Children's Court New South Wales Medium Neutral Citation: Department of Communities and Justice (DCJ) and Lara [2017] NSWChC 5 Hearing dates: 25 September 2017 Decision date: 29 September 2017 Jurisdiction: Care and protection Before: Children's Magistrate Sheedy Decision: The application for joinder is refused Catchwords: Joinder Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 Cases Cited: Bell-Collins Children v Secretary, Department of Family and Community Services [2015] NSWSC 701 EL & WL v Director-General of the Department of Human Services [2010] NSWDC 248 Go v Secretary, Department of Family and Community Services [2017] NSWDC 198 M v M [1988] HCA 68; (1988) 166 CLR 69 Re SC (A Child) [2005] EWHC 2205 EL & WL v Director-General of the Department of Human Services [2010] NSWDC 248 Re SC (A Child)[2005] EWHC 2205 (Fam Div) M v M [1998] HCA 68 Category: Principal judgment Parties: DD and DJ (the Applicants) The Secretary, Department of Family and Community Services, Ms Nicole Casey (mother) Lara (child) Representation: Mrs Wooi for the applicants Ms Hall for the Secretary, Department of Family and Community Services Ms Higgins as Lara's Independent Legal Representative File Number(s): 2017/244978 Publication restriction: Pseudonyms are used for the child, the family and the applicants. Judgment The Proceedings 1. Lara, born on 15 March 2017 is the subject of care proceedings filed by the Secretary, Department of Family and Community Services, on 14 August 2017. Lara is currently in the parental responsibility of the Minister on an interim basis following an order of this Court on 15 August 2017. Lara is placed with authorised carers. 2. Lara's mother is Ms Nicole Casey. 3. The identity of Lara's father has not been confirmed. Mr Luke Viney has informed the caseworker from the Department of Family and Community Services ('FaCS') that he is the father. He has been served with the application for a care order. The Secretary has arranged for him to undertake DNA testing but thus far he has not adhered to the arrangement. Neither has Mr Viney made an appearance at Court. 4. Ms Casey has four children in addition to Lara, namely Oscar who is 9, Beau who is almost 5, Christopher who is 3 and Jaiden who is 2. At the time of Lara's birth Ms Casey resided in Queensland. She now resides with her four sons in NSW. 5. On 29 August 2017 DJ and DD ('the applicants') made an application to be joined as parties to the care proceedings. They are represented in these proceedings by Mrs Wooi, solicitor. 6. Lara was living with the applicants from the day after her birth until 9 August 2017 when the Secretary assumed her care. The applicants seek to be joined to these proceedings to have the Court make an order of parental responsibility for Lara in their favour as they wish to be her long term carers. They have filed the following evidence in support of their application: * Affidavits of DJ sworn 25 August 2017 and 22 September 2017 * Affidavits of DD sworn 25 August 2017 and 22 September 2017 1. The Secretary who is represented by Ms Hall does not oppose the application. The Secretary filed the following: * Application initiating care proceedings filed 14 August 2017 * Two affidavits of Sharon Brush, caseworker, sworn 20 September 2017 1. Ms Higgins who appears as Lara's independent legal representative does not oppose the application for joinder. 2. Ms Casey did not appear at the application for joinder. Her solicitor sent an email to the Registrar during the afternoon on the business day before the matter was set for hearing seeking an adjournment, to obtain an extension of time for the filing of the mother's affidavit and to appear by telephone. No adequate reason was given for the requests or the lateness of the notice and the applications were refused. The Facts 1. The hearing of the application for joinder has been undertaken, as is the practice in the Children's Court, by a reading the affidavit evidence and hearing submissions. No parties or witnesses were called to give oral evidence and be cross-examined. 2. For the purposes of determining the application for joinder I have taken the facts to be those as deposed by the applicants themselves or as deposed by the caseworker and not disputed by the applicants. 3. The applicants met in 2007. In about mid October 2016 DJ's sister informed him "that a girl on Facebook was looking to adopt a baby privately." 4. The applicants contacted Ms Casey who had placed this post on Facebook and she replied. Ms Casey resided in Queensland at the time. 5. Over the ensuing weeks there was regular communication between the applicants and Ms Casey via Facebook and telephone and these discussions included discussions about adoption in both Queensland and NSW. 6. In the last week of October 2016 Ms Casey asked the applicants for $189 for an ultrasound for the baby and the applicants agreed to lend Ms Casey the money. Ms Casey agreed to repay the money. 7. Between 18 and 20 November, Ms Casey and her mother Ms Pamela Casey flew to Newcastle to meet with the applicants. The applicants paid for the flights as Ms Casey and her mother who was to travel with her said they could not afford the flights. Ms Casey agreed to repay the money for the flights. 8. During the trip to Newcastle, at Ms Casey's suggestion, it was agreed that DJ's name would be included on the child's birth certificate and a 'story about her conception' involving 'a one night stand' was agreed. The applicants had a "baby reveal party to tell close family and friends the story that had been made up. Ms Casey and her mother were there and backed everything up." 9. On the return trip to Queensland Ms Casey was charged $60 as an excess baggage fee and the applicants loaned her the money to cover this fee. 10. The applicants later loaned Ms Casey $86 for medication to treat her gestational diabetes and later still $100 for a fridge after "Ms Casey harassed me for hours on end." 11. The applicants bought a blow up pool for Ms Casey's children for Christmas and some party food when they went to Queensland around Christmas in 2016. 12. In late December 2016 the applicants lent Ms Casey $40 for cigarettes. 13. During January 2017 Ms Casey, her then current partner and two of her children visited the applicants for one week. 14. In February 2017 the applicants lent Ms Casey $50 for food following a request from her. 15. DJ booked two months leave in anticipation of the arrival of the baby and the applicants made preparations to the nursery, house and car. 16. The applicants went to Queensland to await the arrival of the baby and it became apparent to them that Ms Casey had not engaged in an appropriate level of ante-natal care. They also considered Ms Casey's home to be messy, with "unhygienic smells". 17. Ms Casey was admitted to hospital before the baby was due to be born because of some complications and DD's mother travelled to Queensland to care for Ms Casey's children. 18. The applicants were at the hospital when Lara was born and DJ said he held Lara "skin on skin for 55 minutes and DD cut her umbilical cord." 19. Shortly after giving birth Ms Casey discharged herself from hospital. 20. On 15 March 2017 Queensland Child Safety attended Toowoomba Hospital and interviewed the applicants. During the interview DJ advised the caseworkers he believed he was Lara's father. 21. The following day Ms Casey and DJ filled out Lara's birth certificate and the applicants travelled back to NSW with Lara. 22. On 21 March 2017 the Department of Family and Community Services ('FaCS) received a Risk of Serious Harm ('ROSH') report that DJ and DD had purchased Lara and there was a police investigation underway. 23. On 31 March 2017 caseworkers from FaCS visited the applicants' home to discuss the concerns contained in the Report and information about risk of sexual harm. Caseworkers had identified that DJ is named twice on FaCS database as a "Person Causing Harm" for sexual abuse. 24. The first instance in which DJ is identified on FaCS database as "a Person Causing Harm" arises from allegations made against him when he was 14 and his cousin, the alleged victim was 7. DJ was never told about the allegations and obviously he was not interviewed at the time. He vehemently denies such abuse took place. 25. I will refer to the second instance later in this Judgment. 26. A Safety Plan was developed with the agreement of the applicants that another adult would be present with DJ and Lara at all times. The caseworkers were not informed that DJ was not the biological father of Lara. 27. The Safety Plan was reviewed and continued at a further home visit by the caseworkers on 3 April 2017. The caseworkers were not informed at this meeting that DJ was not the biological father of Lara. 28. On 4 April 2017 the caseworker attended the Child Health Clinic with the applicants and Lara and no concerns for Lara's health or development were identified during the appointment. 29. On 5 April 2017 a meeting was held between FaCS, DD, DJ and their extended family to discuss the Secretary's concerns relating to DJ's child protection history and a plan was developed to keep Lara safe. During this meeting DD, DJ and DJ's sister, all stated that they believed that DJ was Lara's father as a result of a "one night stand." DJ agreed to attend for DNA testing. 30. On 24 April 2017, the caseworker made a home visit and noted that Lara appeared happy and well cared for. 31. On 5 May 2017 DJ and Lara provided samples for DNA testing of paternity. On 8 May 2017 the DNA results were received by the caseworker. When the caseworker informed DJ that the DNA test result was that he was not Lara's father, DJ expressed surprise to the caseworker saying he thought he was the father. 32. The applicants filed family law proceedings and on 19 June 2017 FaCS sent the DNA results to the Family Court. 33. On 22 June 2017 DJ said the Family Court had dismissed the matter with no orders. DJ informed the caseworker he had not provided the Family Court with the DNA results as he had not thought about it. During that meeting DJ expressed that he was worried Ms Casey would attempt to take Lara. 34. On 13 July 2017 Ms Casey attended for a contact visit and during the visit she became agitated and punched DJ in the face. As a consequence the police and FaCS were called and an AVO was taken out against Ms Casey protecting the applicants and Lara. 35. When, on 13 July 2017 the caseworker attended the applicants' home, the police were already there. The caseworker was told by Police that Ms Casey had stated that last month she had found out DJ was not the father of Lara and she wanted Lara returned to her care. When the caseworkers spoke to Ms Casey she maintained this version of events but she then admitted she had known the whole time DJ was not the father of Lara but that she had not wanted the baby. 36. Ms Casey advised the caseworker that she had been looking at having the baby adopted but did not want that in Queensland as she could not then have contact. She said contact was made over Facebook with DJ's sister and arrangements were subsequently made for the applicants to take care of the baby. Ms Casey confirmed that she had never had sex with DJ and the story of the conception had been made up. Later when Ms Casey's version was relayed by the caseworker to DJ and DD they denied this was true and said they were shocked by the DNA results. 37. On 7 August 2017 DJ received a message on Facebook from Ms Casey's ex-boyfriend, Mr Viney, threatening violence and threatening to take Lara the following day. 38. At 4pm on 9 August 2017 Ms Casey and her mother, arrived at the applicants' home with an unidentified man and took Lara by force. The male had DJ by the throat by both arms and Ms Casey snatched Lara out of DD's mother's arms. DD's mother was then dragged up the road by the car as she tried to get into the rear driver's side door to stop the care from leaving. 39. On 9 August 2017 the caseworker received a phone call from Maitland Detectives who told her the applicants had informed Police that they had thought Lara was DJ's child and were shocked to learn from the DNA results that he was not Lara's father. 40. Lara was recovered by police and the Secretary assumed her care and placed her with authorised carers. 41. On 10 August 2017 DD, JD and JD's mother and sister attended FaCS' offices and they all agreed that they thought JD was the father of Lara and were surprised by the DNA results. 42. On 14 August 2017 the applicants had a contact visit with Lara arranged by the caseworkers. 43. On 15 August 2017 the applicants informed the Police that the version given to Police by them was not true and they informed the FaCS caseworker's similarly on 18 August 2017. 44. On 18 August 2017 DJ provided the results of his Working with Children check information to FACS, the result being that DJ has a Working with Children Check bar until 2019. 45. The applicants vehemently deny paying Ms Casey for Lara. They stated that they have felt intimidated by Ms Casey and her mother and intend to move homes as they are worried about their violence and want to protect Lara from such violence. 46. The applicants' evidence is that they have no drug or alcohol issues, DJ was a stay at home carer for Lara whilst DD worked in an Early Childhood Centre four days per week. They were providing an excellent level of care for her prior to her removal and wish to resume that care until she is eighteen. The applicants provided a number of positive references to support their application. 47. DJ states in his affidavit that when he spoke to the caseworker on 13 July 2017 he maintained the story that he was Lara's biological father "as at this point in time it was no longer about myself and [DD], but more about protecting Lara from harm." 48. DJ also deposed that "[DD] and I had wanted to tell the truth about Lara's conception and placement with us, but we were intimidated by [Ms Pamela Casey], the maternal grandmother…We were trapped in the lie that we told, but ultimately, we told the truth to Community Services and to the Police. The matter has been referred to the Queensland Police and we are awaiting an outcome of that referral." 49. In 2011 the applicants were authorised as foster carers in NSW and between May 2011 and November 2011 had eight children in their care. 50. On 12 May 2011 three children, girls aged 7 and 6 and an 18 month old boy were placed in the care of the applicants. (The applicants say the children were age 7, 5 and 11 months.) The applicants' evidence is that the 7 year old was moved on 10 June 2011 as the 5 year old had made an allegation that the 7 year old was touching her. The applicants say that "we continued to care for the now 12 month old boy and 5 year old girl for a short period before there were concerns of failure to thrive with the baby and we ended the placement. After the placement had ended we mentioned to the caseworker that we found some things challenging in this first placement. She then informed us we had done a good job for our first placement." 51. It was later agreed between the applicants and FaCS that children under 5 would not be placed with the applicants due to a lack of experience in caring for younger children. 52. On 12 August 2011 a boy aged 7 and 2 girls one 9 and one younger were placed with the applicants and removed a week or two later because the older child had disclosed to the mother where they were living and the mother, who had a violent criminal history, lived close by. The decision of the applicants to request the children be moved was for their own safety and the safety of the children. 53. On 29 August 2011 an 8 year old boy was placed with the applicants. The placement ended on 18 November 2011 as the boy did not want to be in the placement. 54. On 8 September 2011 another 8 year old boy was placed with the applicants and this placement ended on 12 September 2011 at the applicants' request due to concerns that the child had gone into another child's room at night and had touched the child's genitals during play. 55. On 13 September 2011 an 11 year old boy was placed in the care of the applicants. He was removed on 6 October 2011 at the request of the applicants due to their concerns that the child had inappropriate sexualised behaviours. 56. On 18 November 2011 the applicants were informed by FaCS that a review of their authorisation would need to be completed before any other children were placed in their care. 57. On 1 December 2011 the applicants informed FaCS that they were withdrawing as FaCS carers. The carers said that they felt there was not sufficient support for the children placed in their care. 58. On 2 December 2011 the applicants applied to CatholicCare to become authorised carers. That application was later declined. The applicants say it was declined in 2012 as it was agreed that at that time the applicants needed more training in trauma and challenging behaviours. 59. On 23 December 2011, a Reportable Conduct Unit report was received in relation to allegations that DJ had hit a nine year old child in the back of the head twice whilst the child was placed with him. No investigation was completed as a result of this report. The applicants deposed that this complaint was made in the context of that the child had lost or had stolen at school the iPod they had bought him because he did not give it to his teacher to mind during the day as he had been instructed to do and they refused to buy him a replacement. 60. On 16 January 2012, a letter was sent to the applicants from FaCS in relation to the carer review. The recommendation from the review was that they be "de-authorised" as carers for FaCS due to evidence that they had failed to meet the four competencies required to be authorised carers. 61. On 21 January 2012, a Reportable Conduct Unit report was received in relation to allegations of sexual assault of a nine year old boy by DJ. The matter was transferred to the Joint Investigative Response Team. The abuse was "substantiated" and on 26 June 2012 and DJ was identified as a person causing harm within the FaCS database for sexual abuse of a nine year old child. 62. The Secretary filed the notes of the JIRT interview of 9 year old Rex, the child who made the allegations. The interview was conducted on 17 February 2012. Rex made statements in his interview which were specific and described a number of instances of sexual abuse. 63. DJ gives detailed accounts to explain why the allegations made by Rex could not possibly be true, including that he was never alone with Rex. The accounts given by DJ are corroborated by DD. 64. The applicants' affidavits contained evidence addressing the parenting capacity of Ms Casey for Lara. I have not included this evidence as this is not relevant to the leave application. The Applicants' submissions 1. The applicants acknowledge that they should not have put themselves in the situation that they did and submit that they have now told the whole truth to FaCS, the Police and the Court. 2. The applicants submit that they provided excellent care to Lara when she lived with them from birth and they have the capacity and willingness to continue to provide her that same level of excellent care throughout her childhood. 3. Lara has spent the vast majority of her life with the applicants and because of the excellent care she received from them she is strongly attached to them and breaking that attachment is not in her best interest. 4. The allegations that have been made against DJ are false and the evidence which explains the context in which the allegations were made would allow the Court to conclude that there is absolutely no risk to Lara if placed in the care of the applicants. 5. Some of the placements of children with the applicants as authorised carers were not successful because the applicants had placed with them severely damaged children with consequent behavioural difficulties and the children were not appropriately supported by the agency. It is submitted that Lara will not exhibit the same sort of behavioural difficulties as she is not suffered trauma as these children had and she has had only excellent care and love from the applicants. This puts her in a separate category. 6. It was submitted that the applicants were not removed as carers, they withdrew. 7. The applicants are in a position to support Lara in ongoing contact with her birth family as is evidenced by the fact that they have already done so. There are, it is submitted, many ways of managing contact and this should not be a factor that excludes the applicants as carers. 8. The applicant's also argue that if leave was refused the applicants have no way of ensuring they will have ongoing contact with Lara. The Secretary's Submissions 1. The Secretary did not make detailed submissions though supported the joinder application noting that placement with the applicants is not supported by the Secretary. The Secretary supported the application on the basis that the applicants were best placed to put their evidence relating to the allegations made against DJ. 2. The Secretary also asked the Court to note that given DJ does not have a Working with Children check the Secretary is prevented not only from placing the child in his care but also supervising such a placement. The Independent Legal Representative's Submissions 1. Ms Higgins did not make detailed submissions instead she simply supported the joinder, adopting the submissions of the other parties. The Legal Framework 1. Section 98 of the Children and Young Persons (Care and Protection) Act 1998 ('the Act') is concerned with rights of appearance in proceedings. It provides: (1) In any proceedings with respect to a child or young person: (a) the child or young person and each person having parental for the child or young person, and (b) the Secretary, 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. (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. 1. Section 98(3) imposes a precondition to joinder, namely that the Court must be satisfied that the applicant is a person who has a genuine concern for the safety, welfare and well-being of the child. If the applicant satisfies that precondition, the Court then has to exercise its discretion to decide whether to permit the joinder. 2. It is clear from the authorities that the Court must exercise its discretion in the context of the principles and objectives of the Act and after having regard to all of the circumstances of the case. 3. A consideration of some of the authorities recognise the following circumstances that can be relevant in proceedings pursuant to s98(3) of the Act. 1. Any delay the joinder may have to finalising the proceedings 2. The applicant's prospects of success if joined One of the often quoted cases in relation to this factor is EL & WL v Director-General of the Department of Human Services [2010] NSWDC 248. In that case the carers of two boys aged 3 years and 6 months appealed against a decision by the Children's Court to refuse them party status. The baby was born drug addicted in December 2008 and went from hospital to the carers. The children were in the continuous care of the carers from December 2008 until they were removed on 26 March 2010. There had been no contact since. The carers say that they had been identified by the Director-General to the Court as the proposed long term carers. The children were however removed and placed in the care of their grandmother where two of their siblings also resided. The Court refused leave stating the following: [43] On the limited evidence available the Court does not consider that the plaintiff's case…is without merit. However that is not to say that their prospects ought to be regarded as sufficient to warrant the granting of leave…. [44] The plaintiffs are seeking to challenge orders allocating parental responsibility to a family member, their paternal grandmother, who has been their carer for the last four months and with whom two half siblings also reside, and with the consent of the father. They face what I consider to be a significant hurdle ultimately to persuade the Court that this is not in the children's best interests. [46] Further, in my view, there is considerable force in the submission that if leave is granted it is inevitable that the clinician would be requested to conduct an assessment of the plaintiffs and possibly also a reassessment of the paternal grandmother given that the children have been in her care for four months. Several of the parties also referred to the current lengthy delays in obtaining assessments. Whilst this ought not be determinative, having regard to s9(e), I consider this to be an important factor. 1. matters of public policy In Bell-Collins Children v Secretary, Department of Family and Community Services [2015] NSWSC 701 submitted that there were public policy advantages of efficient hearings. Slattery J, in responding to this submission stated: at [26] This is a powerful submission. This is so not only for the ordinary reasons, which would move a court bound by Civil Procedure Act, s 56 to "facilitate the just, quick and cheap resolution of the real issues in the proceedings". But the submission also responds to the objectives of the Care Act, s 9(2)(c), that any consideration of "the paramount concern to protect [these two children] from harm and promote [their] development", will usually involve giving priority to bringing proceedings to finality as quickly as possible. Anything which is likely to unduly delay these proceedings is an important relevant s 98(3) consideration." 1. whether the case can be advanced by another party or whether the applicant for joinder would bring a depth of perspective and position that varied from the other party (whose positions are aligned) which would assist in fully informing the court for the determination of final orders pertaining to the care and responsibility of the child. In Bell-Collins Slattery J said the great grandparents' were the best persons to advance the case as to their own personal suitability as alternative carers for the children in the children's best interests, if the parents could not care for them. More than any other person….. they are best fitted to propound a case that they have been wrongly assessed as unsuitable as an alternative placement for the children. In Go v Secretary, Department of Family and Community Services [2017] NSWDC 198 it was held that a person who is actively present as an alternative carer for the child is the best person to advance the case of her own personal suitability as a carer. In this case the mother was in gaol and not seeking restoration. The mother supported the child being placed with the grandmother. The assessment of the grandmother recommended against her being the carer. The Court held that only the grandmother could properly argue her own case. 1. It is well recognised by the authorities that joinder can be limited. 2. In Bell-Collins, Slattery J limited leave to the applicant great-grandparents. His Honour found that the core part of the great grandparents' case was their fitness as carers as an alternative to the parents. 3. His Honour permitted the great-grandparents by joinder to advance such a case and to test by cross-examination the evidence against their suitability. The great-grandparents were not granted leave to advance a case in general support of the parents' application to have the care of the children restored to the parents. The parents can do that. His Honour also noted that the leave he gave did not permit the great grandparents to advance a case to challenge the medical evidence as to causation of injuries or any of the other general issues in the proceedings. The parents could also do that. Leave was granted pursuant to s 98(3) only for the purposes of the great grandparents being able to cross-examine and adduce evidence about their own suitability as alternative carers for the children. Consideration 1. The applicants were Lara's carers from the date of her birth until her removal on 9 August 2017. The evidence is that the applicants were providing Lara with good care and were intending to continue to provide her such care throughout her childhood. Since her removal they have been having contact with her and wish to resume her care. 2. I am satisfied that the applicants have a genuine interest in Lara's safety, welfare and well-being. 3. The submissions of the Secretary and the Independent Legal Representative were very brief and did not extend much beyond agreeing with the applicants. The failure to make any more detailed submissions was disappointing, particularly as the matter had been set down for hearing allowing time for the preparation of submissions, the facts are unusual, the issues complex and the child a baby. I was however assisted by the detailed affidavits filed by both the applicants and the caseworker. 4. The care proceedings have only recently been filed. There has been a finding that Lara is a child in need of care and protection. 5. The next step in the care proceedings is to decide whether there is a realistic possibility of Lara being restored to the care of her parents, or either one of them. 6. The Secretary is obliged to make an assessment of whether restoration is a realistic possibility. The Secretary will then file his Care Plan containing that assessment. The outcome of the Secretary's assessment of whether there is a realistic possibility of restoration to Lara's parents is not yet known to the Court. 7. It is only if the Court decides that restoration of Lara to her parents is not a realistic possibility that consideration would be given to whether Lara is placed with the applicants or other carers on a permanent basis. The Secretary cannot support the placement of Lara with the applicants because of the Working with Children Check bar on DJ. 8. A date for the Care Plan to be filed and replies to the Care Plan has been set. If I was to join the applicants there is no impediment to their complying with the current filing timetable. 9. The only delay may be if an Assessment Order is made and the Children's Court Clinic undertakes a parenting capacity assessment. This assessment is ordinarily available six weeks from the date of the order. Although it is extremely important, given Lara's age, that decisions as to her permanent placement are made quickly, given that the application has only recently been filed, in the circumstances, even if there was to be a Clinic assessment, this would not amount to an unacceptable delay. 10. In these proceedings I was not asked to limit the joinder of the applicants to the issue of whether the applicants would be suitable long term carers for Lara. As mentioned, before the Court looks at permanent placement outside of the parents, the Court must first decide whether restoration to the parents is a realistic possibility. Although the applicants may have evidence relevant to that question, that is not sufficient to justify a joinder which would allow them to call and cross-examine witnesses on the question of restoration. The Secretary and the Independent Legal Representative can undertake that role. At this stage in the proceedings the Court is not choosing between the parents and the applicants as preferred carers for the child. 11. The question then becomes whether the applicants should be joined to file evidence, call and cross-examine witnesses and make submissions on their suitability as carers for Lara if the Court decides that Lara should not be restored to the care of her parents. I accept that only the applicants are able to argue their suitability, not the least because none of the other parties support placement of Lara with them. 12. There is however another relevant circumstance which I must take into account into account in deciding whether to join a party to care proceedings and that is that the party seeking to be joined must have some prospect of success. In these proceedings that means that the applicants have some prospect of success in arguing that if Lara is not restored to her parents then an order for parental responsibility to Lara until she is eighteen should be made in their favour. 13. The applicants argue that their case has good prospects of success because Lara had spent the first five months of her life in the care of the applicants where she received excellent care and love and security which created a secure attachment to the applicants and it is in Lara's best interest to retain that positive attachment. 14. During the hearing Mrs Wooi conceded the applicants had broken the law in order to have Lara in their care. 15. Legislation and regulations surrounding the authorisation of carers to look after children who cannot live with their own family are in place to protect children from abuse and exploitation. 16. In order to safeguard children whose own family are not able to care for them, potential carers or prospective adopters are subject to thorough and rigorous assessment. They are also provided training and are offered support. Authorised carers are kept under review. History has repeatedly shown that inadequate systems and safeguards in relation to fostering and adoption lead to tragic outcomes for children. 17. The laws and systems put in place in relation to authorisation of carers are of great importance for the welfare of children and generally it will not be in the best interests of children to have those laws disregarded. 18. Although these general considerations do not decide individual applications they do afford a context in which the Court's discretion must be exercised. 19. I asked Mrs Wooi how the Children's Court could make an order in favour of the applicants in circumstances when they had broken the law which is in place to protect children to bring Lara into their care. 20. Mrs Wooi responded that the Court is obliged to make a decision that is in the best interests of the child, even in circumstances such as these. She submitted that the Court would accept the evidence that the motives of the applicants in entering into this arrangement was to have a family and to bring Lara up in a safe and loving home and that is exactly what Lara was given in the five months she lived with the applicants. She submitted that it is in Lara's best interests that she is returned to the care of the applicants. 21. This case has some parallels with cases where children are removed by a parent to another country in contravention of the law. In the English case of Re SC (A Child)[2005] EWHC 2205 (Fam Div) Nicholas Mostyn QC sitting as a Deputy High Court judge was dealing with a child who had been wrongfully removed from the United States in 1999 and secreted in England for more than four years. The judge severely criticised the mother for her heartlessness in doing what she did both to the father and to the child and stated that there was no justification whatsoever for the mother's actions. He did acknowledge however that during the period of concealment the mother had provided excellent care to the child and she was thriving and wanted to stay with her mother. He stated: It is clear to me (at least) that notwithstanding the grievous wrong done to F; notwithstanding the deceit and subterfuge perpetrated by M; and notwithstanding the existence of a Californian custody order, that it was in October 2003 or at any time thereafter inconceivable that an English court would have returned S to California for a custody trial there. 1. His Honour then went on to deal with competing claims for residence and contact saying: I recognise that all manner of moral and philosophical objections can be raised to this view. No doubt F, and his many supporters in California and Ireland would say that in taking this view I am rewarding the worst kind of turpitude and encouraging a kidnapper's charter which says that if someone can successfully abduct a child for sufficiently long period of time then that person will get away with it. But these views have to be subordinated to the child's best interests and in my view it would be a breach of the judicial duty to sacrifice a child's best interests in order to prove a point of principle. 1. I respectfully agree with His Honour's reasoning and Mrs Wooi's argument. The Court would be obliged to set aside any sense of disquiet it held about the way in which the placement was arranged if to do so was in the child's best interests. So, when considering the prospects of success of the applicants' application for parental responsibility for Lara I must do so on the basis that the decision would ultimately be made on the basis of whether that placement was in her best interest. The decisive issue is and always remains the best interests of the child. All other issues are subservient. 2. Lara lived with the applicants for the first five months of her life. The evidence is that she received good quality care from the applicants. She would no doubt have had an attachment to those carers. As at the time of this decision she will have been living with authorised carers for almost two months. The earliest this matter will be able to be heard, allowing for time for the Care Plan and evidence in reply to be served, would be late November 2017. If a parenting capacity assessment from the Children's Court Clinic is necessary of any of the parties then the earliest hearing date would be late January 2017. It would seem that given the complexities and the unusual nature of this case, an assessment is a real possibility. 3. By the time the Court makes a final order Lara will have been with authorised carers for at least 4 months, though more likely that time will be at least 6 months. The argument in relation to her attachment to the applicants and that Lara should be returned to the care of the applicants, who have no biological connection to Lara, is significantly weakened in these circumstances. 4. The applicants acknowledge that they had difficulties in caring for the children who had been placed in their care when they were authorised carers. The applicants seem to consider that this was because the children had behavioural difficulties and a lack of support from the agency. 5. The applicants submit that this history is not relevant to Lara because: 1. The applicants have proven that they can provide excellent care to Lara; and 2. The children placed with them when they were authorised carers were damaged and therefore exhibited behavioural difficulties. Lara is not such a child as she has had a safe and secure and loving placement and formed positive attachments. 1. I cannot agree with this submission. Although I accept that Lara was well looked after by the applicants, their history of being unable to cope when behavioural difficulties arise, is a relevant consideration. Although there is no evidence that Lara is not meeting her developmental milestones, there is a possibility that Lara could have some form of disability which manifests in behavioural difficulties or that later in her childhood or adolescence she develops challenging behaviours. The uncontested evidence from the Secretary is that in 2012 the applicants were held not to possess the four key competencies in looking after children. 2. The applicants' history as authorised carers, including that there were concerns that a baby had failed to thrive in their care and the fact they were "de-authorised" as carers as they failed to meet the competencies required to be carers raise serious concerns about their parenting capacity. That Lara was well looked after by the applicants is not sufficient to overcome the concerns regarding the applicants' parenting capacity. 3. It is likely that if the Court decides that Lara should not be restored to her parents, ongoing contact, at least for identity purposes, and contact with Lara's siblings will be considered to be important for Lara and in her best interest. 4. Mrs Wooi submitted that the applicants have already shown that they are alive to the need for contact with Lara's natural family and they have organised contact, despite the challenges. Mrs Wooi said there are ways in which contact could be managed and the applicants are committed to maintaining contact. 5. The evidence of the applicants is that they have been manipulated and threatened and assaulted by Lara's family. They were very fearful of Ms Casey taking Lara away. They currently have an AVO to protect themselves and Lara from Ms Casey. They are planning to move house so that Ms Casey will not know where they live. The applicants were not able to set up a workable and safe contact regime in the five months Lara was placed in their care. In circumstances such as these the applicants would struggle to organise and implement ongoing positive contact between Lara and her natural family. 6. In this case there is a historical allegation that DJ was the perpetrator of a sexual assault on a young child when he was 14. At the time DJ was not informed about the allegation and no action was taken. There was another allegation made against DJ by one of the boys placed with the applicants when they were authorised carers. The boy repeated the allegations in a formal interview setting. The allegations he made led to FaCS finding that the allegations were "substantiated" and DJ was included on their database as a Person Causing Harm to a child. 7. DJ denies absolutely and vehemently the allegations. He presents some evidence to counter the allegations. 8. In this case the Court would have to make a finding in light of all the evidence whether there is an unacceptable risk of harm as contemplated in M v M [1998] HCA 68. It was submitted by the applicants that the Court would be in a position to find that there was no risk. I do not agree. This is a case, particularly given the nature and quality of the allegations and despite the denial and the evidence of the applicants, the Court could well find there was an unacceptable risk posed by DJ to Lara. 9. DJ's application for a Working with Children Check was refused and he has a bar until 2019. 10. If the Court made an order placing Lara in the parental responsibility of the applicants there would be no supervision or oversight of the placement provided to Lara by the Secretary given that DJ has a Working with Children Check bar. 11. The Court sometimes seeks undertakings from parties to address concerns or mitigate risk, for example that the party will maintain contact between the child and a family member. In this case there would be a real issue as to whether the Court would consider that any concerns could be addressed by undertakings as it may not be able to place confidence in the applicants' compliance with undertakings given the applicants have: 1. entered into an illegal arrangement, either knowing it to be illegal or suspecting it to be so 2. have taken elaborate steps to hide the illegality, including: ▪ Knowingly registering false details on Lara's birth certificate ▪ concocting a story of conception and throwing a party to disseminate that falsity ▪ lying to Queensland's child protection agency, repeatedly lying or misleading the NSW Department of Family and Community Services and lying to the NSW Police ▪ not disclosing to the Family Court in proceedings regarding Lara that the DNA results excluded DJ from being Lara's father 1. I have considered the following factors in considering the prospects of success of the applicants' application for parental responsibility of Lara * the manner in which the child entered into the care of the applicants * the break in the applicants' care of Lara * the fact that the applicants are not part of Lara's birth family and the difficulties the carers will have in providing ongoing positive contact with Lara's birth family * the parenting capacity of the applicants * the allegations made against DJ * the Working with Children Check bar on DJ * the fact that there will not be able to be any oversight or supervision of any placement with the applicants * the history of the applicants lying to agencies 1. When all of these circumstances are taken into account the applicants would face a significant hurdle in persuading the Court to grant them parental responsibility for Lara and the applicants do not have sufficient prospects of success. The application for party status is therefore refused. 2. In her submissions on behalf of the applicants Mrs Wooi also raised the fact that, without leave, the applicants may not even have contact with Lara. Although no specific application was made, I considered whether to grant leave to the applicants to become parties on the more limited issue of whether a contact order should be made in their favour. 3. If the Court was to determine that there is no realistic possibility of restoration to the parents and the Minister has parental responsibility then the Minister will be able to provide contact if it is determined that it is in Lara's best interest. 4. In circumstances such as these, where the Minister can provide contact and an order for contact which may fetter the Secretary's capacity to provide a permanent placement for Lara, such an order is unlikely to be made by the Court. 5. If Lara is restored to her parents then given the relationship between the mother and the applicants, the Court would again be unlikely make a contact order. 6. In my view the applicants would also face significant hurdles in relation to seeking a contact order and therefore joinder; even on a more limited basis is not appropriate. Order 1. The application for joinder is refused. ********** 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: 26 August 2021