Children's Court New South Wales Medium Neutral Citation: Department of Communities and Justice (DCJ) and the Dalton Tomkins Children [2023] NSWChC 10 Hearing dates: 21, 22, 29 November, 16 and 17 January, 7 and 8 March 2023 Date of orders: 30 May 2023 Decision date: 30 May 2023 Jurisdiction: Care and protection Before: Children's Magistrate Ford Decision: There is no realistic possibility of restoration of the children to either the mother or the father within a reasonable period. Catchwords: CHILDREN – Care and Protection – Funded Service Providers – unsatisfactory case management – subpoena inspection – best practice – Children's Court Clinic recommendations – follow up – realistic possibility of restoration Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW) Cases Cited: DCJ and Bloom (2021) NSW ChC 2 Isles & Nelissen [2022] FedCFamC1A 97 Department of Communities and Justice (DCJ) and Jamzie [2022] NSWChC 1 Fitzwater v Fitzwater [2019] FamCAFC 251 Department of Communities and Justice (DCJ) and Janet and Xing-fu [2022] NSWChC 7 The Secretary of the Department of Communities and Justice (DCJ) and Fiona Farmer [2019] NSWChC 5 M v M [1988] HCA 68 Category: Principal judgment Parties: Secretary, Department of Communities and Justice Bessie, Indigo, Fiona and Natalie (Children) The Mother The Father Representation: Solicitors: Ms Ferguson (Secretary) Mr O'Donnell (Mother) Mr Schleiger (Father) Ms Ross (Direct Legal Representative for Bessie) Ms Bennett (Independent Legal Representative for Indigo, Fiona and Natalie) File Number(s): 2021/00202175 Publication restriction: Pseudonyms have been used for the children, family members, caseworkers, and funded service providers. JUDGMENT 1. These proceedings concern four children, Bessie Dalton, born 2010, now aged 12, turning 13, Indigo Tomkins, now aged 7, Fiona Tomkins, now aged 4, and Natalie Tomkins, now aged 2. 2. Proceedings were commenced by The Secretary of the Department of Communities and Justice ('The Secretary') by way of application, pursuant to s 61 of the Children and Young Persons (Care and Protection) Act 1998 ('Care Act'). That application is dated 14 July 2021. 3. The children's mother is Jessica Dalton, currently aged 30, the children's father is Paul Tomkins, currently aged 35. Mr Tomkins is not Bessie's father, he has been her father‑figure, and she calls him dad. 4. Bessie's father is Mr Campbell and he has played no meaningful part in her life, or in these proceedings. 5. The children's maternal grandmother is Ms Barbara Dalton and the children's paternal grandparents are Patricia and Howard Tomkins. 6. On 30 May 2021, the maternal grandmother took responsibility for all four children following a family violence incident involving the parents. That incident took place in Queensland where the parents and the children were living in a motel room on the Gold Coast. 7. The family were already known to Queensland child protection who were preparing to commence an investigation. Queensland child protection holds a history of concerns for the parents' mental health, drug use, family violence, neglect, and homelessness. 8. The maternal grandmother lives in northern New South Wales, some 50 kilometres from the New South Wales/Queensland border. 9. At the time the family was living in a motel, they had been evicted from the paternal grandparents' investment property. 10. The Secretary had attempted to engage with the parents from 6 June 2021, to address the child protection concerns, unsuccessfully. The mother had expressed an intention to collect the children from the maternal grandmother. There were child protection concerns if the children were removed by the parents from the maternal grandmother, and as a result, The Secretary assumed the children into care on 9 July. 11. At the time the children commenced living with the maternal grandmother in May 2021, Bessie was 10, Indigo was 5, Natalie was 2 and Fiona was 7 months old. 12. From 9 July 2021, The Secretary engaged a funded service provider (referred to as 'FSP 1') to provide case management to the family. 13. In case management of this matter, and in exercising parental responsibility, The Secretary has entered into a contractual, commercial arrangement, with both FSP 1 and another funded service provider (referred to as 'FSP 2'). 14. I do not have any evidence of the terms of those contractual relationships. I did have cause to require evidence from The Secretary about their satisfaction with the services they were paying for. 15. The evidence is overwhelming and clear. The Secretary is not satisfied with the case management services provided by the funded service providers, and I agree with that assessment. 16. Until the affidavit of Ms C, a caseworker from DCJ, was filed on 2 October 2022, there was nothing filed by The Secretary that directly raised The Secretary's concerns with the funded service provider. 17. In response to direct questions from me and a request for specific evidence on the issue, The Secretary did provide a number of witnesses that gave comprehensive details about The Secretary's concerns and what action was taken, or not taken, in response to those concerns. 18. The Secretary is the model litigant. If The Secretary is not satisfied with case management provided to a family by a funded service provider, they should bring this to the Court's attention during proceedings as soon it becomes a relevant issue. 19. The Secretary should disclose to the parties, and to the Court, if and when they have cause to discuss the funded service provider with a section within the Department, known as Commissioning and Planning. The Secretary should remember, they are the litigant before this Court responsible for the conduct of litigation. 20. I note the Care Act that governs all decisions in relation to children in this jurisdiction requires that the children are provided with special protection and are to be the paramount concern in all decisions that are made. 21. The hearing commenced with this statement from The Secretary's legal representative: "The funded service provider, is, to be blunt, in crisis and has been for a while." 1. For these children, who are my paramount concern, that is entirely unsatisfactory. It is also clearly frustrating for the parents. 2. Although I will make comment about the funded service provider and The Secretary, my task is to make decisions guided by the legislation and by the objects and principles of the Care Act, that provide the children's safety, welfare, and well‑being is my paramount concern. My role is not to make fair, unfair things that may have occurred to the parents. History of proceedings 1. On 16 July 2021, the Children's Court made an interim order of parental responsibility to the Minister until further order. 2. The Secretary filed a Summary of Proposed Plan on 28 July 2021. It set out a number of requirements or tasks for the parents to engage with, to address child protection concerns. 3. This included: * drug testing, rehabilitation and alcohol and drug counselling, drug reduction and abstinence from drugs; * counselling for domestic violence and a demonstration of an understanding of domestic violence and the impacts on children; * engagement with a mental health clinician; * stable accommodation; * participation in a parenting assessment, accessing appropriate parenting course; and * no criminal activity. 1. The tasks required, for both parents, were in identical terms. 2. On 26 July 2021, the Court made a finding that the children were in need of care and protection under s 71 on grounds (d) and (e). That was done in the absence of the parents, and Care Plan directions were made at that time. 3. Although, not originally engaged or participating in the proceedings, the parents were represented from 20 September 2021, and have been engaged and represented since that date in the proceedings. Although, the father's legal representation did change in May of 2022. 4. On 20 December 2021, a Children's Court Clinic report was ordered and on 21 March 2022, that Children's Court Clinic assessment was released. 5. It recommended that restoration not take place, but remain the case‑plan goal. It provided recommendations for both the parents and the children, with a review period. The parties were legally represented when that was received. 6. On 7 April 2022, the Court gave leave for The Secretary to provide that report to FSP 1 and further Care Plans were ordered. 7. On 5 May 2022, Care Plans were not filed and Her Honour, Children's Magistrate Sheedy, was told that was due to staffing issues. Her Honour indicated that the Care Plan would need to set out a comprehensive assessment as to why restoration had been assessed as being realistic, in light of the Children's Court Clinic recommendations, and the parent's non-compliance with tasks in the summary of proposed plan. 8. On 27 June 2022, Care Plans had been filed and further response directions from the parents were ordered. 9. On 18 July 2022, the Court was advised subpoenas to Queensland Police would be needed and were being issued, and further Care Plans would be filed. Directions were made. 10. On 25 August 2022, Care Plans were filed setting out The Secretary's reasons for assessing that restoration of the children to the parents was realistic. 11. On 19 September 2022, Bessie turned 12 and accordingly, the younger children, Indigo, Fiona, and Natalie, were allocated a new Independent Legal Representative ('ILR'). I listed the matter for hearing. 12. The Secretary issued a subpoena to Queensland Police that was filed on 3 August, it was returnable on 17 August. 13. On 6 October 2022, the Department received a risk of serious harm report, relating to excessive discipline in the maternal grandmother's home. 14. On 14 October, a family group-conference was held, where the maternal grandmother was not present. 15. Part way through the hearing on 22 November, I made an order preventing the parents from having unsupervised contact. This was in circumstances where the funded service provider had commenced a restoration, including unsupervised time, without the Court first accepting The Secretary's assessment and where the Court, at times, had expressed concerns about that assessment. Orders Sought 1. The Secretary says that the Court should make orders that provides restoration for all four children to the parents over two years, with parental responsibility to the Minister for two years, and supervision for two years. 2. The Secretary has made an assessment that there is a realistic possibility of restoration of the children to their mother and father. The Care Plan relied on for that assessment was filed on 25 August 2022 and sets out at pages 16 and 17 the reasons why restoration is considered realistic. 3. The Secretary has addressed me in detailed written submissions, and those submissions contained the plan for restoration. The Secretary was clear at hearing, that it was conceded the Care Plan would need to be amended in terms of permanency planning, with respect to how restoration would occur. 4. The parents are united in their position that the children should be restored over two years. Both the mother and father's submissions point to the things that have changed, and they endorse The Secretary's submission. 5. The ILR submits the Court should accept The Secretary's assessment of there being a realistic possibility of restoration, not because there are significant runs on the board, but because there is a plan. The ILR notes that that plan is contained in the submissions from The Secretary and would need to be incorporated in new Care Plans. 6. The Direct Legal Representative ('DLR') submits I should accept restoration as realistic, because they are her instructions from her 12-year old client. 7. The first issue for determination is therefore whether there is a realistic possibility of restoration of children to the parents. Depending on the outcome of that determination, there are then issues of permanency planning, placement, and contact. 8. Turning to the law and the applicable legal framework. The former President of the Children's Court, Judge Peter Johnstone, published The Secretary of the Department of Communities and Justice and Fiona Farmer [2019] NSWChC 5, which sets out a comprehensive summary of the legal principles to be applied in care proceedings. In that case, the President was deciding whether restoration was a realistic possibility. 9. His Honour set out those principals at [58]-[109], and they are incorporated into this decision, subject to the following comments. 10. In deciding if I accept The Secretary's assessment, the Care Act, section 83(7) provides that I must not make a final care order, unless I expressly find: (a) The permanency planning for the child, or young person, has been appropriately and adequately addressed (b) that prior to approving a permanency plan involving a restoration, this is a realistic possibility of restoration, within a reasonable period of time, having regard to (i) the circumstances of the child or young person, and (ii) the evidence, if any, that the child or young person's parents are likely be able to satisfactory address the issues that have led to the removal of the child or young person from their care. 1. The law regarding the concept of realistic possibility of restoration has also been the subject of Department of Communities and Justice (DCJ) and Janet and Xing-fu [2022] NSWChC 7, a recent decision by Children's Magistrate Hayes. 2. In that decision, His Honour notes that in Department of Communities and Justice (DCJ) and Bloom [2021] NSWChC 2, the former President of the Children's Court examined the phrase of realistic possibility of restoration and said: "A realistic possibility may be evidenced at the time of hearing by a coherent program, already commenced, and with some significant runs on the board. Or, by the development of, and commitment to a cohesive and viable plan, that is sensible, practical, and viable, within a reasonable period of time." 1. My understanding of the decision by Children's Magistrate Hayes, is that he expresses the opinion that Bloom provides two different circumstances where a realistic possibility of restoration may be evidenced. Either by: 1. a coherent program, already commenced with some significant runs on the board; 2. the development of and commitment to a cohesive and viable plan, that is sensible, practicable, and viable, within a reasonable time. 1. I am, of course, always guided by the concept of unacceptable risk in all decision making. The High Court decision of M v M [1988] HCA 68 is considered the leading authority regarding unacceptable risk. 2. I have also had regard to the appellate decision in the Family Law jurisdiction, Isles & Nelissen [2022] FedCFamC1A 97 ('Isles'). 3. In paragraph 5 of Isles, it was noted that the High Court in M v M did not elaborate how risk would be established on evidence. Further, in Isles, at [7]: "M v M put beyond doubt the proposition, the court's exercising jurisdiction under the Family Law Act, must protect children from credible risks of harm, due to sexual abuse. Such risks, like all prospective events, are capable of classification and only one of three mutually exclusive categories, possibilities, probabilities, or certainties. Once it is accepted, courts should, and do, react to dangers in the forms of risks of harm, which may merely be possibilities. It is an oxymoron to expect such possibilities, to then me forensically proven, on the balance of probabilities, according to the civil standard of proof. By definition, possibilities are not, and could never be, probabilities. Risks of harm are not susceptible of scientific demonstration of proof. But are instead, postulated from known historical facts and present circumstances." 1. In Isles at [50], reference is made to [139] of Justice Austin's decision in Fitzwater v Fitzwater [2019] FamCAFC 251. In that, His Honour says: "Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes, which lie in the range between highly probably and remotely possible. Assuming the polar extremes of certainty are ignore, in the current context, the higher the chance of a child sexual abuse, the greater the risk of their psychological or physical harm. At some point on the continuum, the risk of such harm becomes so potent, it cannot be tolerated, it is unacceptable." 1. The question to be determined is then, is the risk of harm so potent it cannot be tolerated? 2. In a recent decision of Department of Communities and Justice (DCJ) and Janet and Xing-fu [2022] NSWChC 7, Children's Magistrate Hayes, considered the law with respect to unacceptable risk, in light of the appellate decision of Isles. He does so at [143] and [184]. That discussion of that law is incorporated into my decision and these reasons. 3. Risk assessment is based on facts or findings made on the balance of probability. Risk assessment is not done on the balance of probabilities. Any suggestion otherwise in the parties' submissions is rejected. My task is to apply the law to the facts and the circumstances found. The Evidence Ms C 1. Ms C has worked with The Secretary since 2019. She has a Bachelor Degree in Political Science, Cultural Studies, and a post-graduate Diploma in Teaching. She had filed an affidavit in late 2022, which described, amongst other things, The Secretary's dissatisfaction with the funded service provider. 2. Her evidence, both in what she said and how she said it, made clear her dissatisfaction with the funded service provider. She has been the caseworker for the children since June of 2021, when the matter was allocated to her Community Service Centre ('CSC'). 3. She has been the most consistent casework professional to be involved in the matter. 4. Whilst giving evidence, a safety assessment, or alternate assessment that was conducted as a result of the risk of serious harm report from 6 October 2022 was tendered. That assessment concluded that the children were safe in the placement with the maternal grandmother. 5. Ms C was taken to a permanency review that was conducted in September 2022, where it was deemed that restoration remained the goal by reference to guidelines and what the parents had been achieving, including housing. That included the stability of the mother's mental health being better, family time going well, and improved engagement. 6. That document shows a superficial consideration of domestic violence and the lack of counselling the parents had engaged in. There was no consideration of the actual gaining of knowledge, as required by the summary of proposed plan. The mental health conclusions about the mother were based upon the funded service provider and The Secretary's belief about the parents' mental health, without any assessment by a mental health professional. 7. Ms C then spoke about the problems with the funded service provider. She raised that issue with the manager of the CSC, and it had been raised with a section within the Department, known as Commissioning and Planning. She had been told the funded service provider is ceasing to exist and their families were being transferred to FSP 2, but Ms C had no further details. 8. She said The Secretary had been concerned about the funded service provider from the beginning. Her concerns included the frequency of visits, the supports to the placement, and support and guidance to the parents. Ms C was also concerned about the funded service provider knowing how to manage a restoration package. 9. Ms C said family time supervisors are present not just to supervise, but to guide and support. Yet, the family time reports contained minimal information. 10. She was concerned about communication regarding the process for the maternal grandmother and the parents. 11. She said the parents were in the early stages of change and need support, including domestic violence counselling. 12. Ms C said The Secretary had considered taking back case management, but that did not happen, and there had been no formal submission in that regard. 13. It is abundantly clear to me, that is what should have happened, as soon as possible. 14. The funded service provider had two different caseworkers, two different manager caseworks, and at one stage no caseworker, so the manager casework was doing the caseworker's role. Ms C acknowledged the impact of changing casework staff assigned to the family. 15. Ms C met with the funded service provider every three months. She acknowledged that the restoration was up to stage three, and that the transition plan had required there be no drugs or police involvement. 16. She said it was unclear how the funded service provider had been arranging family time and that family time needed review. 17. She confirmed that The Secretary had approved overnight contact occurring one night a week. 18. She acknowledged the difficulty of COVID-19 border restrictions for the parents. Although, she noted that was amplified by their decision not to be vaccinated, and the very tragic and still-birth of their twins. 19. She could not answer questions about the police interviewing Bessie in relation to the recent risk of harm report, and whether or not the grandmother was present. This was because she was waiting on information from the funded service provider. 20. When answering questions about Mr Tomkins and the children's relationship with him, she said it was based on what she read. 21. She had met the children three or four times and she was concerned that Bessie had not been able to speak with a caseworker enough. She had met the maternal grandmother, maybe, twice. 22. She said in her last affidavit, there were no concerns in the placement. However, since then, the allegation was made, and an alternate assessment conducted. 23. She said Bessie needs further support and connection with the casework team. In her view, it was clear Bessie wants to return home to live with her mother, and that she would make her own decisions. 24. She said Fiona has speech difficulties and is difficult to understand, and that it is clear the children miss both their mother and father. 25. Ms C properly said she could not offer an opinion if Bessie is parentified, having not spent a lot of time with her. She said Bessie makes broad statements about what is happening in the placement and Bessie was not able to say that she had ever seen her grandmother smack any of the children. 26. Ms C thought the maternal grandmother had done a good job, but with limited support from the agency which has impacted the placement. She said the stress for the maternal grandmother is caring for the four children, and Ms C herself, does not have any feedback from the children's counsellors. 27. Ms C said she meets the parents once every 12 weeks, as a minimum, and last met them in October of 2022. She said The Secretary had prepared the Care Plan and the funded service provider had prepared the transition plan. 28. She said although it is gaining, there was need for more insight by the parents and there is more work required. Her understanding is the parents were not using drugs. She describes the domestic violence as conflict caused by drug use and the mother's mental health. 29. Ms C said she was only aware of a police subpoena yesterday. That subpoena was returnable on 17 August. 30. Casework and the legal process are intertwined. When parents live in Queensland, and the issue of police involvement is central, police records need to be checked and subpoenas need to be issued. Then, to be effective, they need to be inspected, not just by lawyers. 31. For the caseworker to not inspect material that was returnable on 17 August until the matter was before the Court in November is unsatisfactory, and far from best practice. It clearly should have happened before a family group conference took place in October. 32. That police subpoena reveals crucial information. The mother was pulled over by the police, and twice tested positive with methamphetamine in her system. The mother never disclosed this to anyone working with her. 33. On 2 April of 2022, the mother was detected by police driving with methamphetamine in her system at 7.30am. On 16 April 2022, she was detected by police at 3.37pm, driving with methamphetamine in her system. On 5 June, she was also detected by police driving whilst disqualified. 34. If the mother was not detected by police, or if the subpoena had not been issued, there would be no evidence of the mother's use of methamphetamine. This creates problems for the mother, in her evidence. 35. On day three of the hearing, The Secretary confirmed that they issued a further update subpoena with the Queensland Police and there were no further records. 36. Ms C said, in her view, that the mother blamed the maternal grandmother for the children's removal, and the mother discusses coming home with Bessie at contact. She spoke of the stress for the parents as budgeting, mental health, and drug use. 37. She spoke of the family group conference in October 2022, where the parents and paternal grandparents attended. The maternal grandmother did not attend because it was within a week of Bessie making allegations of the smacking, and it caused tension. 38. She said the paternal grandparents being at the family group conference indicated there had been a shift in them. She was aware of the problems in the relationship between the mother and the maternal grandmother and raised it with the funded service provider that it needs addressing. 39. I find it difficult to understand how a family group conference could occur without the maternal grandmother, who has been the authorised carer of the children since May of 2021. Not only were the children in her care prior to The Secretary's involvement, they were there because she was acting protectively. If there was an issue with the maternal grandmother and the mother, or the father, it should have been explored and addressed. Clearly, from all the evidence, that has not happened. 40. At the family group conference, Ms C confirmed she was 100% committed to restoration, even though there was no mental health assessment, there had been problems with contact, problems with the funded service provider, and she could not say the parents had meaningfully engaged. 41. She said the parents have made some progress, with little or no support from the funded service provider, and the parents obtaining housing was a major achievement. 42. However, she accepted that inappropriate conversations at family time should have been redirected, and she could not explain why the mother's mental health assessment had not happened. 43. When asked how The Secretary would monitor a restoration with the parents living in Queensland, noting that they live in Toowoomba, she said they would need to engage someone in Queensland, but she could not provide any details. 44. Ms C impressed me as an experienced caseworker who could see that the parents had issues they needed to address, and what was required to address them. Despite her raising the concerns about the funded service provider and the progress of the matter, nothing had changed. She appeared frustrated and dissatisfied with the funded service provider. 45. However, from her evidence it was unclear to me how The Secretary assessed restoration in light of the Children's Court Clinic report and the summary of proposed plan tasks not being done. Dr Q (Children's Court Clinician) 1. Dr Q is an experienced Children's Court Clinician. She is a clinical psychologist who has 15 years' experience working with children and families. No challenge was made to her expertise. 2. Dr Q's report was dated 4 March 2022. Her recommendations, as at that time, were that the children should not be restored at present, but that restoration should remain the goal. Dr Q also provided that a number of tasks, similar to the tasks in the summary of proposed plan, be attended to. 3. The tasks were: * engagement with alcohol and drug counselling, abstinence from drugs, the father reducing his alcohol use, * engagement with domestic violence counselling, * the mother engaging with a psychologist, the father engaging with a psychologist, * the parents together engaging with a counsellor, * family time continuing, * housing being obtained, * family therapy with Bessie, and further requisite assessments of the children. 1. Notwithstanding her recommendations, I am unclear as to why The Secretary did not accept her recommendations, but instead, assessed restoration as realistic. 2. The clinician was provided with updated material, prior to giving evidence. She said in evidence, her recommendations had changed and that the children should remain in care, and the Court consider long-term options. 3. She gave considered reasons for that. They included the mother's methamphetamine use since her report, and she said significant weight should be given to that, because the parents were firm they were abstinent. The parents needed to show abstinence over a two-year timeframe because there is risk. 4. She said it was exceptionally important the father do relapse prevention, to ensure he has a plan and coping skills. During interviews with Dr Q, the father said he had two phone calls around drug and alcohol counselling. His affidavit said he had completed a drug program. He did not mention that to her, and this caused her concerns about the reliability of what he said. 5. Dr Q said in terms of the mother's drug and alcohol counselling, she would need more information about her relapse. She said it is important that the parents not only attend appointments, but there is evidence of what they have learnt. 6. She said nothing less than two years of abstinence would be appropriate before you could be confident of the mother's abstinence. 7. She said the father had not engaged in any domestic violence service and he had not engaged in alcohol and drug counselling. 8. When taken to the parents' drug test which had THC, or cannabis, results, she said you cannot assess drug test results alone and there was psychological intervention required for the parents. 9. Dr Q said the updated material raised additional questions for her, including the contact report from 8 October, where the father's behaviour was inappropriate. 10. She said the father's affidavit evidence is not evidence of attending an alcohol and drug counselling course, but attending two appointments via phone, which is what he said during the interview. She said that is not sufficient to develop a substantial understanding of the issues. 11. She said his affidavit does not have details about healthy relationships. As a TRIPLE P program trainer, Dr Q said that the program does not provide training regarding conflict between parents. She noted the father had only completed a third of the men's behaviour change program. Although she acknowledged it was positive that he had engaged in 8 weeks out of the 27-week course. 12. She said the parents did not demonstrate insight on the impact of ice use on parenting and noted they denied the allegations of neglect and lack of supervision. 13. As a result of domestic violence and drug use, the children need trauma-informed care, and the parents need to acknowledge their mistakes. She reiterated that in her view, the father was significantly dysregulated during contact on 8 October. I share her view. 14. Dr Q notes that in late 2021, the father made threats to the maternal grandmother to shoot her with a bow‑and‑arrow at family time (recounted in [53] of her report). This indicates how inappropriate that was, and how he does not understand how sensitive traumatised children are to threats of violence, which places the children in conflict. 15. Her view was the parents had minimised domestic violence. She was alarmed that her recommendations were not followed, and the restoration had progressed to unsupervised time. 16. She was concerned about the position Bessie had been put in. She noted Bessie was encouraged to record her sister, and said it is unfortunate that there had not been earlier follow-up about Bessie saying her nan had smacked Fiona. It is difficult to draw conclusions about Bessie's allegations. She said Bessie finds a sense of connection in being involved in conversations with parents about the maternal grandmother. She is hypervigilant to adult conversations as a result of trauma and parentification, and the parents have no insight in to that. 17. The children are doing well at school, which does not mean her trauma checklist was invalid. Dr Q properly acknowledged the positive things that the father had done. The father finding accommodation, having stable employment and regaining the support of the paternal family is significant. 18. Dr Q said they are positive and protective factors for a restoration, but she does not recommend restoration at this point in time. 19. Dr Q was asked to comment on The Secretary's proposal of the orders sought. She said it is hard to comment because she is not recommending that would happen. She recommended that you would need two years for the parents to demonstrate that they can meet the undertakings, and before there should be any type of transition to any unsupervised contact. 20. She said Natalie's primary attachment is with the maternal grandmother and if she were to be restored, it would involve significant disruption. It would need to be done carefully because it can cause significant grief and trauma. 21. She explained the impact of exposure to domestic violence on speech development, noting Fiona's speech difficulties. 22. Dr Q described how casework professionals should be communicating with Bessie. She said you need to look for meaningfulness of engagement of the parents at the end of two years, and then consider if that is what is best for the children. 23. A failed restoration would have a significant impact on the children, and the relationship between caregiver and parent is a significant protective factor to successful restorations. 24. In considering the risks of restoration not occurring, Dr Q noted that it would place a limit on the parental relationship, and notes Bessie blames herself for the removal and looks to restoration for healing. 25. The children identify as a sibling group and Bessie is the leader. They should be together, but there should also be consideration to consider individual contact, or special contact, for Bessie, even in a supervised phone call. She noted that as a child, Bessie does not have the capacity to understand, or assess risk. 26. She commented that the mother not telling the caseworkers about her ice use does not suggest she is willingly working with agencies. The poor case management by the funded service provider is a letdown for the children, as well as the family. 27. However, Dr Q notes that the parents were represented. Her recommendations are not just for The Secretary, but also for the parties and their solicitors to be aware of, and raise with their clients and with The Secretary. 28. Her expectation is mine. The parents were legally represented. There were tasks that were set out in that report that should have been followed up, and my expectation is that proper legal representation would ensure that there was follow up on behalf of the parents. 29. Dr Q is particularly concerned that: * there were decisions made by The Secretary without access to information; and * the mother and the maternal grandmother need to want to work on their improving relationship. 1. I found Dr Q to be a most impressive witness. She was thorough, logical, and in my view, objective. She made concessions where appropriate. She was objective and fair when describing the strengths and weaknesses of the parents, and she was child-focused at all times. Her opinions were tested, but unshaken in cross-examination. 2. Her evidence is central in this matter, but ultimately, the decision about restoration lies with the Court. It is not the only evidence that the Court takes into account in reaching its decision, but it is evidence that is compelling. 3. The ILR describes in submissions, Dr Q's evidence is compelling about the impact on ice, but ultimately submits that I follow a course that is not in line with the Clinician's recommendations. 4. The Secretary in submissions, does not make submissions as to the particular reasons why I would reject the Children's Court Clinic opinion about what is in the children's best interest. Ms L 1. The next witness was Ms L, formerly a caseworker with FSP 1, who had filed a number of affidavits. She was employed with FSP 1 from September 2020 to August 2022, and she was the caseworker for the family from August 2021 until July 2022. She has a Bachelor of Social Welfare that was obtained in June 2022, just one month shy of when she finished as caseworker. 2. Ms L reported to a team leader who reported to a program manager. She had a caseload of four families in total. She was given no particular training in relation to the care legislation, only through her managers talking to her. She had not seen all of the Court documents. She had not seen the ROSH reports, but she had received the summary of proposed plan and read Dr Q's report. 3. She has no specific training on domestic violence. 4. Once the parents were living in Queensland, she saw them twice in that time. 5. In speaking about contact, she noted four-to-six weeks after she became the caseworker, the parents were homeless and had bought a van, so they could live in New South Wales and go to contact. At that time, contact was some three‑to‑four times a week. Contact changed in January 2022, to once a week. 6. Ms L supervised some of the visits. She described the children as wanting to attend and the conversations at contact as mostly appropriate. She confirmed the parents signed a contact contract, and contact had never been cancelled or suspended because of the parents' conduct. Unsupervised contact commenced on 14 July 2022. 7. She said the parents had been asked not to denigrate the maternal grandmother. It was noted that in January of 2022 at contact, there was derogatory comments made about the maternal grandmother. 8. When asked about the parents' anger, she said they can get angry and raise their voices directed at her and the agency, but not at each other. 9. There was no clear answer as to what her input on restoration was, but she was involved in the preparation of the transition plan. 10. In terms of drug testing not taking place, she described it as hiccups with paperwork and the testing lab. 11. When asked about referrals to drug and alcohol counselling by FSP 1, her answer was "the parents did that themselves, I think". 12. She did not appear to have a good understanding of what drug testing had occurred, or that drug tests for methamphetamine that are not random, are problematic. 13. She said the TRIPLE P parenting had been done by the parents online, but there had been no other referrals, including no referral to a trauma-informed parenting course. 14. She spoke to the parents to organise contact once a week. 15. It was clear to me that Ms L was not providing casework support. She was not aware of the mother's drug use in April 2022. She described that the mother's mental health assessment had not occurred because it was tricky to find a psychologist. She placed emphasis on the parents having a house, and she thought drug use had ceased. She was not aware of the mother being charged twice in April of 2022 for drug driving. 16. Her focus on the parents was on them securing accommodation and being committed to the children returning. Ms L said she believed restoration was a potential achievable goal, but there is no real sense of how she formed that opinion. 17. She acknowledged that FSP 1 should have done more face-to-face work and more visits. 18. When speaking about the parents' issues, she described the father having anger outbursts and issues. 19. To my mind, she demonstrated a lack of understanding with respect to domestic violence. Her response to questions about the father threatening the maternal grandmother, was that the maternal grandmother was notified to be mindful. Her response was focused on the person threatened, not on the person making the threat. 20. Ms L said the children had spent time in the care of the paternal grandparents, providing respite in a family capacity, although they were not authorised carers. I struggle to understand that rationale, given these children were under the parental responsibility of the Minister. 21. She said the transition plan moved from stage one to stage two, notwithstanding that there had been no counselling, no engagement with domestic violence, and no psychological assessment of the parents. She said that was done so that the girls were not hindered by FSP 1. 22. It was a really problematic approach. The focus appeared to be on moving through the stages, rather than protecting the children. 23. Ms L was clearly inexperienced and not properly trained or equipped for the role she was given. 24. Her description of factual events as what occurred, that were within her knowledge, I accept. Her opinion of the parents and what is best for the children, are of no assistance to me. 25. My criticism is not a criticism of her personally, but of a system, structure, and management that sees an inexperienced social work student, with no training on the Care Act or domestic violence, left managing a family with child protection issues that includes domestic violence, drug use in circumstances complicated by the children living in New South Wales, and the parents living across the border in Queensland. Mr W 1. Mr W gave evidence on two occasions. First on 16 January 2023 and then the second occasion on 8 March 2023. He also filed a number of affidavits. It is convenient to describe his evidence together in one section. 2. In January, his evidence confirmed that he is now employed by FSP 2. He had previously been employed by FSP 1 with staff and caseworkers transitioning from FSP 1 to FSP 2, and the transition should not affect families. 3. He has a Bachelor of Social Work, and at the time of giving evidence in January, he was the caseworker for the family and had been since October 2022. 4. He had not been to the parents' home because he has a big caseload. He is a casework manager and has his own caseload. 5. He said when Ms L resigned, there was no proper handover and there was no explanation to me for why that was the case. 6. He has met Bessie once on her own, and once at a home visit. The only contact he had with the parents is by phone. There had been no home visits because the parents live in Queensland. 7. Mr W had read Dr Q's report. He said the family would be getting a new caseworker. He said FSP 1 were assessing the paternal grandparents as carers but had flagged that they would not be suitable. However, FSP 2 and The Secretary would be meeting to see if they could be part of the process, moving forward. He is not sure why the paternal grandparents were not suitable. He noted there had been hair follicle testing for the parents on 4 January 2023. 8. He conceded the contact reports indicated that the contact supervisors needed training, especially as recent contact reports indicated the parents were still talking to the children about going back to Toowoomba. In his mind, the children were uncertain, because in their minds, they were going to Toowoomba. I note this expectation has been created by the professionals providing support to the children. 9. His evidence in March 2023 was that he was the case manager at FSP 2. And although he remains the caseworker for the children, he has had some assistance from another caseworker, who is shortly to leave. 10. His evidence in January 2023, that a new caseworker was coming for the family, had not come to fruition. 11. He clarified a typographical error in his report, which is of no consequence. 12. He said that the father would be having ongoing counselling for anger management. 13. His use of the words "anger management" to describe family violence is of concern to me. He said he had not spoken to the parents about their accounts of domestic violence. This is also of concern to me. 14. He confirmed that the paternal grandparents cannot provide care to support the restoration, as they are not authorised carers. He said there would need to be liaising with the department in Queensland, and potentially funded service providers in Queensland. 15. He noted Fiona needed speech therapy, and Bessie and Indigo were having psychologist sessions in the area. 16. In his evidence given in March, he said a meeting to formulate a family action plan should happen. 17. That family action plan would include the parents needing: * education around trauma * rigorous and ongoing counselling for the mother and father * regular drug testing and counselling for drug use and possibly, * a comprehensive neuro‑assessment of the mother * a parenting-capacity assessment by an independent person * a review of a family action plan; and * a transition somewhere between 12 months and two years, to allow for education and development, and time for Mr W to explore other supports for the parents in Queensland. 1. He mentioned the children's "good connection" with the maternal grandmother. This completely underplayed the attachment of the children to the maternal grandmother, where they have lived with her for a period of time. He said he would be having conversations with the maternal grandmother going forward. 2. He was again focused on the parents having made a concerted effort to attain housing, yet no one had been to this house, the parents having moved at the end of 2022. 3. He had not followed up on pathology to discuss the father's explanations of his drug test results, which were positive for methamphetamine. The parents had not provided their drug diaries, as they indicated in evidence. 4. He was asked to provide a ranking of the parents from one out of ten, and he said to do so would be subjective. He was correct in that. Ranking parents one out of ten on any particular factor is of no assistance. There needs to be a description of what they have done, and what they have learnt. 5. He could not answer me as to the practicalities of a transition and when the children would move to live with their parents, but said there would need to be extensive collaboration and a plan developed. He said FSP 2 would seek an opinion from a psychologist about what would work best. There would need to be conversations at a higher level with services in Queensland. 6. He said there had been one home visit when the parents were living in the previous home, a two‑bedroom unit. 7. He confirmed that the paternal grandparents' assessment had been dealt with by FSP 2 in this way; that the panel had met and decided to do no further assessments of the paternal grandparents, as it would be the same assessor and the outcome would not change. 8. He confirmed that FSP 1 has assessed the paternal grandparents and did not authorise them as carers. FSP 2 had declined to reassess them, but FSP 2 could consider assessing other paternal family members. 9. He had not met with the children, save for what he told me about Bessie, yet he had been the caseworker since October 2022. Once Bessie started school, he had made one phone call to the school, but had not met with her. He was planning to do a home visit in the coming weeks. It is unclear to me why monthly visits to the children had not been taking place. 10. He had not spoken to the children's counsellor. He said contact is organised by someone else at FSP 2, who works remotely, and there were agency deficiencies. FSP 2 was understaffed and there were a lack of contact supervisors, but this had been raised with DCJ. 11. In my view, there is no predictability for the children. 12. His evidence in March was that, although they had been notified of an allegation about the maternal grandmother, they had made no notification to the help line. There had been no report to FSP 2's reportable conduct unit about a recent allegation by Bessie. 13. As Mr W had been in the witness box on two occasions, he could not have been more aware of the Court's oversight of this matter. This causes me even greater concern about the funded service provider. 14. When he gave evidence on 8 March 2023, his evidence was extraordinary about what was planned for the family. The funded service provider was talking some 20 months after a care application was filed about what would need to be done to develop a family action plan. 15. It was difficult to know if the things Mr W listed the parents needed to do had been carefully considered, or were being determined on the run, so to speak. 16. My criticism is of the funded service provider, it is difficult to know where responsibility within the funded service provider lies for the lack of action. It is, however, clear that the transfer of this family to FSP 2 has not, in my view, improved case management. How The Secretary, and the people responsible for managing the contract with the funded service provider, have allowed this to occur is also unclear to me. 17. The Secretary's focus is legislatively required to be on what is best for the children. It seems that focus seems to have been subsumed by talks about contracts with Commissioning and Planning, and a mere hope, without any foundation, that things would improve. 18. Mr W has three years' experience in the out-of-home sector, and his handling of the allegations made by Bessie, and the lack of action since October, are of concern. 19. His evidence is clear. There are many things required of the parents to address the child protection concerns. 20. His plan to develop a plan is problematic. As is his underplaying of the attachment that the children have with the maternal grandmother. Ms H 1. Ms H gave her evidence in between the two occasions that Mr W gave evidence. 2. She is an employee of FSP 2 that assessed the paternal grandparents as carers. She was employed by FSP 2, but previously FSP 1, and she is in the role of intake and assessment of carers. She had been in that role for five years. She is a registered step-by-step assessor with a Diploma of Community Service. 3. She completed a report of the paternal grandparents in November 2022. On completion of her work, she thought it needed support from management, so it was given to FSP 1 management. She felt some competencies had not been met by the paternal grandparents and it would be beneficial for management, or another assessor, to come and build rapport, and resolve the outstanding issues. 4. In particular, that was section E, the competency of working with others was not met. She was also of the view that, although they did not pass the full assessment, the competencies that they passed, and other competencies could be strengthened. They were being assessed as respite carers to support restoration, and she used an assessment tool, provided by the Office of the Children's Guardian. 5. She needed to have clarifying conversations with the paternal grandparents about their competencies not being met and she thought it would be better for someone else to have those conversations. She had asked for that to occur in November, but it had not happened. 6. She described having to end a conversation with the paternal grandmother. She spoke about her role in the paternal grandmother not meeting the competencies and stated it was fair that the paternal grandmother may be frustrated with the agency. 7. She acknowledged that the assessment that commenced in June of 2022 could have been quicker if there had been more resources. She said that the paternal grandmother had displayed a pattern of verbally abusive and disrespectful communication. 8. Ms H herself did not do the referee phone calls, but when she called back on one, the referee did not appear to want to talk further. 9. She raised concerns about the paternal grandparents' ability to provide a safe environment for the children and be protective. In my view, these concerns existed in May 2021 given the events that led up to family becoming homeless, and a lack of protective factors by the paternal grandparents. She had not seen the paternal grandparents with the children, and she said her first phone call to the paternal grandparents was tricky. She was not sure they understood what being an authorised carer was. 10. It is clear the paternal grandparents did not meet the competencies. In my view, Ms H's evidence suggested that the practice for when people did not meet competencies, was further assessment. 11. The paternal grandparents and their provision of housing and re-engagement with the parents is submitted to me to be a positive and protective factor, and a strength of the parents. 12. It is difficult to me to make such findings. The paternal grandparents are not witnesses to anyone's case. What the evidence shows is that there are concerns, at times, about their ability to act protectively of their grandchildren. These events include where the paternal family were involved with Fiona being removed from the car in a dispute between the mother and the father, and the FSP 1 assessment that they cannot work with agencies, and have a pattern of verbally abusive and disrespectful conversation. 13. No doubt, the paternal grandparents were frustrated by the funded service provider. However, the pattern of abusive responses is of concern. I simply do not know enough to make positive findings about the paternal grandparents. The Mother 1. The mother gave evidence over two days. She has filed a number of affidavits. Housing 1. The parents are now living in the paternal grandparent's property. Lilly, the father's 15-year-old daughter, is also living with her and Paul, and has done so since approximately August of 2022. 2. She describes circumstances up to her commencing using ice and she spoke about Fiona being born premature and placed in special care. As a result, the father had to take time off work to look after the children, eventually leading to him losing his job and getting behind in his rent. Contact with the children (through family time and the funded service provider) 1. The mother said since Ms M had left, there had been very little contact with the funded service provider, only to organise contact. 2. She said she only saw The Secretary twice, and she felt they lied to her. She complained about a lack of contact, a change in caseworkers, and there being no visit to the home. 3. She said the difficulty with the transition plan, which originally required the paternal grandparents to be approved as carers, was that no one had spoken to her about that issue. 4. She does not have a driver's licence and will not be eligible to hold one until August 2024. The father has his licence. 5. She said she has had no support but would accept support for trauma, and that her and the father would do more talking. 6. She spoke essentially, that the person assisting Mr W "mucks them around", and she prefers to deal with Mr W. Drug use 1. She said she had been using drugs since she was 12 because of her parents' separation and was focused in her answers on the maternal grandmother. 2. She continues to use cannabis occasionally after seeing the children at family time, but she is learning to use breathing techniques for drug management. 3. In her evidence, I noted the reports from her counsellor that had been engaged very recently. 4. She first used methamphetamines after Natalie was born and she was living in a motel, but not while she was pregnant. 5. She has limited insight into her drug use and the impacts on parenting and described the little ones as being happy playing. 6. She stated that on both occasions in April 2022 when she was pulled over by the police that she had been at a friend's house and used there. She does not have a relapse prevention plan, she said she just will not use ice again. 7. The mother recently used cannabis after receiving messages from Bessie that Fiona is "being flogged", which returns to her focus on the maternal grandmother. She said she called the funded service provider and then called the police. She thought, perhaps, she had taken it out of proportion. 8. She uses cannabis as a method to calm herself. When asked why she was not forthcoming about ice use she said, "you never know who the caseworker is" and sought to lay blame elsewhere. She confirmed when using ice, the parents used ice together. Counselling 1. She says she developed post‑natal depression, but not realising it, after the birth of Natalie, and then Fiona. She is having recent appointments with Ms A, and she will keep working with her. A report from Ms A was in evidence. 2. She had Bessie when she was 17, and additionally, she has had the trauma of the twins. 3. She attended the Triple P Parenting course and felt like she was working towards the summary of proposed plan tasks, but said she needs help with understanding trauma. Domestic violence 1. She said she discontinued the domestic violence course because the father needed to be doing the men's course, and she was not being taught anything, or learning anything. She said the last domestic violence occurred in the motel, when the maternal grandmother took the girls. 2. She acknowledged that she has a history of working with the Queensland Department because of domestic violence. She described the domestic violence as arguments and a bit of pushing. In my view, she minimised the domestic violence, describing it more as verbal arguing. She denied minimising the domestic violence. 3. She says the girls are incorrect when they say dad hurts mum, and when they say mum gets punched and smacked. She said he does not lay a hand on her, and he would never lay a hand on her. I simply do not accept that evidence. 4. She says she cannot remember a stabbing, but there was an incident with a knife. She denies there was choking but indicated there may have been self-defence of putting your hands up around your neck. 5. The events of the fridge being turned over and the windows being broken, she minimises. She is taken to exhibit 28, the notes where Bessie is interviewed and describes her mum and dad throwing things and hitting each other. Indigo describes mum getting punched and says dad hurts mum. Even in light of those notes, she denies those events. However, she also says she has worked on the issues and says there is no domestic violence because it has stopped. I have difficulty with that evidence. 6. She says at the psychologist she has learnt about breathing and understanding when she is getting to a point of frustration. She said the parents argue about money, and there has not been any domestic violence courses done together, with the father. She said the DVAC course was about her physical safety and reading Paul's signs. 7. When I asked her further questions about domestic violence, her answers appear to be minimising it. 8. I have in evidence, Exhibit 23, the police narrative of 31 May 2021, where it describes the mother's account to the police about event. The mother stated that they were arguing over the children, the father's lack of support in parenting, and that the father kicked her. The police records make reference to frequent domestic violence and a witness attending the doorway of the motel unit. In fact, the manager is recorded as witnessing the father kicking the mother, and the mother declining to make a criminal complaint. Care of the children 1. She acknowledged that it would be difficult with all four children plus Lilly. She has considered a service known as 'Act For Kids', which is available in Toowoomba. She also confirmed she communicates with Bessie electronically, when she plays games on an iPad. 2. She says it is important to reconcile with the maternal grandmother. Assessment of the evidence 1. My assessment of the mother's evidence is that she has had a difficult life. She has experienced trauma and grief, and has fractured family relationships. She and the father have felt unsupported by the system in arrangements for contact, in their concerns for the children in the maternal grandmother's care, and in what was necessary for them to have the children restored. 2. She clearly has a difficult and acrimonious relationship with her mother. It is not my role to make findings about their life history or pass judgment. The mother's focus on her own mother's shortfalls, and not her own, at the time of removal is of concern. 3. Given the mother has not received any intensive domestic counselling and drug counselling, it is unsurprising that she continues to deny and minimise violence, despite the overwhelming evidence to the contrary, including from the children. 4. She has no relapse plan; she simply says she will not do it again. Yet, that is what she told the Clinician in early 2022, prior to April 2022, when she did take methamphetamine. 5. My assessment was that she minimised domestic violence, the reasons the children were in care, and was focused on the maternal grandmother, rather than on herself and the father. 6. In my view, she is at the early stages of addressing her child protection concerns. She has made some initial progress with commencing counselling after the hearing commenced. She is committed to contact and has been attending for a long period of time. However, housing and attendance at contact are not the only issues for this family. The Father 1. Mr Tomkins gave evidence and swore a number of affidavits. Domestic violence 1. The father gave an explanation for the fridge incident, which in my view, minimised it. He says he cannot see any impact of domestic violence on the children, and he said he has done an anger management course. He spoke of there being only four major domestic violence events and says it has never been physical, mainly verbal. 2. He demonstrated a complete lack of insight into domestic violence. He says there is no pattern of domestic violence, only a couple of bad arguments. He maintains he does not use violence but described holding the mother. He blames the people who called the police and the neighbours. Drug use 1. He said he is currently working as a carpenter, refitting a mental health hospital and drug rehabilitation facility. A recent drug test has been positive for methamphetamine in a small amount, and he thinks that is because he moved drug equipment in his job. 2. The test was requested on 4 January 2023 and collected on the same date. There is a small methamphetamine reading in that hair follicle testing. The test results say it is not possible to distinguish between small use and contamination. 3. He says he smokes cannabis on the weekend and that he took up methamphetamine in 2019, using it for productivity at work. 4. He has not recently completed further requests for drug tests because there were problems with his identification (loss of licence). In his job, he is seeing drug paraphernalia, and whilst he has not handled it, he has swept it up. In further questions from his solicitor, he said it is possible that he may have picked it up. Counselling 1. He has started seeing a counsellor and I have that in evidence. He has spoken to alcohol and drug counselling via telehealth. 2. He does not understand trauma with the girls because he gets told they are doing a good job. 3. He described the family time reports that were of concern as "just accidents" and he acknowledged that there had been Christmas lunch with the maternal grandmother, although it had been tense. He confirmed over Christmas that he and the mother had moved in to a four-bedroom house that was owned by his parents, but no one has done a home inspection. Further, no one has met with or spoken to Lilly, and there has been no real conversation about the impact of Lilly being in the home if there is a restoration. Mr J, who was the former manager caseworker, and Ms C, the caseworker, had told them the Children's Court Clinic report was all good. 4. He started counselling with Ms T late last year. He says his parents can provide practical support. He confirmed he had only attended six out of 27 domestic violence sessions. 5. He could not identify the stressors that would exist when the children would return home. He thought it would be the same as any family – no different. 6. He is certain that the maternal grandmother is abusing the children and he thinks the police being called to her home in the week before Court is her doing. He wants to support the children to spend time with her when they are back in his care. He places blame with the maternal grandmother and he disagrees with the contact reports that are of concern. Assessment of the evidence 1. Similar to the mother, the father is in the very early stages of addressing the child protection concerns in a meaningful way, even though a long period of time has passed. 2. He has not meaningfully engaged in domestic violence counselling, and his lack of insight into, and denial of, domestic violence are real issues for the Court. 3. He has also not engaged, meaningfully, with drug and alcohol counselling. The Secretary says they accept his explanation for drug test results. I am not sure how The Secretary does that with no expert opinion considering the father's account, and no follow up drug testing. 4. I do not need to make a positive finding of the reasons for the father's drug test results, I only need to assess risks. I believe it remains a risk. The question is, whether the information I have leads me to a conclusion on whether the risk is acceptable or unacceptable. 5. The contact reports, of which there are many, evidence the father's dysregulation and lack of insight into the children's needs. Threats are made to the maternal grandmother, and bad, unkind things are said about the maternal grandmother. 6. I indicated, after the parent's evidence, that I required further evidence from The Secretary about the funded service provider. Ms B (Caseworker) 1. She has a Bachelor of Social Science and Social Work. She has worked for The Secretary for seven years, and in the last two, in management. She is the second manager caseworker. 2. She listed a number of concerns with the funded service provider, including that The Secretary had not seen the family action plan. FSP 1 said they were not aware of how to do a family action plan, and she had concerns about FSP 1 being able to support a restoration, in terms of work to be done with the parents. 3. On 6 October 2022, she had a meeting with a manager of Client Services where she voiced those ongoing concerns. It was escalated formally to Commissioning and Planning. The person it was escalated to was Ms D. 4. On 10 October 2022, it was requested that there be a change of agency. On 16 November 2022, she was informed there was to be a merge between FSP 1 and FSP 2 that would occur. She followed up on 22 December 2022 and was advised it was still to occur. 5. In January of 2023, she spoke with Mr W around the casework issues and requested a family action plan, and further information on the paternal grandparents being authorised. 6. On 23 February of this year, she again escalated her concerns to the permanency coordinator within the Department. Even in light of FSP 2 taking over, she was still concerned. 7. She said the funded service provider is very difficult to communicate with. She does not get a response, and if she does, it is inadequate. 8. The permanency consult that was due in December 2022 has not occurred, and the last one that occurred was in August of 2022. She said a few months after she raised her concerns, there was no definitive answer and there was a drift. 9. She has not had particular experience with managing a Queensland family for restoration, whilst the children live in New South Wales. She said both times Bessie made a complaint about her placement, the funded service provider did not let The Secretary know. Instead, they found out through the parents, and then The Secretary requested assessments. 10. She was only made aware of the most recent incident the previous week and was given limited information. She had not seen the documents that were eventually produced to the Court about the paternal grandparents until the day she gave evidence, even though she had been requesting them since February. 11. I am at a loss as to why Ms B was not listened to. She is an experienced caseworker and manager casework. Mr J (by phone) 1. Mr J is now the manager caseworker at an alternate CSC. He has a Masters in Social Work, a Bachelor of Asian Studies and a Bachelor of Arts. He has been a manager for two years and a caseworker for four to five years. He was the manager caseworker for these children when they were brought into care, from May until September 2022. 2. He said in July of 2021, he started to have concerns and he formally raised them in August of 2021. He was concerned regarding the minimal engagement with the parents, which impacted the parents' ability to meet the goals. He said the case was complex and required intensive, ongoing work, yet there was no sense of urgency by FSP 1. 3. He could not get FSP 1 to arrange a family action plan meeting and DCJ had to step in and meet with the parents. He said the assigned caseworker was not suitable, given a continued absence, and he asked for a full-time caseworker with experience. 4. It was then that Ms M was appointed. He was concerned about her as she was still studying and had no experience in restoration, which meant she had to be coached. 5. He next raised concerns in April of 2022, that the restoration plan was inadequate. He said that the parents living in Toowoomba made it complex, and he asked the permanency coordinator to provide training. 6. He met with Ms V from Commissioning and Planning and raised his concerns about FSP 1. He felt the parents were left to run the restoration themselves, and that FSP 1 did not arrange the mental health assessment or the drug testing. He said that it was never discussed that The Secretary should take back case management. He said he spoke to the permanency coordinator a few times and an email was tendered that he sent on 6 August to FSP 1, which set out his concerns. 7. It is clear, the parents have been concerned and frustrated with the funded service provider. Those concerns are shared by me, and they are shared by The Secretary. It is unfortunate and unsatisfactory that Commissioning and Planning, and those within The Secretary with power to do so, did not change the funded service provider at an earlier time. 8. Real consideration should have been given to the fact that the parents lived in Queensland and the children in New South Wales. The children live approximately 50 kilometres from the Queensland border. The Secretary has a CSC further north of Ballina, in Tweed Heads, which is part of the Twin Towns, on the New South Wales/Queensland border. 9. This family cannot be the first family where children are in New South Wales and parents are in Queensland. The management of this fact, and how proper oversight and casework could occur, should have been the forefront of The Secretary's mind when determining case management. 10. The funded service provider should have also considered if they could deliver case management in those circumstances. On the evidence before me, the funded service provider has no practical idea as to how they would do that. 11. The distance is the excuse for why so many things were not done, and no one can point me to the way that that issue will be managed, only that it needs to be explored with local support. 12. The contact reports, which describe family time, demonstrate what is clear. FSP 1 needs to improve training and practices for contact supervisors. Family time should not be arranged on a week-to-week basis for everyone involved. I said that to everybody in November 2022 and was dismayed as the hearing progressed, that even in March 2023, that issue continued. 13. I have no confidence that the funded service provider will do what they say, given all the evidence. Especially that even when these matters are before the Court, it did not prompt any change. 14. Turning back to the task at hand. Do I accept The Secretary's assessment that there is a realistic possibility of restoration to the parents? Regard must be had to two matters: 1. the circumstances of the child or young person; and 2. the evidence that the children or young persons' parents are likely to be able to satisfactorily address the issues that have led to the children or young person from care. (1) The circumstances of the child or young person 1. Bessie is 12 years old. She directly instructs her lawyer. Her instructions are that she wishes to return home and supports The Secretary's proposal. Those views have been consistent throughout these proceedings. Bessie presents as aligned with her mother. 2. When Bessie commenced living with the maternal grandmother, she was ten. She was sleeping with the maternal grandmother and jumping at unexpected loud noises. She is engaged with a counsellor, who describes her as parentified. She is significantly behind in reading, writing, and mathematics. 3. Bessie has made allegations that the maternal grandmother smacks the children. She retracts the allegations, and then she retracts the retractions. She does not say that she has seen the maternal grandmother smack the children, just that it happens. 4. Bessie has been exposed to parental drug use, domestic violence, and has clearly taken responsibility for day-to-day care and protection of her little sisters. She has suffered trauma by virtue of this. 5. Dr Q says she views restoration as a way of healing. She also says she is 12 and cannot identify and assess risk. She was given an expectation that restoration was happening before a Court approved restoration, and unsupervised time then commenced. She has been exposed, regularly, to her parents' inappropriate conversations at contact. 6. She has now commenced year seven and she has not received appropriate casework support to explain the process. 7. Indigo is seven years of age. She was five years and eight months when she went to live with the maternal grandmother. She is described as different to her older sister and more compliant. She can recall domestic violence incidents and she wishes to remain with her maternal grandmother, until she can be safe with her parents. 8. Fiona is 4 years of age. She was 21 months when she went to live with maternal grandmother and she has spent more of her life living with the maternal grandmother, than she has not. She has speech difficulties that I am not sure are being properly attended to. Dr Q's evidence makes it clear that speech difficulties can arise in the context of exposure to domestic violence. 9. Natalie is 2 years of age and has lived with the maternal grandmother since she was seven months old. Save for Dr Q, very little attention was given by The Secretary and the funded service provider to the impact of restoration on Natalie. They should have considered the impact of removal from her primary carer and the disruption to that attachment. I cannot see where there has been a careful evaluation of the impact of moving Natalie from her carer to her parents. 10. The children are clearly a sibling group and Bessie is the leader. All of the children have been exposed to domestic violence, parental drug use, and are impacted by this trauma. They need a safe and secure place to live with predictability. (2) The evidence (if any) that the children or young persons' parents are likely to be able to satisfactorily address the issues that have led to the children or young person from care 1. The submission, as I understand it, from The Secretary and the ILR, is considering the law contained in Bloom and Jamzie, that this is a matter not where the Court would find there are significant runs on the board, but there is a plan. 2. The law requires me to be satisfied by the development of and commitment to a cohesive and viable plan that is sensible, practicable, and viable, within a reasonable time. There is a plan articulated in The Secretary's submissions. 3. Mr W articulated a somewhat different plan in his evidence. The existence of a plan, in of itself, is not enough. It needs to be cohesive, viable, sensible, practical. 4. I need to carefully consider what is proposed, and in addition, I am assessing risk. There is no doubt there is risk in restoration. The question is whether there is an unacceptable risk, or not. 5. The law is clear. I assess risk based on findings that I make on the balance of probabilities. Risk is not assessed on the balance of probabilities, it is either acceptable or it is not. 6. The things the parents have done to date are very late and they cannot be considered significant runs on the board. The Secretary's submissions set out a 14-point plan for a restoration and transition. 7. This plan sees the parents continuing with their newly engaged counsellors and the children continuing with counsellors and education. Then the parents receiving education on trauma, of which there has been none to date, further drug testing and abstinence from cannabis. There is no mention of targeted drug and alcohol counselling, and there is no mention of domestic violence counselling. 8. The plan does not address how the border issues will be managed, beyond a statement that local assistance would have to be acquired as a substitute for the paternal grandparents. 9. There is a plan for mediation with the maternal grandmother. Yet, there is no evidence to suggest how that will happen. 10. The Secretary argues that the intervention and oversight proposed by the Minute of Care Order is in total, four years. This is simplistic and erroneous. 11. There is a difference between parental responsibility and supervision. This difference is in the powers of the Minister, and the frequency of the Minister's involvement. 12. My task is to decide if restoration is realistic, and then determine which orders are appropriate. The form of the orders is not a factor that should persuade me in whether or not to accept The Secretary's assessment. 13. The Secretary says I would be persuaded by the things the parents have achieved, including the regained support of the paternal grandparents, which I have already made comments about, the father obtaining employment, which is to his credit, and the things that the father has achieved, which relies heavily on the father's self-reporting. 14. The Secretary refers to the father's attendance at domestic violence counselling, yet this is not a submission that can be maintained on the evidence. I reject the submission that the father's attendance at domestic violence counselling is something that I should have regards to. 15. The Secretary says the parents attended contact. It is true, they have been committed to attending contact. However, such a statement glosses over the problems at contact and the dysregulation of the father at contact. 16. The Secretary accepts that the funded service provider has failed to support and educate the parents. The Secretary submits that the parents did not receive opportunities for education and support, but that it is arguable that with better support, there might have been more progress. I simply, do not know. The Secretary concedes that the parents need further education. 17. The Secretary takes me to the Clinician's statement, that the parents should have followed up on the Clinician's report and recommendations, and says that the parents do not have the skills to do that on their own. Yet I note the parents were legally represented, and there were both The Secretary's casework professionals and the funded service providers, as inadequate as the funded service provider was. 18. The Secretary talks about the domestic violence and says it can be explained in the context of drug use and the mother's mental health, and that is how it occurs. Domestic violence does not occur. A person chooses to use violence on an intimate partner. Domestic violence is a form of control, and is not a means of conflict resolution. 19. The Secretary says the father has done alcohol and drug counselling, but Dr Q's evidence is clear that what has happened is not counselling. The Secretary refers to a mere hope that the maternal grandmother will repair a relationship to support restoration. 20. The ILR supports restoration but is concerned about the management across the border and describes Dr Q's evidence about ice use as compelling. The ILR has questions around the father's drug use and says, perhaps, the parents have been educated by Dr Q's evidence. 21. The ILR notes there has been no home visits, the father's employment is stable and the paternal grandparents' relationship with the parents has been repaired. As a result, the ILR states I would be beyond satisfied that the plan goes beyond a mere hope, because of the things the parents have done. 22. The DLR submissions carefully consider the evidence of each of the witnesses and notes the difficulties monitoring a restoration with the parents in Queensland. The DLR says the plan in The Secretary's submission goes some way to mitigating a risk, if there is thorough, skilled, committed, and collaborative casework. Though, acknowledges that has not been the case to date. 23. The mother's submissions say the mother has commenced a process of improving her parenting and that she has addressed her mental health. In my view, she has only commenced addressing it: * She has reduced her cannabis use – That is true. * There has been no ice use – That is not true. There was ice use in April. * The parents have engaged in domestic violence counselling – That is not correct. * The parents have insight – In my view, that is not correct. 1. So, given my comments about the parent's lack of insight, with no acceptance of the history of violence in their relationship and the exposure of the children to that, there is no insight or knowledge about what needs to change. 2. The summary of proposed plan set out things to be done, which have not occurred. The Children's Court Clinic report set out things to be done, which have not occurred. The Care Plan set out things to be done before transition moves to different stages, they were not done, but the transition still occurred. 3. On day seven of this hearing, the funded service provider said a family action plan meeting needs to be scheduled and described things to be done. The Secretary in submission proposes a plan. 4. The children are my paramount concern. The parents have not attended to the things that the most qualified witness, the Children's Court Clinician, says is required. The mother's ice use in April and her failure to disclose that is problematic. 5. The parents' lack of insight into domestic violence is significant and the father's behaviour and dysregulation is of concern. The evidence around drug testing of the father is of concern. The plan in submissions, the plans from the funded service provider, and actions to date, are all of concern. The plans cannot be said to be viable; it is only a plan. 6. The mother was insistent she was abstinent from methamphetamine, but she used and did not disclose. 7. There are no significant runs on the board, and in my view, there is no plan that is viable. 8. Most importantly, in my assessment of the evidence before me, the risk to the children of restoration to the parents, is unacceptable. 9. The fact that the funded service provider has not done their job, and that those in The Secretary with power to do so did not address this properly, does not change the circumstances of the parents as I find them. 10. The children's safety, welfare, and well-being, has to date, been secondary to what the parents needed. That is not the law and that is not my task. The children come first. 11. On my view, the evidence is that the parents are not likely to be able to satisfactorily address the issues that led to the removal of the children from their care. The risk of the children being restored to the parents is an unacceptable risk of harm, which cannot be mitigated by any other order intervention undertaking, or proposal. 12. Therefore, I do not accept The Secretary's assessment that restoration is realistic. 13. In exercising my own judgment, I have considered the basis upon how The Secretary reached their conclusions, the evidence of the parents, from which I have made my own observations, and the totality of the evidence, to have formed this view. 14. Having made that finding, I now turn to a consideration for a proposed long-term placement and, whether or not, that placement addresses the issue of permanency planning. Permanency planning 1. The children are placed with the maternal grandmother. The Secretary's evidence is that in this placement, the children, and the maternal grandmother are not properly supported. There are concerns about what is said about the parents and how the maternal grandmother treats the children. I need further evidence about that placement, including the authorisation assessments. 2. The Secretary needs to provide a Care Plan that includes the assessment of the maternal grandmother. The proposed contact must be mindful of the purposes of contact, support the placement, and consider each of the children's needs, individually, and place their needs first. Orders 1. Formally, the orders I make are as follows: 1. A finding that there is no realistic possibility of restoration of the children to the mother or the father. 2. I direct The Secretary to file and serve a Care Plan and a Minute of Care Order, consistent with this decision, that provides for parental responsibility to the Minister until they are 18. 3. It is to provide details of The Secretary's proposed long-term placement and proposals for contact, that is in the children's best interests and supports the placement. 4. I request The Secretary give urgent consideration for taking back case management of the children. 5. The Secretary is to file and serve an affidavit setting out who will be having ongoing case management for the children and why that is in their best interests. 6. I will order a transcript of today's decision. 7. I will direct the registrar of this Court, write to the Executive Director responsible for the Ballina CSC, upon receipt of the transcript. 8. The correspondence is to provide a copy of the transcript and request the Director review the transcript, this matter, the conduct of the funded service provider, and the lack of action by The Secretary, once aware of deficiencies with the funded service provider. 9. The director is requested to acknowledge receipt of the correspondence and advise of her response to the request for review. ********** 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: 18 August 2023