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District Court 3 November 2017

FACS v AH and AN

[2017] NSWDC 412

Sexual offences
APPEAL RESTORATION: PARENTS' HEARING SEXUAL INTERCOURSE WITH CHILD PRESENT PORNOGRAPHY COLLECTION ATTACHMENT TO GRANDPARENTS

Citation: FACS v AH and AN [2017] NSWDC 412
Court: District Court of New South Wales
Date: 3 November 2017
Judge(s): Knox SC, ADCJ

Background

The proceedings concerned two young children, aged approximately five years and two-and-a-half years, who had been removed from their parents' care following the discovery of child abuse material on the father's computer during the execution of a search warrant in March 2015. The material included 319 files depicting the parents and their older child in sexual contexts. Both parents were subsequently convicted in the Local Court of producing child abuse material, and the father was additionally convicted of possessing such material. An appeal against those convictions was dismissed in May 2017.

Following removal, the children were placed with their paternal grandmother, with whom they had developed close attachments over nearly two years. A care application was made in the Children's Court in June 2015, and establishment findings were made that the children were in need of care and protection. The matter came before the District Court as a restoration appeal under section 91 of the Children and Young Persons (Care and Protection) Act 1998.

The Department of Family and Community Services (DOFCS) supported a supervised restoration of the children to their parents, subject to a structured transition and ongoing monitoring. The parents' younger child, born after the proceedings commenced, had already been returned to their care under a Children's Court interim order and remained under departmental supervision.

  • Whether parental responsibility for the two children should be restored to the parents, and on what conditions
  • The appropriate duration and content of any supervision order to support the children's transition
  • How the court should treat the parents' prior criminal convictions in the care proceedings, including the weight to be given to those convictions
  • The significance of the children's strong attachment to their paternal grandmother and the need to preserve that relationship
  • The risk posed by the father's diagnosed personality traits (including narcissism) and the power imbalance between the parents
  • Whether the undertakings offered by the parents were sufficient to manage the identified risks

Decision

Knox SC, ADCJ vacated the Children's Court orders of 15 December 2016 and made a restoration order placing the children under the supervision of DOFCS for a period of 24 months. During a brief transitional period, parental responsibility was allocated solely to the Minister, after which the supervision order took effect to support the children's return to their parents' care.

The court accepted detailed undertakings from both parents pursuant to section 73(1) of the Act. Those undertakings addressed a wide range of protective matters, including residing with the paternal grandmother for 24 months, permitting scheduled and unscheduled home visits, engaging with an intensive family support service, attending ongoing counselling, submitting to urinalysis and CDT testing, and abstaining from sexual behaviour in the children's presence until each child turns 18.

The court acknowledged the children's close and significant attachment to their paternal grandmother, developed at critical stages of their development. The undertakings were structured to preserve that relationship beyond the immediate supervision period, including minimum contact arrangements with the grandmother after any eventual change of residence.

The prior criminal convictions were treated as relevant to the assessment of risk, consistent with established authority on the use of convictions in care proceedings. The court also had regard to expert psychological evidence regarding the father's personality traits and the power imbalance within the relationship, viewing these as factors bearing on the protective capacity of the mother and the need for ongoing external oversight.

Orders Made

  • The Children's Court orders of 15 December 2016 were vacated.
  • Parental responsibility for both children was allocated solely to the Minister for Family and Community Services from the date of the orders until 15 November 2017 (a brief transitional period).
  • Both children were placed under the supervision of the Secretary, DOFCS for 24 months from 15 November 2017, to support their transition to parental care, monitor compliance with undertakings, and protect their safety and wellbeing.
  • The court accepted undertakings from the father and mother respectively (as set out in Annexures A and B), binding for two years unless otherwise specified.
  • DOFCS was ordered to file reports at 5, 11 and 22 months from the date of orders addressing the outcomes of supervision and whether further orders were needed.
  • Leave was granted to DOFCS to provide expert psychological reports to the parents' counsellor and the NSW Benevolent Society.
  • Leave was granted to release the reasons and judgment to supervisors, counsellors, parole or probation authorities, health and educational professionals involved with the children, and the Children's Court magistrate.
  • Costs were reserved.

Key Takeaways

  • A prior criminal conviction for production of child abuse material is a relevant consideration in care proceedings, and the District Court confirmed its use in assessing the ongoing risk posed to the children, consistent with established principles on the evidentiary weight of convictions.
  • Restoration orders in cases involving serious child protection concerns can be made subject to extensive parental undertakings under section 73(1) of the Act, structured to address identified risks over a defined period rather than requiring permanent removal.
  • Where children have developed strong attachments to a kinship carer during a prolonged placement, courts have regard to preserving those relationships as a component of any restoration arrangement, including through express undertakings about ongoing contact.
  • Expert psychological evidence regarding a parent's personality traits and the dynamics of the parental relationship, including power imbalance, can bear on the assessment of whether effective protective arrangements can be maintained.
  • Under section 76 of the Act, supervision orders must have stated reasons and purposes, and DOFCS may be required to provide the court with periodic reports assessing whether those purposes are being achieved and whether further intervention is warranted.

Legislation and Cases Referenced

Legislation:
- Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 43, 73, 76, 79, 91
- Child Protection (Offenders Registration) Act 2000 (NSW)
- Child Protection (Working with Children) Act 2012 (NSW)
- Crimes Act 1900 (NSW), s 91H(2)

Cases:
- Gianoutsos v Glykis [2006] NSWCCA 137; 162 A Crim R 64
- Allesch v Maunz (2000) 203 CLR 172
- Re Kerry (No 2) [2012] NSWCA 127
- Re Tracey [2011] NSWCA 43
- V V v District Court of New South Wales [2013] NSWCA 469
- M v M (1988) 166 CLR 69
- CAC v Secretary, Department of Family and Community Services [2014] NSWSC 1855
- Stone v Stone [2016] NSWSC 605
- Director-General, Dept of Community Services v D & Ors [2007] NSWSC 762