Re Daisy

This is an urgent application brought in the Duty List for an order that interim parental responsibility of the child the subject of the proceedings (to be known as “Daisy”) be granted to the paternal grandmother until further order of the Children's Court or other Court. The paternal grandmother is the plaintiff in the proceedings. The first defendant is the Children's Court of New South Wales. The second defendant is the Secretary of the Department of Family and Community Services. The third defendant is the Minister of Family and Community Services. The fourth defendant is Daisy's father, who is presently 17 years of age. The fifth defendant is Daisy’s mother, who is presently 17 years of age. The sixth defendant is Daisy’s independent legal representative.

Daisy was born on 3 August 2014 and is almost 8 months old.

On 21 January 2015, the Children's Court made an interim order, to continue until further order, allocating parental responsibility to the Minister. The proceedings have been before the Children's Court in Lismore. They are not free from complexity. The paternal grandparents live in the area of Lismore. The maternal grandparents live in Queensland. The mother and the father are no longer in a relationship. The mother fell pregnant whilst she was staying with the paternal grandparents, she having been placed in the care of the Minister, by consent, on 16 May 2012.

As it was put in submissions today, the mother placed herself (or "self-placed") with the paternal grandparents at the relevant time. After Daisy was born, the mother cared for her and, from time to time, the mother lived both with the maternal grandparents and the paternal grandparents. The Minister has placed Daisy with the maternal grandparents in Queensland on an interim basis.

When the matter came before the Children's Court on 17 February 2015, the paternal grandmother had filed an application with the Children's Court dated 16 February 2015 seeking an interim order pursuant to section 98(3) of the Children and Young Persons (Care and Protection) Act 1998 (the Act) that, she be given leave to appear as a party to the proceedings in the Children's Court and that she be granted, pursuant to section 79(1)(a) of the Act, sole parental responsibility for Daisy until she turns 18 years of age. In support of that application, the paternal grandmother affirmed an affidavit dated 13 February 2015. The front page of the application described the orders sought as "Leave to appear as a party in the proceedings s 98(3); and parental responsibility for residence of the child s 79(1) and (2)(a)".

The Summons filed in Court today seeks an extension of time within which to institute an appeal (although it appears to be recognised that this application should be made to the District Court to which an appeal lies under s 91 of the Act). The plaintiff also seeks to set aside the orders made by the Children’s Court on grounds including a denial of natural justice. The only urgent matter with which I am dealing today is the order sought in the Summons that parental responsibility of Daisy be granted to the paternal grandmother on an interim basis.

However there are some aspects of the hearing before the Magistrate to which reference should be made. The paternal grandmother’s legal representative before the Children's Court sought to hand up some submissions. That application was declined. Those submissions are instructive. They were dated 16 February 2015 and recorded that the application was to be made in the context of each of the parents seeking restoration of the child to their respective care.

Those submissions also refer to the fact that the paternal grandmother had not been assessed by the Department of Family and Community Services (FACS) and that FACS were not putting the paternal grandmother forward as a placement option. They recorded that the paternal grandmother sought both interim and long term placement of Daisy in her care. Daisy is currently with the maternal grandfather (and his wife) in Queensland. It was submitted that placement with the paternal grandmother would mean that Daisy would be residing much closer to the father and, possibly, also the mother.

The submissions also referred to the fact that the area was Daisy’s Aboriginal country and that there would be a much greater opportunity of development of an Aboriginal identity. The evidence is that the paternal grandmother is an Aborigine. The maternal grandparents are not Aborigines. The submissions included a contention that there was an arguable case with reference to the fact that the paternal grandmother is an authorised foster carer; that she successfully raised her own children; and that she is a proud member of the Bundjalung Nation of which it is said Daisy is a member. The submissions also referred to the paternal grandmother being actively involved with Daisy and having an existing relationship with her. Finally, the submissions contended that the paternal grandmother offered a culturally appropriate kinship placement in close proximity to the father and that she clearly had a case that is capable of rational argument.

The affidavit in support of the application was described by the Magistrate as containing hearsay evidence in particular in relation to paragraph 23 of the affidavit. I respectfully agree with the Magistrate's observations in this regard. I should also say that, having been referred to paragraph 32 of the affidavit, that too contains hearsay evidence. In any event, the process that was adopted in the Children's Court, as I read the transcript, was not one that formally dealt with any objections to the affidavit but, rather, proceeded with the focus of the recent amendments to the Act, in particular the introduction of subsections (5) and (5A) that provide as follows:

Ms Lawson, of counsel, who appears for the plaintiff today, submitted that the learned Magistrate was distracted by the focus she placed upon those amendments, effectively giving them priority or precedence over her client's application to be joined and for final orders in respect of the placement of the child. Her Honour said, "I have got to look at that question first, not as to the second major question of placement" (tr 8.46-8.47). The first question to which her Honour was referring was the question identified in section 83(5), as to whether or not there was a realistic possibility of restoration of Daisy to her parents. Her Honour noted that this decision had to be made in the present case within 6 months after the Children's Court made an interim order for Daisy’s placement. It appears that there may have been a misunderstanding of the date upon which that order was made. In any event, the evidence today is that it was made on 21 January 2015 (Ex 3) and the 6-month period runs from that date. If that be the case, in February 2015, there were 5 months left in the process. Whereas, on the material placed before the Magistrate, it was understood that there were only three and a half months left for that determination, on the basis that the interim order was made some time in the latter part of 2014.

The Magistrate focused on the task of determining whether restoration was possible and said, inter alia (tr 10-11):

Her Honour then went on to explain to the parents and to the paternal grandmother that the decision had to be made "firstly" whether Daisy was to be with the natural parents. Her Honour said (tr 11):

The reference to the matter being “put on record” was to what her Honour had said earlier in relation to the placement with the maternal grandfather. What her Honour said was (tr 11):

Today, there is evidence (Ex 1 and 2) as to the placement of the mother in the care of the Minister. It is apparent that the mother was viewed by the health professionals at the time to be a risk to herself and displaying antisocial behaviours. She was apparently scheduled at one stage of her medical care and she refused to return to her father's care. It is also apparent that the maternal grandfather and grandmother separated and had, what appears from the papers, a rather vitriolic and acrimonious divorce. In any event, the maternal grandfather was not the subject of any orders that were other than by consent.

On 16 May 2012, the maternal grandfather consented to parental responsibility for Daisy’s mother to be allocated to the Minister. As can be seen from her Honour's reasons, it may well have been that her Honour was concerned that there may have been some risk to the child. perhaps of a sexual nature. That comes from the reference to "same sex". It is quite clear that the relevant information that has been provided to the Court today was not drawn to her Honour's attention on 17 February 2015.

After debating aspects of what was to occur between 17 February 2015 and the next return date in the Children's Court, the Magistrate suggested that the Department should prepare care plans and make proper assessments of both the maternal grandparents and the paternal grandparents as possible carers for Daisy.

There is no issue today that exceptional circumstances must be identified for the Court to exercise its relevant jurisdiction: Re Madison [2014] NSWSC 1874; Re Elizabeth [2007] NSWSC 729; Re Victoria [2002] NSWSC 647; (2002) 29 Fam LR 157.

Ms Samuels, for the Secretary and the Minister of the Department, opposes the application. Mr Higgins as the independent representative does not wish to add anything further. Mr Moore, of counsel, who has been granted leave to make submissions for the mother, does not wish to add anything. Mr Anderson, of counsel, for the father supports the application of the paternal grandmother.

Ms Lawson points to factors that she contends amount to exceptional circumstances warranting the orders sought. First, there is Daisy’s age and vulnerability. She is presently approximately eight months old, and has been in the care of the maternal grandparents for approximately five months. Ms Lawson also points to the paternal grandmother's previous care of the mother and Daisy, and also to her history of acting protectively towards Daisy. That is not in issue in these proceedings.

The next factor which is really at the nub of today's application is the risk of the child in the present placement with the maternal grandfather. The maternal grandfather has remarried and has been in a lengthy and apparently stable relationship with his present wife. There are assessment reports that are to be placed before the Children's Court to which I have been taken. The observations made by the caseworker are certainly supportive of the maternal grandfather and his wife's care for Daisy, and there is no suggestion at all of any risk to Daisy in that placement.

Ms Lawson submitted that at the outset of the Children's Court proceedings, the Department, as recognised to be a model litigant, indicated to her Honour that there was opposition to Daisy being placed with the paternal grandmother. Ms Lawson submitted that the assessment was made by a caseworker of the Department. Perhaps Ms Lawson was impliedly suggesting that there should have been an independent person doing that assessment. Be that as it may, I must assume regularity, and that the caseworker conducted herself professionally and diligently and was not biased in favour of anyone at the time, but reporting her observations honestly and clearly. Ms Lawson also emphasised the Magistrate's expressed "grave concern" about Daisy’s present placement. I am satisfied that the expression of grave concern came from the fact that the Magistrate was not provided with the relevant material, with which I have been provided.

I am not satisfied that exceptional circumstances have been established. I am not satisfied in the circumstances that it is appropriate to make the orders for interim relief in the Summons.

I should however say something about another aspect of the paternal grandmother's application. Reference has been made to s 13 of the Act in respect of Aboriginal and Torres Strait Islander children. I have little doubt that the Minister would have given consideration to this aspect of the matter, but certainly it does need consideration. Any question of placement must take into account the principles set out in s 13. That is not a matter with which I am dealing today because the basis of the application today was for an order in the face of an alleged risk to Daisy.

The application for an order that interim parental responsibility for Daisy be granted to the paternal grandmother until further order of the Children's Court or other Court is dismissed.