Re Tilly and Minister for Family and Community Services

[2015] NSWSC 229

Supreme Court

New South Wales

Medium Neutral Citation:	Re Tilly and Minister for Family and Community Services [2015] NSWSC 229
Hearing dates:	13 February 2015
Date of orders:	13 February 2015
Decision date:	13 February 2015
Jurisdiction:	Equity Division - Protective List
Before:	Bergin CJ in Eq
Decision:	Respondents restrained from removing child
Catchwords:	[INJUNCTION] – application to continue injunction against Minister for Family and Community Services from removing a child in the care of the plaintiff – whether evidence to substantiate fear for child’s welfare
Category:	Procedural and other rulings
Parties:	Carer of Tilly (Plaintiff) The Minister for Family and Community Services (1st Defendant) Secretary, Department of Family and Community Services (2nd Defendant)
Representation:	Counsel: P O’Dwyer SC/J Longworth (Plaintiff) TP Stevens (1st and 2nd Defendant) Solicitors: Gordon & Barry Solicitors (Plaintiff) Crown Solicitor’s Office (1st and 2nd Defendants)
File Number(s):	2015/46266

EX TEMPORE Judgment

1. This is the return date of an injunction granted last evening restraining the defendants from removing the child known in these proceedings as "Tilly" from the care of the plaintiff. Today, the defendants have called evidence from the officer who is the manager in charge of the relevant office of the Department (the Manager). The caseworker has not been called. That is not a criticism. The matter has come on urgently having regard to the planned removal of the child from the plaintiff yesterday.

2. The history to the proceedings is that on 10 February 2015 a letter was sent to the plaintiff advising her of an outcome of an investigation "recently completed" by Life Without Barriers, the Department’s agent.

3. Reference was made in that letter to an interview with the plaintiff on 7 October 2014 at which the plaintiff was presented with a statement of allegations. The letter stated that the initial allegations had been "thoroughly investigated" and that the findings had been made on "the balance of probabilities". The findings relate to two boys, aged eleven and thirteen years, who were for a period in the plaintiff’s care. They are that the plaintiff assaulted the thirteen year-old in two incidents: one was an attempt to strangle him and the second was threatening him with a knife. The third in respect of the same boy was that there was a physical assault as a result of the boy not eating his food. A fourth alleged assault was in respect of the two boys which was not sustained.

4. The fifth allegation was an alleged physical assault in respect of the thirteen year old which was not sustained. The sixth which was an allegation of physical assault for not putting away the washing up correctly was not sustained.

5. The two boys had been placed with the plaintiff in January 2014. It is not in issue, as I understand it, that the plaintiff requested the removal of those boys from her care. It was soon after that removal that the allegations were made.

6. The younger of the two boys was the subject of a level two notification from the local school in May 2014, in which he was placed on two days' detention and monitoring. It would appear that the conduct, the subject of the school notification, was not anything to do with physical conduct but rather, inappropriate gestures and accusations against others in circumstances where they may well have said something adverse about the younger boy's race. In any event, it appears that the boys have some behavioural difficulties and they were removed from the plaintiff’s care at her behest.

7. The allegation that has been brought against the plaintiff in respect of Tilly, came from the boys some time prior to 7 October 2014 and after the boys were removed from the plaintiff’s care. The allegation was put to the plaintiff by Life Without Barriers on 7 October 2014 (see pp 53 and 54 of exhibit 1). It was denied at that time and has been denied today. Although this has been a fairly urgent hearing, the denial by the plaintiff that she assaulted Tilly was not tested, other than by a suggestion that there had been a number of allegations in respect of the children that had been placed in the plaintiff's care.

8. However the defendants claim that there are serious questions about the Tilly's safety if she stays with the plaintiff. I understand that the plaintiff offered Life Without Barriers the opportunity to interview her own two children who are above the age of 15 years who live with her. I also understand that the plaintiff suggested that perhaps the pre-school teachers at the kindergarten which Tilly attends could also be interviewed. Neither of these suggestions were taken up.

9. The circumstances of the attendance yesterday at the plaintiff's house needs to be looked at carefully because it was obviously an emotional time for the plaintiff.

10. On 4 February 2015, the plaintiff received written notification from Life Without Barriers that it had decided to decline the plaintiff's request for the longer term care of Tilly. It advised that it had reviewed all the documentation that was presented to the panel in her application to care for both Tilly and her young brother who is aged seven months. Life Without Barriers advised the plaintiff in this letter that there was a plan for Tilly for transition to a permanent carer. It advised that there was a plan that another carer presently caring for Tilly’s brother and the plaintiff and Tilly would meet and greet the new carers on 5 February 2015 and that both Tilly and her brother would return home with their respective carers that night.

11. It was then planned that Tilly and her brother would have an overnight or a weekend stay between 6 and 10 February 2015 with the proposed new carers. It was then planned that Tilly and her brother would move into their placement with the new carers on 13 February 2015, today, with the suggestion that an appropriate timeframe would be no longer than two weeks.

12. I am sure that the position of the experts in this area taking a decision to make transitions such as this occur quickly may be justified. What has happened in this case however is a little more complex. Once the plaintiff was notified of the position in respect of the decision regarding her application, she sought to put in place an internal review. That occurred within twenty-four hours and was declined. The plaintiff then made an application to the NSW Civil and Administrative Tribunal (NCAT). That had a return date this morning at 10am. That application is in respect of the plaintiff's application to be the long-term carer of Tilly.

13. The Manager was notified on 11 February 2015 of the outcome of Life Without Barriers’ Final Investigation Report. He was not given a copy of the report but was given an oral report by Life Without Barriers. The cross-examination by Mr O'Dwyer SC (who appears for the plaintiff) in respect of what occurred in October 2014 (or earlier) when Life Without Barriers first heard of this allegation concerning Tilly is apt. Surely if Life Without Barriers took the view this was a serious allegation putting the child at risk, they would have moved with expedition.

14. The way in which the two boys have been re-interviewed in January 2015 presumably because the plaintiff sought to have the long-term care of Tilly is a process no doubt that Life Without Barriers saw as appropriate. However when one reads the interview, it seems to me that there should be great care where serious allegations are made by young people. Particularly in circumstances such as this, there should be no questions that are leading.

15. In the circumstances, notwithstanding the very firm submissions made by Ms Stevens of counsel (for the defendants) that I should not continue the injunction, I intend to do so for the time being. This will enable the consolidation of the applications before various Courts and Tribunals in respect of Tilly and will also enable a more orderly approach to any transition, if that is what is to happen.

16. I am satisfied in all the circumstances that the injunction should be continued.

17. To regularise the proceedings, I make the following orders:

1.   I order that there is to be no publication that would identify or tend to identify the child, the subject of these proceedings, except for the purpose of the proper conduct of these proceedings.

2.   I order that the child, the subject of the proceedings, be known as "Tilly".

3.   I order that the proceedings be known as "Re Tilly and Minister for Family and Community Services & Anor".

4.   I order that up to 5pm on 2 March 2015, the respondents are restrained from taking any steps to remove Tilly from the care of the plaintiff.

5.   I grant leave to the defendants to bring an application to discharge the injunction on one day's notice on any new or further evidence.

6.   I will make an order that these orders are to be taken out forthwith.

**********

Decision last updated: 25 March 2015