Children's Court New South Wales Medium Neutral Citation: Department of Family and Community Services (DFaCS) and Nicole [2018] NSWChC 3 Hearing dates: 26 November 2018 Date of orders: 26 November 2018 Decision date: 26 November 2018 Jurisdiction: Care and protection Before: Judge Peter Johnstone, President of the Children's Court of NSW Decision: The child is in need of care and protection Catchwords: CHILDREN – Care and Protection – whether the child is in need of care and protection: s 71 Children and Young Persons (Care and Protection) Act 1998 Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 Cases Cited: Bell-Collins Children v Secretary Department of Family and Community Services No 2 [2016] NSWSC 853 Briginshaw v Briginshaw 1938 HCA 34 Director General of the Department of Community Services Re Sophie 2008 NSWCA 250 JL v Secretary Department of Family and Community Services [2015] NSWCA 88 Johnson v Page [2007] Fam CA 1235 M v M [1988] HCA 68 Re Alistair [2006] NSWSC 411 Re Henry; JL v Secretary Department of Family and Community Services [2015] NSWCA 89 Re Jayden [2007] NSWCCA 35 Re Tanya [2016] NSWSC 794 VV v District Court of New South Wales [2013] NSWCA 469 Category: Procedural and other rulings Parties: The Secretary The mother The father The child Representation: Mr Samra, solicitor, for the Secretary Ms Tuileva, solicitor, for the child as Independent Legal Representative The mother was self-represented The father was self-represented File Number(s): 2018/00272818 Publication restriction: Pseudonyms have been used in order to anonymise the child and parties Judgment 1. Nicole is an Aboriginal baby who is now 8 months old and was born in New South Wales. The child's mother is Tracy and her father is Henry. 2. A few weeks before the child's birth, Community Services received a pre-natal risk of serious harm report regarding the mother which included her child protection history concerns from Queensland including 1. the apparent history of lack of ante-natal care for the baby; 2. the mother's recent release from prison; and 3. the removal from the mother of an older child by Queensland Child Care Authorities, that child having been restored to the natural father due to the mother's illicit drug use and mental health concerns. 1. A further serious risk of harm report on 8 February 2018, following the birth of the child Nicole, set out the mother's history of ice abuse and the mother's claim to have a personality disorder and a bipolar condition. 2. Two case workers from the CSC interviewed the mother at the Hospital on 9 February 2018. The New South Wales Child Protection Authorities continued to engage with the parents over succeeding months but concerns for the child's safety continued and ultimately it was agreed that the baby would be placed into kinship care under a temporary care arrangement, (TCA). 3. Ongoing concerns for the safety of the child resulted in the Secretary assuming the child into care at the expiry of the TCA on 31 August 2018. The safety concerns are detailed at paragraph 7 and following of the Application commencing these proceedings under the Child and Young Persons Care and Protection Act 1998 (the "Care Act") filed by the Secretary of the Department of Family and Community Services, (DFaCS New South Wales) on 5 September 2018. 4. The proceedings came before the Children's Court at Parramatta on 7 September 2018 when the Court made an interim order allocating parental responsibility to the Minister until further order: Re Jayden [2007] NSWCCA 35 per Ipp JA at 79. 5. The proceedings were mentioned on a number of subsequent occasions at which the parents opposed the making of a finding that the child was in need of care and protection. 6. The matter was listed for an establishment hearing today and came before me for that purpose. 7. The Secretary is represented by Mr Samra, solicitor. The child is represented by Ms Tuileva, solicitor, appointed by the Children's Court as the Independent Legal Representative: s 99 and s 100 of the Care Act. 8. The parents are not legally represented and have not been legally represented during the course of these proceedings. They inform me, however, that they have sought to obtain legal representation but to date unsuccessfully. They therefore appear before the Court today by telephone as self-represented litigants on an unrepresented basis. 9. The Secretary seeks a finding, relying upon various documents, including the Application Initiating Care Proceedings, the Summary of Proposed Plan of 26 September 2018 and the affidavit of the caseworker, Mr Nguyen, sworn on 26 September 2018. This affidavit sets out the history in some detail and I do not propose to go into that history in detail except to say that it clearly documents a history of drug abuse, mental health concerns and a general incapacity on the part of the parents to safely parent a baby. 10. In support of their opposition to a finding the parents filed affidavits which were affirmed on 22 October 2018. These affidavits contain somewhat perfunctory material and address some issues of a factual nature, by way of denial, but they fail to adduce any evidence to refute the issues raised by the Department in the affidavit of Mr Nguyen in any substantive way. 11. The current hearing is an "establishment" hearing. It does not involve the making of final Care orders. The purpose is to establish whether the child is in need of care and protection pursuant to s 71 of the Care Act, such that the proceedings should continue with the child in the interim parental responsibility of the Minister pending an assessment as to whether there is a realistic possibility of restoration to the parents pursuant to s 83(1) of the Care Act: Re Tanya [2016] NSWSC 794 at [70], or whether the Court should make an order dismissing the application pursuant to s 71(2) of the Care Act. 12. It is the Secretary's position that the Court should find that the child is in need of care and protection pursuant to s 71 of the Care Act and that the child should remain in the interim parental responsibility of the Minister. 13. The onus of proof is on the Secretary. The 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 the Department of Community Services Re Sophie [2008] NSWCA 250. 14. The Independent Children's Representative supports the position of the Secretary and submits that the child is in need of care and protection. 15. The parents originally sought an order therefore dismissing the application with the child to be unconditionally restored to their care forthwith, but today they have indicated that they no longer oppose a finding and the establishment of the matter. 16. These are child protection proceedings governed by the Care Act. Decisions in the proceedings are to be made consistently with the objects, provisions and principles provided for in that Act and if relevant with the provisions of the United Nations Convention on the rights of the child, 1989 (CROC): see Re Henry; JL v The Secretary, Department of Family and Community Services [2015] NSWCA 89 at [264] to [268]. 17. There were no submissions to this Court to the effect that it needed to take into account any provision in CROC in the present case such that there was some different requirement, some additional principle or some gloss that required the Court to have particular regard to in determining this case such that I was required to go beyond the Care Act and the case law interpreting that Act and the relevant provisions or in the consideration of the permanency planning proposed. 18. The Care Act is required to be administered under the principle that the safety, welfare and wellbeing of a child is paramount (the paramount concern) s 9(1) of the Care Act. This is often referred to as the paramountcy principle and it prevails over all other considerations, even where it conflicts with the rights or interests of the parents. 19. Additional to the paramountcy principle, the Care Act sets out other particular principles to be applied in the administration of the Act. These principles are set out substantially in s 9(2) and s 10. In this case there are further specific principles that are applicable having regard to the Aboriginality of the child and they are set out principally in ss 11, 12 and 13. 20. Some of those additional principles include the following, I paraphrase the provisions concerned: * Wherever children are able to form their own view they are to be given an opportunity to express that view freely. Those views are to be given due weight in accordance with the child's developmental capacity and the circumstances: s 9(2)(a); see also s 10. * Account must be taken of the culture, disability, language, religion and sexuality of the child and if relevant those with parental responsibility for the child or young person: s 9(2)(b). * Any action to be taken to protect the children from harm must be the least intrusive intervention in the life of the child and its family that is consistent with the paramount concern to protect it from harm and promote its 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). 1. Child protection proceedings have traditionally been conducted in phases: the initial establishment phase and the subsequent "welfare" phase: Re Henry; JL v Secretary Department of Family and Community Services [2015] NSWCA 89 at [36]-[37]. * After a child has been removed from parents, child protection proceedings are required to be established before the Court moves to the welfare phase. Establishment is a statutory precondition to the making of final care orders in the welfare phase of protected proceedings: Re Alistair [2006] NSWSC 411 at [69]. 1. My preference is to describe the second phase as the "placement" phase given the important threshold construct that the Secretary must first address after establishment as to whether there is a realistic possibility of restoration. Only if there is no realistic possibility of restoration will alternative placements be required to be considered as part of the permanency planning, in the welfare or placement of proceedings, in a Care Plan that the Secretary is required to prepare pursuant to s 78 of the Care Act: Re Alistair [2006] NSWSC 411 at [69]. 2. The establishment precondition is satisfied if there has been a finding that there is an existing need of care and protection pursuant to s 71 of the Care Act: VV v District Court of New South Wales [2013] NSWCA 469 at [20]. It does not matter whether the conduct constituting a reason or part thereof for the purposes of s 71 occurred wholly or partly outside New South Wales: s 71A. 3. Section 71(1) of the Care Act relevantly provides: "Grounds for Care orders: 1. The Children's Court may make a care order in relation to a child or young person if it is satisfied that the child or young person is in need of care and protection for any reason including without limitation any of the following: (a) there is no parent available to care for the child or young person as a result of death or incapacity or for any other reason, (b) the parents acknowledge that they have serious difficulties in caring for the child or young person and, as a consequence, the child or young person is in need of care and protection, (c) the child or young person has been, or is likely to be, physically or sexually abused or ill-treated, (d) subject to subsection (2), the child's or young person's basic physical, psychological or educational needs are not being met, or are likely not to be met, by his or her parents, (e). the child or young person is suffering or is likely to suffer serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which he or she is living." 1. The rationale for the requirement that the protective proceedings be established has been described as a safeguard against arbitrary intervention by the State into the lives of children and their families: Re Alistair [2006] NSWSC 411 at [64]-[65] per Kirby J. 2. The establishment issue is a threshold issue: Re Alistair at [65]. It is not concerned with the issue of restoration nor with considerations of unacceptable risk of harm, nor with the amelioration of risk and scaffolding considerations as dealt with in cases such as Re Tanya, M and M, Johnson and Page and Bell-Collins Children v Secretary Department of Family and Community Services No 2 [2016] NSWSC 853 at [26]. These are properly matters for the placement stage of protection proceedings. 3. The Court is not bound by the rules of evidence unless it so determines: s 93(3). Nevertheless the Court must draw its conclusions from material that is satisfactory in a probative sense so as to avoid decision-making that might appear capricious, arbitrary or without foundational material. JL v Secretary Department of Family and Community Services [2015] NSWCA 88 at [148]. 4. The Secretary's case is quite simple, having regard to the historical concerns that I have outlined, which are repeated and set out in the Summary of Proposed Plan, namely the mother's historical drug use and other issues of mental health and domestic violence that were present in this family. 5. A lack of insight into the child protection concerns and a lack of preparedness to engage with relevant authorities, notwithstanding those clear historical concerns, each of which on its own would justify a finding, but which taken together clearly justify a finding that this child is in need of care and protection. 6. As I said the parents did not make any submissions contrary to the Secretary's position today and have effectively conceded that the matter should be established and that the baby is in need of care and protection. 7. In making my findings and reaching my conclusions it is important to note that the decision made here is a preliminary finding not a final determination. What is required therefore are minimum findings and conclusions that determine whether the child is in need of care and protection requiring these proceedings to consider into a placement phase or not. 8. Having regard to the parents' concession that the child is in need of care and protection I find accordingly that the child is in need of care and protection having regard to the matters to which I have adverted. 9. I have also had regard to the specific principles that relate to Aboriginal and Torres Strait Islander children principally set out in ss 11, 12 and 13 of the Care Act and I have taken them into account. 10. Similarly, I have had regard to the provisions of s 9(2)(b) of the Care Act and I have taken into account the culture, disability, language, religion and sexuality of the child including her Indigenous heritage and the fact that her father has South African heritage. 11. I have had regard to the provisions of s 9(2)(a) of the Care Act. In my assessment the child is clearly unable to form a relevant view having regard to the age and circumstances of the child. To the extent that views have been expressed on the child's behalf I have given those expressions due weight in accordance with the child's developmental capacity in the circumstances. 12. I have had regard to the provisions of s 9(2)(c) of the Care Act which requires that action to be taken to protect a child from harm must be the least intrusive intervention in the life of the child and the family that is consistent with the paramount concern to protect the child from harm and promote the child's development. In the present case the decision I make is consistent with that paramount concern and s 9(1) of the Care Act. 13. Finally, in reaching my decision, making my findings and drawing my conclusions, I have drawn from material that it is in my assessment satisfactory in the probative sense so as to avoid decision making that might appear capricious, arbitrary or without foundation or material and I have had regard to the requirements that the Secretary must prove his case on the balance of probabilities, s 93(4) of the Care Act. In that regard I have also taken into account the principles set out in the High Court decision in Briginshaw v Briginshaw [1938] HCA 34 in determining whether the burden of proof on the balance of probabilities has been achieved. 14. I am satisfied that intervention by the State into the life of this child and her family was and continues to be entirely justified at least until a workable plan for the child's future, safety, welfare and well-being can be worked out with the child protection authorities in consultation with the parents. 15. For these reasons I am satisfied the child is in need of care and protection under s 71 of the Care Act. 16. The matter should now proceed to a placement phase, I note that once a child or young person is found to be in need of care and protection it becomes the responsibility of the Secretary to prepare a Care Plan, s 78 of the Care Act. I therefore direct the Secretary to prepare and file and serve a Care Plan on or before 21 December 2018. The parents, if they so wish, are to file any affidavits in reply on or before 1 February 2019. The matter will be listed again on 11 February 2019 for a response to that Care Plan. 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: 01 February 2019