisfied beyond reasonable doubt that she did'. The Mother, in her cross-examination in this court, was asked by the Independent Legal Representative about an entry in the corrective services notes. These notes appear in the affidavit of Elizabeth Rigby of the 23rd of May 2012 at page 153 of the annexures: 'Inmate appears to have shifted from previous denial of dosing son with methadone, now states 'I could have done it but I don't remember, but I definitely didn't give him valium because I have no access to it'. When cross-examined in this Court, she calmly indicated that she had been deliberately lying to the counsellor at corrective services to enhance her chances of parole. The mother made much of not being able to disclose to Community Services that she had obtained a prescription for benzodiazepine in 2012, which ultimately lead to Community Services changing their recommendation. She repeatedly asserted that the caseworker was on leave for 6 to 8 weeks and that's why she hadn't informed Community Services about the prescription. However, when cross-examined, she was not able to offer any explanations to why she did not ask her solicitor to forward that script to the Community Services legal representative or to annexe it to an affidavit and file it. The mother clearly understood the significance of the case plan, and her abstinence from abusing drugs and her advising Community Services of any prescription of drugs. She didn't have any credible explanations about why she hadn't brought it to the attention of Community Services and the Court at an earlier time." 104The Independent Legal Representative also questions the genuineness of the parents separation: "The fact that the parents had jointly sought restoration for nearly 12 months and that the mother only changed her position on the morning of the commencement of hearing raises the possibility of the inference to be properly drawn that the mother made a forensic or tactical decision that the father stood a better chance of placement of Abbey with him alone. It is concerning that the parents filed affidavits within days of each other in March 2013, giving contradictory versions of the status of their relationship.Further, the father in his cross-examination at Bidura on the 19th of April 2013 did not appear to be genuine in his statements that the relationship was over. Specifically, when questioned about the future, the father couldn't offer any coherent reason why he wouldn't resume his relationship with the mother if there was no restoration of Abbey, and indeed he also admitted to being lonely since the relationship ended." 105Ultimately, the father would have great difficulty in fulfilling the gatekeeper role, given the risk the mother poses to Abbey, and bearing in mind the great confidence that the father is asking be placed in him in terms of protecting Abbey against that risk. 106The Independent Legal Representative pointed to the very troubling evidence of the father, when he was given three opportunities to answer on the need for supervision of the mother. His answer on each occasion was that he genuinely in his "heart of hearts" did not believe that the mother needed to be supervised in her time with Abbey. He accepted that "she was her mum" and that she didn't need to be supervised. It was submitted that the father had demonstrated insufficient insight into the risks, such that the Court should accept that the father cannot safely fulfil the gatekeeper role. 107The Independent Legal Representative has additional concerns relating to the inadequacy of the father's parenting capacity. 108The assessment of parenting capacity carried out by the Clinician was predicated on the assumption that the mother and father would assume joint care of Abbey. As such, they supplemented each other's parenting deficits, and the combination of the parents together was likely to be greater than the sum of their individual parts. Thus: "It cannot be said that the Clinician supports placement of Abbey with the father alone, because the Clinician looked at the combination of the strengths that they had rather than their capacity in isolation." 109The father has never parented before; he would have to learn a number of new skills to successfully parent Abbey on his own. There are significant questions about his capacity to learn those skills. Whilst the father's mental health appears to be well controlled, the fact remains that he has been in receipt of a disability support pension for many years because of his learning difficulties, which affect his ability to read and sometimes comprehend what is said to him: Assessment Report at [61]. And his identified supports are not only inadequate, they appear to be closely aligned with the mother, blurring of boundaries in terms of the father's gatekeeper role in respect of the risks posed by the mother. Restoration 110I was surprised in the present case that consideration was ever given to any restoration to the mother so soon after her release from prison for her involvement in the death of her other child, James, and given her long history of drug dependence and the shortness of the period of claimed abstinence from drugs of addiction. Her conduct subsequent to her release to parole, and since her final release, all serves to create ongoing doubts as to the sincerity of the mother and the true extent of her asserted abstinence, and as to the potential for her to relapse. 111The mother's continuing drug use after release, her behaviour surrounding drug testing, the subsequent discoveries by the Department surrounding the obtaining of the prescription for benzodiazepines, and the deceit that entailed, including the failure to disclose the fact to the Department despite the existence of the Care Plan, her subsequent consumption of the drug and the nature of the excuse proffered for doing so, are but circumstances that merely confirm the ongoing risks inherent in drug dependence and the deceitful behaviour it drives. The Department's change of position in relation to restoration was in the circumstances predictable and inevitable. 112Both parents have underplayed and sought to minimise the significance of James's death, and the extent of the mother's role in it. This has also caused me considerable concern. 113Even on the most benign interpretation of the mother's involvement in the death of her son, James, that death gives rise to heightened concerns in the making of any assessment of risk posed by the mother to Abbey. For my part, however, I do not accept the mother's version of the level of her involvement. Her credibility about the events on that fateful day is totally lacking. Firstly, there are the various discrepancies in her accounts of the events, both in the ensuing days, and over time. Second, the inherent logic of those events is such that huge question marks remain. 114I agree with the submissions that it is not necessary to conclusively determine, on the balance of probabilities, that the mother did administer the methadone that killed James. It is sufficient, however, for that to exist as a scenario, against which the assessment of future risk must be measured. 115The suddenness of the separation of the parents also gives rise to factors relevant to the risk of harm to Abbey. This is exacerbated by the contradictory nature of the respective versions given by those parents as to the true nature of the separation, such that it may well be asked whether it was a device to enhance the restoration of Abbey to the father, as an interim measure, pending a future s 90 application. Whether and to what extent the separation of the parents is genuine, the very fact of the separation, and the timing of it must be viewed with concern, such that it becomes another factor in the risk assessment. In short, the mother continues to present an unacceptable risk of harm to Abbey, and the separation does very little to alleviate that risk. 116Nor, in my view, does this father have the capacity to parent Abbey on his own. If it was perceived that a realistic possibility of him being able to do so existed, it was only ever in the context of an ongoing relationship with the mother, with her presence and support making up for his demonstrated deficiencies and shortcomings. His nominated supports are illusory and inadequate, insufficient to compensate for his failings. 117I don't for one moment doubt the father's desire, and the sincerity of that desire, to care for Abbey. She is his only child. The evidence does not conclusively define whether her birth was a planned event, at least on his part, or not, but having become a father, he genuinely wants to bring her up. Having regard, however, to the totality of the evidence, I agree with the submissions of the Independent Legal Representative that the father simply does not possess the wherewithal to do so in a way that would sufficiently provide for Abbey's safety, welfare and well-being. 118The father has ongoing mental health issues, which appear to be under control, but which exist, combined with demonstrated learning difficulties. His shortcomings in relation to comprehension were, if I may say so, totally evident from his presentation in the witness box, but confirmed in greater detail from more extended observation by the Clinician. 119Furthermore, in my view, the father would be completely inadequate as a gatekeeper when it comes to the risk posed by the mother to Abbey. 120I gave the father an abundance of opportunity to overcome the Department's evidence on this issue, but when he gave his "heart of hearts" evidence, I was comfortably satisfied that he just can't bring himself to accept that the mother presents any unacceptable risk to Abbey, notwithstanding what happened to James. This, of itself, gives rise to an unacceptable risk of harm to Abbey. 121This is, in the end, a case where the possibility of restoration has been inaptly confused with the mere hope that the father's situation may improve. There is no reality surrounding the possibility of a restoration to him, and any such possibility is unrealistic and sentimental, based on what I view as unlikely hopes for the future. 122I find, therefore, that the father is unlikely to be able to satisfactorily address the issues that led to the removal of the child. 123I am also comfortably satisfied that the circumstances of the child are such that restoration to the father is contra-indicated. The risk associated with a restoration to the father supports that proposition. 124The mother has conceded there is no realistic possibility of restoration to her, and I accept the assessment of the Director-General in that regard. I also comfortably accept the assessment of the Director-General that there is no realistic possibility of restoration to the father. Contact 125Future contact between Abbey and her parents is problematic, for the reasons I have identified. 126I agree with the submission that decisions related to contact, including supervision, should remain with the Director-General, who will be able to assess circumstances as they emerge, and take into account such matters as Abbey's age, emotional, social and other needs at any given time. 127For these reasons, I have decided to make no specific orders as to contact contra-indicating what is proposed in the Care Plan, but to allocate to the Minister parental responsibility for the aspect of contact, with a view to leaving to his discretion entirely the frequency and nature of future contact, what undertakings might be required from the mother and father, and what supervision might be required for contact. I see no requirement, therefore, for the imposition of any prohibition orders. Allocation of parental responsibility 128The proposal is that sole parental responsibility for Abbey in respect of all its aspects be allocated to the Minister until she turns 18. 129I have given particular consideration to the principle that the course to be followed must be the least intrusive intervention in the life of the child and her family that is consistent with the paramount concern to protect her from harm and promote her development: s 9(2)(c). Nevertheless, I am comfortably satisfied that placement of Abbey into the parental responsibility of the Minister until the age of 18 is the only acceptable option consistent with the paramount concern. I am also comfortably satisfied that any other order than that proposed would be insufficient to meet the needs of the child: s 79(3). 130For all the reasons discussed, I propose to allocate all aspects of parental responsibility for Abbey to the Minister for Family and Community Services until she turns 18. Reports to the Court 131The Director-General proposes that a report be provided to the Court pursuant to s 82 of the Care Act at 11 months from the date of the final care orders. 132In my view that is appropriate and sufficient. Permanency planning 133I now turn to consider the permanency planning proposed by the Director-General, as set out in the Amended Care Plan. 134I am satisfied that the permanency planning proposed by the Director-General aims to provide the child with a stable placement that offers long-term security: s 78A, and involves the least intrusive intervention in her life and her family that is consistent with the paramount concern to protect the child from harm and promote her development. 135I am also satisfied that the planning meets the needs of the child: s 78A(1)(b), and avoids the instability and uncertainty arising through a succession of different placements or temporary care arrangements: s 78A(1)(c). Disposition 136I make the following final care orders: 1. To the extent that any previous order is inconsistent with the following orders, such previous order is rescinded. 2. I allocate all aspects of parental responsibility for Abbey to the Minister for Family and Community Services until she turns 18. 3. The Department is to prepare after 11 months a written report which complies with s 82(2)(b) of the Children and Young Persons (Care and Protection) Act 1998, and which details the transition of Abbey and settlement in her permanent placement, information as to her general development, and contact with her parents and other people significant to her, and provide it to the Court within 12 months from today. 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: 22 July 2013