Children's Court New South Wales Medium Neutral Citation: Department of Communities and Justice (DCJ) and the Barnett Children [2020] NSWChC 5 Hearing dates: 18 March and 22 April 2020 Date of orders: 22 April 2020 Decision date: 28 May 2020 Before: Children's Magistrate Virgo Decision: The joinder application is dismissed Catchwords: CHILDREN – Care and protection – joinder - application under s 98(3) of the Children and Young Persons (Care and Protection) Act 1998 – safety, welfare and well-being of the children – whether the Court should exercise its discretion – delay - arguable case - authorised carer – children under the care of the Minister - jurisdiction for review of removal of children from authorised carer Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 Children and Young Persons (Care and Protection) Amendment Act 2018 Inclosed Lands Act 1987 (NSW) Cases Cited: Bell-Collins v Secretary, Department of Family and Community Services [2015] NSWSC 701 EL & WL v Director-General of the Department of Human Services & Ors [2010] NSWDC 248 GO v Secretary, Department of Family and Community Services [2017] NSWDC 198 EC v Secretary, NSW Department of Family and Community Services [2019] NSWSC 226 Category: Principal judgment Parties: The Applicant, Felicity Barnett, the children's Grandmother The Secretary, Department of Communities and Justice The Children's Mother, Elizabeth Barnett The Children's Fathers, Neil Dempster and Jason Baxter The Children Representation: Ms Pennicott, solicitor for the Applicant Ms Foster, solicitor for the Secretary Ms Carruthers, solicitor for the Mother Ms Hale, solicitor for Mr Dempster, father of Danielle Barnett Ms Flynn, solicitor, Independent Legal Representative for Danielle and Jack (ILR) File Number(s): 2018/00058215 Publication restriction: Pseudonyms have been used in order to anonymise the children and parties Judgment 1. On 22 April 2020 I delivered a short ex tempore decision refusing leave for the Applicant's joinder to care and protection proceedings relating to two of the Applicant's grandchildren, Danielle and Jack. These are detailed reasons for that refusal. 2. The proceedings commenced with the filing of an application under s 90 of the Children and Young Persons (Care and Protection) Act 1998 (the Care Act) by the children's ILR, (the s 90 Proceedings) on 10 December 2019. 3. By her application under s 98(3) of the Care Act, dated 22 January 2020, the Applicant sought to be joined to the s 90 Proceedings seeking sole parental responsibility for the two children and for the children to be returned to her care, (the Joinder Application). That is, the Applicant seeks to have previous care orders made in respect of the children rescinded and in their place, different orders that would give her sole parental responsibility. The Hearing 1. By agreement between the parties, this matter proceeded on the papers with oral submissions. There was no oral evidence or cross-examination of witnesses as to their recollection of events. Tendered Evidence 1. The Court received the following affidavits and documents into evidence: * Section 82 of the Care Act. Report dated 27 September 2019 for Danielle and Jack * Letter from DCJ to the Children's Court dated 22 November 2019 * Application for rescission or variation of orders under s 90 of the Care Act filed by ILR dated 10 December 2019 * Affidavit of Ms Kylie Wilson, caseworker, dated 21 January 2020 * Application for joinder under s 98(3) of the Care Act dated 22 January 2020 and Affidavit in support affirmed by the Applicant, Ms Felicity Barnett * Affidavit of Ms Kylie Wilson, caseworker, dated 18 February 2020 * Affidavit of Ms Felicity Barnett dated 9 March 2020 * Affidavit of Mr Neil Dempster affirmed 12 March 2020 * Care Plans for Danielle and Jack filed on 13 March 2020 1. In addition the Court was assisted with Case Management Documents filed by the Secretary, the ILR and the Applicant. 2. I assessed the filed material from which I note there was little by way of copies of reports, notes of phone calls, minutes of meetings and other contemporaneous records annexed to that material as additional support for the various references in the affidavits to actual meetings held, to phone calls made and to the existence of reports relied on. Background 1. I accept the history set out in the affidavit of the Department of Communities and Justice (DCJ) affirmed by the caseworker, Ms Kylie Wilson (Ms Wilson) and dated 21 January 2020 at [14] to [18] concerning the children's removal from their mother into the care of the Minister for Families, Communities and Disability Services (the Minister) and their subsequent placement with the maternal grandmother, the Applicant. I note that the children were placed with the Applicant to support a phased restoration to their mother's care under final orders made by the Children's Court on 19 December 2018. Parental responsibility for the children has remained with the Minister since final orders were made. 2. Final orders for the children included the following key terms: 1. Parental responsibility allocated to the Minister for a period of 2 years 2. A s 82 report to be tendered to the Court at 9 months from Final orders to provide an up-date in relation to: 1. The children's health and general progress 2. The implementation of the care plan including the placement of the children and contact arrangements 1. Parental responsibility to revert to the mother after two years. 1. The children's original care plans dated 11 September 2018 included a list of minimum outcomes to be achieved in order for restoration to be progressed. The care plans provided that both children would remain in an authorised kinship placement with the Applicant. The children have three older siblings, Natalie aged 12, Vanessa, aged 8 and Jasmin aged 7, who were also being cared for by the Applicant at that time. The three older siblings are said to be under the parental responsibility of the Minister until they each reach the age of 18 years. It was not proposed that the three older children be restored to their mother and they are not included in the s 90 Proceedings. I consider that there is likely to have been some misapprehension on the part of the Applicant concerning the care status of the three older siblings which I address under the heading "Decision to remove the children without a Court Order". 2. After Final orders were made, DCJ transferred daily case management for the children to an authorised funded service provider, a Koori Out-of-Home Care Service (the FSP). The FSP was formed by a partnership between Anglicare and the Medical and Dental Aboriginal Corporation to provide culturally appropriate support services to Aboriginal children living in out-of-home care, their families and respective authorised carers. The Applicant, the mother, and the children are Aboriginal. 3. I note in passing that the FSP separated from Anglicare earlier this year but nothing turns on this. 4. It is not disputed that Danielle and Jack were removed from their placement with the Applicant on 25 October 2019 and are currently being cared for by authorised foster carers. The three older siblings were also removed on the same day and are similarly now being cared for by authorised foster carers. 5. Ms Wilson's affidavit of 18 February 2020 at [32] provides that the FSP and the DCJ had met on 25 October 2019 to review the children's placement after which the FSP determined that the children's needs were no longer being met. It was their view that the Applicant had not responded adequately to the support its caseworkers had provided to assist the Applicant in caring for the children. It concluded that the Applicant was not adhering to the safety plans that had been put in place following a number of risk of significant harm reports (ROSH reports) received during the period 2 May and 24 October 2019. I address those concerns later in this judgment under the heading "Concerns arising from the ROSH Reports". The s 82 Report and the filing of the s 90 Application 1. The s 82 report for Danielle and Jack dated 27 September 2019 was filed on 30 September 2019. It was prepared by Kellie Putland, a caseworker for the FSP (Ms Putland). It was endorsed by DCJ (who had ultimately filed it in Court) and had been approved by Theresa Coe, Team Leader (Ms Coe). The s 82 report noted a history of issues regarding the placement of the children with the Applicant as well as detail concerning the mother's lack of progress towards the restoration of the children to her care. 2. The executive summary of the s 82 report included DCJ's view that the placement of the children with the Applicant was not secure and that restoration had been paused as the mother had recommenced drug taking and, thus far had a chequered history regarding rehabilitation services. It provides: "Until July 2019, restoration of Danielle and Jack was progressing as per the restoration plan. Elizabeth had progressed to phase 3, having contact with Jack and Danielle three times a week supervised for two hours. Contact was also occurring every weekend for a period of three hours supervised with Jack, Danielle and three other siblings. In July 2019 Elizabeth disclosed to Kelly Putland (FSP case manager) and Anastasia Elliott (FSP senior practitioner restoration and preservation worker), that she had been using drugs again since May 2019. As a result, contact was reduced and a pause was put on the restoration. Contact reports at this time also reflected that there had been a decline in Elizabeth's parenting capacity and interactions with the children during contact. Elizabeth's relapse also coincides with Neil's release from gaol. Elizabeth had previously disclosed her fears around Neil being released. There are concerns that Elizabeth has been having contact with Neil despite an apprehended violence order protecting her from him. Danielle and Jack are placed with Felicity Barnett the maternal grandmother. Three of their siblings are also in this placement. This placement is not considered secure at this time as there have been risk of significant harm reports received by DCJ. There are concerns for Felicity's ability to adequately meet the needs of five children." 1. On receipt of the s 82 report, the Court wrote to DCJ on 23 October 2019 indicating that the Court was not satisfied that proper arrangements for the care of the children had been made and invited the parties to submit a section 90 application within 30 days, pursuant to sub-section 82(3) of the Care Act. I note in passing that the Final orders for these children pre-dated amendments to s 82 that came into effect on 4 February 2019 following the Children and Young Persons (Care and Protection) Amendment Act 2018. 2. DCJ responded by letter dated 22 November 2019 underhand of Ms Kristy Anschuetz, Acting Manager Casework, informing the Court that DCJ was not proposing to submit a s 90 application. Ms Anschuetz advised as follows: "On 25 October 2019 Danielle and Jack were taken out of the care of their grandmother and placed in alternative placements. Miss Elizabeth Barnett has reengaged with drug and alcohol services. Miss Barnett is scheduled to attend drug and alcohol detoxification at a Hospital commencing 22nd of November 2019 and drug and alcohol rehabilitation commencing on 26 or 27 November 2019." 1. The letter indicated that restoration of the subject children to their mother's care was still the FSP's permanency goal notwithstanding that the mother had entered a residential rehabilitation facility for 6 months, after which it was the mother's intention to "reengage with the minimum outcomes for restoration." 2. In light of DCJ's stated intention not to file, the ILR filed her own s 90 application on 10 December 2019, which was listed for first mention on 19 December 2019 in the Children's Court. 3. The Secretary has since indicated to the Court that it does not oppose the ILR's s 90 application and supports leave being granted. The Court granted leave to the ILR under s 90 on 22 January 2020. 4. The children are not together but are with different authorised foster carers. DCJ intends to continue to seek family placement options so that ultimately the 5 children are able to be placed together. 5. The Secretary does not propose to return the children to the Applicant's care. Issues for the Court: 1. The Joinder Application is to be determined under the provisions of s. 98(3) of the Care Act. Section 98 provides as follows: 98 Right of appearance (1) In any proceedings with respect to a child or young person: (a) the child or young person and each person having parental responsibility for the child or young person, and (b) the Director-General, and (c) the Minister, may appear in person or be legally represented or, by leave of the Children's Court, be represented by an agent, and may examine and cross-examine witnesses on matters relevant to the proceedings. (2) However, if the Children's Court is of the opinion that a party to the proceedings who seeks to appear in person is not capable of adequately representing himself or herself, it may require the party to be legally represented. (2A) If the Children's Court is of the opinion that a party to the proceedings is incapable of giving proper instructions to a legal representative, the Children's Court is to appoint a guardian ad litem for the person under section 100 or 101 (as the case may require). (3) In any proceedings with respect to a child or young person, any other person who, in the opinion of the Children's Court, has a genuine concern for the safety, welfare and well-being of the child or young person may, by leave of the Children's Court, appear in person in the proceedings, or be legally represented, or be represented by an agent, and may examine and cross-examine witnesses on matters relevant to the proceedings." Accordingly, the Court must decide: 1. If the applicant is a "person who has a genuine concern for the safety and well-being of the child or young person", and, 2. If so, should the Court exercise its discretion under s 98(3) and grant leave to the Applicant to join the proceedings? 1. As the children's maternal grand-mother and previous carer, the parties did not dispute that the Applicant has a genuine concern for the safety, welfare and well-being of the children. The ultimate question for determination in a joinder application is that the Court is required to assess objectively whether the plaintiff has a genuine, subjective concern - EL & WL v Director-General of the Department of Human Services & Ors [2010] NSWDC 248 per Truss DCJ), and in the Supreme Court in EC v Secretary, NSW Department of Family and Community Services [2019] NSWSC 226 where it was held, after a detailed consideration of the case authorities on the meaning of "genuine concern", that "there should be both an objective and subjective element to the test" and that "the precise weight to be given to each component will vary upon each individual application". Objectively, as the children's grandmother and subjectively, as the person who has provided care to the children over a number of years, the Applicant has a 'genuine concern' and the Court finds the Applicant meets the threshold test under s 98(3). 2. The only issue is whether in all the circumstances the Court should exercise its discretion to join her. In assessing this, I have taken into account the extent to which the joinder of the Applicant would assist the Court in a determination of the issues raised in the s 90 proceedings. That is, I have considered whether the Applicant's joinder and her consequent ability to examine and cross-examine witnesses will provide additional evidence or material to the Court in order to fully assess what is in the children's best interests in relation to restoration and permanency planning. Positions of the parties 1. The Secretary does not support the joinder of the Applicant. 2. While the Secretary accepts the Applicant has a genuine concern for the children's welfare, the application should be refused as it is the Secretary's view that the Applicant does not have an arguable case in the s 90 proceedings. The Secretary considers that the Applicant is not in a position to provide the level of care that the children require. 3. The ILR opposes the Applicant's joinder. The ILR argues that the Applicant's disquiet and distress about the removal of the children from her care is not something that she can argue in the s 90 proceedings. The ILR does not believe the Applicant has an arguable case for parental responsibility for the children. However, the ILR accepts that the Applicant has a genuine concern for the children's welfare. 4. The mother supports the joinder of her own mother, the Applicant to these proceedings. While the mother did not file an affidavit in response to the Joinder Application, her views were expressed by way of oral submissions made in court by her legal representative. In addition, her views are contained in an email annexed to the Applicant's affidavit of 9 March 2020 at [17] and at Annexure A. I note that the email communication does not refer to the Joinder Application specifically, but does indicate the mother's strong support for the Applicant's care of the children. 5. The father of Jack, Mr Neil Dempster did not wish to be heard in relation to this application, [23] of his affidavit affirmed on 12 March 2020. 6. The view of the father of Danielle, Mr Jason Baxter, is unknown as he is not represented and did not participate in the hearing. Determination 1. I concluded that the Applicant should not be given leave to be joined as a party to the s 90 proceedings, notwithstanding the Applicant meets the threshold test. It is my view that she does not meet the discretionary criteria for joinder under s 98(3) of the Care Act. 2. To the extent that the Applicant seeks to do so, she cannot ventilate her grievance regarding FSP's decision to remove the children in the s 90 proceedings as the Children's Court does not have jurisdiction to hear it – sub-section 245(1)(c) of the Care Act. 3. With respect to the Applicant's joinder for the purpose of seeking parental responsibility for the children, the Applicant does not have an arguable case. Based on the material filed in this Court, the Applicant could not succeed as she will not be considered by DCJ as a future carer for the children given her status as an authorised carer is under review in light of the concerns raised in the ROSH reports received while the children were in her care – Affidavit of Ms Wilson dated 21January 2020 at [75]. 4. It is not in the best interests of Danielle and Jack for the Applicant to be joined as the joinder presents a risk that the s 90 proceedings will be delayed by evidence and cross-examination of witnesses concerning issues relating to the decision to remove the children from the Applicant. These very young children have already been subject to considerable disruption in their lives following the removal from their mother's care in 2018, which was followed by the removal from their grandmother's care in 2019 and they now face delay and possible further disruption by either a prolonged restoration process to their mother, or, alternatively, placement in another out-of-home care or authorised kinship placement when the s 90 proceedings are concluded. It is not unreasonable to suppose that the children had expected to be returned to their mother's care as that was what was contemplated by the Final orders. 5. The s 90 proceedings need to be finalised without delay to provide certainty for the children's on-going care and for their future. I take into account s 94 of the Care Act, which is headed 'Expedition and Adjournments', noting that it relevantly requires: (1) All matters before the Children's Court are to proceed as expeditiously as possible in order to minimise the effect of the proceedings on the child or young person and his or her family and to finalise decisions concerning the long-term placement of the child or young person. 1. While the Applicant is aggrieved by the actions of the FSP and also of DCJ, that grievance must not be allowed to deflect the current proceedings from achieving an outcome that focusses on the viability of restoration to their own mother or achieving a suitable long term placement that endeavours to keep the children together should restoration no longer be a realistic possibility. 2. I am not satisfied on the balance of probabilities that the Applicant has made out an arguable case for parental responsibility for the children to satisfy the need for her joinder. 3. I note that I was not asked to consider, in the alternative, a right to be heard under s 87 of the Care Act. 4. I have reached my decision after considering all the evidence in this matter and for the reasons provided in the rest of this judgment. 5. I have also taken into consideration the decisions in Bell-Collins v Secretary, Department of Family and Community Services [2015] NSWSC 701 (Bell-Collins) and GO v Secretary, Department of Family and Community Services [2017] NSWDC 198 (GO). REASONS FOR JUDGMENT – STRENGTHS AND WEAKNESSES OF THE APPLICANT'S CASE FOR JOINDER Unique voice 1. The Applicant argues that she has a unique voice in the proceedings. Her argument is distinct from that of the mother's case because the Applicant seeks parental responsibility for the children. The mother is seeking restoration to her sole care. The Applicant seeks to cross-examine the Secretary's witnesses to argue that she should be considered for parental responsibility for the children. If she is not joined as a party she could not do so. 2. I accept that as the Applicant seeks sole parental responsibility for the children her cause is unique and she therefore has a unique voice in these proceedings and that she would be the best person to argue that parental responsibility should be assigned to her in these proceedings. In addition, her claim is not aligned with, nor is it, the same claim propounded by her daughter, Ms Elizabeth Barnett. The mother still seeks restoration of the children to her care and ultimately sole parental responsibility for them. That is therefore a separate argument and one which she, the mother must bring herself in the s 90 proceedings. I have followed the reasoning in GO in this regard. Fulfilling an evidentiary gap in the s 90 proceedings 1. The Applicant says she has standing to participate in the proceedings as she will fill an evidentiary gap that is in the best interests of the children to see filled. As the Secretary is not considering the Applicant as a carer for the children, it follows that the Secretary's representatives will not be adducing evidence to the Court regarding the Applicant as an alternative carer, it is therefore the Applicant who could bring that evidence herself and fill that evidentiary gap to assist the Court in the s 90 proceedings. I agree that the Applicant would be the best person to do that. 2. If joined to these proceedings, the Applicant may be able to fulfil an evidentiary gap in relation to the question as to why the children were removed from her care. That is to say that she would be in a position to address those reasons and cross-examine caseworkers from the Department and also the FSP in relation to the events that led up to the removal of the children from her care. 3. In my view the decision to remove the children is not relevant to the s 90 proceedings so fulfilling this evidentiary gap would serve very limited utility to the Court. 4. What the s 90 proceedings must address is the question of restoration of the children to their mother's care and ultimately, whether the Court will accept the Secretary's position that restoration of the children to their mother's care is not realistic within a reasonable period of time (s 83 of the Care Act). The Secretary has filed care plans dated 13 March 2020 which recommend that parental responsibility for the children remain with the Minister until the children reach the age of 18 and that the children are not restored to their mother or to either of their father's care. In this regard, the Applicant cannot fulfil any evidentiary gap that is relevant to the issue of restoration to the mother or their fathers. The mother and the children's fathers can do that. Delay 1. The Applicant argues that there has been no delay in bringing her application and that her joinder would not of itself lead to any delay in the s 90 proceedings. 2. The Applicant filed her application for joinder on 22nd January 2020. That is only a short time, (approximately 6 weeks) after the s 90 proceedings commenced. She did so in a timely manner and I accept that she did not delay filing her application. I do not accept the Applicant's submission that any delay to the s 90 proceedings is limited or indeed, negligible. I note to the contrary, that there might well be a risk of delay if evidence and arguments concerning the removal of the children from the Applicant are ventilated in the s 90 proceedings. No arguable case as an alternative carer for the children 1. There is no evidence that would indicate that the Secretary will reconsider the Applicant as a carer or placement option for the children. Moreover, following an internal review conducted by Anglicare into the FSP's decision to remove the children, the Secretary is extremely unlikely to conduct an assessment of the Applicant, in order to recommend to the Court an order of parental responsibility for the children in favour of the Applicant. Anglicare's review is discussed in greater detail under the heading "Review of the decision to remove the children from the Applicant's care". The Applicant's factual circumstances can be distinguished from those of the grandparents seeking joinder in GO and also the great-grandparents seeking joinder in Bell-Collins. In neither of those two cases had the subject children been removed from the care of the respective grandparents and great-grandparents. Irrespective of the Applicant's views about the correctness of the decision, the fact is the grandchildren were removed from her care and it operates as a significant weakness in her argument for parental responsibility. Jurisdiction for review of decision to remove the children 1. There is no jurisdiction in this Court to review the removal of the children from the Applicant's care. 2. The s 90 proceedings are not a vehicle through which a review of the Department's decision to remove the children from the Applicant's care can be made. Section 245 of the Care Act sets out categories of decisions made that are reviewable by the NSW Civil and Administrative Tribunal (NCAT). Under the heading "Decisions that are administratively reviewable by Civil and Administrative Tribunal", it commences with: (1) Each of the following decisions made under or for the purposes of this Act or the regulations is an administratively reviewable decision for the purposes of section 28(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993— At ss (1)(c) is a reference to decisions made concerning the removal of children under the care of the Minister from authorised carers. It provides: "a decision of the relevant decision-maker to grant to, or to remove from, an authorised carer the responsibility for the daily care and control of the child or young person," 1. While it is understandable that the Applicant has suffered grief because of this decision and I accept that she clearly misses her grandchildren, a review must be filed in NCAT, not the Children's Court. It is not clear to me whether the Applicant has pursued such a review. Consequently, and while acknowledging how speculative it is of me to say so, I do accept the possibility that should the Applicant be successful in a review before NCAT, DCJ may consider a re-assessment of the Applicant as a potential carer for the children. However, there was no evidence that indicated the existence of these possibilities or intentions before me. No power to direct where the children are placed 1. To the extent that the Applicant seeks to have the children returned to her care (which I am uncertain if she presses as a separate claim or as part of her argument for parental responsibility in her Joinder Application) I note, if only for the sake of clarity, that this Court is unable to make a specific order concerning placement of the children. The Minister has interim parental responsibility for the children and it is up to the Minister (through delegated responsibility) to place the children in accordance with the principles under the Care Act. Once the Secretary, has indicated its position regarding restoration and permanency planning for the children through the filing of care plans, the Secretary will then seek the Court's approval of those care plans. If the Court ultimately agrees with the care plans and accepts the position of the Secretary, then the Court may make final orders to reflect that. A care plan will usually set out the Secretary's proposals for placement of the children, as part of its permanency planning obligations. If the Court does not accept that the Secretary has appropriately and adequately provided for permanency planning it may direct different care plans to be drawn up. The Court cannot order the Secretary to place the children in a particular placement nor with a specified carer. Review of the decision to remove the children from the Applicant's care 1. Anglicare, under hand of Ms Carmel Swan wrote to the Applicant on 11 November 2019 to inform her of the decision to change the placement of the children, in the following terms: "The reason for this decision to change the placement of these children is as follows: 1. Ongoing concerns that the safety plans put in place for all the children have not been adhered to. 2. That you have allowed the children to have contact with people who have been deemed unsafe. 3. Ongoing concerns of lack of supervision and day to day care of the children. You are entitled to an internal review of this decision. If you seek for an internal review to be conducted, please advise Anglicare and the FSP in writing within 28 days of receiving this letter. If you are dissatisfied with this decision according to section 245(c) of the Children and Young Persons (Care and Protection) Act 1998 this is a reviewable decision by the New South Wales Civil and Administrative Tribunal. If you seek an administrative review of this decision through NCAT, you must file an application within 28 days of receiving this letter with NCAT. According to section 55 (3) of Administrative Decisions Review Act 1997, as this is a reviewable decision NCAT may not process the appeal until such time as an Anglicare internal review has been finalised." 1. At the relevant time, the FSP was still affiliated with Anglicare and it was Anglicare that subsequently conducted a review of the decision by the FSP to remove the children from the Applicant's care. 2. The letter of 11 November 2019 sets out the reasons why the children were removed and the avenues available to the Applicant for review. In addition, it also provides that the decision to remove the children was "made by Anglicare NSW South, NSW West and ACT, the Koori Out-of-Home Care Service, in consultation with the Department of Communities and Justice…" That is, it was a joint decision made in consultation between Anglicare, the FSP and DCJ. 3. In accordance with the Applicant's request, Anglicare conducted an independent review of the decision to remove the children from the Applicant. In [51] of Ms Wilson's affidavit of 18 February 2020, Ms Wilson attests to the outcome of the Anglicare review being known as at 6 February 2020. Ms Wilson goes on to provide that Anglicare concluded that the decision making of the FSP to remove the children was supported by the review process. The Applicant referred to the Anglicare review in her affidavit of 21 January 2020 at [6] and at Annexure C. At Annexure C is a copy of a letter dated 4 December 2019 addressed to the Applicant from Ms Ann Ponsonby, Principal Officer at Anglicare informing the Applicant that Ms Kate Gentle, a senior psychologist at Anglicare along with a senior Aboriginal person will conduct the review, both of whom were identified as having no prior involvement in the Applicant's matter. 4. I do not know if the Applicant was provided with a copy of the Anglicare review undertaken by Ms Gentle as it was not referred to, nor annexed, to her filed material. Ms Wilson attests that DCJ were seeking a copy of the Anglicare review at the time Ms Wilson's affidavit of 18 February 2020 was filed. It was not provided to me at the hearing. No arguable case for parental responsibility of the children 1. It is my view that the Applicant has little to no prospects of success in seeking parental responsibility for the children. That is, the Applicant does not have an arguable case for parental responsibility. I have reached this conclusion after assessing for myself the chain of events that led to the removal of the children from the Applicant's care. 2. I have considered the casework undertaken by the FSP during the period 2 May and 24 October 2019 in which 10 ROSH reports were received by DCJ in relation to the Applicant's care of her 5 grandchildren. It is my assessment of those concerns and the inability of the Applicant to address them that leads me to conclude that Applicant does not have an arguable case for parental responsibility to be given to her for the children. Concerns arising from the ROSH Reports 1. The details of the ROSH reports and Non–ROSH reports are provided in Ms Wilson's affidavit of 18 February at [17] to [31]. The concerns that arise from those reports can be summarised as follows: * A report on 2 May 2019 about the Applicant allowing unauthorised contact between the children and their mother at the mother's home when that contact should have been supervised. A concern that the Applicant had allowed Mr Neil Dempster to attend her home to see the children when there was an AVO in place to protect the Applicant and the children from Mr Dempster. * Reports received on 9 & 10 May 2019 concerning sexualised behaviour exhibited by the children. * On 1 July 2019 concerns raised about the exposure of the children to their mother while she was affected by illicit substances. * On 21 July 2019, concerns raised about Natalie refusing to return to the Applicant's home and Natalie's claim that the Applicant was neglecting the other children. * 22 July 2019, Natalie disclosing that the Applicant hit the children and also her disclosure that a female family member had hit Danielle and Jasmin and a male family member who hits all the children, except Jack. * On 27 August 2019, a concern raised that Mr Dempster had attended the Applicant's home in contravention of the AVO. * On 5 September 2019, disclosures by Natalie about Jack being left in her care while the Applicant left the house to collect the other children. In addition, it is noted that Natalie claimed the Applicant hits her head against the wall when Jack screams and had resorted to retaliatory behaviour towards Jasmin and to a person called 'Keith'. * On 23 September and 24 October 2019 concerns noted by a member or members of the community about the children being left alone in the Applicant's home and of constant yelling at the house. * In Ms Wilson's affidavit at [32] there was also some concern about the Applicant's brother's release from custody as it was noted he had prior offences against children. The FSP had understood that the children, the Applicant and her sister intended to spend time together over Christmas and were of the view that the Applicant would not act protectively of the children around her brother. 1. In addition, I note that the children's school had issued a warning under the Inclosed Lands Act to the Applicant that she might be banned after an incident in which her behaviour at the school was considered unsatisfactory - I refer to paragraph 30 of Ms Wilson's affidavit of 18 February 2020. It is concerning that the paragraph concludes that the school had discussion as to whether they would need to involve the NSW Police in order to protect the student involved. There is reference to the Applicant speaking "in a harassing and intimidating manner in the presence of children, parents and staff at the children's school." Response to ROSH and Non-Rosh Reports and support offered to the Applicant 1. The Secretary argued that the FSP provided the Applicant with significant and consistent support in caring for the children and were actively engaged in providing that support in response to each of the ROSH reports that they received and investigated. Ms Wilson's affidavit of 18 February 2020 at [33] to [46] sets out the response to the ROSH reports and the support provided to the Applicant as a consequence. 2. In May 2019, the FSP referred the Applicant to an intensive family based preservation service (IFBS) which provided regular support to the Applicant in the care of the children and in addition, put in place safety plans to assist the Applicant with the care of all of her grandchildren. The first Safety Plan (dated 1 August 2019) was put in place to address the concerns that had been raised following Natalie's disclosures and in the ROSH reports made on 1, 21 and 22 July 2019 (at [21], [22], [23] and [39] and Annexure A of Ms Wilson's 18 February 2020 affidavit). This Safety Plan included IFBS support in the home 4 days a week to assist the Applicant with family routine, children's behaviours, maintaining the home and budgeting. It included an obligation on the Applicant to monitor all visitors to the home and for visitors not to discipline the children. 3. On the 24 and 26 July, Ms Cathy Carroll, Anglicare Senior OOHC co-ordinator, and Ms Bronwyn Lyons attended the Applicant's home to discuss allegations arising out of recent ROSH reports and what supports could be offered to the Applicant to assist her with caring for the 5 children. At [38], it is reported that the Applicant was shocked by the children's disclosures and that the Applicant denied specific allegations concerning physical punishment of the children. Further, in [42] Danielle (then aged 5) and another of the older siblings, Jasmin (aged 7) made disclosures to the FSP case managers, Ms Putland and Ms Bree Chambers about physical discipline and adults attending the Applicant's home and drinking alcohol. 4. In relation to the ROSH reports received concerning the sexualised behaviours of the children, the FSP made arrangements for the Applicant and the children to attend a counsellor at a sexual assault service and transport to the appointments was provided ([35] and [26] Ms Wilson's 18 February 2020 affidavit). 5. On 28 August 2019, the Applicant was again referred to IFBS with revised goals to address the on-going concerns and further ROSH reports. There were further meetings with the Applicant on 4 and 20 September and a subsequent safety plan developed and implemented on 6 September ([42], [43], [44] and Annexure B of Ms Wilson's 18 February 2020 affidavit.) The second Safety Plan now provided for daily home visits to the Applicant from IFBS to support the Applicant in her care for the children and in particular to address family routine, maintaining the home, budgeting and managing the children's behaviours. In addition to IFBS support, the FSP were to visit once or twice a week during September then decreasing to once a week through October, further decreasing to fortnightly in November and then to settle at monthly visits from December 2019, onwards. The second Safety Plan also provided for fortnightly respite care of the children with respite carer and relative, Ms Patricia Harrison, the Applicant's sister. 6. However the concerns relating to the Applicant's care of the children continued up until 14th of October 2019 when IFBS informed the FSP that the Applicant was not coping and not implementing the strategies put in place to assist her with managing her grandchildren. At [46] of Ms Wilson's 18 February 2020 affidavit appears the following: "On 14 October 2019, IFBS emailed the FSP advising them that there were concerns that Ms Felicity Barnett was not coping in the home, concerns the home is in chaos and Ms Barnett was not implementing the strategies being suggested by IFBS. IFBS were attending the home approximately twice per week, they supported Ms Felicity Barnett in cleaning up the outside area of the home, decluttering the home and provided skip bins to allow the home to be cleaned up as it was very cluttered. IFBS also purchased a lounge, sofa bed and drawers for the family they also assisted with developing behaviour charts for the children to assist Ms Felicity Barnett to manage the children's behaviours. The home was described by all service providers who attended as very chaotic, with no routine or boundaries and Ms Felicity Barnett has not been able to verbalise what she has learned from the IFBS intervention other than what materialistic support they have provided. On this same day a third safety plan was implemented to address the additional concerns around Ms Felicity Barnett's brother being released from custody." Casework support for the Applicant 1. The Applicant has not disputed the level of support she has received in her affidavit material in a detailed way albeit some criticism may be inferred from comments made in the Applicant's letter addressed to Carmel Swan dated 25 November 2019 and appearing as Annexure B to the Applicant's affidavit of 21 January 2020. In the third paragraph she says: "I also have concerns with the progress made by my caseworker, Kelly Puttland. Kelly Puttland's dealings through this case have made me feel uncomfortable with the manner in which she has dealt so far with my grandchildren and support for me. I have mentioned certain concerns and issues that I have to Kelly. To date, Kelly has ignored my requests and pleas for assistance and support. Kelly has also not advised me of her progress at looking into the cases of unsafe behaviour and bullying directed towards my grandchildren, Jasmin and Natalie at their school." 1. It is difficult to assess the precise complaint the Applicant has with regard to the support she received from both the FSP and DCJ as she does not particularise those in either of her affidavits. The Applicant had been provided with Art Therapy support for Natalie and Danielle in April 2019 ([33] of Kylie Wilson's 18 February 2020 affidavit). 2. At [56] of Ms Wilson's 18 February affidavit Ms Wilson addresses the concern raised by the Applicant about the lack of support regarding Natalie's bullying at school. It provides as follows: "Kellie Putland, FSP allocation case manager, organised and attended meetings with the school. These meetings were to assist in addressing the bullying behaviour Natalie was being exposed to. Ms Putland was first made aware of the issues at school for Natalie on 7 May 2019 and on the same day she made contact with the education department on 20 May 2019 a meeting occurred at the school and a representative from the education department. Between May and October there were four meeting(s) with the school to try and address and support Natalie with the issues she was having at school." 1. It seems to me that the concerns about bullying were taken seriously and acted on by Ms Putland. It might be that Applicant wanted to be kept informed of further progress following the removal of the children from her care but I am uncertain as to the precise nature of her complaint as set out in her letter to Carmel Swan. 2. I note at [55] of Ms Wilson's 18 February affidavit the following: "FSP records identify that Ms Felicity Barnett was receiving weekly visits often two to three visits per week and often daily support from them." 1. The Applicant has not contradicted this assertion. 2. The Applicant agreed to attend various counselling sessions to assist her with understanding the children's behaviours including sexualised behaviours as part of the commitments made in the second Safety Plan of 6 September and the third dated the 14 October 2019. It is the DCJ's view that the Applicant did not attend all those sessions and this is referred to at [35] and [36] of Ms Wilson's 18 February 2020 affidavit. 3. The Applicant was assisted with moving house after concerns she raised about her safety and that of the children following Mr Neil Dempster's proposed release from custody – [58] Ms Wilson's affidavit of 18 February 2020 refers. The Applicant strongly denied the accusation that she had subsequently allowed Mr Dempster to attend her house (ROSH report of 27 August 2019) in [8] of the Applicant's affidavit 9 March 2020. However, she does not specifically address the concern raised in the ROSH report of 2 May 2019 where it was first alleged Mr Dempster had been allowed to visit the children at the Applicant's home. In relation to the concern raised in the ROSH report of 27 August 2019, the Applicant asserts that Mr Dempster arrived uninvited with a nephew and that they were excluded from entering her home and that she reported the incident to Ms Putland. However, I also note at [30] in Ms Wilson's affidavit of 18 February 2020 that a non-ROSH report had indicated that the Applicant may have been accepting phone calls from Mr Dempster's correctional facility and that the Applicant had permitted Mr Dempster to speak to the children in contravention of an AVO in place that protects them from Mr Dempster. No evidence of phone call logs or similar was attached to Ms Wilson's affidavit but it was not specifically referred to or denied in the Applicant's response. 4. I note the third Safety Plan implemented on 14 October was drawn up with the Applicant and concerned the impending release of the Applicant's brother, Timothy from custody that required the Applicant not to have any contact with him and not to leave the children unsupervised at any time and not to permit the children to have respite care with Ms Patricia Harrison at her address while that address was also listed as that of Timothy's. 5. The meetings and support strategies referred to in Ms Wilson's affidavit are not mentioned and not challenged as to accuracy in the Applicant's affidavit of 9 March 2020 and this is troubling. It is therefore largely uncontradicted. The support provided to the Applicant, in my view, was significant and it included financial support as well as counselling and regular in-house practical support to both her and to the children. 6. I conclude that the casework support provided was adequate and was specifically designed to keep the grandchildren in their placement with the Applicant and that many strategies were attempted and practical support given to the Applicant which continued up until the decision was made to remove the children. This is also evidenced by the three Safety Plans that were developed between May and October 2019, all three of which were signed by the Applicant and are exhibited as Annexures A, B & C to Ms Wilson's 18 February 2020 affidavit. The existence of the three Safety Plans is compelling evidence in support of DCJ's position that they provided adequate casework and support to the children and to the Applicant in order to assist the Applicant with the care of her grandchildren. 7. From my assessment of the filed material, it is evident that the decision to remove the children was based on the Applicant's failure to work proactively with the FSP and the IFBS and on her failure to implement the necessary changes to address the concerns raised in the ROSH reports. I accept the Secretary's submission that it was the Applicant's response to the supports that were put in place that was inadequate and that was what led to their decision to remove the children. Furthermore, the number of meetings held with the Applicant and visits to her home to discuss the concerns would have left the Applicant in no doubt as to why the children were ultimately removed. Additional issues raised by the Applicant I now address a number of additional arguments the Applicant raised in her filed material. The decision to remove the children based on unsubstantiated reports and community gossip 1. The Applicant argues that the decision to remove the children by the FSP and the Department was made based on community gossip and unsubstantiated allegations and in this respect, I refer to her affidavit of 9 March 2020 at [11]. As set out earlier in this judgment, it is apparent that the allegations which the Applicant refers to were acted on and investigated by the FSP given that as a consequence of those allegations they continued to provide, and in fact increased, support to the Applicant, regularly meeting with her and the children, referring the family to IFBS and establishing three Safety Plans during the period from May to October 2019. The fact that the Applicant agreed and signed each of the three Safety Plans is an indication that she understood the nature of the concerns held regarding the complaints and allegations made in some of ROSH reports and it seems unlikely to me that the Applicant would have signed the Safety Plans if she held the view that the ROSH reports came about only as a consequence of unsubstantiated or uninvestigated complaints arising from untrue community gossip. 2. I am unable to accept the submission that the complaints set out in the ROSH and non-ROSH reports were unsubstantiated or went uninvestigated. The Anglicare review provides some further assurance that the ROSH reports were substantiated. It might be that Applicant did not entirely agree with some of those complaints and she might have been unaware of the disclosures her grandchildren had made to the caseworkers, but that does not persuade me that the FSP accepted and acted on untrue community gossip. I do not accept the Applicant's submission in this regard. Conflict of interest arising through relationship with FSP caseworkers 1. The Applicant argues that the casework undertaken by the FSP was affected by a conflict of interest arising through the Applicant's relationship with 2 caseworkers employed by the FSP. 2. While I do not have to decide the factual dispute that arose on this issue, I have endeavoured to assess it because if the filed material had suggested the existence of a conflict of interest, that may have cast some doubt as to the impartiality of the s 82 report that led to the commencement of the s 90 proceedings. The existence of a conflict, actual or perceived, may have persuaded me that a limited joinder of the Applicant could have assisted the Court in the determination of the s 90 proceedings. For reasons that appear below I do not consider the Applicant has established a conflict of interest. 3. The Applicant says there is a conflict because she is related to both Ms Bronwyn Lyons (Ms Lyons) and to Ms Coe. 4. It is notable that the Applicant raised her concerns relatively late on in the history of this matter. At [37] of Ms Wilson's affidavit of 18 February 2020, it is stated that the Applicant first raised concerns with Ms Cathy Carroll, Anglicare Senior OOHC Co-ordinator, when Ms Carroll attended the Applicant's home on 24 July 2019. The Applicant is said to have raised her concerns that Ms Coe, Ms Lyons and Ms Ingram, CEO of the FSP are in fact related to the Barnett family. The filed material does not clarify the existence of a relationship with Ms Ingram and I note the Applicant herself makes no reference to her in either of her affidavits of 21 January or 9 March 2020 so I have presumed the concerns regarding conflict do not include Ms Ingram. However, the Applicant pressed her concerns over a family relationship with Ms Coe and Ms Lyons. 5. The Applicant has not provided proof of her family connections (for example by the annexing of a family tree or genogram), but sets out the basis of her relationship claim in her affidavit of 9 March 2020 at [12] to [16]. In [16], the Applicant refers to Ms Coe and Ms Lyons as cousins. The Applicant says she is related to Ms Coe and Ms Lyons through their respective grandparents. The Applicant does not refer to occasions when the respective extended families may have met or indeed if she has ever met either of them socially prior to, or, during the active casework period. 6. The affidavit of Ms Wilson of 18 February 2020 at [52] to [54] addresses this issue. Ms Coe is an out-of-home care team leader for the FSP who, according to the evidence affirmed by Ms Wilson, did not know the Applicant and only became acquainted with the Applicant after she commenced employment with the FSP in September 2017 as team leader, which I presume means that she had oversight of the casework being undertaken in relation to the Applicant. At [52], Ms Wilson attests that Ms Coe has not been able to identify the family connection. Ms Wilson further attests that Ms Coe had offered to discuss any possible family relationship with the Applicant, although I note that the Applicant disputes this offer in her affidavit of 9 March 2020 at [17] where she states: "No-one has been willing to sit with me and discuss the family connections in play, as the response has been just that we are not related." 1. Ms Lyons' professional position is described as a family services unit manager and I note that prior to commencement of that role in 2017, Ms Lyons claims to have known who the Applicant was and had seen her in the community. At [53], Ms Wilson attests that Ms Lyons did not know the Applicant or the children's mother personally prior to meeting them in her current role and is not aware of any family connection. 2. At [13] in her affidavit of 9 March 2020, the Applicant says that her mother told her she and her family were related to the Lyons family through a link under the name of Harrison, which is the Applicant's maiden name. There is no evidence of a family link between the Harrison and Lyons families so I cannot assess whether there is a family relationship between the Applicant and Ms Lyons. In my view, if the two families are indeed related, it is unlikely that the Applicant could claim a close blood link to Ms Lyons, given that Ms Lyons is not herself aware of the relationship. Equally, as Lyons is a common name, there may not be any connection of Ms Lyons to the Applicant, even if there are other extended family members of the Applicant with the name 'Lyons'. 3. With regard to Ms Coe, the Applicant's claim is again made by reference to what the Applicant's mother had told her. At [15] she attests: "My mother always said "we are related through SV's line" and her sister married a 'Coe'." 1. There is no information as to who SV is and how she is related to the Applicant. I cannot assess whether there is a family link between the Applicant and Ms Coe. Similarly, if the two families are related, it is unlikely that the Applicant can claim a close blood link to Ms Coe, given that Ms Coe is not herself aware of the relationship. 2. I note that Ms Coe and Ms Lyons had been involved in various meetings with the Applicant, before the 24 July meeting with Ms Caroll. For example, at the 28 February 2019 review of Jack and Danielle's case plans, Ms Coe is stated as being present (along with various other FSP and Anglicare staff) as well as the mother of the children. The Case Plan Review Reports are annexed to both Jack and Danielle's Care Plans dated 13 March 2020 and the Applicant is recorded as being present and signed the attendance sheet for both. There does not appear to be any dissenting views recorded in the relevant sections of the review reports nor seemingly, any objection raised by the Applicant and recorded in the report about Ms Coe being present at those meetings. 3. Furthermore, the Applicant has not provided detail regarding the manner in which the decision making of the FSP was affected by her claimed relationship with Ms Lyons or Ms Coe. That is, she has not particularised the manner in which the conflict of interest has affected the assessment of her as a carer of the grandchildren. I note that the Applicant refers to Ms Putland as being influenced by her two supervisors Ms Coe and Ms Lyons at [16] but she does not go into further detail. Ms Putland was the active case manager assigned to the Applicant, the mother and the Applicant's grandchildren. 4. Even if Ms Coe or Ms Lyons are distantly related to the Applicant it is not a matter that would lead me to be concerned about the decision making process of the FSP. Ms Wilson at [54] provides "[t]he decision to change the Children's placement was made in consultation with senior Anglicare staff, the FSP and DCJ. Ms Coe and Ms Lyons did not make the decision to change the children's placement in isolation." 5. I am not satisfied that the Applicant has demonstrated a close familial link or relationship of any kind that would lead me to accept there was a conflict of interest with respect to either Ms Coe or Ms Lyons. Had either of them been aware that they were related to the Applicant and continued their involvement in the Applicant's casework, then that might have been a matter for a disciplinary review by the FSP and may have provided evidence that would suggest the decision to remove the children was affected by a conflict of interest. But that is far from the case here. I accept that Ms Coe and Ms Lyons were unaware of any family relationship connecting them with the Applicant. No conflict of interest has been established. Breach of confidentiality in respect of the decision to remove 1. I note from the Applicant's letter to Anglicare, addressed to Ms Sarah Sheedy and dated 13 January 2020 (annexed 'D' and referred to in [7] of her 21 January 2020 affidavit) she raises a number of issues, presumably while the Anglicare review was being undertaken. The Applicant refers to "lateral violence" that she says has been perpetrated against her from family members and other members of the community since December 2019. The Applicant mentions in paragraphs 4 and 5 of that letter that she believes this violence has occurred because of the different versions of reasons as to why the grandchildren were removed and that the violence: "… has been generated through the lack of professional behaviour and communication channels within FACS, the Koori Out-of-Home-Care Service and FSP have caused a backlash through community and within my own family due to those organisations' lack of confidentiality and conflicts of interest." 1. In paragraph 7 of her letter, the Applicant refers to rumours about the removal of the children, describing them as malicious gossip. She goes on to set out those matters (which I note correlate to the concerns identified in the ROSH reports) but concludes they are all untrue. 2. There is no detail about the violence nor when it happened and by whom it was perpetrated. Furthermore, I am not certain I understand what is meant by 'lateral violence' but assume the Applicant means violence perpetrated by other adults known to her. However, if violence has occurred, it is of course very concerning that the Applicant may be a victim and equally concerning that the Applicant believes that she has been targeted because her grandchildren were removed from her care. I am unable to say whether the violence has occurred and will not speculate as to the possible cause or motive for the alleged violence. It is not relevant to an assessment of joinder. 3. The allegation that someone at the FSP or possibly at DCJ may have breached confidentiality and discussed the removal of the children is inferred. There is no other evidence to suggest that this occurred and moreover the Applicant does not provide any details as to when anyone within those organisations may have discussed the matter and with whom, presumably in breach of a duty of confidentiality owed by an employee to an employer. There is no evidence in the filed material of any wrong-doing by the FSP, Anglicare, or DCJ in this regard. Decision to remove the children without a court order 1. The Applicant says that the children were removed from her possibly illegally because the three older children (Natalie, Jasmin and Vanessa) were removed without a Court Order and without the police attending. The Applicant argues the three older children are under her 'daily care and responsibility until the age of 18' by way of a Court Order made in 2013 (paragraphs 9 and 10 of the letter at Annexure D of her affidavit of 21 January 2020). There is no copy of the 2013 Court Order annexed, however, my perusal of the filed material suggests that parental responsibility (PR) for the older children is with the Minister and not with the Applicant or any other person. At [15] of Ms Wilson's affidavit of 18 February 2020 it provides that Natalie, Jasmin and Vanessa have long term PR orders and Jack and Danielle's Care Plans filed on 13 March 2020, also refer to the three older siblings as being under PR orders to the Minister until the age of 18 at the respective entries for sibling details. The two younger children are under the PR of the Minister until 19 December 2020. Where the Minister holds parental responsibility for a child, any decision made to remove that child does not require a Court Order. If the Applicant had held PR for the children, then any decision made by DCJ to remove them would require an order under the relevant provision of the Care Act. There is no evidence that the removal of the children was illegal. Conclusion 1. The Applicant's argument for parental responsibility for the children would not meet with any success and as a consequence I can see no basis to exercise my discretion in allowing the Applicant to become a party to these proceedings. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 June 2020