Children's Court New South Wales Medium Neutral Citation: The Secretary of the Department of Communities and Justice (DCJ) and the Stonsky Children [2019] NSWChC 8 Hearing dates: 14 November 2019 Date of orders: 29 November 2019 Decision date: 29 November 2019 Jurisdiction: Care and protection Before: Children's Magistrate Hayes Decision: The Court directs the Secretary to prepare a different permanency plan Catchwords: CHILDREN – Care and protection – Short term orders – Permanent permanency principles – Adoption Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 Children's Court Act 1987 Cases Cited: Adoption of Hogarth (No 2) [2019] NSWSC 9 Baines v Gould (1993) 67 A Crim R 297 Director of Public Prosecutions (NSW) v Hall, Jason [2015] NSWLC 12 George v Children's Court of New South Wales & 4 Ors [2003] NSWCA 389 Lawler v Johnson & Anor (2002) 56 NSWLR 1 O'Hare v DPP [2000] NSWSC 430 R v Kennedy (1997) A Crim R 341 TEZ v Longley [2004] NSWSC 74 Category: Principal judgment Parties: The Secretary The Children The Mother The Father Representation: Mr C McGorey, of counsel, for the Secretary Ms G Mahony, of counsel, for the Children Ms K Shea, of counsel, for the Father Mr Ktenas, solicitor, for the Mother File Number(s): 2019/00053593 Publication restriction: Pseudonyms have been used in order to anonymise the children and parties Judgment Background 1. These proceedings concern Anthony (3), Issac (3) and Stephan (1). 2. Proceedings in relation to Anthony and Issac were commenced on 28 September 2017. On 25 May 2018 the Children's Court made final orders allocating all aspects of parental responsibility to the Minister with a view to restoration. 3. On 15 February 2019 the Secretary filed an application under s 90 for rescission/variation of the care order. On 29 March 2019 the Children's Court granted leave and transferred the proceedings to the Parramatta Children's Court to be joined to Stephan's proceedings. 4. Regarding Stephan, on 27 July 2018 the Children's Court made an interim order allocating all aspects of parental responsibility to the Minister. The matter was established on 2 September 2018. 5. On 24 June 2019 the mother, Ms Hom Laroche, conceded that there was no realistic possibility of restoration of the three children to her within a reasonable period. 6. On 9 September 2019 the Children's Court made a finding that there was no realistic possibility of restoration of the three children to the father, Mr Josiah Stonsky, within a reasonable period. 7. The Independent Legal Representative (ILR) was not satisfied with the permanency planning and the matter was set down for hearing on 14 November 2019. 8. The matter proceeded by way of evidence filed and submissions made; and adjourned to 29 November 2019. 9. The Court, having found that there is no realistic possibility of restoration to either parent, is now required to consider alternative placement as part of the permanency planning. 10. The Secretary has prepared a Care Plan pursuant to s 78 of the Children and Young Persons (Care and Protection) Act 1998 (the Care Act). 11. The Care Plan makes provision for the allocation of parental responsibility. The Care Plan identifies the kind of placement proposed, arrangements for contact and the services that need to be provided per s 78. It also addresses the principle set out in s 9(2)(d) which requires that the children's identity, language and cultural ties be, as far as possible, preserved. Issue in dispute 1. The issue for the Court is whether the Secretary's proposed short term care orders of parental responsibility to the Minister for two years with a view to adoption is appropriate and adequate. 2. The father opposes the final orders by the Secretary. The father argues any consideration as to adoption is premature. Therefore, the Court cannot be satisfied that the plans meet the needs of the children. Consequently, the planning has not been appropriately and adequately addressed. 3. The father highlights the recency of the placement with the proposed adoptive parents, Madeline and Casper, particularly in the circumstances that each work, they have three other children, the medical needs of the children and that Mr Stonsky is taking steps to address restoration. 4. The mother's position is in alignment with the father. She agrees with the Minute of Care Order but opposes adoption. 5. The ILR contends that permanency planning is not achieved. 6. The ILR's position is that the plan is aspirational as to what is hoped to occur within the next two years. It is submitted that the placement with Madeline and Casper is in its infancy and that there has not been sufficient time to test the placement. 7. It is put that a two year parental responsibility order to the Minister is likely to result in further proceedings because of the timeframes for adoption generally, and particularly in this matter because of the complexities where placement is at an early stage with limited information as to how the children are progressing, carers not being duly authorised, the medical needs of children, contact issues, capacity issues, case management issues; and a possible s 90 application from the father. 8. It is argued that a mere intention for an adoption to take place does not meet permanency planning principles. 9. Further, the Court has little recourse to ensure that the adoption aspirations are met. 10. The ILR supports a parental responsibility order to the Minister until each child attains 18 years of age. 11. The ILR submits that there are so many areas where the outcome is unknown that special circumstances can be found. This then, does not limit the court in making an order of parental responsibility for a period of not more than two years. 12. Decisions in care proceedings are to be made consistently with the objects, provisions and principles provided for in the Care Act 1998. The relevant legal framework 1. The Care Act sets out a series of principles governing its administration. These principles are largely contained in s 9. 2. Secondary to the paramount concern, the Care Act sets out other particular principles to be applied in the administration of the Act. 3. Because the application in relation to Anthony and Issac is a s 90 application, s 90(6) also applies. The children are not mature enough for any weight to be placed upon their views. 4. The objects of the Act are set out in s 8, and include s 8(a1): recognition that the primary means of providing for the safety, welfare and well-being of children and young persons is by providing them with long-term, safe, nurturing, stable and secure environments through permanent placement in accordance with the permanent placement principles. 5. Permanency planning means the making of a plan that aims to provide a child with a stable placement that offers long-term security and meets their needs and avoids the instability and uncertainty arising through a succession of different placements or temporary care arrangements: s 78A(1). 6. Permanent placement is to be made in accordance with principles prescribed: s 10A(3). 7. The 'placement hierarchy' established might be summarised as follows: the first preference is not possible because of the finding that there was no realistic possibility of restoration of the three children to the mother and/or father. 8. The next preference for permanent placement is guardianship of a relative, kin or other suitable person. It is agreed that there are no family placement options available or other suitable person. 9. The third preference (in this case the children are not Aboriginal or Torres Strait Islander) is for the children to be adopted. 10. The last preference is for the children to be placed under the parental responsibility of the Minister. 11. Section 83(4) also references adoption: the Secretary must consider whether adoption is the preferred option. Findings 1. There are good reasons for placing adoption as a preferred outcome in order to achieve permanency. 2. Recently in Adoption of Hogarth (No 2) [2019] NSWSC 9, Brereton J considered the benefits of adoption (at [51]-[52]) summarised: "First, adoption contributes to providing the stability, security and certainty that children need. Secondly, adoption serves the identity needs of such children – in circumstances where they are emotionally, psychologically and residentially already members of the proposed adoptive family – not only during childhood but for life. Adoption also places the children on an equivalent basis, with equivalent rights, as any child of the adoptive parents. The opportunity for the children to know and have some relationship with their birth family is preserved, in the context of an open adoption, through contact. Thirdly, adopted children are raised in a legally recognised family, rather than remaining "State wards" for the duration of their childhood; "out-of-home" care is thus replaced by in "in-home" care. The need for departmental intervention, and departmental approval for significant decisions of the carers, is removed," 1. Dianne Starkey, the specialist children's psychologist, also refers to the general benefits of adoption including better self-image and lower breakdown rates compared to foster care. 2. The current carers, Madeline and Casper were assessed regarding their viability as carers for the three children on 7 May 2019. 3. Transition of the children to their carers commenced on 29 July 2019. 4. Madeline and Casper are highly regarded foster carers. They have eight years of foster carer experience. They have extensive experience in caring for children in short-term, respite and emergency capacities as well as caring for children with delays or disabilities. 5. It is not contested that Madeline and Casper present as a very strong team; well experienced at working with birth families. 6. On 4 August 2016 Madeline and Casper adopted three children, Carmine, Ian and Andrew who had previously been placed in their care. Those three children had prenatal drug exposures yet continue to thrive with Madeline and Casper. 7. On 30 May 2019 Madeline and Casper were authorised as foster carers with McKillop Family Services. 8. On 22 August 2019 Anthony and Issac were placed with Madeline and Casper with a view to adoption. 9. On 25 September 2019 Stephan was placed with Madeline and Casper with a view to adoption. 10. Madeline and Casper wish to pursue adoption of the 3 children - the subject of these proceedings. 11. At a home visit on 3 October 2019 all 6 children were observed. Anthony, Issac and Stephan appeared very settled. 12. On 12 October and 17 October 2019 an update was provided by Madeline and Casper and the children's childcare. The children were observed to be often laughing and enjoying their days at childcare and forming relationships with other children in the placement. 13. Madeline and Casper's home is appropriate to accommodate the six children. 14. The mother, father and ILR's position is that the placement with Madeline and Casper is in its infancy and that there has not been sufficient time to test the placement. There will be six children under 10 years. Consequently, the ILR submits the plan is aspirational as to what is hoped to occur within the next two years. Conclusions 1. I disagree. 2. The Secretary has nominated potential adopters in Madeline and Casper. They have been assessed as carers, they have eight years' experience as foster carers, they have successfully been through the adoption process of three other children, they have experience in providing care for children with disabilities, they have worked with birth families, and, whilst it is early days, each are bonding well as an extended family unit. 3. The adoption plan is real and not simply aspirational. Madeline and Casper have 'runs on the board' for providing a safe, nurturing, stable and secure environment. They have a proven commitment to adoption. They wish to pursue adoption, thus keeping siblings together. It is not a case of a mere intention to adopt. 4. In any event, s 78A(2A) states a permanency plan does not need to provide details as to the exact placement in the long-term, but must be sufficiently clear and particularised so as to provide the Court with a reasonably clear picture as to the way in which the child's needs, welfare and well-being will be met in the foreseeable future. 5. The permanency plan must avoid the instability and uncertainty that can occur through a succession of different placements or temporary care arrangements. Justice Brereton, in Adoption of Hogarth (supra) (at [51]) observes that adoption provides certainty and permanence for children, both directly, and indirectly …. The possibility of further changes, disruptions and separations are minimised. 6. The permanency plan must have regard to the principle that the younger the child the greater the need for early decisions. Dianne Starkey, in the Clinician report, notes the optimum time for the development of attachment is from about 6 months to 3 years of age. The children fall within these age brackets. 7. The permanency plan must have regard to the principle of the need for timely arrangements. The 2nd reading speech observes that shorter term court orders will provide greater focus on casework planning to secure long-term permanency being achieved within 24 months after the order is made by the Children's Court. 8. However, I accept that it is unlikely that the adoption process will finalise within two years. The ILR's submission in that regard is compelling. 9. Section 79(9) states that the maximum period for which an order may be made allocating all aspects of parental responsibility to the Minister, following approval of a permanency plan involving … adoption, is 24 months. Section 79(10) states unless there are special circumstances that warrant a longer period. 10. In Director of Public Prosecutions (NSW) v Hall, Jason [2015] NSWLC 12, a case the ILR refers the Court to, Crompton LCM quotes: Baines v Gould (1993) 67 A Crim R 297, where Studdert J held: "The Shorter Oxford Dictionary defines 'special' as meaning 'of such a kind as to exceed in some way that which is usual or common' and, also 'exceptional in character, quality or degree.'" 1. In TEZ v Longley [2004] NSWSC 74; Shaw J set out the elements relevant to the application of special circumstances in the context of applications pursuant to s 93 of the Act ("s 93 applications") at [20]: "The totality of the relevant issues in each case should be considered in determining whether or not the reasons are special for the purposes of the Act: Lawler v Johnson & Anor (2002) 56 NSWLR 1 at 10 per O'Keefe J. Hunt CJ at CL with whom Smart and Grove JJ agreed, emphasised the need for individual consideration of each case in R v Kennedy (1997) A Crim R 341 at 352: What are 'special reasons' and what are not will vary from case to case and cannot be defined in advance." 1. His Honour then quotes; O'Hare v DPP [2000] NSWSC 430 at [51], relying on Studdert J in Baines v Gould (supra) at 303: "In summary the decided cases in New South Wales establish, and in Victoria and South Australia indicate, that the facts or situations that constitute "special reasons" should not be confined by precise legal definition, are not a closed category, should not be approached in an unduly restricted way and need to be: ° special in relation to the particular case; ° solid, that is substantial in nature; ° not common or usual; ° out of the ordinary; ° unusual or atypical; ° clearly distinguishable from the general run of cases." 1. The ILR submits that there are so many matters where the outcome is unknown that special circumstances can be found that do not limit the Court to making an order of parental responsibility for a period of not more than two years where the placement is in its infancy and because of the previous stated complexities. 2. Looking at some of the complexities of other adoption matters that the Court has been referred to, I do not see that the facts are special in this particular case or substantial in nature or not common or unusual or that they are out of the ordinary or clearly distinguishable from the general run of cases. 3. The Care Act provides that care matters are to proceed as expeditiously as possible: s 94(1). The Children's Court Practice note 5 sets out case management for care proceedings. 4. The timetable means that children are often not with prospective carers for lengthy periods of time before the preparation of a care plan. Adoption proceedings are not commenced until after parental responsibility is determined. A placement in its infancy is not out of the ordinary, unusual or atypical. 5. Whilst I accept that it is unlikely that the adoption process will finalise within two years, permanency planning does not require finalisation within two years. 6. The Court only needs to be persuaded that adoption has commenced and remains open. 7. The likelihood that adoption is not finalised within two years is more the norm and does not amount to special circumstances. 8. The ILR contends a two year order is likely to result in further proceedings. The same could be said for an order of parental responsibility to the Minister till 18. The Supreme Court may, as the Secretary sets out, make a further interim order for parental responsibility as the adoption process proceeds. 9. Multiple parties refer to a possible s 90 application from the father. 10. The father may make a s 90 application. This is an unknown but is a legislative entitlement and is not a special circumstance. 11. What is known is that the birth parents are unable to provide an adequate standard of care for the children. 12. The parents have previously relapsed in their drug use. The parents did not comply with a number of prior undertakings given to the Court such as remaining abstinent from drugs or excessive alcohol use and notifying the Department of any incident involving police. 13. Over the last few months Mr Stonsky has overdosed 4 times. A past urinalysis has detected methyl amphetamines and amphetamines. He has attended a quarter of the urinalysis appointments and nodded off during a contact visit. 14. I do not find special circumstances. 15. Consequently, per s 79(9) the maximum period is 24 months. 16. This leaves the concern of the ILR that this Court has little recourse to ensure that the adoption objectives are met when it is unlikely that the adoption process will finalise within two years. 17. There is no allowance in the proposed plan of what is to happen after the two years lapse, for example, if the adoption process breaks down within that two year period. 18. The ILR is a valuable safety net but I am unsure what case management trigger is at their disposal as 2 years approach. 19. The Secretary is proposing two safety nets to ensure continued monitoring. 20. Firstly, two s 82 Reports, one at 5 months and one at 11 months. 21. The s 82 Reports will explicitly report upon the progress of the adoption application. This allows the Court and the ILR ongoing monitoring and receipt of information as to adoption progress but only up to 12 months. 22. Secondly, there is reliance on s15 of the Children's Court Act 1987. The Minute of Care Order calls for a courtesy report at 20 months. 23. Section 15 of the Children's Court Act provides: "The Court may, in relation to all matters in respect of which it has jurisdiction, make such orders, including interlocutory orders, as it thinks appropriate." 1. In George v Children's Court of New South Wales & 4 Ors [2003] NSWCA 389 it was observed that the power is not at large. In that case it was held s 15 did not provide a source of power for making the challenged order. 2. The Court ought to be cautious when relying on s 15, not simply because the power is not at large but because of the perception that s 15 is a 'work around' of s 82's legislative constraint of 12 months. It would be more palatable if there was an indication of some legislative intent to align s 82 with a report within 24 months when making a short term order. 3. As the Care Plan currently reads there is nothing stopping the Secretary making an arbitrary decision as to placement of the children if adoption does not proceed. 4. Any proposed Care Plan should place an onus on the Secretary to bring an application for rescission under s 90 of the Care Act in the event that the adoption is delayed or does not proceed. Otherwise, the concern is that if two years pass parental responsibility would revert to unsuitable parents. 5. The Court must not make a final Care order unless it expressly finds that permanency planning has been appropriately and adequately addressed: s 83(7). Without a mechanism in the Care Plan to ensure a s 90 application is made, the permanency planning has not been appropriately and adequately addressed. Order 1. The Court directs the Secretary to prepare a different permanency plan. ********** Amendments 10 December 2019 - Change of name in the heading to (DCJ) 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: 10 December 2019