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. Fixing a hearing date 1. Both girls Care Plans contained DCJ's assessment that there was no realistic possibility of restoration of the girls to their parents and set out a plan for the girls to remain with their current carers until a suitable family placement is located pursuant to an order of parental responsibility of the Minister until they turn 18. 2. Ms Davis and Mr Wilson had been unfailing in their attendance at contact with the girls throughout the entirety of the care proceedings and were seeking to have the children restored to their care. 3. On 20 October 2023 the matter was set for a 4-day final hearing in [a regional centre] beginning 12 March 2024 to determine the following issues: 1. Whether there is a realistic possibility of restoring the children to their parents; 2. Whether permanency planning has been appropriately and adequately addressed; and 3. What final orders are in the best interest of the children. 1. On 23 February 2024 there was a Readiness Hearing before a differently constituted Children's Court. At the Readiness Hearing all parties confirmed the matter was ready to proceed to the 4-day hearing. 2. On 7 March 2024, the mother's legal representative applied to vacate the final hearing on the basis that no arrangements had been made for the attendance of the Clinician at the final hearing and who was, it was said, required for cross-examination. The application to vacate was supported by all parties. 3. The adjournment application was urgently listed before me on 8 March 2024 as I had been allocated the final hearing. 4. During the adjournment application it was not made clear to me why the failure to arrange the Clinician's attendance was not brought to the attention of the Court at the Readiness Hearing. 5. Despite the information from the Children's Court's Listing Officer that the next listing availability for 4 days in [a regional centre] was August 2024, all parties still supported an adjournment. 6. The adjournment application was refused, and reasons given for that refusal on that day. Evidence of Permanency Planning filed for the March 2024 hearing 1. Mr Wilson's sister, Ms Dillon was nominated by the parents as a long-term carer for the girls. On 17 August 2022 the Designated Agency told DCJ it would not be progressing with a full assessment of Ms Dillon following initial probity checks. 2. The affidavits of DCJ's caseworker FF sworn 18 August 2022 and 21 November 2022 noted that Phoebe was settled in her current authorised placement and that she was to remain there until another appropriate placement was identified. The affidavits did not state what work was being undertaken to locate such a placement. 3. In the Clinic report, the Clinician states that Mr Wilson wishes for Ms Dillon to care for Phoebe. She also states that Ms Renwick, paternal grandmother, is unable to care for Phoebe. The source of this information is not known. 4. In Phoebe's 10 November 2022 Care Plan, it states the parents' wish for Phoebe to be placed with Ms Dillon and then states: "…An assessment completed by the Designated Agency indicated Ms Dillon is not suitable to be carer for Phoebe. It is considered Ms Dillon would not be able to maintain boundaries if Phoebe were to be placed with her. It is considered Mr Wilson would make all the decisions about Phoebe's care and would have unlimited unsupervised contact with his daughter despite Phoebe being under Interim Parental Responsibility of the Minister." 1. In her affidavit filed 12 July 2023 FF stated that Katelyn and Phoebe are together and settled in their current authorised placement and will remain there until an appropriate extended family placement is identified. Again, there is no mention of what work was being undertaken to identify such a placement. 2. On 7 September 2023 DCJ filed an affidavit of the Permanency Support Program Caseworker employed by the Designated Agency at Location 2, MM. In that affidavit there was no mention made of what work was being undertaken to find a permanent placement for the girls. A strikingly similar affidavit was sworn by MM on 13 October 2023. 3. On 8 September 2023 DCJ filed a Care Plan for Katelyn. Her cultural identity was recorded as "Australian." In that Care Plan the permanency plan was for Katelyn to remain in her current short-term placement "until a suitable extended family member can be identified." 4. In both Phoebe and Katelyn's Care Plan's it is stated that "It is concerning DCJ has been unable to explore further options for placement of Katelyn and her sibling Phoebe with their extended maternal family." 5. On 12 February 2024 DCJ filed a further affidavit from MM which added to his previous affidavits and stated that the parents remain unwilling to share details about the maternal family to assist in family finding and that: "The Crown Solicitor's office was contracted to conduct family finding and a report has been produced listing details of the family composition of the children." "Mrs Wilson has recently reached out and requested that I have no contact with her parents" [I am assuming MM means Ms Davis not Mrs Wilson]. "Prior to this request the Designated Agency carer recruitment conducted a preliminary interview with the grandparents to ascertain suitability to kinship placement. This was found to not be a viable option at this stage." 1. MM was not correct in his evidence that the Crown Solicitor was "contracted to conduct family finding" in the sense that his context suggests, to identify family who could be assessed as carers. The Crown Solicitor was "contracted" to undertake research with the primary focus to investigate and provide information on any Aboriginal or Torres Strait Islander family connections. 2. There was no plan identified in the affidavits or either of the girls' Care Plans to find a permanent placement beyond looking for a suitable family member. 3. The evidence of the search for suitable family placement was extraordinarily limited. In summary the information in the filed material before the Court was: 1. A statement in Phoebe's Care Plan that the assessment of the paternal aunt Ms Dillon completed by the Designated Agency indicated the paternal aunt was not a suitable carer because she wouldn't be able to maintain boundaries. This is not correct. There was no assessment of the paternal aunt. The Designated Agency decided not to proceed to an assessment after considering the outcome of the probity checks. The reason given in Phoebe's Care Plan for the paternal aunt not being suitable is not correct. She was ruled out on probity checks because of the content of the police records. The conclusion that she would not be able to maintain boundaries could not have been reached without first having a conversation with the aunt, something that was not undertaken. The concern regarding an inability to maintain boundaries was expressed by the Clinician in relation to Mr Wilson, not Ms Dillon. 1. In FF's August 2022 affidavit, she stated that "Ms Renwick has indicated she has a one-bedroom unit and is not able to be assessed to care for Phoebe at this time." The basis on which the conclusion was drawn that Ms Renwick could not be assessed is not clear. Mr Wilson has throughout these proceedings pressed for Ms Renwick to be assessed and Ms Renwick's continued to express her willingness to be a long-term carer. 1. Both girls Care Plans state Ms Davis has declined to provide any contact information for the maternal grandmother (or maternal family). There was a consistent theme in the evidence filed and the Care Plans that there could be no family finding because of the parents' unwillingness to provide contact details. However, the oral evidence established that the Designated Agency had spoken to the maternal grandmother and had her contact details in their system. She had even had contact with the children. There was no mention in the filed evidence of the children's maternal grandmother having had any contact with the children, no mention of any contact being made with her about caring for the children. In fact, the evidence suggested there were no contact details for the maternal grandmother or maternal family because Ms Davis refused to provide that information. There was no filed evidence of what, if any, steps were taken to locate maternal family other than asking the parents. There was no provision in the Care Plans for contact between the girls and their maternal grandmother or maternal family. 1. No Family Group Conference could be held because caseworkers did not have the permission of the parents or they had no contact information for the maternal family and the parents consistently refused to share that information. 1. There was no evidence filed before the March 2024 hearing dates that there was any search for or plan to search for a non-family long term placement. This is of significant concern particularly given: 1. The opinion expressed by the Clinician that a foster placement was recommended not a family placement. 2. The paternal aunt being ruled out as early as August 2022 and the lack of any other realistic prospect for a family placement being identified. 3. The ages of the children and the length of time they had been in care. 4. The Designated Agency's view that the parents were not co-operating with family finding and were opposed to any placement with maternal family. The March 2024 hearing 1. On 12 March 2024, the first day of the allocated hearing, DCJ continued to seek an order of parental responsibility of both children to the Minister until they are 18. 2. At the start of the hearing, both parents conceded, and the Court then found, there was no realistic possibility of restoration of either Phoebe or Katelyn to the care of their parents within a reasonable period pursuant to section 83 of the Children and Young Persons (Care and Protection) Act 1998, ('the Care Act'). 3. Immediately following the finding that there was no realistic possibility of restoration of the children to their parents, DCJ's legal representative for DCJ stated "Both care plans need to be amended." 4. In reply to the question why the Plans were not amended prior to the commencement of a 4-day special fixture, he replied: "I don't have an answer to that. I didn't seek for my clients to do that, so that may be my difficulty…" 1. The Court cannot make the final orders sought by DCJ unless it expressly finds that permanency planning for a child has been appropriately and adequately addressed (s 83(7) of the Care Act.) 2. DCJ's legal representative stated that, on the current evidence filed, DCJ could not satisfy the Court that permanency planning had been appropriately and adequately addressed. 3. The fact that permanency planning had not been appropriately and adequately addressed was blatant and should have been blatant to any care lawyer who took the time to read the affidavits and Care Plans and prepare for the 4-day contested hearing because: 1. The Care Plans did not identify a permanent placement, nor did they identify a path towards finding a permanent placement. 2. There was a striking lack of evidence regarding efforts of family finding or evidence of finding a permanent placement outside of the family. 3. The children are full siblings however the Care Plans identified the siblings' cultural identities differently. Phoebe as Aboriginal and Katelyn as Australian. 4. The potential long-term placement identified in Phoebe's Care Plan was not only no longer a proposed long-term placement but was no longer where she lived. 5. Phoebe's Care Plan was prepared before her sibling Katelyn was born so obviously there was no mention of Katelyn as a sibling in Phoebe's Care Plan. 6. There was no mention of any contact for any member of the girls' extended families. 1. The glaring deficiencies in the evidence and the Care Plans were disqualifying in terms of the Court being able to make a finding that permanency planning had been appropriately and adequately addressed and of having final orders made at the conclusion of the hearing. Despite these glaring and disqualifying deficiencies each of the parties confirmed to the Court at the Readiness Hearing that the matter was ready for hearing and none of the parties raised these deficiencies with me on 8 March 2023 or sought to have the matter adjourned on any other basis other than that the Clinician was not available to give evidence. 2. I note that when Phoebe's matter was mentioned before the Court on 22 September 2023 DCJ was directed to file and serve an updated Care Plan for Phoebe by 20 October 2023. This direction was not complied with yet there does not appear to have been any mention of this at the Readiness Hearing and it was not mentioned before me on 8 March 2024. 3. When DCJ's legal representative was asked why the direction for an updated Care Plan for Phoebe was not complied with his response was that it was an oversight. He said: "…I agree it has not been filed. It does appear to have been an oversight of the Department, your Honour. I can only apologise for that." 1. The Independent Legal Representative told the Court that prior to the Readiness Hearing she had written to DCJ's legal representative regarding the failure to file updated Care Plans, but she had had no reply. The Independent Legal Representative explained that she did not mention this at the Readiness Hearing, thinking it could be dealt with at the final hearing, but now accepts she should have raised it. 2. DCJ's legal representative then told me that long term carers have been identified for the children though no evidence has been filed in this regard. 3. I was not willing to adjourn the matter for further evidence or amended Care Plans without hearing evidence regarding permanency planning. Oral Evidence of Permanency Planning Evidence of NB 1. NB is the Manager Casework Child Protection for DCJ and has been the manager of the case for both girls since they were brought into care. He gave evidence that long-term authorised carers had been identified. Evidence of MM 1. MM is the Permanency Support Programme ('PSP') Caseworker currently allocated to this family from the Designated Agency's Location 2. He became the PSP caseworker just after Katelyn was born and the matter was transferred from the Designated Agency Location 1 to the Designated Agency Location 2. 2. In relation to family finding, MM relied on Location 1 having not found family. He knew Ms Dillon had been ruled out but did not know why. He knew the Designated Agency's Location 1 had spoken to the paternal grandmother but ruled her out. He had no knowledge of the investigations or discussions or outcome. MM had not approached DCJ, he had not done research via social media but asked one of his colleagues to do so and that colleague only looked at the father's social media page. He has not done a genogram or seen one on file nor had he asked DCJ for a genogram. 3. MM's evidence was that it was not his role to find a long-term placement for the girls, that is the job of the carer recruitment team. The carer recruitment team find carers, undertakes probity checks, assessments, and matching. His role is only the day-to-day case management of the children. He did not try to arrange a Family Group Conference. 4. Later in his evidence, MM said that finding family members is a part of his job. 5. MM was not aware of the term parallel planning and stated that family placements need to be fully explored before seeking a foster placement. 6. MM spoke with the maternal grandmother in the latter part of 2023 who expressed a potential interest in caring for the girls, so he passed her details on to the Designated Agency's carer recruitment team. He also obtained from the maternal grandmother, Ms Davis's siblings' names though she was not willing to provide their contact details other than their telephone numbers. MM said he gave his details to the maternal grandmother and asked her to pass them on to the children. 7. A long-term foster placement has been identified for the girls. The placement had been 'earmarked' for the girls approximately six months before when the carers were going through the authorisation process. No transition occurred yet due to the carers having other children in placement as emergency placements. 8. MM agreed that the information he had obtained from the maternal grandmother and the existence of a long-term placement was not included in his affidavits because of his inexperience and lack of knowledge about the proceedings. Evidence of Ms G 1. Ms G described her job in the Carer Recruitment Casework Role in the Designated Agency in Location 1 as one that is to receive referrals to undertake assessments for applicants who seek to care for children, either prospective kinship carers or foster carers. 2. Ms G states that it is the PSP caseworker's role (in this case MM) to attempt to find family members that may be able to care for children. 3. On 10 August 2022 Ms Dillon, the children's paternal aunt applied to be assessed as carer for Phoebe. 4. Ms G then made a Chapter 16A request to NSW Police for Ms Dillon. 5. The response to the Chapter 16A request listed 67 different events for Ms Dillon including domestic violence offences, malicious damage offences, offences against children and AVOs. 6. Ms G concluded, by 22 August 2022, that given the number and nature of events contained in Ms Dillon's record that the Designated Agency would not proceed with a full assessment. Ms Dillon was informed by telephone and in writing of this decision. The letter sent to her included her avenues of appeal if she was dissatisfied with the decision. 7. Ms G did not receive any referral to assess any other family member and neither did she ask Ms Dillon about any other family members to whom the Designated Agency could contact regarding becoming kinship carers because that is not her role. That function is performed by the Permanency Support caseworkers. 8. The Designated Agency undertook probity checks of Ms Dillon and made a decision, which appears on its face as reasonable, that due to the results of the probity checks, a full assessment for authorisation would not be undertaken. Unfortunately, no details were included in the evidence, in all likelihood because the caseworkers did not appreciate the importance of explaining such an important decision. 9. Even if it was not Ms G's role to search for potential family placements it seems an opportunity lost not asking Ms Dillon if there were any other family members she could suggest as a potential long-term carer for the girls. Evidence of MD 1. MD is the Permanency Support Team leader from the Designated Agency's Location 1 office. She supervises a team of PSP caseworkers. She describes the role of the PSP caseworkers: "…who do the day-to-day tasks for the child, making sure they have a placement and their health, like, all of their needs are met. Our caseworkers do conduct family finding sometimes in collaboration with DCJ or our carer recruitment or cultural connections team…" 1. MD clarified this evidence by saying that the Designated Agency has case management, and it is not DCJ but the Designated Agency that have the responsibility for family finding. 2. The Designated Agency, Location 1, did not receive any application to assess the paternal grandmother. The only application they received was from the paternal aunt, Ms Dillon. 3. MD's evidence included that: * The parents' engagement in family finding was quite minimal. * The parallel plan was for Phoebe to remain with her current carer who was authorised as her long-term carer, though in the Care Plan that placement was not identified to be Phoebe's forever home only a stop-gap measure. "Phoebe will remain placed with her current carer until a suitable extended family member or Aboriginal foster carer can be identified." * The steps the Designated Agency at Location 1 took to identify a permanent placement for the girls consisted of seeking family contact details from the parents and ruling out Ms Dillon after a probity check. 1. Ms Dougherty's evidence alerted the Court and the parties to a handover meeting between the Designated Agency at Location 1 and the Designated Agency at Location 2 on 6 June 2023. Her evidence was that there was no mention in that handover meeting of family finding or finding a permanent placement for the children and no "to do" list provided. 2. In relation to the fact that, at the 6 June 2023 handover meeting, there was no mention at all of finding a permanent placement for Phoebe, MD gave the following evidence: Q. Do you find that surprising? A. Yes. Q. Disturbing? A. I wouldn't say disturbing. I think, as I wasn't part of it, it's hard to comment on what was-- Q. Well, except your job is being a team leader for permanency support, so I would have assumed that permanency for children is an important part of your role, is that right? A. Definitely. Definitely, your Honour, it is a very important-- Q. So at the time that this was meeting, 6 June 2023, Phoebe, who was only, what, about 14 months old, around 14 months old, had been in care most of her life, had no permanent placement. So do you think it is concerning that there was nothing in the handover about finding her a permanent placement? A. It is concerning, but I do acknowledge the difficulty it was obtaining those family names for-- Q. But it's not just family, is it, it's also parallel planning. Is it the fact that there was some difficulty in family finding that would mean that it would be more important to include it in the hand over rather than less important. Would you accept that? A. Yes. 1. I conclude from MD's evidence that, as at 6 June 2023, finding a permanent placement for Phoebe was not a priority for the Designated Agency and there was no active plan for finding her a permanent placement. Evidence of DLY 1. DLY is the Regional Manager of the Designated Agency at Location 1 and has been in this role since September 2023. 2. DLY accepted that a Family Group Conference should be arranged when a family placement is needed even if the parents do not agree. She detailed various ways of obtaining information about family even when the details are not forthcoming from the parents. This includes consulting a genogram, reaching out to DCJ, doing research via social media and writing letters. 3. DLY said family finding and locating non-family authorised carers concurrently is important. Planning for permanency is a task that is ongoing throughout a young person's care journey and the permanency planning efforts should all be recorded in writing in the agency's files. 4. The Designated Agency did not organise a Family Group Conference, did not attempt alternative ways available to locate family, did not keep appropriate written records, had staff who did not understand their roles (and there was a great deal of confusion about roles) did not appropriately undertake parallel planning and did not appear to prioritise permanency planning. Ms GH 1. GH is the manager of the Designated Agency at Location 2's Permanency Support Programme and supervises MM's Team. GH told the Court that, unlike in Location 1, the Carer Recruitment Team in Location 2 do the family finding and work in tandem with the PSP caseworker and DCJ. 2. She has not had a great deal of direct involvement in the case, though has had general oversight. 3. At no time was she told that DCJ had assessed there was no realistic possibility of restoration of the girls to their parents, though she knew of a Clinic Assessment that came to that conclusion. She has not seen the Care Plans. 4. She was asked why the Designated Agency had not included in their affidavits the steps they had taken for family finding, the reasons they had ruled those families out and the fact that a long term authorised placement had been found for the girls. She replied that would be a question for MM or his team leader and FF or NB (DCJ caseworker and casework manager) "who generally guide my staff as to what to put into the affidavits." 5. GH confirmed that the only family finding the Designated Agency at Location 2 did was make one phone call to the maternal grandmother. 6. She was asked about what steps had been taken towards permanency planning for these girls. There had been one call to the maternal grandmother who had been ruled out as a carer and the Designated Agency had been engaged in parallel planning for these children for about 9 months when the Recruitment Team identified a match to carers who were then in the assessment stage but who are now fully authorised. Evidence of HYY 1. HYY is a carer recruitment caseworker at the Designated Agency, Location 2. He has a diploma in community work, counselling qualifications and has undertaken the Step-by-Step training in assessments of foster carers. 2. HYY was asked to respond to the maternal grandmother, Ms Jane Corrs, interest in becoming the long-term carer for the girls. 3. The Court was provided with a typewritten case note from HYY prior to he and GH giving evidence. That note purported to be a note of the conversation HYY had with the maternal grandmother, Ms Jane Corrs on 13 September 2023 and which concluded with the following: "the carer recruitment caseworker thanked Jane for her time, but advised that the Designated Agency would not be proceeding with an application for her to provide care to her granddaughters." 1. HYY said he typed this case note that morning from bullet points he had handwritten and his good memory. His case notes are meant to be entered into the computer system, but he had not done so as he had not got around to it due to competing priorities. HYY agreed that the caseworkers in the organisation would have no way of knowing about or accessing the information because he had not entered into the computer system. 2. HYY communicated his decision verbally to his manager and MM. 3. HYY gave evidence that he: * Has no role in family finding. [This is in direct conflict with the evidence given by his manager GH. GH said HYY's role includes family finding "So, [HYY] is the caseworker that is – has been working as far as family finding with the Wilson girls." * He has no role in parallel planning for the girls. * Ms Corrs was the only person he was asked to assess. He spoke to her on 13 September 2023 having obtained her contact details from MM. He noted her contact details were also on the Designated Agency's computer system. * He excluded Ms Corrs as a carer because she did not have a spare bedroom. Although there were other concerns relating to her parenting her own children the overriding reason for refusal was because of her accommodation. * The Designated Agency does not assess any person, including a proposed kinship carer, unless they currently have adequate accommodation. * Ms Corrs indicated she was willing to move to [a regional centre] to care for the girls long-term. HYY considered that for her to live in [a regional centre] she would have to access public housing. He did not offer to write a housing support letter to allow her to pursue being assessed as a carer explaining: "I've never normally done that as my practice in recruitment. I did speak with MM briefly about the fact that there was (as said) housing issues there. Ms Corrs had believed that she was on a housing list somewhere, but could not really speak to that." * He was entitled/authorised to make the decision relating to not moving forward with assessment of maternal grandmother. 1. GH, HYY's manager agreed that HYY has decision making authority to decide whether or not to assess a person and that she was content for him to do so. 2. NB, DCJ's Manager Casework, gave evidence that the lack of a spare bedroom is not a sufficient reason to exclude a family member as a potential carer. 3. HYY confirmed that after speaking with Ms Corrs, some six months ago he knew about her 41-year-old son who lived with her, her brother who lives in Victoria, her sister who lives in Queensland and her own children in Queensland and Melbourne but none of this information was given to MM because he, HYY, was only dealing with the referral regarding the maternal grandmother. 4. At the time he spoke to Ms Corrs, she had had two contact visits with the children. He did not inquire as to whether she wished to pursue having family time with the children. Case Management by the Designated Agency 1. DCJ delegated responsibility for Phoebe and Katelyn to the Designated Agency. 2. Initially it was the Location 1 branch of the Designated Agency with case management. On 6 June 2023, the Designated Agency transferred the responsibility from the Location 1 office to the Location 2 office. 3. Given the paucity of evidence filed regarding permanency planning the Court sought to have that evidence elicited in oral evidence. A series of employees from the Designated Agency were called by DCJ. 4. From the date that Phoebe came into care to the date of the hearing in March 2024, almost 2 years, family finding consisted of: * Asking the parents several times for contact details for family. * Undertaking a probity check on paternal aunt and ruling her out as a carer. * Making one phone call to the paternal grandmother. * Making one (or two) phone calls to the maternal grandmother. * Perusing Mr Wilson's social media page, once. 1. I conclude from the evidence given by both the DCJ staff and the Designated Agency staff that: * The roles and responsibilities of casework staff were either ill-defined or not understood by the staff. The caseworkers seem to be confused about their own roles or the caseworker and his manager had conflicting views about the responsibilities of the role. The consequence of this was that no caseworker or manager accepted responsibility for, or actively pursued, permanency for the children. * The casework staff were not willing to step outside the strict bounds of what they perceived to be their role. This was the case even though there was potential for significant benefit with minimal effort. (e.g. HYY not passing on the details of family members to MM and Ms G not asking Ms Dillon whether there were other family members who may be able to become carers). * There was a lack of understanding by caseworkers of Family Group Conferencing. The caseworker did not organise an FGC because he did not have the consent of the parents, though the consent of the parents is not necessary. * There was a lack of understanding of permanency planning/parallel planning. * There was a failure to appropriately prioritise permanency planning for the children. Minimal effort went into permanency planning for the children, and when the case was transferred between the Designated Agency branches, there was no mention of permanency planning. * There was a lack of oversight and review and supervision of the casework. If there had been proper oversight, then the gaps in the casework could have been identified and an appropriate permanency plan developed. * There was a lack of appropriate and accurate record-keeping and internal sharing of information. * There was a policy or an understanding by the relevant staff that there was a policy in the Designated Agency that a lack of a spare bedroom for a prospective kinship carer was in and of itself disqualifying. * No consideration is given by the Designated Agency to address a practical impediment to becoming a long-term carer (HYY did not consider any way the Designated Agency could have assisted the grandmother with alternative accommodation if that was the disqualifying reason for her not being a suitable carer). * A decision which has potential lifelong consequences for children, that may ultimately mean the difference between a child living with family or living in foster care, is made by a person with limited qualifications and without appropriate oversight. 1. There was a significant amount of relevant evidence regarding permanency planning that was not included in these proceedings prior to the March 2024 hearing. The Designated Agency are not a party in these proceedings. It is DCJ that files affidavits from the Designated Agency as evidence in DCJ's case. It is DCJ's responsibility to ensure that the Designated Agency's affidavits contain the necessary, relevant and reliable information. 2. The Court gave the Minister interim parental responsibility. The Minister, in the exercise of her responsibility, should have been trying to find a suitable permanent placement for the girls to settle them as soon as possible. Instead, the Minister delegated her parental responsibility to an organisation, whose case management was shambolic and who did not appropriately carry out the case management. The Minister did not have appropriate and sufficient safeguards built in to recognise the Designated Agency's ongoing failure and to step in to remedy that failure in a timely way. Has permanency planning been appropriately and adequately addressed? 1. Since the March 2024 hearing dates, MM and HYY have both filed affidavits of comprehensive efforts towards family finding. There has finally been extensive family finding which has not resulted in any family or kinship placements being assessed as suitable. 2. Amended Care Plans for the girls were filed on 29 April 2024. They propose a long-term placement together with identified authorised carers and a transition to that placement if a Family Group Conference which was to be conducted on 17 May 2024 did not yield a family placement. 3. I note that Phoebe's Care Plan no longer identifies Phoebe as an Aboriginal child. 4. A Family History Report from the Crown Solicitor's office was commissioned by DCJ to "provide research assistance in considering family information concerning Aboriginal identity, and to report on any Aboriginal family connections and ancestors that can be identified, along with any available details of their country, language, and culture." 5. The report was lengthy and comprehensive. In summary, the findings were as follows: "We have conducted genealogical research into Phoebe's paternal ancestry and have not to date been able to independently confirm Aboriginal descent or positively identify a recorded Aboriginal ancestor. Insufficient information has been available for us to make progress in researching Phoebe's maternal ancestry. As Phoebe's family were originally from Victoria, obtaining private genealogical information via a Chapter 16A request was not possible. Information from family members had also been limited and there is no specific information available as to which line of ancestry or particular ancestor in the family is thought to be of Aboriginal or Torres Strait Islander descent. Without specific family information it is difficult to focus research. It is also impossible to rule out unrecorded family connections that may be relevant but may be known only to family." 1. During the March 2024 hearing Mr Wilson indicated he would be filing further evidence regarding his Aboriginal heritage, including evidence from his sister, Ms Dillon whom, he said, held all the information regarding the family. He indicated he would file evidence from Ms Dillon considering the difficulties the caseworkers faced obtaining the information from her. Unfortunately, no such evidence was filed by Mr Wilson and no further information provided to the caseworkers or the Court. DCJ have told the Court and included in the Care Plan that should there be any further information provided, the Crown Solicitor's Office will be instructed to conduct further research. 2. At the time of the May 2024 hearing the children were in their proposed long-term placement with fully authorised carers. 3. Ms Renwick, the girls' paternal grandmother has yet to be assessed and maintains an interest in being assessed as the long-term carer. Despite the fact that Phoebe's proceedings have been on foot since May 2022 and despite the fact that Mr Wilson has been saying repeatedly for some years he wants his mother to be the children's carer, there has not even been an initial meeting with Ms Renwick. The Designated Agency's first step in their assessment process is a meeting. This meeting does not require a carer application. This meeting is referred to by the Designated Agency as an Information Exchange. This Information Exchange Meeting is scheduled to take place with Ms Renwick, by phone, on 29 May 2024. 4. Ms Renwick is 69 years old. At the Family Group Conference she was observed to need a walker for mobility. FF's affidavit of 3 April 2024 included that Ms Renwick told FF that she has kidney issues, high blood pressure and "slight adult polio" but that she considers she is able to be the girls' carer because she sometimes cares for her 2-year-old great granddaughter, and she can walk, clean and do volunteer work 4 days per week. 5. Given Ms Renwick's age, her health and mobility issues and the ages of the girls, it seems unlikely that she will be assessed to be a suitable long-term carer. Of course, these issues will be less impactful in an assessment as a respite carer. 6. I was informed that, whilst at Court on 27 May 2024, Ms Davis gave the caseworkers the name and contact details of Mr Wilson's 31-year-old nephew as a potential long-term carer for the girls. I was informed the caseworkers will contact him to ascertain his interest in caring for the girls and then if he lodges an application, will start the assessment process. 7. Section 78(2A) of the Care Act provides that a permanency plan need not provide details as to the exact placement in the long term of the child concerned but must be sufficiently clear and particularised so as to provide the Children's Court with a reasonably clear picture as to the way in which the child's needs, welfare and well-being will be met in the foreseeable future. 8. The permanency plan is for the girls to remain in their current placement which is their authorised long-term placement unless there is an assessment of the paternal grandmother or Mr Wilson's nephew as a suitable carer. 9. If neither of these, at this time, non-assessed proposed placements are viable then the current proposed long-term placement will be confirmed as permanent. 10. The evidence of the processes and decision making of the Designated Agency thus far for these girls gives me little confidence in the Designated Agency's processes or decision-making. If I was depending on their processes or expertise or their commitment to carry out tasks in a timely fashion then I could not have a reasonably clear picture as to the way in which the girl's needs, welfare and well-being will be met in the foreseeable future and could not be satisfied that permanency planning was appropriately and adequately addressed. 11. I have however heard from DCJ Manager that he will 'supervise' the Designated Agency to ensure that the Designated Agency: * Undertake the necessary inquiries and assessments, within a reasonably short time frame, of the only two remaining family placement options. * Provides the paternal grandmother with necessary assistance if she wishes to make a formal application to become the girls' long-term carer. * Makes decisions that are timely, well-informed and well-reasoned and documented. * Will not refuse the application for a family member as a carer on the basis of that family member's accommodation not being appropriate. 1. The Court has been assured that if the Designated Agency form the view that the children should move to live with the paternal grandmother or Mr Wilson's nephew, the children will not be moved from their current placement unless and until that move is comprehensively reviewed and sanctioned by DCJ. If neither of the family placements referred to in this judgment are viable then the current placement will be confirmed as the girls' long-term placement and the current carers will be notified of this decision. 2. I have had an assurance from the Team Leader of the Designated Agency, given under oath, that the Designated Agency will accept the oversight and supervision of DCJ as outlined in the evidence of the DCJ Manager Casework. 3. I will also order a series of section 82 Reports which is to include a range of issues including, whether the paternal grandmother and other family member brought an application to become a carer and, if so, the outcome of any assessment. 4. The Court was informed that DCJ will remain involved during the initial period regularly and then at least every three months for formal reviews. 5. Ms Davis and Mr Wilson obviously love their daughters very much and one of the ways in which they have proven that love is through their unfailing attendance at contact and their efforts to make those visits positive experiences for the girls. The current twice weekly contact is not sustainable in the long-term and nor is it in the children's best interest given they are being settled in a long-term placement. There is to be a step-down process and ongoing reviews. The review process is reasonable and has been included in the Care Plan. DCJ have committed to meet with the Designated Agency regularly and to supervise and provide oversight whilst contact is settled. 6. There is provision in the Care Plans for ongoing contact to the girl's extended family. It is proposed that contact will be supervised and there will be no unsupervised contact unless it is assessed to be safe. 7. Phoebe and Katelyn's cases have been before the Children's Court almost the whole of their lives. It is well beyond time that the cases were finalised. The children are together in an authorised long-term placement. There is a commitment to finalising, in both a timely and informed way, the issue of whether there is a suitable long term family placement and a commitment for the process to be closely monitored and supervised by DCJ. The opportunity for the girls to maintain their connection to their parents and extended family are provided for. Importantly there is a commitment to further research from the Crown Solicitors Office if more information comes to hand regarding the girls' heritage. In all the circumstances I am satisfied that permanency planning has been appropriately and adequately addressed for Phoebe and Katelyn. Final Orders 1. It was agreed by all the parties that an order of Parental Responsibility to the Minister for the girls until they are 18 should be made. I am satisfied there is no less intrusive order that can be made in the circumstances of this case. It is an order of parental responsibility to the Minister to 18 which is consistent with promoting the children's safety, welfare and well-being and I am satisfied that this order is the order that is in the best interest of Phoebe and Katelyn. 2. Pursuant to section 79 of the Care Act all aspects of parental responsibility for Phoebe Wilson and Katelyn Wilson are allocated to the Minister for Families and Communities until each child reaches the age of 18 years. 3. I order a series of section 82 reports as set out in the agreed proposed Minute of Order filed on 28 May 2024. Case management of the legal proceedings 1. Delay is usually inimical to the welfare of the child. To prevent this, robust case management is required by the caseworkers, the legal representatives, and the Court, at all stages. Waiting for a contested final hearing to raise issues is not welfare neutral for a child and, as can be seen from this case, can result in a waste of scarce resources. All the legal representatives should identify issues and then deal with them fairly and proportionally and work towards narrowing disputed issues and complying with the Court's directions. All parties' legal representatives should monitor compliance with the Court's timetable and if needed, report any failures to the Court. 2. Despite this matter being before the Court on approximately 16 occasions before the 4-day final hearing, including a Readiness Hearing and an application for an adjournment, it was readily apparent that DCJ had not filed evidence that would have gone close to satisfying the necessary pre-condition to the making of a final order, that is that permanency planning had been appropriately and adequately addressed and thus final orders could not be made at the conclusion of the hearing. 3. The affidavits filed by the Designated Agency and the evidence given by the Designated Agency staff leads to the conclusion that the Designated Agency: * Did not have an appropriate understanding of, or a discernible plan for, parallel planning and permanency planning. * Were not provided with the documents filed in these proceedings pursuant to Practice Note 17. * Did not have information regarding or an understanding of the issues in the proceedings. * Did not receive the requisite and obviously necessary guidance on what issues they needed to address in their affidavits. * Did not have their affidavits reviewed or settled by DCJ's legal representative prior to filing, leading to a failed opportunity to identify gaps in casework which impact the issues in the case and which led to irrelevant, inaccurate and incomplete affidavits. 1. The affidavits and Care Plans filed by DCJ, and the submissions made by DCJ leads me to conclude that DCJ, as at the first day of the final hearing in March 2024; * Failed to address the significant issue of permanency planning. * Filed evidence that contained errors and inconsistencies and further that significant evidence was omitted from affidavits. * Failed to review its own evidence, the evidence of the other parties and the correspondence from the ILR which would have highlighted gaps in the evidence necessary to achieve a final order of parental responsibility to the Minister to 18 as was sought by DCJ. * Did not comply with filing directions. * Failed to adequately prepare for the Readiness Hearing and the Final Hearing. 1. If DCJ's legal representative's advocacy was informed by his personally performing the following tasks, then the problems encountered in finalising this case may not have emerged: 1. Providing advice on the law and evidence, case management and the obligations of the Model Litigant. When taking instructions, if necessary, interrogating the reasoning behind those instructions and reality testing those instructions. The task of providing advice is ongoing throughout the entirety of the proceedings. 2. As soon as possible, and in any case at an early stage of the proceedings, identifying the facts in dispute and the key issues that will need to be addressed in the proceedings and developing a case theory or case plan to obtain the necessary evidence to address the facts/issues in the case. This case theory or case plan will have to be constantly reviewed and updated throughout the proceedings. 3. Ensuring that the caseworkers understand the need to, without delay, keep the legal representative apprised of any significant changes of circumstances, decisions made about the children, events, records, or reports obtained. 4. Considering all updated information/documents/reports and determining what information should be shared with the other parties and in what format and taking action as appropriate. 5. Actively engaging with the other parties to the proceedings on an ongoing basis to ensure they are apprised of all relevant information, in a timely way, and to continue to attempt to resolve factual disputes and other issues. This may also assist in identifying issues and gaps in the evidence. 6. If information has been summarised from a response to a Chapter 16A request, such as to NSW Police, and the source documents are not annexed to an affidavit, issuing subpoenas as necessary to ensure that all relevant source information is before the court at the earliest opportunity. 7. Drafting subpoenas that are targeted and precise and issuing those subpoenas early in the proceedings. 8. Arranging a Confidentiality Agreement with the Designated Agency with primary case responsibility and then complying with Practice Note 17; filing the Notice of that agreement in accordance with Practice Note 17 and providing the Designated Agency with the documents. The Designated Agency should be regularly updated with further documents as filed. 9. Keeping the evidence and the positions of the parties under review to identify any further evidence required to enable the key issues to be resolved and to identify opportunities for the issues to be resolved or narrowed. This obligation to review is an ongoing obligation and not one which is triggered only when the matter is listed at Court but should be undertaken, at least, when new evidence/information comes to hand, subpoenas are returned and/or circumstances change. 1. Advising the client whether expert evidence is required and if it is then drafting the assessment application or letter of instruction (for a privately funded assessment) and preparing a List of Documents to accompany the assessment application or letter of instruction. Circulating these documents to the parties and negotiating with parties to, if possible, have the terms and documents agreed. 2. Advising proposed witnesses when seeking to file an affidavit from that person, of the issues or topics or information that should be included. In seeking a draft affidavit from a caseworker, providing the caseworker with a time frame. Understanding that the caseworker may be assisted by a list of questions/issues/topics to be covered in a draft affidavit. 3. Settling the affidavits/Care Plans/Cultural Plans to ensure as far as possible accuracy, reliability, relevance, and compliance with rules/directions. Settling affidavits/Care Plans/instructing experts/reviewing subpoena material should serve to identify gaps in the casework or evidence to address the issues in the case and may also raise opportunities to limit the issues in the dispute and make the case smaller. 1. The lawyer will be mindful of whether information is already before the court in sufficient detail to avoid the necessity of directing further evidence to determine the issue. There does not need to be an updating affidavit every time the matter comes before the Court. Affidavits should only be filed if the evidence will assist in determining the issues before the Court. Updating information can of course be imparted by the DCJ lawyer to the parties at any time. 1. Filing evidence that is proportionate to the issues. 2. Making every appearance before the Court count. Being prepared and having a good working knowledge of the case. 3. Taking responsibility for compliance with the Court's directions. 4. Once it is clear that a party will not be able to comply with directions or has failed to comply with directions, considering whether the non-compliance needs to be brought to the attention of the Court to be rectified or to keep the case on track. 5. Before filing an Application for a Hearing to be set, thoroughly and critically review DCJ's case and consult with other parties. Consider whether there could be any additional steps taken to reduce the issues between the parties thereby making the hearing smaller. 6. Ensuring that prior to a Readiness Hearing there has been a thorough review of all the evidence and there have been robust discussions with all the parties; the subpoena bundle has been prepared, all DCJ's witnesses, including expert witnesses are available and have all the necessary updating material. Ensuring that readiness is assessed with regard to DCJ's evidence and the evidence filed by all parties. 7. Consulting closely with the other parties to make the case as small as possible and to, if possible, filing An Agreed Case Management Document. 8. Arranging a paginated Court book for the Court and the witness box for the hearing. 1. DCJ's case was not adequately prepared for hearing by the private practitioner who was instructed by DCJ. The Court does not know of the terms on which DCJ's legal representative was engaged or the fee structure for the work he was engaged to perform and cannot therefore make any findings as to why it was not properly prepared. 2. Finally, it should not be overlooked that it is the Minister and not the Designated Agency that brings the application and has the legal standing in the proceedings, and it is the Minister that usually has interim parental responsibility. Evidence from the Designated Agency will often be helpful or even necessary, but it is DCJ that bear the responsibility to file clear, cogent, reliable, and sufficiently detailed evidence, including evidence of permanency planning, to enable the Court to make a decision that is in the child's best interest. Amendments 29 July 2024 - At [133 (xix)] the word "in" after "assessed" has been removed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 July 2024