Department of Family and Community Services and Nathan [2018] NSWChC 1

Children's Court New South Wales

Medium Neutral Citation: Department of Family and Community Services and Nathan [2018] NSWChC 1 Hearing dates: 30 October 2017, 19 & 20 March 2018 Date of orders: 20 March 2018 Decision date: 20 March 2018 Jurisdiction: Care and protection Before: Judge Peter Johnstone, President of the Children's Court of NSW Decision: There is no realistic possibility of restoration to the mother Catchwords: CHILDREN – Care and Protection – whether there is a realistic possibility of restoration Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 Cases Cited: Briginshaw v Briginshaw [1938] HCA 34 In the matter of Campbell [2011] NSWSC 761 Re Tanya [2016] NSWSC 794 at [70] Category: Principal judgment Parties: The Secretary of the Department of Family and Community Services (DFaCS) The mother The child Representation: Mr R Clarke, solicitor, for the Secretary Ms K Reynolds of counsel, instructed by Mr B Samuel, solicitor, for the mother Ms L Wells, solicitor, Independent Legal Representative for the child (ILR) File Number(s): 2017/00198942 Publication restriction: Pseudonyms have been used in order to anonymise the child and parties

Judgment 1. These care proceedings were commenced by the Secretary of the Department of Family and Community Services (DFaCS) under the Children and Young Persons (Care and Protection) Act 1998 following the removal of Nathan from the care of his mother on 4 June 2017 when he was assumed into care at the Royal Prince Alfred Hospital, Camperdown following a critical incident when the baby, then aged three months, was at serious risk of death, as a result of which the mother has been charged with various criminal offences. 2. Nathan is an Aboriginal child now aged one. His father died of a drug overdose on 5 January 2017. 3. The Children's Court placed Nathan under the parental responsibility of the Minister, then on 6 July 2017 made a finding that he was in need of care and protection pursuant to s 71 of the Care Act. A Care Plan for Nathan was prepared on behalf of the Secretary and filed on 28 September 2017. 4. The Secretary assessed that there is no realistic possibility of restoration of Nathan to his mother and proposed a permanency plan for Nathan involving him living permanently under the care of his paternal grandparents, and that they be allocated parental responsibility other than for contact, which aspect was to be allocated to the Minister. 5. Those grandparents are already caring for two of Nathan's older siblings. A boy almost 9 years of age and a girl 8 years of age. 6. The mother opposed the permanency planning proposed and sought restoration of Nathan to her care. Accordingly the dispute came on for hearing before me, commencing on Monday 30 October 2017 (Day 1). 7. Mr R Clarke, solicitor, appeared for the Secretary. The mother was represented by Ms K Reynolds of counsel, instructed by Mr B Samuel, solicitor. The child was represented by Ms L Wells, solicitor, as the Independent Legal Representative (ILR). 8. The hearing was scheduled to continue on Wednesday 20 December 2017 (Day 2) and Thursday, 21 December 2017 but due to Mr Clarke being ill those hearing dates were vacated. The hearing resumed on Monday 19 March 2018 (Day 3) and continued into today, Tuesday, 20 March 2018 (Day 4) when the evidence was concluded and the legal representatives made their submissions. 9. The evidence consisted of the various affidavits filed on behalf of the parties, cross-examination of some of the witnesses by way of oral evidence, and a number of Exhibits. 10. My reasons for judgment follow.