Department of Communities and Justice (DCJ) and Jacinta [2021] NSWChC 5

Children's Court New South Wales

Medium Neutral Citation: Department of Communities and Justice (DCJ) and Jacinta [2021] NSWChC 5 Hearing dates: 8 April 2021 (Day 1 of hearing) Various mention dates between April 2021 and December 2021 Date of orders: 14 December 2021 Decision date: 14 December 2021 Jurisdiction: Care and protection Before: Children's Magistrate Sheedy Decision: All aspects of parental responsibility for Jacinta Robertson are allocated to the Minister for Families, Communities and Disability Services until the child attains 18 years of age Catchwords: Consent to final orders, contradictor Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 Cases Cited: AB & JB v the Secretary & Ors [2021] NSWDC 626 CAC v Secretary, Department of Family and Community Services [2014] NSWSC 1855 Re Andrew [2004] NSWCA 210 ASIC v Caddick [2021] FCA 1443 Category: Principal judgment Parties: The Secretary, Department of Communities and Justice (the Applicant) Ms Amanda Wright (mother) Mr Joseph Robertson (father) Jacinta Robertson (child) Representation: Ms Voncina for the Secretary Ms Ferrier for Ms Wright Ms Ng for Mr Robertson Mr Dougherty as Jacinta's Direct Legal Representative File Number(s): 2019/223363 Publication restriction: Pseudonyms used for the child and family members

Judgment

background 1. On 18 July 2019, the Secretary, Department of Communities and Justice ('the Secretary') made an application for a care order for Jacinta Robertson who was born on [ ] 2007. On that same date the Secretary also made an application for a care order for Jacinta's two older siblings: Joseph Robertson (known as Joseph Jr) born [ ] 2003 and Colin Robertson born [ ] 2004; her three younger siblings Lucas Robertson born [ ] 2010; Christopher Robertson, born [ ] 2015 and Allan Robertson born [ ] 2018. The children are Aboriginal. 2. The parents of the children are Amanda Wright and Joseph Robertson. 3. Between 2003 and July 2019 the Department of Communities and Justice ('DCJ') received 22 Risk of Serious Harm ('ROSH') Reports relating to the Robertson children. 4. The Secretary filed a summary of the ROSH Reports and responses as follows: 1. Between 2003 and 2005, six reports were received. These reports include concerns regarding the parents ability to provide basic care, the impact of Ms Wright's developmental delay and concerns about her ability to provide adequate care for Joseph Jr; Joseph Jr not feeding properly; lack of routine; Joseph Jr's hands being strapped to his side inside his nappy to prevent him from touching his penis; physical abuse of Joseph Jr; Mr Robertson's alcohol and drug use as well as gambling; the power and control Mr Robertson has over Ms Wright; Joseph Jr eating his own faeces, and the parents missing appointments with services and not understanding their child's needs. 2. In 2003 and 2004, DCJ did not substantiate actual harm to Joseph Jr. During this time, the parents were referred to parenting programs, and advice was provided by NSW Health regarding feeding Joseph Jr, alternate strategies to prevent Joseph Jr from continually touching his penis were provided. The parents complied with a s173 Notice for Medical Assessment when Joseph Jr was injured, and Ms Wright was noted to be attending antenatal appointments whilst pregnant with Colin. 3. Ms Wright has a moderate intellectual disability and was allocated a case manager at Department of Aging, Disability and Home Care ('DADHC') who also provided support. Mr Robertson was engaged with mental health services. Mr Robertson had been diagnosed with schizophrenia whilst incarcerated for break and enter and starting a fire. Ten years prior to this, Mr Robertson had been incarcerated for maliciously destroy property by fire. 4. In 2005 two ROSH Reports were closed without an assessment. The reported concerns related to the children's basic needs not being met. Joseph Jr had been diagnosed with moderate to severe growth and fine motor developmental delay and early intervention support was put in place. The parents missed three appointments for Joseph Jr, and Mr Robertson said that they would no longer be attending the service. It was noted at the time that the parents continued to make excuses such as the car broke down, or that they mixed up the appointment times. Transport support was offered but declined by the family. 5. In 2007 a report was received after Ms Wright was locked inside the home and could not find the keys. There were concerns that Mr Robertson had locked Ms Wright inside the home. The family was assessed as eligible for an early intervention service. It is unclear if the service was provided. 6. In 2008 a report was received regarding physical abuse of Ms Wright, Joseph Jr and Colin, perpetrated by Mr Robertson. It was reported that Mr Robertson had ceased his mental health medication. The children were sighted without injuries, the home was tidy, and the parents stated they did not use physical discipline. No further action was taken. 7. In 2008 two reports were received regarding sexual abuse or harm. One report stated that Joseph Jr gets into bed with Colin and has tried to place his penis in Colin's bottom. Ms Wright stated that Joseph Jr had been sexually abused by another child and had started to act out against Colin. This report was assessed for an early intervention program however it was declined due to the family's previous experiences of FACS (the Department of Family and Community Services, which was the predecessor of DCJ) and their engagement with Burnside family support. The other report raised concerns about Joseph Jr's sexualised behaviours including urinating in the playground, pulling his pants down and asking female teachers to pull their pants down. Mr Robertson stated that both Joseph Jr and Colin had been sexually assaulted by another child 3-4 years prior. It was also reported that the parents had missed therapy appointments. There were concerns about the hygiene of the home and the family were provided with assistance for this. The family declined a service to assist them further. 8. In 2011 two ROSH reports were received. One report stated that the parents wished to relinquish care of Colin and that he had tried to kill his teacher who then required hospital treatment for ligament damage. It was reported that Joseph Jr had autism and a moderate intellectual delay and that Colin had autism and that his parents sometimes forgot to give him his Ritalin. The parents had not provided consent for the school to give Colin his medication. During 2011 the family was supported with respite, as well as education regarding hygiene and Colin's sexualised behaviours. 9. The second report in December 2011 reported concerns that Jacinta (aged four at the time) had complained about her vagina being sore because a boy at preschool had touched her and placed his finger in her vagina. Ms Wright and Mr Robertson reported that Jacinta had been taken to the GP who did not find any other problem except some redness of her vagina area. 10. Around this time, Jacinta was experiencing other issues including using the toilet at childcare however refusing to take her nappy off at home. The Report was investigated and a safety assessment was conducted. The children were assessed to be at risk of sexual harm/injury. The parents were advised to supervise the children. Jacinta was referred to the incontinence nurse for further advice. 11. In 2012 three ROSH reports were received. Initially it was reported that the parents had disclosed that Joseph Jr was showing sexualised behaviours towards Colin and Jacinta. Mr Robertson had disclosed that Joseph Jr had "done everything except penetration" to Colin and Jacinta. Mr Robertson disclosed that Joseph Jr had tried to do things to him and that in response he shouted at him. It was reported that Mr Robertson disclosed that Joseph Jr places his hand over Colin's mouth so that he cannot scream and that they pull Joseph Jr off Colin when they see him showing sexualised behaviours towards Colin. It was also reported that when Mr Robertson asked Jacinta if she did not want to take her nappy off at home because she was afraid of what her brother was going to do to her, she nodded. A referral was made to the sexual assault service. 12. Later in 2012, it was reported that Joseph Jr had been sexually abused by a foster cousin when he was younger. At the end of 2012 it was reported that Joseph Jr had disclosed that a "naughty man" had touched him and put his "private part" in his bottom. 13. During 2012, the children were assessed by FACS Joint Investigative Review Team to be at risk of sexual abuse. The children were assessed as "safe". During 2012, the parents were noted to not be engaging with services. A psychologist from DADHC was working with the family on Joseph Jr's behaviours. 14. In 2013 two reports were received in which it was stated that Joseph Jr had been having dirty thoughts, "attacking" his siblings and "doing dirty things to them". It was reported that Joseph Jr disclosed laying on top of siblings and hitting and kicking them. It was reported that Joseph Jr stated he could not stop masturbating and that his parents do not trust him. It was reported that Joseph Jr is not allowed to go to the toilet at school on his own as he asks others to pull his pants down. This report was not assessed or investigated. The family had already been referred to a sexual assault service. Later notes record that the parents had failed to attend both appointments with the sexual assault service. 15. In 2015 three ROSH reports were received. Initially it was reported that Joseph Jr disclosed that when he was 3 a person whom his parents had asked to look after him for the night raped him. It was also reported that Joseph Jr disclosed that Colin had raped him the night prior. Joseph Jr went on to say that rape means when someone "puts their dick in your bum". Joseph Jr said that his parents did not know about the incident and that it had happened 40 times. The second report raised concerns about the home being unhygienic, cluttered, and smelling of urine. The home was described as "unliveable". There were reported to be insects and spiders and that some of the floors could not be seen because of the clutter. 16. During the JIRT investigation, the children did not make any disclosures and therefore actual sexual harm was not substantiated. The children were assessed to be at risk of sexual harm. It was advised that Colin should have ongoing reviews of his medication. 17. By August 2015, Joseph Jr had been engaging with a community health psychologist for approximately 18 months and the service could not be extended any longer. The psychologist was visiting Joseph Jr at school and felt that the parents did not appear to be interested in how Joseph Jr was going but noted that Joseph Jr himself had engaged well. The psychologist wanted to refer the family to Brighter Futures and Macarthur Diversity Services however they declined. 18. The third report at the end of 2015 raised concerns about Joseph Jr's injured toe. It was reported that it was an infected ingrown nail with pus and Joseph Jr had been complaining about it for months and he had been limping. The family were referred to Brighter Futures however the risk was assessed by Brighter Futures as too high and the referral was not accepted. The parents received medication for Joseph Jr's toe. 19. On 24 June 2016 a ROSH report was received in relation to Joseph Jr exposing himself to another boy. It was reported that Joseph Jr then apologised and said he could not help it. It was reported that Mr Robertson stated he had not done anything like that at home and asked whether someone had asked him to do what he had done. 20. In August 2016, access for services request was accepted by NDIS on behalf of Colin and Joseph Jr. On 4 November 2016 Colin's plan for support was approved and his current plan was valid till 1 February 2020. Joseph Jr's plan was approved and his current plan was valid until 16 May 2020. 21. In October 2018 a ROSH report was received in relation to the family home due to structural concerns and insects. The Report was not allocated for a response. Early in 2019 the family received a housing transfer. 1. On 5 April 2019 Allan was transported to Campbelltown Hospital by ambulance after presenting with his mother to the family practitioner with a temperature. Allan was medically assessed as being severely underweight. 2. Allan, at 6 months old, was assessed to be below the 1st percentile in weight, was assessed to be malnourished and unable to lift his head. No organic cause for the malnourishment was found and the doctors diagnosed Allan's condition to be failure to thrive due to malnutrition. 3. When Allan's condition was discussed with the parents they maintained Allan was breastfed a number of times per day and was eating two pouches of pureed food per day. They said he was small because he was one month premature and they had no concerns for his size, feeding or presentation. 4. In a further family visit on 16 April 2019 Ms Wright again did not recognise Allan as being underweight. She was vague when providing information about the frequency of Allan's feeds, stating it varied from 30 minutes to every three hours. In contrast, it is noted in the safety assessment that Ms Wright disclosed, upon Allan's admission to hospital, she fed him every few days. 5. On 17 April 2019 Allan was subject to a Temporary Care Agreement and placed with authorised carers. 6. During a visit from caseworkers on 15 May 2019 the parents expressed the view that the general practitioner was at fault for Allan's condition because he gave incorrect advice about why Allan was unwell. 7. On 4 June 2019 DCJ received Allan's medical report from NSW Health which stated the reason for Allan's admission was failure to thrive due to malnutrition. There was also information that the parents had previously been advised to formula feed Allan but it appeared that they had not acted on that advice at the time Allan presented for his four-month immunisations. On 6 June 2019, in a meeting with caseworkers, the parents expressed their view that there was nothing wrong with their parenting. 8. On 23 June 2019 a parenting capacity assessment was completed which recommended Allan not return to his parents care. In light of the assessment of risk within the household the Secretary decided to remove Lucas, Jacinta and Christopher from the care of Mr Robertson and Ms Wright. 9. On 15 July 2019 Jacinta, Lucas and Christopher were removed from home pursuant to a warrant issued under section 233 of the Children and Young Persons (Care and Protection) Act 1998 ('the Act'). On the same day Allan was assumed into care. 10. The Secretary's evidence filed in August 2019 included the following information regarding the three oldest children –