Department of Communities and Justice (DCJ) and the Anderson Children [2019] NSWChC 12

Children's Court New South Wales

Medium Neutral Citation: Department of Communities and Justice (DCJ) and the Anderson Children [2019] NSWChC 12 Hearing dates: 20, 21, 22, 23 and 24 May 2019, 26, 28 and 29 August 2019 and 6 September 2019 Decision date: 02 October 2019 Jurisdiction: Care and protection Before: Children's Magistrate Sheedy Decision: An order of parental responsibility to the Minister to 18 is the order that is in the best interests of the children Catchwords: Best interests of the child Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW) Cases Cited: The Secretary of the Department of Communities and Justice and Fiona Farmer [2019] NSWChC5 Category: Principal judgment Parties: The Secretary, Department of Communities and Justice Ms Chloe Brown (the children's mother) Mr Daniel Anderson (the children's father) Mrs Hazel Musa (the children's great aunt and current carer) Noah Anderson Ellie Anderson Representation: Ms Broomfield for the Secretary Mr Mara for Ms Brown Dr Ginges for Mr Anderson Mr Attia for Mrs Musa Mr A. Nasti as the Independent Legal Representative for Noah and Ellie File Number(s): 17/348116 Publication restriction: Pseudonyms are used for the children and their family and identifying information has been removed.

Judgment 1. On 16 November 2017 the Secretary, of the then Department of Family and Community Services (now the Department of Communities and Justice)('the Secretary') filed an application for a care order for Noah Anderson who was born on [ ] 2015 and Ellie Anderson who was born on [ ] 2017 ('the children'). 2. Noah and Ellie are the children of Ms Chloe Brown and Mr Daniel Anderson. Noah and Ellie have two siblings, Violet (born in 2010) and Elena (born in 2012). Violet and Elena live in a kinship placement with Mr Nigel Johnstone and Ms Hannah Hunter. Mr Nigel Johnstone and Ms Hunter have a guardianship order for Elena and Violet is placed in their care by the Minister who holds parental responsibility for her until she is 18. Violet was placed with Mr Johnstone and Mr Hunter before she was one and Elena was placed with them at birth. 3. The children have four half siblings, children of their father, Timothy (born 2009 who lives with his mother in Canberra), Amanda (born 2005 who lives with her mother in W.A), Lee (born 2016 who lives with her mother in Cranebrook) and another child whose name and whereabouts are unknown to the Secretary but whom the Secretary considers would be approximately 14 years old. The children also have two half siblings, children of their mother. Those children are Laurence Smith (born 2007) and Lucas Donnehy (born 2009). Lucas is subject to an order of parental responsibility to the Minister until 18. Laurence is under the parental responsibility of his paternal grandparents until 18. 4. Between 13 February 2015 and 7 November 2017 the Secretary received 20 Risk of Serious Harm ('ROSH') reports for the children. It is noted that both parents suffered significant abuse and neglect in their own childhoods. 5. On 13 November 2017 the Secretary decided to assume the care of the children due to his assessment of the ongoing and cumulative risk of harm as follows: 1. The parents' inability to meet the children's day to day needs and the inconsistent care arrangements that were made for the children 2. Ms Brown' mental health 3. Parents' lack of parenting capacity 4. The inconsistency of care of the children given their being continuously left with other people 5. Domestic Violence between the parents 6. The children being placed in environments which exposed them to risk of significant harm 7. Risk of sexual harm (arising from Mr Anderson's being found guilty of aggravated sexual assault of a child under 16 in 2005 and charges namely two counts of indecent assault with a child under 10) 1. At the time the Secretary assumed the care of the children in November 2017 the children were being looked after by Mrs Hazel Musa and her husband Mr Abeo Musa. It is clear that Mrs Musa had been providing significant levels of care for Noah over his lifetime and had been caring for Ellie almost since her birth. The Secretary decided to leave the children with the Musas in the short term and assess other family options. 2. Mrs Musa is the children's great aunt, being the sister of the children's maternal grandmother, Ms Edith McCallum. Mrs Musa is also the sister of Mr Nigel Johnstone, the carer of the children's siblings, Violet and Elena. Mrs Musa has five of her own children, all of whom are adults, except for 15 year old Leon. 3. Mr and Mrs Musa have remained caring for the children since the application for care order was lodged, almost two years ago. Mr and Mrs Musa met on a train in February 2016 and were married in early December 2016. Mr Musa works full time and sometimes even 6 days per week. He also attends college one night per week. When he and Mrs Musa met he was in Australia on a student visa. Soon after he and Mrs Musa were married Mr Musa lodged an application with the Australian government for permanent residency. Mr Musa was subsequently granted a bridging visa which allows him to work, but his application for permanent residency is yet to be determined. 4. Mrs Musa is confident that Mr Musa's application will be successful. If it is not and he has to leave Australia then he does not wish to return to Nigeria and will go and live in Canada. Mrs Musa told the Court she will not go with Mr Musa. 5. The children are subject to an interim order of parental responsibility to the Minister. The Court made a finding that the children were in need of care and protection pursuant to s71 of the Children and Young Persons (Care and Protection) Act 1998 ('the Act') on 19 December 2017. On 5 June 2018 the Court made a finding, on the concession of the parents, that there was no realistic possibility of restoration of the children to their care. 6. The Secretary filed the most recent Care Plan in September 2018 seeking an order for each of the children of parental responsibility to the Minister until 18. The Care Plan proposes that the children be removed from their current placement with Mr and Mrs Musa and placed with their siblings Violet and Elena in the long term care of Mr Nigel Johnstone and Ms Hannah Hunter. 7. On 10 May 2019 Mrs Musa filed an application to be joined as a party to the proceedings, seeking an order that she have sole parental responsibility for the children as she wanted the children to remain living with herself and her husband. Mrs Musa's application for party status was granted on 5 June 2018. 8. The matter was listed for hearing and heard over five days from 20 May 2019. When the matter did not conclude, five further hearing days were allocated however due to the illness of the Independent Legal Representative ('the ILR') the hearing could not proceed. The next available dates for hearing were then allocated. 9. The Secretary filed assessment reports by Ms Zhofova, psychologist, and the Court had the benefit of the Children's Court Clinic reports of Ms Phillips.