District CourtNew South Wales

Case Name: Re Jaden & Kalen (No. 2)

Hearing Date(s): 13 April 2018

Date of Orders: 17 April 2018

Date of Decision: 16 April 2018

Jurisdiction: Civil – Child Care (Appeals) List

Before: E Olsson SC

Decision: See paragraph 73 of these reasons for decision.

Catchwords: Scope of s 256A Care Act; discretion to dispense with need to serve Summons and documents on another person; procedural fairness; natural justice

Legislation Cited: Children and Young Persons (Care and Protection) Act 1998

Cases Cited: DFaCS (NSW) and the Colt Children [2013] NSWChC 5; Re Andrew [2004] NSWSC 842; J v Lieschke [1987] 162 CLR 447; Twist v Randwick Municipal Council [1976] 136 CLR 106; Re K [1965] Appeal Cases 201; In Re X [1996] FLR 186

Parties: Independent Legal Representative (Plaintiff)Children’s Court of New South Wales (First Defendant)Secretary, Department of Family & Community Services (Second Defendant)Minister, Family & Community Services (Third Defendant)AA (Mother) (Fourth Defendant)BB (Father of Jaden) (Fifth Defendant)CC (Father of Kalen) (Sixth Defendant)

Representation: Counsel:M Neville (Plaintiff)E Lawson (Second and Third Defendants)B Cochrane (Sixth Defendant)

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Solicitors:Randall Legal (Plaintiff)Crown Solicitor’s Office (Second and Third Defendants)Bolt Findlay Solicitors & Mediators (Fourth Defendant)G J Donaghy & Company (Fifth Defendant)Everyday Legal (Sixth Defendant)

File Number(s): 2018/91286

Publication Restriction: Yes - Pseudonyms have been used in order to anonymise the children and the parties

Decision under appeal

Court or Tribunal: Children’s Court of New South Wales (Lismore)

Before Magistrate MacMahon

Date of Decision: 8 March 2018

File Number(s): 2018/41243-001

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JUDGMENT

The appeal

1 This matter involves an unusual application brought by the independent legal

representative pursuant to s 256A of the Children and Young Persons (Care

and Protection) Act 1998 (the Care Act). Section 256A is headed "Children's

Court may dispense with service". Subsection (1);

"(1) If the Children's Court is satisfied that an unacceptable threat to the safety, welfare or well-being of a child or young person or a party to any proceedings would arise if any notice or other instrument required or authorised by this Act was given to, or any document served on a particular person, the Children's Court may make an order dispensing with the giving of notice or instrument to, or service on, the person concerned.

"(2) An order under this section excuses every other person from the requirement to comply with any provision of this Act that requires notification to, or service on, that person."

2 The application is an appeal against an order of the Children's Court sitting in

Lismore made on 8 March 2018, dismissing an application made pursuant to

s 256A. The care proceedings concern two children known by pseudonyms,

Jaden, who was born on 24 May 2007, and Kalen, born 22 June 2017.

Jaden's mother is AA and his father is BB. Kalen's mother is AA and his

father is CC. For convenience I will collectively refer to them as “the parents”.

The plaintiff is the independent legal representative who was the appointed

independent legal representative for the children in the Children's Court.

The background

3 On 2 February 2018, Jaden and Kalen were removed from the care of the

mother and CC (with whom she had a current relationship) by officers of the

Department of Family and Community Services.

4 The basis for their removal was a risk of physical and psychological harm due

to significant domestic violence and exposure to domestic violence. The

domestic violence was alleged to have been perpetrated by CC on the mother

and to have posed a real and serious threat to the mother's life and the

children's safety, welfare and wellbeing. The mother had attempted to flee the

3

relationship with the children only weeks prior to their removal but had

returned to CC. The children were assessed as being at immediate risk of

harm.

Initiating care proceedings and s 256A application in Children’s Court

5 On 7 February 2018, the Secretary filed an application initiating care

proceedings in the Children's Court at Lismore. The application was not

served on any of the parents. On 14 February, the Secretary of the

Department of Family and Community Services, the second defendant, made

an application to the Children's Court to dispense with service on each of the

following pursuant to s 256A of the Act: AA (the mother and fourth

defendant), BB (Jaden's father and fifth defendant), and CC (Kalen's father

and the sixth defendant). The application was made pursuant to s 256A of

the Care Act. The Children's Court heard the application on 22 February

2018.

6 The ILR and the mother supported the Secretary's application. Each of the

fathers' representatives opposed the application. On 8 March 2018, the

Children's Court delivered judgment and dismissed the application. His

Honour was not satisfied that the evidence in respect of BB justified making

the order sought. With respect to CC, His Honour was similarly not satisfied

that the evidence justified the making of the orders. In doing so, his Honour

noted that it was possible for the material to be redacted so that the

documents relating to the application for care could be provided to each of the

fathers without identifying the principal complainants.

7 The matter of principal concern was that, more particularly in the case of CC,

the history of violence towards the mother is so extreme that there existed an

appreciable risk that, upon discovering that AA had made complaints or

disclosures to the officers of the Department, a more extreme response would

be triggered.

8 As I have said, the Children's Court dismissed the s 256A application.

4

9 The Secretary advised the ILR that he did not propose making a redaction of

any of the documents.

10 The ILR then made an application to the Supreme Court on 15 March 2018

for an interim order restraining the legal representatives for each of the

mother and fathers from providing their clients with a copy of the Children's

Court material. This order was made, pending further orders of the Supreme

Court or an order of the District Court of New South Wales.

11 By a summons filed in this Court on 16 March 2018 pursuant to s 91 of the

Care Act, the ILR appeals against the dismissal of the application.

12 The Children's Court proceedings are listed on 19 April next. No decision has

yet been made as to whether the children are in need of care and protection

pursuant to s 72 of the Act, although they are in foster care at the moment.

The plaintiff presses prayers 6 and 9 to 13 of the present summons.

Legal considerations

13 The Act is administered under the principle that in any action or decision

concerning a particular child or young person the safety, welfare and

wellbeing of the child or young person is paramount; s 9. The underpinning

philosophy by which all relevant decisions are to be made operates expressly

to the exclusion of parents and operates exclusively for the safety, welfare

and wellbeing of the child or children; see DFaCS (NSW) and the Colt

Children [2013] NSWChC 5 at paras 146 to 147.

14 Children's Court proceedings are to be conducted as far as possible without

legal formality, without adversarial approach and with as little formality and

technicality as the circumstances of the case permit. The strict rules of

evidence do not apply, but neither do 'Rafferty's rules'. The proceedings must

be conducted in accordance with procedural fairness and natural justice.

15 Wood CJ at CL in Re Andrew [2004] NSWSC 842 considered the extent of

procedural fairness or natural justice balanced with the interests of the safety,

5

welfare and wellbeing of children. In that case, the Court was asked to

consider whether the Children's Court proceedings could be conducted

without service upon a party absent any express provision in the Act. (At that

time, the Act did not include a section such as 256A). Nevertheless, the dicta

of Wood CJ pertains to the present proceedings. His Honour said:

"Procedural fairness is a universal principle of the law and for a court to make an order that would directly affect the rights of a person having parental responsibility for a child without giving that person an opportunity to be heard would involve a significant departure from such principle. The tenor of the Act in various provisions of the Act underline a legislative intention that those with the parental responsibility of a child have a capacity to participate in proceedings involving their child."

16 These are rights which are important rights and not to be dismissed or denied

lightly. Similarly, the paramountcy of the safety, welfare and wellbeing of the

child over the rights of the parents cannot be overlooked and ultimately it

becomes a matter for the Court to weigh the respective consideration of one

against the other.

17 The rules and principles applicable to this area of jurisdiction should serve the

Care Act and not thwart its purpose. It is only in exceptional circumstances

that the power to dispense with service is enlivened, that is, where service

upon or participation of the parent in proceedings would unacceptably

threaten the safety, welfare and wellbeing of the child. The power must be

read in a way that reflects the need to balance the interests of natural justice

and those of the child.

18 The precise threat or risk enunciated by the ILR is this: that there exists or

may exist a direct threat directly to the safety, welfare and wellbeing of the

children and the mother by disclosure of the evidentiary material. I will turn in

a moment to the evidence that might support that position but I note that as

the children are in care, the risk to their safety and welfare is qualified, at least

at the moment.

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Evidence

19 The evidence identified various matters as giving rise to the level of risk.

20 The first was a bundle of documents subpoenaed from New South Wales

Police Force. They include criminal record checks and COPS records of

police attendances on the parents. They cover the period approximately 1995

to 2014. The lengthy histories set out a pattern of violence in the relationships

with the mother. It is the nature of the entries and the number of them which

is most concerning. Some of the matters reported did not result in action

taken by police, principally, as I understand it, because the victim (mother) did

not want to give a statement and did not want to proceed with the matter.

21 The following is a selection of the entries:

In relation to BB

1 December 2013 : BB picked up the mother’s mobile phone, “forcefully

throwing it onto a benchtop and then onto the floor and stamping on it,

shattering it and rendering it useless. Then taking hold of AA's shoulders,

forcing her backwards causing her back to strike the laundry door and for her

to fall to the floor.” He then “shoved her in the back” with his hands, causing

her to stumble forward into the living room and fall down.

As she rose to her feet, he pushed her backwards and pinned her

against the lounge room sliding door. He took hold of the rear of her

neck with his left hand and pushed her head towards the kitchen gas

stovetop. He forced the victim's face against the stovetop and reached

with his right hand and turned on the dial releasing the gas directly into

the face of the mother and saying things like ‘I could kill you now if I

wanted to’. He released her. He pinned her against him and squeezed

her tightly causing her to feel an amount of pain and so on. He said

things like, ‘You're dead, you fucking slut. You wait to see what's

coming to you’.

7

The entries continue for some pages in the same vein and characterise

the relationship between the mother and BB as brutal, violent and

abusive.

31 March 2015 : records that BB and the mother collected the child as per

mutual custody arrangements and he made overtures to resume their

relationship which she resisted. Thereafter, he sent her a number of SMS

messages indicating a desire to rekindle the relationship, but then they

seemed to get a little more threatening, saying things like, "I will be there

soon."

The Police notes record that she realised that in fact he was just

outside her apartment door when he was making some of these phone

messages. She received three further SMSs from him which were in

the terms of "You slut, you, your baby, see you and your lies, do you,

slut go die," and so on. BB started kicking at the security door of the

unit which had previously been damaged by him and was not lockable.

Ultimately, the BB entered the house with a knife in his hand with which

he threatened the mother's friend. There was what can only be

described as an assault occasioning actual bodily harm between the

three people. The mother received a black and swollen right eye,

distinctive bite marks on her arm and pain in her right thigh. Her

companion had slash marks to his lower abdomen and four distinctive

slash marks to the upper left thigh. He also suffered from pain and

swelling to the facial area.

23 March 2016 : the mother was sitting in a caravan park when she received

a mobile phone call, which was saved in her list of contacts as BB. BB

apparently said, "I know where you are," and the mother said, "Where is

that?" He said, "Caravan Park, [suburb]." The mother said, "No, what makes

you say that?" BB said, "Your sister," to which the mother said, "What do you

plan on doing when you get there?" and he said, "I'm going to hit you with the

truck."

8

The mother was shaken after hearing the father knew where she was

living as she had managed to keep that a secret for some time.

Interestingly, the father, BB, made full admissions to placing the call to

the mother but denied that it included a threat to her.

22 Turning to CC, there are discouragingly similar entries.

There were multiple reports of stalking and intimidation and common assault.

There was strong evidence of the use of drugs and alcohol.

There were numerous entries giving details of CC assaulting the mother,

choking her, pushing and striking her. Some of these incidents were

witnessed by the child or children.

On one occasion the mother tried to collect her belongings from the caravan

in which they had been living. He ran at her, causing her to fall backwards out

of the caravan. The police who attended thought that she was affected by

drugs and alcohol and the father was shouting abuse at her while the police

were trying to ascertain what had happened. The mother told the police that

they had been smoking an ice pipe that morning and conceded that they

smoke it whilst on the property (and in front of the children).

On 13 September 2014, the mother told the police that CC was assaulting her

and that he pushed her and at the time he pushed her, he had a glass in his

hand. He pushed her and tried to close the door. The glass smashed into her

face causing a 4 centimetre cut to her bottom lip. She had six stitches in her

lip. She said later in that day, he pushed her onto the lounge and that he

choked her and kicked her about her belly - at this time she was pregnant with

the child Kalen - and that he had also choked her and dragged her through

the caravan by the hair at times without her feet touching the floor.

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Police spoke with the father's mother who said this was a normal everyday

occurrence and her excuse for him was that he was detoxing and that was

why his behaviour was so erratic.

23 An AVO was granted against CC with respect to the mother.

24 Depressingly, the police records go on and on in this vein for years.

25 AA told the caseworker that just prior to Christmas 2017 CC hit her so hard he

broke his hand. I pause there to say that there are medical records from the

local hospital which confirm that CC attended just prior to or at Christmas

2017 with broken bones in his hand.

26 A risk of harm report was received (18 December 2017) that the mother had

been choked by CC until she passed out. Both children were home at the

time, and that at one point, CC threw the baby (Kalen) at AA. He had already

chased her around the local hotel, threatening to kill her. Patrons were

alarmed enough to phone 000. Jaden told caseworkers that he did not want

to live with his father and was upset.

27 More recently, however (11 January this year) the mother was observed by

FACS caseworkers to have significant facial injuries and she appeared very

scared. She told caseworkers that CC had assaulted her, that the violence

was increasing and that his mental health was deteriorating; he was becoming

increasingly paranoid and even though his use of ice was decreasing, he

continued to deal drugs from the home and was now stressed both from

owing money for drugs and from the detoxing from the drugs themselves.

28 She said both children were being exposed to serious domestic violence. CC

assaulted her and had choked her into unconsciousness. At one point, she

was reported as having two black eyes, a broken collarbone and bruises to

other parts of her body.

29 Notwithstanding the AVO, AA and CC continued to reside together.

10

30 On 11 January 2018 the mother told staff in the FACS office that she wanted

herself and the children to escape the current situation. Regarding the

imperative to eliminate any further harm, she was told by the FACS office that

a return to CC would very likely result in the removal of her children due to the

severity and the escalation of the violence. FACS provided her with tickets to

go to Sydney to get away from him. She did so but returned to him.

31 On 1 February 2018 the decision was made by the department that the risk of

harm to both children was too high and they took the children into care on the

basis that AA was unable to protect and care for them.

32 The main affidavits in these proceedings were sworn by the caseworker. In

her affidavit of 14 February 2018, she gave evidence about the father using

Ice, selling Ice, AA having numerous incidences of having black eyes,

scratches, bruising and so on. Other ROSH reports annexed to her affidavit

suggested that Jaden was showing signs of depression and behavioural

problems and he was waking during the night because of CC's assaults upon

AA. One particular caller said that Jaden was observed to be extremely

anxious, profoundly sad and unhappy and easily agitated and very

aggressive.

33 The caseworker observed on 12 January that AA had two black eyes, bruising

to her face and had an abrasion under her left eye. AA said that CC had

assaulted her a couple of days ago.

34 The caseworker gave evidence that AA disclosed that CC was becoming

more violent and the assaults were increasing in frequency and severity. She

said he was frequently hitting her on the head and that she was suffering from

a continual headache and could no longer see clearly out of her left eye. She

admitted to the caseworker that it was likely that “one day he would kill her".

As I have said earlier, as a result of those disclosures, arrangements were

made for her to move to Sydney and that happened on two occasions, but

she returned to CC.

11

35 The department sought the advice of the clinical psychologist, Dr Spencer, for

the purpose of obtaining a report about the likely triggers for CC’s violence

and whether he might react adversely when discovering care proceedings had

been initiated. Dr Spencer had a disadvantage in that he did not speak to

anyone firsthand about the matter but was supplied with the affidavit of the

caseworker, the Care Application, the document bundle to which I have

referred, and a telephone conversation with the caseworker. His report

properly reflects those limitations.

36 He was asked to assess the level of risk of harm to AA and the children as a

result of the exposure to violence and substance abuse. He concluded from

the material before him that there was overwhelming evidence to indicate that

the mother had already been subjected to high levels of domestic violence

and, despite efforts to assist with her stated desire to end the abusive

relationship, she had been unable to do so. Dr Spencer noted that this

pattern of behaviour was unfortunately not unusual in situations of chronic

domestic violence.

37 The psychologist applied a specific assessment tool, which is called the

Domestic Violence Safety Assessment Tool, DVSAT, which was developed

as a result of the New South Wales government domestic and family violence

framework reforms. It poses specific questions which note the presence or

absence of 25 known risk factors. On the basis of responses to each

question, it then identifies a level of risk rated as being either “at threat” or “at

serious threat”. The test result recorded by AA was "serious".

38 Dr Spencer said that given what had already been documented about the

violence visited upon AA by CC and that the present relationship was not the

first to be characterised by domestic violence, in his opinion it was reasonable

to conclude that irrespective of whether the various parties are served with the

court documents, AA is in a situation of serious threat of future violence.

39 The level of violence is intensified by various triggers. Dr Spencer referred to

recent research that suggests that triggers may be real or imagined and they

12

include things like threats of ending the relationship, the need to assert

control, dominance, threats to feelings of entitlement or superiority and so on.

Critically, also, a need for revenge, that is, punishment for perceived failings

or wrongdoings, is a likely trigger for violence.

40 If CC felt betrayed by AA and Jaden, Dr Spencer thought it would present a

very real and probable trigger for further abusive behaviour occurring. Dr

Spencer opined that whether such abuse occurs or not would depend on a

range of factors that are very difficult to predict. He thought that serious risk

exists if CC sees the situation is one in which he is no longer able to exercise

the control he believes he should have. Although Jaden no longer has direct

contact with his mother or CC, Dr Spencer's view, from his experience with

dealing with children exposed to domestic violence, was that it was

inconceivable that Jaden would not continue to feel a sense of vulnerability.

41 This feeling would (naturally) be exacerbated by him learning that his mother

had been further abused or, at worst, killed. Dr Spencer took account of the

fact that because the children were in out-of-home care, no physical threat

exists to them, but opined that they would be directly impacted if anything

happened to their mother.

Discussion

42 In short, there is a history of violence by both fathers that has caused police to

attend on numerous occasions. Those occasions have been characterised by

alcohol, drugs and extreme violence. Apprehended domestic violence orders

have been made. Further, it was observed that the mother seemed unable to

permanently leave abusive relationships. In fact, at the moment she is living

with CC.

43 The COPS documents, as I have said, span a number of years and there

have been numerous events to which police have been called. Some of them

have resulted in criminal charges being laid and all of them are characterised

by an element of hearsay in that there are no direct statements from police

with respect of who said what to whom. But every single one of those entries

13

involves Ice or other drugs, extreme violence or both. These entries have

been made by many different police officers who have attended the disputes

over the course of the years, but they speak with one voice. Although those

records taken alone do not constitute a proof of systematic violence by BB

and CC, they are persuasive and ought to be given considerable weight.

44 The COPS records can be taken as a contemporaneous note by police as to

what was happening at the time they attended. A review of the FACS file

from the period April 2017 to January 2018 shows CC's appearance in the

relationship coincident with numerous risk of serious harm reports with

respect to the children. Whilst these are anonymous, they have a depressing

similarity to them, leading to the observations made on 11 January when AA

presented to caseworkers with serious facial injuries which she attributed to

her partner. She is recorded as saying that he was “getting worse”, the

violence was getting worse and that she thought “he would kill her”.

45 The risk of serious harm reports, whilst also not proof in themselves, are

characterised by references over a period of at least 12 months to the same

matters: violence, the drug Ice, and dealing the drug Ice from the premises.

There was also a strong suggestion that CC had a taser in the house that he

had used it on AA. The list goes on and on.

46 The caseworker noted that the mother had been engaged for two years with

an organisation which provides assistance for (inter alia) domestic violence.

That organisation helped AA with urgent accommodation, but she repeatedly

breached agreements with them by allowing CC to reside with her. She was

evicted from the accommodation. I previously mentioned, on a number of

occasions she was given financial assistance to fly to Sydney to get away

from him, but unfortunately each time her resolve broke down and she

returned to him.

47 The magistrate declined the application brought by the Secretary. I have

already referred in part to his Honour's decision, but his Honour also noted on

a number of occasions that in care matters reports of domestic violence were

14

not uncommon. Undoubtedly that is true, but that does not minimise the level

of risk in this particular case. The fact is that this matter is characterised by

violence and very serious violence.

48 I have earlier said that his Honour declined the application by saying that the

department could redact the material. I cannot see how that can ameliorate

the risk in this case. It would render the fathers' participation nugatory

because they would be excluded from any material evidence relating to the

foundation for the children being taken into care. All references to interviews,

telephone calls, notes of conversations with the mother and Jaden and the

caseworkers would similarly need to be carefully redacted. I am satisfied that

redaction would not work in the present case, even if the Secretary was

minded to do it.

49 Turning then to the most critical question, which is how to balance the risk

with the principles of natural justice and procedural fairness.

50 In this jurisdiction, the safety, welfare and wellbeing of the children is

paramount: s. 9 of the Care Act. It is submitted by the Independent Legal

Representative that the potential for harm to the children, if the risks identified

were to be realised, is unacceptable, and that the threat to the safety, welfare

and wellbeing of the mother is also unacceptable given the reported history of

violence against her. Clearly the legislation and the authorities provide that

parents should participate in decisions pertaining to their own children and

that their participation should only be curtailed or excluded in exceptional

circumstances. This can hardly be overstated. They are, after all, parents of

the children and have every expectation of continuing to be their parents, and

taking that right away from them, and indeed taking it away from their

children, is a matter of grave concern.

51 Even before the enactment of s. 256A the Court had power to order that

material not be served on certain people: Re Andrew [2004] NSWSC 842

15

52 His Honour noted that it was only in exceptional circumstances that a power

to dispense with service could be exercised and that is where service upon or

participation of a parent in a proceedings would unacceptably threaten the

safety, welfare and wellbeing of the child. Cases such as J v Lieschke [1987]

162 CLR 447 and Twist v Randwick Municipal Council [1976] 136 CLR 106

provide a firm affirmation of the essential role for procedural fairness and the

necessity only in exceptional circumstances to qualify those principles where

they might frustrate the purpose for which the jurisdiction is confirmed.

53 Re K [1965] Appeal Cases 201 was an early decision that recognised

circumstances may arise in which natural justice and procedural fairness

might be overridden by the exigencies of the case at hand. The case has

limited application because it was put as a theoretical question to determine

whether or not a party to proceedings regarding a ward of the Court had an

absolute right to all evidence placed before the Court.

54 In Re X [1996] FLR 186, a case concerning a child who had been born to a

17-year-old girl of the local Bangladeshi Muslim community and her brother-

in-law, the Court confirmed that although the Court was concerned with the

welfare of the mother and her broader family, its chief concern was with the

subject child. There was expert evidence available which established a

causal link between potential revelation of the patrimony of the child and

potential catastrophic familial consequences the Court was concerned to

avoid. On that basis, the orders were made. The dicta of the court is strong

and persuasive to circumstances such as the present, but I think that it has to

be distinguished on the basis that in it, the expert evidence was very specific

and related to matters involving that community and culture.

55 I have considered whether either father is likely to assault AA again, and for

that matter, assault her whether or not he is provided with details of the

application. There is no evidence either way, but the history is strongly

suggestive that CC, in particular, is likely to assault AA again. The question is

whether that likelihood would be increased or be triggered by his discovery

that she and Jaden had made complaints or disclosures against him. I note

16

that there is evidence that CC does not like Jaden and has been (at least)

verbally abusive to him and about him.

56 On balance, it seems to me that the proceedings would likely lead to a

heightened level of violence against the mother especially if CC knows that

AA or Jaden have reported his behaviour.

57 The children are in care and relatively safe at the moment, but they have a

strong bond with their mother. Any harm that befell AA would have an

enormous impact on their lives and would make their precarious emotional

repair and development even more compromised.

58 Balanced against that risk is a very serious step of denying a person their

fundamental right, one which can truly be said to have been the cornerstone

of common law since 12 June 1215 (Julian calendar) when King John signed

the Magna Carta. It must not be revoked lightly nor without very careful

reflection.

59 The father may be able to instruct solicitors to oppose the application and to

put the department to strict proof, but that is a long way from having the

opportunity of making a full and informed decision from which to defend the

application. The essence is that it will preclude the fathers of each child from

knowing how and why their children have been taken into care and why the

Secretary is seeking that they remain under His parental responsibility until

they attain the age of 18 years.

60 The father's representative argues that the question of whether the domestic

violence constitutes an exceptional case warranting the intervention of the

Court pursuant to s 256A is a paramount matter and argues that there is a

relative paucity of first-hand evidence of the injuries inflicted on AA.

61 It was put, for example, that much of the evidence, including the mother's

broken collarbone, was inferential or hearsay. The documents show that no

17

more than an assault occasioning actual bodily harm had been proven in

court.

62 In my view, this submission grossly understates the evidence. The mother

gave clear evidence to the caseworker, and Jaden made unequivocal

comments to her that really leave little room for doubt that the level of violence

is serious, is increasing and could easily result in AA's death or actual bodily

injury.

63 The COPS reports, whilst of limited probative value in themselves, are

corroborative of the level of violence in the home. Most importantly,

disclosures were made by Jaden as to what was occurring and the impact it

was having on him. His words speak loudly and clearly.

64 It is true that CC’s violent behaviour might occur anyway and it might be

increased by the fact of the proceedings whether he knows the content of the

material or not. It is a very, very difficult matter to balance. On one hand,

violence seems to be increasing anyway and there is no clear evidence of

what triggers that violence or what might trigger increased violence, but the

violence is very real and of a very serious nature. At this stage it has possibly

caused AA to have a neural impairment as well as physical bruising and other

injuries.

65 The case for the department to obtain final orders for the children in care is

very strong. The terror that has been instilled in at least one of the children

suggests that it is more likely than not that the department would succeed in

the application to have the children taken under the parental responsibility of

the Minister.

66 None of these factors are conclusive on their own, but putting them all

together tips the matter in favour of granting the application. In my view, there

is sufficient evidence of actual and serious violence. There is a probable risk

of the violence continuing. Redaction of the material will not work. The Court

18

needs to make every effort to protect the children and their mother and I so

find.

67 The one question that remains is how the orders ought to be formulated with

respect to BB and CC. With respect to CC, the orders ought to be simply that

he not be served with any of the material.

68 With BB, the situation is different. The violence is real and significant and the

parties were in a relationship for a long time, but they are no longer in a

relationship, and I am told that he has no relationship with CC. So the risk

would seem to be lessened considerably on the part of BB. I do not think that

the circumstances in that case warrant an order under s 256A being made

against him.

69 However, an order made under s 90A against BB is warranted and

appropriate. The court may make an order:

"prohibiting any person, including a parent of a child or young person or any person who is not a party to the care proceedings, in accordance with such terms as are specified in the order, from doing anything that could be done by the parent in carrying out his or her parental responsibility."

70 This section includes the power to make an order prohibiting BB from sharing

any material with which he is served or otherwise receives or has access to

with either the mother or CC.

71 I note that the mother may not oppose the final care orders being made. It is

not clear whether the intention is that she will be served with the material or

not. If she is served with it, there is a serious risk given the sad history of the

matter, that she may well share the information with CC in any event.

72 In my view, if the mother is served with all material relating to the Application it

is more than likely that she will deliberately or inadvertently reveal it to CC.

For this reason I intend to include AA in the orders. I do so reluctantly but

pragmatically. I have considered whether the same outcome might be

achieved by making a s 90A order against her, but in my view the risk that she

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will be persuaded to reveal the documents or the nature of their contents to

CC is unacceptably high.

Orders

73 I will make orders in accordance with para 6 of the Summons:

(a) that the order of Magistrate MacMahon refusing to make an

order under s 256A to dispense with service of the mother and

CC on 8 March 2018 be set aside.

(b) that pursuant to s 256A of the Care Act the requirement for the

mother and CC to be served with the Application and report filed

on 7 February 2018; the s 256A Application filed on 14 February

2018; the bundle of documents dated 14 February 2018; the

affidavit of [caseworker] sworn 14 February 2018; and the

affidavit of [caseworker] sworn 21 February 2018 is dispensed

with.

(c) that pursuant to s 90A of the Care Act, BB is prohibited from

providing any information about and/or copies of the Application,

and report of 7 February 2018, the s 256A Application, the

bundle of documents dated 14 February 2018 and the affidavits

of [caseworker] of 14 February 2018 and 21 February 2018 that

I have referred to above to the mother or CC.

(d) The Secretary for Family and Community Services may only

provide non identifying placement information in respect of the

children to the mother and CC pursuant to s 149(1) of the Care

Act.

(e) The solicitors for the mother and CC are not released from their

undertakings given to the Children's Court on 22 February 2018

not to disclose the information contained within the documents I

have referred to above.

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(f) The Secretary is directed to serve CC and the mother with a

short summary of the child protection issues raised in the

Children's Court proceedings so that each parent can respond in

a general way.

74 I will enter the formal orders tomorrow, being 17 April 2018. If the parties are

able to agree the form of orders, they can provide them to my associate and I

will make the orders in chambers.

75 I grant leave to the parties to apply to my associate to vary or oppose these

proposed orders by 4pm tomorrow, Tuesday, 17 April 2017 and in the

absence of any such application these orders will become final.

76 The exhibits may be returned.

77 These reasons for decision are restricted from publication but may be made

available to legal practitioners upon request only on the basis that they

undertake to the court not to disclose any or all of the judgment, insofar as it

refers to the identities of the parties, to any other person.

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