Department of Communities and Justice (DCJ) and Chase Croft [2024] NSWChC 15

Children's Court New South Wales

Medium Neutral Citation: Department of Communities and Justice (DCJ) and Chase Croft [2024] NSWChC 15 Hearing dates: 02 August 2024 Date of orders: 02 August 2024 Decision date: 02 August 2024 Jurisdiction: Care and protection Before: Children's Magistrate Sheedy Decision: Interim Order of Parental Responsibility to the Minister until further order Catchwords: CHILD WELFARE — Care proceedings — Active Efforts — Temporary Care Agreement Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW) Category: Procedural rulings Parties: Secretary, Department of Communities and Justice Mr Croft (Mother) Mr Lester (Father) Chase Croft, child Representation: Ms Hencke for the Secretary Mr Ryan for the mother Ms Zhu for the father Ms Khalil, as the ILR for Chase File Number(s): 2024/00217601 Publication restriction: Pseudonyms have been used for the name of the child, his family and the names of the caseworkers

EX TEMPORE JUDGMENT - REVISED

The Application 1. On 13 June 2024, the Secretary, Department of Communities and Justice ('DCJ') filed an application for a care order for Chase Croft, who was born on [ ] March 2013. 2. The application was first listed on 14 June 2024, when, on the application of DCJ and with the consent of the parties, the Court made an interim order of parental responsibility to the Minister until further order.

Background to the Application 1. The Court made the interim order of parental responsibility to the Minister until further order after considering the report filed by DCJ in support of the care application which included the background to the application which is set out below. From 20 July 2012, DCJ have received 72 reports about concerns for Chase. Thirty-eight (38) of these reports were assessed as meeting the threshold of Risk of Serious Harm ('ROSH'). These reports have been in relation to parental mental health, parental substance use, domestic violence, inadequate basic care, hazardous living conditions, neglect, medical and mental health neglect, sexual and physical abuse, homelessness, and transience. Chase's father is Mr Lester. Mr Lester has been diagnosed with Autism. Mr Lester has an NDIS package and NDIS support workers. DCJ records report that Mr Lester has significant mental health issues and a significant criminal history. Chase's mother is Ms Croft. Ms Croft and her partner Mr Wilson have co-parented Chase for about three (3) years. DCJ have had an active open case since 31 July 2023 and provided casework to Ms Croft. During the period 31 July 2023 to 12 June 2024, there have been 27 substantiated reports for Chase. Those substantiated reports include Ms Croft's use of methamphetamine ('ICE'), homelessness for a period longer than 12 months, physical and emotional abuse perpetrated on Chase, physical harm, psychological harm, Chase being exposed to domestic and family violence, inadequate basic care, hazardous living conditions, neglect, medical and mental health neglect. On 7 December 2023, Police received information from DCJ regarding concerns for the welfare of Chase and Ms Croft. On 23 December 2023, Police attended an address and spoke with Ms Croft about a domestic violence incident. Police also spoke with Chase. They both disclosed violence by Mr Wilson. Police observed bruises on Chase's back, chest and neck areas. On 2 January 2024, DCJ received a ROSH report in relation to the above-mentioned Police welfare check. Ms Croft and Chase both reported to Police Mr Wilson had choked Chase, with Chase saying "Dad [Mr Wilson] grabbed me here", pointing to his neck. On 9 January 2024, DCJ received a ROSH report concerning Chase. It was reported that Chase's mother had substance abuse and mental health issues which may result in Chase's basic needs not being met, and that Chase is being physically harmed. The Report also included that Ms Croft had punched Chase in the jaw the previous week. Ms Croft's partner Mr Wilson was charged, in January 2024, in relation to assaulting Chase. Ms Croft continued the relationship with Mr Wilson and they remained living together despite the assaults against Chase. On 23 January 2024, Police issued a provisional apprehended domestic violence order ('AVO') to protect Chase from his stepfather Mr Wilson. Ms Croft provided a statement to police stating that Mr Wilson had been choking Chase and injecting him with methamphetamine ('ICE'). Ms Croft disclosed to police that she has hit Chase in the jaw. This was in the context of trying to find family to care for Chase, as she did not believe she could meet his needs. Ms Croft stated that at times she employs excessive and inappropriate discipline when she struggles to parent Chase. The DCJ records state that there has been a disclosure of sexual abuse. Chase has chronic encopresis and it is noted that Chase was hitting caseworkers to their bottom, asking if he could put his "fist up their bottom as his family does this and talks about this". Chase would not expand on these statements, but records note that Ms Croft has said that Mr Wilson has sexually abused Chase. No further information had been located. On 9 March 2024, Ms Croft was arrested by police for breach of her bail conditions and threatening neighbours with a knife. There was no information about the charges Ms Croft was facing nor about her bail conditions. On 11 March 2024, DCJ received information from Police that Ms Croft, Mr Wilson and Chase had been living in an abandoned "squat" house in a suburb of Sydney. The house is listed for demolition. Police described the conditions of the house to be a risk to Chase safety and well-being due to his exposure to other drug affected people. It is reported that there was drug paraphernalia, uncapped syringes lying around, faeces on the floor throughout the living areas, dangerous dogs that have previously attacked neighbours and that there was no refrigerator and no food in the house. On 11 March 2024, DCJ completed a safety assessment on Chase, with an outcome of 'Unsafe'. At the time of this assessment, Chase, Ms Croft and Mr Wilson were homeless. They had stayed in an abandoned house in a suburb of Sydney for the last couple of weeks as they had nowhere else to go. They were advised by Police they were unable to return to the abandoned house. During the safety assessment Ms Croft and Mr Wilson both appeared drug affected and both disclosed using ICE the day before. Ms Croft consented to a Temporary Care Arrangement for Chase. On 11 March 2024, via a section 173 for medical review, [1] Chase disclosed to caseworkers that Mr Wilson is a "Chase basher", he then lifted his shirt and showed caseworkers yellow and orange bruises to his right hip and right upper chest. Since commencing the Temporary Care Arrangement, Chase has frequently made disclosures about being assaulted by Mr Wilson on different occasions. An example recorded in the observation notes at a Sydney Hospital on 11 March 2024, was that throughout the day Chase continued to say that Mr Wilson "hit me here on my chest really hard" and pointed to his chest. Chase asked workers to put their hands out and demonstrated on them "this is how hard [Mr Wilson] hit me". In May, June and July 2023 there were multiple ROSH reports for excessive discipline and other non-accidental injuries, including reports of Chase having a burn on his back and a cut above his eye. Ms Croft had told caseworkers that Mr Wilson had caused the cut to Chase's eye. Chase has disclosed that he gets smacked on the bottom with an open hand, Chase was asked if he gets hit anywhere else and he replied "yes, on the neck". Chase stated that this happened when they lived in the Sydney area, Chase said he struggled to breathe for a second and was pushed against a wall. Since entering into the Temporary Care Agreement, Chase has disclosed to support workers when he has witnessed Mr Wilson kicking Ms Croft and he worries that Mr Wilson will continue to hurt her. Chase has described occasions where he had taken Ms Croft's needles and was trying to flush them to stop her from using drugs. Ms Croft acknowledges that she has significant issues with substance use which highly impacts her ability to meet Chase's needs. Ms Croft has not reported any assaults or breach of AVO to Police to protect Chase from Mr Wilson. Chase has not attended an educational setting since leaving a regional town in NSW in November 2023. Prior to entering a Temporary Care Arrangement on 10 March 2024, Chase had not had access to medical treatment or medication or NDIS engagement for a period of two (2) years. During the initial response by DCJ commencing in January 2024 until his entry into a Temporary Care Arrangement, Ms Croft did not address Chase's encopresis (faecal soiling) and it was not treated or monitored by medical professionals. On 9 April 2024 the matter was allocated to DCJ Aboriginal caseworker Ms Foster and Acting Manager Casework Ms Chester. At the time Chase, had been in the Temporary Care Arrangement for a period of one (1) month. On 26 April 2024, caseworker Ms Foster and Acting Manager Casework, Ms Chester had an Aboriginal Consultation with staff from DCJ Cultural Connections Team. This consultation occurred as Ms Croft and Chase identify as Aboriginal. During this consultation, the Cultural Connections Team suggested that DCJ caseworker completes family finding and have further conversations with extended maternal family to assist in identifying Chase's Aboriginal heritage. Chase has been identified by DCJ as a child with an intellectual disability, Autism Spectrum Disorder (Level 3), Attention Deficit Hyperactivity Disorder and extreme dysregulated behaviour and disinhibition marked with impulsivity, including self-harm. 1. Under the heading "Active Efforts" in the application for care order filed DCJ states it has made the following 'Active Efforts' to support the safety, welfare and well-being of the child and the parents before the application was made. On 10 March 2024, Ms Croft agreed to Chase being on a Temporary Care Arrangement. On 11 March 2024, Chase was discharged from hospital. Chase was placed in an IPA placement, in the care of caseworkers from Sydney Aboriginal Family Support Services. On 4 April 2024, DCJ caseworker Ms Warnock and Manager Casework Ms Lowe and Ms Chester met with Ms Croft to develop a family action plan. Specific goals identified were: Ms Croft would like to achieve the goals for Chase to return to her care and be in a safe and substance free environment. For Ms Croft to provide the required documentation to commence drug rehabilitation at Odyssey House. For Chase and Ms Croft to have positive planned, phone and face-to-face contacts during the Temporary Care Arrangement, which do not cause Chase to worry about his or Ms Croft safety. For Ms Croft to work with Odyssey House to gain long-term accommodation in the Sydney or regional town area. For Ms Croft to create a safe environment for Chase to return to which is stable, free from domestic violence, not impacted by drug use, and engagement For Chase to have ongoing access to education and NDIS services. DCJ have made ongoing attempts to support Ms Croft to complete an intake with Odyssey House long-term residential drug and alcohol rehabilitation unit. Ms Croft was unresponsive to this support and the intake process was not completed. Ms Croft was required to supply Odyssey House with documentation to progress to admission. Ms Croft did not supply this documentation. Caseworkers made numerous attempts to support Ms Croft to supply this documentation. On 9 April 2024, Chase's case had been allocated to DCJ Aboriginal caseworker, Ms Foster. Ms Foster liaised with Odyssey House intake worker regarding admission for Ms Croft. Ms Foster was advised that if Ms Croft obtained a health summary from her treating doctor this would be sufficient for admission. After multiples unsuccessful attempts at making contact with Ms Croft, Ms Foster then established contact. Ms Foster advised Ms Croft of the Odyssey House requirement intake outcome and Ms Croft stated that she had an upcoming appointment with the doctor and would arrange this and send through. Ms Croft did not complete this task. Ms Foster has attempted to make an appointment time with Ms Croft and offered support to attend the doctor with her. Ms Croft has declined this support and said that she did not want to go to rehabilitation as she could not go that long without seeing Chase or the initial six weeks. Ms Foster has agreed to negotiate this with the rehabilitation facility as this would not be in Chase's best interest. Ms Foster discussed visiting family time and phone contact with Chase and Ms Croft in the initial six weeks at Odyssey House. An agreement was made that visiting, family time and phone calls between Chase and Ms Croft would proceed and would be negotiated between Odyssey House in DCJ. Ms Foster also discussed financial assistance with Odyssey House to cover Ms Croft admission fees and to purchase items that she may need for admission. On 26 April 2024 Ms Foster was notified by a Sydney hospital that Ms Croft had been admitted for medical reasons. The plan was Ms Croft would remain as an inpatient until the following week when Ms Foster would attend, on 30 April 2024, to plan for Ms Croft's direct transition from the hospital to the rehabilitation facility. Ms Croft absconded from the hospital late at night on 26 April 2024 and returned to Mr Wilson. Ms Croft planned for Ms Foster to meet her at a suburban train station at 3 PM on Tuesday, 30 April 2024, for Ms Foster to support Ms Croft to the doctor for her health summary. Ms Foster was to send this through to Odyssey House. Despite multiple phone calls between Ms Foster and Ms Croft, Ms Croft failed to attend. Ms Foster waited at the station until approximately 6 PM. Ms Foster was notified that Ms Croft had phone contact with Chase on 27 April 2024. It is reported that Ms Croft placed Mr Wilson on the phone to Chase. Chase became very distressed after the phone call. On 1 May 2024, a Family Group Conference ('FGC') occurred. During this time, Ms Croft has agreed to the following: Attend and complete long-term residential drug and alcohol rehabilitation program. Face-to-face family time with Chase each Friday between 12 and 2 PM. Attendance is to be confirmed by Ms Croft on the day prior, by 6 PM. There is to be no third person to be present during any family time and phone contact, unless prior approval from DCJ caseworker. Ms Croft is not to be substance or alcohol affected during face-to-face family time or phone contact. If workers suspect Ms Croft of being affected contact will be ceased immediately. Unfortunately, at this stage no family members have been identified for assessment for placement options for Chase during the FGC. During the FGC, Chase was supported by his SAFSS workers to have a break. When they were walking outside, a male approached Chase, calling out his name. Chase became distressed. When the workers got Chase to an area he felt safe and his emotional state became baseline-type, Chase told workers the man's name is 'Tommy'. Ms Foster addressed this with Ms Croft, who advised that the man was an ex-police officer who has some notoriety. Ms Croft has been advised that no third parties to be present at any event occurring for Chase unless prior approval from DCJ is given. Ms Foster explained to Ms Croft that these boundaries are put in place to ensure a level of safety for Chase. Ms Foster raised with Ms Croft the fact that Mr Wilson had been allowed to breach the AVO by placing Mr Wilson on the phone to Chase. Ms Croft stated that she put Mr Wilson on the phone because she needed Chase to know she was with him, because he knows how to keep her safe. Ms Croft does not understand the impacts this has on Chase. Ms Croft does not understand that it is not appropriate for her to expect Chase to be responsible for her safety. During the FGC, Ms Foster offered support to Ms Croft to attend her doctors to obtain the required documents for Odyssey House. This Croft declined this and said that she would get it herself and send it through. Ms Croft left the FGC immediately after saying farewell to Chase. Ms Foster has offered to support Ms Croft to access different long-term residential rehabilitation centres, however Ms Croft has declined this. Ms Croft returned to staying with Mr Wilson in a Sydney suburb. 1. Despite these events, at this time, no application for a care order was made. The DCJ report continued as follows: On 10 May 2024, Ms Foster was advised that Ms Croft had moved into the home of Mr Lester. The relationship status between Ms Croft and Mr Lester is unknown. Chase continued to make disclosures to different support workers, which will be investigated during ongoing casework. Chase remains hyper vigilant and is extremely fearful that Mr Wilson knows where he is and will come and hurt him. Ms Croft has not made any attempts to access drug and alcohol support. On 13 May 2024, DCJ caseworker Ms Foster submitted a referral to the Safeguarding Decision Making for Aboriginal Children Panel ('SDMAC'). On 15 May 2024, DCJ caseworker Ms Foster submitted a referral from Ms Croft and Mr Lester to Legal Assistance For Families Partnership Agreement Program ('LAFPA') for legal support. On 16 May 2024, DCJ caseworker Ms Foster submitted a referral to the LAMA Child Law request for Chase. On 24 May 2024 Chase's case was presented to the SDMAC Panel. DCJ Principal Officer, [ ], approved for Chase to be assumed into the care of the Minister. 1. DCJ's care application continues as follows: "DCJ hold ongoing concerns in relation to the mother's substance use, mental health, experiences of violence, homelessness and hazardous living conditions and that Ms Croft is unable to provide a level of protection to keep Chase safe from harm and she has made very little progress towards the Family Action Plan for Chase to be returned to her care." "His basic needs are not being met, his significant needs in relation to his disabilities and encopresis, his significant behaviours of concern, which include physically assaulting his carers and property damage. He is at increased risk of harm due to his age and support needs and vulnerabilities. DCJ hold concerns in relation to physical abuse perpetrated on Chase by both Mr Wilson and the mother's her ability to protect him. Due to limited contact with Chase's father, Mr Lester, the nature of his relationship with Chase is unknown." Ms Croft has advised that Chase has seen his father, though the frequency of visits is not currently known. DCJ reviewed the records regarding Mr Lester, noting they suggest he has been diagnosed with autism, he has a NDIS support package and is cared for by NDIS support workers. He has significant mental health issues and a significant history of criminal offending. Further information and assessments will need to be undertaken to evaluate his capacity to provide care for Chase. DCJ records also indicate there is a five person alert active for Mr Lester. Four of these alerts relate to the safety of staff. He has two other children who were moved from his care and have been placed in the care of the Minister since early childhood. 1. On 10 March 2024, Chase entered into a Temporary Care Agreement as an Active Effort. 2. A Temporary Care Agreement is an agreement between DCJ and a parent that the child does not live with the parent but the parent retains parental responsibility for the child. The parent can decide, at any time, to terminate the Temporary Care Agreement. 3. A Temporary Care Agreement is provided for in section 151 of the Care Act as follows: 151 (1) The Secretary may make a temporary care arrangement in respect of a child or young person if the child or young person is, in the opinion of the Secretary, in need of care and protection. (2) The Secretary-- (a) has the care responsibility of a child or young person who is the subject of a temporary care arrangement, and (b) may delegate that care responsibility only to an authorised carer. (3) The Secretary must not, in the case of a child, make a temporary care arrangement in respect of the child unless-- (a) a parent of the child consents to the arrangement and a permanency plan involving restoration is in place in relation to the child, or (b) the parents of the child are, in the opinion of the Secretary, incapable of consenting to the arrangement. 1. Active Efforts can be briefly stated as specific actions or activities undertaken by caseworkers and services to reduce the risk of a child entering into Out-of-Home Care or support restoration if the child has already been removed. 2. Active Efforts is provided for in the Care Act in section 9A and section 63: 9A (1) The Secretary must act in accordance with the principle of active efforts in exercising functions under this Act. (2) The "principle of active efforts" means-- (a) in taking action to safeguard or promote the safety, welfare and well-being of a child or young person--making active efforts to prevent the child or young person from entering out-of-home care, and (b) for a child and young person who has been removed from the child's or young person's parents or family-- (i) making active efforts to restore the child or young person to the child's or young person's parents, or (ii) for a child or young person for whom it is not practicable or in the child's or young person's best interests to be restored to the child's or young person's parents--to place the child or young person with family, kin or community. (3) Under the principle of active efforts, the Secretary must also ensure active efforts are-- (a) timely, and (b) practicable, thorough and purposeful, and (c) aimed at addressing the grounds on which the child or young person is considered to be in need of care and protection, and (d) conducted, to the greatest extent possible, in partnership with the child or young person and the family, kin and community of the child or young person, and (e) culturally appropriate, and (f) otherwise in accordance with any requirements prescribed by the regulations. (4) Without limiting subsections (1)-(3), active efforts include-- (a) providing, facilitating or assisting with access to support services and other resources, and (b) if appropriate services or resources do not exist or are not available--considering alternative ways of addressing the relevant needs of the child or young person and the family, kin or community of the child or young person, and (c) activities directed at finding and contacting the family, kin and community of the child or young person, and (d) the use of any of the following-- (i) a parent responsibility contract, (ii) a parent capacity order, (iii) a temporary care arrangement under Chapter 8, Part 3, Division 1, (iv) alternative dispute resolution under section 37, and (e) another matter, activity or action prescribed by the regulations. (5) To avoid doubt, this section is subject to the requirement under section 9(1) that this Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount. (my emphasis) 63 Evidence of active efforts to take alternative action (1) When making a care application in relation to a child or young person, the Secretary must provide evidence to the Children's Court of the following-- (a) the active efforts made by the Secretary, in accordance with the principle of active efforts, before the application was made and the reasons the active efforts were unsuccessful, (b) the alternatives to a care order that were considered by the Secretary before the application was made and the reasons the alternatives were not considered appropriate. (2) Without limiting subsection (1), the Secretary must provide evidence that, before making the care application, active efforts were made to-- (a) provide, facilitate or assist with support for the safety, welfare and well-being of the child or young person, including support for the parents of the child or young person, and (b) consider any of the following actions that are relevant-- (i) a parent responsibility contract, (ii) a parent capacity order, (iii) a temporary care arrangement under Chapter 8, Part 3, Division 1, (iv) an alternative dispute resolution process under section 37. (3) Subsections (1)(a) and (2) do not apply in relation to a care application that is seeking an emergency care and protection order. (4) The Children's Court may adjourn proceedings if the Court is not satisfied with the evidence provided by the Secretary under subsection (1). (5) If the Children's Court is not satisfied with the evidence provided by the Secretary under subsection (1), the Court must not take either of the following actions unless the Court is satisfied that taking the action is in the best interests of the safety, welfare and well-being of the child or young person-- (a) dismiss a care application in relation to the child or young person, (b) discharge the child or young person from the care responsibility of the Secretary.