Citation: R.C. and P.K. v The Secretary, Department of Communities and Justice [2024] NSWDC 196
Court: District Court of New South Wales
Date: 3 June 2024
Judge: Strathdee DCJ
Background
The appellants were the mother and father of three young children, born in 2020, 2021, and 2022 respectively. Each child was taken into care shortly after birth by a delegate of the Secretary, Department of Communities and Justice (DCJ), acting under the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care Act). The Children's Court made final orders in July 2021 and May 2023 allocating parental responsibility for all three children to the Minister for Families and Communities until each child turns 18.
The parents appealed both sets of Children's Court orders to the District Court under section 91 of the Care Act, seeking the restoration of all three children to their joint care. The substantive hearing commenced in March 2024 and was consolidated to address the appeals relating to all three children together.
The case arose against a deeply concerning backdrop. The mother had nine older children, the majority of whom had been removed from her care and made subject to long-term ministerial orders following decades of DCJ involvement. That history included substantiated allegations of sexual abuse of older children by the mother, physical abuse, neglect, and family violence, as well as a criminal trial in 2016 at Parramatta District Court.
Legal Issues
- Whether the need for care and protection of the three children had been established to the requisite standard
- Whether the parents were likely to satisfactorily address the relevant child protection concerns within a reasonable time
- Whether restoring the children to parental care, or to the father's sole care, would be in the children's best interests
- Whether the Children's Court orders allocating long-term parental responsibility to the Minister should be confirmed on appeal
Decision
Strathdee DCJ confirmed the Children's Court orders and dismissed the parents' appeals. The Court found that restoring the children to their parents' care would expose them to an unacceptable risk of physical and psychological harm. Central to that finding was the extensive history of child protection concerns spanning more than two decades, the substantiated allegations of sexual abuse perpetrated by the mother against older children, and the mother's mental health issues and lack of insight into those concerns.
The Court placed significant weight on the evidence of the DCJ caseworker, Ms Tompsett, describing her as a highly credible and forthright witness whose considered opinions were accepted in full. The joint forensic psychologist, Ms Martens, had also recommended against restoration in both her 2020 and 2022 reports. Her evidence, combined with the caseworker's detailed account of the family's long history with DCJ, formed the evidentiary foundation for the Court's conclusions.
Strathdee DCJ was not satisfied that the parents were likely to satisfactorily address the relevant child protection issues within a reasonable timeframe. The Court also considered the current circumstances of the children in their respective placements and the potential harm of disrupting those arrangements. Although one child was placed separately from her siblings, the Court found no basis to conclude that the carers were not committed to maintaining sibling contact, noting that the carers had independently arranged contact without DCJ or Barnardos involvement.
On 14 March 2024, the father had applied for an adjournment to seek an assessment of his capacity to care for the children on his own, to the exclusion of the mother. That application was refused in a separate judgment ([2024] NSWDC 85), and the substantive appeal proceeded on the evidence already before the Court. The District Court's final conclusion was that the orders made by the Children's Court best promoted and safeguarded the long-term safety, welfare, and wellbeing of all three children.
Orders Made
- Orders made by the Children's Court on 12 July 2021 as regards ALK are confirmed
- Orders made by the Children's Court on 26 May 2023 as regards JK and AYK are confirmed
- The parents' appeals are dismissed
Key Takeaways
- In dismissing the consolidated appeals, the District Court confirmed that long-term ministerial orders under the Care Act will be upheld on appeal where the evidence establishes that restoration to parental care poses an unacceptable risk of harm and the parents are unlikely to address child protection concerns within a reasonable time.
- A protracted history of DCJ involvement, spanning multiple children across two decades and including substantiated findings of sexual and physical abuse, was treated as highly relevant contextual evidence when assessing the risk posed to subsequently born children.
- The Court accepted the evidence of both the joint forensic psychologist and the DCJ caseworker over the parents' evidence, underscoring the significance of expert and professional assessments in child protection appeals.
- Where a parent seeks an adjournment during a substantive hearing to obtain new evidence supporting an alternative care arrangement not previously advanced, the Court retains a discretion to refuse that application, as Strathdee DCJ did here (see [2024] NSWDC 85).
- Separate placement of siblings did not itself undermine the Children's Court orders, where evidence indicated the carers were actively facilitating sibling contact independently of DCJ involvement.
Legislation and Cases Referenced
Legislation
- Children and Young Persons (Care and Protection) Act 1998 (NSW), particularly sections 91 and 94
Cases
- Briginshaw v Briginshaw (1938) 60 CLR 336
- M v M [1988] HCA 68
- NU v NSW Secretary of Family and Community Services [2017] NSWCA 221
- R.C. and P.K. v The Secretary, Department of Communities and Justice [2024] NSWDC 85 (related interlocutory decision on adjournment application)
- Secretary, Department of Communities and Justice and Farmer [2019] NSWChC 5