AB and JB v The Secretary

[2021] NSWDC 626

District Court

New South Wales

Medium Neutral Citation:

AB & JB v The Secretary & Ors [2021] NSWDC 626

Hearing dates:

15, 16 & 17 November 2021

Date of orders:

19 November 2021

Decision date:

19 November 2021

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. The order made by the Children’s Court at Campbelltown on 21 July 2021 which refused the application by the maternal grandparents for leave to be joined to those proceedings, is set aside;

2. Pursuant to s 98(3) of the Children and Young Persons (Care and Protection) Act 1998, leave is granted to the maternal grandparents to be joined as additional parties to the proceedings that are presently before the Children’s Court at Campbelltown;

3. The proceedings are remitted to the Children’s Court at Campbelltown to be determined in accordance with Order (2) above;

4. The exhibits are to remain with the Court file;

5. Liberty to apply on 7 days’ notice if further or other orders are required.

Catchwords:

CHILD CARE APPEAL – appeal from the order of the Children’s Court refusing joinder of maternal grandparents in child care proceedings – refusal order set aside – leave granted for joinder

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998, s 3, s 9, s 10A, s 91, s 93, s 94, s 98, s 105, s 107(1)

Civil Procedure Act 2005 (NSW), s 58(2)

Cases Cited:

A v The Secretary, Family and Community Services [2015] NSWDC 307

Bell-Collins Children, Department of Family and Community Services [2015] NSWSC 701

D v C; Re B (No 2) [2018] NSWCA 310

EC v Secretary, NSW Department of Family and Community Services [2019] NSWSC 226

EL & WL v Director General of the Department of Human Services [2010] NSWDC 248

Category:

Principal judgment

Parties:

Maternal grandfather and grandmother (Appellants)
Secretary, Department of Communities and Justice (First respondent)
Mother (Second respondent)
Father (Third respondent)
Paternal grandfather (Fourth respondent)
Rene Forshaw (Independent Legal Representative – Fifth respondent)

Representation:

Counsel:
Ms R Dart (Appellants)
Mr J Harris (First respondent)
Ms L-M Saw (Second respondent)
Ms G Mahony (Fifth respondent)

Solicitors:
Stanfords (Appellants)
Crown Solicitor (First respondent)
Hansen Legal (Second respondent)
Marina Voncina (Third respondent)
Robert Tricca & Associates (Fourth respondent)
Forshaw Lawyers (Fifth respondent)

File Number(s):

2021/210664

Publication restriction:

Non-publication order

Judgment

Table of Contents

Child care appeal	[1] – [6]
Non-publication order	[7]
Unexplained injuries to the child	[8] – [16]
Background and context	[17] – [46]
Evidence	[47] – [51]
The appealed decision of the Children’s’ Court	[52]
Care plan prepared by the Secretary	[53]
Further factual background	[54] – [56]
Applicable legal principles concerning joinder of parties	[57] – [66]
Issues	[67] – [68]
Evidence summary	[69] – [125]
Ms Sarah Brown	[70] – [82]
Evidence filed in the Children’s Court	[83] – [91]
Evidence filed in the appeal	[92] – [125]
Submissions of the parties	[126] – [135]
Issue 1 – Policy and legislative objectives	[136]
Issue 2 – Whether only limited leave should be granted	[137] – [140]
Issue 3 – Genuineness of the stated concerns	[141] – [150]
Issue 4 – The effect of delay	[151] – [168]
Issue 5 – Prospects of success	[169] – [183]
Dispositive conclusions	[184]
Orders	[185]

Child care appeal

1. These multi-party hard-fought child care appeal proceedings concern the proposed placement of a 15 month old child who was justifiably removed from parental care on 22 October 2020, at age 8 weeks, on account of injuries he sustained whilst in the care of his parents. The proceedings are governed by the Children and Young Persons (Care and Protection) Act 1998 (“Care Act”).

2. The discrete matter at issue in this appeal is whether, contrary to the decision of the Children’s Court, the child’s maternal grandparents should be granted the leave that they seek to be joined as parties to the proceedings.

3. All five respondents have vigorously opposed the relief sought by the appellants. In the course of their final submissions, counsel for the appellants and counsel for the Secretary, Department of Communities and Justice (“DoCJ”), acknowledged that this is a most troubling case.

4. The underlying Children’s Court proceedings have not yet been finalised. They are listed to continue in that Court on 24 November 2021, next week, subject to the outcome of the discrete issue of joinder as raised in this appeal. Consequently, this decision is delivered with some urgency in light of those circumstances, and the expectation of the parties.

5. The early delivery of these reasons has been facilitated by the efficient manner in which the legal representatives of the parties presented their written and oral submissions. This has enabled those resources to be drawn upon in these reasons to ensure the appeal is determined before the resumption of the hearing in the Children’s Court next week.

6. Following my consideration of the evidence and the submissions of the parties, and for the reasons that follow, I have concluded that the appellants are entitled to the relief of joinder to the Children’s Court proceedings as sought in this appeal.

Non-publication order

7. An order has been made pursuant to s 105 of the Care Act, prohibiting the publication of the name of the child the subject of the proceedings, or the publication of any information or details of any other parties, witnesses or persons named in evidence, to de-identify the child who is the subject of the appeal. To preserve the anonymity of the child who is the subject of the appeal, the child, the mother, the father, the child’s maternal grandparents, and the paternal grandfather, will be referred to by those terms.

Unexplained injuries to the child

8. It is undisputed that when the child presented at hospital on 19 October 2020, numerous unexplained injuries were found on him. His presentation to hospital occurred two days after the injuries were sustained. The circumstances led to the involvement of child protection officers and police, and this in turn led to the child’s removal from parental care.

9. The injuries to the child included a bite mark to a cheek, bruising around the face towards the ears, abrasions to the nasal bridge and right eyebrow, swelling to the back of the head, bruising to the floor of the mouth underneath the tongue, thickened scar tissue on the upper lip, a comminuted fracture of the left femur with separation of fragments, swelling of the left leg, a fractured clavicle, and multiple bilateral rib fractures: Exhibit “A”, Tab 19, pp 233 – 247; T20.24 – T20.25. It is confronting to consider that such injuries were occasioned to a helpless 8 week old child.

10. Concerningly, the contemporaneous hospital records noted that at the hospital, the father told medical staff he had head-butted the child on 17 October 2020: T20.50; T22.6. There are also other references in the evidence to the father having told investigating police officers that prior to the child being seen at hospital, he had dropped the child: T25.17 – T25.23. The DoCJ caseworker was unable to identify or clarify the circumstances surrounding that dropping event: T25.45 – T25.48. This is concerning insofar as DoCJ is proposing to restore the child into the father’s care.

11. In light of the inability to clarify that matter, it is difficult to understand how DoCJ, or Ms Sarah Brown, the DoCJ caseworker, could reasonably believe that the father was not responsible “for any of the injuries” suffered by the child in the events in question: T32.10 – T32.14. It is not apparent as to how Ms Brown or DoCJ had arrived at that conclusion in light of admissions to the contrary that are referred to in the evidence.

12. As the Children’s Court Clinic assessment of the father has not been tendered in the appeal, the extent to which the father has or has not acknowledged his role in the cause of the child’s injuries, and the child’s delayed presentation to hospital, those matters cannot be fully or transparently considered in these reasons.

13. The father’s affidavit filed in the Children’s Court on 5 July 2021, on the limited issue of joinder (Exhibit “A”, Tab 10, pp 117 – 127), was defensively framed in response to the application for joinder by the maternal grandparents. It sheds no light on the manner in which the child sustained his injuries whilst in parental care.

14. The father’s affidavit filed in the appeal on 16 September 2021 (Exhibit “A”, Tab 23, pp 346 – 364), appears to be in a similar vein, and is similarly uninformative as to the manner in which the child was injured, other than the inclusion of a bland statement of denial of causing “any injuries” to his son. This was said in response to a particular accusation that he had fractured his son’s collarbone: Exhibit “A”, Tab 23, p 360, line 1.

15. That denial must ultimately be viewed with caution in light of admissions made elsewhere, including as cited above, also taking into account the evidence of the father’s intellectual disability.

16. In this case, because of his infancy, the child has no ability to throw light on the underlying events. There are glaring gaps in the evidence that need to be addressed and filled. In those circumstances the maternal grandparents justifiably seek leave to be joined to the proceedings as they claim their participation in the proceedings provides scope for filling in relevant evidentiary gaps, which would serve the best interests of the child: s 9(1) of the Care Act; Bell-Collins Children, Department of Family and Community Services [2015] NSWSC 701, at [34].

Background and context

17. The child’s injuries were detected at the hospital at the vulnerable age of 8 weeks during a routine public hospital admission for a pre-arranged medical procedure to be carried out. Initially both parents were thought by authorities to have been responsible for the child’s injuries. At that time, the child’s parents provided what police considered to be fabricated explanations for those injuries.

18. Subsequently, the child’s mother, the second respondent in these proceedings, came forward to police and made certain disclosures about the cause of some of those injuries. Some of those injuries still remain inadequately explained. The parents are the only persons who can provide full explanations as to the circumstances in which those injuries were incurred, and this has not yet occurred.

19. The DoCJ caseworker, Ms Brown, was unable, from her “brief discussions”, to elicit any cogent explanation from the father as to how, for example, the child sustained bruising to his cheek: T24.9 – T24.18. Similarly, Ms Brown could not recall whether she had discussed with the father the circumstances in which the father had dropped the child before his presentation to hospital: T25.30 – T25.48.

20. In view of the mother’s albeit belated disclosures to police about the child’s injuries, she is presently awaiting a committal hearing on charges alleging she occasioned reckless grievous bodily harm and assault causing actual bodily harm to the child. She has not yet entered a plea in relation to those charges.

21. It appears from the evidence that DoCJ has not undertaken its own detailed factual investigation of the circumstances of the child’s injuries and has simply relied on the police investigations, which necessarily had a more limited focus.

22. This appeal arises because, on 21 July 2021, the Children’s Court sitting at Campbelltown refused to grant leave to the appellants, the child’s maternal grandparents, to be joined as parties to the proceedings. The maternal grandparents are dissatisfied with that refusal order and they seek a separate determination of that discrete issue in this appeal before the underlying proceedings resume in the Children’s Court on 24 November 2021.

23. Initially, on an interim basis, after the child’s removal and placement in emergency accommodation, between 28 October 2020 and 9 December 2020, the child was in the parental care of the Minister. This remains the case. On the latter date, an establishment order was made by the Children’s Court placing the child under the parental control of the Minister. The child has been placed into the temporary care of the paternal grandfather.

24. On the evidence, that is a troubling arrangement because the paternal grandfather was involved in the chain of events that led to a significant delay in the child receiving urgent and necessary medical attention for his very serious injuries. This raises serious questions about the capacity for insight, both on the part of the father and the paternal grandfather on child care issues.

25. In that regard, it is difficult to understand Ms Brown’s evidence concerning the approach by DoCJ to that issue. The evidence emerged from the cross-examination of Ms Brown by counsel for the maternal grandparents, as follows:

“Q. What was the explanation given to you by each of the parents for the delay in obtaining medical attention, firstly, for that injury?

A. From my recollection, [the father] has informed me that he did approach [the mother] about taking [the child] to seek medical advice. And [the mother] suggested that they wait until their scheduled appointment for a Monday, and [the father] has informed me that he did not want to cause an argument with [the mother] and therefore waited until the Monday.”

[T31.40 – T31.46]

26. That evidence unquestionably shows that in delaying pursuing of medical attention for his son, the father had placed his own interests in avoiding an argument with the mother ahead of the child’s urgent need for medical attention. This was in the face of seriously concerning injuries. Therefore, a question of adequacy of his insight arises, glaringly so.

27. In those circumstances, on the evidence available for consideration on the appeal, it is difficult to see how DoCJ could justify allocating parental responsibility for the child to the father without exposing the child to undue and unacceptable risk of serious harm, as could arise if the child needed future medical attention, which can occur at random.

28. When counsel for the maternal grandparents further explored the issue of the delayed presentation of the child to hospital for medical attention, Ms Brown’s evidence revealed that an important aspect of the Department’s plan for the safety, welfare and wellbeing of the child was based on an enormous leap of faith in a tenuous and as yet undefined proposed support system, described as scaffolding, as is evident from the following evidence:

“Q. In your role as caseworker, do you consider that that is an adequate explanation for why such a young child was not presented immediately for medical attention after suffering a serious injury?

A. We were concerned, at the department, that he did not take [the child] independently to get medical advice. However, the plan that we have for [the child] to be restored to his father involves a lot of support. And it is a - a restoration with a lot of scaffolding and support to make sure that [the child] is safe.”

[T32.1 – T32.8]

29. As described above, that plan, as identified by Ms Brown, is tenuous and flimsy to say the least. This shows that the maternal grandparents are right to seek to intervene and be joined to the Children’s Court proceedings to voice their concerns, not only on their behalf, but also on behalf of their voiceless grandchild. It is concerning that the independent legal representative (“ILR”), seemed not to have picked up on this issue.

30. In the paramount best interests of the child, plainly, he needs a contradictor in his corner to safeguard his safety, welfare and wellbeing.

31. In February 2021, on the basis of a kinship assessment arranged by the Secretary, the Department was planning to recommend to the Children’s Court that the child be placed into the long term care of the maternal grandparents until he reached the age of 18 years.

32. On 24 March 2021, at the request of the child’s father, the Children’s Court ordered the preparation of a Children’s Court Clinic assessment of the father’s parenting capacity. That report was not tendered in evidence in this appeal. It has not been made available to the maternal grandparents, but its effect was made known to them by DoCJ.

33. In that regard, on 31 May 2021, on the basis of the Children’s Court Clinic assessment report, the DoCJ caseworker with responsibility for overseeing the child’s care informed the maternal grandparents that the position of DoCJ had changed in respect of the proposal for allocation of parental responsibility, in that DoCJ now supported a different plan that ultimately involved the child being restored to his father, with the support and assistance of the paternal grandfather, for an initial period of 2 years.

34. That decision has caused considerable distress to the maternal grandparents because until that time, they had been having twice weekly contact with the child, including some overnight contact. The change of plan meant that their contact with the child would be significantly reduced to daytime hours, every three weeks.

35. On 16 June 2021, absent an agreement being reached at a Family Group Conference, the maternal grandparents unsuccessfully sought leave to intervene in the Children’s Court proceedings. They sought joinder to those proceedings so that their voice could be heard in that Court with regard to ventilating matters of relevance pertaining to the child’s best interests: s 98(3) of the Care Act.

36. On 21 July 2021, the Children’s Court sitting at Campbelltown, refused the maternal grandparents’ application that they be joined to the proceedings. The maternal grandparents are dissatisfied with that decision, hence the present appeal. The appeal proceeded as a hearing de novo pursuant to s 91(1) and (2) of that Act, with further and more extensive evidence presented compared to that which was before the Children’s Court at the time leave was refused.

37. The background to the appeal is that on 29 June 2021, DoCJ presented a care plan to the Children’s Court based on its assessment that there was a realistic possibility of the child being restored to his father, “with supports”, and to the exclusion of the mother. That care plan significantly provided more limited contact with the maternal grandparents than was previously the case. The maternal grandparents are therefore understandably apprehensive over the future prospect of further reductions in those contact arrangements, not just in relation to their own interests, but in the best interests of the child.

38. The child is presently being looked after by his paternal grandfather under the supervision of the DoCJ caseworkers pending the Children’s Court considering a proposal for the restoration of the child into the care of the father. That proposal involves the implementation of certain conditions that the father will be expected to meet over the course of a two year period, “with supports”, as discussed at paragraphs [28] to [29] above.

39. In the background there has been considerable historical acrimony between the maternal and paternal families, accompanied by a series of allegations and counter-allegations which have been brought to the attention of DoCJ. This hearing does not require that those matters be analysed in detail for the purpose of a reasoned resolution of the issues in the appeal.

40. Such conflict is a peripheral matter for the Children’s Court to consider in the appropriate contextual focus: s 9(1) of the Care Act. The DoCJ caseworker is aware of those matters and considers that there should be no change to the plan for restoration in the circumstances.

41. At this point it is relevant to note that in refusing the application for leave for joinder, the Children’s Court considered the existence of a background of inter-family acrimony to be a disentitling factor for the grant of leave. In my view, that conclusion was based on a miscarried exercise of discretion, as will be explained in dealing with the issues calling for decision.

29. In addition to the acrimony referred to above, there is an additional layer of acrimony between the child’s mother and her own parents. The child’s mother, like the child’s father, has an intellectual disability. That layer of acrimony has to be viewed in the context that in this application the child’s mother has made complaints and allegations about her own upbringing by her parents.

30. It should be noted that those complaints have emerged in the context of a relatively belated timing, and they are in a form involving extensive coherent detail that gives rise to some doubts as to the provenance of that account in view of the mother’s documented intellectual impairments. That is not a definitive analysis as the mother was not required for cross-examination on what remained her unperfected affidavit.

31. It is not necessary to further traverse the detail of those matters of acrimony in these reasons other than to record that such conflicts are not unusual in this jurisdiction, in the face of the dynamics of dysfunction and interpersonal difficulties in families under stress.

32. At this point it is pertinent to record that any decisions made in this appeal must have as their focal point the paramount issue of the child’s best interests: s 9(1) of the Care Act.

33. Whilst the Secretary, each of the child’s parents, the child’s paternal grandfather and the child’s ILR, all vigorously oppose the application by the maternal grandparents for joinder to those proceedings, it is difficult to find justification for that combined stance.

Evidence

47. The parties have co-operated in the preparation of an indexed Court Book comprising 396 pages behind 24 Tabs: Exhibit “A”. A detailed chronology has been prepared and circulated: Exhibit “B”. There is a draft minute of a care order that the Secretary will rely upon in the Children’s Court: Exhibit “C”.

48. The Secretary also tendered a final order of apprehended domestic violence order taken out by police and applicable to the child’s father, dated 22 December 2020. This was taken out by Detective Gatt from the Child Abuse Unit South West Metro, Liverpool: Exhibit “D”. The Secretary also tendered an email dated 15 November 2021 from Detective Gatt regarding some possible “slight” amendments to that ADVO: Exhibit “E”.

49. Absent a full account of the circumstances in which the child was injured whilst in parental care, given Detective Gatt’s cited comment, it is difficult to see how the terms of the ADVO against the father can be legitimately watered down as was suggested in submissions. That improbable position seems to be the tenuous foundation for the scaffolding of the Secretary’s care plan.

50. At the commencement of the hearing of the appeal it was indicated that a number of witnesses would be required to give oral evidence and attend for cross-examination on their affidavits. That process commenced with the oral evidence of Ms Sarah Brown, the DoCJ caseworker. After her evidence concluded the parties met and indicated no further oral evidence would be called. The parties indicated that they were content to rely on the content of the affidavits within the Court Book.

51. After reading the material within the Court Book it became evident that the DoCJ caseworker should be required to return to answer questions posed by the Court: s 107(1) of the Care Act. At the conclusion of that process the parties were afforded the opportunity to ask any further questions that might have arisen from that course. The representatives of the maternal grandparents, the mother, and the father, took up that opportunity.

The appealed decision of the Children’s Court

52. The appealed decision of the Children’s Court, which refused leave for the joinder of the maternal grandparents, was made upon three principal grounds. First, the need to avoid delay in making appropriate placement orders in the case of such a young child, secondly, the assessment that the maternal grandparents had unlikely prospects for their application succeeding in their endeavour to seek to have the child placed with them, especially in light of evidence of family discord and acrimony, and thirdly, because of the need to proceed in accordance with the need to apply the paramount principle of the child’s best interests: s 9(1) of the Care Act, including ensuring that the child remained in a stable placement.

Care plan prepared by the Secretary

53. In the underlying Children’s Court proceedings, the Secretary relies upon a care plan which allocates all aspects of parental responsibility for the child to the Minister for a period of 24 months, following which it is intended that responsibility will be allocated to the father, “with supports” that are at this stage ill-defined, to the exclusion of the mother, until the child reaches the age of 18 years. That plan involves acceptance of a series of undertakings from the father, and a staged restoration of the child into his parental care and modification of present ADVO arrangements. I make no comment on whether that plan is realistic. The maternal grandparents are dissatisfied with those plans and wish to intervene to ventilate factual matters that would arguably influence the outcome of that consideration.

Further factual background

54. The submissions made by counsel for the maternal grandparents in support of the application for joinder succinctly draw upon some salient factual features from within the evidence, as follows:

1. On the day of his presentation to Liverpool Hospital, [the child’s] injuries were referred to the State Crime Command, Child Abuse Unit of NSW Police for investigation.

2. On 19 October 2021, the father reported to hospital staff that he headbutted [the child] on 17 October 2020 and [the child] was bitten on the cheek by an insect and then stated he may have been harmed by the father’s nephew (aged 3) and thought his swollen leg was normal baby “cubbyness” ([the child] having been born with a club foot) (Ex. 1, page 43).

3. The parents informed the hospital that [the child] had been unsettled since 16 October 2020 which was unusual for him and that they had called the paternal grandfather for advice but otherwise did not present him at the GP because the GP only works certain days (Ex. 1, page 41).

4. NSW Police record that both parents provided similar versions of how [the child] came to be injured to police, which police believed were fabricated. It has been recorded that both parents claimed that the father’s 3 year old nephew fell on [the child] but could otherwise not explain his injuries including the bite mark (Ex. 1, page 238).

5. The maternal grandparents have raised concerns in these proceedings about witnessing the father prior to [the child’s] removal pushing down on his ribs (ostensibly to assist with constipation) (Ex 1, page 161(22)) and [the child’s] extreme distress at a seemingly unnecessary nappy change by the father (Ex.1, page 161(27).

6. The maternal grandparents also deposed to Detective Gatt informing them that the father disclosed dropping [the child]. Concerningly, the cross-examination of Ms Brown revealed that was (sic) she was aware of this, neither she nor any other Departmental worker had taken steps to investigate with the father the circumstances in which he came to drop [the child].

7. On 12 November 2020, the father is recorded as having attended upon his GP and advised that he was feeling down for a while even before the birth of [the child], was more irritable, reduced appetite and had trouble getting to sleep, and that his symptoms had become worse following the removal of [the child]. He reported a longstanding altered perception of a black figure following him around. He otherwise denied hurting [the child] and stated that he did not think the mother had done so either (Ex. 1, page 39 (24(d)).

8. On 17 December 2020, the mother informed her GP that she had broken up with the father after she was told by DCJ that she may not be able to have [the child] restored to her care (Ex. 1, page 40). Ms Brown confirmed in her oral evidence that the separation was not a Departmental directive or suggestion.

9. On 5 January 2021, the mother approached police stating she wanted to talk as she was now “starting to remember things” and made admissions as to dropping [the child] onto the couch on purpose on 15 October 2020 (which police attribute to his leg injury) and biting him on 17 October 2020 after he bumped his head into hers (Ex. 1, page 240). The fact that these disclosures occurred in the context of the mother “starting to remember things” is particularly troubling given her intellectual disability, assessed in May 2014 as being in the Borderline (or well below average) range of intellectual functioning, as measured by a full scale IQ. That assessment noted her thinking and reasoning abilities exceeded those of approximately 3% of young people her age (Ex. 1, page 176).”

[Names redacted]

55. The references to Exhibit 1 in the summary cited above should be read as references to Exhibit “A”, the common Court Book.

56. Some additional factual matters identified on behalf of the maternal grandparents in support of their application for joinder raised the following points as justification for that intervention:

1. On 14 January 2021, a kinship / placement assessment of the maternal grandparents was completed by a DoCJ appointed social worker, Ms Renee Coiner. That report had recommended them as proposed long-term carers for the child, and that in the event that the child would not be placed in their care, that they be approved as respite carers for him: Exhibit “A”, Tab 17, pp 206 – 207. Those recommendations were subject to the completion of probity checks. It has not been suggested that those probity checks identified any issues of concern. Thereafter, DoCJ staff continuously reassured the maternal grandparents at various stages in their communications that they were supporting a proposal for the child being placed in their long-term care;

2. One such communication was on 23 February 2021, when A/Manager caseworker Rebecca McNamara sent an email to the maternal grandparents stating “As you are aware, we are recommending that [the child] is moved into your care and to live with you and your family until he reaches the age of 18”: Exhibit “A”, Tab 17, p 210;

3. Another such communication was on 6 April 2021, when the caseworker, Ms Brown, sent an email to the maternal grandparents in which she foreshadowed that the outcome of the Children’s Court Clinic may impact the outcome of proceedings, but otherwise stated “As I have explained previously we are following the carer assessment recommendations that if [the child] remains in care that he be transitioned to you both to be his long term carers. However if DCJ do change their view regarding this I will let you know”: Exhibit “A”, Tab 21, p 277;

4. On 5 January 2021, whilst police investigation of the child’s injuries were pending, the mother approached NSW Police and made admissions as to the cause of some of the child’s injuries (Exhibit “A”, Tab 19, p 239) and she was subsequently charged with indictable offences already identified at paragraph [20] above;

5. On 24 March 2021, at the request of the father, who at that time was participating in an 8 week parenting course entitled “Circle of Security Parenting” Certificate (Exhibit “A”, Tab 5, p 57), the Children’s Court made an order requiring the preparation of a Children’s Court Clinic Assessment of the father. That assessment report was made available to all parties except the maternal grandparents, on or about 23 May 2021;

6. On 31 May 2021, just two days before a family conference was to be convened, the DoCJ caseworker, Ms Brown, informed the maternal grandparents for the first time that the Department had changed its position so that it was now supporting a restoration of the child to the father;

7. Absent the opportunity of reviewing the content of the Children’s Court Clinic assessment report in relation to the father, the maternal grandparents remain at a loss to understand that change of plan;

8. On 1 June 2021 a Family Group Conference was convened, which included the maternal grandparents. The proposed outcome was that the child’s contact with the maternal grandparents, which had been occurring twice per week and included overnight contact, would be decreased to daytime visits every 3 weeks. That proposal was not agreed to by the maternal grandparents. As they were not parties to the Children’s Court proceedings, they had no voice to advocate for a different position in the child’s best interests;

9. On 16 June 2021, the maternal grandparents sought leave to intervene in the Children’s Court proceedings pursuant to s 98(3) of the Care Act. They did so because of concerns they held for the child’s safety welfare and wellbeing particularly in relation to the incompletely explained circumstances in which the child was injured, and the father’s complicity in either providing or supporting explanations to the police on those matters where the investigating police believed there were aspects of those accounts that had been fabricated;

10. On 29 June 2021, DoCJ presented a care plan to the Children’s Court containing an assessment that there was realistic possibility of the child being restored to the care of the father to the exclusion of the mother. The maternal grandparents are not privy to that care plan, notwithstanding it contains DoCJ's proposals for contact with the maternal grandparents. It is understood that the DoCJ is intending to further reduce the maternal grandparents’ contact to daytime periods on a monthly basis plus some other times limited to special occasions;

11. On 21 July 2021, the Children’s Court refused the application of the maternal grandparents for leave to be joined to the proceedings so that they could be heard with respect to any issue;

12. On 13 September 2021, a Dispute Resolution Conference (“DRC”), was held: Exhibit “A”, Tab 21, p 264. Having been denied leave to be joined as parties, the maternal grandparents did not participate in that DRC, nor were they invited to do so.

Applicable legal principles concerning joinder of parties

57. In proceedings under the Care Act, any decision concerning a child must take into account the paramount principle of the safety, welfare and wellbeing of the child who is the subject of the proceedings: s 9(1) of the Care Act.

58. The alternative statutory hierarchy of the permanent placement principles set out in s 10A of the Care Act concerning a kinship placement must be observed where a parental placement is determined to be unsuitable.

59. All proceedings in the Children’s Court, and therefore related appeal proceedings in this Court, should proceed to finality as expeditiously as possible, that is without unreasonable delay, in order to minimise the effect of the proceedings on the child and the child’s family: s 94(1) of the Care Act.

60. Delays as a consequence of adjournments should be avoided to the maximum extent possible: s 94(4) of the Care Act.

61. The paramount best interests of the child must necessarily be linked to the fundamental requirement of procedural fairness including procedural fairness to the child: D v C; Re B (No 2) [2018] NSWCA 310, at [43], [91]-[92]. In my view, that statement applies equally to grandparents who are at risk of a change to their level of contact with a grandchild, where both of the grandparents and a grandchild have an interest in having that issue considered in a procedurally fair manner.

62. Relevant to this case, whilst the term “family” within the meaning of s 94(1) of the Care Act is not defined, s 3(1) defines “relative” to include parents and grandparents, which I construe to be within the meaning of family.

63. Persons who have genuine concerns for the safety, welfare and wellbeing of a child involved in Children’s Court proceedings may, by leave, appear in the proceedings, including by legal representation, including for the purpose of questioning witnesses on relevant matters and filling in evidentiary gaps: s 98(3) of the Care Act; Bell-Collins Children, Department of Family and Community Services [2015] NSWSC 701, at [34].

64. In distilling the applicable case law, the factors relevant to the exercise of the discretion to grant leave for the joinder of additional parties, the guiding principles are helpfully found in the decision of Sackar J in EC v Secretary, NSW Department of Family and Community Services [2019] NSWSC 226.

65. Applying those principles, excluding a relevant voice with detailed knowledge of the issues from child care litigation, would not be acting in a way that ensures the safety, welfare and wellbeing of children, even if including such voices proves to be a source of delay. That view is justified because, even in non-adversarial litigation, the nuances that can emerge from cross-examination can come to bear in the determination of conflicting viewpoints and disputed evidence: EC v Secretary, NSW Department of Family and Community Services, at [19]-[20].

66. Great grandparents (and by deduction, grandparents), may have a “genuine concern” on both a subjective and objective basis, which means they deserve to have an intervening voice in the proceedings as stated in EC v Secretary, NSW Department of Family and Community Services, at [67], considering also, the decision in EL & WL v Director General of the Department of Human Services [2010] NSWDC 248.

Issues

67. In my assessment, a review of the evidence, the applicable legal principles, and the submissions of the parties in this appeal indicates that the issues which call for decision may be conveniently identified to be as follows:

1. The public policy principles and objectives within the governing legislation comprising the Care Act must be applied;

2. If a grant of leave for joinder is warranted, should such leave be limited to a specific issue, such as contact arrangements;

3. Whether the maternal grandparents have genuine concerns as to safety, welfare and wellbeing of the child who is the subject of the appeal, which underpins the application to intervene by way of joinder;

4. A consideration of the effect of possible delay in the finalisation of the proceedings;

5. The prospects of success of the appellants for leave if granted.

68. Those matters, which necessarily involve the exercise of reasoned discretion, will be addressed after reviewing and summarising the essence of the evidence tendered in the appeal.

Evidence summary

69. In the paragraphs that follow, I identify the evidence that was considered in this appeal. Given the urgency for delivery of these reasons, I will limit the detailed exposition of the evidence to matters of relevance to the issues on the appeal.

Ms Sarah Brown

70. Ms Sarah Brown, the DoCJ caseworker, provided both affidavit and oral evidence in the appeal. That evidence is summarised in the paragraphs that now follow.

Affidavit evidence of Ms Brown

71. The Secretary relied upon three affidavits by Ms Brown. The first affidavit was affirmed on 16 September 2021 for the purpose of the appeal: Exhibit “A”, Tab 21, pp 260 – 304. Her two other affidavits were filed in the Children’s Court proceedings: Exhibit “A”, Tab 5, pp 31 – 33; Tab 6 pp 34 – 65.

72. Ms Brown’s evidence provided the historical background to the proceedings. Ms Brown confirmed that whilst DoCJ had initially considered placing the child with the maternal grandparents, as the father’s situation had improved and was undergoing progressive improvement, the statutory placement hierarchy of kinship influenced DoCJ to change its view with the result that an ultimate placement with the father was now contemplated. The maternal grandparents were dissatisfied with that approach.

Oral evidence of Ms Brown

73. Ms Brown gave oral evidence in the appeal on 15 November 2021 (T17 – T47), and 17 November 2021 (T54 – T62). She was questioned by all parties except the ILR.

74. Aspects of the oral evidence given by Ms Brown on 15 November 2021 has already been referred to at paragraphs [10] to [11], [19], and [25] to [29] above.

73. In Ms Brown’s oral evidence given on 17 November 2021, she could not explain why the Children’s Court had not been approached to obtain an order for the release of the Children’s Court Clinic assessment report so it could be disclosed to the maternal grandparents: T54.15 – T54.31. Similarly, she could not shed light upon why the maternal grandparents had not been interviewed by the Children’s Court clinician: T54.40 – T54.2.

74. In light of the evidence of acrimony existing between the different parental families, Ms Brown was asked to explain what action had been taken by DoCJ to “heavily” oversee the relationships between the grandparents as was recommended by Ms Coiner, the kinship assessor who had been commissioned by Ms Brown to write a report. The answer was illuminating in that it showed the issue had not been properly addressed, as appears below:

“A. So in terms of when this report was written in January, DCJ or myself had a lot of communication with both sides of the family in regards to contact and what that would look like and when that would occur. However, once we had the family group conference where the family were able to talk about their plan for contact with [the child] then from then on DCJ thought it was not necessary to continue as much contact and arrange, and have as much - yeah, be involved as much.

Q. Whose decision was that?

A. With consultation with my manager.”

[T57.8 – T57.17]

77. In the context of what has been described as continuing acrimony between the parties, it is difficult to understand that laisser-faire approach.

78. Ms Brown was asked whether anything had been done to follow-up the kinship assessor’s suggestion for a referral for mediation to address the problems that existed between the respective groups of grandparents: T57.19 – T57.36. Her response was illuminating insofar as it explained why nothing along those lines had been implemented:

“Q. If you go to the last paragraph on that page, you'll see under the heading recommendations, that it was further recommended that the DCJ support the maternal and paternal grandparents to develop a family time regime to minimise potential conflict. What was done in that regard? Can you explain that to me?

A. Phone calls and emails between me and - and both sides of the family in regards to contact schedule and feedback about that contact schedule. Not - nothing - a contacts schedule was never particularly wrote up on like a single page, it was more discussions via phone calls and emails between me and the parties.

Q. Going back to about point five of this page, in the context of the assessor referring to conflict between [paternal grandfather], [maternal grandfather] and [maternal grandmother], it was suggested that there be a referral for mediation as an appropriate means to address this question. His (sic) DOCS done anything in that regard?

A. From my understanding, mediation is quite similar to a family group conference because a mediator is involved. And so the family group conference occurred.

Q. Do you understand there to be a difference between the function of a facilitator and a mediator?

A. I do not have much knowledge in that area, sorry. And that would - but that's in consultation, like, that's not a decision that I would make, rather, my manager would that make

Q. So whose decision would be to decide whether or not to refer to a mediation?

A. The manager.”

[T57.19 – T57.46]

79. Ms Brown was unable to satisfactorily explain why the reference in the kinship assessor’s report to the existence of a separate “best interests” report could be said to be non-existent when that answer was not supported by the clear reference in Ms Coiner’s report to such a report being in existence. Her evidence in that regard was as follows:

“Q. "This report is to be read alongside the 'best interests' report, also prepared by the assessor". Where is that report?

A. So from my understanding, it just referred to the paternal grandfather's assessment and this assessment. There's no other assessment that we have seen or that they had provided to us.

Q. Am I correct in understanding that the maternal grandparents have not seen that report?

A. From my understanding, there is no additional report. So no.”

[T58.2 – T58.10]

80. On that topic, in the course of Ms Brown’s evidence, where an explanation was sought as to whether the maternal grandparents had ever seen an assessment report in relation to the paternal grandfather, counsel for the Secretary made the fair concession that the report in question had not been provided to them: T58.29. This raises a question of procedural fairness, as was pointed out to the parties at the time: T58.32.

81. Ms Brown was asked whether the Department has a guideline for assessing the realistic possibility of restoration that includes the notion of support. She was unable to say whether such a guideline existed, but noted that such decisions are made by managers: T58.48 – T59.18.

82. In the paragraphs that follow, I set out my review of the other affidavit evidence in the Children’s Court as tendered in these proceedings, and the affidavits relied upon in the appeal.

Evidence filed in the Children’s Court

83. In the paragraphs that follow, the affidavits filed in the Children’s Court proceedings are the subject of a limited review in terms of relevance to the issues raised in this appeal, namely, whether the maternal grandparents have demonstrated a legitimate interest in the yet to be concluded proceedings in the Children’s Court. The summary appears in the date order in which the affidavits were prepared.

Affidavit of maternal grandmother sworn 16 June 2021

84. The affidavit of the maternal grandmother sworn on 16 June 2021 formed the initial basis for the application for the joinder of the maternal grandparents in the Children’s Court proceedings: Exhibit “A”, Tab 3, pp 9 – 25.

85. This affidavit traversed the maternal family history, identified the mother’s mild intellectual disability and her speech impediment, and identified the origins of the fractured relationship between the mother and her parents, and the difficult relationship that developed between the maternal grandparents and the father after the mother became pregnant with the subject child. It is not necessary to recount the detail of those matters other than to record that the emergent rift that continues, and it seems to be entrenched.

86. The first occasion on which the maternal grandparents knew of a police involvement with the child and his parents in respect of injuries to the child was as a result of a telephone call received from a child protection police officer on 9 December 2020.

87. This affidavit identifies concerns held by the maternal grandparents about the ability of the father to care for the child, including in relation to past events, and on account of the father’s personal history of apparent developmental delay. Concerns over the child’s safety whilst in paternal family care were also expressed following observations of the paternal grandfather as carer because he has been seen to either stumble or fall whilst holding the child. The affidavit identifies objections voiced by the maternal grandparents to the child being restored into the care of the father on account of a perceived risk of harm that would not be consistent with the best interests of the child.

88. The affidavit had exhibited to it a 1 June 2021 Family Group Conferencing Plan in favour of the paternal family regarding the care of the child on the assumption that the child would be in the care of both the father and the paternal grandfather, for two years, with limits to contact opportunities for the maternal grandparents. That plan was prepared by the DoCJ caseworker, Ms Brown. The affidavit was considered by the Children’s Court Magistrate at the hearing of the joinder application on 14 July 2021, and also at the time that joinder application was refused by the Children’s Court on 21 July 2021.

Affidavit of the child’s father dated 5 July 2021

89. The 5 July 2021 affidavit of the father of the child was prepared in response to the application by the maternal grandparents for joinder to the Children’s Court proceedings: Exhibit “A”, Tab 10, pp 117 – 127. The affidavit was not executed in person due to prevailing COVID-19 restrictions. This affidavit by the father expressed his opposition the application for the joinder to the proceedings of the maternal grandparents. It contains many factual allegations and criticisms of them. Those matters cannot be the subject of definitive findings where they have not been tested in this appeal. The affidavit is plainly adversarial in its nature and content.

Affidavit of the paternal grandfather sworn 6 July 2021

90. The affidavit of the paternal grandfather sworn 6 July 2021 was largely responsive to the 16 June 2021 affidavit of the maternal grandmother: Exhibit “A”, Tab 8, pp 85 – 104. The affidavit was prepared to support the restoration of the child to his father and it expressed opposition to the application by the maternal grandparents to be joined to the proceedings. The combative attitude shown by the paternal grandfather in his affidavit (at par 46 on p 93; par 53 – par 54 on p 95, and par 61 on p 97), indicates the relationship between the paternal grandfather and the maternal grandparents involves a considerable degree of friction, if not disharmony.

Affidavit of the child’s mother affirmed 6 July 2021

91. The 6 July 2021 affidavit of the mother is in part responsive to the 16 June 2021 affidavit of the maternal grandmother: Exhibit “A”, Tab 12, pp 135 – 139. The affidavit raises many complaints that the mother harbours about her own upbringing by her parents, alleging that there had been abusive behaviour towards her. Those allegations remain untested, including an allegation that she claims to have seen the maternal grandmother drop the child whilst he was in her care. In this affidavit, she also aimed remarks about her older sister to air a childhood grievance, and she also claimed that her younger sister was unhappy being with her parents. The affidavit concluded with the adamant statement that the mother does not want her son to be living with her parents.

Evidence filed in the appeal

92. In the paragraphs that follow, the affidavits filed in the appeal proceedings are reviewed in terms of relevance to the issues raised in this appeal, also in date order.

First affidavit of maternal grandmother in the appeal sworn 1 September 2021

93. In the appeal the maternal grandmother filed her first affidavit sworn on 1 September 2021: Exhibit “A”, Tab 16, pp 157 – 177.

94. This affidavit reiterated the family history and the earlier expressed concerns as to the safety, welfare and wellbeing of the child whilst he was in the care of the father and the paternal grandfather. On the face of the affidavit, those concerns appear on their face raise legitimate matters for forensic consideration in Children’s Court proceedings.

95. This affidavit also recounted the history of the maternal grandparents having participated in a Relative/Kinship Carer assessment undertaken by Ms Coiner at the request of DoCJ between 29 December 2020 and 14 January 2021. That assessment recommended that the maternal grandparents should be long-term carers. The affidavit also outlined how, after a Children’s Court Clinic assessment, DoCJ had changed its approach from recommending the maternal grandparents as carers to one which supported a restoration to the father, “with supports”.

96. This affidavit identified the fact that the Children’s Court Clinic assessment and report had been undertaken without the clinician ever having interviewed the maternal grandparents. The inherent suggestion which arises for consideration from that circumstance is whether this was a deficient process.

97. This affidavit acknowledged the fractured relationship between the mother and the maternal grandparents. It also acknowledged the fact that there had been minimal contact between them and the father, and with the paternal grandfather during the course of the proceedings. However, the affidavit nevertheless identified a willingness on the part of the maternal grandparents to work with DoCJ to ensure contact occurred between the child, his parents, and with the paternal grandfather, on the understanding that it was important for the child to maintain those relationships.

98. This affidavit annexed as an exhibit, a February 2011 school assessment report relating to the child’s mother. That report indicated she had been functioning the borderline range of intellectual functioning, with developmental delays evident in a number of areas of cognitive functioning, which precluded measurement of a full scale IQ Score, indicating there was a mild intellectual disability.

99. The affidavit also annexed as an exhibit, a 2014 psychologist’s report relating to the child’s mother. This indicated she had difficulty with some tasks that required mental control, including attending to and holding information in her short-term memory, where her facility for mental control was assessed as being in the extremely low range.

Affidavit of maternal grandfather in the appeal sworn 1 September 2021

100. In the appeal the maternal grandfather filed his first affidavit sworn on 1 September 2021: Exhibit “A”, Tab 17, pp 178 – 212.

101. In this affidavit, the maternal grandfather recounted aspects of the family history that was outlined in the affidavit of the maternal grandmother. Significantly, at paragraphs 22 to 23 of this affidavit, the maternal grandfather stated that neither of the child’s parents had been receptive to receiving any parenting advice, and they had been dismissive of expressed concerns about the child’s wellbeing.

102. Also significant was the statement attributed to the child’s mother to the effect that the father had dropped the child, and as a result, the child had suffered a fractured clavicle, and that there had been a failure to seek prompt medical attention for that injury. This evidence plainly raised concerns over the capacity and the insight of the father to care for the child and ensure his safety, welfare and wellbeing.

103. This affidavit identified two particular occasions on which the paternal grandfather had been observed to have fallen whilst carrying the child, including stumbling over a pot plant and whilst placing the child into a car. It also identified concerns over the father’s ability to meet the child’s long-term needs, including his emotional needs, parenting courses notwithstanding.

104. Also of significance was the annexed Kinship Carer assessment report completed on 14 January 2021 by Ms Renee Coiner, a social worker whom the DoCJ caseworker commissioned for that purpose. The report is extensive and comprehensive: Exhibit “A”, Tab 17, pp 187 – 207.

105. The object of Ms Coiner’s report was to assess the suitability of the maternal grandparents as kinship carers and to also assess the paternal grandfather in order to prepare a “best interests” report: Exhibit “A”, Tab 17, p 191. The “best interests” report is not in evidence in these proceedings and the oral evidence of Ms Brown suggests that it does not exist.

106. Ms Coiner’s report documented the fact that extensive interviews took place with the maternal grandparents and some identified referees over the course of several weeks, including some telephone input from Ms Brown, the DoCJ caseworker.

107. Ms Coiner’s report identified her assessment that the maternal grandparents have a genuine commitment to the child’s long-term wellbeing and have the capacity to negotiate any conflicts with professionals and service providers: Exhibit “A”, Tab 17, p 195.

108. Ms Coiner’s evaluation was extensive and rational: Exhibit “A”, Tab 17, pp 204 – 207. It included the positive statement that there were no concerns identified in the ability of the maternal grandparents to identify and meet the child’s needs on a long-term basis.

109. The report went on to identify Ms Coiner’s view that the maternal grandfather had a conciliatory and diplomatic disposition which would be an asset for inter-family dealings: Exhibit “A”, Tab 17, p 205.

110. Curiously, the assessor identified some input from the paternal grandfather and from the child’s parents suggesting, that the maternal family were not supportive of the child having a relationship with the father or the paternal grandfather. The assessor did not discern a valid basis for that suggestion: Exhibit “A”, Tab 17, p 205. This seems to raise a sufficient interest in at least testing that evidence.

111. Most significantly, Ms Coiner suggested that the existence of conflict within the inter-family relationships in this case was something to which focussed caseworker support should be directed. She also noted that she could not independently substantiate the mother’s reasons for objecting to the maternal grandparents caring for the child. Ms Coiner identified the need for particular DoCJ casework, and potentially, for orders of the Children’s Court to facilitate and enhance the child’s family relationships. That comment without doubt justifies a careful scrutiny of the mother’s affidavit which makes criticisms of the maternal grandparents. There are other difficulties with the mother’s affidavit which require consideration.

112. Ms Coiner recommended there be a mediation to deal with persisting family conflict between the respective grandparents and the need for “heavy” oversight by DoCJ to avoid further conflict and to support the relationships between the grandparents: Exhibit “A”, Tab 17, p 206. This appears not to have occurred.

Affidavit of paternal grandfather in the appeal sworn 14 September 2021

113. The affidavit of the paternal grandfather filed in the appeal was sworn on 14 September 2021: Exhibit “A”, Tab 22, pp 305 – 345.

114. The content of this lengthy 110 paragraph affidavit serves to confirm the poor relationship between the paternal and maternal families. In the context of this application it is not necessary to undertake a detailed evaluation of those matters other than to state that the content is adversarial, in the nature of argument and advocacy, on matters that would ordinarily be expected to be explored forensically at a full hearing if the maternal grandparents were joined to the Children’s Court proceedings.

Affidavit of the father in the appeal sworn 16 September 2021

115. The affidavit of the father filed in the appeal was sworn on 16 September 2021: Exhibit “A”, Tab 23, pp 346 – 364.

116. This affidavit is in the form of adversarial advocacy which opposes the joinder application by the maternal grandparents. It traverses the detail of factual allegations that would ordinarily be the subject of forensic testing if the maternal grandparents were to be joined to the proceedings. The mere fact of the number of allegations and counter allegations raises questions that seem to justify the joinder as sought by the maternal grandparents.

Affidavit of Ms Brown affirmed 16 September 2021

117. The affidavit of Ms Brown filed in the appeal was affirmed on 16 September 2021: Exhibit “A”, Tab 21, pp 260 – 304. This evidence has already been referred to at paragraphs [71] – [72] above.

Affidavit of the mother in the appeal sworn 20 September 2021

118. The affidavit of the mother filed in the appeal was sworn on 20 September 2021: Exhibit “A”, Tab 24, pp 365 – 396.

119. This signed but not conventionally sworn affidavit is remarkable as to its length – 296 paragraphs, and on account of its annexures purporting to be statements from the maternal grandmother’s half-sister and her mother. It has the appearance of an affidavit and is written with considerable coherence, which raises a question as to whether a person with the mother’s described intellectual deficits, including her described and assessed memory problem, could have prepared it, as appears from its form, to be the case.

120. The detail within this affidavit makes allegations and assertions that would ordinarily be expected to be the subject of forensic questioning and analysis if the maternal grandparents were to be joined as parties to the proceedings.

Second affidavit of maternal grandmother sworn 30 September 2021

121. The second affidavit of the maternal grandmother filed in the appeal was sworn on 30 September 2021: Exhibit “A”, Tab 18, pp 213 – 222.

Second affidavit of maternal grandfather in the appeal sworn 30 September 2021

122. The second affidavit of the maternal grandfather filed in the appeal was sworn on 30 September 2021: Exhibit “A”, Tab 19, pp 223 – 247.

123. This affidavit was filed in response to the affidavit evidence filed by the mother and by the father. It is not necessary to trace the allegations and refutation of those allegations in this analysis. It is sufficient to say that issues of concern which relate to the safety, welfare and wellbeing of the child have been sufficiently raised to merit a procedurally fair opportunity to participate in the testing of the evidence to be relied upon in the substantive proceedings in the Children’s Court.

Affidavit of mother’s younger sister in the appeal sworn 26 October 2021

124. The affidavit of the mother’s younger sister filed in the appeal was sworn on 26 October 2021: Exhibit “A”, Tab 20, pp 248 – 259.

125. This affidavit refuted the allegations of verbal and physical abuse made by the mother against the maternal grandparents. This affidavit noted the advent of a material change in the mother’s behaviour and attitude towards her family after she had commenced her relationship with the father. This affidavit provides corroborative evidence that the maternal grandparents worry about the mother, and are concerned for the wellbeing of the child who is the subject of the appeal.

Submissions of the parties

126. In view of the urgency for delivery of these reasons, and where the written submissions of the parties were expanded upon orally, and those matters have been recorded, I propose to identify the submissions of the parties with some economy as they are addressed in my findings.

127. The submissions made on behalf of the maternal grandparents are to the effect that the basis for the exercise of discretion to grant leave for them to intervene in the Children’s Court proceedings on all relevant issues without limiting the intervention to contact issues. My reasons reflect that I have accepted those submissions.

128. The combined effect of the submissions made on behalf of the other parties, namely, the Secretary, the father, the mother, the paternal grandfather and the ILR, are to the effect that leave for the maternal grandparents to intervene should be refused. My reasons reflect that those submissions have not been accepted.

129. The combined effect of the submissions on behalf of those respondents indicates that they have placed undue reliance on the acrimonious relationship that appears to exist between the two families, asserting that this is a barrier to the maternal grandparents being able to serve the paramount best interests of the child. On the evidence tendered in this application, those submissions cannot be accepted.

130. The suggestion that the Secretary would be able to safeguard the contact interests of the maternal grandparents rings hollow in this case, especially against the background of how the Secretary has dealt with the maternal grandparents in the past, changing the initial and well supported placement proposal from a placement with them to placement with the father, with undefined “supports” on an inherently tenuous basis, without adequate explanation and discussion. The process must proceed according to reason, and not caprice. This necessarily requires that the maternal grandparents be given a voice in the proceedings.

131. That is particularly so where, on the evidence I have seen and summarised in these reasons, DoCJ has not adequately ascertained or fathomed the father’s causative role with regard to the child’s injury. There is evidence he has been complicit in deceitfully providing a fabricated and doubtful explanation, as was identified by investigating police officers. There is evidence he has dropped the child and he has head-butted the child. Plainly, those matters need to be the subject of satisfactory explanation, and the maternal grandparents have a relevant interest in ensuring that this occurs. It is offensive to common sense to suggest otherwise.

132. In the unexplained circumstances of injury as revealed in the available evidence, the DoCJ proposal of a placement with the father seems to be a bizarre proposal that raises the spectre of possible unacceptable harm being further occasioned to the child. The maternal grandparents are fully justified in agitating to be heard on that issue.

133. The submissions on behalf of the ILR are to the effect that the maternal grandparents should not be granted leave to intervene because the acrimony between the families seems to be preventing them from framing the father’s family in a positive light. A series of references to the Court Book were provided to support that submission. It seems to me that this is an irrelevant consideration on the question of whether leave should be granted.

134. That submission has no determinative bearing on the question of the prospects of success of the maternal grandparents in the underlying proceedings. Whether or not the father’s family can or should be framed in positive terms is a question of fact to be determined at a hearing on the merits, on an evaluation of the entire evidence. Plainly, the paramount best interests of the child require that the voice of the maternal grandparents be heard in that regard.

135. I now turn to a consideration for the substantive issues calling for decision in this appeal.

Issue 1 – Policy and legislative objectives

136. Questions relating to the determination of disputes over appropriate placement and contact arrangements for a child in out of home care directly engage the policy considerations embedded in the Care Act, particularly with regard to the paramount principle of the safety, welfare and wellbeing of the child who is the subject of the appeal. This is so particularly where parties to the proceedings, namely the parents, have in some way been complicit in either causing injury or deceitfully concealing from authorities relevant information about the cause of such injury, as is evident in the present case: s 9(1) of the Care Act.

Issue 2 – Whether only limited leave should be granted

137. In this case, where there is apparent acrimony that causes difference and distance between the parties, including in respect of multiple factual disputes that have and will be likely to continue to touch upon the question of the safety, welfare and wellbeing of the child the subject of these proceedings, in my view, it would be unjustifiably artificial to simply confine a grant of leave for joinder to just the limited issue of contact arrangements.

138. To impose such a limitation would have the effect of denying to the child the benefit of the input of relevant contradictors, his maternal grandparents, in the process of testing the obviously nebulous elements within the foundations of Secretary’s case and care plan.

139. Whilst an unconditional grant of leave for joinder to enable the maternal grandparents to engage with all issue in the proceedings may result in prolongation of the proceedings to a degree, if the dictates of justice so require, then so be it.

140. The rationale for that view is that the human rights of a voiceless child are a more important consideration than following any temptation that parties or courts might have to take unjustified short-cuts in litigation. The effect of short-cuts may have the effect of mis-determining or unjustifiably limiting important human rights. A proper evaluation is required, as inconvenient a process as that might appear to be in some quarters.

Issue 3 – Genuineness of the stated concerns

141. In my view, an affirmative answer is required on the threshold question of whether the maternal grandparents hold genuine concerns over the future safety, welfare and wellbeing of the child who is the subject of the appeal if the child were to be restored to the parent care of his father, both objectively and subjectively.

142. Those concerns are reality-based in that the child has a medically documented history of having been subjected to serious bodily injury at the age of 8 weeks. Those injuries were incurred whilst the child was under parental control. When those injuries were examined by professionals legitimate concerns were expressed by investigating police with a child protection remit, that the parental explanations for some of those injuries were fabricated, and not entirely credible. This involved parental deceit on matters of child safety where the father was complicit in that deceit.

143. The maternal grandparents have picked up on those concerns and are seeking transparent explanations for the circumstances in which the injuries occurred. In that regard, their own desire for transparency is in my view, equally matched by their desire to promote the safety, welfare and wellbeing of their grandchild who has been heinously injured.

144. There is little room for doubt that those legitimate concerns are genuinely held by the maternal grandparents. In my view, those genuine concerns have become elevated by the apparently poor and acrimonious relationship that exists between respective families. This has become aggravated by the fact that the Department is proposing to allocate parental responsibility for the child to the father, who was deceitfully complicit in providing investigating police with a fabricated explanation of the child’s injuries.

145. Those concerns have become even further elevated by the non-transparent opacity of the Department’s reliance on a parenting capacity assessment of the father by a Children’s Court clinician’s assessment, where the maternal grandparents have been unable to see, analyse and consider that assessment for testing in the child’s best interests, including by potential challenge. They cannot do so unless they are granted leave to become joined to the proceedings.

146. Such opacity does not serve the paramount principle within s 9(1) of the Care Act, nor does it serve the dictates of justice, which includes the child’s human right to receive protection from unacceptable and avoidable risks of harm, including serious bodily harm of the kind that has already been inflicted upon him by at least one parent, compounded by an attempt at deceitful concealment by the other parent.

147. Those concerns become even further elevated when due regard is paid to the fact that some of the child’s injuries remain materially unexplained. This is where one parent, the father, seeks the allocation of parental responsibility, apparently without a transparent acknowledgment of the part he has played in the child’s injuries.

148. On that issue, the maternal grandparents not only hold genuine concerns as to the safety, welfare and wellbeing of their grandchild, but they are relevant contradictors who are well placed to seek to forensically test contentious evidence: Bell-Collins Children, Department of Family and Community Services [2015] NSWSC 701, at [34].

149. I find that the concerns held by the maternal grandparents regarding the potential for the child to be unacceptably exposed to the risk of harm if in the parental control of the father are not far-fetched or fanciful. I find such concerns to be realistic and held genuinely, within the letter and the spirit of s 9(1) of the Care Act.

150. In those circumstances, I find that the expressed concerns held by the maternal grandparents indicate that they are persons within the statutory array of persons who should be recognised as having relevant and genuine concerns that justifies their joinder to the Children’s Court proceedings.

Issue 4 – The effect of delay

151. It hardly needs stating that delay in litigation of all kinds is best avoided, but especially so in relation to child care proceedings.

152. In considering the potential impact of delay due to the conduct or involvement of a litigant, it is relevant to contextually stratify its causes on account of the conduct of the litigants seeking discretionary relief from the Court.

153. This is because disentitling conduct can weigh decisively against the exercise of the discretion that is sought to be invoked in this case: s 58(2)(i) and (ii) of the Civil Procedure Act 2005 (NSW). Those provisions apply to litigation once it is in this Court. It therefore becomes relevant to examine past delays as well as future sources of delay in terms of those principles.

154. In this case, the chronology of events laid out in these reasons shows that the maternal grandparents have acted with reasonable promptness in making their application for joinder once it was made known to them by the DoCJ caseworker that the Department was no longer supporting an allocation of the care of their grandchild to them.

155. In that context, the passing of 17 days between the time when the maternal grandparents were told of the Department’s changed approach and making the application for joinder should not be seen to be a material delay.

156. The delays that have since followed should be seen to be procedural delays over which the maternal grandparents had no effective means of control. Leave to intervene was refused by the Children’s Court 30 days after the application was made. This appeal was filed promptly, within time, and there has been no undue litigation delay incurred on account of any conduct on the part of the maternal grandparents in the case management phase of the proceedings in this Court, or during the course of the hearing of the appeal.

157. If the leave sought is granted, this will no doubt cause some element of future delay until the Children’s Court litigation can be concluded.

158. That said, such delay should also be seen to be procedural in nature, and not due to fault by the intervening grandparents. In reality, litigation, properly conducted, takes time and appropriate preparation attention beforehand. The factor of delay on that account cannot fairly be used as a means of denying the maternal grandparents the opportunity of exercising their legal rights.

159. The granting of leave necessarily means there will be a further element of delay. However, the issues at stake and the importance of the need for scrutiny and testing of nebulous evidentiary positions, decisively outweighs the articulated concerns about further procedural delay. This factor of delay is not a sufficient basis to require that the discretion to grant leave for joinder not be exercised: EC v Secretary, NSW Department of Family and Community Services [2019] NSWSC 226, at [20].

160. Both the maternal grandparents and the child are entitled to procedural fairness in this legal dispute. It cannot be justly resolved by affected parties seeking to shield themselves from the scrutiny that comes with proper testing of the evidence and the submissions on the merits of the litigation.

161. In coming to the conclusion that potential future delay should not be seen to be a disentitling matter in this case, I have not overlooked the arguments advanced by the parties who resist the granting of leave by asserting future delay may have a deleterious effect on the child.

162. Whilst that potential outcome is a factor in come cases, it should not be determinative in this case, especially when it is based on unsupported speculation. There is no evidence from any health care professional to suggest that a delay of the kind that would follow from a grant of the leave sought would be harmful to the child in this instance.

163. Furthermore, the Children’s Court, like other courts invested with discretionary jurisdiction, has the power to order expedition of proceedings if warranted. That is an effective answer to the stated concern over a delayed conclusion to the litigation.

164. In coming to that conclusion I do not ignore the fact that the child’s paramount interests are best served by an early allocation to a stable placement, with appropriate attachment. Whilst such factors are acknowledged, there is no reliable evidence to suggest that a delay in concluding this litigation whilst it takes its natural procedural course would be detrimental to the child’s safety, welfare and wellbeing.

165. This is not a question to be determined by reciting generalities and formulaic labels such as “justice delayed is justice denied”, as was submitted in opposition to the course proposed by the maternal grandparents. Without context or foundations in the evidence, such labels have no meaningful application.

166. If a suitably qualified person was of the opinion that delay due to joinder posed a real risk of harm to the child then the Children’s Court, like all specialised jurisdictions, is procedurally equipped to manage such factors as a matter of the routine exercise of its jurisdiction.

167. There is no reliable evidence to suggest that delay consequent upon a grant of the leave sought in this case would be detrimental. Pending the resolution of the proceedings involving the extremely serious issues that have been identified, the Department is duty-bound to ensure that the child will receive appropriate care and consideration.

168. I therefore reject the submissions suggesting that the factor of delay countermands the exercise of discretion to grant leave to the maternal grandparents to intervene by joinder as parties to the proceedings in the Children’s Court.

Issue 5 – Prospects of success

169. The issue of prospects of success must be viewed in terms of s 10A of the Care Act, which provides a statutory hierarchy for the placement of children, where the first preference is to return a child to parents or a parent, and if that option is not practicable, or in the child’s best interests, the Children’s Court must then consider a kinship placement, as I have explained in a previous decision which was cited in submissions: A v The Secretary, Family and Community Services [2015] NSWDC 307, at [476].

170. In this case, the maternal grandparents fit within the array of persons to be considered in that statutory hierarchy. This is so particularly where it is not disputed that it would be inappropriate to consider restoration of the child to the mother, and as has already been identified, and lingering questions remain unanswered as to the role of the father with regard to the cause of the child’s grievous injuries, which led to his assumption into care. This is where questions remain unanswered as to the father’s complicit role in providing what police considered to be a fabricated explanation for such injuries.

171. On that analysis, beyond mere speculation, I consider that there is more than just a reasonable prospect that the evidence along those lines, already in existence, could properly base an argument leading to a potential finding that would preclude placement of the child with his father on the ground that his safety, welfare and wellbeing would be at an unacceptable risk in terms of serious harm. This is where such harm has already occurred in the past. The proposal for the child to be placed with the father, “with supports”, involves uncertain and speculative considerations that raise legitimate concerns. The maternal grandparents had such concerns.

172. The evidence is that on 31 March 2021 the father completed his participation in an 8 week parenting programme and was considered to be a good enough parent: Exhibit “A”, Tab 6, p 57.

173. However, in that regard, the Secretary has chosen not to tender evidence in the form of the Children’s Court Clinic assessment of the father’s parenting capacity. The Children’s Court Magistrate presumably has that report and it is therefore beyond the scope of this application to make determinative findings as to the father’s parenting capacity.

174. In those circumstances, all that needs to be said on the prospects of success of an intervention by the maternal grandparents is that in a jurisdiction where the proceedings are required to be conducted in a non-adversarial manner, with as little formality and technicality as the circumstances permit, where the rules of evidence do not necessarily apply, where findings on matters of fact must be made on the balance of probabilities, as provided by s 93 of the Care Act, on the fundamental and paramount issue of child safety, the presence of a relevant contradictor should be unquestionable, and the extra time that might be taken up in order to allow for the contradictory role to be fulfilled becomes a less relevant consideration in the exercise of the required discretion.

169. In this case, the maternal grandparents have an obvious statutory standing as they fit within the hierarchy of s 10A of the Act. They are seized of relevant information that could reasonably be used to challenge or contradict the appropriateness of the Secretary’s proposal for placement, notwithstanding that placement proposal is supported by the parents, the paternal grandfather and the child’s independent legal representative.

170. The required evaluative exercise is not one of aggregating the numbers to oppose joinder. The paramount best interests of the child require that the Secretary’s proposal for placement be the subject of a critical evaluation. The maternal grandparents are relevant contradictors of that proposal. The factual matters that form the basis for contradiction on grounds of child safety have been amply exposed by the maternal grandparents in the affidavit evidence in this appeal, and those matters need not be rehearsed again at this point in these reasons.

171. In this case, it is disturbing that scarce and costly public resources are being applied so vigorously by the Secretary and the ILR to seek to exclude the maternal grandparents from exposing matters of contradiction on the issue of the safety, welfare and wellbeing of a child, where those matters are unquestionably have a relevant bearing on the consideration required in the Children’s Court proceedings.

172. Whilst these reasons do not bind the deliberation or the determination that must be undertaken by the Children’s Court on the matters of fact in terms of outcome, on the evidence, I find that the maternal grandparents have reasonable prospects of success in their proposed course of contradicting the Secretary’s position in the proceedings. If the Secretary’s proposal to place the child with the father is displaced, then the maternal grandparents stand next in line in the statutory hierarchy for consideration of a kinship placement.

173. Irrespective of whether the Secretary’s proposal for placement of the child is accepted or rejected by the Children’s Court, the voice of the maternal grandparents should at least be heard on the issue of appropriate contact orders.

174. This is so not only because of the existing positive assessment of their suitability as a kinship placement, but also because of the frequency and stability of their prior contact with the child. That factor serves to promote the child’s safety, welfare and wellbeing, sense of family connection. Those matters must be nurtured and maintained.

175. In opposition to the proposition that leave should be granted for joinder in relation to contact arrangements, on behalf of the Secretary, it was submitted that the Secretary’s role with regard to contact arrangements would adequately safeguard the contact rights of the maternal grandparents.

176. On the evidence adduced in this appeal that submission must be rejected. In the context of the acrimonious interpersonal undercurrents that have been exposed in this case, having regard to the position adopted by the Secretary, supported by the other respondents, on whether the maternal grandparents should be joined to the proceedings, the dictates of justice and fairness (not only to the maternal grandparents, but more importantly, to the child), requires that the maternal grandparents be given a voice in the proceedings.

177. That conclusion requires that the maternal grandparents be given leave to intervene in the Children’s Court proceedings to have their voice heard at the very least on the contact orders in the event the Children’s Court Magistrate might decide that the primary submissions on behalf of the maternal grandparents on the issue of placement do not find acceptance.

Dispositive conclusions

184. The maternal grandparents have satisfied all the factual and legal requirements for discretion to be exercised in their favour to grant them leave to intervene in the Children’s Court proceedings where their grandson is the subject of the proceedings.

Orders

185. I make the following orders:

1. The order made by the Children’s Court at Campbelltown on 21 July 2021 which refused the application by the maternal grandparents for leave to be joined to those proceedings, is set aside;

2. Pursuant to s 98(3) of the Children and Young Persons (Care and Protection) Act 1998, leave is granted to the maternal grandparents to be joined as additional parties to the proceedings that are presently before the Children’s Court at Campbelltown;

3. The proceedings are remitted to the Children’s Court at Campbelltown to be determined in accordance with Order (2) above;

4. The exhibits are to remain with the Court file;

5. Liberty to apply on 7 days’ notice if further or other orders are required.

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Decision last updated: 19 November 2021