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 – Joseph Jr * Joseph Jr is diagnosed with Autism (level 3), emotional dysregulation and a mild-to-moderate intellectual delay. Child psychiatrist Dr Einfield supports him. He is on medication to manage his mental health and behaviours. This includes medication to reduce his sexualised behaviours. * The funding in Joseph Jr's NDIS plan valid until May 2020 was underutilised * Mr Robertson has expressed to DCJ that as parents, they have experienced issues in working with three different NDIS service providers. The issues have been that; the children's funding has ceased after a period of three months, conflict with the service providers' staff; and at times the service providers have not had staff to supervise the behavioural risks associated with Joseph Jr and Colin * The school in which Joseph Jr was enrolled from January 2009 was a school for students with moderate to severe intellectual disabilities. The school has stated that Joseph Jr has history of inappropriate behaviour towards both peers and adults, requiring him to be constantly supervised, not left alone with more vulnerable students, and have two staff members present at all times. These behaviours include sexualised talking and touching, stealing school items and lying. Joseph Jr previously received counselling through Community Health Psychology and psychological intervention regarding developing socially appropriate behaviours through Macarthur Community Support Team * Joseph Jr is currently under the care of Professor Einfeld and Dr Gautam (paediatrician). Joseph Jr is currently prescribed three different medications, including a hormonal medication reportedly intended to subdue sexual urges and an antipsychotic from Professor Einfeld. Joseph Jr has had multiple assessments by the school counsellor, and Mr Robertson has met with the school counsellor multiple times to discuss Joseph Jr's abilities Colin * Colin is diagnosed with Autism, mild to moderate intellectual disability and obsessive-compulsive disorder. He is placed in an IM class at high school. He has been treated by a child psychiatrist for complex mental health issues. He has symptoms of delusions and self-talking behaviour. He is on medication to manage this. * NDIS has indicated that Colin has a funded support coordinator for determining and accessing the best supports for him within the Plan however the funding is underutilised. Jacinta * Jacinta has been diagnosed with attention deficit hyperactivity disorder (ADHD) and oppositional defiance disorder (ODD). Jacinta takes 30 mg Vyvanse daily. * Jacinta has breathing difficulties, possibly due to asthma, and has an issue with bedwetting. 1. The Secretary's evidence filed in these proceedings sets out in some considerable detail the ongoing child protection concerns in relation to the children. It also summarises the services that the family have been offered and engaged with over many years. The prior alternative action includes that since 2003 the Secretary has provided casework to the family at times as well as referred them to services including parenting programs, drug and alcohol counselling, early intervention programs, sexual assault counselling and Brighter Futures. 2. The Secretary's evidence repeatedly refers to the parents' not acknowledging child protection risks or issues and their expressing to caseworkers that there is nothing wrong with their parenting. 3. On 16 July 2019 the caseworker and casework manager met with the parents who stated that Jacinta was not at risk of sexual harm and that all of the children were happy and healthy living with them. Mr Robertson and Ms Wright denied any knowledge of any previous sexual abuse amongst the siblings. In relation to Jacinta's bedwetting, Mr Robertson and Ms Wright stated that it was due to the bullying Jacinta had experienced during primary school. 4. On 18 July 2019 the Secretary lodged a care application for each of the six children. On 19 July 2019 the Court made an interim order of parental responsibility to the Minister for Jacinta, Lucas, Christopher and Allan. The Secretary sought, and the Court made, an interim supervision order for Joseph Jr and Colin. 5. On 19 September 2021 the Court made a finding that all six children were children in need of care and protection pursuant to section 71 of the Act. 6. The Court made an Assessment Order on 15 January 2020 to obtain an expert assessment of the parenting capacity of the parents to parent each of their children. 7. A Children's Court Clinic Report written by Ms Jenna McKenzie dated 2 March 2020 was provided to the Court ('the Clinic Report'). I found the Clinic Report to be measured and insightful. 8. The Clinician's view was that there was "a pattern throughout the interview [with the parents] of misplaced blame and accountability held by the parents." 9. The Clinician noted that between 2003 and 2005 there was reference to the mother's cognitive ability to parent her children, the father's drug and alcohol use and gambling and allegations of physical abuse towards Joseph Jr. The Clinician said it was important to note that during this time Joseph Jr's behaviour included eating his faeces and continually touching his penis. The strategy used by the parents in relation to Joseph Jr's touching his genitals was to strap his hands to his side. 10. The Clinician also stated that: * the child protection history for the family highlights inconsistencies in meeting the children's medical needs and lack of engagement with services for support for the children * the parents do not understand their children's needs * according to Ms Wright, Colin and Joseph Jr had both been sexually assaulted by another child and that Joseph Jr had allegedly been attempting to sexually assault Colin. Ms Wright had apparently confirmed to DCJ that Joseph had started to "act out" against Colin sexually * at the time of entry into care Jacinta's prescriptions and supplies of medication for Ventolin, Vyvanse and Risperidone could not be located. It was unclear as to how consistently Jacinta was taking these medications prior to entering care as she had self-reported to the GP at this appointment that there was no Risperidone at home for her * in 2011 at age 4 years Jacinta complained of a sore vagina. She was also displaying self-protective behaviours such as not wanting to take her nappy off while at home. DCJ deemed Jacinta to be at risk of sexual harm/injury and some psycho education about supervising the children was provided to the parents by DCJ * in 2012 three further Risk of Serious Harm reports were received about sexual harm to Colin and Jacinta by Joseph Jr * A safety assessment in 2012 conducted by DCJ noted an outcome of "safe with plan" and refers to the parents verifying that Joseph Jr was displaying sexualised behaviour towards Colin by rubbing his penis on him * Some referrals were made by DCJ at this time including sexual assault counselling for the family. These appointments were not attended. * Joseph Jr made disclosures about a man sexually abusing him in 2015 and also stated that Colin had sexually abused him 40 times. Joseph Jr engaged with a psychologist over a period of 18 months and it was noted by this treating psychologist that his parents were not expressing an interest in how Joseph Jr was going. * On 16 July 2019 caseworkers met with the parents to discuss child protection concerns. During this conversation the parents suggested they had no knowledge of any sexualised behaviours for any of the children. 1. The Clinician reported that both parents hold the view that there was no sibling sexual abuse. In her report the Clinician stated: ….none of their children had been sexually involved or abusive towards one another. Joseph and Amanda seemed very certain of this. 1. The Clinician's comments, after interviewing the parents about the child protection concerns including in relation to sexual abuse risk included: 148. There appears to be some misconceptions about identifiers of sexual abuse in children. These comments provide an assumption that children who are being sexually abused are always fearful/avoidant of the perpetrator. This assumption is not always true. Further psychoeducation for the parents around identifying indicators of abuse, assessing safety and risk posed to children, is of importance. 149. The Clinician explained to the parents sometimes victims of sexual abuse may continue to have a relationship with their abuser. Despite this brief piece of psychoeducation, the parents went on to hold the same belief that a child who was being abused would be overtly afraid and avoidant of their abuser… 1. The Clinician expressed concern that the information she was provided was limited and incomplete. She had not been provided with documentation about medical or other investigations regarding the report that Jacinta had a sore vagina at age 4 years. She stated in her report: 154. The Clinician sought further information from DCJ via solicitor, to further assess the parent's protective historical action around disclosures or identifiers of sexual abuse to their children. There was limited information provided in this matter about sexual harm or risk of sexual harm to Jacinta. The insufficient information provided to the Clinician, will limit the predicted risk assessment to Jacinta should she return home to co-reside with her older male siblings. 1. The Clinician reached the following conclusions: 462 The mother, Amanda Wright, has demonstrated a diffusion of responsibility for the child protection concerns raised to external agencies and believes the lack of support for her and her children is the cause of the removal of her children. The Clinician does not agree that services have been unreachable and can see from the documentation trail that there has been a history of involvement by child protective services with referrals made, at various times over more than a decade, for this family. It is that the opinion of this Clinician that active improvement on the child protection concerns raised, has not happened. There appears to be little insight by both parents, into the child protection issues raised. In the opinion of this Clinician, neither parent realises the extent and severity of the injuries of neglect to Allan, nor the serious nature of allegations of sexual abuse between the siblings. There is a denial of the indicators of medical neglect to: (severe conjunctivitis in the eyes, continued head-lice), and Jacinta (need for glasses, ongoing ear infections), Allan (failure to thrive), Lucas (speech issues, cognitive difficulties) and indicated lack of prescribed medication available for Jacinta, Joseph Jr and Colin at home. Neither parent indicated any personal responsibility or remorse for these child protection concerns. 463 Amanda appeared to have a genuine yearning for support and guidance, and reports that she parents effectively when guided. The contradiction here is that there is a history of referral opportunities made for the family, including sexual assault counselling, which have not been followed up by the parents (or disengagement has happened)…. 464. Amanda's cognitive capacity has impacted on her basic knowledge, and ability to transfer information into practice…. Amanda appears to struggle to build on her knowledge base, without repetition of the same information again and again. Amanda may be able to rote learn information but may have difficulties with acquiring new information at a meaningful level, and putting this information into practice in different contexts. Information that Amanda learns may be difficult for her to transfer across different situations; for example she was required to bottle feed Colin (formula) but could not transfer this historical knowledge across to Allan's situation. 465 The father, Joseph Robertson, has demonstrated a diffusion of responsibility for the child protection concerns raised, to external agencies and believes the lack of support for him, his partner and his children is the cause of the removal of their children.… It appears that despite his motivation to care for his children, his capacity to address the child protection concerns raised, has been impacted by a lack of experience of being parented correctly and could be related to a lack of knowing how to meet all of the needs of a child. There has been little progress made to improve the knowledge and skills base of these parents, during the six months since their children were removed. Joseph appears to demonstrate little insight into the extent of the issues raised and minimises with his language, the severity of this pattern of neglect and potentially abuse within the home. Joseph presents with having an explanation about every child protection concern, with an example about how on each occasion, this was someone else's fault. This attitudinal position has, in this Clinician's opinion, inhibited his ability to seek out and take on new information and acquire new skills, to actually improve his parenting skills repertoire. Unfortunately, this attitudinal position, coupled with a lack of the appropriate parenting education and training, has disallowed a personal growth over the six month period and sadly the child protection issues have not been reflected on from a perspective of personal accountability and motivation for change. 1. The Clinician concluded that Joseph Jr has struggled with sexualised behaviours and has been violent in his behaviours towards others. She referred to incidents of Joseph Jr's expulsion from school, because of physical violence perpetrated against his teachers. An education support plan had been in place to ensure Joseph Jr was supervised by two staff members at all times; to ensure vulnerable students would not be exposed to him and as a means of managing his volatile behaviours. Joseph Jr has been involved in sexualised talking and touching at school and in theft. Joseph Jr is currently supported by an NDIS plan, in relation to autism, mild to moderate intellectual delay and emotional dysregulation. Joseph has been prescribed medication by a child psychiatrist to subdue his sexualised urges. 2. The Clinician stated that, if it is deemed that Joseph Jr has been a risk to others (either by directly sexually harming, or displaying sexualised urges or displaying a violent or aggressive nature), he requires immediate referral to the New Street program for intensive treatment. It was the Clinician's opinion that without such treatment, should Joseph Jr ever come off the medication and his urges return (or become less easily managed) he will have no skills or tools to be able to respond to these. The Clinician expressed serious concerns that New Street had not already been engaged for Joseph Jr. 3. Colin, the Clinician reports, has autism and experiences some psychotic symptoms, including delusions, visual and auditory hallucinations and "self-talking" behaviour and imaginary friends. He has emotional regulation difficulties, and difficulties managing his anger and his anxiety which has resulted in him being destructive towards property. Also noted in a Behaviour Assessment Report dated 5 February 2019 was the fact that Colin can misinterpret the intentions of others and believe that they are persecutory towards him. The Clinician stated that Colin's emotional dysregulation was of concern to her. She expressed concern that Colin has not had access to psychological intervention around emotional regulation. He attended counselling through Baptist community care but she was not aware of the qualifications of the therapist or the treatment plan for Colin. She stressed that he should be seeing a psychologist or clinical psychologist who specialises in working with people with an intellectual disability and on the autism spectrum. Colin's capacity for stress management was also a concern raised by the Clinician. She was concerned that he had not had access to an early psychosis team through the child and adolescent mental health service and expressed her opinion that he needs immediate access to this service by way of an urgent referral. She said the outcome for Colin's long-term mental health will be determined by the type of treatment that he received "right now". A psychiatric medication review alone was, in her view, insufficient. She noted too that there have been historical allegations of sexual abuse experienced by Colin, perpetrated by Joseph Jr. 4. At the time of the assessment the Clinician noted that Jacinta was residing with a carer; that she had experienced multiple "placement breakdowns" and has subsequently moved home many times since entering care. Jacinta, she noted was diagnosed with asthma, Attention Deficit Hyperactivity Disorder and Oppositional Defiance Disorder. Jacinta had been prescribed Vyvanse, which can be used to medicate ADHD and Risperdal, an antipsychotic medication. At the time of entry into care Jacinta was bed wetting at night time and using night time nappies. After coming into care the paediatrician's advice was to wean Jacinta off the Risperdal as she was stabilised in care and the medication had been prescribed for environmental anxiety relating to residing with her family. 5. The Clinician was aware that, at the time the assessment was undertaken that Jacinta had expressed a strong wish to return home, she had experience a number of placements and was at risk of absconding. Although the Clinician did not rule out a restoration of Jacinta to her parents she stated: It is not recommended that Jacinta return home to the care of her parents, without less than 12 months intensive restoration support provided to the parents and then an updated assessment completed by the Children's Court Clinic. 1. In the final paragraph of her report, under the heading 'Limitations of this Assessment' the Clinician issued a warning. The Clinician has not been provided with all of the information she requested in relation to any disclosures of child sexual abuse or sibling abuse in the home, and all assessments completed DCJ in relation to these risks. The Clinician cannot say with certainty that the three older children are no longer at risk of exposure to harm by one another, as the result of inadequate information provided, and denial of these issues being historically concerning by the parents. The Clinician cannot say with certainty whether the parents are able to identify these risks and act protectively. Intensive restoration work is imperative as a part of any children residing together in the same home, with their parents. The parents require extensive coaching and psychoeducation about managing risk of sexual abuse in the home. 1. On 13 March 2020 there was a meeting with the parents to discuss the Clinic assessment. During that meeting the manager caseworker explained that it was recommended that Joseph Jr engage with the New Street Programme. Mr Robertson said that Joseph Jr does not need New Street. Both parents became upset about recommendations around New Street and believed that Joseph Jr was being targeted. 2. On 26 March 2020 a Care Plan meeting was held with the parents. The manager caseworker explained that DCJ would be adopting the Children's Court Clinic assessment's recommendations for Jacinta. Mr Robertson asked her why they needed to engage with a service around sexual abuse and the manager caseworker explained the service would be implemented to assist the parents in managing sexualised behaviours and building protective abilities. 3. On 24 April 2020 the Care Plan filed in relation to Jacinta contained an assessment by the Secretary that there was a realistic possibility of restoration of Jacinta to her parents. 4. On 21 October 2020 the Secretary filed an Amended Care Plan which assessed that there was no realistic possibility of restoration of Jacinta to her parents. Care Plans filed for Lucas, Christopher and Allan also assessed no realistic possibility of restoration. 5. On 11 November 2020 a differently constituted Children's Court, following a concession made by the parents, made a finding that there was no realistic possibility of restoration of the Lucas, Christopher and Allan to their parents and an order of parental responsibility to the Minister to 18 was made for each of them. Leave was given to withdraw the care applications for Joseph Jr and Colin. The parents' opposed the Court making a finding of no realistic possibility of restoration of Jacinta to their care, as was sought by the Secretary and Jacinta's case was listed for a contested hearing for 3 days from 8 April 2021. 6. The Care Plan filed on 21 October 2020 contained the following reasons for the Secretary's assessment that there was no realistic possibility of restoration of Jacinta to her parents: * The parents do not understand the child protection concerns that led to the removal of the children * Neither parent realises the seriousness of the allegations of the sibling sexual abuse. This would mean that Jacinta would still be at risk of sexual harm if she were to return home at this stage and her parents would not be able to adequately recognise the signs or act protectively her if this harm were occurring * The parents lack understanding of the medical requirements of the children which has included Jacinta not having her prescription medication available * The parent do not currently have the parenting capacity to look after three children and while Jacinta has often demonstrated that she is independent and often looks after herself, Jacinta would still be at risk of significant harm if her parents were not able to provide appropriate supervision, physical and emotional care through the remainder of her childhood years. * Neither parent has indicated any personal responsibility or remorse for the child protection concerns 1. The Care Plan provided that before restoration for Jacinta could be considered the parents would have to: * Commence an intensive restoration programme of intensive individual work around protective behaviours, safety planning and personal parenting skills and knowledge building. (The Care Plan stated this is recommended to occur for a period of 12 months, weekly) * Attend the Child Protection Counselling Service (or equivalent) for intensive couples work with a specialised child protection counsellor, fortnightly for a minimum of six months for psycho-education around sexual violence; build the parents understanding about myths around sexual violence and help them to better identify harm, support disclosures of sexual abuse in the children from a position of belief and understand how to support safety in the home between siblings * After six months of attending the Intensive Restoration Programme and the Child Protection Counselling Service, attend the Circle of Security Training Program * After six months of attending the Intensive Restoration Programme and the Child Protection Counselling Service attend an educational programme as advised by DCJ, which provides psycho-education around the impact of trauma on the brain, the impact of trauma on children and how to parent a child who has been traumatised 1. The Care Plan states that after the completion of these services DCJ would request an updated Clinic assessment or would fund an updated parenting capacity assessment to assess whether the parents have gained further understanding of the child protection concerns and increased capacity to adequately provide supervision and safety in the home and can meet Jacinta's physical and emotional needs. 2. The parents' and Jacinta did not agree with the Secretary's assessment. The parents accepted there was still some work to do but that the Court could and should make a finding that restoration of Jacinta to their care was a realistic possibility. 3. The parents filed evidence that they had worked very hard with many support services and were constantly asking DCJ for referrals which were not forthcoming. The parents' evidence was that since the removal of the children they had worked diligently to understand and address the child protection concerns raised by DCJ but were met with a significant lack of support and guidance from DCJ. 4. On 29 March 2021 the Secretary filed an Amended Care Plan for Jacinta which, whilst acknowledging the risk to Jacinta if she returned home, assessed that there was a realistic possibility of restoration. The Amended Care Plan included the following: In July 2020, Jacinta also moved to a foster care placement through Creating Links where she remained living for a period of over six months. Jacinta expressed that while she was to remain in care she was happy to remain in this placement and enjoyed aspects of this such as being able to have liberal contact with her brother Lucas and seeing her brothers Christopher and Allan on a fortnightly basis. Jacinta was also able to attend ….High School which she has also expressed that she wanted to do. Jacinta was enrolled in gymnastics and counselling activities which she identified that she wanted. DCJ and Creating Links attempted to support Jacinta to have stability and a sense of belonging whilst she remains in the care of the Minister. In December 2020 and then again in March 2021 Jacinta absconded by catching the train by herself from her placement and travelled to her parents' house in [ ], stating that she does not want to be in care any longer and wants to live with her parents. Jacinta has stated that she will continue to return home regardless of what orders are made at court. Jacinta has stated that she does not feel that her wishes are being listened to and she does not want to remain in care any long (sic). Jacinta has also been experiencing disruptions with her schooling as she has been suspended on multiple occasions and is also choosing to not take her medication. Jacinta has stated that she feels depressed being away from her home and family. Most recently, after Jacinta arrived at her parents' house she stated that if police were called to take away she would run away to when no one would find her. Jacinta is at significant risk of harm if she were to continue to travel the almost 300 km journey by herself and without informing responsible adults of her whereabouts. It is also likely that Jacinta would continue to engage in this type of risk-taking behaviour, or potentially even riskier behaviour if she were told that she were to remain in care. While DCJ still acknowledges that the aforementioned risks of Jacinta returning home to her parents' care are still a present factor, given Jacinta's statements and behaviours, it appears that the effects of Jacinta remaining in care would likely continue to be detrimental to her health, safety and well-being. For this reason, DCJ wishes to acknowledge Jacinta's expressed wishes and recommend that she be restored to the care of her parents, in order to support her sense of belonging, identity and permanency while she continues to age into young adulthood. This will also mitigate the risks that Jacinta would face by continuing to abscond from her placement and travel in potentially unsafe conditions and environments, especially given her young age. It is also acknowledge that the parents have recently completed the Circle of Security course on 23 March 2021 and have built their understanding of children's experience of abuse and neglect and to better their parenting skills and response to the children's differing needs. The parents have also enrolled in the Keeping Them Safe course which is due to commence in May 2021, for the expressed purpose of gaining awareness of sexualised behaviours and preventing risks towards the children from within the family and the outside. For these reasons, it is therefore proposed that Jacinta be restored to the care of her parents to support her safety, well-being and sense of identity and belonging as she continues to grow and develop as a young person. 1. On the first day of the scheduled hearing I was told that the Secretary, the parents and the Direct Legal Representative ('DLR') had come to an agreement that would allow Jacinta to return home immediately and I was asked to make findings and final orders in accordance with their consent position as follows: 1. A finding that there is a realistic possibility of restoration of Jacinta to her parents; 2. A finding that permanency planning had been appropriately and adequately addressed for Jacinta 3. A final order allocating parental responsibility of Jacinta to her parents and a supervision order for 6 months, with a report to the Court regarding the outcome of that supervision in 4 months. 1. The Secretary told me, to support his submission to the Court that Jacinta should be immediately restored to the care of her parents and final orders should be made, that: * Jacinta had made it very clear that she will self-place at home no matter what the decision of the Court. Jacinta was at a vulnerable age and was travelling long distances on country trains, alighting at isolated stations, late at night putting herself at risk * Despite her current foster placement being stable and her liking her placement there, Jacinta wants to go home and she is now two years older than when she was removed * The Secretary had examined the risk of her remaining in care and going home and had balanced those risks * The parents had been working with Stephen Walker, a therapist in relation to Colin and Joseph Jr. * The parents have been working well with Mr Ralph who is described by DCJ as an "NDIS support through FaCS". * There have been no concerns raised regarding the parents and their care of Joseph Jr and Colin (I assume this submission was directed at the time since their siblings had been removed) * The parents have done more work since the Secretary's assessment that there was no realistic possibility of restoration. This includes the parenting course, Circle of Security "and engaging in courses and also basic protective work about ensuring locks on doors, in terms of bedroom, bathroom and the routines that are to be followed." * The Creating Links caseworker has been helping Jacinta understand her emotions and "safety conduct" * Jacinta will continue to be at risk if she continues to abscond and the Secretary is unable, given her age and strong wishes, to "drag her and keep her in a foster care placement." 1. I refused to make the findings and orders agreed by the parties. 2. I indicated that before I was willing to make any findings or orders I wanted to at least hear evidence from the Clinician and the parents. I was told that the three day hearing could not proceed as: * The Clinician's attendance at Court to give evidence had been cancelled and she was no longer available to give evidence on any of the three allocated hearing dates * The parents were not at Court, presumably because their legal representatives had advised them they were not required * The lawyers, having come to a consent position, were not prepared for a hearing. 1. The evidence filed raised significant issues of concern relating to Jacinta's safety, welfare and wellbeing which required comprehensive and current evidence and which required a testing of that evidence. I gave the following brief ex tempore reasons for my refusal to make the findings and final orders sought and agreed by the parties: Jacinta's situation is an extremely complex one and it appears that the complexity has led to the Secretary to recently change his recommendation from no realistic possibility of restoration to one of restoration. The Secretary has undertaken a balancing exercise, balancing the risk to Jacinta of restoration to her parents against the risks to the child of no restoration. The second most recent Care Plan dated 21 October 2020 assessed no realistic possibility of restoration on the basis of the findings contained in the Children's Court Clinic Report; the parents lack of understanding of the child protection concerns that led to the removal of the children including the fact that neither parent realised the seriousness of the allegations and the risk relating to sibling sexual abuse. The 21 October 2020 Care Plan states: "This would mean that Jacinta would still be at risk of sexual harm if she were to return home at this stage and that her parents wouldn't be able to adequately recognise the signs and act protectively if this harm were occurring." The other risks identified in the Care Plan included a lack of understanding of medical requirements. In relation to the risk of sexual harm in that Care Plan it sets out the learnings that the parents would have to achieve from counselling, (counselling which lasted for a minimum of six months) in order to consider restoration, psycho education around the sexual violence; build their understanding about myths around sexual harm; being able to identify harm, being able to support disclosures and being able to understand how to support Jacinta's safety. On 27 January 2021 the Secretary set out his concerns of sexual harm to Jacinta in an affidavit from the caseworker. "16. It is of concern that the parents do not acknowledge that there is any risk of sexual harm to Jacinta from her brothers and they now denied that the sexualised behaviours exist despite substantiated sexual abuse risk from JCPRP and multiple education and health professionals having planned and worked with this family due to the concerns for sexualised behaviours from both Joseph Jr and Colin. As there has been no behaviour management plan and therapies put in place to manage and decrease this risk and less opportunities to do this now that the family are living in a remote and isolated location, DCJ is of the opinion that Jacinta would be at risk of sexual harm from her brothers if she was restored to her parents care and that her parents would not act protectively towards her if sexual harm were to occur given that they do not know and acknowledge that this is a current risk factor." The Secretary's evidence up to and including the 27 January 2021 affidavit outlines that there have been many professionals who have worked with this family due to concerns for sexualised behaviours from both Joseph Jr and Colin. Despite this work, the Department still assessed that the risk was sufficiently grave at that point to warrant a recommendation for ongoing removal. Then on 29 March 2021 another care plan was filed assessing restoration as a realistic possibility. In that care plan DCJ stated that there was no change to the risk posed to Jacinta at home as outlined in the previous care plans, however due to the risks posed to Jacinta by her absconding from her foster placement to return home, the risks posed by her threats to disappear if she is removed again and her strong desire to live at home, the Secretary considered that Jacinta should be restored. The balancing exercise that the Secretary carried out is clear from his caseworker's affidavit of 29 March 2021 in which she states: "[13] While DCJ still acknowledges that the risks of Jacinta returning home to her parents care are still a present factor, given Jacinta's wishes and behaviours it appears that the effects of Jacinta remaining in care would likely continue to be detrimental to her health, safety and well-being. Especially travelling long distances without supervision or advising her care givers where and when she is going. For this reason DCJ wishes to acknowledge Jacinta's expressed wishes and recommend that she be restored to the care of her parents in order to support her sense of belonging, identity and permanency while she continues to age into young adulthood. This will also mitigate the risks that Jacinta would face by continuing to abscond from her placement and travel in is potentially unsafe conditions and environments especially given her young age. The Department also relies, in undertaking the balancing exercise, that the parents have completed a Circle of Security course, that they've enrolled in a Keeping them Safe program, they've started arrangements for school enrolment and counselling for Jacinta and they've set up a bedroom for Jacinta alone. There is no evidence of the contents of the Circle of Security course nor what the parents have learned from that course and how they will be able to apply those learnings in addressing the risks to Jacinta. The Keeping Them Safe course has not yet started and I note that the Secretary's material sets out the extensive history of agencies working with the parents to improve their parenting capacity; that the efforts have met with very limited success and have culminated in findings of no realistic possibility of restoration to Jacinta's three younger siblings. I accept that the parents have cooperated and engaged but I could have little confidence, on the current evidence, that the counselling that will be provided, or the Keeping Them Safe course, will be effective in addressing the risk of sexual harm from siblings which was highlighted in the material of the Secretary. I have considered what has been proposed by the Secretary to address this risk. As far as I could ascertain the proposal is that there are some rules in the house, locks on Jacinta's bedroom door and the bathroom door and a supervision order for which will ensure that DCJ will continue to visit Jacinta and her family regularly and ensure that she is safe and is engaging with school and other services as necessary and support the family through referrals to counselling or services that are required. I would be very concerned if DCJ were relying on Jacinta reporting any sexual abuse in the home given she may be very were reluctant to report understanding the consequences may be a removal. So it seems that currently the plan to address the risk of sexual harm within the household is woefully inadequate and the level of risk remains unacceptable. The Secretary has been pragmatic to a certain extent due to Jacinta's attempts to self-place. The legislation however obliges me to decide whether to accept the Secretary's assessment and in this case his assessment appears to be that the risk of harm, including sexual harm at home is less than the risk of harm if not at home. I presume that the Secretary has conducted the balancing exercise after considering, among other things, risk assessments of the boys, their recent psychiatric reports, their recent treatment details and progress in treatment. These assessments have not been provided to me and I am not in any position to determine the nature and level of risk to Jacinta of living at home and nor can I properly assess the Secretary's proposal for keeping Jacinta safe at home without first understanding the risk. 1. On the basis of what I was told in submissions by the Secretary in support of a restoration and from the evidence filed, in order for the Court to give a proper consideration to risk further evidence would be required including: * The nature and effectiveness of the work being undertaken by Mr Stephen Walker with Joseph Jr and Colin and/or the parents and how this impacted on the risk to Jacinta * The work being undertaken with the family by Mr Ralph and how that work would impact the risk to Jacinta. The Court was told that the reason for this lack of evidence as "he's doing confidential work in terms of the parents with their two boys". * the current behaviour and risks posed of Joseph Jr and Colin as well as their current treatment and the impact this had on risk * How the "additional work" undertaken by the parents and the parenting course 'Circle of Security' which is directed to attachment and improving relationships had affected their insight and their capacity to protect Jacinta from abuse, including sexual abuse, particularly in light of the Clinician's opinion that before any restoration what was required was that the parents have "extensive coaching and psychoeducation about managing risk of sexual abuse in the home" for at least 12 months. * What "safety conduct" was and how much responsibility of safeguarding Jacinta was being assigned to Jacinta and the appropriateness of that assignment * How the risks to Jacinta in the home or by leaving her foster placement could be mitigated and the steps taken to maintain Jacinta in her placement 1. It became apparent at subsequent mentions of this matter that many of the submissions made to me to persuade me to make a finding of realistic possibility of restoration to the parents and an order of parental responsibility to the parents were made without any basis or relevance. * The Secretary tried to persuade me that restoration was a realistic possibility because of the work being undertaken by Mr Walker and Mr Ralph, yet the Secretary had no knowledge of the discipline of the expert, the nature of the work that was undertaken, let alone the success of it. * The Secretary tried to persuade me that restoration of Jacinta was a realistic possibility because there had been no Risk of Serious Harm reports and he had no concerns in relation to the care Joseph Jr and Colin were receiving from the parents in their home. (I have assumed that the Secretary was referring to the time since the other children were removed.) Although the Secretary had no concerns about the parents' care of these boys that is not highly relevant to the issue of risk to Jacinta from her older brothers. I note too that the Secretary had not issued subpoenas or made inquiries to obtain up to date information as to the boys' presentation, risks and welfare. * There was no evidence of the Secretary having undertaken the exercise of balancing risk as it was submitted to me that he had done. The Secretary's focus was on the risk to Jacinta of running away. 1. When Jacinta's case came before the Court for hearing the Court's task included to assess the risk of future harm. There was a risk of harm if Jacinta was restored and there was a risk of harm if she was not restored. My task was to consider in relation to each course: * The type of harm that may arise * The likelihood of that harm arising * The severity of the consequences if it arose * What steps could be reliably to taken to mitigate the harm 1. Once a conclusion had been reached about those matters then a comparison between the welfare advantages and disadvantages of each course would have to be undertaken. Then, taking into account the objects and principles of the Act, a decision could be made. The significant gaps in the evidence and the lack of opportunity to have that evidence tested meant that I was unable to perform that task in Jacinta's case and reach a decision that was in her best interest. 2. After the refusal to make findings and orders by consent, the matter was stood over until 9 April 2021 for the parties to consider a way forward with the proceedings. Mention on 9 April 2021 1. On 9 April 2021 the parties handed up an agreed proposal as follows; 1. The Secretary would issue a subpoena to LFE Community Supports, [the NDIS service provider for Joseph Jr and Colin] and the NDIS Co-ordinator and Disability Support Service for Colin and Joseph Jr since April 2021 2. DCJ would file further update regarding further supports for Jacinta and an update on the boys including any assessment or treatment and behaviour management plan and therapies 3. The parents would file updating affidavits which will include behaviour management plans and therapies and learnings from courses to keep Jacinta safe 4. The Secretary would issue a subpoena to Steven Walker, Behaviour Specialist for Colin and Joseph Jr. 5. DCJ would request a quote from Steven Walker to provide support Jacinta and family at home which DCJ will consider funding 1. I was not satisfied that the parties' proposal would result in comprehensive and reliable evidence which would allow the Court to properly consider the competing risks and the factors which could potentially mitigate the risk. 2. The Court was in a position where all of the parties supported an immediate restoration of Jacinta yet the Secretary identified in his evidence and in his Care Plan that Jacinta would be at significant risk of serious harm living at home. The Secretary submitted he had balanced competing risks of living at home and in care and had concluded that the risk was higher living in care however he did not and would not disclose his reasoning in reaching this conclusion. The Secretary's position effectively was that he had mitigated the risk at home. However the professional support he relied on as mitigation he did so without any basis. The Secretary's plans to address and mitigate risk were vague and underdeveloped and on their face appeared wholly inadequate. There were many and glaring gaps in the evidence filed by the Secretary. I urged the parties to consider obtaining a comprehensive assessment to be undertaken by a suitably qualified expert because: 1. The evidence disclosed a risk of sexual harm to Jacinta from her brother(s) and there was also reliable and concerning evidence of the boys' aggression, physical violence, mental health issues and impulsivity, all of which also posed a risk. These risks were not addressed in the Secretary's assessment of restoration. 2. The Secretary relied, in changing his assessment from no realistic possibility of restoration to restoration, that the parents had undertaken additional work/courses yet historically the parents had not benefited from intervention to improve their parenting skills or develop insight and the Secretary had filed no evidence as to whether or how the additional general parenting courses served to sufficiently improve their insight and parenting capacity. 3. The only expert evidence filed was the Children's Court Clinic Report. The Clinician raised very serious concerns regarding risk of Jacinta at home. She recommended that before a restoration the parents have extensive coaching and psychoeducation about managing risk of sexual abuse in the home and after this a further comprehensive assessment taking into account all the relevant information. There has been no coaching or psychoeducation of the parents and no comprehensive assessment. 4. The evidence filed by the Secretary would support a finding that the parents' lacked the insight or capacity to protect Jacinta from harm, yet, on the Secretary's plan, the success of Jacinta's protection from harm at home largely relied upon the parents' acceptance of the risk and insight into it (e.g. the parents would supervise the boys with Jacinta at all times). 5. The Secretary's case appeared to place substantial reliance for Jacinta's protection at home on Jacinta's ability to protect herself by complying with the rules at home (e.g. locking her door) and by undergoing therapy. There was no evidence filed to satisfy me of either the sufficiency of these measures or their likely success. 6. The Secretary stated that a balancing exercise had been undertaken, balancing the risk of Jacinta returning home with the risk of her absconding in out of home care and concluded that she should return home. The assessment however did not sufficiently disclose the basis and reasoning for that conclusion and subsequent inquiries by the Court revealed that relevant information has not been taken into account in assessing the risk. 7. The Secretary's case was seriously deficient in a number of significant areas. Highly relevant evidence was not before the Court; some of the submissions made to the Court by the Secretary had no basis; were inconsistent; or were wrong and misleading, leaving me with little confidence in the Secretary's case. 8. There was no plan disclosed by any of the parties to obtain the necessary evidence to fill the identified evidentiary gaps. 9. The Secretary's proposed mitigation of risk related to risk of sexual harm from the siblings and did not address the other identified risks. 10. Importantly there was no contradictor to the Secretary's case and there would be no contradictor so long as the Secretary maintained his assessment of restoration and Jacinta's instructions remained to return home. 1. I again adjourned the matter to enable the parties to obtain instructions as to engaging an expert to undertake an assessment, noting that the Court cannot obtain a Children's Court Clinic assessment unless a party to the proceedings brings an application. No party was willing to make such an application. Mention on 14 April 2021 1. On 14 April 2021 the Secretary told the Court that he had consulted his own internal psychologist and would not undertake or agree to a further assessment. 2. The Court was told by the Secretary, that, despite the Court being concerned about the unacceptable risk to Jacinta at home and being unwilling to make a finding that there was a realistic possibility of restoration until all the relevant evidence was filed and tested, the Secretary, who has interim parental responsibility, would be placing Jacinta at home and putting services, support and risk management in place. The Secretary's position was that: * he understood there is a risk for Jacinta of sexual abuse and physical abuse in the family home * he knows the level of that risk * Jacinta is threatening to self-place * The Secretary is looking at a service called Marymead which can work with intensive case management after final orders are made 1. The Court was told that DCJ will "try" and mitigate that risk by making sure that there is a forensic psychiatrist or psychologist in that area to work directly with the boys The Secretary is looking at obtaining some forensic psychologists who can work with the boys in terms of their behaviour in addition to the work being undertaken by Stephen Walker. (It was not made clear to me what additional work was required when the Secretary still did not know what work was being undertaken by Mr Walker).The Court was told that this psychologist will be able to do a further assessment of the boys' needs. The Secretary was not able to identify such a forensic psychologist; when that psychologist could start or what the parameters of the work to be undertaken would be nor how and when that work would address the risk to Jacinta. The other measures to "try" and mitigate risk are a referral for Jacinta to the child protection counselling service and intensive casework and support for Jacinta. 2. The Secretary's proposal to send Jacinta home with a plan to "try" to mitigate the risk was of great concern. Trying to mitigate risk and succeeding in mitigating risk are obviously not the same. I was told that the service would be put in place after final orders were made. The Secretary provided no evidence as to how, or to what extent the risk could be mitigated by his plan, and told me that he would be filing evidence in that regard. 3. The Court has no power, before a determination of whether restoration is a realistic possibility is made, to prevent the Secretary from placing Jacinta at home whilst the Minister has interim parental responsibility. The Caseworker's affidavit of 25 May 2021 1. The caseworker filed an affidavit on 25 May 2021 which included the following information obtained from material produced under subpoena issued after the aborted April 2021 hearing: * On 11 March 2021 Ms Walton, the Senior Support Co-ordinator from the NDIS Support Co-ordination Team at LFE Community Supports in an email to the NDIS support co-ordinator Ms Mills: * identified significant barriers to boys' supports stating that the parents "presented as defensive and protective and that their perception of their son's abilities was noted to be quite unrealistic" * included that Rose Thompson from Family Planning stated that "Colin and his brother require sexualised behaviour programs, Colin's parents both have intellectual disabilities and Trauma Backgrounds and are not able to reliably support their sons to link with NDIS" * Mr Walker informed her that the family deny any inappropriate behaviour between Joseph Jr and Jacinta 1. Mr Walker had not engaged in much 'practical' work with Colin and Joseph Jr but had spent most of his time building rapport and assisting with the transition to their new location. It is appropriate to note here that the Court was told on 8 April 2021 one of the reasons the Court could make a finding of realistic possibility of restoration and final orders was because of the work Mr Walker was undertaking with the boys. It is clear from the subpoena material that this was not correct. Despite the important role it was proposed Mr Walker would play in keeping Jacinta safe his involvement came to an end. * On 13 April 2021, before Jacinta was returned home, Ms Walton completed A 'Participant Risk Assessment Tool' for Joseph Jr and Colin. The assessment for Joseph Jr identified, under the risk of "sexual predatory" as high. 1. The caseworker was also told that Dr Macdonald had ceased Joseph Jr's hormone medication due to negative side effects though he was prescribed an antipsychotic medication. I note here the Clinician's warning that without intensive treatment from a service such as New Street, if Joseph Jr ever came off the medication he will have no skills or tools to be able to respond to his sexual urges. 2. Jacinta was returned home to live on 16 April 2021. 3. The caseworker deposed that a decision had been made for her to escort Jacinta home so that "she is not at risk from travelling unsupervised and in an unsafe manner." 4. The caseworker's May affidavit stated that the parents have made rules which are specified in the affidavit to be that: 1. Jacinta is not allowed in the boys room and the boys are not allowed in Jacinta's room 2. The bathroom door is to be locked and everyone must change in the bathroom 3. When Jacinta and her brothers are spending time together, it must be in the common areas of the home and under supervision of either Mr Robertson or Ms Wright 4. Jacinta has a lock on her bedroom door if she feels she needs to use this 5. The parents have said that they are willing to engage with services as requested by DCJ 1. Despite the Court being told by the Secretary on 14 April 2021 there would be no formal risk assessment as the Secretary knew the level of the risk to Jacinta, by May 2021 the Secretary had decided that Marymead would engage a psychologist to conduct a risk assessment on the household to assess the level of potential risk of sexual abuse and inform of any therapies or services which would be of benefit to the family to address the level of risk if required. This decision to assess risk and inform the services required was made after Jacinta was returned home to live with those risks. 2. When the caseworker told the parents they were going to try to organise a psychologist to conduct a risk assessment for the household including Joseph Jr and Colin….Mr Robertson replied that he "does not want anyone saying those things about my boys." 3. In the caseworker's May affidavit it stated that DCJ are proposing that final orders are made giving the Minister PR for 6 months and then a 12 month supervision order. …"this time will be used to …and also arranging for a risk assessment for the household to assess the current risk of potential sexual or physical harm within the household." Mention on 9 June 2021 1. On 9 June 2021 when the matter was again listed for mention the Secretary again asked the Court to make a make a finding that restoration of Jacinta to her parents was a realistic possibility, that permanency planning had been adequately and appropriately addressed and asked the Court to make final orders. The request for final orders was made despite: * The Court's previous refusal to make a finding of realistic possibility of restoration because the evidence as filed did not support a finding of restoration and there were substantial gaps in the evidence * The Secretary's concession that a risk assessment on the household to assess the level of potential risk of sexual abuse and inform of any therapies or services which would be of benefit to the family should be undertaken 1. Evidence that there were significant barriers to the boys receiving supports 2. Evidence that the boys required sexualised behaviour programmes which they were not undertaking 3. Evidence that the parents were not reliably able to support their sons' link with NDIS 4. Mr Walker had not done any work with the boys to mitigate risk of harm to Jacinta and was in any case no longer funded to provide any services 5. The risk assessment tool used by the NDIS worker flagged Joseph Jr's risk as a sexual predator as high 6. The parents did not disclose in the NDIS risk assessment any risk of sexual harm and denied that there was any sexual harm 7. When an assessment in relation to risk of sexual harm was spoken of to Mr Robertson would not accept anyone saying such things about the boys 8. The plan to protect Jacinta from harm was largely reliant on the parents' insight into and monitoring of the risk whilst the evidence filed by the Secretary was that the parents did not have insight and did not accept there was a risk. In addition to that it seemed highly impractical to always have one of the parents in the room when the children are together. 9. Joseph Jr was no longer taking hormone medication and without this the Clinician's evidence was that he would have no skills or tools to respond to his sexual urges as he has not had the necessary intensive treatment. 10. The parents had not had the coaching and psychoeducation about managing risk of sexual abuse in the home which the Clinician considered necessary before any restoration 11. On 9 June 2021 the Secretary urged me to make this final order in circumstances where: 12. I had refused to make a finding a final orders only weeks before due to the Secretary's evidence of the significant level of risk of harm to Jacinta at home and no cogent and comprehensive evidence filed to contradict that evidence 13. the information in the material produced on subpoena issued after the 8 April 2021 hearing date and the discussions the caseworkers had with the parents as contained in the caseworker's May affidavit raised the level of concern regarding risk to Jacinta at home * The Secretary accepted that a risk assessment should be undertaken * The Secretary had not filed evidence regarding any steps that could be taken to support Jacinta in her out of home care placement, such that the risk of her absconding would be reduced 1. On 9 June 2021 the Secretary acknowledged the risk of sexual and physical harm of Jacinta at home and told me he would conduct a risk assessment to ascertain level of risk and how that risk might be mitigated AFTER I made final orders. 2. I refused to make final orders on 8 April 2021 and on 9 June 2021 I refused to do so again. 3. The parents have filed affidavits that they understand completely the risks and they can be relied upon to prevent those risks from being realised. This evidence is at odds with the evidence filed by the Secretary. 4. Ultimately and after significant prompting by the Court, the Secretary agreed to a suitably qualified expert to conduct a comprehensive assessment and the terms of the assessment and the documents to be submitted to the expert were settled. The matter was set down for hearing in late August 2021. The proceedings from August 2021 1. On 2 August 2021 a caseworker from DCJ filed an affidavit affirmed on 29 July 2021, stating that since 16 July 2021 she had become responsible for the casework for Jacinta. In that affidavit the caseworker stated that: * On 28 June 2021 DCJ received a ROSH report in relation to sexually harmful behaviours to Jacinta from one of her older brothers * There is a police investigation underway in relation to the allegations * The parents did not accept that there could be a risk of sexual harm * The Secretary's delegate determined, on 22 July 2021 that there were no protective factors in the home and that Jacinta would be at immediate risk of harm at home * Jacinta was removed from her parents' home and placed with DCJ foster carers * On 23 July 2021 Jacinta was placed with her previous foster carer, Ms Peters * DCJ wish to file an amended care plan which will include an assessment that there is no realistic possibility of restoration of Jacinta to her parents; DCJ will seek an order of parental responsibility to the Minister to 18 and will recommend Jacinta remain, long term, in the placement with Ms Peters * Should Jacinta abscond from the placement and return home DCJ will continue to pick her up from the home and return her to her foster placement 1. On 13 September 2021 the Secretary's caseworker affirmed an affidavit which included that, on 28 June 2021, DCJ received a ROSH report that Christopher had been sexually assaulted by Colin at contact. 2. On 14 September 2021 the Secretary filed an Amended Care Plan for Jacinta assessing that there is no realistic possibility of restoration of Jacinta to the care of her parents. The reasons given as set out in the Amended Care Plan are: DCJ do not support restoration for Jacinta and propose that Jacinta remain under the Parental Responsibility to the Minister until she turns 18 years old. In the time since the Court Clinic Assessment was completed, Mr Joseph Robertson and Ms Amanda Wright, moved to [ ], located in rural New South Wales. Due to this move, there were limitations in regards to services available for the parents to work with as per the recommendations. It was also raised as a point of concern that Mr Joseph Robertson and Ms Amanda Wright denied that there were any concerns for problematic sexualised behaviours of Joseph Jr, did not engage Joseph in any kind of therapy or treatment, and stated that they had already completed parenting courses and did not need to develop further parenting strategies. Given these issues, DCJ were not satisfied that parents understand the child protection concerns which has led to the removal of the children, and that neither parents realised the seriousness of the allegations of the sibling sexual abuse. This would mean that Jacinta would still be at risk of sexual harm if she were to return home, and that her parents wouldn't be able to adequately recognise the signs or act protectively, if this harm were occurring. On 28 June 2021, DCJ received a Risk of Significant Harm (ROSH) report pertaining to sexually harmful behaviours pertaining to one of Jacinta's older brothers. During this time, Jacinta had self-placed back with her parents in [ ] and DCJ made the decision to move Jacinta from the home on 22 July 2021. 1. I consider the statement in the Amended Care Plan that Jacinta was living with the parents as she had "self-placed" somewhat disingenuous. The Secretary had made a decision to place Jacinta at home and had on 8 April 2021 asked the Court to make a final order which would have resulted in her immediate return to her parents. The Secretary had formed the view that there was a realistic possibility of restoration and asked the Court, more than once, to make that finding and to make final orders. 2. On 1 November 2021 Jacinta's Direct Legal Representative filed a Statement of Wishes for the now 14 year old Jacinta. Jacinta said she is happy living with her carer, Ms Peters and wants to stay there. She said she had not seen her parents or spoken to them on the phone and she said there was no reason for that. Jacinta was reluctant to answer in relation to future contact with her parents. Jacinta did say she speaks to Lucas on the phone almost every day. She indicated she would speak to her younger brothers but not her two older brothers. 3. On 9 November 2021 both Mr Robertson and Ms Wright conceded that there was no realistic possibility of restoration of Jacinta to their care. They both agreed to the Amended Care Plan which provided for contact with Jacinta if she wished to have contact and that contact would be supervised. 4. Jacinta too agreed with the Amended Care Plan and consented to the final order proposed by the Secretary, namely parental responsibility to the Minister to 18, with two reports to be prepared pursuant to s82 of the Act. Findings and orders 1. The parents concede and I find that there is no realistic possibility of restoration of Jacinta to their care within a reasonable period. 2. Jacinta's proposed long term placement is with the carer with whom she was placed before she returned to the care of her parents. Although Jacinta wanted to be restored to the care of her parents she had expressed that she liked that placement and was happy there. 3. Prior to this placement, according to the Amended Care Plan, Jacinta has had 41 foster care and relative/kin placements and there were no suitable family members who could care for Jacinta. 4. Jacinta is familiar with the proposed long-term placement and her placement there is in accordance with her wishes. The placement has the advantage of being close to her younger brothers and allows her to see them regularly. This placement has allowed Jacinta to re-enrol in the same school she attended before she was placed at home and allows for the continuation of the friendships and connections she made there and the supportive network that was built there. 5. The Aboriginal and Torres Strait Islander child and young person placement principles contained in section 13 of the Act apply to Jacinta. The placement is not a culturally appropriate one. There is a Cultural Plan in place to support Jacinta's connection to her culture and the placement was approved by the [ ] Aboriginal Advisory Panel. 6. I am satisfied of the appropriateness of the placement particularly given that it is in accordance with Jacinta's wishes; appears to be stable after a lot of instability throughout her time in care; has the advantage of allowing Jacinta to maintain a close relationship with her younger siblings and there is a Cultural Plan in place. 7. I was satisfied that permanency planning was appropriately and adequately addressed for Jacinta and it was in Jacinta's best interest to make final orders as follows: 1. Pursuant to Section 79(1)(b) of the Children and Young Persons (Care and Protection) Act 1998, all aspects of parental responsibility for Jacinta Samantha Robertson born [ ] 2007, are allocated to the Minister for Families, Communities and Disability Services until the child attains eighteen years of age. 2. Pursuant to Section 82 of the Children and Young Persons (Care and Protection) Act 1998, the Secretary of the Department of Communities and Justice is to provide to report to the Court at nine months and eighteen months concerning the suitability of the arrangements for the care and protection of Jacinta Samantha Robertson born [ ] 2007, including but not confined to, the following issues: 1. An assessment of the progress of implementing the care plan 2. The child's progress in her placement 3. The general health, welfare and well-being of the child, including the need for any specific services, interventions or assistance. 4. The level, nature, frequency, duration and type of contact with her parents and siblings and extended family 5. Adherence to the Cultural Plan; update on how Jacinta's Cultural needs are being met and engagement in cultural appropriate activities with family and/or other services 6. Update on educational development and any services and supports 7. Update on the engagement of any counselling 8. The general suitability of the arrangements for the care and protection of the child 1. A contradictor 2. The Children's Court cannot simply make orders by consent. The Court must exercise its own judgment and be satisfied that the orders the Court makes comply with the Act and section 9(1) of the Act requires that in any decision the Court makes the safety, welfare and well-being of the child are paramount. 3. Lindsay J recognised the protective purpose of the Children's Court's jurisdiction in CAC v Secretary, Department of Family and Community Services [2014] NSWSC 1855. [78] The protective purpose of the Children's Court's jurisdiction is found embedded in several of the machinery provisions of the Care Act. Sometimes that is done by express reference, as found in the reference to s 9(2)(c) in s 79(3). At other times it is done, implicitly, by use of language sympathetic to, or informed by, the Supreme Court's protective jurisdiction, as in s 71(1). Section 71(1) provides that the Court may make a care order in relation to a child or young person who is "in need of care and protection for any reason" including particular reasons enumerated. 1. His Honour considered the nature of the jurisdiction in the protective arena. [16] The jurisdiction the Court is called upon to exercise is not a "consent jurisdiction in the sense of its being bound to make a particular order, or to adopt a particular course, because a person in need of protection, or a significant other person, seeks it or agrees to it. The Court is bound to exercise an independent judgement because of the public interest element in the decisions it is called upon to make and the possibility, if not the fact, that the person in need of protection lacks the capacity requisite to informed decision-making. [17] That is not to say that the Court cannot, in an appropriate case, take comfort from, or act upon, an agreed or requested course of action, especially as regards the conduct of interlocutory business. 1. In this case all the parties initially consented to a finding that there was a realistic possibility of restoration and an order immediately restoring the parental responsibility of Jacinta to her parents. 2. Although, due to the parents' late concession that there was no realistic possibility of restoration, no contested hearing involving the calling of witnesses was necessary. However, in this case, for some time, the prospect of a hearing where there were significant gaps in the evidence which no party was willing to fill and where there would be no contradictor, loomed large. 3. It is the role of the parties to gather and collate evidence, commission assessments and cross-examine witnesses. It is the role of the judicial officer to independently and impartially consider that evidence and adjudicate. 4. When the Court was faced with a consent position in Jacinta's case despite glaring and serious gaps in the evidence and an extraordinarily risky outcome proposed to the Court, there was nobody the Court could turn to overcome the limitations arising from the Secretary's somewhat problematic decision making and lack of proper assessments and material before the Court. There was no party to ensure that the critical matters necessary for the Court to make the important and onerous decision which would fundamentally affect the rights and safety and welfare and well-being of an extremely vulnerable child would be given the close attention it deserved. 5. In Jacinta's case the Court was able to persuade the Secretary to issue some subpoenas, though not all that it considered necessary and despite the Secretary's initial refusal was eventually able to cajole the Secretary into obtaining an assessment to fill significant gaps in the evidence, which the Court, not the parties identified. 6. The power to appoint a contradictor in care proceedings would have provided the means for the evidentiary gaps to be identified and filled, prior to the final hearing dates and for the evidence to be appropriately tested. 7. The importance of a contradictor in care proceedings is mentioned in the decision of O'Keefe J cited in the appeal judgment Re Andrew [2004] NSWCA 210. His Honour was considering an expedition application on the Minister's summons seeking a declaration that the Children's Court erred in law by refusing an application to dispense with service upon a father. In his reasons for judgment His Honour stated: "There is, however, a matter that concerns me very much, namely that in the way in which the proceedings are structured there will be no contradictor. It will be, as it were, `we all agree', that the Court should make an order. 1. The Court of Appeal in Re Andrew acknowledged the absence of a contradictor in the proceedings as an issue however the issue was solved in the Court of Appeal by the Independent Legal Representative agreeing to take on the role as contradictor. 2. The Independent Legal Representative as contradictor is consistent with the role of the Independent Legal Representative as set out in s99C of the Act to include: (iv) presenting direct evidence to the Children's Court about the child or young person and matters relevant to his or her safety, welfare and well-being, (v) presenting evidence of the child's or young person's wishes (and in doing so the independent legal representative is not bound by the child's or young person's instructions), (vi) ensuring that all relevant evidence is adduced and, where necessary, tested, (vii) cross-examining the parties and their witnesses, (viii) making applications and submissions to the Children's Court for orders (whether final or interim) considered appropriate in the interests of the child or young person, 1. The solution the Court of Appeal relied on in Re Andrew was not available in Jacinta's case as her representative was a Direct Legal Representative whose role is defined in section 99D of the Act includes "acting on the instructions of the child" therefore being a contradictor may involve acting contrary to instructions. 2. In a recent case AB & JB v the Secretary & Ors [2021] NSWDC 626, Judge Levy SC determined an appeal against an order made by the Children's Court to refuse leave to the child's maternal grandparents to be a party to the Children's Court care proceedings. The matter for ultimate determination in the Children's Court was the placement of, and final orders to be made for a 15 month old child who was removed from the care of his parents when only 8 weeks old on account of numerous serious unexplained injuries. The Court expressed concern regarding the adequacy of the investigations, gaps in the evidence and the Secretary's "tenuous and flimsy" plans. It seems that the plans the Secretary had for the child, plans which were supported by all the current parties, were to restore the child to the father. His Honour concluded that "…..it is difficult to see how DoCJ could justify allocating parental responsibility for the child to the father without exposing the child to undue and unacceptable risk of serious harm…" His Honour allowed the appeal and joined the maternal grandparents to the care proceedings in the Children's Court so that there was a contradictor to the consent position of the parties. [30] In the paramount best interests of the child, plainly he needs a contradictor in his corner to safeguard his safety, welfare and well-being. 1. Although the Children's Court has no power to appoint a contradictor in care proceedings, contradictors are a feature in other Australian courts. Recently the Federal Court of Australia appointed a contradictor in the case of ASIC v Caddick [2021] FCA 1443. Ms Caddick had gone missing after allegedly defrauding investors of several million dollars. In the case in the Federal Court of Australia, the Australian Securities and Investment Commission (ASIC) sought relief principally aimed at enabling receivers, if appointed, to take possession of and liquidate all of Ms Caddick's assets and to seek directions from the Court in relation to the disbursement of the proceeds. The Court appointed a contradictor to make submissions against ASIC's application for relief against Ms Caddick. It could be argued that a decision regarding the rights of a child and that child's safety, welfare and well-being are just as important as the right of a citizen to remain seized of her assets. 2. In Jacinta's case the safety, welfare and well-being of an extremely vulnerable child was at stake. There is a heavy burden placed upon the Children's Court in making such an important decision and the Secretary's proposal for restoration deserved to be subjected to a proper evaluation however no party was willing to test the evidence. There was no Independent Legal Representative to act as a contradictor and the Court had no other available avenues open to it. 3. The Court has no capacity to, of its own volition, make an assessment order. Section 55 of the Act provides that an Assessment Order can only be made by way of an application made by the Secretary or one of the other parties to the proceedings. 4. It is clear that the Secretary's obligations pursuant to the NSW Government's Model Litigant Policy is not a substitute for a contradictor. In Jacinta's case the Court was, at times, misled by the Secretary when he made submissions which turned out to be false, to support an argument for restoration and the Secretary resisted the Court's request for the provision of evidence to fill the acknowledged gaps in the evidence. 5. The Court has the power to appoint a Guardian ad Litem for a child pursuant to s100 of the Act if there are special circumstances to warrant such an appointment and the child will benefit from the appointment. This power is not a substitute for a contradictor as it would undermine the important role of a legal representative acting on instructions from the child which is enshrined in the Act. 6. Additionally the appointment of a guardian ad litem for a child is unlikely to be a substitute for a contradictor as it is questionable whether the Court's not agreeing with a consent position are special circumstances that would warrant the appointment of a guardian ad litem and indeed the guardian ad litem may take up the consent position of the other parties. ******** 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: 13 July 2022