DOCS v Graves and Phillips [2009] NSWLC 33

Local Court of New South Wales

CITATION: DOCS v Graves and Phillips [2009] NSWLC 33

JURISDICTION: Children's Court

Department of Community Services PARTIES: Joanna Graves Trent Phillips

FILE NUMBER: 4/09

PLACE OF HEARING: Bega Local Court

DATE OF DECISION: 02/24/2009

MAGISTRATE: Magistrate Bone

CATCHWORDS: Care and Protection - parental responsibility - application for interim orders - evidence of domestic violence between parents - likely impact upon children raised in atmosphere of domestic violence - removal a matter of last resort

LEGISLATION CITED: Children and Young Persons (Care and Protection ) Act 1988 - Child Welfare Act 1939

CD V Chief Executive, Department of Education and Community Services (2000) 27 Fam LR 19 Ex Parte Minister for Child Welfare; Re Hancock & Anor (1967) 86 WN (Pt. 2) (NSW) 371 L V Director of Family Services (1997) 22 Fam LR 275 CASES CITED: Minister for the Interior V Neynes (1964) 113 CLR 411 Re Edward [2001] NSWSC 284 Re Jayden [2007] NSWCA 35 T &T [2003] FCA 1129

TEXTS CITED:

REPRESENTATION:

ORDERS:

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Re: 'Katie' & 'Robert' Reasons for Decision 1 "Katie Phillips" and "Robert Phillips" are the children of "Joanna Graves" and "Trent Phillips". Katie is five and Robert is two. Until a fortnight ago the children had always lived with one or both of their parents. On 9th February, 2009, applications were made to the Bega Children's Court. The applicant, Cara Hopkins, an officer of Department of Community Services (DOCS), sought findings that the children were in need of care. The grounds for the applications were (a) that the children had been, or were likely to be, physically or sexually abused or ill-treated, (b) that the children's basic physical, psychological or educational needs were not being met, or were likely not to be met, by their parents and (c) that the children are suffering or are likely to suffer serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which they were living. The children were removed from their parents at the time of the applications 2 On 10th February, the day that the matter was first before the court, the children were unrepresented. DOCS and the parents appeared and were represented. DOCS sought that parental responsibility for the children be given to the Minister on an interim basis. The parents asked that they retain parental responsibility for the children. There was, at that stage, only one piece of evidence before me, that being the affidavit of Cara Hopkins. I heard a submission from DOCS' solicitor and then began to hear a submission from the parents' solicitor. As it became increasingly apparent that a deal of the DOCS evidence was being challenged, I adjourned the case until the next day to allow evidence to be filed by the parents and for the submissions to be completed. I also asked that the Registrar attempt to obtain a grant of legal aid for the children. The parents filed four affidavits and DOCS filed a further two. Oral evidence was also taken from the mother (limited to a response to the material in the most recent of the DOCS' affidavits). DOCS was not represented although an officer appeared. The parents' solicitor completed his submission and I gave parental responsibility to the parents subject to stringent undertakings. A copy of the order is attached to this judgement. As the judgement was given on a Wednesday afternoon and as the children had been removed from their parents, I ordered that parental responsibility remain with the Minister until the following Friday afternoon and that parental responsibility revert to the parents at the end of the school week (Katie is a school student who began school only this year). 3 On 12th February DOCS filed further applications in Bega Children's Court. Those applications sought orders allocating parental responsibility to the Minister or, in the alternative, a stay of the orders made on 11th February. I had that matter listed before me at Moruya on 13th February. DOCS and the parents were represented. I expressed some doubt that I had the power to consider the applications but Counsel for DOCS referred me to a portion of the judgement of Kirby J, in Re Edward [2001] NSWSC 284. In that case His Honour asked himself the question "Is there a power to suspend a care order?" He concluded, at para. 52 of the judgement " ……… I believe the terms of a care order may be varied under s.69 and s.70. To that extent the court can go outside the scheme in s.90 and "undo" one of its own final orders. It can, moreover, do so by reference to the criteria in s.70 (rather than s.90(6)), where orders are made under that section". I held that I had the power to make the first orders sought in the fresh applications (i.e. to "undo" my original orders). 4 Further affidavits and other documents were admitted into evidence and further submissions were made at Moruya on 13th February, at Bega on 18th February and at Batemans Bay on 20th February. The children obtained representation on or about 18th February. The children's solicitor did not attend court on 20th February but presented written submissions in which she supported DOCS' position. The evidence 5 The evidence establishes that Joanna Graves (the mother) and Trent Phillips (the father) became friendly when they were at school and have been in a relationship for all of their adult life. They are aged twenty three and twenty five respectively. They have two children, Katie (d.o.b. born in August 2003) and Robert ( born in July 2006). The relationship between the parents was somewhat turbulent before 2005. Since then, however, there has been a lot of serious domestic violence with the father mostly being the instigator. The father was involved in a motor vehicle accident in 2005. He was a passenger in a car which was driven by a close friend. The friend was killed and the father received major physical injuries. In addition, his psychiatrist has diagnosed Post Traumatic Stress Disorder. The father has flashback dreams, survivor's guilt, disturbed sleep, anger and short term memory loss. He has turned to alcohol and cannabis in an attempt to deal with his physical and mental problems. 6 The family lives at Yowrie, via Cobargo. While the parents have each had only the one relationship there have been times when the mother has lived apart from the father. It appears that she has done so because of his violence towards her. She has spent time in alternative housing and in refuges. 7 DOCS application that the children live apart from the parents is based primarily upon three considerations: (a) violence to the children, (b) threats of violence to the children and (c) the long-term and significant domestic violence within the household. The parents concede that there have been instances of domestic violence. Violence to the children 8 The only allegation of any significance which relates to violence against the children to be found in paragraph 19 of the affidavit of Cara Hopkins. In paragraph 19 Ms. Hopkins indicates that a reporter indicated that on 4th February the mother said that the father verbally abused Katie, threw her into the family car, drove her to school and threw her out at school. The mother indicated in an affidavit that the father did not assault Katie on 4th February and that she did not tell anyone that he had. She said, furthermore, that Katie had gone to school on the school bus. An affidavit from the driver of the school bus confirms that Katie went to school on the school bus on the day her father is alleged to have assaulted her when taking her to school in the family car. 9 It is extremely unlikely that a conclusion could be reached on the evidence currently before the court that that anyone has ever assaulted or physically mistreated the children. Domestic and other violence 10 There is a welter of evidence to indicate that the children have been raised in an atmosphere of domestic violence. That was conceded by the parents. The father has convictions for assaulting the mother in 2006 (common assault, s. 9 bond) and on 15th September, 2008 (assault occasioning actual bodily harm and common assault, s. 9 bonds, still in force). The father was also convicted in 2008 for assault and intimidation of a police officer. On at least two occasions the mother has almost certainly assaulted the father. Police records show that a report of mutual domestic violence was received in 2005 with both parents suffering scratch marks and, in 2008, both were seen to have bruises, bite marks and scratch marks. 11 There is evidence of at least six incidents of significant domestic violence and the evidence strongly suggests that one or both of the children have witnessed that domestic violence. 12 There is evidence that, when involved in an incident with the mother, the father has verbally threatened violence to the children. 13 It should be noted that the most recently alleged incident of significant domestic violence either probably did not occur or, if it did, was of less seriousness than reported. It was reported to Ms. Hopkins that the mother had said that on 4th February 2008, that the father had smashed in her face and there was blood everywhere. The mother denies any act of domestic violence on that occasion but, more significantly, she was seen by at least one disinterested person that evening (a refuge worker) and that person looked for injuries but did not see any. It is highly unlikely that the mother would not have had noticeable facial injuries immediately after that incident if it had occurred as reported. The mother had no apparent facial injuries when seen by the refuge worker nor did I see any when she has been at court, as she has on each day that the case has been before the court. 14 At least one of the recent allegations of non-domestic violence against the father, an act allegedly committed in the presence of the children, would also be given little credence. It was reported to Ms. Hopkins that the father broke his father's arm when in a rage and in the presence of the children on 22nd October 2008. There are affidavits from the mother and the grandfather denying that such an incident occurred. The grandfather described such an allegation as "arrant nonsense" and in the absence of credible corroborating evidence (e.g. medical records) it is almost inconceivable that any weight would be given to the allegation. Summary 15 There is nothing to indicate that the children are other than well fed, well housed, well clothed and in good physical health. Katie is in her first year at school. There is nothing to suggest that their educational needs will be neglected. There is little of substance to indicate that the children have been, or are likely to be, physically mistreated. 16 It is unlikely that a court would conclude that the children are in need of care pursuant to grounds (a) and (b) of the applications except for the aspect relating to their psychological wellbeing. It is a different story in relation to ground (c). 17 There is a clear history of long-standing domestic violence in the household, that domestic violence increasing since the father's accident in 2005. The parents have recognised for some time that the pattern of domestic violence will have a deleterious impact not only upon themselves but upon the children. They have made some provisions for a course of action in times of tension and a copy of an agreement which they reached in November, 2008 (a time when they were temporarily living apart) is attached to this judgement. Some statutory provisions 18 Relevant parts of s. 9 of the Children and Young Persons (Care and Protection) Act 1998 state:

The principles to be applied in the administration of this Act are as follows: (a) In all actions and decisions made under this Act (whether by legal or administrative process) concerning a particular child or young person, the safety, welfare and well-being of the child or young person must be the paramount consideration. In particular, the safety, welfare and well-being of a child or young person who has been removed from his or her parents are paramount over the rights of the parents. (b) 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 well-being, 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. (c) In all actions and decisions made under this Act (whether by legal or administrative process) that significantly affect a child or young person, account must be taken 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. (d) In deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a 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. (e) 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. The approach a court should take in relation to an application for an interim order 19 The New South Wales Court of Appeal considered the proper approach to be taken when considering an application for an interim order in Re Jayden [2007] NSWCA 35. In paragraphs 61 to 79 the court outlines the relevant statutory provisions, the way in which the magistrate should approach the task and the difference between the making of final and interim orders. In paragraph 79 the court said:

"It is sufficient to say that, according to the Act, an interim order can be made if the Children's Court satisfies itself that it is not in the best interests of the safety, welfare and well-being of the child that he or she should remain with his or her parents …….. The Children's Court may be satisfied, for example, simply by weighing the risks involved on the evidence available at the time" Two important principles 20 Removal is a matter of last resort: there is nothing in the Act which specifically indicates that a child should remain with a parent or other family member unless the court is positively satisfied that such a placement would be contrary to the child's best interests. The statutory provisions outlined above, however, suggest that an order giving responsibility of a child to the Minister should only be made as an order of last resort. The majority of children are raised by their parents, the relationship between parent and child is one of the closest, if not the closest, of all relationships and the mere fact of the relationship will invariably receive substantial weight in any given case. This view receives support from decisions of the High Court and courts in the Australian Capital Territory and New South Wales. In L v Director of Family Services (1997) 22 Fam LR 275, Higgins J said in referring to the removal of children from the care of parents:

"It cannot be emphasised too strongly, in my view, that the best interests of a child require the …………… powers of the State to intervene between a child and his or her family only where not to do so creates an unacceptable risk of real harm, mentally or physically to that child. To do otherwise is simply to cause serious harm on the pre-text of doing good". 21 This approach was supported by Crispen J in CD v Chief Executive, Department of Education and Community Services (2000) 27 Fam LR 19. It was also the view maintained by the New South Wales Supreme Court in Ex Parte Minister for Child Welfare; Re Hancock & Anor (1967) 86 WN (Pt. 2) (NSW) 371. In that case the court was dealing with an application under s. 82 of the Child Welfare Act 1939, which contained provisions similar to the legislation which I am considering. The court was specifically considering the impact of making an order which would deprive parents of their child and Herron CJ said " … a court should not make such an order unless it is satisfied that no other course under s.82 would have been better suited to the occasion". Much the same view was expressed by the High Court in Minister for the Interior v. Neynes (1964) 113 CLR 411. 22 The significance of removing a child from his or her parents was also mentioned in Re Jayden (see preceeding paragraph). At paragraph 89 of the judgement the court said: "Removing children from the care and responsibility of their natural mother is a grave matter." 23 The likely impact upon children when raised in an atmosphere of domestic violence: literature compiled by Carol Boland, a clinical psychologist with a child protection service, was tendered and a copy is attached to the judgement. In addition I was referred to comments by Moore J in T and T FCA 1129. At paragraph 36, the judge said:

"It also hardly needs to be said that violent and abusive conduct by one parent against the other is highly detrimental to the well-being of children, whether they are witness to it or not. If they do witness it, anyone can see that such conduct can only be a traumatic experience for them. There is an abundance of research from social scientists about the highly detrimental effect upon young children of exposure to violence and the serious consequences such experiences have for their personality formation." Conclusion 24 It is virtually certain that a court would, on the evidence before me as to domestic violence committed mostly in the presence of the children, conclude that Katie and Robert are children in need of care. It is reasonable to conclude that, in the absence of compelling evidence of substantial action on the part of the parents to eliminate domestic violence from the atmosphere in which the children are raised, a final order would be made removing the children from them. 25 There is evidence that the parents have recognised the problem and have taken some steps to do something about it (see the attached parenting plan). The evidence filed on behalf of the parents as to the matters raised as the "Critical Incident" in Ms. Hopkins' affidavit suggest that those matters are not as serious one would be entitled to think they were based on what was reported to Ms. Hopkins (see paragraphs 8, 9 and 13 above). 26 Under those circumstances, leaving the children with the parents (subject to undertakings) until the case can be heard does not represent such an unacceptable risk of real harm to the children as to warrant an interim order of last resort.

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