Children's Court New South Wales Medium Neutral Citation: DFaCS and Boyd [2013] NSWChC 9 Hearing dates: 5 July and 13 September 2013 Decision date: 13 September 2013 Jurisdiction: Care and protection Before: Judge Peter Johnstone, President of the Children's Court of New South Wales Decision: No realistic possibility of restoration to the parents; permanency planning not approved because of the inadequacy of the cultural plan Catchwords: CHILDREN - Care and Protection - Aboriginal baby assumed into care at birth - whether a realistic possibility of restoration existed - allocation of parental responsibility - permanency planning - inadequacy of cultural plan Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 Cases Cited: DFaCS re Oscar [2013] NSW ChC 1 DFaCS re Gail and Grace [2013] NSWChC 4 Category: Interlocutory applications Parties: Director-General for the Department of Family and Community Services (NSW) - (DFaCS) Kylie (Mother) Phillip (Father) Eva (Maternal step aunt) James (Maternal uncle) Boyd (the Child) Representation: Mr N Amos, solicitor for the Director-General Ms N Shepherd, solicitor for the mother Dr P Antonuccio, solicitor for the father Mrs K Wooi, solicitor for the child File Number(s): 2013/406 Publication restriction: Pseudonyms have been used in order to anonymise the child and parties Judgment Introduction 1The Director-General of the Department of Family and Community Services, DFaCS, seeks final care orders under the Children and Young Persons (Care and Protection) Act 1998 (the Care Act) in respect of Boyd, a 1 year old baby. 2The baby's mother is Kylie, (25). The father is Phillip, (32). The baby is identified as Aboriginal. 3Shortly after the baby was born, he was assumed into care by the Department under s 106A of the Care Act following which the Children's Court made interim orders placing him under the parental responsibility of the Minister until further order. On 13 September 2012, the Children's Court determined that the baby was in need of care and protection, pursuant to s 71 of the Care Act. 4The Department prepared a Care Plan in which the Director-General has made an assessment that there is no realistic possibility of restoration of the baby to his parents and proposes by way of permanency planning that he be placed in out-of-home care till the age of eighteen. Background 5To fully appreciate why the Department assumed this baby into care at birth and why it proposes a permanent foster care arrangement, some understanding of the history is required. 6This baby, Boyd, is the seventh child born to this mother. The older six siblings have all been removed and placed into long term care due, in summary, to concerns relating to the mother's mental health, domestic violence and her relationships with partners, including various fathers of the various children. 7The six older siblings are a boy now nearly 9, a girl now aged 7, a girl now aged 6, a girl now aged 5, a boy now aged 3 and a boy now aged two and a half. They are placed with various relatives including the maternal grandmother and in one case, a father. 8It is proposed that Boyd be placed with his step-maternal aunt and uncle, Eva and her partner, James, together with Boyd's full sibling, the boy now aged two and a half. 9The proceedings have come before me for final orders. The mother and father, however, oppose the permanency planning proposed by the Department for Boyd and seek restoration of him to them. The principal issue for determination, therefore, is whether there is a realistic possibility of restoration to them. I have set out the applicable legal framework in other recent judgments including, for example, DFaCS re Oscar [2013] NSWChC 1 and I do not propose to traverse those principles in detail in these reasons. 10The essential question for my determination is whether restoration would pose an unacceptable risk of harm to be assessed from the accumulation of factors proved according to the relevant civil standard. 11It is for the Court to accept or reject the assessment of the Director-General that there is no realistic possibility of restoration having regard to: (a) the circumstances of the child and (b) the evidence that the parents are likely to be able to satisfactorily address the issues that led to the removal of the child from their care. The parents' case 12The Department has presented evidence of a long and detailed history relating to the parents, which clearly demonstrates their historical unsuitability to be parents of young children. That evidence comprises details of the mother's extended history of psychological disorder, transient homelessness and a series of violent relationships. There is also evidence of substance abuse. 13The parents have been in a relationship since approximately 2009. That relationship, however, has not been continuously harmonious as there was a break-up in August 2011 involving domestic disharmony, leading to the mother taking out a domestic violence order against the father. Nevertheless, they resumed their relationship and Boyd was born in August 2012. 14The parents contend that they have now settled into a stable, permanent relationship in which there exists a caring, nurturing environment free of violence and discord and that the mother is now mentally stable and free of any drug dependence. 15The mother has undertaken various courses, as has the father, and they have developed various strategies to prepare them for parenting this baby in an appropriate and competent way free of unacceptable risk of harm. 16In short, the parents say that the problems of the past have all been addressed and they are now capable of parenting this baby adequately in a risk free environment that is safe and conducive to the baby's welfare and wellbeing. 17The mother said, for example, in her affidavit made on 7 June 2013: "My mental health is stable. I completed a Dialectical Behaviour Therapy Course (DBTC) at Maitland last year. I attended the DBTC weekly for ten weeks finishing on 15 November 2012... The course provided me with long-term strategies and material to work with. I read over the material I was given at the DBTC once per week. I have the major points written on a whiteboard which is placed in my bedroom. I also listen to meditation music that was given to me by my sexual assault counsellor. I use the strategies I learnt at DBTC to control my emotions and stay in control. I am feeling extremely positive. I had a benign cancer on my right thigh removed on 6 March 2013. I am no longer taking pain medication for my leg. I have an appointment to see my surgeon, Doctor HS on 27 June 2013. My doctor is concerned that the cancer has grown back as there is a new lump starting to grow. Phillip and I have attended two sessions of relationship counselling with... who is a social worker at Community Health. We have been talking about strategies to handle arguments. One strategy that we use is an argument diary. Instead of having a verbal argument, Phillip and I write down our concerns and problems and then the other person replies. This allows us to think about why we are angry and rationalise our thoughts. Phillip and I came up with this strategy on our own. The counsellor also suggested walking away from conflict as well as 'moving away', which involves one party going to another room and cooling off before talking out the issue. I have also been seeing a sexual assault counsellor. I have seen her since January 2012, fortnightly and then monthly when I was doing DBTC. ... The sexual assault counselling has been very helpful... Phillip and I are currently enrolled in the Triple P Parenting Course at... We have learnt a lot about time out and quiet time. Quiet time is a strategy where you take the child away from what they are doing and explain to them what they are doing wrong and what they should be doing..." 18In his evidence, the father also described their relationship as positive and as being less tense involving less arguments and Kylie, the mother, as being much happier. 19It was submitted on behalf of both the mother and the father by their legal representatives that they had made sufficient progress to demonstrate that the possibility of restoration was no longer a matter of fancy, but was realistic. Findings and conclusions 20It is true that the parents have taken some steps to address the historical issues that create an unacceptable risk of harm to their child, Boyd. It is also true that their relationship appears to be more stable and less fractious, and there is no evidence of the domestic disharmony by which it was previously attended, or of any drug taking. 21The Department carries the onus of proving that there is no realistic possibility of restoration. It has led evidence that the mother has not, for example, obtained sufficient insight into her shortcomings as a parent nor has she adequately addressed her underlying psychological issues. The evidence clearly establishes that the mother continues to experience symptoms of borderline personality disorder. Some of these, for example, include her exaggeration or misrepresentation of factual situations such as her swollen brain, cancer coming back in her leg, her mother being terminally ill, et cetera. These are all manifestations of attention-seeking behaviour, that is, of ongoing borderline personality disorder, which has not abated to the extent that the parents would have me believe. 22There is also the failure on the part of the mother to take the medication that was recommended to her by her doctor and her explanation of not being able to get back to see the doctor is specious. 23As recently as April 2012, the psychologist, Ms S gave evidence in the Children's Court in connection with the removal and placement of Boyd's older sibling. Ms S confirmed the opinion set out comprehensively in her report dated 12 November 2010. There are some very troubling features of that report, it seems to me, that remain unaddressed. She said, for example: "This is a very high risk family. Kylie has been known to DoCS since childhood, having suffered repeated severe and multi abuse and having severe behavioural problems in childhood, adolescence and early adulthood. Up until recently, Kylie's lifestyle has been chaotic and she has involved herself in multiple short-term relationships with a variety of dysfunctional, and sometimes, violent partners. However, Kylie has often been quite violent as well in these relationships. She also has a history of making dubious reports of alleged abuse of her by others. Kylie has a past diagnosis of borderline personality disorder which is consistent with her early history of trauma and neglect and with her behavioural and relationship history... Both Kylie and Phillip acknowledge past problems with Kylie's parenting and feel that she is now more emotionally stable and more settled. However, they still tend to minimise past problems even in their own relationship and paint a very idealised picture of their current situation. For example, they deny any past difficulties in their relationship despite a turbulent period last December where Kylie reportedly propositioned two flatmates. As well, they deny any gambling problems although there are suspicions from workers that this may be an issue given their strained financial position in the midst of Phillip earning reasonably good money over the last ten plus years. Kylie also minimises her past severe substance abuse problems. Both parents lack insight into the severity of Kylie's personality disorder and its propensity to derail her emotional stability in the future. Phillip is somewhat naïve in his understanding of these problems and views all of Kylie's difficulties as being behind her... While there is evidence that his relationship with her has contributed to her current emotional stability in a major way, the relationship is still in its early days... and is still idealised by both of them. Kylie has very little insight into her past behaviour, emotional state. Though she pays lip service to past poor functioning, Kylie tends to blame others for this. She seems quite insightless about the severity of her past dysfunction and her parenting incapacities. She displays a very poor attachment to her other five children, although the fifth child, being the 3 year old, is more special to her because of his link to Phillip where he is currently idealised. Thus while things appear to be going reasonably well... the propensity for a relapse in Kylie's emotional stability is high... Kylie still has borderline personality disorder (a life long condition) and is thus vulnerable to relapse to her more chaotic emotional/behavioural symptoms". 24It was in that context that Ms S recommended that the mother undergo a two-year Dialectic Behavioural Therapy (DBT) Course but she did not undertake that course. Instead, she underwent a ten-week course, the nature of which and the benefits of which remain doubtful. 25The mother and father would have the Court believe that she was not accepted into the two-year course because her condition was not sufficiently serious. But that was not the view of Ms S. As it emerged, I can conclude that the mother downplayed her condition when she underwent the assessment for the DBT course because she did not even present any of her documentation or provide any historical detail to the assessor. 26As previously noted, she continues to exhibit symptoms of borderline personality disorder and I am satisfied that that condition subsists today. 27This speaks to me of ongoing risk until a sufficiently longer period of time has passed. What one would like to have seen in this case is an up-to-date assessment from a qualified psychologist like Ms S following the two year DBT course, which might give the Court some assurance or comfort that the risk of the mother relapsing into her previous chaotic condition and emotional instability has demonstratively stabilised over a sufficient period of time such that the risk of harm is no longer unacceptable. 28There is another piece of cogent evidence which came from Mr J, who is the proprietor of the non-government organisation which has responsibility for case management of Boyd, on delegation from the Department. It supervises contact and the placement. Whilst Mr J felt the mother had made significant progress, even he considered that she still has some way to go. 29In my view, therefore, the evidence establishes to the requisite civil standard of proof that the parents continue to display insufficient insight into the problems of the past which continue to pose unacceptable risk of harm at present if restoration were to occur. Whilst the parents have undoubtedly made some progress, they simply have not had the time to sufficiently progress their improvement over a sustained period such that the Director-General has comfortably demonstrated that it remains too soon to allow these parents to have responsibility for the care of a baby. 30I find that the parents are not likely to be able to satisfactorily address the issues that have led to the removal of the child from their care at the present time. That their situation may continue to improve remains a mere hope, and in that sense, continues to be sentimental and idealistic, based on unlikely hopes for the future. 31Having regard to those circumstances, and to the circumstances of Boyd, I am comfortably satisfied that I should accept the assessment of the Director-General that at the present time there is no realistic possibility of restoration of Boyd to the parents. 32I do not propose to proceed at the moment to make an order allocating parental responsibility or to expressly find that the permanency planning for the child has been appropriately and adequately addressed. What emerged today was some evidence that the carers have recently moved. 33It will not have been lost on the parties that I was particularly impressed with the evidence of Mr J from the non-government organisation and the care and attention that he was paying to the parents as to contact and in particular as to the cultural development of Boyd. 34I am left in the position where I am really uninformed as to what is proposed in relation to contact and how that will be arranged in the circumstances. 35More particularly, my impression at the moment is that the principles under s 13 of the Care Act have not been appropriately addressed by the Department. I have had cause to say something about this issue recently in my decision in DFACS v Gail and Grace [2013] NSWChC 4, in which I took the opportunity to be highly critical of the Department's attention to the s 13 principles, and I would have to say that, prima facie, I have a similar view in relation to this case. For that reason, at the moment, I propose to reject the permanency planning and I will adjourn while the issues of contact and cultural planning that under s 13, including a proper cultural plan, are more fully and appropriately addressed. 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: 07 April 2014