Joshua Douglas and Damien Douglas v Secretary, Department of Family and Community Services

[2017] NSWDC 361

District Court

New South Wales

Medium Neutral Citation:	Joshua Douglas and Damien Douglas v Secretary, Department of Family and Community Services & Ors [2017] NSWDC 361
Hearing dates:	4 December 2017
Decision date:	14 December 2017
Jurisdiction:	Civil
Before:	Mahony SC DCJ
Decision:	Appeal dismissed
Catchwords:	Application for joinder as party to Children’s Court proceedings
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998
Cases Cited:	A v Secretary, Family and Community Services [2015] NSWDC 307 Ellison & Anor v Karnchanit [2012] FAMCA 602 Farnell & Or v Chambua [2016] FCWA 17 House v The King [1936] HCA 40, (1936) 55 CLR 499 M v M [1998] HCA 68
Category:	Principal judgment
Parties:	Joshua Douglas and Damien Douglas (Plaintiffs) Department of Family and Community Services (1st Defendant) CN (Mother) Independent Legal Representative (For the Child)
Representation:	Counsel: – V Carty (Plaintiff) G Moore (Department of FACS) Solicitors: J L Higgins (Independent Legal Representative for the Child) D Chapman (2nd Defendant Respondent Mother)
File Number(s):	17/310319
Publication restriction:	Non-Publication of names of Child and Mother

Judgment

Introduction

1. By Summons filed on 13 October 2017, the plaintiffs appeal a decision of the Children’s Court of New South Wales dated 29 September 2017, refusing the plaintiffs’ leave to be joined as a party to proceedings in the Children’s Court between the Department of Family and Community Services (“the Department’), and CN, who is the mother of KD born 15 March 2017. KD was the subject of care proceedings filed by the Department on 14 August 2017 and is currently in the parental responsibility of the Minister on an interim basis following an order by the Children’s Court made on 15 August 2017. KD is one of five children of CN.

The Appeal

2. The appeal is brought pursuant to s 91 of the Children and Young Persons (Care and Protection) Act 1998 (“the Act”). The plaintiffs’ application in the Children’s Court was brought pursuant to s 98(3) of the Act which provides as follows:

“98 Right of Appearance

(1) In any proceedings with respect to a child or young person:

(a) The child or young person and each person having parental responsibility for the child or young person and,

(b) The Secretary, and,

(c) The Minister,

may appear in person or be legally represented or, by leave of the Children’s Court, be represented by an agent, and may examine and cross-examine witnesses on matters relevant to the proceedings.

(2) However, if the Children’s Court is of the opinion that a party to the proceedings who seeks to appear in person is not capable of adequately representing himself or herself, it may require the party to be legally represented.

(2A) If the Children’s Court is of the opinion that a party to the proceedings is incapable of giving proper instructions to a legal representative, the Children’s Court is to appoint a guardian ad litem for the person under s 100 or 101 (as the case may require).

(3) In any proceedings with respect to a child or young person, any other person who, in the opinion of the Children’s Court, has a genuine concern for the safety, welfare and wellbeing of the child or young person, may, by leave of the Children’s Court, appear in person in the proceedings, or be legally represented, or be represented by an agent, and may examine and cross‑examine witnesses on matters relevant to the proceedings.”

3. The plaintiffs’ application in the Children’s Court was not opposed by the Department, nor was it opposed by KD’s Independent Legal Representative (“ILR”). CN did not appear on the application for joinder in the Children’s Court, and had sought an adjournment of the application, which was refused. Both the Department and the ILR now oppose the application.

4. For reasons which are set out below, it is not in issue that the plaintiffs have “a genuine concern for the safety, welfare and wellbeing of the child KD”. The application, however, was refused by the Children’s Court on discretionary grounds, viz, that learned Children’s Court Magistrate held that the plaintiffs did not have sufficient prospects of success in obtaining an order to grant parental responsibility for the child KD. The reasons for that are set out below. The grounds of appeal are set out in their Summons as follows:

“Joshua Douglas and Damien Douglas do not agree with the Judgment of the Children’s Court Magistrate Sheedy, delivered on 29 September 2017, refusing leave to Joshua Douglas and Damien Douglas to be joined to the proceedings for KD in the Children’s Court of New South Wales at Cessnock.”

5. The evidence on the Appeal comprised a tender bundle which included the evidence before the Children’s Court, the transcript of those proceedings, together with the decision of Magistrate Sheedy dated 29 September 2017, and affidavits of Damien Douglas affirmed on 27 October 2017, CN sworn on 13 November 2017, and Sharon Brush affirmed on 24 November 2017. Also tendered by the plaintiffs were a letter written by the plaintiffs to KD dated 14 November 2017 (Ex A), together with a Supervised Contact Report (Ex B).

6. Written outline of submissions were also filed on behalf of the plaintiffs, the Department and the ILR. Each had the opportunity to make oral submissions, as did the solicitor for CN.

Background to the proceedings

7. In mid-October 2016, the plaintiffs became aware that CN was interested in having her baby adopted privately. They made contact with CN, who resided in Queensland at the time, and communications between them and CN took place, including visits to each other, between that time and when KD was born on 15 March 2017. The plaintiffs attended Toowoomba Hospital for the birth and were interviewed by Queensland Child Safety on the day of the child’s birth. The plaintiff, Joshua Douglas, advised caseworkers that he believed he was KD’s father, a statement he knew to be untrue at that time. The following day, CN and Joshua Douglas filled out a birth certificate registration for the child and the plaintiffs travelled back to New South Wales with the child.

8. On 21 March 2017, the Department received a report that the plaintiffs had purchased KD and a police investigation was underway. On 31 March 2017, caseworkers from the Department visited the plaintiffs’ home to discuss concerns arising from the identification of the plaintiff, Joshua Douglas, being named on a Departmental database as a “person causing harm” for sexual abuse. That arose from allegations made against him when he was 14 and the alleged victim, a cousin, was aged nine. The plaintiff, Joshua Douglas, denied that such abuse took place.

9. A safety plan was developed, which was conditional upon another adult being present with Joshua Douglas and KD at all times. Caseworkers were not informed that Joshua Douglas was not the biological father of KD.

10. The plaintiffs’ care of KD was reviewed by caseworkers from time to time. Throughout April 2017, the Department assessed that KD was well cared for. DNA testing for the purpose of paternity on Joshua Douglas revealed in May 2017, that he was not the father.

11. The plaintiffs filed Family Law proceedings in respect of the child, however, that Court was not informed of, or provided with, the DNA results.

12. When the mother, CN, found out about the historical allegation of sexual assault by Joshua Douglas, she forcibly removed the child from the plaintiffs. This followed an incident on 13 July 2017, following which, an AVO was taken out against CN, protecting the plaintiffs and the child KD. On 9 August 2017, the child was recovered by police and the Department assumed her care and placed her with authorised carers. Subsequently on 18 August 2017, Joshua Douglas provided the results of his Working with Children Check information to the Department. Joshua Douglas has a Working with Children Check bar until 2019.

13. The plaintiffs’ evidence in the Children’s Court deposed to them providing an excellent level of care for the child KD prior to her removal. The evidence further established that they felt trapped in a lie (namely that Joshua Douglas was the father of the child), but ultimately they told the truth to the Department and to police.

14. The plaintiffs had been authorised as foster carers in 2011 and between May 2011 and November 2011 had eight children in their care. It was later agreed that between the applicants and the Department that children under five would not be placed with them, due to their lack of experience in caring for younger children.

The Children’s Court decision

15. The learned Children’s Court Magistrate set out the background history of this matter as summarised above, together with the plaintiffs’ history as foster carers from May 2011. The learned Magistrate noted that the Department supported the plaintiffs’ application on the basis that they were best placed to put their evidence relating to the allegations made against Joshua Douglas, and also noted that Joshua Douglas had a Working with Children check, and therefore the Department was prevented from not only placing the child in his care, but also supervising such a placement.

16. The learned Magistrate set out the legislative framework for such an application, and stated that the Court must exercise its discretion in the context of the principles and objectives of the Act. The learned Magistrate referred to the following matters as being relevant to the exercise of the Court’s discretion pursuant to s 98(3):

1. Any delay the joinder may have to finalising the proceedings.

2. The applicants’ prospects of success if joined.

3. Matters of public policy, and

4. Whether the case can be advanced by another party, or whether the applicants for joinder would bring a depth of perspective and position that varied from the other party (whose positions are aligned) which would assist in fully informing the Court for the determination of final orders pertaining to the care and responsibility of the child.

17. The learned Magistrate found that the evidence established that the plaintiffs were providing KD with good care, and since her removal, they had been having contact with her and wished to resume her care. He was satisfied that the plaintiffs have a genuine interest in KD’s safety, welfare and wellbeing, as required by s 98(3).

18. The learned Magistrate noted that there had been a finding that KD was a child in need of care and protection, and that the next step in the care proceedings was to decide whether there was a realistic possibility of KD being restored to the care of her parents, or either one of them. At the time of hearing, the Secretary’s assessment on that question was not yet known to the Court. At the time of his determination, a Care Plan had yet to be filed for KD, however, that had now been filed on 1 November 2017. The Care Plan was not in evidence before me on this application. The learned Magistrate noted that the only delay caused by joinder may occur if an assessment order was made. However, any such delay would not amount to an unacceptable delay. The learned Magistrate also noted that on the question of whether restoration to the parents was a realistic possibility, the Court was not choosing between the parents, or one of them, and the plaintiffs as preferred carers for the child. Rather, the question was whether the plaintiffs should be joined to prosecute their suitability as carers for KD if the Court decided that KD should not be restored to the care of her parents. The learned Magistrate accepted that only the applicants were able to argue their suitability because none of the other parties supported placement of KD with them.

19. The learned Magistrate then considered the question of the plaintiffs’ prospects of success. On the question of the illegality involved in bringing KD into the care of the plaintiffs following her birth, having reviewed the authorities, the learned Magistrate held that the overriding consideration was the best interests of the child, and he was obliged to set aside any sense of disquiet about the way in which the placement was arranged, if to do so was in the best interests of KD.

20. The learned Magistrate noted that further time would expire before a determination by the Court of a final order which would weaken the child’s attachment with the plaintiffs.

21. The learned Magistrate rejected a submission made on behalf of the plaintiffs concerning difficulties they had endured in caring for other children who had been placed in their care. It was held that their history of being unable to cope when behavioural difficulties arise is a relevant consideration, and further, there was uncontested evidence from the Secretary that in 2012 the plaintiffs were held not to possess four key competencies in looking after children, particularly children under five years of age.

22. Given the history of conflict between KD’s natural family and the plaintiffs, the learned Magistrate found that the plaintiffs would struggle to organise and implement ongoing positive contact between KD and her natural family.

23. On the question of the allegation that Joshua Douglas was the perpetrator of a sexual assault on a young child when he was 14 years of age, the learned Magistrate noted that the allegation was denied “absolutely and vehemently” by Joshua Douglas. The learned Magistrate noted that the Court would have to make a finding as to whether there was an unacceptable risk of harm in those circumstances, as contemplated in M v M [1998] HCA 68. The learned Magistrate rejected a submission by the plaintiffs that the Court would be in a position to find that there was no such risk, having regard to the nature and quality of the allegations, and that Joshua Douglas has a Working with Children bar until 2019.

24. On the question of whether any concerns could be met by undertakings given by the parties to address concerns or mitigate risk, the learned Magistrate determined that there would be a real issue as to whether the Court would be able to place confidence in the plaintiffs’ compliance with any such undertakings, given first, the illegal arrangement entered into by them in order to obtain care of the child, and then what were described as elaborate steps taken by them to hide the illegality, including knowingly registering a false birth certificate, concocting a story of conception, lying to the Queensland Child Protection Agency, the Department, and police, and failing to disclose the DNA results referred to above in the Family Court proceedings regarding the child KD. The learned Magistrate considered the following factors in considering the prospects of success of the plaintiffs’ application for parental responsibility of KD:

• “The manner in which the child entered into the care of the applicants.

• The break in the care of KD provided by the applicants.

• The fact that the applicants are not part of KD’s birth family, and the difficulties the carers will have in providing ongoing positive contact with KD’s birth family.

• The parenting capacity of the applicants.

• The allegations made against Joshua Douglas.

• The Working with Children Check bar on Joshua Douglas.

• The fact that there will not be able to be any oversight or supervision of any placement with the applicants.

• The history of the applicants’ lying to agencies.”

25. The learned Magistrate held that when all of those circumstances were taken into account the plaintiffs would face a significant hurdle in persuading the Court to grant them parental responsibility of the child, and therefore the plaintiffs did not have sufficient prospects of success. For that reason the application for joinder was refused.

The plaintiffs’ submissions

26. Learned Counsel for the plaintiffs highlighted three factual findings made by the learned Magistrate, as outlined above, which were not challenged, namely:

1. The evidence established that the plaintiffs had provided KD with good care and were intending to continue to provide her such care throughout her childhood.

2. The only delay that would be occasioned by a joinder order would be if an assessment order was made and that that would not amount to an unacceptable delay, and

3. Only the applicants were in a position to argue their suitability as carers in the event that the Court decided that KD should not be restored to the care of her parents, or one of them.

27. Counsel correctly submitted that I am bound by the High Court’s decision in House v The King [1936] HCA 40, (1936) 55 CLR 499, and that to set aside the learned Magistrate’s order I must be satisfied that there has been an error in her exercise of discretion, resulting in an unreasonable or plainly unjust decision.

28. The finding made by the learned Magistrate which was challenged by the plaintiffs, was the determination as to the plaintiffs’ prospects of success in obtaining parental responsibility for KD. In respect of the manner in which the child came into the plaintiffs’ care (that is involving illegality), and the history of the plaintiffs lying to the authorities, it was submitted that the Court should take into account that in respect of both matters the child had done nothing wrong. The principles to be applied are those referred to in s 9 of the Act, namely, the safety, welfare and wellbeing of the child were paramount, relying on Ellison & Anor v Karnchanit [2012] FAMCA 602 per Ryan J at [89] – [92].

29. Learned Counsel submitted that the Children’s Court Magistrate had placed undue weight on those issues in coming to a finding that the plaintiffs did not have sufficient prospects of success.

30. The plaintiffs also relied on Farnell & Or v Chambua [2016] FCWA 17, a decision of the Family Court of Western Australia, to submit that concerns over the illegality and concealment engaged in by the plaintiffs could only be taken into account in making parenting orders if to do so would impinge adversely on the child. In applying Ryan J’s decision in Ellison, supra, the trial judge held that little turned on the question of illegality where the child had done nothing wrong.

31. On the question of the child’s attachment to the plaintiffs, it was submitted that the learned Magistrate’s finding that such attachment, given there was no biological connection with the plaintiffs to the child, would be significantly weakened in circumstances where the child had been with other authorised carers for an extended period of time. Counsel relied on A v Secretary, Family and Community Services [2015] NSWDC 307, to submit that any break in the attachment between the plaintiffs and the child was not a proper consideration for the Court to take into account. For the first five to six months of KD’s life, the plaintiffs had cared for her with the Department’s approval and supervision. At the time they underwent a safety assessment by the Department in March 2017, the plaintiffs’ previous history as carers was known to the Department and the child had been assessed as safe in their care. Therefore, it would be possible to re-establish KD’s attachment to them if this was properly managed by the authorities.

32. Counsel submitted that it was only when the prior sexual abuse claims concerning Joshua Douglas became known to the child’s mother that the plaintiffs’ relationship with the birth mother had deteriorated. That was a matter that was capable of being addressed through a safety plan and a determination would have to be made whether the risk was unacceptable.

33. As to the decision made excluding children under the age of five being placed with the plaintiffs, Counsel referred to the affidavit of Ms Brush, the caseworker, which set out the circumstances in which a mutual agreement was made between the plaintiffs and the Department on the basis of their lack of experience in caring for younger children. It was submitted that other placements of children in the plaintiffs’ care had ended only because the plaintiffs themselves had raised issues concerning the care of those children.

27. It was submitted that the allegation of sexual impropriety had been known to the Department in 2012. Further, the Working with Children check bar expired in 2019. It was submitted that the plaintiffs could give appropriate undertakings which could be accepted by the Court. Their previous history of lying in respect of the issue of paternity did not mean that they were generally unreliable as carers, and it did not follow that they could not be relied upon to comply with any undertaking given.

28. For those reasons it was submitted that the plaintiffs have sufficient prospects of success in the event that the question of parental responsibility for KD should arise so as to warrant them being joined as parties to the proceedings in the Children’s Court. Any such joinder could be confined to the question of their suitability as carers and take into account any ongoing contact arrangements between the plaintiffs and the child.

Determination

36. I am satisfied, as was held by the learned Magistrate, that the plaintiffs have a genuine concern for the safety, welfare and wellbeing of the child KD. The question to be determined therefore, is whether the Court should exercise its discretion by leave to allow the plaintiffs to appear in person in the proceedings, or be legally represented, to prosecute their case to be granted parental responsibility in the event that the Children’s Court find that there is no likelihood of restoration of the child to her natural parent or parents. I acknowledge that I am bound by the High Court’s decision in House v The King, supra, and that to set aside the learned Magistrate’s order I must be satisfied that there has been an error in her exercise of discretion, resulting in an unreasonable or plainly unjust decision. However, pursuant to s 91(4) of the Act, I am vested with the same power as the Children’s Court, and have to come to my own determination of the matter, having regard to the whole of the evidence before me.

37. I have carefully read all of the evidence in the proceedings, the transcript of the application below, and the learned Magistrate’s judgment. I have also carefully considered the submissions, both written and oral, made on behalf of all the parties to the proceedings.

38. I do not accept the plaintiffs’ submissions that the learned Magistrate gave undue weight to the question of illegality in the way in which the child came into the plaintiffs’ care, and to the question of the plaintiffs’ lying to the various authorities in respect of that and her conception. It is clear that the best interests of the child are the paramount consideration. The learned Magistrate accepted the plaintiffs’ submission in respect of the manner in which the child came to be placed with them, and stated that she would be obliged to set aside “any sense of disquiet” she held about the way in which that placement was arranged if to do so was in the child’s best interests.

39. Further, I accept the submissions made on behalf of the Secretary, that the background of illegality and concealment would be matters that would have to be pursued concerning two aspects of the plaintiffs’ case for parental responsibility. First, it would affect their credibility in those proceedings, and secondly, it would impact upon whether the Court could accept undertakings from them if required so as to protect the child.

40. The Secretary also relied on the Safety Plan dated 31 March 2017, in respect of the child (Annexure B to the Affidavit of Ms Brush). That plan concerned the danger posed by Joshua Douglas being a person on the Community Service database, the subject of an allegation of sexual abuse. The plan to respond to that danger was noted:

“Someone will be present with Joshua and KD at all times.”

41. Learned Counsel on behalf of the Department submitted that the Secretary’s change of position since the Children’s Court hearing was not a relevant factor to take into account, nor would the extension of the hearing time by reason of joinder of the plaintiffs be necessarily fatal to their application. However, I do accept the Department’s submission that the serious matters going to credibility of the plaintiffs impact on the determination by the Court of the plaintiffs’ prospects of success.

42. Also, I accept the submission made on behalf of the child’s mother CN, by her solicitor, that those factors would impact upon any assessment of whether the risk of harm to the child was unacceptable or not, pursuant to the High Court’s decision in M v M, supra.

43. I find the Magistrate did not err in taking into account all of the factors set out in [24] above, when considering the prospects of success of the plaintiffs’ application for parental responsibility of KD. When all of those circumstances are taken into account individually and collectively, as they were by the learned Magistrate, I find that the plaintiffs have insufficient prospects of success. I therefore would not exercise the Court’s discretion to join the plaintiffs pursuant to s 98(3) of the Act.

Orders

44. I therefore make the following orders:

1. The Appeal is dismissed.

2. I confirm the decision of the Children’s Court dated 29 September 2017, refusing the plaintiffs’ application pursuant to s 98(3) of the Act.

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Decision last updated: 15 December 2017