Re Mary [2014] NSWChC 7

Children's Court New South Wales

Medium Neutral Citation: Re Mary [2014] NSWChC 7 Hearing dates: 13 November 2014 Decision date: 21 November 2014 Jurisdiction: Care and protection Before: Children's Magistrate Graham Blewitt AM at Port Kembla Decision: Application dismissed Catchwords: CHILDREN - Care and Protection - Interim orders - powers to amend - whether s 90 application required Legislation Cited: Children and Young Persons (Care and Protection) Act Sections 69,70A and 90 Cases Cited: Re Timothy [2010] NSWSC 524 Category: Interlocutory applications Parties: Department of Family and Community Services The Mother The Father The Child Representation: Ms Askew for the Secretary Mr Hill for the mother Mr Clowry for the father Ms Lobegeier - agent for Ms Ung for the child (ILR) File Number(s): 2014/43 Publication restriction: Pseudonyms have been used in order to anonymise the children and parties

Judgment

BACKGROUND 1These proceedings relate to a young child, Mary Smith, who was born on 27 May 2012. Care proceedings were commenced by Family and Community Services (FaCS) on 23 July 2014 in circumstances where the Department held concerns that the child's mother, Kerry Smith, was not protective of the child, following criminal charges being brought against the child's father, Neil Smith, in relation to allegations that he had sexually assaulted his nine year daughter, Sally Smith, in April 2013. 2Very briefly, Sally's parents were separated and Sally and her brother regularly spent weekends with her father in Narooma. In October 2013 Sally disclosed to her mother that the father had been sexually assaulting her over a three to four year period, commencing when she was in Year 1 at school, and that the last incident had occurred during the last weekend contact visit that had occurred in April 2013. The matter was reported to the police and following an investigation the father was charged with two counts of aggravated sexual assault, alleging assaults between 1 March and 30 April 2013. 3In light of these circumstances Departmental caseworkers made a home visit to the parent's home on 9 January 2014 to assess Mary's welfare. A safety plan was developed, and accepted by the parents, that involved the mother supervising all contact between the father and Mary. 4A safety review was conducted on 3 June 2014 following the father being classified as a person who may cause harm to children (PCH). As a consequence the mother agreed to leave the family residence and to reside with her aunt and uncle, and that all contact between Mary and her father would be supervised by the maternal aunt and uncle. 5In July 2014 the mother breached the safety plan of 3 June 2014. She deceitfully informed her aunt and uncle that the Department had authorised her and Mary to return to reside with the father. No such authorisation had been given. The mother left the residence of her aunt and uncle and returned with the child Mary to reside with the child's father at his residence. 6On 18 July 2014 Departmental case workers made a home visit to the father's residence, where the mother and Mary were sighted. The mother denied that the father was present in the premises. Shortly after, the father emerged from another room, not realising the presence of the caseworkers. The father became aggressive. It subsequently came to light that when the mother was living with her aunt and uncle, she had told them that she was taking Mary to visit the maternal grandparents, however, that was not the case. Instead the mother was staying with the father during those periods, with Mary. This was in breach of the safety plan. 7In the circumstances, the Department caseworkers formed the view that the mother was not complying with the safety plan, and as a consequence, Mary was at risk of harm, by reason of the unresolved criminal charges against the father, involving allegations that he had sexually assaulted another daughter. These care proceedings were lodged by way of an initiating application filed on 23 July 2014.