Department of Communities and Justice (DCJ) and BEECH [2019] NSWChC 9

Children's Court New South Wales

Medium Neutral Citation: Department of Communities and Justice (DCJ) and BEECH [2019] NSWChC 9 Hearing dates: 3, 4 & 5 December 2019 Date of orders: 05 December 2019 Decision date: 05 December 2019 Jurisdiction: Care and protection Before: Judge Peter Johnstone, President Decision: Preferred placement of child is with the paternal grandparents – Permanency planning approved Catchwords: CHILDREN – Care and Protection – child in need of care and protection – permanency planning - Aboriginality Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 Category: Principal judgment Parties: The Secretary Maternal grandfather Maternal great-grandmother Paternal grandparents The child Representation: Mr T Fox, solicitor for the Secretary Mr Joseph of counsel, instructed by Mr M Lindeman, solicitor for the maternal family Mr McKenzie of counsel, instructed by Ms Wilson, solicitor for the paternal family Ms E Johnson, solicitor, Independent Legal Representative for the child File Number(s): 2018/00388632 Publication restriction: Pseudonyms have been used in order to anonymise the child and parties

Judgment 1. These proceedings were brought by the Secretary of the Department of Community and Justice, formerly known as the Department of Family and Community Services, pursuant to the Children and Young Persons (Care and Protection) Act 1998, which I will refer to as the Care Act. The proceedings originally concerned two children, a girl aged 2 years old and a boy aged 1, who had been living with their mother, and her then partner, the boy's father, but were removed from their care when it was discovered they were abusing the children sexually. The mother and her partner are currently in gaol awaiting sentence for the crimes they have perpetrated against these children. 2. It is conceded that there is no realistic possibility of any restoration of either of those children to those persons, and for the sake of completeness I find accordingly. The girl has been separately restored to the care of her father and his partner. The question now before the Court for determination is the appropriate placement for the boy. After some early placements, the boy was placed into the care of his paternal aunt and her partner. It was the Secretary's proposal until recently that this be the permanent placement for the boy, but it has now transpired for various reasons that that placement is no longer viable in the longer term. 3. Fortunately, and unusually for this jurisdiction, there are two possible family placements for the boy, each of which is appropriate and adequate, and safe. The first option, preferred by the Secretary, is placement with the paternal grandmother and her husband. The second option, equally viable, but not the option preferred by the Secretary, is placement of the boy with his maternal grandfather and his mother, the maternal great-grandmother. The evidence is that each of those placements would be a loving and caring placement, which would provide a safe environment for the boy to grow up in. 4. My assessment of each of those family members, both from my observation of them in court and from everything I have heard about them and read about them in the papers, is positive, and I am satisfied that either of these placements would be conducive to the boy's future safety, welfare and wellbeing. Unfortunately, however, these two family groups cannot agree on the better placement, contending as they do that they should be the preferred placement for long term care of the boy, each over the other. 5. It therefore falls to me to determine whether I approve the permanency planning proposed by the Secretary for placement of the boy with the paternal family, or whether I should prefer the possible maternal family placement and find that the proposed permanency planning for the boy has not been appropriately and adequately addressed; s 83(7)(a) of the Care Act. The proposed permanency planning is predominantly set out in the Amended Care Plan filed on 29 November 2009. 6. This decision has turned out to be a difficult one because the competing considerations are fairly evenly balanced. I do, however, have to make a decision, and I believe it is in the boy's best interests that I do so quickly and decisively so that his transition from his current placement can occur as soon as possible. 7. I will deal briefly with the relevant legal context and the applicable statutory framework. The Care Act provides in s 9(1) that the Act is to be administered under the principle that in the making of any decision concerning a particular child or young person, the safety, welfare and wellbeing of the child or young person is paramount. The Care Act provides further, in s 9(2), that other principles to be applied in the administration of the Act, subject to s 9(1), are as follows: 1. Wherever a child or young person is able to form his or her own views on a matter concerning his or her safety, welfare and wellbeing, he or she must be given an opportunity to express those views freely, and those views are to be given due weight in accordance with the developmental capacity of the child or young person and the circumstances. Obviously, in this case, the boy is too young for me to entertain any views he could or might give, and his views are given to the Court by his lawyer, the Independent Legal Representative. 2. That all actions and decisions made under this Act, whether by legal or administrative process, that significantly affect a child or young person, must take account of the culture, disability, language, religion and sexuality of the child or young person, and if relevant, those with parental responsibility for the child or young person. 3. In deciding what action is necessary to take, whether by legal or administrative process, in order to protect the child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child's or young person's development. 4. If a child or young person is temporarily or permanently deprived of his or her family environment, or cannot be allowed to remain in that environment in his or her own best interests, the child or young person is entitled to special protection and assistance from the state, and his or her name, identity, language, cultural and religious ties, should, as far as possible, be preserved. 5. If a child or young person is placed in and out-of-home care, arrangements should be made in a timely manner. 6. If a child or young person is placed in and out-of-home care, the child or young person is entitled to a safe, nurturing, stable and secure environment. 1. As I have said before, either of the proposed placements would satisfy the requirements of subsections (e) and (f). 2. Given the evidence that both family placements are considered suitable and safe for the boy, the paramountcy principle is satisfied by either option. Thus it is the other principles that assume importance in determining this case. 3. There is evidence as to which of the two placements is preferable from two professional persons. The first of those witnesses was Ms Leonie Martin, a consultant assessor with considerable experience in child protection and expertise in that field. The second of those witnesses was Ms Kristy Tansey, the case work manager who has been in charge of this matter from the outset. She also has considerable expertise and experience in child protection. Both of these witnesses, whilst acknowledging that it was not clear cut, were firm in their view that the better placement for the boy is with the paternal family. 4. Each of those witnesses articulated their reasons clearly and distinctly. Each of them gave coherent and considered evidence which was tested in cross-examination, but from which neither of them resiled insofar as the ultimate conclusion was concerned. 5. No other evidence of a professional or expert nature was called before me to challenge their opinions. 6. Ms Martin summarised the key factors which determined her opinion as set out in her document entitled "Best Interests Assessment", and I quote from para 6: "Considering all information available to the assessor, the overall recommendation is that the boy be placed in the care of the paternal family with an order of parental responsibility to the Minister. The reasons for this are: (a) They have spent more time with the boy than the maternal family. Over recent months, they have cared for him for a period of ten days, in addition to caring for him on several other occasions, both during the day and overnight. In the affidavit of the paternal grandmother of 17 September 2019, she details providing care to the boy on a regular basis in the home that she and her husband currently reside in." 1. I interpolate to add here that there is evidence of more recent involvement on the part of the paternal family in the life of the boy in relation to his pre-school: "(b) Placement with the paternal family means that he will maintain attendance at his current pre-school. (c) He would live in close proximity to his paternal aunt and her partner, and as such, can continue to see them regularly, and they can continue to play an ongoing and regular role in his life." 1. Ms Tansey summarised the main considerations that led her to form her opinion during her cross-examination and, in my words, her reasons were as follows. I note in this regard that there is no transcript, so this is my note of what she said: "1. Because of the relationship developed with the boy, the paternal relationship is stronger. 2. The geographical considerations, and the fact that he is flourishing in his current environment. 3. The greater capacity of the paternal grandparents to facilitate contact with both sides. 4. In their household, in which they live on their own, there are no other adults or children in that household. 5. Flexible working conditions, which enable them to better support the boy. 6. Issues of Aboriginality." 1. To be fair, in cross-examination, concessions were made by each of those persons that the significance of some of these factors was not great. Mr Joseph, counsel for the maternal family, suggested that those factors should not be given considerable weight. He submitted, rather, that the main factor, in favour of placement with his clients, was that it would be more conducive to the boy establishing a strong relationship with his sister, and that this factor on its own was so strong as to tip the balance in favour of that placement. 2. On this basis, he submitted that a little bit of short term pain was worth the long term gain. In my assessment, however, his premise is flawed. In my view, either of these placements will more probably than not result in the boy maintaining a strong connection to his sister. In this regard, I accept and adopt the submissions of Mr Fox, Mr McKenzie and Ms Johnson. 3. It is a sad fact that these siblings have to be separated at all, but that is the unfortunate reality. Assessing the evidence overall, in my view the collective and cumulative weight of the factors identified by Ms Martin and Ms Tansey clearly tip the balance in favour of placement with the paternal grandparents. 4. I find, therefore, that the placement proposed by the Secretary with the paternal grandparents will be the least intrusive intervention in this boy's life. I am pleased and comforted that my assessment is supported by his lawyer, Ms Johnson, the Independent Legal Representative. 5. I turn finally to the issue of Aboriginality, and the requirements of s 9(2)(b) and 9(2)(d) of the Care Act concerning his cultural identity and ties. It is abundantly patent to me that this boy is Aboriginal. His paternal grandmother is Aboriginal. She is an active Aboriginal woman who has embraced her origins and her culture positively. She will, no doubt, be very keen to encourage him in understanding and appreciating his origins and background, and in embracing his culture. 6. There is an abundance of evidence that supports the notion that Aboriginal children who understand and appreciate their cultural origins are more likely to adjust to the reality of modern Australian life. As you will all be aware, I have written a number of papers on this issue. To date, however, the boy has not been identified as Aboriginal. That is due primarily to the fact that his parents, and in particular his father, have not identified him as Aboriginal. He, himself, is too young to make that identification at this stage. I agree, however, with Ms Tansey that if placed with the paternal grandmother, his ability to identify as an Aboriginal, when he is old enough to make that decision for himself, will be enhanced by that placement in preference to the placement with the maternal family. 7. I find, therefore, that the requirements of s 9(2)(b) and s 9(2)(d) will be more readily met by the proposed placement with the paternal family. 8. For all these reasons, I find that the placement with the paternal grandparents should be the preferred placement. I am therefore satisfied that the permanency planning for this boy, as proposed by the Secretary, has been appropriately and adequately addressed. 9. I make the final orders set out in the Minute of Order provided to me on the proviso that the Secretary provide an addendum to the Care Plan within the next seven days dealing with the issues identified in relation to contact. 10. Finally, I would just like to thank everybody involved for their courtesy and considerate conduct of this hearing.