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District Court 29 September 2017

LZ and QJ v FACS

[2017] NSWDC 414

Domestic & family violence
APPEAL FROM CHILDREN'S COURT AVO ORDER TO PROTECT CHILDREN CHILDREN'S ATTACHMENT TO THE CARERS' SIBLING BOND WHETHER TO SEPARATE SIBLINGS CULTURAL CONSIDERATIONS

Citation: LZ and QJ v FACS [2017] NSWDC 414
Court: District Court of New South Wales
Date: 29 September 2017
Judge(s): Knox SC, ADCJ

Background

Two children, referred to as A (aged 12½) and Y (aged 6½), were removed from their parents' care in August 2015 after A was found by police barefoot and injured in the city on a winter's evening. She had sustained significant bruising and lacerations consistent with physical abuse. Both children were subsequently placed in foster care with experienced carers in southern Sydney, where they remained at the time of the appeal.

The parents, Chinese nationals residing in Australia, had been found guilty of assault occasioning actual bodily harm. The Children's Court allocated parental responsibility for both children to the Minister until each turned 18, finding no realistic prospect of restoration. The parents appealed to the District Court under s 91 of the Children and Young Persons (Care and Protection) Act 1998, seeking restoration of the younger child Y to their care, or at minimum an extension of contact arrangements. They did not press for the return of A, given the strength and consistency of her expressed wishes.

The matter was treated as a re-hearing, with fresh evidence admitted given the substantial changes in the children's circumstances since the original Children's Court orders.

  • Whether Y should be restored to her parents' care, or whether parental responsibility should remain with the Secretary
  • How to weigh Y's wishes, which had varied over time, against those of the older sibling A, who clearly and consistently opposed restoration
  • Whether the sibling bond between A and Y warranted keeping the children together in the same placement rather than separating them
  • How to account for the children's Chinese cultural heritage and identity in the placement and contact arrangements
  • Whether the risk of the parents leaving Australia with the children, given their status as Chinese nationals, warranted travel and passport restrictions
  • Whether criticisms of the carers by the parents' counsel had merit, particularly regarding alleged bias affecting expert evidence

Decision

Knox SC, ADCJ confirmed the Children's Court orders in relation to Y. His Honour found no realistic possibility of restoring Y to the parents, accepting that the children's best interests were served by remaining in the current foster placement. The close relationship between A and Y was a significant factor: A's strong, consistent, and longstanding wishes to remain with the carers would have made separation of the siblings both practically and emotionally untenable.

Y's wishes were more variable and context-dependent than A's and required more careful assessment. Nonetheless, the Court gave weight to both the children's attachment to the carers and the quality of care they were receiving, noting that both children called the carers "Mum" and "Dad" and were thriving academically and socially. The carers' connection to Chinese heritage, through the carer JA's ancestry, was considered a relevant factor in supporting the children's cultural identity.

The parents' criticism of the carers was not accepted. Concerns raised about the carers' alleged bias influencing expert opinion were rejected. Cultural considerations, including the use of Mandarin-speaking supervisors during contact, were built into the final orders to support Y's connection to her language and heritage.

The Court also addressed the risk that the parents, as Chinese nationals without Australian citizenship, might leave Australia with the children. Orders were made prohibiting removal of the children from Australia without the Secretary's written consent, reflecting this identified risk.

Orders Made

  • The Children's Court orders of 7 December 2016 in relation to Y are confirmed.
  • All aspects of parental responsibility for Y are allocated to the Secretary, except as provided in contact orders.
  • The Secretary is to file progress reports at 5 and 11 months from the date of orders, covering Y and A's progress in placement and Y's contact with her parents.
  • The parents are prohibited (under s 90A) from discussing the effect of the orders with the children except in the company of a counsellor nominated by the Department.
  • The parents are prohibited from denigrating the carers or A in Y's presence.
  • The parents are prohibited from removing the children from Australia without the Secretary's prior written consent.
  • Y is to have supervised contact with her parents under s 86 of the Act for 12 months, as follows:
  • For the first 3 months: one supervised visit per month, 4 hours on a Saturday or Sunday.
  • Thereafter: one supervised visit per month, 6 hours on a Saturday or Sunday.
  • Additional contact on Chinese New Year (17 February 2018, 6 hours), Christmas 2017 (6 hours on 24 December or 3 hours on 25 December), Y's end-of-school event, Mother's Day 2018 (3 hours), and Y's birthday (3 hours on 20 November).
  • Contact to occur at a reasonable venue nominated by the parents (not the carers' home); a Mandarin-speaking supervisor to be engaged where possible.
  • Contact duration and frequency, including possible telephone contact, to be reviewed in 6 months.
  • A may attend contact if she chooses.
  • Each child's legal representative may explain the orders and relevant findings to their client as professionally appropriate.

Key Takeaways

  • The District Court confirmed that where an older child expresses strong, consistent, and longstanding objections to restoration, those wishes carry significant weight and may effectively foreclose restoration even of a younger sibling, particularly where separation of siblings is contrary to the children's interests.
  • Sibling bonds constituted a material factor in the Court's reasoning: maintaining A and Y together in the same placement was treated as a benefit that could not readily be sacrificed in favour of restoring the younger child alone.
  • Cultural identity and language connection were treated as genuine considerations in constructing contact arrangements, reflected in orders for Mandarin-speaking supervisors to facilitate communication during visits.
  • Where parents are foreign nationals without Australian citizenship, a court exercising jurisdiction under the Children and Young Persons (Care and Protection) Act 1998 may impose travel restrictions prohibiting removal of children from Australia without the Secretary's consent.
  • Under s 91 of the Act, a District Court appeal from the Children's Court proceeds as a re-hearing, and fresh evidence may be admitted under s 92(2) where there have been substantial changes in the children's circumstances since the original orders.

Legislation and Cases Referenced

Legislation
- Children and Young Persons (Care and Protection) Act 1998 (NSW), particularly ss 82, 86, 86(2), 90A, 91, 92(2)

Cases
- DFaCS re Day [2012] NSW ChC 14
- "V V" v District Court of New South Wales [2013] NSWCA 469
- Director-General, Department of Community Services v D & Ors [2007] NSWSC 762
- Re Kerry (No 2) [2012] NSWCA 127
- Re Tracey [2011] NSWCA 43
- Donnell v Davey [2010] Fam CAFA 15