Department of Communities and Justice (DCJ) and the Yarran Taylor Children [2024] NSWChC 3
NSW Caselaw
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Children's Court
New South Wales
Medium Neutral Citation: Department of Communities and Justice (DCJ) and the Yarran Taylor Children [2024] NSWChC 3
Hearing dates: 4 and 31 July, 1 and 8 August, 26 and 27 September, 4, 20 and 23 October, 21 and 28 November 2023.
19, 29 and 30 January 2024.
Decision date: 03 April 2024
Jurisdiction: Care and protection
Before: Children's Magistrate Ford
Decision: (1) A finding that there is a realistic possibility of restoration of the children to the mother and the father jointly.
(2) A finding pursuant to section 79(10) that special circumstances exist.
(3) A finding that permanency planning is not appropriately and adequately addressed.
(4) I direct the secretary to file and serve a care plan and a Minute of Care order, consistent with this decision, and in accordance with Annexure "A" in the ILR submissions by 2 May 2024.
(5) I request this written decision is brought to the attention of the Executive District Director for Northern Region and the Secretary Mr Michael Tidball.
(6) I request the Executive District Director for Northern Region and the Secretary Mr Michael Tidball be asked to consider my request that Secretary retain case management.
Catchwords: CHILD WELFARE — Care proceedings — Care order — Variation of care order — Realistic possibility of restoration — Section 79(10) special circumstances — Permanency planning not adequately addressed — Minute of Care order — Request that the decision is brought to the attention of Executive District Director — Request that the decision is brought to the attention of the Secretary
Legislation Cited: Children and Young Persons (Care & Protection) Act 1998 (NSW)
The Children and Young Persons (Care and Protection) Amendment (Family is Culture) Act 2022 (NSW)
Cases Cited: Department of Communities and Justice (DCJ) and Janet and Xing-fu [2022] NSWChC 7
Department of Communities and Justice (DCJ) and Bloom [2021] NSWChC 2
M v M [1988] HCA 68
Isles & Nelissen [2022] FedCFamC1A 97
Secretary of the Department of Communities and Justice and Fiona Farmer [2019] NSWChC 5
Texts Cited: Family is Culture Review Report 2019
Model Litigant Policy for Civil Litigation (adopted 26 June 2016)
Category: Principal judgment
Parties: Secretary, Department of Communities and Justice
Lois Yarran (Mother)
Neville Taylor (Father)
Representation: Mr Z for the Secretary on 4 July 2023
Ms Y as ILR on 4 July 2023
Mr Reid for the Secretary from 31 July onwards
Ms Goodacre as ILR from 31 July onwards
Ms De Re for the father
Ms Bennett for the mother
File Number(s): 2022/00125813
Publication restriction: Pseudonyms have been used to protect the identity of the children, family members and legal representatives.
JUDGMENT
1. These proceedings concern four children,
1. Ray Taylor ("Ray"), now aged 6 years;
2. Marlee Yarran-Taylor ("Marlee"), now aged 4 years;
3. Bindi Yarran-Taylor ("Bindi"), now aged 3 years;
4. Tarni Yarran-Taylor ("Tarni"), now aged 2 years.
1. The children are Aboriginal.
2. The children's mother is Lois Yarran ("the mother") currently aged 41. The mother is a proud Aboriginal woman.
3. The children's father is Neville Taylor ("the father") currently aged 43. The father is a proud Aboriginal man.
4. During the proceedings the parents welcomed their fifth child together, Nyree ("Nyree").
5. The parents have been in a relationship since 2005. Both the mother and father have adult children from previous relationships.
6. The parties and I have had the benefit of transcripts from the hearing days, and I have received and considered the written submission from each of the parties.
7. I have had the benefit of reading and considering the material filed by each of the parties identified as the exhibits as well as the material tendered as exhibits.
8. I have also had the benefit of observing the witnesses from the Secretary and the parents giving evidence and being cross examined as the matter proceeded and observing their demeanour.
9. In giving this decision and my reasons for it, I do not purport to summarise all the evidence but refer to it only in such detail as appears warranted by its forensic significance and the interests of narrative clarity. The absence of reference to any particular aspect of the evidence does not imply that it has not been considered.
10. These proceedings commenced by way of Initiating Application filed by the Secretary of the Department of Communities and Justice ("the Secretary") on 20 April 2022 pursuant to section 61(2) of the Children and Young Persons (Care & Protection) Act 1998 ("the Act"). That application incorrectly identified Marlee and Bindi's dates of birth.
11. The Application also failed to identify that Ray had been subject to prior proceedings that were commenced by the Secretary in 2018. The Secretary's case was that the children were in need of care and protection pursuant to sections 71(1)(d) and 71(1)(e).
12. An Amended Initiating Application was filed in these current proceedings on 4 May 2022.
13. The Secretary has entered into a contractual, commercial arrangement, with a funded service provider ("the FSP"), that has held case management responsibility since 5 May 2022.
14. I do not have any evidence of the terms of that contractual relationship.
15. I have real concerns about the conduct of both the FSP and the Secretary regarding the exercise of parental and care responsibility, case management and their conduct of these proceedings.
16. The Model Litigant Policy for Civil Litigation recognises that one of the obligations of the model litigant is to not cause unnecessary delay in litigation. The Secretary is obliged to be the model litigant. That was not the case in these proceedings.
17. I am concerned about the care arrangements for the children and the harm those arrangements have caused. All of the children have been living in arrangements that do not meet their needs and have caused them harm.
18. Ray was five years old when in May 2023 he was placed in an alternative care arrangement ("ACA"). The benignly called ACA involved him living in a serviced apartment with a roster of workers also in the apartment.
19. Ray has had a particularly distressing experience in care. On my analysis of the evidence, he has had in excess of 100 adults acting as care giver to him.
20. On 5 October 2023 all four children were placed together in a house with a roster of the FSP workers. It is described as a house parent model.
Background
1. Ray had previously been restored to his parents care pursuant to Children's Court of NSW orders made in Lismore on 19 June 2019. Those proceedings commenced in September 2018 and the Care Plan that was approved was filed 14 June 2019.
2. Ray returned to his parent's care in mid-October 2019 with case management support for the restoration provided by the FSP.
3. At the time of removal Ray was 14 months old, spending 13 months in out of home care, being restored at the age of 2 years and 3 months. The child protection issues in those proceedings were identified as the parent's drug use, domestic and family violence, unstable housing and parenting incapacity.
4. The child protection issues identified by the Secretary in these current proceedings are the parents drug use, domestic and family violence, unstable housing, parenting incapacity, and the father's inability to engage appropriately with support and health services.
5. The ages of the children at the time of removal from their parent's care in these proceedings were:
1. Ray was 4 years and 9 months old; and
2. Marlee was 2 years and 4 months old; and
3. Bindi was 1 year and 6 months old; and
4. Tarni was 6 months old.
1. On 4 May 2022 A Summary of Proposed Plan ("SOPP") was filed with the Secretary assessing at that time restoration to the parents was realistic within a reasonable time frame if each parent demonstrated an ability and willingness:
1. To work with and follow the reasonable treatment directions of DCJ or any funded service provider, ensuring they attended meetings and appointments as scheduled, communicate with DCJ as to variations to scheduled appointments.
2. Attend a period of time in detoxification, at Riverlands, the Buttery or another drug detoxification facilitate or centre, followed by attendance at a residential drug rehabilitation service for a period of 12 months or a period of time as recommended by the service provider, to be followed by a further period of rehabilitation in the community as recommended by the rehabilitation provider, and to submit to drug testing as requested by DCJ or their funded service provider to demonstrate abstinence from drug use.
3. To continue with drug and alcohol counselling for 12 months or a period of time as recommended by their counselling service.
4. Attend relationship counselling though an accredited service for a period of 12 months or a period of time as recommended by the service to demonstrate changes, showing they can live with no violence related to police events or presentations to the hospital due to violence for a period of 12 months.
5. Obtain and maintain suitable accommodation for a further 12 months, actively showing engagement with housing services and consistently maintaining a safe, hygienic home, evidenced by home visits.
6. Attend parenting courses such as Circle of Security and other parenting courses recommended by the caseworker or support services, demonstrating knowledge gained, and responsibility for, the child protection concerns for the children, and any behaviours or issues that may arise for the children as they develop. These skills and attributes would be demonstrated by successful completion of the parenting courses, management of the children at contact, and through reasonable recommendations of contact supervisors.
1. On 5 May 2022 the Court made an Interim Order of parental responsibility to the Minister until further order.
2. On 9 June 2022 by consent and without admissions the Court made a finding that the children were in need of care and protection and the matter was referred to a dispute resolution conference.
3. A Children's Court Clinic report was ordered, prepared and released. Care plans were ordered to be filed by 20 February 2023.
4. The Children's Court Clinic provided an assessment report by Dr O dated 2 December 2022 in which restoration of the children to their parents was not recommended. She recommended the children be kept together preferably in a kinship placement, and if unable to remain together, that a separate placement for Ray be sourced to permit him to receive specialised care and healing.
5. Care Plans for the children were filed on 21 February 2023, wherein the Secretary had assessed restoration of the children to the parent's care was realistic contrary to the recommendations of the Children's Court Clinic Assessor, Dr O. There was one paragraph explaining why the report's recommendations were rejected and it did not mention the word risk. The Secretary had not filed any other evidence to explain his assessment.
6. Final orders sought were for parental responsibility be allocated to the Minister of Families, Communities and Disability Services for a period of 2 years and thereafter to the parents jointly, that the children be subject to a supervision order for an unspecified amount of time (it is thought the Secretary may have meant 2 years) given the proposed Minutes included in the Care Plans respectively speak of section 76(4) reports being filed with the Court at 5 months, 11 months, 17 months and 23 months after the commencement of the supervision orders.
7. The Secretary also sought final orders for the Court to accept undertakings from the parents for a period specified in the undertakings, however no undertakings were provided within the Care Plans for consideration of this proposed final order.
8. The Independent Legal Representative at the time, did not concur with the recommendation made by the Secretary in the Care Plans filed 21 February 2023 and the matter was ultimately listed for hearing on 4 July 2023.
Orders Sought
1. The Secretary's position is that he seeks orders that provide for 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 with undertakings.
2. The Secretary has made an assessment that there is a realistic possibility of restoration of the children to their mother and father. The Secretary relied on an amended Care Plan that was filed on 23 October 2023.
3. The Secretary has addressed me, in detailed written submissions about the evidence I would have regard to when determining whether restoration is realistic or not. The Secretary conceded in submissions that further amended care plans would be required to address permanency planning.
4. The parents are united in their position that the children should be restored over two years and the parents, both the mother and father's submissions, point to the things that have changed and they endorse the Secretary's submission.
5. The Independent Legal Representative ("ILR") for the children has provided carefully considered, detailed and thorough submissions. The ILR's submissions carefully and objectively assess the evidence and those parts of the evidence that would give cause for concern and those that may lead to the Court ultimately restoring the children.
6. Those submissions propose a way forward under s 79AA of the Act if the Court is persuaded to restore that would provide for the Secretary to have parental responsibility for three years whilst restoration occurs.
7. The ILR highlights her concerns about the conduct of the Secretary and the FSP which impact on the children and the Court shares all of her concerns.
8. The ILR presents a balanced view of the evidence for the Court's consideration and the possible options flowing from that evidence.
9. The Court is indebted to her for those submissions and the exemplary manner in which she represented the children.
History of Proceedings
1. The hearing of this matter has taken longer than necessary, and the delay has caused harm to both the children and the parents.
2. The delay was due to a variety of factors some of which were beyond the Court and the parties control. There are some factors however which require comment.
3. The first is that on the first day of hearing on 4 July 2023 I had reason to call for the Court's file for the 2018 proceedings relating to Ray. Remarkably no party had required that earlier.
4. When the file was obtained, I identified that, the Independent Legal Representative, Ms Y, had represented the Secretary in the original proceedings relating to Ray in 2018, and Mr Z, the legal representative for the Secretary had acted as the Independent Legal Representative for Ray in those proceedings.
5. No proper explanation was offered as to how this could have occurred.
6. Ms Y appeared for the Secretary throughout the 2018/2019 proceedings. She appeared for Ray and his siblings since the commencement of these current proceedings.
7. Mr Z appeared for Ray in the 2018 proceedings. He first appeared in these proceedings on 8 September 2022 as agent for an inhouse legal representative. He next appeared on 27 March 2023 as the solicitor for the Secretary and thereafter.
8. It remains a matter of concern to the Court that the respective legal practitioners did not identify this obvious conflict earlier and it was a contributing factor to the delay of these proceedings.
9. The matter was adjourned for this conflict to be addressed by new legal representatives being engaged.
10. This event meant the hearing dates of 5 and 6 July 2023 were vacated, and the matter was not ready to proceed to hearing until 31 July and further dates needed to be found and allocated, some four months after the Court originally listed it for hearing.
11. Another contributing factor was the non-compliance by the Secretary with court orders for the filing of material. The ILR and the legal representatives for the parents raised this a number of times, of material not being filed or being filed so close to the next court date, that they could not properly prepare the matter.
12. The criticism I make is of the Secretary and the instructions they provided to their legal representative and not of their legal representative, who was clearly doing all she could to ensure her client complied with court orders and directions.
13. The conduct of the Secretary was such that time and time again court orders were not complied with. A prejudice that could only be cured with further adjournments. On more than once occasion witness' evidence could not be completed as they hadn't been served with material in a timely manner that they were about to be cross examined on. The ILR in submissions has recounted at least ten examples of non-compliance by the Secretary.
14. Although some explanations were given, I was never provided with adequate nor acceptable explanations. Some directions were partially complied with. Some there was eventual but delayed compliance. Some were never complied with such as Mr L's notes being served.
15. The documents relevant to the children and my determination are voluminous. The size of documents that were served late exacerbated the disadvantage all parties were place in.
16. Two things became clear, the Secretary was on some occasions waiting for the FSP to provide documents. Although the caseworker and manager from the FSP were in court routinely and I expressed clearly the need for court orders and directions to be complied with, it simply didn't occur.
17. Secondly there were periods when the casework manager for the Secretary was on unplanned leave for weeks at a time, and it appeared that if she was away nothing happened. Additionally, it seems her access to proper office administration resources was limited by the Secretary's current office arrangement in the Northern Rivers.
Issue for determination
1. The first issue for determination is 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.
2. I am to have regard to the principles contained in sections 11 and 12 of the Act, which refer to self-determination of and participation in decision making of Aboriginal and Torres Strait Islander family and communities. The Children and Young Persons (Care and Protection) Amendment (Family is Culture) Act 2022 (NSW) brought the introduction of section 12A, giving five elements of the Aboriginal and Torres Strait Islander child and young person's principle. In every decision made for these children, those elements must be considered.
3. Turning to the law and the applicable legal framework. The former President of the Children's Court, Judge Peter Johnstone, published a decision which sets out a comprehensive summary of the legal principles to be applied in care proceedings. In that case, the Secretary of the Department of Communities and Justice and Fiona Farmer [2019] NSWChC 5, the President was deciding whether restoration was a realistic possibility.
4. Those principles are set out in paragraphs 58 through to 109 and are incorporated into this decision, subject to the following comments.
5. In deciding if I accept the Secretary's assessment, The Children and Young Persons (Care and Protection) Act 1998, section 83(7) provides that I must not make a final care order, unless I expressly find:
1. The permanency planning for the child, or young person, has been appropriately and adequately addressed, and
2. 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
1. the circumstances of the child or young person, and
2. 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. Section 79(9) of the Care Act provides:
The maximum period for which an order under subsection (1)(b) may allocate all aspects of parental responsibility to the Minister following the Court's approval of a permanency plan involving restoration, guardianship or adoption, is 24 months.
1. The ILR submits that I should give consideration to section 79(10) of the Care Act which states:
Subsection (9) does not apply if the Children's Court is satisfied that there are special circumstances that warrant the allocation being for a longer period.
1. Section 79AA provides that special circumstances that warrant allocation of parental responsibilities to Minister for more than 24 months:
1. This section applies if the Children's Court is deciding, under section 79(10), whether or not there are special circumstances that warrant the allocation of parental responsibility to the Minister for a period of more than 24 months.
2. Without limiting the matters to which the Children's Court may have regard in making its decision, the Court may have regard to the following—
1. whether support services and other resources that are reasonably required to support the restoration of the child or young person to the child's or young person's parents are available to the parents,
2. if the services and other resources mentioned in paragraph (a) are not available at the time the Court is making its decision—whether a longer period of allocation of parental responsibility to the Minister is needed to facilitate access to the services or other resources,
3. the active efforts made by the Secretary to restore the child or young person to the child's or young person's parents,
4. any other matters prescribed by the regulations.
1. I am guided by the principles and objectives of the Act, as well as the Permanent Placement Principles (section 10A), the Aboriginal and Torres Strait Islander child and young person principle (section 12A), the Aboriginal and Torres Strait Islander Child Placement Principles (section 13), and the permanency planning provisions of the legislation (sections 78A and 83).
2. The law regarding the concept of realistic possibility of restoration has also been the subject of a decision of Children's Magistrate Hayes, Department of Communities and Justice (DCJ) and Janet and Xing-fu [2022] NSWChC 7.
3. His Honour, in that decision, 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 his Honour, 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 a coherent program, already commenced with some significant runs on the board, or, by the development of and commitment to a cohesive and viable plan, that is sensible, practicable, and viable, within a reasonable time.
2. I am, of course, always guided by the concept of unacceptable risk in all decision making. And turning to that concept, the High Court decision of M v M [1988] HCA 68 is considered the leading authority regarding unacceptable risk.
3. I have also had regard to the appellate decision in the Family Law jurisdiction, Isles & Nelissen [2022] FedCFamC1A 97 which I will refer to as Isles.
4. 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 paragraph 7:
"M and 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."
1. Such risks, like all prospective events, are capable of classification and only one of three mutually exclusive categories, possibilities, probabilities, or certainties.
2. 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.
3. Risks of harm are not susceptible of scientific demonstration of proof. But are instead, "postulated from known historical facts and present circumstances".
4. In Isles, at p 50, reference is made to p 139 of the Fitzwater decision of Justice Austin. In that, he 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 ignored, 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. So, the question to be determined, 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, His Honour, Children's Magistrate Hayes, considered the law, with respect to unacceptable risk, in light of the appellate decision of Isles. He does so at p 143 and p 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. My task is to apply the law to the facts and the circumstances found.
SUMMARY OF EVIDENCE
Father Neville Taylor
1. The father filed a number of affidavits and gave oral evidence over a number of days.
2. The father displayed in the courtroom and when giving evidence his distress in response to these proceedings and the circumstances of the children. He is right to be distressed and concerned about the circumstances of his children since they have been in the parental responsibility of the Minister.
3. The father would regularly need to leave the court room and have his various support people accompany him, for him to have a break and assist him to self-regulate.
4. The father's conduct in the courtroom was of someone who was agitated and at times needed support and assistance to self-regulate. That conduct raises concerns generally about the level of support required to self-regulate but also demonstrates the father's ability to recognise he needed to remove himself from a situation.
5. The father's position was that there were interactions with others in the community or related to these proceedings where his words and actions have been misunderstood. What is seen as aggression is actually passion.
6. I reject any suggestion that the aggression the father has at times showed towards people is justifiable or as a consequence of other's actions or misinterpretation of the father. The father alone is responsible for his behaviour.
7. That is not to say the father's concerns about his children's circumstances are not valid. Indeed, I am troubled on so many aspects about the children's circumstances and have formed the view the Secretary has not only failed to protect the children from harm but has caused harm to the children.
Domestic Violence and Alcohol
1. The father has a long history of perpetrating domestic violence and using drugs and alcohol, which he acknowledged.
2. His evidence in relation to domestic violence is of concern. He was adamant that since the last time he was in jail and left in 2015 there has not been physical violence by him towards the mother and therefore the children have never been exposed to him being physically violent towards their mother.
3. Although he conceded that there has been arguing and yelling in their relationship that would be considered domestic violence. Including fighting that Ray would have been exposed to.
4. The father spoke of his upbringing and being exposed to seeing violence used towards women. He spoke of his shame of using violence towards the mother.
5. He could speak of drugs and alcohol being present when domestic violence occurred and seem to hold the view they were the cause of his violence. In my view he did not take ownership of this past physical violence.
6. I have great difficulty with his evidence given the police material tendered. The father could not speak to what had occurred that had caused him to no longer use violence save for not using drugs. However, the reality is since 2015 the father had used drugs and alcohol again and there has been convictions for domestic violence matters.
7. The father has a criminal history which includes numerous domestic violence convictions including a period of incarceration for a physical assault on the mother where he broke her jaw.
8. It is recorded in the Ballina District Hospital Discharge Summary dated 29 September 2012 that the mother was involved in a domestic violence incident "partner punch her in face, now unable to bite together, unable to manage own saliva, swelling to R side of face pt is intoxicated and vomiting … obvious swelling over neck of mandible ….*pt unable to open mouth sufficiently to examine back teeth" .
9. There are police COPS entries where neighbours reported a physical assault between the parents in March of 2022, just prior to the removal of the children. What was reported bears a similar pattern to an incident that occurred on 23 May 2023.
10. On 23 May 2023 the father drank over a lengthy period of time, the parties argued, the mother kicked the father, and she was charged with assault. She threw a mop handle that damaged her car. She called the police as the father was in breach of the apprehended violence order ("AVO") protecting her because he had consumed alcohol.
11. The mother plead guilty to the common assault and was sentenced to a conditional release order without conviction for 13 months.
12. The father plead guilty to contravening the apprehended domestic violence order, he engage in circle sentencing, in which he received a Community Corrections Order from 7 July 2023 to 6 June 2025. The ADVO for the mother's protection from him extended to that time. The father is to report to probation and parole every 2 weeks.
13. Although the father told the court he stopped drinking when he left jail in 2015. He concedes he continued to drink at funerals. The parent's evidence was conflicting about what they were doing in Nimbin on 23 May 2023, and I formed the view neither were being entirely frank about that day.
14. The father sought to downplay how much he drank which was at odds with the police material about how intoxicated he was.
15. What is clear is father in the middle of these proceedings chose to drink alcohol, the mother asked him to stop. He didn't listen, they argued to the point she kicked him and threw a mop handle that hit her car and damaged it. He then continued drinking. In order to avoid an escalation, the mother called the police, and the father was charged with breaching the AVO.
16. Both parents concede they made a mistake and should have made other decisions. Although in my view the father downplays this relapse. The father has acknowledged that he cannot drink and must take care not to put himself in that position if attending a funeral.
17. The Secretary and the FSP did not seem concerned by this event and did not seek to obtain relevant police material. They focussed only on the positive that the parents were upfront with them. It is to the parents' credit that they informed the Secretary and the FSP of this event. However, there were a number of details including the mother's actions that the parents did not disclose.
18. There was an early and similar event in February 2023 where the police records report the father drinking at a funeral. The father accepts that occurred but denies any reference in the police material to him using the drug Ice. He notes that he was completing hair follicle tests at this time which came back clear.
19. The court accepts the hair follicle testing is persuasive evidence regarding his drug use.
20. There has been an abject failure by the Secretary and the FSP to properly engage the father in an appropriate and accredited Men's Behaviour Change program that was identified as necessary in the SOPP.
Service Engagement
1. Since proceedings commenced the father has engaged with a number of services some of which were very short lived such as Lives Lived Well.
2. The father has primarily been engaged with support from a service called "The support service". He has seen a number of counsellors from there, two of whom identify as Behavioural Change Therapists. As well as a third counsellor, there are no details provided as to identification or qualifications of the third counsellor.
3. Commencing May 2022 there were joint counselling sessions with the mother with Mr L of the FSP.
4. The father's evidence was unclear about his attendance at Narcotics Anonymous meetings, he was attending weekly but how frequently after July was unclear.
5. Part way through the hearing the father said he commenced seeing a Mr H for behaviour change from about September 2023 for possibly four or five sessions. Save for the father's self-reporting of this there was no other evidence. Notwithstanding this the Secretary relies upon this fact to support the assessment that restoration is realistic.
6. Some of the hearing focused on the father's engagement with a caseworker Ms D who left the employ of the FSP prior to the hearing commencing. Ms D had filed a number of affidavits evidencing her engagement with the father that she described as aggressive and frightening such that the FSP wrote to him and advised him all communication was to be in writing.
7. Ms F was her manager and gave evidence that, Ms D left the FSP as performance management of her was commencing; her standard of work was not satisfactory, there was poor record keeping and that her manner of communication was direct. However, Ms F believed Ms D to be an experienced caseworker having previously been employed by DCJ.
8. Ms D was not called or subpoenaed by anyone to give evidence. Accepting Ms F's evidence there are real issues regarding the FSP's case management and engagement with both the mother and father. This however doesn't not mean that the father's behaviour was acceptable. Ms F described the father's calls to Ms F as unrelenting.
Father's concerns about children's circumstances
1. The father spoke of pain and suffering in relation to the children's circumstances and that his concerns were not being addressed. Those concerns include:
1. The placement of Ray alone in a serviced apartment with multiple and inconsistent workers;
2. Ray having partial days at school and spending the rest of the time in a serviced apartment;
3. A lack of consistency in care and routine for Ray, both in the ACA and at family time;
4. That the ACA workers would call the father to assist with Ray's care and suggest that should not be recorded anywhere;
5. The number of placements the children have had is in excess of 60;
6. The quality of care that Tarni was receiving in an authorised foster placement;
7. That he has raised Ray's teeth had holes that needed addressing in 2022 and they were still not addressed;
8. There was a lack of support in responding to the children's questions about why they weren't at home;
9. That not all information about the children been conveyed to the parents;
10. That in the house parent model they were not feeding the children properly and Ray was losing weight.
1. His concerns were more than reasonable and appropriate to raise.
Father's evidence regarding his mental health
1. The father has acknowledged suffering from a drug induced psychosis and failing to follow treatment.
2. The father says he has been diagnosed by psychiatrist Dr J with Attention Deficit Hyperactivity Disorder ("ADHD") and Post-Traumatic Stress Disorder ("PTSD") He attached the notes from a consultation with Dr J. Those notes are unclear about the father's diagnosis and although they refer to PTSD as the reason for his visit. The father's diagnosis is recorded as ADHD combined presentation.
3. Dr O was clear the father and the Secretary would be assisted by further information and clarification from Dr J.
4. The Court is concerned that notwithstanding his understanding that he has a diagnosis of PTSD the father appears to not accept that he needs to engage in treatment for this condition, to address the trauma of his life, his upbringing, which on his evidence was traumatic with family and domestic violence, alcohol misuse, drug misuse, and neglect.
Fathers progress
1. The father has made progress and there is evidence of that progress as follows:
1. He has acknowledged those family who are not positive influences and has reduced contact with those people;
2. He acknowledged the first restoration felt like box ticking. He could acknowledge his role in why the children were removed;
3. He has found and maintained stable accommodation. He has been able to source employment;
4. Since proceedings commenced, he has returned negative drug test results except for the first hair drug test he undertook which showed methadone, which he disclosed as self-medicating with during his detoxification;
5. He has last reported using alcohol and an incidence of violence in May 2023;
6. He could speak about his relapse plan and supports. He has a network of support from The support service;
7. He has been able to attend the hospital and the children's medical appointments;
8. He is able to recognise the need for space to self-regulate;
9. He is keen and willing for there to be oversight by the Secretary and further drug and alcohol testing for 4 years;
10. He has demonstrated some insight into the forms of domestic violence other than physical violence. He could explain the impact of violence on children. He has taken steps to engage with Mr H to see a men's behaviour change specialist during the course of proceedings;
11. He is committed to the children and their medical needs although he did not accept all of their diagnoses;
12. He has been able to have positive relationship with most of departmental caseworker and the FSP staff;
13. He has a deep connection with culture and is passing that on to his children, in particular Ray. He uses those cultural connections to manage Ray's behaviour.
1. The father's progress needs to be balanced against his use of alcohol after the children were removed and after the Secretary assessed restoration as realistic. He has limited insight into domestic violence, and I will make further comment about the assistance he should have been provided in that regard.
Mother Lois Yarran
1. The mother filed a number of affidavits and gave evidence over a number of days. She was heavily pregnant when giving evidence, though that fact did not impact my assessment of her evidence.
2. There is no evidence that the mother suffers from any mental health diagnosis.
3. She has a limited support network as a result of tenuous and fractured family relationships, which in part can be attributed to a desire to avoid negative influences.
4. She spoke of her upbringing where she was exposed to family violence and wanting a better life for both her and the children.
5. She acknowledged she and the father have a long-standing history of drug and alcohol use including when she was pregnant with Ray.
6. She says she gave up drugs when discovering she was pregnant with Ray and did not relapse for 3 years. This seemingly doesn't acknowledge the drug use that occurred when Ray was removed in 2018.
7. She attended a 2-week detoxification program in June 2022 and thereafter has had regular drug and alcohol counselling with Aunty Rhonda at The support service, whom she views as a great support. Aunty Rhonda is a counsellor and there is evidence of her engagement with the mother.
8. The mother could speak to her relapse prevention plan and the importance of attending narcotics anonymous meetings frequently and how recovery is ongoing. Although it is unclear how often she was attending meetings at the time of hearing.
9. There is no satisfactory evidence of either her or the father attending trauma counselling.
Family Violence
1. There can be great shame being the victim of someone else's choice to use violence against you and I have considered that when assessing the mother's evidence.
2. The mother was unable to acknowledge what in my mind are indisputable facts, that in 2012 the father broke her jaw, she received medical treatment for that, and the father was charged and sentenced to a term of imprisonment as a result.
3. The mother's evidence in relation to family violence is of concern. I formed the view she was not being entirely upfront when giving evidence and I remain concerned that she may not be truthful with services if she was to be the victim of domestic violence perpetrated by the father.
4. Her evidence was the father has changed and that there has been no physical violence since Ray was born noting that was when they gave up drugs. In circumstances where there has been further drug use and the father's criminal history tells a different story it is hard to accept her evidence when she cannot acknowledge the serious violence in 2012.
5. The mother viewed the parent's relationship as toxic and that she also perpetrated violence. She did not recognise the obvious power imbalance and control. Although she could speak about different types of domestic violence her understanding was superficial. She sought to explain the domestic violence by drug use.
6. Although it was the mother who was charged with assault as result of the events of 23 May 2023, it was the mother who called the police. She did so because she was concerned the father would escalate and that is telling.
Mother's concerns about the children
1. The mother spoke lovingly of her children and her concerns about their current circumstance which included:
1. That Ray has lost weight;
2. There was no consistency in the children's workers;
3. There was no support from caseworkers about how to respond to the children's questions about when they will come home;
4. That she hadn't seen Ray's behavioural support plan;
5. That she had to be the one to suggest to workers that they should use pictures to support Ray to cope with change;
6. That Ray has not been administered his medication properly by staff, including the time when he was given Catapres during the day when family time was to occur. (Noting Catapres is a nighttime medication to assist with sleep.)
Parenting
1. The mother has commenced a number of parenting courses. She could speak to what she had learnt and how she had applied that to her parenting when with the children.
2. She could describe clearly how to settle Ray and teach him to self-soothe.
3. She is focussed on Ray's health and behavioural needs and is supportive of the children accessing counselling and health services. She spoke lovingly of Ray and his strengths.
4. The mother found it hard to contemplate the restoration of the children might be overwhelming with a new baby at home and to acknowledge the challenges the children's behaviour might present. Both she and the father had a naive and unrealistic view that returning to their parent's care would resolve many of the children's behavioural and emotional challenges.
5. She accepted there were times during family time where she snapped at the father and that it was stressful being watched all the time.
6. The mother could articulate the plan for the children's care when home.
7. Since falling pregnant she has been working with the family preservation service and with a women's health service.
8. I am concerned that the parents are not realistically prepared for the parenting of their children all of whom have complex behaviours.
Secretary's Evidence
1. The Secretary relied upon evidence provided by Dr O, Ms R, Mr L, M F, Ms V, and Ms N to support the position that the Court should find there is a realistic possibility the children can be restored to the care of their parents, jointly.
Dr O Children's Court Clinician
1. Dr O is an experienced Children's Court clinician. She is a clinical psychologist who has 17 years' experience working with children and families. No challenge was made to her expertise.
2. I found Dr O 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.
3. 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.
4. Dr O's report was dated 2 December 2022. Her recommendations, as at that time, were the children should not be restored.
5. She gave evidence over 2 different days and in between giving evidence the children's placements had moved and they were living in the house parent model.
6. On the first day of her evidence after receiving updating material she opined that restoration was a possibility with continued positive progress of the parents. However, she could not make more detailed recommendations without a further assessment.
7. She acknowledged and identified the strengths of the parents whilst also recognising the risks.
8. The risks included:
1. There is a pattern of positive engagement, yet the father still holds unhealthy beliefs about domestic violence;
2. The lack of insight into domestic violence by the father;
3. The May 2023 incident when the parents were not engaged with services. That it is troubling in that it occurred at a time where the parents didn't have the demands of parenthood. Although relapse can be expected it has to be considered from the child's perspective;
4. There is still some externalising of responsibility by parents notwithstanding some good work;
5. To manage those risks the attendance of the parents at AA and NA meetings is important.
1. Dr O's evidence can be summarised as follows:
1. She opined the father's diagnosis of PTSD and ADHD are not causes of his violence. She said more information from his psychiatrist would be of assistance.
2. She observed the father during her interviews with the parents to be argumentative and belittling towards the mother and he walked out when challenged by the clinician.
3. It would be devasting for restoration to fail and the children and parents needed to be set up for it to succeed and as such restoration needs to be carefully planned.
4. The options for the children's long-term placement being presented to the Court for the children are not in their interest.
5. The children have been exposed to trauma both in OOHC and in parents care.
6. Her written report in December 2022 made a recommendation for the children to have NDIS plans. I note those plans did not eventuate until late 2023 and there is no acceptable explanation for that delay.
7. She raised concerns that the parent's therapists weren't aware what was happening and was concerned about the proper exchange of information. She observed the out of home care system needs to be the lead on information sharing.
8. The best practice for domestic violence counselling involves individual counselling. It is extremely important that the counselling focuses on power and control not communication. Domestic violence is an unhealthy dynamic and violent interaction. It is a conflict of interest for a counsellor to provide counselling to parents and their child.
9. She reluctantly accepted that the house parent model could be used for restoration, but her evidence was that it should not be a long-term placement option. She was clear it was not developmentally appropriate or acceptable. She expressed a view if sibling separation was required to find one consistent care giver that is preferable to a roster of workers.
10. She described how an ACA doesn't meet a child's attachment needs and the trajectory for that child's future is harm which can lead to mental health disorder, poor physical health and interaction with the criminal justice system.
11. She noted the broadcasts for carers wasn't specific to the children's needs and challenges.
12. Although the siblings are placed together, they may need to be separated to keep them safe.
13. There needs to be a meeting with the parents and carers about consistency and clear separation procedures. Everyone should know as much as possible about the children. There is no evidence that meeting occurred.
14. The impact on children of exposure to domestic violence can include delays in speech, language and cognition.
15. She highlighted that it is possible Ray has foetal alcohol spectrum disorder, but he would need to be assessed, he has special needs and he needs more than good enough parenting.
Mr L
1. Mr L gave evidence on 2 different days. He filed one affidavit and was a consistent support for the father attending court on nearly every hearing day and assisting the parents with travel to court.
2. Mr L has a Bachelor of Counselling and a Graduate Certificate in criminology and has completed training on domestic violence and completed numerous short courses.
3. He described his position as a clinician with the FSP. It remains unclear to me what that word clinician is meant to convey about his role.
4. Mr L's evidence is relied upon by the Secretary as proof of the work the parents have undertaken in relation to domestic violence and in addressing the SOPP tasks. He made a number of general statements about the parents' positive progress in this area.
5. Mr L had previously worked with the parents in 2019 and said very similar positive things about the parents in 2019 as he did in these proceedings.
6. When he gave evidence on 4 July 2023, he was keen to portray the parents progress in a positive light. He described meeting the parents together in their home on a weekly basis and providing them with counselling and couples work relating to anger management.
7. In evidence on 1 August 2023 Mr L confirmed in cross examination that the parents had not worked with him from 21 March 2023 until 6 June 2023 and that they had not yet completed a 12-week program that had commenced almost 12 months ago.
8. There are a number of difficulties with his evidence. He was, when giving evidence in my assessment, an advocate for the parents. He would not concede that if he obtained further information about events, that it was possible that could change his opinion of the parents' evidence. He described the fathers drinking and events that followed in May 2023 as a small hiccup.
9. Mr L did not provide the Court details about the gap in the parents' attendance in early 2023 when being asked by me directly about the frequency of his sessions. It was only under cross examination that he gave evidence about that issue. The failure to volunteer that information gave me an impression about the parents' attendance that was not correct.
10. During the course of the proceedings the parents had an incident where the mother's adult daughter was at their house, she was violent, and the police were called by the parents to have her removed. The father spoke to Mr L about this incident, but it was not disclosed by Mr L.
11. He purported to be providing counselling in relation to domestic violence. I am particularly troubled by his evidence and the manner in which he described domestic violence as being connected to anger management. He said:
"the anger management is more around addressing those emotions that can often lead to incidents of domestic violence"
1. It is hard to understand what the purpose of his engagement with the family was when his evidence was, that he was led by the parents regarding the issues they would work on. Particularly in circumstances where he had little information other than the SOPP and in his words only read Dr O's report briefly. Exactly why so little regard was had to this important piece of evidence is inexplicable.
2. I am also troubled that the work Mr L did with the parents was together and could be more accurately described as relationship counselling. It was not education for the father in relation to domestic violence and behaviour change. Although the Secretary relies on it as evidence of domestic violence counselling and education.
3. There appeared to be no education regarding the cycle and dynamics of family and domestic violence. Mr L did not recognise that his counselling for family and domestic violence counselling was compromised by undertaking all sessions jointly.
4. It is unacceptable that case work management did not identify the need for the priority to be on family and domestic violence counselling for the parents.
5. On 1 August 2023 the Court required Mr L to make his counselling notes available to the Court and the lawyers. This request was not complied with.
6. Mr L's opinion on the parents' progress on issues of family and domestic violence is of little assistance to me. The ILR submits I could give weight to his evidence regarding relationship counselling and emotional regulation. However, I treat his evidence with great caution given my conclusion that he is an advocate for the parents.
7. In evidence through other witness it became evident that Mr L had some type of counselling or behaviour management role with Ray. Consistent with Dr O's opinion I am on the view Mr L had a conflict of interest by doing so.
8. Mr L should not have any responsibility in the future for domestic violence education for the parents.
9. The failure of the Secretary and the FSP to provide targeted and proper domestic violence education to both parents individually is extraordinary. It is likely there is a connection between the parents' lack of progress with respect to domestic violence and this failure.
Ms R
1. Ms R gave evidence over three days, there was almost 6 months between her second day of evidence and her last. She filed one affidavit.
2. Ms R has a Bachelor of Social Welfare.
3. She is a caseworker at the FSP and has had casework responsibility for the children since 29 May 2023. She has over 5 years' experience in the child protection sector.
4. When Ms R gave evidence on 4 July 2023, she had been the caseworker for just over a month. When she gave evidence in January 2024, she had been the caseworker for over 6 months and had the previous experience of being in the witness box and being cross examined.
5. Ms R appears to have developed a good working relationship with the parents immediately upon commencing case work. As well as forming a positive view of the parents' progress in a short time.
6. In July 2023 her evidence can be summarised as:
1. She had taken over from the previous caseworker Ms D, but Ms D had left before she commenced;
2. She hadn't read the material filed by Ms D but had read the FSP file notes. She was given a verbal handover by a manager;
3. She had not read the documents filed in these proceedings, which meant she was not properly apprised of the child protection issues;
4. She described the previous casework as having gaps, and was critical of that caseworkers' negative attitude towards the father;
5. She described some family time workers as heightening the father and that some workers did not respond to her request for more information;
6. At handover the manager told her the incident with the father on 23 May had been addressed. She did not see her role as one of investigation but rather supporting the parents. That meant she was unaware of the mother's action on the 23 May;
7. She confirmed no NDIS application had been made and was arranging for that to happen;
8. She made a referral for the children to see a play therapist and was expecting her to address the children's trauma including separation of siblings and to work with the parents around parenting.
9. She described the ACA for Ray as suitable when compared to multiple placement changes. I note the only stability the ACA provided was that the building in which he was living was consistent.
10. She spoke about the house parent model with hope for it to provide consistent care and healing, but it was a short-term option.
1. Ms R's evidence in August 2023 is summarised as:
1. She was aware of Ray's dental issue;
2. She still had not read of all the documents filed in proceedings because she had a good handover. At that time there were no outstanding tasks for the parents;
3. She described the events of 23 May 2023 as a one off and then said it was significant. There was no casework to suggest it was treated as a serious relapse and incident of violence;
4. In terms of planning for restoration she was hoping the play therapist and court would provide guidance;
5. She was hoping for Ray to go home first;
6. There were not consistent workers in the ACA. There was a different service providing the ACA ("the ACA Service Provider"). It was unclear to me the nature of that service's contractual arrangement and whether it was with the FSP or the Secretary;
7. The parallel planning was for the children to be together in the house parent model.
1. Ms R's evidence in January 2024 confirms her ongoing working relationship with the parents is strong. Her observations and reflection on her engagement with the parents during evidence on 30 January 2024 was that:
1. The parents have their goals, they are no longer blaming other people and have taken ownership;
2. They can reflect back on the challenges of their relationship;
3. They have been able to identify family members that are positive;
4. They are engaged with services;
5. The father's connection to culture is a strength;
6. They attend the children's medical appointments.
1. It is noted the above reflections and observations were unable to be evidenced by Ms R with any file notes of her engagement with the parents when these topics have been discussed.
2. By January 2024 there had been progress in that the children had NDIS plans and Ray had a speech and behaviour specialist.
3. Ms R spoke about the challenges of the house parent model. For reasons that were never properly explained the evidence was the house parents were parenting these children based on their experiences with other children and had not designed the care for the children based on these children's need.
4. Rather they were providing care in response to their experience with another family. This meant the house parents held negative towards the children's parents without knowing the parents and were resistant to building a positive relationship. She said the house was not homely.
5. The house parents restricted the children's access to food and the type of food they could eat without any expert advice on these children's dietary needs. Rather on the basis of their views about sugar. This caused great distress for the parents and the children. Particularly when they observed Ray to lose weight. The evidence was the children were distressed by the restricted diet.
6. Ms R appeared as concerned as the parents and I were about this approach but could not explain to me why the house parents could not be directed to take another approach given they were in the employ of the FSP.
7. Ms R also conceded there was not consistent care and a small number of workers in the home as had been hoped for. In addition, there were between 10-15 different people who would transport the children to family time. She accepted this caused trauma to the children.
8. Ms R then spoke of the children being returned to previous kinship carers once a month, a situation that was described as respite.
9. This meant once a month on a Friday the children would leave the house and for 2 nights stay with previous carers. Carers that had relinquished their care. Whilst there they would be taken by different transport workers to have family time during the day on both Saturday and Sunday.
10. The father has raised concerns about this arrangement and what was occurring at the respite home. I am concerned about the decision to constantly move the children and was not given any cogent rationale for that decision. Particularly in light of the acknowledgment by the FSP that this placement was causing trauma to Ray at every visit.
11. Ms R gave the following evidence about that arrangement:
Q. They knew that they were with B and C--
A. And the children - while Tarni would not understand that being the youngest one, Ray does, so asking him to be put back in, I guess, essentially a trauma pit, fire pit, is incredibly wrong that we're asking him to maintain composure as a six-year-old and not lash out and we lash out as adults to the ones we feel closest to in life and that is his - the only people besides his parents is his siblings.
HER HONOUR
Q. Ms R, did you just describe going back to B and C's as going back to a trauma and fire pit?
A. Yes, I did, and I mean - sorry, I mean that by that as - we talked about that they relinquished care for Ray. That is still very traumatising, so it has not been addressed.
1. Ms R went on in her evidence to say the Secretary prepares the care plan with information from the FSP and then it is the FSP that prepares the transition plan. She said the FSP are not involved in the preparation of care plans.
2. The FSP was told by the Secretary the children were to be restored at the end of 24 months.
3. She said she hadn't seen or read the care plans filed by the Secretary. That was remarkable evidence given the number of times Ms R was asked about what she had read of the court file, her regular attendance on hearing days and that she had prepared a transition plan for a care plan she had not seen or read.
4. Ms R acknowledges the many flaws in the transition plan which included there was no input from children's specialist and there was no rationale for the many incremental changes to the children's living arrangements during restoration.
5. She said the FSP has no template for transition plans.
6. Ms R said should restoration be ordered:
1. The parents would stay on track abiding by a yet to be developed Restoration Commitment Agreement and engagement in monthly interagency meetings – even though to date such meetings had not occurred as planned.
2. She considered she would be conducting weekly home visits with the parents during the first 12 months, then she would drop these back to fortnightly for the second 12 months and for the final 24 months would only undertake monthly home visits.
1. Ms R failed to appreciate that her home visits might need to be arranged to measure the qualitative outcomes for the children and family during restoration. For her home visits were dictated by a timing schedule rather than qualitive best interests of the children.
2. Ms R's evidence highlight case management deficiencies since she commenced casework on 29 May 2023 such as:
1. She had little time, resourcing and records to familiarise herself with the matter;
2. The approach to the father's disclosure of the domestic violence incident that occurred on 23 May 2023 was wholly inadequate;
3. The FSP has not kept contemporaneous records as to their case management;
4. there was a limited understanding of child protection legislation;
5. There was limited understanding of the developmental needs of these children.
Ray's teeth
1. Ms R acknowledged the parents held longstanding concerns that Ray required dental work including the removal of teeth with holes that had not been properly attended to since he came into care in 2022.
2. She was unable to provide a cogent reason why this had not been attended to. Ray had had an appointment with a dentist in mid-2023 that recommended he have his teeth removed under general anaesthetic. His parents wished for that to happen to avoid the trauma of removal in a dentist chair.
3. Instead, a second opinion was sought and Ray was ultimately placed on a public waiting list. Eventually a decision was made to see a private clinic with an appointment in February 2024.
4. It is unacceptable for Ray to have his dental needs ignored for so long. There was no cogent reason given for why the first dentist's advice was not followed.
5. To not attend to a child's medical needs in a timely fashion is a criticism the Secretary often makes of parents in care proceedings. The unacceptable delay in attending to Ray's teeth is not consistent with the object and principles of the Care Act.
6. I accept Ms R was put in a difficult position when she commenced work with the family and has made good progress in her relationship with them.
7. At times it seemed she could not separate the children's needs from the parents and understand that they might come into conflict. Her evidence left me with the impression she was an advocate for the parents. I do however accept there has been some good progress by the parents.
8. The court appreciates her candour in particular in relation to the circumstances the children are living in.
9. The preparation of the transition plan and the failure to read the care plan she was preparing it gave me the impression it was a rushed exercise where the purpose of the exercise - which is a plan that is best for the children - seems to have been forgotten.
Ms N
1. Ms N filed a number of affidavits and was called to give evidence over two days. She was unable to complete her evidence due to illness on the second day. I have not had regard to her short evidence on the second day before she became unwell.
2. It was agreed it was in the children's interest that the matter not be delayed due to her illness and that I would be able to make a determination on the evidence that was before the Court.
3. Ms N has a bachelor's degree in social science. She has participated in various training courses relevant to her work including the caseworker development program whilst an employee of the Secretary. She has no particular child development qualifications.
4. She is the team leader for the Permanency Support Program ("PSP") within the FSP and she was Ms R's manager since 13 June 2023.
5. She couldn't say what court documents she had read but she had not seen the care plans.
6. She was cross examined about the arrangements for the children that saw them placed in the house parent model in early October 2023.
7. Her affidavit evidence indicates at the time the FSP commenced case management in May 2022 all the children were living with their paternal grandmother.
8. In June 2022 the children commenced moving placements.
9. There were some months of stability when the children were with short term kin carers from August 2022 until March 2023. Those carers were clear they were not a long-term option.
10. In March 2023 the children returned to a revolving door of placements, where they were at times with respite carers, at times they were placed separately from siblings and at times with one or more of their siblings. These ongoing placement changes can only be described as not being stable, secure or safe for the children.
11. The evidence given about the efforts to find a long-term placement were;
1. On 3 November 2022 the FSP commenced a search for respite carers who could be long term carers from an existing carer list. There was no one available.
2. On 7 December 2022 the children's profiles were shared with people taking the initial steps to becoming a foster carer to ascertain if they were interested in providing care. This was without success.
3. This profile share was repeated again on 23 January 2023 again without success.
4. On 15 February 2023 the FSP made an enquiry of another funded service provider who also had no carers available.
5. In February and September 2023 an advertisement was posted by the FSP on social media.
6. A family group conference was held on 9 June 2023 with no one identified as a potential carer.
7. The FSP said it continued to look for carers by attending meetings with the Secretary. However, those meetings appear to be related to the approval for funding of the ACA.
1. On 15 May 2023 Ray entered an ACA and remained in the ACA until 5 October 2023. For almost 12 months he has been living with rotating workers.
2. Marlee and Bindi's carers advised in late August 2023 the placement would need to come to an end prior to any restoration.
3. As a result of that Ms N was of the view with no suitable carers the children could be brought to together in a house parent model.
4. There was a long-term option for Tarni that was declined by the FSP due to the location and the family not being Indigenous.
5. Ms N explained the position was that the children had had over 30 placements and the house parent model was the only option.
6. Ms N would not agree that the house parent arrangement was not developmentally appropriate for these children given their ages and developmental stages.
7. Ms N's evidence was:
"It is the only option, but it's also I feel the most appropriate given the other option is to go into hotels or split further across the state. It - it's the best option for what we have, which is not much."
1. Ms N explained the number of people working in the house parent model and the hope for there to be a small number of people providing consistent care. Unfortunately for these little children that hope was not realised.
2. Ms N gave evidence that there had been some initial difficulties with house staff accessing behaviour support plans. Further no one had discussed those plans with the parents.
3. Ms N did not seem concerned that the team charged with looking after these children did so with little information. That lack of concern is surprising given the age of the children, complexity of their diagnoses and behavioural needs.
4. Ms N acknowledged there has been no effort to look for a long-term placement since September 2023.
5. The efforts to look for a long-term placement since the children came into care are not satisfactory.
6. Although there were advertisements on the FSP social media and 2 discussions at shared lives training. There should have been more concerted, targeted effort with a broader audience. The children's needs should have been clear from the outset and regular enquires should have been made with other FSPs. I saw no evidence of ongoing discussions with potential caregivers such as the care workers or people in the children's sphere at day care or school to explore possible placement options.
7. All of the placements sought appeared to be in circumstance of crisis where there was a placement breakdown. Yet when the children were with kin, there was an opportunity to carefully plan and look for long term carers and that opportunity was not taken up.
8. Although I accept there is a shortage of foster carers more could have and should have been done for these children to find a long-term foster placement.
9. I am concerned that it appeared to be a view held that there was something appropriate about these arrangements. There is nothing appropriate - it is damaging and causing harm. The model itself is of concern but it is clear in practice it is not operating as planned. Again, to the detriment of the children.
10. She confirmed planned interagency meetings had not occurred as planned.
Ms F
1. Ms F filed 2 affidavits and gave evidence over 2 days.
2. She was an honest witness who made appropriate concessions.
3. Ms F was a previous manager for the children and had managed Ms D. Her role was remote, and she did not have much face-to-face contact with the parents, rather she spoke to them by phone.
4. At the time of giving evidence, she was no longer employed by the FSP. She has worked in the child protection sector for over 18 years and prior to that was a serving police officer. She had no tertiary qualification relevant to the child protection sector.
5. Ms F was critical of Ms D, who she was responsible for supervising. She described Ms D as an experienced caseworker, but having a direct communication style that could be misconstrued.
6. The FSP had written to the parents in March 2023 advising them all communication was to be in writing and to Ms D as the fathers phone calls to Ms F were unrelenting.
7. Ms F took on casework responsibilities when Ms D left. Ms F was not familiar with Ray's previous removal and restoration.
8. Ms F's evidence highlighted case management deficiencies such as:
1. Therapeutic case plans only being reviewed once, October 2022. Those case plans contained factually incorrect statements that were misleading about Ray including that "Ray is going incredibly well emotionally and behaviourally".
2. The original Care Plans were written and approved by her on the understanding that restoration of the children to the parents would be looked at once the proposed 2 years of the Minister holding parental responsibility had expired. She had not attended the care plan meeting,
3. Ms F did not have a working knowledge of the legislation and restoration.
4. Ms D was not keeping proper records.
5. That Ms D was being performance managed whilst still being the caseworker for the children. The Secretary was not informed of this fact.
6. oversight of case work by her as a Case Work Manager was little to non-existent, and no leadership for decision-making was evident.
Ms V
1. Ms V filed a number of affidavits and, authored the Amended Care Plans filed 23 October 2023. She gave evidence over two days and there was a number of months between her days of evidence.
2. She commenced as an Acting Manager Casework in the Lismore CSC in April 2023 and began working with the family in June 2023. The previous caseworker left on 28 June 2023 and there has been no caseworker since that time.
3. She is undertaking the DCJ management development training and has a Diploma in Community Services and has been employed by the Secretary since 2015.
4. She has at times had to take unplanned leave since the hearing commenced. There is no criticism of her in this regard, the vicissitudes of life affect all of us.
5. It is clear whilst she is on leave that no arrangements were in place for someone else to do active casework.
6. Indeed, the Secretary did not inform his legal representative of her absence during December 2023 and January 2024. Although it was said the file "sat" with the Manager Client Services I saw no evidence of any activity during her absence. The lack of casework allocation in her absence is one of the reasons for the delays in this matter.
7. There is no criticism of Ms V personally but rather those who are ultimately responsible for the support she should receive and for the ongoing casework and compliance with court orders that should occur in her absence. I was left with the strong impression that Ms V was overburdened with work and not properly resourced to do the work that is required by legislation for these children.
8. The Secretary also had in place administrative arrangements for staff that resulted in Ms V being limited in her access to an office and printing at a time when this matter was for hearing and the Secretary was failing to comply with orders court and directions.
9. It is common knowledge that there is no client service centre for DCJ in Lismore since the floods of 2022 and in Ballina since an outbreak of mould. The Secretary is of course at liberty to make his own arrangements for where staff are expected to work but when those arrangements prevent caseworkers completing documents and complying with court orders it is requires comment. Whatever arrangements the Secretary makes they should be such that caseworkers can attend to their court commitments.
10. Ms V's evidence on 8 August 2023 highlighted:
1. The Secretary received limited updates from the FSP in relation to the children's placement changes. The fact that Ray was moved to an ACA was not conveyed to the casework team in a timely manner. Although the section of the Secretary's department responsible for funding approval was aware.
2. She understood the purpose of the ACA was to provide stability, but it was not permanent.
1. In respect of restoration Ms V's evidence was:
1. She had only briefly looked at documents when Ray was previously restored and conceded it was a faster process than it should have been and the FSP and DCJ did not properly support the parents. DCJ and the FSP were also unaware the parents had disengaged from support services.
2. She was familiar with the documents that recorded the child protection issues and the parents history.
3. She was of the view the risk of restoration could be managed with correct support and with an appropriate restoration plan.
4. She agreed a failed restoration was a risk but also recognised the risk of not restoring including the separation of siblings.
5. The Secretary was prepared to work intensively on the restoration and there would be more intensive involvement of a caseworker once that person when that person commenced. I note at the time the evidence closed that caseworker had not yet commenced.
6. She conceded there was a need for the Secretary to be more hands on and provide more intensive casework. She was planning to have regular meetings and catch ups with the FSP. Although the Secretary expected the FSP to be the lead.
7. She confirmed if restoration was ordered casework responsibility, then moves to a different administrative section known as CFDU and the Secretary would be very reliant on the FSP. She had had some initial conversation with the manager of client services about a better or different form of oversight.
8. Agreed there was no proper record of an Aboriginal consultation on file but a there was an indication the consultation occurred but was not recorded.
9. Accepted there were issues with record keeping and oversight of this matter.
1. In August 2023 the Secretary proposed he would file an amended care plan by 12 September 2023 with a view to addressing issues in the original care plan which may also reduce hearing time.
2. Notwithstanding that was the Secretary's proposal the care plan was not filed until 23 October. It caused delay rather than reducing it. The care plan and the transition plan are documents that appear to be rushed, reactive and not properly considered.
3. Ms V continued her evidence in January 2024 having filed care plans and confirmed:
1. The Secretary continued to support restoration and was of the view there had been changes with the parents these included:
1. The parent's willingness to do what is asked of them;
2. The mother's insight about the May 2023 incident when giving evidence;
3. The most recent hair follicle tests for both parents are clean and the most recent chapter 16A enquires with police indicate there was nothing of concern;
4. The parents had addressed domestic violence accepting the opinion of Mr L of their work with him;
5. The father was attending a certified men's behaviour change program. I note there was no independent evidence for either the court or the Secretary about this program.
6. The father chose to leave the hospital when the mother was in hospital before giving birth in order to self-regulate, rather than escalate;
7. In assessing restoration Ms V had used the restoration tool and the information discussed at permanency consultations.
1. Ms V accepted the document called a Restoration Commitment Agreement that was referred to in the care plan was yet to be developed. She conceded there were deficiencies in the care plan that included:
1. The undertakings being developed;
2. The number of changes for the children during transition plan was not appropriate for the children;
3. The transition plan needed to be reviewed;
4. The plan is now for all children to go home together.
1. Ms V spoke of the struggles of information sharing. However, she was also of the view there was better communication between the Secretary and the FSP. I note however as soon as Ms V was on leave scheduled meetings did not happen.
2. There was an anticipated caseworker commencing in February and there would be a new manager casework at that time as well.
3. There had been discussion with the manager client services about casework oversight of the restoration if that was ordered. Though there is no outcome of those discussions some 5 months after it was first raised in evidence.
4. The family had a caseworker working with them in relation to the new baby.
5. The adults in the house parent model had continued the children on a sugar free diet without medical or professional advice and it had impacted how much the children were eating. In those circumstances the parents bought groceries for the house.
6. She was unaware of Ray's longstanding teeth issue and no one from the FSP had raised it with her as an issue of urgency.
7. She agreed Ray's NDIS funds were being used to train the house parents and the parents will need education about the NDIS.
8. Parallel planning has ceased in September 2023. The Secretary had stopped broadcasts and there was no long-term placement identified. Ms V's evidence was Aboriginal families don't want to talk about family placements whilst restoration is being considered.
9. She described Dr O as being supportive of the house model. I don't accept that characterisation of Dr O's evidence at all. Dr O was clear these arrangements aren't appropriate for children. Dr O seemed to accept that of the options that were presented this was the best that could be provided.
Family Time reports and written material
1. There were innumerable family time reports tendered. They are on the whole positive and demonstrate the positive relationship the children have with the parents. In fact, the parents attending family time has meant the most consistent adult relationship the children have had since coming into care is with their parents.
2. Those reports also show the parents saying inappropriate things to each other, the children and the family time workers. That speaks to further work needed in relation to emotional regulation. It also speaks to the many different workers the children and the parents have to work with and what appears to be a lack of consistency and communication within those arrangements.
3. Much of the material tendered demonstrated the challenges the children face, and the endless meetings, plans and reports made regarding their circumstances.
The Childrens Circumstance
1. The children's circumstances are one of two matters section 83 requires me to have regard to. For these children their circumstances play a central role in my decision with respect to restoration.
2. The objects and principles of the Care Act guide my decision making. Of particular relevance are the below sections where I have placed emphasis in bold.
Section (9)(2) provides:
(d) If a child or young person is temporarily or permanently deprived of his or her family environment, or cannot be allowed to remain in that environment in his or her own best interests, the child or young person is entitled to special protection and assistance from the State, and his or her name, identity, language, cultural and religious ties should, as far as possible, be preserved.
(e) If a child or young person is placed in out-of-home care, arrangements should be made, in a timely manner, to ensure the provision of a safe, nurturing, stable and secure environment, recognising the child's or young person's circumstances and that, the younger the age of the child, the greater the need for early decisions to be made in relation to a permanent placement
(f) if a child or young person is placed in out-of-home care, the child or young person is entitled to a safe, nurturing, stable and secure environment. Unless it is contrary to his or her best interests and taking into account the wishes of the child or young person, this will include the retention by the child or young person of relationships with people significant to the child or young person, including birth or adoptive parents, siblings, extended family, peers, family friends and community.
1. These children's circumstances are such that they have not received special protection and assistance and they have not been provided with a safe stable nurturing or secure environment. Rather they have been subjected to harm.
Ray
1. Ray is 6 years 8 months old. He was 14 months old when he was previously removed from his parents, spending 13 months in out of home care, being restored at the age of 2 years and 3 months.
2. Ray was 4 years and 9 months old when he was removed in April 2022. He has spent almost half his life in care.
3. He attends Ballina Public School; this is his second school.
4. Ray presents as an emotionally and behaviourally troubled child.
5. He has a diagnosis of global developmental delay. He also has a diagnosis of Attention Deficit Hyperactivity Disorder and is prescribed Ritalin and Catapres at night. He has supports in place at school to maintain his medication regime and engagement in speech therapy.
6. Ray presented to Dr O for assessment as an "emotionally and behaviourally trouble child". He has struggled with accepting limits and in response can either engage in self-harming or threatening behaviour. His comments to carers have the quality of those a child would make when they have been exposed to domestic violence. Ray can also yell and be aggressive towards his sisters'.
7. Ray should be assessed to see if he has FASD but it remains unclear if the Secretary has progressed arrangements for him to be assessed. The evidence suggests he is being assessed for possible autism diagnosis.
8. Since being in the parental responsibility of the Minister;
1. Ray has had his appendix removed, infested by worms.
2. There has been a failure to provide Ray with treatment for his teeth.
3. Ray commenced play therapy on or around 25 July 2023 some 12 months after coming into care.
1. Since being in the parental responsibility of the Minister Ray has had the following living arrangements:
1. Lived with his paternal grandmother for a month after coming into care in April 2022
2. Thereafter for the first 12 months he changed households 26 different times. The longest he was with a carer was in a kinship placement for 6 months. The shortest was 2 days. He had 11 different carers provide care. On some occasions when he changed placements, he returned to someone who had previously cared for him and sometimes it was a new carer.
3. On 15 May 2023 at 5 years of age he was placed in a serviced apartment with a rotation of workers that cared for him. There appears to be little consistency in their care or the workers that provided care during those 5 months. The evidence is clear there was a section within the Department that knew about these arrangement as they had to approve the high-cost funding of them. However, the actual casework team responsible for Ray was not aware of his living arrangements for some time.
4. It is impossible to accurately determine exactly how many different people stayed with him at the serviced apartment. Although it is possible to conclude it was too many.
5. On 5 October 2023 he was placed with his sisters in what is described as the house parent model. There has been in excess of 10 people providing him care in that model.
1. He sees his parents frequently and is transported by in excess of 15 different workers to family time.
Marlee
1. Marlee is 4 years and 5 months old. She was 2 years and 4 months old when she was removed from her parents' care. She has spent more than half her life in care.
2. Marlee has been diagnosed with global development delay and hearing loss, requiring hearing aids. Dr O identified her speech and language skills as delayed, and at 3 years old she remained incontinent.
3. Dr O on the anecdotal evidence of her carers stated that she is triggered to hide by yelling and unfamiliar people, stating "this behaviour does appear to be trauma-related and triggered by situations when Marlee feels unsafe", Dr O acknowledged at the time of writing the report, Marlee had been able to establish a bond with her then carers, her educators at daycare and was interacting with peers well.
4. Since being in the parental responsibility of the Minister Marlee has had the following living arrangements:
1. She lived with her paternal grandmother for a month after coming into care in April 2022;
2. Thereafter until 5 October 2023 she changed households at least 15 different times. The longest she was with a carer was in a kinship placement with Bindi for at least 6 months. The shortest was one day. She has had at least 8 different carers provide care during this time.
3. On 5 October 2023 she was placed with her sisters and brother in what is described as the house parent model. There has been in excess of 10 people providing her care in that model.
4. She sees her parents frequently and is transported to family time by in excess of 15 different workers.
5. Marlee has commenced play therapy with Cath O'Halloran, and has had grommets in her ear. She has been treated for worms and school sore since being in the house parent model.
Bindi
1. Bindi is 3 years and 5 months old. She was 1 year and 6 months old when she was removed from her parents care. She has spent more than half her life in care.
2. She was described by her kinship carers as busy, happy and cheeky who loves doing what the big kids are doing.
3. She has had grommets in her ears.
4. Since being in the parental responsibility of the Minister Bindi has had the following living arrangements:
1. Lived with her paternal grandmother for a month after coming into care in April 2022;
2. Thereafter until 5 October 2023 she changed households at least 18 different times. The longest she was with a carer was in a kinship placement with Marlee for at least 6 months. The shortest was one day. She had at least 7 different carers provide care during this time. On some occasions when she changed placements, she was returned to someone who had previously cared for her and sometimes it was a new carer.
3. On 5 October 2023 she was placed with her sisters and brother in what is described as the house parent model. There has been in excess of 10 people providing her care in that model.
4. She sees her parents frequently and is transported to family time by in excess of 15 different workers.
Tarni
1. Tarni is 2 years and 5 months old. She was six months old when she came into care.
2. She has had a history of bronchitis.
3. Since being in the parental responsibility of the Minister, Tarni has had the following living arrangements:
1. Lived with her paternal grandmother for a month after coming into care in April 2022.
2. Thereafter until 5 October 2023 she changed households at least 12 different time. The longest she was with a carer was with an authorise foster carer on her own for 8 months. The shortest was one day. She has had at least 8 different carers provide care. She was mostly living separated from her siblings but would have monthly respite with her sisters.
3. On 5 October 2023 she was placed with her sisters and brother in what is described as the house parent model.
4. She sees her parents frequently and is transported to family time by in excess of 15 different workers.
1. All of the children have been exposed to the parents drug use, domestic violence and homelessness. In addition, they suffered trauma through the floods of 2022.
2. All of the children have been treated for worms after Ray was found to have worms in his appendix.
3. During the course of these proceedings, the Secretary has not produced evidence that the children have engaged in trauma-informed counselling, nor evidence as to their speech therapy, occupational therapy or behaviour specialist.
4. The children have NDIS plans dated 17 October 2023, some 18 months since they came into care and some 10 months after Dr O recommended them.
5. The children's cultural needs are met through their engagement with their parents and activities at school and day care. Their father is adamant that no other family members be involved in supporting the children with their cultural needs.
6. The Family is Culture Report is the leading review in relation to the over representation of Aboriginal Children and Young People in the care and protection system. It is a comprehensive report with 125 recommendations and is essential reading for anyone working in the care and protection jurisdiction. I am of the view that I can take judicial notice of matters from the Family is Culture Report
7. Professor Megan Davis in the that report made these comments in 2019:
"It is simply not acceptable to say that the workforce is underfunded and overworked. It may be factual, but it is not acceptable explanation for poor practice in 2019".
1. In 2024 those comments remain true. These children's circumstances and the reasons proffered for them are not acceptable.
Integrating the facts with the law
1. The ILR identifies the risk of restoration in a comprehensive and considered way. My conclusions about the parents' weaknesses and strengths as noted above accord with her analysis.
2. The ILR speaks of the untenable situation of the children's current circumstances and the lack of parallel planning by the Secretary.
3. The evidence is clear there are many risks in a restoration. I am particularly concerned about domestic violence and the failure of the Secretary to arrange appropriate domestic violence and behaviour change education for the parents. There has been only preliminary and immature progress by the parents in this area.
4. There has been progress by the parents and real change in other areas, but I am cautious given their long history of drug and alcohol use and domestic violence in the context of the events of May 2023.
5. I am persuaded that if there was to be a restoration special circumstances as contemplated by section 79A(10) exist that would allow me to allocate parental responsibility to the Minister for more than 24 months to 36 months. They are:
1. Appropriate and accredited behaviour change education is required for the father to support him changing his behaviour and ensuring the parents relationship is free from domestic violence. To date that has not occurred.
2. The risk of restoration can be mitigated with the Secretary having parental responsibility for a longer period.
1. Notwithstanding all of the concerns I have about the parents progress I am of the view that the circumstances of the children have been so dire and untenable whilst in care and thus far there is no appropriate long term placement offered and no placement on the horizon such that I could not be persuaded their experience in care will materially change, and in those circumstances I accept the Secretary's assessment that restoration is realistic within a reasonable period.
2. Special circumstances exist and I am persuaded that parental responsibility should be allocated for 36 months.
3. The next question for the court is whether permanency planning is appropriately and adequately addressed.
4. The Secretary conceded there was a need for new care plans. There are a number of deficiencies in the current care plans which include:
1. A lack of qualitative measures that case workers should be assessing for the children and the parents in relation to managing any restoration.
2. They refer to a non-existent Restoration Commitment Agreement in place of what clearly should be proposed undertaking for the parents, and clearly stated engagement and terms of engagement for the service providers and parents.
3. They detail minimum monthly interagency meetings for parents and service providers to engage in, yet the evidence of the parents by the close of the year of 2023 is that they had only attended one.
4. They detail that towards the end of the first 12 months it is envisaged that the transition of the children into the parents full time care will occur but the transition plans attached do not achieve full time care with the parents until 22 months.
5. No proposed undertakings for the parents were detailed, despite final orders proposing the court accepting same.
1. Throughout the lengthy hearing the Secretary's case acknowledged a need for greater involvement and casework by the Secretary in a restoration. Yet at the conclusion of the evidence there was no clarity about if and how that would occur.
2. For restoration to succeed for these vulnerable and young children the casework needs to be best practice and robust. The casework must be consistent, high level, professional and consistently reviewed against pre-determined qualitative measures for both the children and the parents. The failings that have occurred to date cannot continue.
3. Those failings include:
1. The parents have not been kept informed of their children's treatments and therapies, often learning on the day of court which treatments their children have been engaged in. This failure of case management to keep the parents informed is in stark contrast to the recommendations included in the Care Plans and Amended Care Plans.
2. A failure by case management to keep the parents involved and informed on the strategies being used for their children to support the children address their complex behavioural issues, which needs to be a priority for these children.
3. Lack of appropriate resourcing, poor record keeping and poor management, the family has had rotating caseworkers, case work managers and no consistency.
4. The various chronologies for the placement changes for the children are inconsistent across the various affidavits affirmed with the court, and it can only be surmised that the Secretary does not hold accurate records as to where the children were placed at any given time that they could readily access.
5. A real disconnect between the Secretary and the FSP about the care plan and who was ultimately responsible for documents.
1. The care plans should comply with all legislative requirements including section 84 of the Care Act.
2. I urge the Secretary to consider retaining case management responsibility for the children.
3. So formally, the findings I make are:
1. A finding that there is a realistic possibility of restoration of the children to the mother and the father jointly.
2. A finding pursuant to section 79(10) that special circumstances exist.
3. A finding that permanency planning is not appropriately and adequately addressed.
4. I direct the secretary to file and serve a care plan and a Minute of Care order, consistent with this decision, and in accordance with Annexure "A" in the ILR submissions by 2 May 2024.
5. I request this written decision is brought to the attention of the Executive District Director for Northern Region and the Secretary Mr Michael Tidball.
6. I request the Executive District Director for Northern Region and the Secretary Mr Michael Tidball be asked to consider my request that Secretary retain case management.
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Decision last updated: 02 May 2024