Department of Family and Community Services (DFaCS) and Bridget [2019] NSWChC 4

Children's Court New South Wales

Medium Neutral Citation: Department of Family and Community Services (DFaCS) and Bridget [2019] NSWChC 4 Hearing dates: 30 January 2019 and 20 March 2019 Date of orders: 23 April 2019 Decision date: 23 April 2019 Jurisdiction: Care and protection Before: Children's Magistrate Sheedy Decision: Leave granted to bring an application for leave to vary/rescind the order Catchwords: CHILDREN – Care and Protection – Leave to vary or rescind a care order Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 Children and Young Persons (Care and Protection) Amendment Act 2018 Cases Cited: Dempster v National Companies and Securities Commission (1993) 9 WAR 215 In the matter of Campbell [2011] NSWSC 761 Re M (No 6) NSWSC 170 S v Department of Community Services [2002] NSWCA 151 Category: Procedural and other rulings Parties: The Secretary The Mother The Child Representation: Mr McLachlan, solicitor, for the Secretary Ms Lenz, solicitor, for the mother Ms Wells, solicitor, for the child as Independent Legal Representative (ILR) File Number(s): 2018/352468 Publication restriction: Pseudonyms have been used in order to anonymise the child and parties

Judgment

Background 1. Bridget Morrison was born in 2010 and she is an Aboriginal child. 2. On 1 September 2014 Bridget was removed from the care of her mother, Amy Potter and her mother's partner, Kenneth Lloyd. 3. The mother and Mr Lloyd began a relationship in February 2014 and they began living together in July 2014. They had a child Maisie Loyd, who was born in 2016 and they remained living together until Mr Lloyd was incarcerated in 2017. 4. Bridget was placed with Aboriginal foster carers Karen and Geoff by the non-government organisation ('NGO'), Kari, on 2 September 2014, when she was 4 years old. Bridget remains in that placement. Kari, is the NGO the Secretary of the Department of Family and Community Services ('Community Services') has contracted with to case manage Bridget's case. 5. On 4 September 2014 the Secretary brought a Care Application. Bridget's natural father, Sam Morrison, chose to play no part in the proceedings just as he had chosen to play no part in Bridget's life since she was one year old. 6. During the care proceedings Bridget was represented by her Independent Legal Representative, Ms Wells ('the ILR'). 7. It is not in dispute that the reasons for the Secretary's intervention in 2014 and the care proceedings that arose from the intervention were: 1. The mother's long-standing drug use; 2. Mr Lloyd's long-standing drug use; 3. Criminal activity of both the mother and Mr Lloyd related to drug use; 4. Mental health issues that were not being addressed; 5. The unhygienic state of the home; 6. Lack of appropriate supervision and neglect of Bridget; and 7. Bridget's developmental delay not being addressed in the home environment. 1. Ms Wells also highlighted that, in the initial Care Proceedings, it was established that the mother failed to prioritise Bridget's special needs. I accept that given the other issues in the home, a conclusion must follow that Bridget's needs were not prioritised by the adults charged with her care. 2. The Children's Court made a finding that there was no realistic possibility of restoration to either the mother or Mr Morrison and on 14 July 2015 made a Final order placing Bridget under the parental responsibility of the Minister until she attained the age of 18 years. In making that order the Court approved the Care Plan for Bridget providing for long term out-of-home care, there being no family members able to provide suitable care. 3. The Secretary's evidence is that Bridget's culturally appropriate placement was not originally intended to be a long term placement however, at some stage it was changed to a long term placement. The reports of the placement and Bridget's development in that placement are all positive. 4. An assessment of Bridget undertaken in June 2017 indicates that Bridget is functioning in the very low range of intellectual ability and her adaptive functioning is in the extremely low range. She has a Mild Intellectual Disability. 5. Shortly after Maisie's birth in April 2016 Community Services completed a safety assessment and assessed the risk to Maisie as "moderate." Maisie's file was consequently closed by Community Services. 6. On 23 September 2016 the mother filed an Application pursuant to s 90 of the Children and Young Persons (Care and Protection) Act 1998 ('the Act') seeking leave to bring an application for restoration of Bridget to her care. The Application was dismissed by the Children's Court on 24 June 2017. 7. Sometime later either Kari, or Community Services, or both, decided a restoration viability assessment should be undertaken given: 1. The mother and Mr Lloyd were working with Community Services; 2. The mother was working with all services; 3. The mother was engaged in drug and alcohol counselling; 4. The mother reported being drug free since July 2015; 5. The mother completed MERIT (Magistrates' Early Referral into Treatment) in 2014; and 6. The safety assessment after the birth of Maisie assessed the risk as moderate. The family engaged in Brighter Futures and there were no concerns and no Risk of Serious Harm ('ROSH') reports made. The parents were providing what Community Services considered to be "safe parenting" to Maisie. 1. Ms Miller, an independent assessor, was engaged to undertake an assessment of the viability of restoration and she began that assessment in early 2017. 2. On 22 April 2017 Mr Lloyd perpetrated a serious assault on his neighbour whom he had invited to a party at his and the mother's home. It was actually the mother who found the neighbour and called the ambulance. The attack was described by the sentencing judge as ferocious and persistent. Since this offence Mr Lloyd has remained in custody. 3. On 10 May 2017 Ms Miller provided her report and concluded that she would have supported immediate restoration had it not been for the assault Mr Lloyd perpetrated on his neighbour on 22 April 2017. Instead she recommended that restoration be delayed for six months to allow the mother to demonstrate she can adjust to the altered circumstances, with Mr Lloyd incarcerated. In her report she stated: "Due to the seriousness of this incident, Amy has asked Kenneth to leave the family home and reside elsewhere, if he is bailed. Amy acknowledges that Kenneth is still an important part of both Maisie and Bridget's life but after being charged with the assault she does not want him to be a part of their day to day lives… Amy has clearly articulated that her children are her primary focus." 1. The focus of the assessment was on the changes the mother and Mr Lloyd had made and much of it was based on self-reporting. There was no assessment of Bridget's attachment to her long term carers and no consideration of the effect on Bridget of being removed from her long term carers. Ms Miller stated in her report that she was impressed by the couple being "open and honest" with her. Mr Lloyd told her he had not used drugs for twelve months. This statement has proven to be false. 2. On 29 November 2017 Kari and Community Services began a course of unsupervised and increasing contact between Bridget and the mother. 3. On 15 January 2018 Ms Miller provided her 'Addendum Restoration Viability Assessment for Bridget Morrison.' In this report Ms Miller recommends restoration to the mother with careful transition planning "to avoid any further instability for Bridget." She stated: "Amy and Kenneth have been very clear about their intentions to maintain a relationship and for him to return to the family home, if approved. Amy has stated on multiple occasions 'the children come first' and she will not do anything to jeopardise the restoration of Bridget or the safety of the girls. Kenneth has supported this by saying he will only return to the home if it is approved by the appropriate authorities. Kenneth has committed a serious assault while under the influence of alcohol. He has taken responsibility for his actions and has confirmed his intentions to address the violent behaviour and his long term marijuana use. He has no history of violence or of alcohol misuse and has stated he has no intention of drinking alcohol again in the future. Prior to Kenneth returning home a risk assessment is recommended to be completed. This assessment should include specific information from the rehab provider regarding his engagement and commitment to recovery, along with urinalysis results from the same period. Similarly, in relation to the violent offenders' program." 1. The addendum to the assessment does not consider the attachment of Bridget to her current carers nor is there any assessment of the mother's insight into the risks posed by Mr Lloyd. 2. Mr Lloyd was sentenced by the District Court on 19 June 2018 to a term of imprisonment for 5 years and 3 months for recklessly causing grievous bodily harm. His sentence expires in August 2022 although he is eligible to apply for release on parole on 4 May 2020. The mother was in court when Mr Lloyd was sentenced and she heard the sentencing judge's remarks which included the following: "The victim remained at the offender's premises for about an hour before deciding to return home. As he walked along the footpath on the street, the offender came up behind him, put his left arm around the victim's neck and placed him in a headlock whilst at the same time holding a knife in his right hand pointing towards the victim's right eyebrow. The offender said words to the effect, "don't say a fucking word, just keep walking". The offender began walking the victim towards the victim's house was still holding the victim in a headlock. The victim walked along with the offender fearing that he would be stabbed if he did not comply with his instructions. When Ms Potter "attended the victim's home and found him in a semiconscious state covered in blood on the floor of his bathroom there was a significant quantity of blood throughout the house. She called 000 and the police and paramedics attended. The victim was taken to Westmead Hospital where he remained sedated for three days." 1. The Judge recorded that the victim was treated for the following injuries: "(a) various facial lacerations requiring staples including a wound running from just beneath the left side of his nose through the entire height of his top lip; (b) full thickness lacerations to upper and lower lips; (c) missing two teeth; (d) scalp lacerations requiring sutures; (e) left eye, swollen, shut; (f) bruising to arms and knees; (g) fractured eye socket, nasal bone and maxillary arch; and (h) two fractured ribs with moderate hemothorax." 1. The Judge continued: "Included in the Crown bundle are photographs of the victim. The first of these depicts him on his back; he is, it appears, intubated; there is dried blood around his mouth; there is dried blood around his face, both eyes are swollen, his left eye is bruised; there are lacerations covered by some sort of dressing above the left eye in the right eye and toward the top of the right side of his forehead." 1. The Judge considered Mr Lloyd's extensive criminal record noting that his offences are predominantly but not solely property and dishonesty offences. His Honour also made some remarks about Mr Lloyd's drug and alcohol use: "When he gave evidence he told me that he accepted the history attributed to him in the psychologist report to which I am to come. He reiterated that he had little memory of the incident, he expressed remorse. He noted that the victim was his friend; he said it would not have happened had he not been intoxicated. He spoke of his experiences with drugs and his abuse of alcohol… … It would seem, when I look at his criminal history and compare that to the history attributed to him by the psychologist, that he has suffered the burden of drug use to which he has resorted by choice." 1. On 25 May 2018 non-prescribed drugs were detected in Mr Lloyd's urine and as a consequence he was restricted to 'box visits'. Subsequently non-prescribed drugs were also detected in custody on 9 December 2018 and 12 December 2018. 2. On 3 October 2018 in a document entitled 'Restoration Report' Kari recommended restoration of Bridget to the mother. It was noted in the Restoration Report that Bridget started to have unsupervised contact with her mother on 29 November 2017 and that this decision to change the contact regime was made jointly by Community Services and Kari. Attached to the report are what is described in the report as a "list of the dates of contact visits since 2014 and a brief overview of restoration contact visits (my emphasis) that have occurred since 29 November 2017." The Restoration Report also notes that Bridget had been having ongoing telephone contact with Mr Lloyd which was facilitated by the mother. 3. On 14 November 2018 the Secretary lodged an Application pursuant to s 90 for rescission or variation of a Care order, asking the Children's Court to grant leave for an application to rescind the order of 14 July 2015 of parental responsibility to the Minister and replace it with an order of parental responsibility to the mother, solely, until Bridget attains 18 years of age ('the s 90 Application'). 4. By the time the s 90 Application was lodged Bridget was having unsupervised contact with her mother every Wednesday from 3pm to 8pm and every weekend from Friday to Sunday and approximately half the school holidays. 5. In the affidavit in support of the Application the Community Services caseworker stated the following position: 1. Due to the incident leading to Mr Lloyd's current incarceration appearing to be isolated at the time, and due to the recognition that Mr Lloyd is significant to Bridget and Maisie, FaCS and Kari have not previously requested the mother to cease her relationship with Mr Lloyd; 2. Contact between Bridget and Mr Lloyd "does not appear to be unreasonable"; and 3. Given Mr Lloyd's recent drug use in custody "Community Services and/or Kari will need to hold further conversations with the mother." 1. On 9 December 2018 Mr Lloyd moved correctional facilities to the Compulsory Drug Treatment Correctional Centre located within the grounds of Parklea Correctional Centre. At the time of his admission a case note reports that; 'Mr Lloyd made admissions to recent long term bupe use whilst in custody." (Bupe is a reference to the drug buprenorphine.) The mother sought consent from Kari to take Bridget with her and Maisie's regular visits to Mr Lloyd at the Correctional Centre. 2. In her affidavit filed 15 January 2019 the mother attested that: * Bridget considers Mr Lloyd to be her father. * From the date of his arrest in May 2017 until December 2018, whilst Mr Lloyd was in custody Bridget had weekly telephone contact with Mr Lloyd. * She continues to be in a relationship with and have contact with Mr Lloyd whilst he is incarcerated. * She "almost always" takes Maisie to visit Mr Lloyd in gaol "so that she can continue to know and have a relationship with her father". * She acknowledges the assault on the neighbour was severe and she does not condone it but she stated it was out of character and that with the assistance of drug and alcohol counselling and violent offender programs in prison, Mr Lloyd will be able to be rehabilitated. * Because of the severity of the assault and because she wants to ensure her daughters are safe, she and Mr Lloyd have planned for him to reside with his mother when he is released in May 2020. She understands, she said, FaCS will need to complete a risk assessment before Mr Lloyd is able to live with her and the children. She stated that she will abide by the outcome and recommendations of that risk assessment. * She was surprised and disappointed to hear the Mr Lloyd tested positive for drugs in gaol. 1. On 30 January 2019 the s 90 Application was listed for hearing on the issue of whether leave should be granted to the Secretary to bring the Application. The Application for leave was opposed by the ILR. 2. At the hearing on 30 January 2019 it was clear that the mother and Mr Lloyd remained in a committed relationship and planned for that relationship to continue. I took the view that given the Court was considering giving leave to restore the child to her mother who was in that committed relationship that there was insufficient evidence in relation to him to properly consider the issues before the Court. (The sentencing judge's remarks had not been filed for the 30 January 2019 hearing.) An adjournment was sought and granted in order to remedy the lack of evidence in relation to Mr Lloyd and the matter was adjourned to 20 March 2019. 3. On 12 March 2019 the mother swore a further affidavit in which she stated: * She ended her relationship with Mr Lloyd on 30 January 2019 telling him she did so because of the offence in 2017 and his drug use in gaol was standing in the way of having Bridget returned to her care. She said that Mr Lloyd understood that the children come first and he accepted this. * She is committed to herself and Mr Lloyd both living their lives separately from now on. * She wishes to retain a supportive and amicable friendship with Mr Lloyd so that they can co-parent Maisie effectively. She will no longer take Maisie to gaol to visit Mr Lloyd but will facilitate SHINE and Mr Lloyd's family to do so. * She facilitates phone contact between Mr Lloyd and Maisie daily. Maisie is 2. 1. The Community Services' Caseworker, Ms Lam, swore an affidavit on 27 February 2019. In that affidavit Ms Lam made reference to the relationship between the mother and Mr Lloyd and that evidence is not entirely consistent with the evidence of the mother. 2. Ms Lam makes reference to a meeting with the Caseworker and Casework Manager from Kari, herself and the mother on 20 February 2019. In that meeting Ms Lam noted the mother appeared to be minimising Mr Lloyd's drug use. The notes of the meeting contain the following: "Ms Potter commented that all of this is basically about keeping herself and Bridget away from Mr Lloyd and that it was silly…. Ms Potter said that her concern is that not enough was put in documents about what he is doing now. He is not in jail; he is in a drug unit. 1. Ms Lam then refers to a call to Community Services' Manager Casework and herself made to the mother on 26 February 2019. The affidavit states that: "In relation to her views on Mr Lloyd, Ms Potter reiterated that the plan would be for Mr Lloyd to be released to the home of his mother "because the children come first" and "he does have stuff he has to do and accomplish before we can go back to life like it was before" (my emphasis) Ms Potter stated that "he needs to participate and finish the drug program" both while incarcerated and upon his integration back into the community, which includes meetings, urine drug tests and drug and alcohol counselling. Ms Potter advised that "I want him to participate fully not just do the program… I'm not basing it [i.e. the restoration] off him and I anymore… We have agreed to separate and address it [the relationship] in the future if Mr Lloyd has demonstrated rehabilitation/abstinence." (my emphasis)