Department of Communities and Justice (DCJ) and Phoebe and Katelyn Wilson [2024] NSWChC 9

Children's Court New South Wales

Medium Neutral Citation: Department of Communities and Justice (DCJ) and Phoebe and Katelyn Wilson [2024] NSWChC 9 Hearing dates: 12, 13 March and 27 and 28 May 2024 Date of orders: 19 June 2024 Decision date: 19 June 2024 Jurisdiction: Care and protection Before: Children's Magistrate Sheedy Decision: Parental Responsibility to the Minister to 18. Catchwords: CHILDREN – Care and protection - Permanency Planning and Case Management Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW) Category: Principal judgment Parties: The Secretary, Department of Communities and Justice Ms Leanne Davis, mother Mr Mark Wilson, father Representation: DCJ's legal representative for Secretary, Department of Communities and Justice Ms R for Ms Davis Ms K for Mr Wilson The Independent Legal Representative for Phoebe and Katelyn File Number(s): 2022/00138520 2023/00172379 Publication restriction: Not restricted – Pseudonyms have been used in this judgment.

JUDGMENT 1. Phoebe Wilson was born on [ ] May 2022. Her sister Katelyn Wilson was born on [ ] May 2023. Phoebe and Katelyn are the children of Ms Leanne Davis and Mr Mark Wilson. 2. The Secretary, Department of Communities and Justice ('DCJ') assumed Phoebe into care on 16 May 2022 and filed a care application for her on 13 May 2022. The Children's Court made an interim order of parental responsibility to the Minister on 20 May 2022. 3. In this care application DCJ identified Phoebe as an Aboriginal child. Mr Wilson identifies as Aboriginal. 4. On 17 May 2022 Phoebe was discharged from hospital and placed with an authorised carer. 5. On 30 May 2022 DCJ transferred case management of the family to a designated agency [referred to as the Designated Agency]. 6. The Children's Court made an Assessment Order and on 30 September 2022, the Children's Court Clinic Clinician finalised her report. The Clinician did not recommend restoration of Phoebe to the care of her parents. The Clinician recommended placement of Phoebe in a long-term foster placement "as soon as convenient." The Clinician concluded that placement of Phoebe in a kinship placement could present difficulties because, she opined, it would be unlikely that Mr Wilson would accept any limitations on contact and disregard limits placed on contact which could therefore present an unsettled situation for Phoebe. Finally, she recommended that future contact should be supervised with the frequency determined by Phoebe's needs and that Mr Wilson be referred for mental health and cognitive assessments which, she considered, may identify productive and acceptable ways in which to assist him. 7. On 10 November 2022 DCJ filed a Care Plan for Phoebe, identifying Phoebe as Aboriginal. The Care Plan included DCJ's assessment that restoration of Phoebe to the care of her parents was not a realistic possibility. The Care Plan stated that Phoebe was placed with a carer who is willing to care for her until she is 18. The Care Plan also stated, under the heading "what is the proposed permanent placement for Phoebe" that she is to remain placed with her current carer until a suitable extended family member or Aboriginal foster carer can be identified. 8. The Care Plan notes that both parents want the girls to live with either their paternal grandmother, Ms Renwick or their paternal aunt, Ms Dillon if there is no restoration to their care. The Care Plan states that Ms Davis has declined to provide contact information for her mother and siblings and therefore "[the Designated Agency] has been unable to explore further options for placement of Phoebe with her maternal family" and "the Designated Agency have indicated they have assessed Ms Dillon to not be suitable to care for Phoebe." 9. The only contact plan contained in the Care Plan is contact with Ms Davis and Mr Wilson, a minimum of 4 times per year. 10. The Cultural Plan filed with the Care Plan stated that the parents had not provided information regarding Phoebe's Country or community of belonging. Mr Wilson said he only found out about his Aboriginality when his father passed away in 2007. Mr Wilson stated that it is his sister, Ms Dillon who lives in [ ] is the person who holds all the information about the family's history. Ms Dillon was not willing to speak with caseworkers in relation to this. Contact was made with [ ]'s Land Council who were not able to confirm Aboriginality for Mr Wilson's family and a referral was made to the Crown Solicitor's Genealogy Team to seek further information. There was also mention that the parents were not "forthcoming" with information regarding extended family who may be able to connect Phoebe to her Aboriginal family and culture. 11. DCJ stated that their Aboriginal Caseworker was working with the family and made multiple consultations between July and November 2022 but was unsuccessful in finding further information regarding Phoebe's Aboriginal identity. 12. On [ ] May 2023 Katelyn was born. She was assumed into care by DCJ the following day and placed with the Designated Agency authorised carers Jasmine and Peter on discharge from hospital. 13. DCJ filed a care application for Katelyn on 30 May 2023, then, on 2 June 2023 the Children's Court made an interim order of parental responsibility to the Minister for Katelyn. 14. On 5 May 2023 Phoebe's carer, whom DCJ approved and proposed as Phoebe's long-term carer if no alternative placement could be found, communicated to the Designated Agency that she was no longer available to care for Phoebe. As a result, on 30 May 2023, Phoebe was placed with Katelyn's carers. These foster carers, Jasmine and Peter, indicated a willingness to care for the girls until a long-term placement is found, however, have never been willing to become long term carers. 15. On 8 September 2023 DCJ filed a Care Plan for Katelyn in which her cultural identity was recorded as "Australian". The Care Plan included DCJ's assessment that restoration of Katelyn to the care of her parents was not a realistic possibility and it was proposed that she remain placed, with Phoebe, in her current short-term placement until a suitable extended family member could be identified. The information regarding extended family and the Contact plan in Katelyn's Care Plan is identical to that of Phoebe's Care Plan.