Department of Communities and Justice (DCJ) and Lewis [2018] NSWChC 5

Children's Court New South Wales

Medium Neutral Citation: Department of Communities and Justice (DCJ) and Lewis [2018] NSWChC 5 Hearing dates: 16 and 17 October 2017, 29, 30 and 31 January 2018, 1 February 2018, 3, 4, 5 and 6 April 2018 and 6 and 7 June 2018 Decision date: 15 June 2018 Jurisdiction: Care and protection Before: Children's Magistrate Sheedy Decision: Restoration to Ms Lewis is not a realistic possibility Catchwords: Restoration Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 Family Law Act 1975 Cases Cited: The Secretary, Department of Family and Community Services and the Harper Children [2016] NSWChC 3 Category: Principal judgment Parties: The Secretary, Department of Family and Community Services (Applicant) Ms Lewis (mother) Mr Newton (father) Isla Lewis (child) Representation: Ms Neville for the Secretary Mr McLachlan for the mother Ms Griffin for the father Ms Peters as Isla's Independent Legal Representative File Number(s): 2017/0021060607 (Parramatta) Publication restriction: The names of the child and family members have been replaced by pseudonyms

Judgment

Background to the proceedings 1. Isla was born on 26 July 2012 in Adelaide. She is the daughter of Ms Gillian Lewis and Mr Matthew Newton. Isla has also lived in Queensland, Victoria and now NSW. Isla reportedly moved to NSW with Ms Lewis in late December 2017. 2. Isla was assumed into care on 22 February 2017. The reasons the Secretary provided in his evidence for deciding to make the assumption into care are set out in the following paragraphs. Ms Lewis does not agree that the information contained in the Reports and relied on by the Secretary in making the removal decision is correct and nor does she accept that there was any valid reason for Isla's removal. 3. On 10 February 2017 Community Services received a Risk of Significant Harm report detailing that Isla was left at [ ] Public School and Ms Lewis was not contactable. The report indicated that staff of the school tried contacting Mr Newton however he was advised by his solicitor not to attend. Isla was taken to the police station. 4. On 12 February 2017 Community Services received a Report alleging that Mr Bruce, the man with whom Ms Lewis and Isla were living, threw Ms Lewis down the stairs and then continued to threaten and strangle her in the presence of Isla. 5. On 12 February 2017 Community Services received a Report in relation to Ms Lewis's mental state as she had stated she had lost her car in Paddington and had given "unusual scenarios". The Report stated that Ms Lewis was unable to pick up Isla from school due to her mental state. Ms Lewis was alleged to have no awareness of time and was offered a mental health assessment however declined. Ms Lewis was said to be expressing unusual views giving rise to a concern for her mental health. 6. On 15 February 2017 Community Services received a Report alleging there were concerns for Ms Lewis's mental state. The Report stated that Ms Lewis had not collected Isla from school and when she did arrive, the school refused to allow Isla to leave in Ms Lewis's care as her presentation was described as erratic. The police were called. This was Isla's fourth day at this school. 7. Two caseworkers interviewed Isla on 22 February 2017 and Isla told them that she was living with Ms Lewis and Mr Lionel Bruce and she spoke about domestic violence perpetrated by Mr Bruce. 8. The caseworkers attempted to interview Ms Lewis but they formed the view that she was not willing to participate or cooperate; that she was illogical and incomprehensible and they were concerned for her mental state. The caseworkers were concerned that Ms Lewis appeared delusional as she stated that the caseworkers were harassing and stalking her. She stated that the police and caseworkers were corruptly working together to remove her child and she appeared unable to follow the direction of the conversation. Despite the caseworkers attempts to work with Ms Lewis she informed them she had no intention of cooperating with them. Ms Lewis was not able to provide a fixed address and then she stated she lived back with Mr Bruce though said Mr Bruce was not residing there. 9. The caseworkers deposed that Ms Lewis repeatedly told them that if they were going to be involved she and Isla would drive back to Queensland and she would withdraw Isla from school and put her in a different school. The Secretary states that it was as a result of this history and these concerns that Isla was assumed into care. 10. Community Services record that before assuming Isla into care on 22 February 2017 and placing her with authorised carers, the following prior alternative action was undertaken; * Ms Lewis was residing in a refuge through St Vincent's however was exited as there were concerns that she told Mr Bruce where they were residing. The refuge attempted to work with Ms Lewis to move her to the next property however she declined that assistance. * Ms Lewis was referred to Barnardos however Barnardos had only been able to communicate with Ms Lewis twice and they advised her of services that could help her * The caseworkers tried to prepare a safety plan with Ms Lewis however she was not interested in participating and in any case the caseworkers formed the view that she was a flight risk and would not follow the safety plan * The caseworkers offered to find Ms Lewis and Isla a refuge or other accommodation however Ms Lewis refused the help 1. Ms Tara Smith is the allocated caseworker from Community Services. It was her evidence that, when Isla was assumed into care on 22 February 2017, Ms Lewis told her she was living with an aunt and uncle but would not give details and later she said she was staying with friends in Bondi but again would give no details. 2. On 23 February 2017 Isla was placed with authorised carers and she remained in this placement. 3. On 27 February 2017 the Secretary filed an application initiating care proceedings. The Children's Court made an interim order of parental responsibility to the Minister and subsequently made a finding that Isla is a child in need of care and protection. 4. On 18 May 2017 the Secretary filed a Care Plan which set out his assessment that restoration of Isla to either of her parents was not a realistic possibility. 5. On 22 May 2017 responsibility for the day to day case management of Isla was transferred to Key Assets, a non-government organisation that provides foster care placements for children and young people. 6. In October 2017 Mr Newton conceded, and the Court made a finding that, restoration of Isla to Mr Newton was not a realistic possibility. 7. The Secretary engaged an external assessor to assess the maternal grandparents as potential long-term carers for Isla. The report dated 29 October 2017 recommended that the maternal grandparents not be authorised as long-term carers. 8. On 20 November 2017, Key Assets gave approval and recommended that Isla's current carers be considered as long-term carers for Isla. This approval and recommendation resulted from an assessment undertaken by Key Assets. 9. Mr Newton had treatment at Blacktown Hospital on the 29th and 30th of January 2018 and was taken to hospital by ambulance on 5 February 2018. He said the reason he went to the hospital was because he needed to see a psychiatrist for a medication review but couldn't get an appointment. 10. During the proceedings the Court appointed a Guardian ad Litem for Mr Newton. On 6 June 2018 on Mr Newton's application, the Guardian ad Litem was discharged. 11. On 1 June 2018 Isla's current carers decided they are no longer willing to provide long term care for her because of concern for their own safety and the safety of their daughter.