Important cases — Realistic possibility of restoration
[3-1420] VC v Secretary, Department of Communities and Justice (No 2) [2024] NSWDC 192
Whether realistic possibility of restoration of care of child to mother or father — whether all aspects of parental responsibility should be allocated to mother or father — appropriateness of permanency planning — assessment of care plan.
Department of Communities and Justice (DCJ) and the Dalton Tomkins Children [2023] NSWChC 10
Secretary made assessment that there is a realistic possibility of restoration — unsatisfactory case management — funded service providers — Children’s Court Clinic recommendations — unacceptable risk of harm — no realistic possibility of restoration of children to mother or father.
DCJ and Evie and Grace [2023] NSWChC 1
Twin infants had healing fractures at multiple sites — most probable cause was the application of excessive force by a parent — parents unable to explain injuries and children were assumed into care and placed with their maternal great aunt — non-exhaustive list of factors in assessing safety at [53] — parents are intelligent, educated and engaged with services as recommended by the Department — parents have made the children available for medical assessments and reviews and have personally undertaken medical tests in search of a medical explanation for the injuries — parents have both attended psychologists to address concerns about their capacity to support their children — exposure of the harm will cause both parents to reflect on the way they have handled the children and to closely observe the other when handling the children — children’s maternal uncle and grandparents will remain connected to the children and are alert to any signs of physical distress — children attend childcare three days each week and are supported by a nanny — risk of harm has been sufficiently mitigated such that the children are likely to be safe in the care of their parents — realistic possibility of restoration of children to their parents.
Secretary, Department of Communities and Justice v KH [2022] NSWCA 221
Summons for judicial review seeking to quash the orders made in KH v Secretary, Department of Communities and Justice [2021] NSWDC 498 — reasons of the primary judge do not form part of the record as they do not constitute an “ultimate determination” — District Court decision (realistic possibility of restoration of child to mother) not the “ultimate determination” — no more than a step towards an ultimate determination, and issues of parental responsibility, contact orders, and permanent care plans remain to be determined — no error of law disclosed — summons for judicial review dismissed.
GR v Secretary, Department of Communities and Justice [2022] NSWCA 153
Parental responsibilities allocated to Minister, Department of Communities and Justice until 18 years old — mother seeking to restore care — young person almost 18 years — insufficient prospects that alternative order would be made to justify granting leave to appeal — summons seeking leave to appeal dismissed.
Re Malakhai [2022] NSWChC 6
Application by mother for restoration — Aboriginal mother and child — s 13 Aboriginal and Torres Strait Islander Child and Young Person Placement Principles apply — vulnerable child with ongoing medical and health needs — mother and child living in an FSP residential home with no support — referral to residential intensive parenting education program did not eventuate — Family is Culture Report recommendation 45: prenatal caseworkers should be allocated to ensure that expectant Aboriginal parents have access to early, targeted and coordinated intervention services and support — mother needs targeted and therapist-lead counselling to assist her learn parenting skills — no realistic possibility of restoration to mother — mother demonstrated no insight into impact of her cannabis use on her ability to parent safely — domestic violence — permanency planning has not been appropriately and adequately addressed — direction that a new Care Plan be prepared.
Finn, Lincoln, Marina and Blake Hughes [2022] NSWChC 4
Application for supplementary Children’s Court Clinic Report — children separated from one another and have suffered ongoing abuse and neglect in care — no long-term foster carers available for any or all of the children — mother has started to take steps towards addressing issues that led to removal of children — need for courts to conduct holistic balancing exercise to assess realistic options for child — DCJ and clinician assessed no realistic possibility of restoration to mother — assessments undertaken before mother’s reported gains and when there was expectation of suitable long-term placement — mother being reconsidered for restoration — a further expert assessment is required — application granted.
Department of Communities and Justice and Jamzie [2022] NSWChC 1
Secretary commenced proceedings pursuant to s 61 of the Care Act — mother sought restoration of child — test in DFACS and the Steward Children [2019] NSWChC 1 (at [3-1420]) is too onerous and should not be applied — test in Department of Communities and Justice (DCJ) and Bloom [2021] NSWChC 2 followed — a realistic possibility may be evidenced at the time of hearing by a coherent program already commenced and with some significant “runs on the board”, or by the development of and commitment to a cohesive and viable plan that is sensible, practicable and viable within a reasonable time — realistic possibility of restoration within 18 months.
Secretary, Department of Communities and Justice v KH [2021] NSWCA 308
Secretary sought stay pending completion of judicial review — KH v Secretary, Department of Communities and Justice [2021] NSWDC 498 found realistic possibility of restoration of child to mother — amended care plan ordered — Secretary seeking judicial review in Court of Appeal — motion by Secretary to stay District Court orders pending determination of judicial review application — stay granted.
GR v Secretary, Department of Communities and Justice [2021] NSWCA 267
Appeal GR v Department of Communities and Justice [2021] NSWSC 1081 (see [3-1420]) (see [3-1220] for application for a tutor) — three notices of motion concerning a pending application for leave to appeal — application to set aside subpoenas — orders made as production of material unduly burdensome and would not facilitate appeal — orders sought to allow child to live with mother or allow daily contact — despite acceptance into the National Disability Insurance Scheme, no basis to override the care orders in place — notices of motion dismissed.
GR v Department of Communities and Justice [2021] NSWSC 1081
Appeal from care order of Children’s Court — Application to set side Final Care Orders and restore child to mother’s care — 17-year-old child has Autism Spectrum Disorder, Selective Mutism and Avoidant Restrictive Food Intake Disorder — child hospitalised due to severe weight loss — no realistic possibility of restoration — the mother is incapable of cooperating with DCJ or carers and has not accepted nor addressed the issues that gave rise to her child’s initial assumption to care — ongoing unacceptable risk of harm — nothing in evidence to warrant departure from orders of the Children’s Court — appeal dismissed.
Y v Secretary, Department of Communities and Justice (No 6) [2021] NSWDC 392
Appellant father sought restoration of child following removal on account of his violence — disrespectful behaviour of appellant in court — referral to the Attorney-General for consideration of appellant’s disrespectful behaviour (s 200A District Court Act 1973) — parental unfitness found — appeal dismissed.
Department of Communities and Justice and Bloom [2021] NSWChC 2
Application by father for restoration — 7-year-old child is in Aboriginal kinship care — mother has mental health issues and alcohol abuse and concedes child should not be restored to her, and supports the proposed permanent placement with current carers — the phrase “a realistic possibility of restoration” is summarised at [173]:
a possibility is something less than a probability; that is, something that is likely to happen. A possibility is something that may or may not happen. That said, it must be something that is not impossible
the concept of realistic possibility of restoration is not to be confused with the mere hope that a parent’s situation may improve
the possibility must be “realistic”, that is, it must be real or practical. The possibility must not be fanciful, sentimental or idealistic, or based upon “unlikely hopes for the future”. It needs to be “sensible” and “commonsensical”
a realistic possibility may be evidenced at the time of hearing by a coherent program already commenced and with some significant “runs on the board”, or by the development of and commitment to a cohesive and viable plan that is sensible, practicable and viable within a reasonable time
there are two limbs to the requirements for assessing whether there is a realistic possibility of restoration. The first requires a consideration of the circumstances of the child or young person. The second requires a consideration of the evidence, if any, that the parent(s) are likely to be able to satisfactorily address the issues that have led to the removal of the child
the determination must be undertaken in the context of the totality of the Care Act, in particular the objects set out in s 8 and other principles to be applied in its administration, including the notion of unacceptable risk of harm
— no realistic possibility of restoration of the child to either parent — Permanency Planning for the child is appropriate and adequate — father’s application under s 90 Care Act dismissed — Final Care orders allocating parental responsibility for the child to the Minister.
Secretary, Department of Communities and Justice and Fiona Farmer [2019] NSWChC 5
Application by father for restoration under s 83(4) Care Act — mother has mental health issues which affect her ability to parent — father demonstrated lack of understanding of mother’s health incapacity and failed to protect child — father has separated from mother — risk is minimal and is capable of being addressed — realistic possibility of restoration to father within a reasonable period — Secretary to prepare a different permanency plan involving restoration.
DFaCS and the Steward Children [2019] NSWChC 1
Application by father for restoration within a reasonable period under s 83 Care Act — “within a reasonable period” clarified — parent must have commenced a process of improving his or her parenting and that there has already been some significant success on the part of the parent which enables a confident assessment that continuing success might be predicted — AVO restricting father from having any contact with his children or the mother — no realistic possibility of restoration of children to mother or father.
Re Tanya [2016] NSWSC 794
Care and protection — child with Down’s syndrome and intellectual disability — whether child in need of care and protection — restoration to mother not realistic possibility given relationship with a known paedophile — restoration to father realistic possibility.
Re M (No 8) [2016] NSWSC 641
Appeal by mother for leave for rescission or variation of orders under s 90 Care Act — mother did not demonstrate that her conduct was likely to change in a way that would justify the court exploring the questions raised — application dismissed.
Re M (No 6) [2016] NSWSC 170
Appeal of care orders made by a Presidential Children’s Court — Five children from three fathers removed from mother’s care — Children’s Court orders granted parental responsibility of the three youngest children to children’s fathers — whether realistic possibility of restoration to mother — mother pursued a peripatetic lifestyle, alienation from the fathers and her family, physical neglect, poor relationship with her children and a poor attitude to the DFaCS — mother not demonstrated that she had full insight into her situation — order for a rescission or variation of the care orders refused.
S, DFaCS and the Harper Children [2016] NSWChC 3
Mother applied for restoration under Care Act — Secretary, DFaCS proposed care plan restoring children to their father — unacceptable risk of harm test — allegations mother deliberately injected fecal matter into eldest child via an intravenous line — mother poses an unacceptable risk of harm to children — no realistic possibility of restoration of the children to their mother — realistic possibility of restoration to their father.
Re Henry [2015] NSWCA 89
Judicial review — appeal from Children’s Court to District Court — whether the District Court correctly construed and applied the provisions of s 106A Care Act — challenge to Children’s Court order placing child under parental responsibility of Minister until aged 18 years of age — the court must assess, at the time the application is before it, whether there is a “realistic possibility of restoration”, that is to say, whether the “possibility of restoration is real or practical [and not] … fanciful, sentimental or idealistic, or based upon ‘unlikely hopes for the future’”: In the matter of Campbell [2011] NSWSC 761 (at [55]) — relevance of United Nations Convention on the Rights of the Child — what are the duties of a judicial officer to an unrepresented litigant.
Re Tracey (2011) 80 NSWLR 261
Application by mother for parental responsibility — Care Act — Convention on the Rights of the Child (CROC) — treaty obligations under the CROC may be a relevant consideration to the exercise of discretion in determining care application — judge erred in failing to take into account CROC Articles in exercising her discretion.