KB v Burrun Dalai Corporation Inc

[2025] NSWSC 103

Supreme Court

New South Wales

Medium Neutral Citation:

KB v Burrun Dalai Corporation Inc [2025] NSWSC 103

Hearing dates:

19 February 2025

Date of orders:

25 February 2025

Decision date:

25 February 2025

Jurisdiction:

Equity

Before:

Hammerschlag CJ in Eq

Decision:

Summons dismissed

Catchwords:

CHILDREN AND YOUNG PERSONS – PARENS PATRIAE – Proceedings by plaintiffs to have children restored to their care and allocation of parental responsibility for the children to them – Where the subject children were removed from the care of the plaintiffs following receipt of allegations of sexual abuse perpetrated by the first plaintiff against another child previously in the care of the plaintiffs of which the second plaintiff was allegedly made aware but took no steps – Where those allegations have been investigated and considered to have been substantiated, and there is an extant “interim bar” placed by the third defendant preventing the plaintiffs from working with children – HELD: Not an appropriate occasion for the Court to exercise its parens patriae jurisdiction

Legislation Cited:

Child Protection (Working with Children) Act 2012 (NSW)

Children and Young Persons (Care and Protection) Act 1998 (NSW)

Children’s Guardian Act 2019 (NSW)

Cases Cited:

M v M (1988) 166 CLR 69

P v NSW Trustee and Guardian [2015] NSWSC 579

Re Tilly v Minister for Family and Community Services [2015] NSWSC 1208

Re Victoria (2002) 29 Fam LR 157; [2002] NSWSC 647

Roberts v Balancio (1997) 8 NSWLR 436

Category:

Principal judgment

Parties:

KB (First Plaintiff)
LM (Second Plaintiff)
Burrun Dalai Corporation Inc (First Defendant)
Secretary, Department of Communities and Justice (Second Defendant)
Office of the Children’s Guardian (Third Defendant)

Representation:

Counsel:
MW Anderson (Second and Third Defendant)

Solicitors:
Riverside Legal (First Defendant)
Crown Solicitors Office (Second and Third Defendants)
Legal Aid NSW (Children’s Independent Legal Representative)
First Plaintiff (self-represented)
Second Plaintiff (self-represented)

File Number(s):

2025/00005413

Publication restriction:

Pursuant to an order made on 10 January 2025, there is to be no publication of the name of, or any information that would identify the plaintiffs, the subject children, and any other children who are under the parental responsibility of the Minister for Families and Communities until 14 August 2040.

This order operates throughout the Commonwealth of Australia.

JUDGMENT

Introduction

1. The plaintiffs exhort the Court to exercise its inherent parens patriae ward jurisdiction in the interest of, and for the protection of, two children, known for the purposes of these proceedings as Lucas and Camilla. Lucas is 12 and Camilla is 9 (collectively, the children).

2. A substantial amount of affidavit and other material was put before the Court. I will recount only those parts of the material which are necessary to understand why I have reached the conclusion the Court should not intervene.

Background

3. The Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Act) provides for the care and protection of, and provision of services to, children and young persons.

4. The Act makes provision for persons to be made authorised carers of children and young persons.

5. The children in this case both have special needs. Each has disorders and undergoes a six-monthly review of their ongoing medical conditions. Both are under the parental responsibility of the Minister for Families and Communities (the Minister) pursuant to final orders of the Children’s Court made under section 79(1)(b) of the Act. In the case of Lucas, the order was made on 26 June 2013 and in the case of Camilla, it was made on 12 November 2015.

6. The first defendant (Burrun Dalai) is an approved Aboriginal Community Controlled Organisation and is a funded service provider responsible for the children’s case management.

7. The first plaintiff, KB, is an adult man, and the second plaintiff, LM, is an adult woman (collectively, the plaintiffs). The plaintiffs lived together until April 2019, when they separated. From soon after the birth of each child, the plaintiffs were their authorised carers. After the plaintiffs separated, they had a shared care arrangement under which the children lived primarily with LM, with KB providing respite care every alternate weekend.

8. The Department of Communities and Justice (DCJ) has a Joint Child Protection Response Program (JCPRP) which, in coordination with NSW Police and NSW Health, responds to concerns regarding children alleged to have been subjected to sexual or serious physical abuse. DCJ operates a helpline.

9. In early December 2024, DCJ received, via its helpline, two Risk of Significant Harm (ROSH) reports. The ROSH reports stated that a child, known for the purposes of these proceedings as Skye, who had previously been in the care of the plaintiffs was, while living with them, sexually assaulted by KB. DCJ received a ROSH report that Lucas and Camilla were at risk of sexual harm, because of the disclosures concerning Skye.

10. JCPRP commenced a Safety in Care Assessment for Skye, and the police commenced an investigation in relation to Skye’s disclosures. A Safety in Care Assessment is an assessment framework for assessing the safety of a child in the care of the Minister when allegations have been made against an authorised carer.

11. On 10 December 2024, a further ROSH report was received concerning Skye’s allegations, which included that she had been raped by KB (on a date not disclosed). The police interviewed Skye on 11 December 2024. A caseworker and witness intermediary were present. Skye disclosed several alleged incidents of sexual assault by KB. Additionally, Skye disclosed that she had informed LM of the sexual abuse around the time it occurred, but LM “did not tell the police or DOCS”. On 11 December 2024, Burrun Dalai in consultation with DCJ decided to move the children from their placement with the plaintiffs into a respite placement with Burrun Dalai carers.

12. Burrun Dalai makes risk assessments as part of a state-wide scheme called the Child Safe Scheme, which, amongst other things, sets standards for risk management so as to minimise the opportunity for abuse to occur.

13. On or about 11 December 2024, Burrun Dalai produced a risk assessment document, bearing the date 11 December 2024. The assessment recorded in it was that Lucas and Camilla were at risk of sexual harm and psychological harm if they remained in the placement of either of the plaintiffs. The assessment is recorded in a document which is in evidence. It refers to a provisional apprehended domestic violence order (ADVO) against KB, which was only issued after 11 December 2024 (as referred to below). As at 11 December 2024, the ADVO was an unknown future event. The officer from Burrun Dalai who signed off on the document with the 11 December 2024 date said the date was a mistake and that the document is a living document updated from time to time. When the reference to the ADVO was included as part of the updating process, she overlooked amending the date on the document as well. I believe her. Her explanation is the only rational one for a document referring to something that had not yet happened but subsequently did.

14. On 13 December 2024, Burrun Dalai suspended both plaintiffs’ carer authorisations.

15. That day, the plaintiffs commenced proceedings (the NCAT proceedings) in the NSW Civil and Administrative Tribunal (NCAT) seeking orders, including interim orders, that the children be returned to their care within 24 hours and that Burrun Dalai, as authorised agents for the Minister, be restrained from further removing the children from their care, pending any variations to the Final Orders of the Children’s Court. The plaintiffs were subsequently given written notice of the suspension.

16. On 16 December 2024, the children were interviewed by the police. They made no relevant disclosures concerning the plaintiffs.

17. On 19 December 2024, KB attended the home of Skye and her carer, which led to the issue of the ADVO against KB. The ADVO records that it is for the protection of Skye. It was made returnable in court on 9 January 2025. It was later withdrawn and dismissed.

18. Apparently (and somewhat remarkably) there was evidence that certain support services for the children were not available over the Christmas period because of shutdowns, although, according to KB, earlier arrangements had been made for services and support through NDIS. If this is correct, Burrun Dalai and the Secretary seem not to have been aware of it. School support for Lucas was apparently only available a few days after the school term began. Be all of that as it may, there is nothing to suggest that the necessary services and support for the children were not thereafter, and are not now, available. It goes without saying that the Court expects that the support necessary for the wellbeing of the children will be available and provided by those responsible for providing it.

19. The Children’s Guardian Act 2019 (NSW) makes provision for the appointment of a Children’s Guardian.

20. The Child Protection (Working with Children) Act 2012 (NSW) imposes mandatory requirements with respect to workers engaged in child-related work. These include that a worker must not engage in child-related work unless the worker holds under that Act a working with children check clearance of a class applicable to the work to engage in child-related work. Under section 17 of that Act, the Children’s Guardian can determine that a holder of a clearance is subject to an interim bar on, relevantly, engaging in child-related work, if the Children’s Guardian is of the opinion that it is likely that there is a risk to the safety of the children if the holder engages in child-related work. Under section 27(3), a person who is subject to an interim bar imposed by the Children’s Guardian may apply to NCAT for administrative review of the decision but only if the interim bar has been in force for more than six months.

21. The NCAT proceedings were heard on 18 and 20 December 2024 by a Principal Member. The Principal Member handed down their decision, on 20 December 2024, refusing the plaintiffs interim relief because the interim bar meant that neither plaintiff was an authorised carer and therefore, the children could not lawfully be returned to their care. Additionally, the Principal Member ordered that the children be separately represented.

22. The NCAT proceedings are stood over to 26 June 2025 (after the expiry of the six-month period) for, as I understand it, final hearing of the challenge by the plaintiffs to the decision to remove the children from their care. By then, also, it is expected that a further (or final) safety assessment with respect to the plaintiffs will be completed.

23. Late in the afternoon of 19 December 2024, having been informed by NSW Police that Skye’s disclosures were credible, that the police were concerned but were not able to immediately lay charges against KB and that it was alleged that LM had failed to report the alleged sexual abuse of Skye, the Children’s Guardian determined that the plaintiffs should be subject to an interim bar. The interim bar was imposed.

24. On the morning of 20 December 2024, KB was advised on the telephone of the interim bar. LM was telephoned but did not answer and a voicemail was left. Written notice of the interim bar was given to each of them that morning. The effect of the interim bar was to remove their authorisation to care for the children and the bar could not be appealed until 19 June 2025.

25. JCPRP have completed the Safety in Care Assessment for Skye, which is said to have “substantiated” the sexual abuse of Skye by KB.

These Proceedings

26. Against this background, by Summons sued out of the Court on 6 January 2025 the plaintiffs seek (amongst other orders) an order for the immediate return of the children to their care and that all aspects of parental responsibility be allocated to them pending the outcome of an investigation of the allegations made against them, and an order that Burrun Dalai and the relevant statutory authorities be restrained from further removing the children from their care “until the conclusion of their investigation”. The Summons also contains the following prayers for relief:

9 [a] finding that the [f]irst and [s]econd [defendants] have breached s 254 of [the Act] by way of their agent/employee/authorised foster carer discussing the removal of the children in the community where the [p]laintiffs and the children reside; ^[1]

10 [t]hat due to the first and second [defendants’] breach s 229 of [the Act], the Court make appropriate notifications to the Office of Children’s Guardian and immediately be removed as casework managers for the children … ^[2]

1. Section 254 of the Act provides:

2. Section 229 of the Act provides:

27. These prayers for relief were not addressed in the plaintiffs’ written or oral submissions. Both of the sections referred to create criminal offences. The relief claimed is not available at all, let alone from the Court exercising parens patriae jurisdiction.

28. The plaintiffs were self-represented but had the assistance of a McKenzie friend, who describes herself as a senior solicitor and the partner of KB.

29. Burrun Dalai and the children were represented by solicitors. The Secretary of the DCJ and the Office of Children’s Guardian were represented by Counsel.

30. I received written submissions from the plaintiffs, Burrun Dalai, DCJ and the Office of the Children’s Guardian. The plaintiffs’ submissions were no doubt prepared by or with the assistance of a lawyer. I heard brief oral submissions as well.

31. The hearing was completed in one day.

The Parties’ Positions

Plaintiffs

32. The following is the thrust of the plaintiffs’ written and oral submissions.

33. They describe the matter as being “actually quite simple”. They say that:

1. the defendants did not consider the children’s special needs prior to “forcibly removing” them from the care of the plaintiffs; and

2. that there was no evidence that the children were at risk.

34. As to the first, they say that there has been no regard to the impact on the children and that most of the evidence relied on by the defendants has been “blindly directed” to protecting Skye, at the expense of Lucas and Camilla.

35. As to the second, they say that there was no evidence that the children were at risk of harm. They point to the dismissal of the ADVO and the absence of any material about the police investigation. The first plaintiff strenuously denies any wrongdoing on his part. The second plaintiff denies having been told of Skye’s complaint and denies any wrongdoing in that regard. Inherent in this submission is that there will be no risk to Lucas and Camilla if the relief sought is granted. It was suggested that even if relief was not granted to the first plaintiff it could, and should, be granted to the second plaintiff.

36. The plaintiffs say that the decision to remove the children from their care was based on allegations concerning Skye rather than Lucas and Camilla. They submit (in some tension with other submissions) that no decision was made by any defendant, but actions were taken by all of them which have made these proceedings necessary.

37. The plaintiffs describe the conduct of the defendants as responding in a knee jerk fashion and then retaliating defensively to the plaintiffs in exercising their lawful right to seek review. This description is based on the fact that on the morning of the NCAT hearing the interim bar was imposed, the effect of which was that NCAT could not give them the relief they sought.

38. The plaintiffs also say that the decision was infected by “bad blood” between the Burrun Dalai officer who signed off on the risk assessment and KB. The officer denied any bad blood.

39. The plaintiffs say that the risk assessment document has clearly been falsified. This is a reference to the document dating/ADVO issue.

The Secretary, Department of Communities and Justice and the Office of the Children’s Guardian

40. The Secretary and Children’s Guardian argue that this is not an occasion upon which the Court should or would exercise parens patriae jurisdiction because:

1. the statutory regime to protect the children has been complied with, risk has been assessed and the Children’s Guardian is of the opinion that there is a risk to the safety of the children, and JCPRP has investigated and has substantiated the allegations made about KB. LM has been assessed as not having been protective and is implicated in the allegations of abuse, and there is on foot a further Safety in Care Assessment which is not yet completed but is expected to be completed before the NCAT proceedings continue in June; and

2. there is an interim bar in place, there are pending NCAT proceedings which are a substantive challenge to the decision to remove the children from the plaintiffs’ care and there are orders of the Children’s Court giving responsibility for the children’s care to the Minister which were made a long time ago, which are not under challenge and do not appear to be incorrect.

Burrun Dalai

41. Burrun Dalai adopted the submissions of the Secretary and the Children’s Guardian, arguing that exceptional circumstances warranting the intervention of the Court in its protective jurisdiction are not present.

The Children

42. On behalf of the children, the Independent Legal Representative adopted the submissions of the Secretary and the Children’s Guardian and opposed the grant of relief.

43. He conveyed to the Court the following views of the children following a meeting with them:

1. the children would like to go back and live with “mum” (by which they are referring to the second plaintiff);

2. they were happy to still be going to the same school and it has been good to see their friends;

3. the children believe their current placement is “okay”, though the children raised some concerns, these being:

1. their current carers’ cooking is not as good as the second plaintiff’s;

2. the travel to school is “really long”;

3. the lack of internet, which is hard for Lucas; and

4. there being a lot of bugs around the farm where the children currently are, which is scary to Camilla;

4. the children’s current carers are not as good as the second plaintiff at managing conflict between the children;

5. they liked meeting their biological mother and “looked forward to seeing her again”; and

6. Lucas said if he went back to live with the second plaintiff in the future, he would still like to spend some time with his current carers on the farm.

44. The Independent Legal Representative drew attention to the possible impact on the children given the immediacy of the risk involved in the allegations that had been made and the potential impact on them of being removed from their carers. He submitted that the risk is possible, that the severity of the risk is significant and the way to mitigate it was to remove the children from the plaintiffs. As to their present situation, they are going to the same school and there is some consistency in their care and they have re-engaged with services provided to them.

45. There are apparently arrangements under consideration for the second plaintiff to see the children in supervised circumstances.

Consideration

46. None of the alleged irregularities or shortcomings asserted by the plaintiffs about the way the defendants have acted has been made out. No improper motive, lack of due process, falsification of documents, lack of consideration, knee-jerk reaction or animus on the part of any of the defendants has been made out to any degree.

47. I make no finding that either plaintiff has committed or participated, actively or passively, in any sexual abuse.

48. In a matter such as this, the Court is not bound by the strict rules of evidence. I have acted on material which I consider to be rationally probative and have determined that it is proper to do so in this case (Roberts v Balancio (1997) 8 NSWLR 436).

46. I have concluded that not only is this not an occasion on which it would be appropriate to exercise parens patriae jurisdiction, but this is an occasion in which it would not be appropriate to do so.

47. A number of ROSH reports were made.

48. Burrun Dalai assessed that the children are at risk of ongoing sexual harm and psychological harm if they remained in the placement with either of the plaintiffs.

49. The Children’s Guardian has imposed an interim bar.

50. JCPRP’s assessment is that the sexual abuse of Skye by KB has been substantiated.

51. Whilst, as I have said above, I have made no findings against the plaintiffs, I have concluded on the basis of the material before me that there is a realistic and, therefore, unacceptable risk of sexual abuse to the children if they are returned to the care of the plaintiffs or either of them (see M v M (1988) 166 CLR 69). I have taken into account all of the circumstances, including that there is no active police investigation, that the ADVO was dismissed and that neither Lucas nor Camilla made any disclosure concerning any sexual behaviour of either plaintiff.

52. On the other hand, their current care arrangements involve no such risk. The material does not establish any shortcomings in those arrangements.

53. Therefore, it could not be in the interests of and protective of the children for their care to be restored to either of the plaintiffs at this time.

54. Indeed, it would, in the circumstances of this case, be sufficient to decline to exercise the jurisdiction if I was not satisfied that there was no such risk were I to grant the relief sought. Plainly, I am not so satisfied.

55. Moreover, were the Court to exercise its inherent jurisdiction and accede to granting relief in the form of restoring care to the plaintiffs, it would be bypassing the statutory scheme established by Parliament to ensure the safety of the children (see Re Victoria (2002) 29 Fam LR 157; [2002] NSWSC 647; P v NSW Trustee and Guardian [2015] NSWSC 579; Re Tilly v Minister for Family and Community Services [2015] NSWSC 1208 at [55] per Brereton J). There are on foot proceedings in an appropriate forum where the underlying issues can properly be ventilated. Whilst the Court undoubtedly retains inherent power to bypass the statutory regime, this is not a case where doing so is warranted.

56. The Summons is dismissed.

**********

Endnotes

254 Disclosure of information

(1) A person who discloses any information obtained in connection with the administration or execution of this Act is guilty of an offence unless the disclosure is made—

(a) with the consent of the person from whom the information was obtained, or

(b) in connection with the administration or execution of this Act or the regulations, or

(c) for the purposes of any legal proceedings arising out of this Act or the regulations, or of any report of any such proceedings, or

(d) in accordance with a requirement imposed under the Ombudsman Act 1974, or

(e) with other lawful excuse.

Maximum penalty—10 penalty units or imprisonment for a period not exceeding 12 months, or both.

Note—

An offence against subsection (2) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 258.

(2) It is not an offence under this section for the Secretary to disclose information to a person who has made a report concerning any action taken as a consequence of the report if the Secretary is of the opinion that disclosure of the information is not inconsistent with the objects and principles of this Act.

229 Unauthorised removal of children and young persons

(1) A person who, without lawful excuse—

(a) removes a child or young person from the care of a person into whose care and protection or care responsibility the child or young person has been placed under this Act, or

(b) causes or procures a child or young person to be so removed,

is guilty of an offence.

(1A) A person must not, by any conduct carried out within the State, without lawful excuse remove a child or young person from the care of a person into whose care and protection the child or young person has been placed under a child protection order, or an interim order, within the meaning of Chapter 14A (other than an order under this Act).

(2) A person who—

(a) is in charge of any hospital or other premises used for the purpose of receiving (whether or not for fee, gain or reward) more than one woman who is at the premises for the purposes of giving birth, and

(b) permits a child who is not in the charge of the child’s mother to be taken from the premises without first obtaining the consent of the Secretary,

is guilty of an offence.

Maximum penalty—200 penalty units.

Decision last updated: 26 February 2025