JMS v Department of Family and Community Services & Ors [2018] NSWDC 25

JMS v Department of Family and Community Services & Ors [2018] NSWDC 25

The children were in need of care and protection; there was no reasonable possibility of restoration to the mother given the history of volatile parental relationship, breaches of undertakings, false allegations against the father, mental health and substance issues, instability and concerns about insight, while there was a realistic possibility of restoration to the father and FACS had no current concerns about his care. Allocation of parental responsibility to the father, with contact allocated to the Minister for four years and supervision for 12 months, was the least intrusive arrangement consistent with the children's safety, welfare and wellbeing.

Jurisdiction
Australia
Judgment Date
21 February 2018
Procedural Posture
Children's Court Appeal Concerning Care and Protection Orders and Supervised Contact / Appeal by Way of Re Hearing De Novo in the District Court of New South Wales From Orders of the Children's Court of NSW
Outcome
Appeal allowed.
Legal Topics
['supervised Contact' 'parental Responsibility' 'restoration' 'care Plan' 'undertakings' 'domestic Violence' 'mental Health' 'drug and Alcohol Issues' 'breach of Undertakings']
['care and Protection' "children's Law"] ['supervised Contact' 'parental Responsibility' 'restoration' 'care Plan' 'undertakings' 'domestic Violence' 'mental Health' 'drug and Alcohol Issues' 'breach of Undertakings']

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Procedural Posture

Children's Court Appeal Concerning Care and Protection Orders and Supervised Contact / Appeal by Way of Re Hearing De Novo in the District Court of New South Wales From Orders of the Children's Court of NSW

Legal Issues

  1. 1 ["Whether the Children's Court orders should be varied on appeal." 'Whether there was a reasonable possibility of restoration of the children to the mother.' 'Whether there was a realistic possibility of restoration of the children to the father.' 'Whether parental responsibility should be allocated to the father, save for contact to be allocated to the Minister for a period.' "Whether the mother's contact with the children should remain supervised and governed by undertakings and agreed benchmarks."]

Ratio Decidendi

The children were in need of care and protection; there was no reasonable possibility of restoration to the mother given the history of volatile parental relationship, breaches of undertakings, false allegations against the father, mental health and substance issues, instability and concerns about insight, while there was a realistic possibility of restoration to the father and FACS had no current concerns about his care. Allocation of parental responsibility to the father, with contact allocated to the Minister for four years and supervision for 12 months, was the least intrusive arrangement consistent with the children's safety, welfare and wellbeing.

Court Disposition

Appeal allowed.

Orders

  • ['The appeal was allowed.' "The final orders of the Children's Court of NSW made on 16 March 2017 in relation to KE and JM were varied." 'Parental responsibility for the children was allocated to SE to the exclusion of JMS until each child attains 18 years, except for contact.' 'Parental responsibility for the...