Children's Court New South Wales Medium Neutral Citation: Department of Communities and Justice (DCJ) and Bloom [2021] NSWChC 2 Hearing dates: 10, 11, 12, 13 and 14 August 2020 at Lismore; 18, 19, 20 and 21 August 2020 at Ballina; and 30 November 2020, 1, 2, 3 and 4 December 2020 at Ballina Date of orders: 05 March 2021 Decision date: 05 March 2021 Jurisdiction: Care and protection Before: Judge Peter Johnstone, President of the Children's Court of NSW Decision: The father's application under s 90 of the Care Act is dismissed. The Secretary's application under s 90 is allowed. Previous Care orders rescinded. Finding of no realistic possibility of restoration of the child to either parent. Finding that the Permanency Planning for the child is appropriate and adequate. Final Care orders allocating parental responsibility for the child to the Minister. Catchwords: CHILDREN - Care and Protection - application for rescission of previous Care orders - no realistic possibility of restoration - permanency planning Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 Children's Court Act 1987 Uniform Civil Procedure Rules 2005 (UCPR) Cases Cited: Briginshaw v Briginshaw [1938] HCA 34 Department of Human Services & K Siblings [2013] VChC 1 DFaCS re Day [2012] NSWChC 14 DFaCS Re Nicole [2018] NSWChC 3 Director General of Department of Community Services; Re "Sophie" [2008] NSWCA 250 In the matter of Campbell [2011] NSWSC 761 Johnson v Page [2007] Fam CA 1235 M v M [1988] HCA 68 Nu v NSW Secretary of Family and Community Services [2017] NSWCA 221 Rathswohl v Court [2020] NSWSC 1490 Re Alistair [2006] NSWSC 411 Re Henry; JL v Secretary Department of Family and Community Services [2015] NSWCA 89 Re Jayden [2007] NSWCCA 35 Re Mary [2014] NSWChC 7 Re Saunders and Morgan [2008] CLN Re Tanya [2016} NSWSC 794 Re Timothy [2010] NSWSC 524 Sudath v Health Care Commission [2012] NSWCA 171 The Secretary of the Department of Community and Justice (DCJ) and Fiona Farmer [2019] NSWChC 5 VV v District Court of New South Wales [2013] NSWCA 469 Texts Cited: Report of the Special Commission of Inquiry into Child Protection Services in NSW, November 2008 Category: Principal judgment Parties: The Secretary The mother The father The paternal grandmother The child Representation: Mr G Moore of counsel for the Secretary, instructed by Ms A Prior, solicitor from the Crown Solicitor's Office Ms Fawaz, solicitor, for the mother The father, a self-represented litigant in person Mr Boys, solicitor, for the paternal grandmother Ms Z De Re, solicitor for the child as her Independent Legal Representative File Number(s): 2017/201543 Publication restriction: Pseudonyms have been used to protect the identity of the child and family. Judgment Introduction 1. These Care proceedings concern the child, an Aboriginal girl, who was removed from the care of her mother on 26 April 2017 pursuant to the Children and Young Persons (Care and Protection) Act 1998 (the Care Act) due to concerns for her safety, welfare and well-being by reason of the mother's alcohol abuse and deteriorating mental condition, and the father's incarceration on remand on domestic violence charges. 2. There has since been a long and complicated history of interventions in the life of the child, including a period when she was placed with her paternal grandmother, followed by a failed attempt to restore her to her mother, and protracted, acrimonious litigation. More recently, the child, who is now 7, has been safe and secure in Aboriginal kinship care with paternal cousins. 3. The Secretary and the child's legal representative contend that the child should remain in and continue in her current placement, in an environment where she is settled, happy and thriving. Final Care orders are sought for the allocation of parental responsibility to the Minister until the child turns 18. 4. The mother concedes the child should not be restored to her, and supports the proposed permanent placement with the current carers. 5. The father, however, now seeks to have the child restored to his care, within approximately 12 months. 6. The paternal grandmother, for her part, contends that the child should be removed from her current placement and returned to her care, pending a time when the child might be safely restored to the care of the mother or the father. 7. A hearing was necessary to determine the issues in dispute. The following are my reasons for decision. The relevant history prior to the first removal of the child in 2017 1. Some aspects of the factual matrix are complicated by the unreliability of versions of the history proffered by the protagonists, in particular the father and the mother, and to some extent by the paternal grandmother. 2. Nevertheless, the following is a brief summary of pertinent events and dates as I find them. 3. The child was born some 7 years ago at a time when the parents were in a relationship which had commenced around August 2011. 4. Subsequently, however, the parents separated following a deterioration in the relationship that involved acrimony, disputation and violence, and a worsening in the mother's mental condition, accompanied if not caused by her excessive consumption of alcohol, and allegations of drug use, all resulting in serious concerns for the child's safety, welfare and well-being. 5. Various Risk of Serious Harm (ROSH) Reports were received by the Department of Communities and Justice (DCJ) during this time and caseworkers were assigned to work with the family on 19 March 2015. There were various incidents following which Police were called involving incidents of domestic violence and dispute, and Apprehended Violence Orders (AVO's) served. 6. Often, during this period of deterioration and disharmony, the child went to the home of the paternal grandmother, on weekends and for other extended periods. 7. Police records disclose that an incident occurred on 18 March 2015 outside the mother's home between 4.30 and 5.00 pm when the father was returning the child after an access visit. 8. It was reported that the father was already at the home waiting outside in his vehicle with the child, when the mother arrived with a friend. The mother retrieved the child from the father's car, whereupon the father exited his car and walked up to the mother's car where the friend was seated, and spat in her face. He said to her, "You dirty and slaggy slut. You're going to get it". He then grabbed her hair and kneed her in the face. The mother, who had the child in her arms, attempted to intervene, screaming, "Stop. Stop. Leave my girlfriend alone you bastard." The father thereupon pulled the mother's hair and forcibly removed the child, who he took back to his car, and drove off with the child on his lap, only to return shortly after, with the child in a baby seat in the rear. He asked the mother for his phone. The mother tried to retrieve the child from the father's car, but the door was locked. The father then got back into his car and drove off with the child. Police attended at the scene where they observed injuries to the mother's friend. 9. The father now asserts that the mother and her friend were intoxicated, and he decided to take the child back to his mother's place, but was prevented by the mother's friend who assaulted him, trying to gouge his eyes out, and took his phone, whilst the mother removed the child from his car. He pushed the mother's friend off and she sustained gravel rash to her knuckles. At his request, the mother handed the child to him, but when he proceeded to go to his car with the child on his hip, the mother began hitting him. He grabbed the mother's hair but only to try to "get her off me" and get the child away. 10. That evening the father turned up at the Tweed Heads Police Station with the child at 7.15 pm. The father made several threats to the Police, including, "You'll shoot me by the end of tonight", and, "You won't stop me from going up there and getting my daughter". 11. The father was charged with assault to the mother, and assault occasioning actual bodily harm to the mother's friend, and he was served with an interim Apprehended Violence Order (AVO). He was granted conditional bail. 12. Following further episodes that occurred in May 2015, when the father failed to return the child at an agreed time following a contact visit, the father was charged at Tweed Heads Police Station on 1 June 2015 with breach of that AVO. 13. At around this time, proceedings instituted between the parents under the Family Law Act resulted in formal agreed shared care arrangements pursuant to Court Orders made at Tweed Heads Local Court on 9 June 2015 (Exhibit AA). 14. Another incident occurred on 5 August 2015 when the child was in the care of the father, when the father entered New South Wales and went to factory premises, contrary to his bail conditions, and he was arrested. The child appeared dirty, dehydrated and unfed. The Police removed the child whereupon the father became abusive and confrontational. The Police took the child to Tweed Heads Police Station and called DCJ and the mother. DCJ then collected the child. 15. The mother alleges that in January 2016 the father locked her in a bedroom for 3 days without food or water, during a period when the child was staying with the paternal grandmother, and sexually assaulted her. She says she only escaped by picking a lock out onto a balcony and jumping from the first floor to the ground. 16. She reported to the Police that about 12.10 am on Friday 8 January 2016 she was at her home asleep when suddenly the father confronted her with a cordless drill in his hand, which he placed near her head and activated. He then walked away and drilled a hole in the bedroom door, through to the door jamb, and locked her in the bedroom. The mother proceeded to escape onto the balcony, jumped down 3 metres to the ground where she hid in bushes, calling for help. A neighbour called Police who attended at about 1.10 pm. They found the mother intoxicated and confused. 17. The father denied locking the mother in her room and sexually assaulting her. 18. On his version he was at the mother's house at her invitation to put locks on the doors to improve security in the house. 19. The COPS record states: "Her story changed a number of times to the point where it was clear that she was not being truthful... There is obviously a lot more to this incident than what has been volunteered…" 1. Four days later, on 12 January 2016, the mother contacted Police and advised, "I don't want to make a statement, I don't want to go to court, I lied, it's all lies. I made it all up. Just forget about it." 2. In August 2016 an AVO was taken out to protect the father from the mother by Coolangatta Police, for a period of 2 years: see the father's affidavit of 21 February 2019 at [28]. 3. The father was incarcerated from 20 August 2016 till 27 November 2016 for breach of AVO, following his arrest when he failed to appear at Court. He was convicted in his absence. 4. It appears that his application to set aside the conviction entered in his absence was refused, and he was then placed on a section 9 good behaviour bond for 2 years. 5. On 13 March 2017 an episode occurred at the mother's house involving the paternal grandmother, who it appears went there to check that the child was safe. A verbal altercation ensued between the two women that escalated into physical violence. It is recorded that the mother told the paternal grandmother, "You're never going to see your fucking granddaughter again. I trusted you." 6. The mother asked the paternal grandmother to leave the premises, but when she wouldn't leave, reportedly lunged forward and scratched her face, then grabbed her by the hair and kneed her in the stomach. 7. The grandmother fell to the ground, whereupon the mother is alleged to have kicked her in her upper torso. The mother conceded only that she pushed the grandmother out the door and she fell. The paternal grandmother immediately reported the incident to Police, who observed a minor laceration around the left side of her face. The Police took no action. 8. Further trouble erupted between the father and the mother on 3 April 2017 when the father was involved in an incident in which he abducted the child from the mother's home. 9. There are numerous versions of what happened on that day, and many inconsistencies between the various versions, which I will proceed to discuss below. Nevertheless, what is incontrovertible is that the episode wreaked considerable trauma on the child, the negative impacts of which persist to the present time. In a letter from the child's counsellor, following an appointment on 19 April 2017 with the mother and the child, the counsellor records that the child told her that her father had hurt her and "threw her down", and that the child developed a stutter as a result of the event. The counsellor added: "I strongly believe that (the child) has been greatly affected by the actions of her father…" (Exhibit 14). 1. I will start with the contemporaneous Police records, as contained in the COPS exhibits: 2. During the morning of 3 April 2017 the father attended Tweed Heads Hospital as a volunteer to be scheduled under the Mental Health Act. He sent a text message to the mother stating, "Admitted to Tweed Heads Hospital". And then later he sent another text message, "At Mental Health Clinic now". 3. The mother went to the Police station, seeking assistance in relation to obtaining an Apprehended Violence Order against the father. 4. The mother told Police that while she was at the Police station, the father came to her home, where the child was being baby-sat by her then partner, Mr Smith. Those premises consisted of a single story granny flat at the rear of a building, with a glass door functioning as a front door. The sliding door latch was locked and the internal curtain was pulled three-quarters across the door. The child was sitting on a couch watching a movie 5. At about 1.40 pm the father approached the glass door and knocked on the door. The father slid the glass door open, moved the curtain aside and stepped inside. Smith asked, "Who are you? What are you doing?" The father replied, "I'm her father, where's [the mother]?" The father proceeded to walk around the house and began looking through cupboards. Smith told the father the mother would be back shortly, and that he should not take the child. The father picked up a plastic bag from the kitchen cupboard containing 2 bottles of Vodka Divas and a cloth bag containing the child's clothes. He then picked the child up and carried her out the front door with the two bags. 6. Mr Smith sent a text to the mother telling her the father was at their home. He then followed the father outside to the front where he called out, "Don't take her. You have to speak to [the mother] about this." The father replied, "I'm taking her. I've got an agreement." The father turned to Smith and said, "Stay away or you are going to get hurt." Fearing a physical altercation, Smith did not engage in further conversation, but followed the father as he walked down the street. 7. The mother then appeared and walked across the street towards the father, yelling, "[The father], stop." The father proceeded to run down the street some 100 metres before stopping. The mother approached him and said, "I want my daughter back. You are in no fit state to have her as you just came out of Tweed Mental Health." The child started to scream, "I want my mummy" and reached out for her mother. But the father, who was holding the child with his right arm, pushed the mother away with his left arm, striking her chest about 5 to 6 times, saying "You're not having her". 8. The mother told the father, "I've just come from the Police to get an AVO". But the father walked away down the street with the child continuing to scream, "I want my mummy". The mother called for Police assistance. She followed the father. She observed the father fall over twice while holding the child, and on the second occasion the child broke away and ran towards the mother who was about 8 metres away. However, the father picked the child up again and ran down a driveway. At the end of the driveway, the father lowered the child over a concrete fence down to the backyard of another house, a drop of about 2 meters. As the child fell the child scraped her right foot and knee, causing abrasions to her skin. The father climbed over the fence and proceeded to pick the child up again and walk across the back yard of the house into another street. By this time, the father had abandoned the two bags somewhere along the way. 9. The Police then arrived and jumped over the concrete fence and pursued the father, approaching him in the street where he was holding the child. She leapt from her father's arms into the arms of one of the policemen. The father was observed to be unsteady on his feet as he became argumentative, saying, "I just went to the house to get my daughter. I've got rights to have her. This is fucked. You guys are fucked." The Police attempted to calm the father and gain from him a version of what had occurred, but he continued to yell at them, saying, "This is fucked. You've got no fucking idea. You never tried to help me before." The father was placed under arrest, handcuffed and taken to the Tweed Heads Police Station. 10. In the meantime Police took photos of the child's injuries, and she told them, "When daddy put me over the fence I fell down and hurt my foot. My back got hurt too." 11. The father participated in an interview by way of an ERISP. He sought to justify his conduct on the basis that he had joint custody of the child and that the recent practice between he and the mother had been to pick the child up from the mother's home, so thought he would do it again on this occasion. 12. The problem was, however, that there was no arrangement with the mother for that to occur in that way on this occasion. Police asked the father whether the mother had given him permission to enter her home that day. He replied, "No". He went on to tell Police that when he arrived, the door to the home was closed, but not locked. He slid the glass door open and stepped inside. He saw the child sitting on the couch and spoke to her. He introduced himself to Mr Smith as the father, then picked up a bag of clothes from near the front door and left with the child. Later in the interview he changed this version, saying that the door was ajar some 5 centimetres, and that it was the child who got up and opened the door when she saw her father; that he then entered and went to the child's bedroom to collect her belongings. He denied taking any vodka bottles. 13. In relation to the subsequent events in the street, the father denied threatening Smith and denied hurting the child, stating, "Oh, she must have got those injuries at the …. Resort. They look pretty old". It was put to him that the child was injured whilst being dropped over the fence. He denied this, saying, "No. I sat her on the fence and climbed over, then reached out and lowered her down into my arms. We climbed over three fences. She scraped her foot when we fell over trying to get away…When I fell over; she fell on the road too." 14. The father was charged with various offences and Police applied for a Provisional Apprehended Domestic Violence Order against him. He pleaded not guilty, but was bail refused, and was imprisoned on remand from 3 April 2017 until 5 December 2017. 15. The father was extensively cross examined in the hearing before me in relation to the episode on 3 April 2017, in which he abducted the child from the mother's home. I do no propose to canvass every aspect of his evidence, but it is important that I draw attention to certain aspects of it, in particular some of the discrepancies, changes in his version, his tendency to avoid answering straightforward questions, his capacity for obfuscation, and his attempts to justify his actions and minimise their effect on the child. 16. The father maintained that he was justified in taking the child that day by virtue of the Family Law Orders for shared custody: T 874.46. 17. It was put to the father that in the days leading up to 3 April 2017, he was texting the mother and amongst other things, telling her that he was struggling mentally: T 877.45. He eventually conceded this: T 879. 18. He went on to describe the events that occurred on 3 April 2017, saying that he went to the sliding glass door of the granny flat in which the mother was then residing with the child. The door was slightly ajar and he knocked. The child came to the door and pulled the curtain back and said, "Hey, Daddy". The child proceeded to try and push the door open but due to it being broken she was having difficulty, so the father assisted. The child then came outside and jumped into his arms, and said, ""I need to grab my bag." Mr Smith, who was with the child, then said, "[The mother] is not here, she'll be back later on this afternoon, and that I would prefer you wait for [the mother] to get home." The father responded, "Unfortunately, I can't do that. I had an arranged pick-up time and I have court orders." In fact, there was no such arrangement, as the father conceded, the actual arrangement having been that he was to collect the child the previous day, but failed to turn up: T 883. 19. Because of the father's failure to collect the child, and the texts the father sent her about his mental health problems, the mother told the father not to come. The father texted, "If I can't pick my daughter up tomorrow, I'll be going to the Tweed Heads courthouse": T 884. The father then said in his evidence that the mother had rung him, the next day at about 9.00 or 9.30, and told him that he could have his daughter and to pick her up after lunch, which he assumed meant "1 o'clock-ish": T 888.35 - 889.13. 20. The father continued, telling the Court that the child went and got her bag, a backpack, which was already packed. He remained outside, only proceeding to step inside when the child asked for help with her back pack, which was huge. At this point, the father asserted, Smith threatened him: T 893 21. The father was asked to recall the actual words used by Smith. He said, "Well, it is. But if I read my actual statement, my statement would reflect a bit more on a five-year-old memory. But yeah, words to the effect of, "If you leave with" - something along the lines of '[The mother], spoken with [the mother], if you leave with her, I'm going to break your legs.' Words to that effect. Could be longer but words to that effect, in my recollection": T 894.11. The father then spoke to the child, "Don't worry sweetheart, we've got clothes at home. Let's go." He said that the child then walked straight up to him, grabbed his hand and they started to walk out the driveway, without her backpack: T 894.43. 22. The father was then cross-examined about events in the street, subsequent to leaving the mother's granny flat. He said that as they proceeded along the street, he heard a female voice, calling out his name. He turned and saw the mother some 250 metres away: T 897. She was running frantically. He picked the child up, put her on his hip, and started to jog away. He stepped off the curb and fell, hyperextending his knee, onto one knee. He put the child in front of him, on her feet. She sustained a minor abrasion to a toe (she was in bare feet): T 899. He proceeded to hobble down a concrete driveway, holding the child's hand: T 901. 23. He got to the end of the concrete driveway and came to a little concrete fence. He sat on the fence with the child and lowered her down by the shoulder and arms, then climbed down himself: T 902.32 - 42. 24. At this point of the cross-examination, the father said: "The decision from the driveway, where I stumbled, is where all my rationality started. In hindsight, I should've just knocked on one of those units and said can you call the police please, I'm in fear for my life; there is an AVO. But I didn't." 1. He went on to tell the Court that he was in fear for his life, from the mother, because of her connections with bikies: T 903.8. 2. The father continued, describing how after descending from the concrete fence, he and the child crossed over a back garden to another wall, and he lowered the child over this wall/hedge onto another street: T 906. Then the Police arrived, and asked, "What are you doing with your daughter?" to which he replied, "I'm picking her up because I have 50/50 custody orders." He continued saying, "This is fucked": T 909.19. He handed his daughter over to the Police. He was then handcuffed. 3. Counsel for the Secretary proceeded to take the father to a number of discrepancies between his evidence to the Court and what he told the Police at the time of his interview on 3 April 2017 as recorded in his ERISP: T 985 - 997. 4. I turn now to the events that occurred three weeks later on 25 April 2017 which precipitated the first removal of the child by the Secretary from the care of the mother (the father at this time being incarcerated on domestic violence charges). 5. By this time DCJ had been working closely with the mother in the context of ongoing drug and alcohol abuse and episodes of domestic violence, some of which I have referred to above. 6. Then, on 25 April 2017 the mother was arrested by Police following an episode in her home in which she assaulted her partner, Mr Smith whilst heavily intoxicated. Police were called to the house late in the evening, and on arrival observed that Smith had sustained serious bruising and swelling of the right eye. The mother conceded that she had assaulted Smith, and she was arrested and taken, with the child, to Tweed Heads Police Station, and was denied bail. DCJ was called and as a result the child was assumed into care, and subsequently placed into the care of the maternal grandmother. 7. The Secretary filed an Application initiating care proceedings on 26 April 2017. The relevant history subsequent to the first removal of the child in 2017 1. Following the removal of the child from the care of her mother and commencement of these Care proceedings, the matter came before the Children's Court at Tweed Heads on 2 May 2017, when an Order was made allocating parental responsibility for the child to the Minister, until further order. Then on 26 May 2017 the Children's Court formally found that the child was in need of care and protection and the matter was established. 2. A Care Plan was filed on 28 July 2017, proposing that the child be placed into the care of her paternal grandmother, with the goal of eventual restoration to the mother after 18 months. 3. Then on 31 August 2017 the child was transferred from her maternal grandmother into the care of her paternal grandmother, following which she remained with that grandmother until 22 January 2019. 4. On 1 November 2017 the Secretary filed an Amended Care Plan. Again, the Care Plan contemplated restoration to the mother: "FaCS continues to support (the mother) while she addresses her issues by attending residential alcohol rehabilitation for a period determined by the facility to ensure her ongoing recovery, maintain sober living for a period no less than 6 months… and participate in therapy to address her trauma." 1. The Care Plan recorded that restoration to the father was not considered at that time due to his incarceration and "limited understanding of the impact of his behaviour" on the child, and a need to address his own mental health issues, and maintain a non-violent lifestyle. 2. The permanency planning for the child was found to be adequate and appropriate by the Children's Court, and Final Care Orders were made on 25 January 2018, with parental responsibility allocated to the Minister for 2 years. In the meantime the child was to be cared for by the paternal grandmother. 3. The father was released from gaol on 5 December 2017, following which he commenced a relationship with a new partner, obtained employment and stable accommodation, and commenced counselling. 4. During 2018 the child continued in the care of her paternal grandmother, and attended kindergarten. In March 2018 the DCJ psychologist was asked to work with the paternal grandmother to address trauma related behaviours that were being exhibited by the child, and the DCJ psychologist engaged with the paternal grandmother and offered strategies to assist in the management of the child, in relation to sleep difficulties and anxiety. 5. The child enjoyed supervised fortnightly contact visits with her mother, but was prevented from having contact with her father by an ongoing AVO, until August 2018. The father wrote to the child and she responded on 29 September 2018, following which DCJ implemented fortnightly supervised telephone contact in October 2018, followed by supervised face to face visits, which soon became monthly. 6. The child also enjoyed respite contact with her paternal cousins, Stephen and Louise Wilson. 7. The mother successfully completed a drug and alcohol prevention course over a 12 week period in early 2018. She returned to work in March 2018 with a previous employer. The Secretary continued to monitor and assess the mother with a view to restoration, including her rehabilitation from alcohol dependency. By November 2018, she was recorded as having remained drug and alcohol free for 10 months. She underwent urinalysis and CDT testing, which were all clear. She engaged with a private psychologist for 8 weeks, till she moved to central NSW, then with the DCJ psychologist, and subsequently with another private psychologist in November 2018. She maintained stable housing from June 2018. Towards the end of 2018 the caseworkers considered that the mother had satisfied all the necessary prerequisites for restoration. 8. A Restoration Transition Plan was developed in consultation with another DCJ psychologist, who recommended that the child be living with the mother full time in the mother's home from 28 January 2019, and that she commence kindergarten in Tweed Heads from around 31 January 2019. 9. Contact visits with the child's mother were increased, and overnight visits were commenced in accordance with the transition plan. 10. Meetings were held with the paternal grandmother on 28 November 2018 and 14 December 2018 to discuss the transition plan and restoration of the child to her mother. The paternal grandmother was not supportive of restoration, asserting that the mother had not met the minimum outcomes required. 11. The father decided to file an Application under s 90 of the Care Act seeking rescission of the Final Care Orders made on 25 January 2018 and placement of the child into his full time care, to the exclusion of the mother. He filed his Application on 21 December 2018. It was subsequently dismissed by the Children's Court (see below). 12. The Secretary proceeded with the transition plan for restoration, following further clean urine screens and CDT tests from the mother and the child was in fact placed with her mother on 21 January 2019. 13. The restoration in fact occurred a week earlier than planned due to a disclosure made by the child that the father had been having unauthorised unsupervised sleep overs at the home of the paternal grandmother. 14. On 16 January 2019 a caseworker collected the child from the mother's home and proceeded to drive her back to the grandmother's home. She says that in the car on that journey, the child made a disclosure to her about unauthorised contact with the child's father. 15. The disclosure is recorded as follows: "… (the child) asked me if she could tell me anything - I replied that she could. (The child) then told me that her dad had five sleepovers at her home (the paternal grandmother's home). I asked (the child) what her dad had done but she did not reply. (The child) then said that they had driven dad back home in the hire car." 1. The disclosure was substantiated after interviews with the child. 2. This issue of unauthorised access to the father became one of extreme controversy at the hearing and was the subject of considerable contention, it being strenuously denied by the father and paternal grandmother. 3. The Department took the disclosure by the child at face value and treated it with utmost seriousness. As indicated above, the restoration of the child was accelerated, and by letter dated 21 January 2019, the Manager Casework wrote to the paternal grandmother as follows; "As discussed with you on 21 January 2019, a decision was made to restore (the child) to the care of her mother…. effective from 21 January 2019. This restoration is in accordance with the minimum outcomes expressed in the Care Plan that was filed in the Care Proceedings before the Tweed Heads Children's Court on 1 November 2017. As discussed with you, there have been allegations that (the child's) father, Mr Bloom, has been having "sleepovers" at your home and thereby exercising contact with (the child). This contact was not approved by Family and Community Services and as you would be aware, is in breach of the current Apprehended Violence Order… Section 53, Administrative Decisions Review Act 1997 provides that you have the right to apply for an internal review of the above decision…" 1. On 21 February 2019 the paternal grandmother filed an Application in the proceedings seeking leave to be joined to the proceedings under s 98(3) of the Care Act, alternatively that leave be granted pursuant to s 90 of the Care Act for her to "reopen the proceedings". The Application foreshadowed an application for final orders that included that she be granted guardianship of the child. 2. The applications by the father and the paternal grandmother came before Children's Magistrate MacMahon sitting at Lismore on 6 March 2019 for hearing. His Honour delivered a judgment on 21 March 2019 in which he dismissed the father's application for leave. The paternal grandmother withdrew her application on the basis that it was amended into a s 86 Application for contact. The father made an oral Application under s 86 for contact. His Honour noted that the matter was proceeding on the basis that it was now limited to contact issues. 3. On 1 May 2019, the father filed an appeal in the District Court against the decision of Children's Magistrate MacMahon refusing his application for leave pursuant to s 90(2) of the Care Act. 4. Sadly, the mother relapsed into excessive drinking, and other episodes of exposing the child to risk of harm ensued and on 28 October 2019 the Secretary filed a s 90 Application seeking Orders that the allocation of parental responsibility to the Minister be extended, and that the Court make a Supervision Order under s 76 of the Care Act. 5. However, the mother's condition continued to deteriorate to the point where it was considered that the child could no longer safely remain in her care. On 6 December 2019, the Manager Casework at DCJ Tweed Heads made the decision to remove the child from the mother's care and place her with the respite carers, the paternal cousins, while the mother addressed her alcohol issues. The placement with the Wilsons was preferred to a placement back with the paternal grandmother. The procedural history since the second removal in December 2019 1. The child has remained in the care of the Wilsons since her second removal from the mother on 6 December 2019. 2. In procedural terms, the proceedings returned to the Children's Court for consideration when on 10 February 2020 the District Court allowed the father's appeal by consent, granting leave under s 90(2) of the Care Act for him to apply for rescission of the previous Final Care Orders. The father's Application has since travelled with the Secretary's Application under s 90, in respect of which leave has also been granted under s 90(2) of the Care Act. 3. The paternal grandmother was formally joined to the proceedings as a party. 4. Children's Magistrate MacMahon made orders for assessment under s 53 and s 54 of the Care Act, and referred the matter to the Children's Court Clinic. 5. A Report was prepared by an authorised clinician appointed for the purpose by the Children's Court Clinic, and a Clinical Report dated 3 April 2020 was provided to the Court. The Clinician expressed the opinion that the child cannot be safely restored to either parent. He recommended that the child be placed back with the paternal grandmother. 6. The Secretary prepared an Amended Care Plan which was filed on 6 July 2020. The Secretary assessed that there is no realistic possibility of restoration within a reasonable time, but that the child be permanently placed with the current carers. 7. The mother conceded that there is no realistic possibility of restoration to her. The father, however, continued to seek restoration of the child to his sole care. 8. The paternal grandmother, who has since been joined as a party, sought removal of the child from the Wilsons, and placement with her until such time as the child might be safely returned to her father or mother. The hearing of the rescission applications 1. Magistrate MacMahon determined that the rescission applications should proceed to a hearing, and listed the matter for that purpose, with the hearing to commence at Lismore on 10 August 2020, but recused himself. The matter therefore came to me, as President of the Children's Court. 2. On 4 August 2020 I conducted a readiness hearing from Parramatta. The parties and legal representatives appeared by AVL. I determined that the matter was ready and confirmed the allocated hearing dates. 3. The hearing of the rescission applications commenced before me at Lismore, sitting as President of the Children's Court, on Monday 10 August 2020. It then proceeded into Tuesday 11 August, Wednesday 12 August, Thursday 13 and Friday 14 August 2020 at Lismore, when it was transferred to Ballina. The hearing resumed at Ballina on Tuesday 18 August 2020 and proceeded into Wednesday 19 August, Thursday 20 August and Friday 21 August 2020, when it was adjourned part heard for further hearing to 30 November 2020. The hearing again resumed at Ballina on Monday 30 November 2020 at Ballina and continued into Tuesday 1 December, Wednesday 2 December, Thursday 3 December and Friday 4 December 2020 (Day 14), when I stood it over for written submissions. 4. At the hearing, Mr Moore of counsel appeared for the Secretary, instructed by Ms A Prior, solicitor from the Crown Solicitor's Office. 5. Ms Fawaz, solicitor, appeared for the mother. 6. The father appeared self-represented as a litigant in person. 7. Mr Boys, solicitor, appeared for the paternal grandmother. 8. Ms Z De Re was the solicitor for the child, appointed by the Court as her Independent Legal Representative (ILR). 9. Before the Court was an amount of documentary evidence that was filed prior to the hearing or tendered during the hearing, including: affidavits on behalf of the Secretary; affidavits by the mother and father; affidavits by the paternal grandmother; affidavits by others; the Clinic Report of Dr Colin Munro dated 3 April 2020; the Application Initiating Care Proceedings; the various Applications under s 90; the various Care Plans; a Statement of Views and Wishes of the child, prepared for the child by the ILR; various medical reports and various Police records. 10. A number of witnesses were called to provide additional oral evidence, and were cross-examined, including: the Children's Court Clinician, Dr Munro; the caseworkers, the Manager Casework, the mother, the paternal grandmother, and finally, the father. 11. During the break in the hearing between August and November 2020 a clinical psychologist, Ms Lauren Davis, was retained to carry out an expert assessment to advise on the preferred placement of the child, in the event that she was not to be restored to her father. 12. Ms Davis prepared a detailed report for the Court dated 16 November 2020, which was tendered. 13. Ms Davis was required for cross-examination, and she attended to provide oral evidence at Ballina on Monday 30 November 2020. 14. I shall refer to her report below. 15. Written submissions were provided for by way of a timetable which, unfortunately, was not complied with by the father, who failed to provide his written submissions within the time provided, which delayed the finalising of the submissions, and the writing of these reasons. 16. At the conclusion of the written submissions, I formally reserved judgment. The applicable legal context for the determination of the applications 1. Proceedings relating to the care and protection of children and young persons in NSW, including first instance matters before the Children's Court, and appeals from its decisions, are public law proceedings, governed, both substantively and procedurally, by the Children and Young Persons (Care and Protection) Act 1998 (the Care Act). 2. Care proceedings involve discrete, distinct and specialised principles, practices and procedures which have regard to their fundamental purpose, namely the safety, welfare and well-being of children in need of care and protection: s 60 of the Care Act. 3. The rules of evidence do not apply, the proceedings are non-adversarial and they are required to be conducted with as little formality and legal technicality and form as the circumstances permit. 4. Decisions in Care proceedings are to be made consistently with the objects, provisions and principles provided for in the Care Act, and where appropriate, the United Nations Convention on the Rights of the Child 1989 (CROC). 5. The Care Act contains an inextricable mixture and combination of both judicial and administrative powers, duties and responsibilities. It is often difficult to precisely discern where the Department's powers and responsibilities begin and end as opposed to those of the Court. 6. In summary, however, the Act establishes a regime under which the primary, and ultimate, decision-making as to children rests with the Court: Report of the Special Commission of Inquiry into Child Protection Services in NSW, November 2008 (the "Wood Report") at 11.2. 7. The objects of the Care Act are set out in s 8. 8. The objects of the Act are to provide: 1. that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and 2. that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and 3. that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment. 1. The Care Act sets out a series of principles governing its administration. These principles are largely contained in s 9, but also appear elsewhere. 2. First and foremost is what is sometimes referred to as the paramountcy principle: s 9(1). This principle requires that in any action or decision concerning a child or young person, the safety, welfare and well-being of the child or young person are paramount. 3. This principle, therefore, is the underpinning philosophy by which all relevant decisions are to be made. It operates, expressly, to the exclusion of the parents, the safety, welfare and well-being of a child or young person removed from the parents being paramount over the rights of those parents. 4. It is now well settled law that the proper test to be applied in care proceedings in respect of final orders is that of "unacceptable risk to the child": M v M [1988] HCA 68 at [25]: Nu v NSW Secretary of Family and Community Services [2017] NSWCA 221 at [45]. 5. The decision in M v M dealt with past sexual abuse of a child but the principles there set out apply equally to other forms of harm, such as physical and emotional harm. 6. A positive finding of an allegation of harm having been caused to a child should only be made where the Court is so satisfied according to the relevant standard of proof, with due regard to the matters set out in Briginshaw. Nevertheless, an unexcluded possibility of past harm to a child is capable of supporting a conclusion that the child will be exposed to unacceptable risk in the future from the person concerned: M v M at [26]. 7. The Secretary, will not fail to satisfy the burden of proof on the balance of probabilities simply because hypotheses cannot be excluded which, although consistent with innocence, are highly improbable: Secretary of Department of Community Services; Re "Sophie" [2008] NSWCA 250 at [67] - [68], per Sackville AJA. 8. Whether there is an "unacceptable risk" of harm to the child is to be assessed from the accumulation of factors proved: see Johnson v Page [2007] Fam CA 1235. This is an exercise in foresight. 9. The Court must examine what the future might hold for the child, and if a risk exists, assess the seriousness of the risk and consider whether that risk might be satisfactorily managed or otherwise ameliorated, for example, the nature and extent of parental contact, including any need for supervision: from a paper by Justice Stewart Austin delivered at the 2015 Hunter Valley Family Law Conference. 10. Thus, one needs to examine the likelihood of the feared outcome occurring, and secondly, the severity of any possible consequences. The risk of detriment must be balanced against the possibility of benefit to the child. 11. Secondary to the paramount concern, the Care Act sets out other, particular principles to be applied in the administration of the Act. 12. These are set out in sections 9(2) and 10 and include the following: * Wherever a child is able to form their own view, they are to be given an opportunity to express that view freely. Those views are to be given due weight in accordance with the child's developmental capacity, and the circumstances: s 9(2)(a). See also s 10. * Account must be taken of the culture, disability, language, religion and sexuality of the child and, if relevant, those with parental responsibility for the child or young person: s 9(2)(b). * Any action to be taken to protect the children from harm must be the least intrusive intervention in the life of the children and their family that is consistent with the paramount concern to protect them from harm and promote their development: s 9(2)(c). * If children are temporarily or permanently deprived of their family environment, or cannot be allowed to remain in that environment in their own best interests, they are entitled to special protection and assistance from the State, and their name, identity, language, cultural and religious ties should, as far as possible, be preserved. * Any out-of-home care arrangements are to be made in a timely manner, to ensure the provision of a safe, nurturing, stable, and secure environment, recognising the children's circumstances and, the younger the age of the child, the greater the need for early decisions to be made s 9(2)(e). * If placed in out-of-home care, a child is entitled to a safe, nurturing, stable, and secure environment. * Unless contrary to the child's best interests, and taking into account the wishes of the child, this will include the retention of relationships with people significant to the children: s 9(2)(f). 1. There are also special principles of self-determination and participation to be applied in connection with the care and protection of Aboriginal and Torres Strait Islander children: ss 11, 12 and 13. Aboriginal and Torres Strait Islander people are to participate in the care and protection of their children and young persons with as much self-determination as is possible: s 11(1). * Aboriginal and Torres Strait Islander families, kinship groups, representative organisations and communities are to be given the opportunity, by means approved by the Minister, to participate in decisions made concerning the placement of their children and young persons and in other significant decisions made under this Act that concern their children and young persons: s 12. * Where possible, any out-of-home placement of an Aboriginal or Torres Strait Islander child is to be with a member of the extended family or kinship group. * If that is not possible, the Act provides for a descending process of placement with an appropriate Aboriginal and Torres Straits Islander carer before, as a last resort, placement with a non-Aboriginal and Torres Straits Islander carer, after consultation: s 13(1). * In determining where a child is to be placed, account is to be taken of whether the child identifies as an Aboriginal or Torres Strait Islander and the expressed wishes of the child: s 13(2). * A permanency plan must address how the plan has complied with the Aboriginal and Torres Strait Islander Child and Young Person Placement Principles in s 13: s 78A(3). 1. If the Secretary forms the opinion that a child is in need of care and protection, he or she may take whatever action is necessary to safeguard or promote the safety, welfare and well-being of the child: s 34(1). 2. Removal of a child into state care may be sought by seeking orders from the Court: s 34(2)(d), by the obtaining of a warrant: s 233, or, where appropriate, by effecting an emergency removal: s 34(2)(c); see also s 43 and s 44. 3. Where a child is removed, or the care responsibility of a child is assumed, by the Secretary, he or she is then required to make a Care application to the Children's Court within 3 working days and explain why the child was removed: s 45. 4. The Court may then make interim Care orders: s 69. An 'interim order' is an order of a temporary or provisional nature pending the final resolution of the proceedings in which an applicant "generally speaking, does not have to satisfy the Court of the merits of its claim". It may be made if it is not in the best interests of the safety, welfare and well-being of the child that he or she remain with the parent or parents, or that it is appropriate for the safety welfare and well-being of the child (s 69(2) and s 70), or that an interim order is necessary, and is preferable to an order dismissing the proceedings (s 70A): Re Jayden [2007] NSWCA 35 per Ipp J at [70]. 5. The usual interim order is for the allocation of parental responsibility to the Minister until further order: Re Mary [2014] NSWChC 7. 6. Such an order enables appropriate investigation and planning to be undertaken by Departmental caseworkers while the child is in a protected environment. The making of an interim order in effect puts the position of the parties in a holding pattern, without prejudice, and without any admissions. 7. The Care Act, as recently amended, makes it clear that parties may apply to vary an interim order without the need to follow the formal process that applies to the rescission or variation of final Care orders. This overcomes a problem thought to be posed by the Supreme Court decision in Re Timothy, to the effect that an application to vary an interim order needed to be brought under s 90 of the Care Act: Re Timothy [2010] NSWSC 524 at [59] - [60]. 8. It was thought that a formal application was required seeking leave to apply, and evidence adduced to satisfy the Court that there had been a significant change in circumstances, even for interim orders. The Children's Court may now vary interim orders at any time if considered appropriate, including on oral application in matters currently before the Court. 9. After removal or assumption of a child into care, and the making of an interim order allocating parental responsibility to the Minister, the proceedings then focus on the past and current circumstances of the child. This first phase of care proceedings is generally referred to as the establishment phase. 10. Thus, before the Court moves to the second phase of the proceedings, in which the focus is on the child's future, the proceedings are required to be "established": Re Alistair [2006] NSWSC 411 at [69]. 11. The establishment precondition is satisfied if there has been a finding that there is an existing need of care and protection pursuant to s 71 of the Care Act: VV v District Court of New South Wales [2013] NSWCA 469 at [20]. It does not matter whether the conduct constituting a reason or part thereof for the purposes of s 71 occurred wholly or partly outside New South Wales: s 71A. 12. The rationale for the requirement that protective proceedings be established has been described as a safeguard against arbitrary intervention by the State into the lives of children and their families: Re Alistair [2006] NSWSC 411 at [64]-[65] per Kirby J. 13. The establishment issue is a threshold issue. It is a statutory precondition to the making of final Care orders in the second, welfare phase of protective proceedings. Establishment, or a finding, is not concerned with the issue of restoration, nor is it concerned with considerations of unacceptable risk of harm, nor with the amelioration of risk. These are properly matters for the second, welfare stage of protection proceedings: Re Nicole [2018] NSWChC 3. 14. For care proceedings to be "established" a finding is required that the child is in need of care and protection for any reason or was in need of care and protection at the time the Application was made. 15. Section 71(1) of the Care Act relevantly provides: Grounds for Care orders: 1. The Children's Court may make a Care order in relation to a child or young person if it is satisfied that the child or young person is in need of care and protection for any reason including without limitation any of the following: 1. there is no parent available to care for the child or young person as a result of death or incapacity or for any other reason, 2. the parents acknowledge that they have serious difficulties in caring for the child or young person and, as a consequence, the child or young person is in need of care and protection, 3. the child or young person has been, or is likely to be, physically or sexually abused or ill-treated, 4. subject to subsection (2), the child's or young person's basic physical, psychological or educational needs are not being met, or are likely not to be met, by his or her parents, 5. the child or young person is suffering or is likely to suffer serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which he or she is living, 6. in the case of a child who is under the age of 14 years, the child has exhibited sexually abusive behaviours and an order of the Children's Court is necessary to ensure his or her access to, or attendance at, an appropriate therapeutic service, 7. the child or young person is subject to a care and protection order of another State or Territory that is not being complied with, 8. section 171(1) applies in respect of the child or young person." (Section 171(1) deals with a child or young person residing in unauthorised statutory or supported out-of-home care.) 1. Thus, the need for "care and protection" is not conclusively defined, and the concept is at large; a finding may be made for "any reason". The Care Act does, however, specify a range of circumstances that, without limitation, are included in the definition, or to which the definition extends: s 71. 2. The Court is not bound by the rules of evidence unless it so determines: s 93(3). Nevertheless, the Court must draw its conclusions from material that is satisfactory in a probative sense so as to avoid decision-making that might appear capricious, arbitrary or without foundational material: JL v Secretary Department of Family and Community Services [2015] NSWCA 88 at [148]. 3. The significance of a finding that a child is in need of care and protection is that it forms the basis for the making of final Care orders under the Care Act: s 71(1) and s 72(1). 4. Once proceedings are established, they enter the so-called second phase, sometimes referred to as the "welfare phase" during which planning for the child is undertaken, and following which final Care orders may be made. Establishment is a statutory precondition to the making of final Care orders in the welfare phase: Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89 at [36] - [37]. 5. My preference is to describe this second phase as the "placement" phase given the important threshold construct that the Secretary must first address after establishment as to whether there is a realistic possibility of restoration. 6. Only if there is no realistic possibility of restoration will alternative placements be required to be considered as part of the permanency planning, in the welfare or placement of proceedings, in a Care Plan that the Secretary is required to prepare pursuant to s 78 of the Care Act. 7. Once a child has been found to be in need of care and protection under s 71 of the Care Act the Secretary is required to undertake planning for the child's future. In most cases the Secretary will prepare a formal Care Plan. 8. The Secretary is required to consider what permanent placement is required to provide a safe, nurturing, stable and secure environment for the child: s 10A of the Care Act. 9. Permanent placement is to be made in accordance with the permanent placement principles prescribed: s 10A(3) of the Care Act. The 'placement hierarchy' established might be summarised as follows: * If it is practicable and in the best interests of the child, the first preference for permanent placement is for the child to be restored to the parent(s). * The second preference for permanent placement is guardianship of a relative, kin or other suitable person. * The next preference (except in the case of an Aboriginal or Torres Strait Islander child) is for the child to be adopted. * The last preference is for the child to be placed under the parental responsibility of the Minister. 1. Thus the Secretary must first assess whether there is a realistic possibility of restoration of the child to the parent(s) within a reasonable period. 2. The Court must have regard firstly to the circumstances of the child; and secondly, to the evidence, if any, that the parents are likely to be able to satisfactorily address the issues that have led to the removal of the child: s 83(1). 3. The Court must then decide whether to accept the assessment of the Secretary: s 83(5). 4. If the Court does not accept the assessment of the Secretary, it may direct the Secretary to prepare a different permanency plan: s 83(6). 5. The phrase "realistic possibility of restoration", therefore, involves an important threshold construct, which informs the planning that is to be undertaken in respect of any child that has been removed from parents or assumed into care and found to be in need of care and protection. 6. There is no definition of the phrase "realistic possibility of restoration" in the Care Act. However, the principles concerning the interpretation and application of the phrase were comprehensively considered in the Supreme Court by Justice Slattery in 2011: In the matter of Campbell [2011] NSWSC 761. 7. This decision was cited with approval by the Court of Appeal: Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89 at [44], and was most recently applied by Justice Rein in the Supreme Court: Re Tanya [2016] NSWSC 794 at [50] - [51]. 8. Importantly, Justice Slattery held that it is at the time of the determination that the Court must make the assessment. It must be a realistic possibility at that time, not merely a future possibility. This restriction has been removed by recent amendments to the Care Act. The amendments inserted the additional words "within a reasonable time" into the relevant sub-sections of s 83. It is necessary, therefore, to look more closely at the significance of the addition of those words. In my view, the effect of those words has been to remove the restriction formulated by Justice Slattery in Re Campbell, when he said: "It is going too far to read into the expression a requirement that a parent must always at the time of hearing have demonstrated participation in a program with some significant "runs on the board": at [56]. 1. Instead, now, the Court may take into account the progress of parents in relation to their rehabilitation, their progress in respect of gaining insight into their parenting deficiencies, and their ability to satisfactorily address the issues that have led to the removal of the child. 2. The Court may also have regard to any plan that prepares, educates or assists parents in moving towards a restoration, which involves for example, supports, scaffolding, treatment, training and education, provided it is viable and practicable. 3. The principles relating to the phrase "a realistic possibility of restoration" may now be summarised therefore, by reference to Re Campbell and Re Tanya, to which may now be added the requirements for the restoration to be realistically possible within a reasonable time, as follows: * A possibility is something less than a probability; that is, something that is likely to happen. A possibility is something that may or may not happen. That said, it must be something that is not impossible. * The concept of realistic possibility of restoration is not to be confused with the mere hope that a parent's situation may improve. * The possibility must be 'realistic', that is, it must be real or practical. The possibility must not be fanciful, sentimental or idealistic, or based upon 'unlikely hopes for the future'. It needs to be 'sensible' and 'commonsensical'. * A realistic possibility may be evidenced at the time of hearing by a coherent program already commenced and with some significant 'runs on the board', or by the development of and commitment to a cohesive and viable plan that is sensible, practicable and viable within a reasonable time. * There are two limbs to the requirements for assessing whether there is a realistic possibility of restoration. The first requires a consideration of the circumstances of the child or young person. The second requires a consideration of the evidence, if any, that the parent(s) are likely to be able to satisfactorily address the issues that have led to the removal of the child. * The determination must be undertaken in the context of the totality of the Care Act, in particular the objects set out in s 8 and other principles to be applied in its administration, including the notion of unacceptable risk of harm. 1. Where the Secretary assesses that there is a realistic possibility of restoration to a parent, and the Court accepts that assessment, the Secretary is to prepare a permanency plan that includes a description of the minimum outcomes that need to be achieved before the child is returned to the parent, the services to be provided to facilitate restoration, and a statement of the length of time during which restoration should be actively pursued: s 83(2) and s 84. 2. If the Secretary assesses that there is no realistic possibility of restoration to a parent, the Secretary is to prepare a permanency plan for another suitable long term placement in accordance with the permanent placement principles discussed above, as set out in s 10A of the Care Act. 3. Permanency planning means the making of a plan that aims to provide a child with a stable, preferably permanent, placement that offers long-term security and meets their needs: s 78A(1). 4. The Court must not make a final Care order unless it expressly finds that permanency planning has been appropriately and adequately addressed: s 83(7). 5. The permanency plan must have regard to the principle of the need for timely arrangements, the younger the child, the greater the need for early decisions, and must avoid the instability and uncertainty that can occur through a succession of different placements or temporary care arrangements. 6. The planning must also make provision for the allocation of parental responsibility, the kind of placement proposed, the arrangements for contact, and the services that need to be provided: s 78. 7. A permanency plan does not need to provide details as to the exact placement in the long-term, but must be sufficiently clear and particularised so as to provide the Court with a reasonably clear picture as to the way in which the child's needs, welfare and well-being will be met in the foreseeable future: s 78A(2A). 8. If the child is an Aboriginal or Torres Straits Islander there are particular additional requirements to be addressed. The permanency planning must address how the plan has complied with the principles of participation and self-determination set out in s 13 of the Care Act: s 78A(3). It should also address the principle set out in s 9(2)(d) which requires that the child's identity, language and cultural ties be, as far as possible, preserved. 9. Proper implementation requires an acknowledgement that the cultural identity of an Aboriginal child or young person is 'intrinsic' to any assessment of what is in the child's best interests: Department of Human Services and K Siblings [2013] VChC 1 per Magistrate B Wallington at page 5. 10. It follows that the need to consider Aboriginality and ensure the participation of families and communities must be applied across all aspects of child protection decision making. 11. If the Children's Court finds that a child is in need of care and protection, it may make a variety of orders allocating parental responsibility, or specific aspects of parental responsibility: s 79(1). 12. Parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children: s 3. The primary care-giver is the person primarily responsible for the care and control of a child, including day-to-day care and responsibility. For example, the Court can allocate complete responsibility to the Minister, or allocate only some aspects to the Minister and other aspects to the parents, or some other person. Or it might make orders for shared responsibility between the Minister and others: s 81. 13. The specific aspects of parental responsibility that might be separately or jointly allocated are unlimited, but include residence, contact, education, religious upbringing and medical treatment: s 79(2). 14. When allocating parental responsibility, the Court is required to give particular consideration to the principle of the least intrusive intervention, and be satisfied that any other order would be insufficient to meet the needs of the child: s 79(3). 15. Where a person is allocated all aspects of parental responsibility, the Court may make a guardianship order: see s 79A - s 79C. 16. The maximum period for which an order may be made allocating all aspects of parental responsibility to the Minister, following approval of a permanency plan involving restoration, guardianship or adoption, is 24 months: s 79(9), unless there are special circumstances that warrant a longer period: s 79(10). 17. This restriction marks an upper limit for the reasonable period within which there might be a realistic possibility of restoration. 18. It also places the onus on the Secretary to bring an application for rescission under s 90 of the Care Act if a staged restoration breaks down within that two year period. 19. Where the Secretary assesses that there is no realistic possibility of restoration, a permanency plan for another suitable long-term placement is submitted to the Court: s 83(3). 20. The Secretary may consider whether adoption is the preferred option: s 83(4). 21. Importantly, where there is not to be a restoration, the permanency planning must also include provision for appropriate and adequate arrangements for contact: s 9(2)(f), s 78(2). 22. There are a series of important statutory provisions by which the practice and procedure of care proceedings are substantially differentiated from other civil proceedings. 23. Care proceedings are to be conducted in closed court: s 104B, and the name of any child or young person involved, or reasonably likely to be involved, whether as a party or as a witness, must not be published: s 105(1). 24. Care and protection proceedings are not to be conducted in an adversarial manner: s 93(1). The proceedings are to be conducted with as little formality and legal technicality and form as the circumstances permit: s 93(2). 25. The Court is not bound by the rules of evidence, unless it so determines: s 93(3). 26. Nevertheless, the Court must draw its conclusions from material that is satisfactory, in the probative sense, so as to avoid decision-making that might appear capricious, arbitrary or without foundational material: JL v Secretary, Department of Family and Community Services [2015] NSWCA 88 at [148]; Sudath v Health Care Complaints Commission [2012] NSWCA 171. 27. The standard of proof in Care proceedings is on the balance of probabilities: s 93(4) of the Care Act. 28. The High Court decision in Briginshaw v Briginshaw [1938] HCA 34 is relevant in determining whether the burden of proof, on the balance of probabilities, has been achieved: Secretary of Department of Community Services; Re "Sophie" [2008] NSWCA 250. 29. The Care Act provides that all care matters are to proceed as expeditiously as possible: s 94(1). The Court is required to avoid adjournments, which should only be granted where it is in the best interests of the child or there is some other cogent or substantial reason: s 94(4). S 90 considerations 1. These proceedings are governed by s 90 of the Care Act, a provision which is peculiar to Care proceedings in the Children's Court, which empowers it to rescind or vary final Care orders, at a later date. This statutory power enables a review of orders without the need for an appeal, where there has been a "significant change in any relevant circumstances" since the original order. 2. Applications for rescission or variation of Care orders require the Applicant to obtain leave. 3. The section provides: 90 Rescission and variation of care orders (1) An application for the rescission or variation of a care order may be made with the leave of the Children's Court. (1AA) An application may be made by— (a) the Secretary, or (b) (Repealed) (b1) the child or young person, or (c) a person having parental responsibility for the child or young person, or (d) a person from whom parental responsibility for the child or young person has been removed, or (e) any person who considers himself or herself to have a sufficient interest in the welfare of the child or young person. (1A) Subject to any order the Children's Court may make, a person who makes an application under this section must give notice of the application to the persons who were parties to the proceedings in which the care order was made. Note: Section 256A sets out the circumstances in which the Children's Court may dispense with the requirement to give notice. (2) The Children's Court may grant leave if it appears that there has been a significant change in any relevant circumstances since the care order was made or last varied. (2A) Before granting leave to make an application to vary or rescind the care order, the Children's Court must consider the matters set out in subsections (2B) and (2C). (2B) The primary considerations are as follows— (a) the views of the child or young person and the weight to be given to those views, having regard to the maturity of the child or young person and his or her capacity to express his or her views, (b) the length of time for which the child or young person has been in the care of the present carer and the stability of present care arrangements, (c) if the Children's Court considers that the present care arrangements are stable and secure, the course that would result in the least intrusive intervention into the life of the child or young person and whether that course would be in the best interests of the child or young person. (2C) Additional considerations are as follows— (a) the age of the child or young person, (b) the nature of the application, (c) the plans for the child or young person, (d) whether the applicant has an arguable case, (e) matters concerning the care and protection of the child or young person that are identified in— (i) a report under section 82, or (ii) a report that has been prepared in relation to a review directed by the Children's Guardian under section 85A or in accordance with section 150. (2D) The Children's Court may dismiss an application for leave under this section if it is satisfied that the application is frivolous, vexatious or an abuse of process. (2E) Without limiting subsection (2D), the Children's Court may dismiss an application for leave under this section if it is satisfied that— (a) the application has no reasonable prospect of success, and (b) the applicant has previously made a series of applications for leave under this section that the Court has dismissed. (3A) If— (a) an application is made to the Children's Court by a person or persons (other than the Secretary) for the rescission or variation of a care order (other than a contact order) in relation to a child or young person, and (b) the application seeks to change the parental responsibility for the child or young person, or those aspects of parental responsibility involved in having care responsibility for the child or young person, and (c) the Secretary is not a party to the proceedings, the applicant must notify the Secretary of the application, and the Secretary is entitled to be a party to the application. (4) The Children's Court is not required to hear or determine an application made to it with respect to a child or young person by a person referred to in subsection (1AA) (e) unless it considers the person to have a sufficient interest in the welfare of the child or young person. (5) If— (a) an application for variation of a care order is made or opposed by the Secretary, and (b) a ground on which the application is made or opposed is a ground that has not previously been considered by the Children's Court, the ground must be proved as if it were a ground of a fresh application, or of opposition to a fresh application, for a care order. (6) Before making an order to rescind or vary a care order that places a child or young person under the parental responsibility of the Minister, or that allocates specific aspects of parental responsibility from the Minister to another person, the Children's Court must take the following matters into consideration— (a) the age of the child or young person, (b) the views of the child or young person and the weight to be given to those views, (c) the length of time the child or young person has been in the care of the present caregivers and the stability of present care arrangements, (d) the strength of the child's or young person's attachments to the birth parents and the present caregivers, (e) the capacity of the birth parents to provide an adequate standard of care for the child or young person, (f) the risk to the child or young person of psychological harm if present care arrangements are varied or rescinded. (7) If the Children's Court is satisfied, on an application made to it with respect to a child or young person, that it is appropriate to do so— (a) it may, by order, vary or rescind an order for the care and protection of the child or young person, and (b) if it rescinds such an order—it may, in accordance with this Chapter, make any one of the orders that it could have made in relation to the child or young person had an application been made to it with respect to the child or young person. (8) On the making of an order under subsection (7), the Children's Court must cause notice of the order to be served on the Secretary. (9) This section does not apply to an application to vary an interim care order. Note: Section 90AA provides for applications to vary interim care orders. 1. If the Court determines that the previous final Care orders should be varied or rescinded, it may go on to make new Care orders. In practical terms that may require a re-opening of the whole case, with a new Care Plan, fresh evidence, and a reconsideration of whether there is a realistic possibility of restoration within a reasonable time. The evidence of the Clinician 1. The Children's Court Clinic (which I will refer to in short form as the Clinic) is established under the Children's Court Act 1987, and is given various functions designed to provide the Court with independent, expert, objective, and specialist advice and guidance. 2. The Court may make an assessment order, which may include a physical, psychological, psychiatric, or other medical examination, or an assessment, of a child: s 53. The Court may also make an order for the assessment of a person's capacity to carry out parental responsibility (parenting capacity): s 54. In addition, the Court may make an order for the provision of other information involving specialist expertise as may be considered appropriate: s 58(3). 3. The Court is required to appoint the Clinic for the purpose of preparing assessment reports and information reports, unless it is more appropriate for some other person to be appointed. The Clinic appoints an independent Clinician to carry out the assessment required. The reports are made to the Court, and are not evidence tendered by a party. 4. The Clinician appointed by the Clinic is, therefore, completely impartial and independent of the parties. 5. The Children's Court can derive considerable assistance from an Assessment Report. In addition to providing independent expert opinion, the Clinician can provide a hybrid factual form of evidence not otherwise available. 6. Because they observe the protagonists over a period of time, interview parents, children and others in detail and on different occasions, in neutral or non-threatening environments, away from courts and lawyers, untrammelled by court formalities and processes, clinicians can provide the Court with insights and nuances that might not otherwise come to its attention. 7. Thus, a Clinician can provide impartial, independent, objective information not contained in other documents, give context and detail to issues that others may not have picked up on, and which the Court, trammelled by the adversarial process and the 'snapshot' nature of a court hearing, would not otherwise have the benefit of. 8. The Children's Court expects Clinicians to be aware of, apply and adhere to the provisions of the Expert Witness Code of Conduct set out at Schedule 7 of the Uniform Civil Procedure Rules 2005 (UCPR). 9. The Clinician appointed in this case was Dr Colin Munro. He carried out an expert parenting assessment of the parents as required and prepared a Clinical Report dated 3 April 2020, which was provided to the Court, and admitted into evidence at the hearing. 10. Dr Munro is an experienced psychologist with considerable expertise in relation to children and parenting. He is currently Head of Counselling at Griffith University, Queensland, and a member of the Australian and New Zealand Association of Psychiatry, Psychology and the Law. 11. In his report, Dr Munro expressed the following opinions: "Restoration of the child is not possible to the home of the mother or the father in relation to unaddressed past child neglect and abuse allegations and the witnessing of domestic violence and substance abuse. The AC (Dr Munro) also has concerns as well relating to persons the parents are currently keeping company with whose parenting capacity has not been assessed by DCJ and the impact of the birth of another child in the father's household. There is also the inability of the parents to communicate or cooperate in relation to the parenting responsibility… The AC does have reservations about the capacity of the paternal grandmother to abide by any restrictions the Court makes on contact of the child with the father…" 1. The Clinician was required for cross-examination at the hearing, and he gave evidence on Tuesday 11 August 2020. 2. The Clinician impressed me as a thoughtful, capable and considerate clinician, who was objective and reasoned in his assessment of the parents. I found his evidence to be valuable and helpful. 3. So far as his assessment of the parents was concerned, he was unshaken in respect of his views, and he maintained his view that the child should not be restored to either parent. 4. In relation to the episode on 3 April 2027 when the father took the child from the mother's home, he said: "… (The father's) account of what happened as compared to the police's account of what happened, to actually come into someone's house and remove the child in the way that you - you have just described to me, is obviously not going to be in the child's best interest, and would be very frightening for the child. Even if the child knew who that person was, the removal of the child in that way, without the mother being present, if the father entered the premises without authority, then certainly just from a hypothetical point of view, that would not be behaviour that would be considered in the child's best interest": T 149.31. 1. In relation to the paternal grandmother, he said: "…I suggested that the department would need to investigate the paternal grandmother's - not just willingness but capacity to provide that ongoing care of the child. Because as you know, the department withdrew their approval of the paternal grandmother as a carer, and it was certainly my recommendation, even though I read in the new material, the department still hold a view that - that they don't want to reassess the paternal grandmother's parenting assessment - parenting capacity": T 152.45 1. In relation to the Wilsons, he said: "A. … I'm not saying that the - the - the child should remain with the carers until the - the future parenting capacity of the paternal grandmother or the adults is known. I - that's - that's not what I - I said. Q. I know you didn't say that, but what I'm saying to you is that - well, we've moved on for four months. You weren't aware at the time you did the assessment that there was a proposal for the Wilsons to care for the child long term? A. No. I've only just recently become aware of that, yes. … Q. I'm saying that, given those circumstances and given what might be the disruption to the child's routine and life-changing skills, et cetera, that if his Honour formed the view that the child should not be restored to either parent, then it's best to leave the child with the Wilsons. If you can answer that, or if you say to me that you'd need to assess the Wilsons, feel free to tell me that. A. Look, I - I - I - I - I would have to say that the - the Wilsons would need - if - if their position is now changed, and that they are to be considered by the Court as a long-term placement for (the child), that was never in the questions that I was asked to comment on. And so if that had of been a part of what I was to assess, then obviously I would have, as you said earlier, assessed - interviewed the Wilsons. They would - I would have been looking at them as well as the paternal grandmother as alternate carers. But all I had to assess was the paternal grandmother as an alternative, or maybe (the child) staying with the Wilsons or other carers. But certainly if what you're saying now is that the Wilsons are becoming a party or parties to this matter or have expressed now their desire to be long-term carers, that obviously changes the whole complexion of his Honour's recommendations in this regard": T 153.16 - 50. 1. He said further, in cross-examination by Mr Boys: "Q. So again, wouldn't Grandma be sort of up the hierarchy of family first in the department's attitude? I mean, before you answer, the Wilsons, one of them is a second cousin and then the other one has no genetic link to the child. So wouldn't it be better, under family first, to adhere to the family first for his Honour to place this little girl with Grandma? A. This goes back to a question Mr Moore asked me about, was I aware now that the Wilsons were putting themselves forward as long-term carers. When I was asked by the Court to provide an opinion on this, of course, the only family placement, if you like, option that I had available to me or kinship placement was with – well, with the paternal grandmother and that's why in my recommendations, I recommended that the Department reassess the paternal grandmother for her capacity and willingness to care for the child, but certainly now that the Wilsons are putting themselves forward and there is, as you said, a familial relationship there, I certainly agree with the family first proposition that, you know, if it's possible to place a child in a family or a kinship placement, that is obviously desirable": T 163.11. 1. Then, in response to a question by the solicitor for the mother, Ms Fawaz: "Q. … In relation to the allegation that the paternal grandmother had allowed the child to have unsupervised contact with the father prior to the child being restored to the mother, assuming that the grandmother did do that and allowed the child to have unsupervised contact with the father in breach of the AVO and against the recommendations of the Department of Communities and Justice, that is a concern for you? That would be a concern for you if that had happened? A. Yes, that would be a concern to me, yes, because I think – as I expressed in my report on a couple of occasions, one of my reservations, and I do have reservations about the paternal grandmother being a carer and that's why I want her re-assessed for that, is that if that were true, then it would mean that the mother, the paternal grandmother, may not be able to follow any orders that the Court might make in that regard, or be able to resist the father not complying with any orders that the Court may make": T 204.3 1. Then, finally, in response to me, the Clinician said: "Q. Now, doctor, you have been of assistance. The mother is out of the question. The first question in these proceedings is whether or not there's an unacceptable risk of harm of restoration to the father within a reasonable period. If there is such an unacceptable risk of harm, I won't be restoring to the father. I then have to decide whether or not I can restore to the grandmother or place the child with the grandmother. You're saying you have some questions about her capacity to withstand pressure from her son. A. Yes. Q. And on that basis, you're saying she should be reassessed. Are you suggesting that's something for a clinician or for the department? A. I - I - I guess I - I would be suggesting someone do it who has particular expertise in assessing parent capacity for either carer duties or long-term carer duties. So there are clinicians and non-clinicians who have particular expertise in that. And so that - that would be one of my recommendations": T 223.8. 1. It was because of this evidence, and the Clinician's reluctance to express a view about the preferable placement for the child, if she was not to be restored to the father, that I invited the Secretary to arrange for an expert assessment to be carried out following the adjournment of the hearing in August, before the resumption in November. The evidence of the clinical psychologist, Lauren Davis 1. As I have already recorded, during the break in the hearing between August and November 2020 a clinical psychologist, Ms Lauren Davis, was retained to carry out an expert assessment to advise on the preferred placement of the child, in the event that she was not to be restored to her father. 2. Ms Davis prepared a detailed report for the Court dated 16 November 2020, which was tendered. Ms Davis was required for cross-examination, and she attended to provide oral evidence at Ballina on Monday 30 November 2020. 3. In that report, Ms Davis expressed a series of views which I find to be particularly important: "9. Summary of Interview with the child 9.1 [The child] was interviewed in her bedroom. No one else was present. [The child] recognised me from my attendance at her contact visit with [the paternal grandmother] 5 days prior. She was friendly and keen to show me items in her room. She was provided with age appropriate explanation of my role. She presented as being an insightful, reflective and perceptive young girl. She presented as having a good level of comprehension and vocabulary. Her receptive and expressive language appeared to be good. No issues were noted with regard to her cognitive functioning. Age appropriate cards with pictorial depictions of various emotional states and behaviours were used to facilitate discussion with [the child]. Few specific questions were asked; the cards were utilised to prompt discussion and the child was allowed to express her views using the cards and verbally. [The child] presented as being open and her statements appeared to be considered and genuine. She exhibited reactive and congruent affect when discussing various aspects of her family and life. At times [the child] would become dysregulated and would moderate the discussion herself (i.e., would pause talking about a topic that was upsetting her). Photos of her mother, grandmother and carers were displayed in her room. No photos of her father were sighted. 9.2 [The child] was asked to choose cards to represent members of her family and was asked broad questions about the positive and negative attributes of family members. 9.3 [The child's] main focus during discussion was her mother. She spoke warmly of her and it appeared that her mother is her primary attachment figure in her family of origin. She spoke about how she wishes she could live with her mother and references her mother's use of alcohol as having been as issue. She was asked to choose a card to represent her feelings about this and chose a sad card. She made reference to being the only child that she knows of in her school class who is not living with their mother, something she referred to as being "not fair". She described a keen awareness of being different to her classmates and that she has found it difficult when her peers mistakenly refer to [her carer] as her mum. 9.4 When discussing her father, [the child] chose an angry card, stating that her father "stole me once" and that he "gets angry". She made reference to her father having asked her "do you want to live with me?" and stated that she has said yes to him as she was afraid "he would get mad". She became upset when describing her strong feeling that she had no choice but to say yes even though it was not how she felt, and described distress at having been put in this position by her father. She consistently described a fear of the potential for her father to get angry. Her expressed views appeared to be consistent with supplied records indicating that [the child] has previously referenced her psychologist assisting her to distract herself when she's thinking about bad stuff like her dad' (See contact visit notes, 03/10/2020). 9.5 [The child] spoke positively about Mr and Mrs Wilson. She chose cards representing friendly, caring and playful emotions and behaviour. She advised that there was nothing negative or problematic about the carers. She has some awareness of her carers having some degree of concern about the impact of her grandmother and father on her. This was described as having arisen based on her own disclosures of her complex feelings and as feeling protective rather than distressing. 9.6 [The child's] feelings about her paternal grandmother were complex. She needed to be prompted to discuss [the paternal grandmother] when discussing family. She demonstrated a keen awareness of her grandmother's views on things, and an anxious sensitivity to her feelings, as well as sense of burden around this. She chose a 'stressed' card to represent her grandmother, and described feeling overwhelmed by [the paternal grandmother] asking her "don't you love me?" She described experiencing anxiety about [the paternal grandmother] being angry. Supplied records indicated that [the child] has previously described being worried that [the paternal grandmother] would be angry with her (i.e., when running late for a contact visit and that [the paternal grandmother] used to get angry when she used to live with her (See: Case note, 08/08/2020). She has some awareness of her grandmother having complex feelings about her carers, which is a source of stress for her. 9.7 [The child] stated that it is her wish for her family to be together and not "splitted". Rather than questioning [the child] directly about who she wants to live with, which I viewed as being developmentally and situationally inappropriate, she was asked indirectly to offer her thoughts on whether the people who were making decisions about where she should live were doing a good job and doing the right thing for her. She identified [her caseworker] as being the decision maker with regard to where she lives and stated that she feels she is doing a good job with her decisions. She did not describe a preference for any changes to be made. 9.8 [The child] was asked broad questions about the contact arrangements with [the paternal grandmother]. She advised that she wants the contact with her grandmother to continue to be supervised. She noted that the supervision would mean that [the contact supervisor] would be present if [the paternal grandmother] was to get angry. She described her grandmother talking forcefully or abruptly to [the contact supervisor] in visits at times which she finds upsetting. In discussing whether those making the decisions on contact arrangements are doing the right thing, she suggested a second supervisor so that if something happened to [the contact supervisor] during a visit there would be someone else there "to look after me". 10. Summary of observation of interactions (the child, Mrs Louise Wilson and Mr Stephen Wilson) 10.1 The interaction with the Wilsons was observed informally during my time at their house. They were briefly seen together in the company of Mrs Wilson's mother, who had been entertaining [the child] with craft activities. [The child's] interactions with the carers and Mrs Wilson's mother were observed to be relaxed and child focused. Mr Wilson and [the child] were observed to play together with a gift that [the child] had received from family for her birthday which they both appeared to enjoy. They both described how they had been playing with this since [the child] had received it. There were no indications of tension or anxiety when discussing things that are in contrast to the Jehovah's Witness faith (i.e. the birthday presents) or restrictions to [the child's access to such items. No issues were observed with regard to interactions between [the child], Mrs Wilson and Mr Wilson. 11. Summary and recommendations 11.1 On 7 October 2020 I received a Letter of Instruction from Senior Solicitor Avril [Prior] with the NSW Crown Solicitor's Office to complete and expert report in the above proceedings. The Letter of Instruction is included as an Appendix to this report. It is my understanding that [the child] is a child who is subject to child protection proceedings in the Children's Court and is in the care of the Tweed Heads Department. It is my understanding that the matter has been part heard, and the court is seeking to make a determination regarding the permanent placement of [the child], 7 years. The specified terms of assessment (as per the Letter of Instruction) are provided in bold, with the responses following. Based on the information available to me, I note the following: 11.2 The nature and quality of the relationship between the child and: • The paternal grandmother 11.3 The relationship between [the paternal grandmother] and [the child] is complex. There is clearly a great deal of love and affection between the two of them; and they are certainly able to share warm and positive moments together. However, there is also notable apprehension and anxiety on the part of [the child]. [The child] has anxious sensitivity to her grandmother's feelings, which has led to her feeling burdened and distressed. [The paternal grandmother] has unfortunately not been able to shift from focusing on her own experiences to considering [the child's] perspectives. One example of this is [the paternal grandmother's] projection of her own feelings of distress with regard to the end of contact visits onto [the child]. She views the contact visits as being distressing for [the child] as she does not want to separate from her, however this appears to be [the paternal grandmother's] experience of the visits, not [the child's]. • Mrs Wilson; and • Mr Wilson 11.4 The above points have been considered together. The relationship between [the child] and her kinship carers was observed to be warm, appropriate, relaxed and child focused. [The child] speaks positively about her carers; she experiences them as being caring, playful and protective. 11.5 The impact on the child of any disturbance to the relationship between the child and her current carers. 11.6 As noted above, the relationship between [the child] and her kinship carers is warm and positive. The available information indicates that the carers are demonstrating good capacity to be attuned and trauma informed carers for [the child]. I consider the placement with Mr and Mrs Wilson to be safe, nurturing, stable and secure, and it is my view that disturbance to this relationship, such as through a decision that [the child's] placement should change or other external pressures (e.g., family influence) would not be in [the child's] best interests. Should such disturbance occur, it would have a range of negative implications for [the child]. 11.7 Any views or wishes expressed by the child and any factors that may affect the weight to be accorded to those views. 11.8 [The child] was not questioned directly about who she wants to live with, as I formed the view that doing so would be developmentally and situationally inappropriate. When [the child] was describing her views and wishes, I observed emotional congruence, consistency and a depth of narrative from [the child]. There was no indication that her statements were influenced by coaching or prompting from others. 11.9 [The child] is a young child with a background of trauma and anxiety and is acutely aware of the emotions and views of others. She has felt pressure and distress in her interactions with her father and paternal grandmother. She has felt pressure from her father to state that she wants to live with him and she feels anxious and fearful of him becoming angry. She has felt pressure to be responsible for her grandmother's emotional wellbeing (i.e., feeling pressure to reassure her grandmother that she loves her), and has described consistent concerns about her grandmother being angry. [The child] appears to have been put in positions by her grandmother and father, likely unintentionally, where she has felt the need to provide reassurance and containment for them, even when doing so is in contrast to her own views. This is not age appropriate. [The child's] statements suggest that her father in particular is a source of stress and fear for her, while her grandmother is a source of both comfort and stress. 11.10 [The child's] consistently stated wish is for her family to be together. This is considered to be an age appropriate fantasy and is not uncommon for children who have separated family and an awareness of discontent among family members. Her more specific stated wish would be to live with her mother. This seemed to be due to both her positive relationship with her mother, as well as reflecting her age appropriate realisations of being different to school peers due to not living with her mother and her associated grief and loss. Her responses indicated agreement and happiness with her current placement. 11.11 The likely impact any proposed care order will have on the child's right to enjoy her Aboriginal culture, including: • The right to enjoy that culture with other people who share that culture • The right to maintain a connection with that culture; and • The right to have the support, opportunity, and encouragement necessary to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views, and develop a positive appreciation of that culture. 11.12 The above points are considered together. It is my view that [the child's] needs for cultural connection are well met through her placement with a kinship carer who identifies as belonging to the same Aboriginal mob as [the child]. Through the actions that are being taken within the placement to assist [the child] to understand and connect with her cultural background (reading, learning the language, education etc.) and [the child's] involvement in cultural events (e.g., NAIDOC events). Similarly, [the child's] regular involvement with the paternal family (her father, paternal grandmother, and other extended family members) is an important factor. [The paternal grandmother] identifies herself as being a cultural elder who [the child] is able to learn from. Similarly, it is my understanding that [the father] identifies as being an Aboriginal man to whom cultural connection is important.The regular contact taking place with [the child] will allow for them to assist her to learn and experience more about her cultural background." 11.14 An assessment of the capacity of the following persons' capacity to care for the child, including their understanding of the child's developmental, physical, psychological, emotional, and educational needs and current and potential ability to meet those needs • The paternal grandmother 11.15 I accept that [the paternal grandmother] loves [the child] deeply and wants to spend more time with her, and that their visitation is mostly positive and loving. It is my view that [the paternal grandmother] would be well equipped to meet many of [the child's] needs, however I have a number of concerns about her capacity to understand and consistently meet [the child's] needs for emotional safety. I am concerned that [the paternal grandmother] has significant difficulty shifting from a self-focus to a child focus when it comes to [the child's] needs. I am concerned that some of [the paternal grandmother's] actions and communications with [the child] have not been in [the child's] best interests and that [the paternal grandmother] has demonstrated a rigid lack of understanding of these issues. It appears that, at least at times, [the paternal grandmother's] behaviours of concern when interacting with [the child] are meeting her own needs, not those of [the child]. It is my view that [the paternal grandmother] has not been able to consistently prioritise the needs of [the child] over her own needs for validation and affection from [the child]. I accept that [the paternal grandmother] holds the genuine belief that [the child] having more contact with her is in [the child's] best interests. However I am concerned that there is a sense of entitlement to [the child's] time, with the focus being on the loss of time that [the paternal grandmother] has experienced (i.e., reduced time compared to when [the child] was in her care) rather than the focus being on [the child's] needs for stability and consolidation in her primary placement as a critical need given her past exposure to harm and past attachment disruptions. [The paternal grandmother's] insight and understanding of [the child's] anxiety and fear about her father is limited. • Mrs Wilson; and • Mr Wilson 11.16 The above points have been considered together. As outlined, it is my view that Mr and Mrs Wilson are demonstrating good capacity to be attuned and trauma informed carers for [the child]. The carers demonstrated a willingness to learn and seek advice when needed and a promising responsiveness to psychoeducation. I have no concerns about their capacity to understand and meet [the child's] needs, or seek advice and support in order to understand and meet her needs as they arise and change over time. They demonstrated a balanced and reflective view of family dynamics. I consider the placement with Mr and Mrs Wilson to be safe, nurturing, stable and secure. [The paternal grandmother] contends that the carers' religious beliefs prohibit them from being able to meet her needs for cultural connection as well as to engage with non-Jehovah's Witness rituals and activities that are important to her family of origin. I am satisfied that this is being handled sensitively and appropriately by the carers. I am also satisfied that the carers are able to support [the child] to enjoy her Aboriginal culture. [The paternal grandmother] through her legal representative has raised concerns about the carers' faith and attitudes towards some medical treatments (e.g., blood transfusions); it is my understanding that under the application before the court the Department is seeking to hold all aspects of parental responsibility for [the child] therefore this is not an issue of concern. 11.17 If the current care arrangements are not varied, [the paternal grandmother's] capacity and commitment to work cooperatively with Mr Wilson and Mrs Wilson in the best interests of the child. 11.18 I have significant concerns about [the paternal grandmother's] capacity and commitment to work cooperatively with the kinship carers in the best interests of [the child]. At the present time, [the paternal grandmother] is not able to conceive of a situation where she does not have a relationship with [the child] that is on her terms and she demonstrated an 'all or nothing' perspective on the situation. It is acknowledged that [the paternal grandmother] has been experiencing her own sense of loss and stress given the gap between what she views as being in [the child's] best interests and what is occurring in reality, however the onus must be on the adults involved with [the child] to seek their own support to cope with situations such as these and to own and change their own behaviours where necessary (i.e., when having a negative impact on [the child]). It is possible that [the paternal grandmother] will be able to make shifts in her capacity to work cooperatively should the decision be made not to vary the current care arrangements; however she is likely to require supportive counselling to manage the grief and the transition in her previous role from primary carer to [the child] to grandmother." "11.20 Placement with [the paternal grandmother] is not recommended." The Secretary's case 1. The Secretary's case is that there is no realistic possibility of restoration of the child to the care of her parents. 2. The Secretary proposes, further, by way of permanency planning, that the child be permanently placed to the age of 18 with her paternal cousins, the Wilsons. 3. The Secretary opposes, therefore, the father's application for restoration of the child to him, and the placement of the child with her paternal grandmother. 4. It is submitted that the father's Application should be dismissed and that the permanency planning, as primarily set out in the Amended Care Plan filed on 6 July 2020 be found to have been appropriately and adequately addressed, such that final care Orders might be made allocating parental responsibility to the child to the age of 18. 5. So far as the mother is concerned, the Secretary notes that restoration to the mother was tried, but failed, and her concession that there is no realistic possibility of restoration of the child to her. But the mother nevertheless remains an important person in the life of the child. In this regard, it is submitted, it is the Wilsons who have the best relationship with the mother, a significant reason for maintaining the placement with the Wilsons. 6. The Secretary concedes that the mother's reliability as a witness might have some shortcomings, particularly having regard to her evidence about being held hostage and sexually assaulted by the father in January 2016. But even if the Court fails to accept her evidence about that episode, it doesn't follow that the Court would reject all her evidence. 7. There is clear evidence of a volatile relationship with the father, and other, independent evidence of the father's violence, in particular the episode on 3 April 2017. 8. As to the father, the Secretary submits that he has an argumentative personality, and there is evidence of him having a borderline personality disorder: see Exhibits 21 and 3. He has a difficult relationship with caseworkers, has been verbally abusive to officers, and has recorded conversations without permission, and over objection. 9. Specifically, the Court might accept one of the caseworker's evidence that the father said to her "You're a bitch, [the other caseworker] is a bitch and [the manager casework] is an even bigger bitch". 10. The father has antisocial tendencies, including a history of violence, as evidenced by various reports and other objective material: "The Father has anti-social tendencies as shown in Exhibit "HH", his New South Wales Police Force Criminal History Bail Report. There are matters for Violence, including against female victims. The Father has been convicted of assaulting the Mother and the Mother's friend. The assault upon the Mother's friend occurred on 18 March 2015. The relevant COPS event begins at page 22 of 31 of Exhibit 17. The incident occurred in the presence of [the child]. The Father was convicted of Assault Occasioning Actual Bodily Harm by Tweed Heads Local Court on 19 August 2015 (Exhibit HH). The COPS event for this incident is in Exhibit 17 at page 22 of 31. It includes the Father spitting on the friend, the saliva hitting the right side of her face, the Father yelling at the friend "YOU, YOU DIRTY AND SLAGGY SLUT YOU GONNA GET IT". The Father then grabbed the friend by the hair and pulled her from the Mother's vehicle he then kneed her to the head. The Mother intervened and screamed "STOP, STOP. LEAVE MY GIRLFRIEND ALONE, YOU BASTARD". [The child], who would have been 18 months of age, was in the Mother's arms, the Father took [the child] from the Mother. The Police were called. Some 3 hours later the Father went to Tweed Heads Police Station. [The child] was with him. Police separated the Father from [the child]. [The child] remained with the Police until the Mother picked her up. The Police record at page 23 of 31 the Father saying, "YOU'LL SHOOT ME BY THE END OF TONIGHT" "YOU WON'T STOP ME FROM GOING UP THERE AND GETTING MY DAUGHTER". The Father punched and head-butted the dock, he tore his shirt to make a rope, forced toilet paper down his throat and threaten the Police and the Mother." 1. The Secretary also relies upon the father's disturbing behaviour during the abduction episode on 3 April 2017, and the threatening voice mail messages and text messages sent to his brother's partner: "In the lead up to taking [the child] from the Mother's premises, he sent threatening voice mail messages and text messages to his brother's partner. This led to him being charged with the offence of Use Carriage Service to Menace Harass or Offend. The Father pleaded not guilty to this offence but was convicted and sentenced to 8 months imprisonment commencing 3 April 2017 concluding 2 December 2017. (See Exhibit HH, page 8 of 11). Exhibit Z is a Transcript of the Magistrate's decision and remarks on sentence. The menace included telling his brother's partner that he was not going to come around unarmed." 1. The Secretary notes that the father relies upon the treatment he has been receiving from his psychologist, but submits that little weight can be given to the opinion of this psychologist, who was never provided with a full history. She was provided with tape recordings of telephone conversations with the mother from which she drew what were obviously incorrect conclusions. 2. In her report of 30 July 2020, the father's psychologist said: "Throughout my sessions with [the father] he consistently advised that he was not the perpetrator of violence but did accept that there was conflict with his former partner and further stated that she was the perpetrator of violence. On the 10 July 2019 [the father] provided evidence that he was the victim of violence, that he had not assaulted his former partner and mother of the subject child and that the allegations that he had perpetrated violence against her were false. Moreover, he stated that he did not have the subject child removed from his care but more, so the child was removed from the Mother due to, I believe significant struggles with managing her consumption of alcohol. Due to [the father] being the victim of violence (both familial and a random assault 2011) and false allegations resulting in incarceration I approached the treatment plan with the view to address his own personal trauma as a victim utilising psychoeducation and trauma informed therapeutic methods" 1. The Secretary points out that the evidence that was provided to the father's psychologist was a tape recording. That tape recording does not contain any admission by the mother that the allegations she made were false. (See Exhibit Q, transcript of telephone conversation between Father and Mother 11 June 2019 18.50.45 particularly page 12). In fact, the father pleaded guilty to an assault on the mother arising out of the incident of 3 April 2017. The father was convicted of assaulting the mother's friend, something the father's psychologist does not refer to. The father was bail refused for offences that were ultimately either withdrawn or he was discharged at committal. There is no evidence that the Police withdrew those charges because the mother lied. It appears the father failed to inform his psychologist that he was also bail refused and ultimately sentenced to a term of imprisonment for the offences relating to his brother's partner. Hence, it is submitted, little weight can be given to the father's psychologist's opinion. 2. Finally, in relation to the father, the Secretary notes his disregard for Court Orders: "The Father has breached Apprehended Violence Orders, Orders imposed that require him to be of good behaviour and Orders that prohibit him from driving a Motor Vehicle. This history would give Your Honour no confidence he would abide by any Order that Your Honour would make, particularly in relation to [the child] having contact with her Mother." 1. The Secretary submits that the Court would not find that there is a realistic possibility of restoration to the father. 2. In relation to the paternal grandmother, the Secretary submits that the child's placement of the child with the Wilsons should not be changed, and that moving her to the paternal grandmother is not in the child's best interest. 3. The Secretary relies principally on the evidence of the expert Clinician, Dr Munro, who was reticent about a placement with the paternal grandmother, and of the clinical psychologist, Ms Lauren Davis, who was strongly of the view that the child will be better off in the care of the Wilsons, for the reasons set out in her report. 4. The Secretary pointed to the strained relationship between the paternal grandmother and the father: "An example of the strained relationship that has existed between the Father and the Paternal Grandmother is contained in Exhibit BB the Father's ERISP interview on 3 April 2017. At Question 225 he refers to his Mother [by her name] and then at Q226 says "I won't never call that thing my Mother" and again at Q 295 speaks of his Mother in a derogatory way": at [130]. 1. The Secretary also pointed to evidence of the complex relationship between the child and the paternal grandmother, confirming Ms Davis' view that the child has an "anxious sensitivity to her grandmother's feelings". 2. The Secretary submitted (at [137] – [139)]: "Ms Davis formed the view that the relationship between the Paternal Grandmother and [the child] was complex (Paragraph 11.3). Ms Davis noted "…there is also notable apprehension and anxiety on the part of [the child]. [The child] has an anxious sensitivity to her grandmother's feelings, which has led to her feeling burdened and distressed. [The Paternal Grandmother] has unfortunately not been able to shift from focusing on her own experiences to considering [the child's] perspectives". At paragraph 9.6 Ms Davis when discussing the interview with [the child] referred to [the child's] feelings about the Paternal Grandmother as complex. [The child] chose a "stressed" card to represent her grandmother and described feeling overwhelmed by [the Paternal Grandmother] asking her "don't you love me?" [The child] described experiencing anxiety about [the Paternal Grandmother] being angry. Support for Ms Davis' opinion can be found in paragraph 14 of the Exhibit 2, the Views and Wishes Statement. In that paragraph in relation to contact with the Paternal Grandmother [the child] said: 'It definitely makes me sad. Ma Ma says, "Why don't you send me emoji's? Why don't you love me anymore? I tell her I am busy doing things like homework, gardening, jobs. It doesn't mean I don't love her. Why doesn't she understand? Why does she say I don't love her anymore? That makes me really sad and upset?' " 1. The Secretary also relies on the disclosure by the child that the paternal grandmother allowed unsupervised time between the child and her father, when he had unauthorised sleep-overs at her home. 2. The Secretary submits that the evidence from the child was credible and should be accepted by the Court. He notes Dr Munro's evidence that "children can be confused in relation to dates and the father's reaction at the time of the conversation being raised by [the child] refers to such confusion. 3. The Secretary submitted (at [118] – [123]): "Exhibit K at page 6 of 8 is a file note of [the child's caseworker] of her conversation with [the child]. [The child] informed [the caseworker] that her Father had 5 sleepovers at her home( [the paternal grandmother's] home) and when asked [the child] said that it was in the holidays and it was before Xmas and that they had driven dad back home in the hire car. The Paternal Grandmother did hire a car because she had injured her arm. The original disclosure was made to [a contact supervisor] on 14 January 2019 at supervised contact between [the child] and her Father…. The Contact Report is Exhibit C. [The contact supervisor] is the supervisor who the Father complained about because of the way that she dressed. The Father asked [the manager casework] to speak to [the contact supervisor] and ask her to dress more modestly. The Father claims that the allegation raised in the report is linked to his complaint. Exhibit C under the heading 12.20 states: "[The child] sat at the table eating her lunch she said to [the father] and began to whisper 'don't tell Docs but remember when you had a sleep over at my place and I scratched my foot". The Father responded that this was a long time ago. [The child] became more distressed and repeated "no not then you had a sleepover at Mama's house". Then at 1.30pm [the child] said to the contact supervisor, "…. did you hear what I said to Daddy", that he had a sleep over at her house. When [the contact supervisor] said Yes, [the child] said "yes Docs or daddy will go to jail, but you can't tell". [The child] became visibly upset and began to cry." 1. In contrast to the child's anxious relationship with the paternal grandmother, the Secretary points to her warm, relaxed relationship with the Wilsons. The submissions of the mother 1. The mother supports the Secretary's permanency planning. 2. In the written submissions filed on her behalf, she confirms her concession that there is no realistic possibility of restoration of the child to her within a reasonable time, but strongly opposes restoration to the father. She opposes a placement with the paternal grandmother, and supports the plan for the child to remain in the care of the Wilsons. 3. The mother points in particular to the opinion of Ms Lauren Davis in her report of 16 November 2020. 4. She adopts the submissions of the Secretary, save for paragraph [44], as to which she submits she was a victim of a sexual assault in early January 2016, as determined by the decision maker under the Victim's Rights and Support Act (being Annexure LK1 of her affidavit of 27 November 2020), and the documentary evidence of the Tweed Heads Hospital. "It is submitted, the Court could find the inconsistencies between statements made by the mother in her evidence was because of her experiences of being subjected to significant family violence and would, if accepted, account for her expressed fears of the father, which was apparent during the hearing. The mother tendered during the proceedings medical certificates confirming the toll the proceedings had taken on her mental health as a result of being confronted by her alleged perpetrator directly, during cross-examination. It is conceded that the mother's recollection of events over the years of her relationship with the father was not perfect. Nonetheless, it is submitted that these are not grounds upon which the mother's testimony should be classified as lacking all credibility. On the contrary, it is submitted that these characteristics of the mother's testimony are consistent with the range of responses to questioning given by victims of domestic violence." The submissions of the paternal grandmother 1. The paternal grandmother filed a number of written submissions. The substantive submissions filed on her behalf were dated 22 January 2021. She subsequently filed further sets of written submissions in response to the Secretary's submissions on 14 February 2021, and in response to the father's written submissions on 21 February 2021. A final set of submissions were also sent on 22 February 2021, which I will deal with separately. 2. My summary of the paternal grandmother's submissions below incorporates all 3 sets of her written submissions. I have grouped her submissions into various themes that appear to predominate. 3. She agrees that at the present time restoration to either parent is not possible. "At this time the PGM agrees that neither parent is capable of offering the high quality of care and safety to [the child] that the PGM can offer her. However, if the Department provides minimum outcomes for both parents, perhaps [the child] can be restored to 1 of the parents in the next 18 months to 2 years. The PGM believes living with either Mum or Dad is the optimal outcome for [the child]." 1. The main thrust of the paternal grandmother's submissions is that the child would be best placed into her care, and she therefore seeks parental responsibility for her till she turns 18, except for contact: "The PGM is supportive of restoration to either the mother or father within a two-year period. If that is not realistic, the PGM will maintain parental responsibility of [the child] until she is 18. The PGM does not believe that it is the best interest of [the child] to remain with the Department." 1. The paternal grandmother is critical of the Department and its caseworkers for much of the casework and treatment of the child, but in particular submits that too much reliance was placed upon the child's "fantasy" that she allowed the father 5 unauthorised sleepovers at her home. 2. She contends that the child should have been placed back into her care, not the Wilsons' care, in December 2019 following the failed restoration to the mother: "The Department had the opportunity in December 2019 to restore [the child] to the PGM where [the child] was happy and stable. The Department had the opportunity to restore [the child] to the PGM after Doctor Munro's report, a period of 16 weeks. The PGM has formed the view that [the child] has been put in this position due to the Department putting too much reliance on [the child's] fantasy, that [the child] disclosed to [the contact supervisor] and the fact that the Department did not investigate the matter thoroughly. The department had 12 months to investigate that allegation however the department chose not to investigate the allegation further and continues to use this allegation to discredit the PGM's case. The PGM's case rises and falls on the fantasy of [the child] that the PGM allowed the father 5 sleepovers which was vehemently denied by the PGM and the Father. Affidavits were submitted to the Court from 2019 to 2020 disputing this had occurred. [The child's caseworker] said in court that [the child] made an alleged disclosure to her and [he child] showed her where Daddy had mowed the yard. The PGM provided to the Court in response to the Court Transcript rainfall for the Somerset Region, Queensland…. as follows: October 2018 – 129 ml, November – 36 ml, December – 52 ml, January – Nil ml. There was no mowing performed at the PGM's during this time because the PGM needed the grass for the two ponies to eat. This again unfortunately provides evidence that [the child] was fantasizing. The second part of [the child's] fantasy that [the child] disclosed to [the contact supervisor] was that the grandmother allowed the father unsupervised time with [the child]. The PGM and the Father deny that she ever breached Department instruction. [The child] was five at the time. The PGM states that any court orders put in place for [the child] the PGM will follow to the letter. The consequences of breach of orders by the PGM will result in the removal of [the child] by the department. The PGM would never allow [the child] to be taken again by the department unless it was to one of [the child's] parents." 1. The paternal grandmother submits that the allegation regarding the sleep-overs was never officially investigated, and that she was inappropriately de-registered as an authorised carer as a result: "This allegation was never officially investigated, which was a mandatory process for breach of an AVO. The evidence of a thorough investigation would show this did not happen. This unproven allegation has been used all the way through proceedings and the Department unfairly deauthorized the PGM, April 2019. None of the court hearings December 2019, January and May 2020, and trial August and December 2020 would have occurred, and money spent by the PGM and the Department alone could have saved. This also would have saved [the child] and PGM a lot of heartache and alienation of the bond of an indigenous granddaughter and her grandmother… If the evidence was credible and not a 5-year old's fantasy, why didn't the Department conduct an official investigation and have the Father arrested for breach of ADVO or at least have the police interview the neighbours - because it did not happen." "The PGM believes if Briginshaw v Briginshaw had been acted upon to deal with criminal allegations of alleged sleep overs that were not investigated and substantiated, there would have been no allegations for the Department to base [the child's] placement with the Wilsons." 1. The paternal grandmother believes the Department treated the PGM with disrespect and has caused the child significant disconnection from her family by being placed with the Wilsons and not in the family home which she was accustomed to from the age of 8 months old: "The PGM continuously asked the Department for [the child] to go into counselling to assist [the child] to cope with the trauma that she suffered in the mother's care. The Department refused the PGM's request for counselling however [the child] is now attending a counsellor in her current placement. The PGM questions why the Department did not see it necessary for [the child] to have counselling (in relation to): 03 April 2017, removal from Mother 25 April 2017, removal from Maternal Grandmother 01 August 2017, duration of 2017, all of 2018, all of 2019 while living with the Mother with alcohol fuelled violence and 6 ROSH Reports, while attending school, removal from the Mother and placement with the Wilsons December 2019. After no unsupervised contact with the PGM and not being able to visit her home, is when counselling began. The PGM feels the placement and feeling of abandonment caused [the child's] anxiety and the need for counselling." "The inconsistencies of the Department with breakdown of contact and stability has affected the relationship between [the child] and her PGM. This is hard to understand by the PGM and must be distressing for [the child]. The PGM feels the Department is stripping the relationship between herself and her granddaughter by constant mistakes organizing phone calls and contact. " 1. The failed restoration to the mother was precipitate and ill-considered, and occurred despite her advising the Department that the mother was still drinking, was unreliable in connection with contact visits, and was living in a tent: "On 22 January 2019, [the child] restored to the care of the Mother, despite Mother not achieving Minimum outcomes for drug and alcohol abuse. Sadly, this was the PGM's prediction." "The Department demonstrated lack of insight and understanding of [the child's] needs with the premature restoration process to her Mother 21/01/2019. The PGM had written to the Department 23/07/2018 outlining she had concerns the process was setting the Mother up to fail." "The PGM was apprehensive of the premature restoration of [the child] to her mother prior to January 2019. At no time did the Department advise the PGM that the restoration to the Mother was brought forward due to an allegation of the PGM breaching court orders. The PGM did not get to say good-bye and did not have contact with [the child] for 10 weeks which would have impacted on [the child] considerably." 1. The paternal grandmother does not accept the report of Ms Lauren Davis, and is dismissive of her findings: "Ms Davis performed an assessment of the PGM and the Wilsons, this was not court appointed and should be treated as such. Ms Davis was aware that the Wilsons were not party to the proceedings and should not have been included. Throughout Ms Davis's suggested evidence, Ms Davis continually stated that she had no idea how the child had been placed with the Wilsons." Mr and Mrs Wilson should never have been assessed by Lauren Davies as they were not party to the proceedings. The unfairness of the assessment - Under Ms Davis's own admission, the Department gave her a line of questioning that could only have one outcome in favour of the Department's placement." "In relation to Ms Davis's report that the PGM has not prioritised [the child's] needs, this is rejected completely by the PGM. The PGM has spent her life savings on legal fees to ensure that [the child] is safe and being cared for by an immediate family member. Ms Davis stated under cross examination that the consistency of letter writing to [the child] was a form of mental anxiety of what [the child] no longer has in her life." "Ms Davis handed [the child] cards and [the child] chose a stress card to indicate her feelings towards the PGM. Miss Davis lacks insight into the fact that the department caused this situation by placing [the child] first with the Mother and then with the Wilsons. It was never explained to [the child], why she could not live with the PGM and the PGM believes that [the child] feels abandonment by the PGM." 1. In response to the suggestion that Ms Lauren Davis was biased against her, the paternal grandmother submitted: "The PGM reiterates that Ms Davis was misinformed of an alleged breach and ROSH reports and therefore interviewed the PGM under a false perception. The Department failed to inform Ms Davis that the PGM followed orders for the 18 months while [the child] was in her care and the PGM has proven that [the child] was safe, Happy, and settled and fulfilled all of her milestones while in the PGM's care. If the findings of Briginshaw v Briginshaw had been referred to by FaCS, FaCS would not have engaged Ms Davis… May the Court please note that the PGM feels that she has been treated unfairly and like a criminal by FaCS, Tweed Heads Case Manager, for the past two years for breach of an AVO which is a criminal matter… This has thrown a shadow over the PGM's integrity for the past two years." 1. It is the position of the paternal grandmother that the Wilsons are not suitable as carers in that they don't satisfy the Aboriginal placement principles in the Care Act: "At no time did the Wilsons attempt to be joined in this matter. The PGM further states the Wilsons are not parties to the proceedings and should not be considered." "The Secretary has not complied with the provisions of Section 13 of the Care Act, as the Grandmother and as an Elder …was not considered as long-term placement for [the child]." "The PGM does not consider Louise Wilson as a suitable kinship carer. Louise Wilson has never had a relationship with the non-indigenous side of the family. Stephen and Louise Wilson have never participated in the Bloom family tradition to the Nimbin Show (1920-2020), traditional Bloom Cricket Day on New Year's Day at the family farm, Nimbin (1974 -2020), and other family celebrations. This clearly shows the court that this kinship is not suitable. Your Honour could not be confident that [the child] will be able to continue to enjoy her Paternal Grandfather's heritage in the care of the Wilson's as the Wilson's were never connected to the Bloom family geographically or genetically. The PGM can facilitate this and always has." "[The child's] paternal family are descended from the Mutti Mutti Tribe in the Riverina area of NSW. [The child] is placed with Louise Wilson who herself is descended from the Mutti Mutti Tribe but has no connection with her indigenous side. Louise Wilson's descent is the same as the Father. The Grandmother is an Elder. Louise Wilson is not an Elder" "Louise Wilson, in the view of the Grandmother is not connected to country or the cultural traditions of the Mutti Mutti Tribe. The Department is trying to mislead the court by implying that Louise Wilson is suitable kinship. The PGM considers suitable kinship for placement, as a person with regular connection with indigenous family mandatory. Ms Wilson has no connection with PGM's indigenous family since 25th January 2011 at the PGM's late husband's funeral, for one event. By being placed with the Wilsons, [the child] will lose the right to experience three generations on country as customary practice. [The child] will be denied going on country with her siblings if she remains with the Wilsons until she attains the age of 18. Ms Wilson cannot facilitate this because of her fractured relationship with the PGM and Father due to the clinical contact program adopted by the Department, at Ms Wilson's request." "Your Honour could not be confident that [the child] will be able to continue to enjoy her PGM's indigenous family connections in the care of the Wilsons, as the Wilsons have only participated in two family events, [2 funerals], and the Wilsons are not connected to the family." 1. The paternal grandmother also criticises Ms Davis for failing to explore with the Wilsons "difficulties on country and having immediate family and an elder with the child travelling to the Riverina District for cultural connection and family experiences". 2. The paternal grandmother submits that the child would be better off if placed in her care, in comparison to a placement with the Wilsons: "The views of the Wilsons have not been put under the scrutiny of this Honourable Court and as such any evidence that is led by the department or Ms Davis should not be taken into consideration in the final decision your Honour has to make." "Ms Wilson has not and cannot facilitate sibling contact for [the child]. [The child] has an [older] sister, and a baby sister and bonding should be a mandatory process for placement. The PGM can facilitate this." "… [the child] is being bullied at school as evidenced by [the child] saying to Ms Davis that she is the only child she knows of at her school who is not living with their Mother, and [the child] thought that was unfair. The PGM believes this problem would minimize if placed at the [school closer to the grandmother's home] because the PGM holds the same surname and it is not unusual at [this school] for grandparents to perform the school routine with their grandchildren." "If the court placed great weight on the fact that [the child] is settled and happy, then [the child] should have been placed back with the PGM 6/12/2019 following failure of restoration. [The child] was happy and settled at the PGM's house 2017 – 2018 with positive reports from the Department and all developmental milestones achieved." "The PGM accepts that [the child] indicated to Ms Davis that she was happy with the Wilsons however the evidence throughout the hearing was that [the child] is a 'pleaser'. The evidence indicates that wherever [the child] is placed she will form a bond in an attachment to that carer. The PGM's evidence is that [the child] has indicated to the PGM that [the child] wants to live with Ma Ma. [The child] has indicated that she wants to live with her Mother. [The child] has indicated to the Father that she wants to live with him. The PGM believes that it is in the best interest of [the child] to live with PGM and transition back to the Mother or Father as quickly as possible." 1. The paternal grandmother includes the religion of the Wilsons amongst the reason why they are to be the less preferred placement: "To say that religion is not an issue and that the Jehovah's Witness beliefs can be dealt with is another example of the Departments lack of insight into the religious and emotional well-being of [the child]." "In relation to the Department's submissions that the PGM put too much emphasis on Easter is again a lack of insight into the religious significance of Easter in the Christian religion. The PGM was informed that [the child] spent a 4 hour visit Christmas Day with the Mother and the Wilsons supervised. This shows the Department has little insight into the cultural and religious needs of a little 6-year-old girl wanting the Easter Bunny and Santa Claus in her life as she had been accustomed to. This little girl went from enjoying all of that to now classing these celebrations as evil…" "The Department neglected to advise Ms Davis that Stephen and Louise Wilsons' Jehovah Witness Practices were already impacting on [the child's] family beliefs & culture. [The child] role played door knocking on her young friend and asked her if she believed in Jehovah and said if you don't believe in Jehovah, when you die, you'll stay in the hole in the ground and not go to paradise… The Department have neglected to address the issues around [the child] not being able to celebrate her birthday or being acknowledged on the day at her placement. The Department have not addressed that the Wilsons due to their religious barriers cannot facilitate the Easter Bunny, Christmas, Mother's Day, [the child] was denied the right to celebrate Father's Day with her Father, instead she spent the day with her Mother... The Jehovah Witness beliefs have impacted and are still impacting [the child's] family, and her religious and community culture. By placing [the child] with the PGM, [the child] will not be impacted by religious and cultural barriers that will affect her family interaction." 1. The paternal grandmother submits that the child wishes to live with her, in preference to the Wilsons, if she can't be with her mother or father: "[The child's] views depend on who [the child] is with. The PGM believes that if [the child] were asked, [the child] would say she is fine to live with the PGM." "When asked how she would feel if the Court said she could stay where she was living, [the child] replied "I would be fine with that actually". It is unfair of the Department and the ILR to ask [the child] how she would feel if the Court said she could stay where she is living. This was supported by the ILR under the PGM's cross examination by the ILR. The PGM believes that if [the child] had been asked how you would feel to go back to Ma Ma's, [the child] would also say that she would feel fine. If [the child] had been asked how would you feel going back to her Father's house, again the PGM believes that [the child] would have said that would be fine. [The child] has also indicated that she wants to live with her Mother. We ask this Honourable Court to disregard this loaded question to a child that may be suffering from abandonment issues." "The PGM has always said that [the child] is a people pleaser and would bond with any carer that this court placed [the child] with, however that is not a reason to leave [the child] with the Wilsons. [The child] has a 7-year bond and attachment with the PGM and as stated previously, the Children's Court and FaCS have stated the PGM is an important and significant person in [the child's] life and have not said the same about the Wilsons. 1. The final part of the submissions of the paternal grandmother proceed to analyse why, in her submission, changing the child's placement from the Wilsons' care to her care, would be in her best interest: "The PGM states consistently that in the best interests of [the child], she should have been placed in the home she grew up in, which has now been denied for the last eleven months. A home that [the child] has been familiar with, nearly all her life, in the PGM's care before and after restoration with the Mother broke down." "The PGM respectfully asks the Court for PR of [the child], except for contact. This would allow [the child] to have family oriented contact with her parents, sisters and extended family, including the Wilsons, without having to delicately handle beliefs… The PGM would like the Court to be aware that the PGM has delicately managed all issues and relationships with the mother, father and the Wilsons for the betterment of [the child]…" "The PGM believes that changing the placement to the PGM would be in the best interest of [the child] because: • [The child] would get to see her [older] sister…. on a regular basis. • [The child] would get to see her infant sister…. on a regular basis. • This would enable [the child] to bond with her two sisters. • [The child] would see her Father on supervised visits as set out by the court (in a non-clinical form, as a family). • [The child] would see her indigenous relatives at family celebrations. • [The child] would see her Parental Grandfather's side of the family at celebrations that the Wilsons are not party to. • [The child] will be brought up in a country town environment. • [The child] will be living in a home that she has known since birth with pet animals. • [The child] will retain continuity by attending the same psychologist…. 30 km from the Wilson's residence. • [The child] will retain continuity of supervision by S & L Wilson at Mother's monthly contact which can be facilitated the same time as the psychologist visit to reduce travelling time. The PGM is supportive of [the child] having consistent quality time with her entire family." The submissions of the father 1. I turn now to consider the written submissions provided by the father, who, it is to be remembered, is a self-represented litigant in person in the proceedings. I will similarly address these submissions according to the various themes that they raise. His submissions were late, but I accepted them due to some extreme personal circumstances he experienced. 2. The father's position is that there is a realistic possibility of restoration to him of the child within a reasonable period, specifically, within 12 months, at which time he suggests, an allocation of parental responsibility to him might be made. 3. The father submits that the restoration be staged, as follows: "1. Restoration to the father's custody full time by the 20/12/2021, and parental responsibility until 18 years of age. 2. 12 month supervision by Qld FACS from 20/12/2021 to 20/12/2022. 3. Increase fathers contact to unsupervised visits from, date of orders until 20/12/2021 - Overnight stay one weekend a month. - 3 day, 2 night stay each school holidays until restoration date. 4. Father to complete any course / program ordered by the court, before restoration date 20/12/2021. 5. Father to continue with his ongoing counselling. 6. DCJ NSW TWEED HEADS allow the father to use a nominated Aboriginal Advocate Service, to communicate on his behalf with DCJ office, and all their workers. 7. Father to maintain social behaviour and a non-violent life style, with no police events until 20/12/2022. 8. Father to undertake and complete, any reasonable requests/appointments as directed by the Department, or court ordered. 9. Father to maintain suitable, safe accommodation at all times. 10. Father to allow ongoing appropriate contact with reasonable times/dates, for all family members on both sides, allowing [the child] to share special events such as Christmas, Easter birthdays, mother's day etc. ( Alternating events and family each year to maintain healthy loving relationships and fairness for [the child] and all parties involved.)" 1. The father submits that he can provide a safe, secure, kind, loving environment for the child at his property in Queensland. He submits: "22. The father has no history or charges of violence D/V before, March 2015 or after April 2017 and has had no previous or current child safety concerns with fathers 2 other children aged 10yrs and 6 months. 23. Between 2015 and 2017, the father acknowledges that he has made some poor decisions that have impacted [the child] and this he is deeply regretful and takes full responsibility for his actions. 24. The father has identified his mental health concerns between 2015 and 2017 and took measures to address these concerns in January 2018 with…. to gain a psychiatrist's report and professional treatment plan. 25. The father has continued to follow through with counselling to address these concerns with impulsivity when making decisions in high stress or threatening situations." 1. He relies upon the evidence of his counsellor that she has no safety issues or concerns as to the father's ability as a responsible parent. 2. He submits that he can immerse the child in her Aboriginal culture with all her Aboriginal family, both "Muhti Muhti" (country of origin) and "Bundjalung" (country of birth) and she can grow up and live with her 2 Aboriginal siblings to develop strong childhood bonds to both family and culture that will last a life time. 3. The father continues his criticism of DCJ workers in their handling of the child and her care. He submits that these workers "have given misleading evidence that is inconsistent with, court records, police records, witness statements and actual event." He includes in this the evidence of one DCJ caseworker that the father had called her a "bitch" and similarly that he described two other DCJ employees as bitches, an allegation he denies. 4. He criticises DCJ for allowing the child to be in the mother's care when there was "ongoing, escalating alcohol fuelled D/V and excessive alcohol use" by the mother, and for failing to respond to reports of domestic violence: "• Early 2019 after restoration to the mother, the Manager Casework and Caseworker had a phone call meeting with the mother …. and documented by [another DCJ staff member], that death threats were made to these workers, that the father…. would be shot on two occasions by the mother throughout that phone call. • When the Manager Casework was cross-examined by the father on this point she confirmed this conversation, His Honour respectfully pointed out to the Manager Casework ( that is when he would have removed the child. ) • All 3 DCJ workers failed to report these threats and DV/VIOLENCE to police whilst [the child] was in the mothers care and PR to the Minister. • On the 28th October 2019 DCJ filed a section 90 and filed evidence of this conversation. • 1st November the father reported these death threats to Lismore Police station and gave a statement and evidence of these threats to police and orders were made by Lismore police for [the mother] to be arrested and police file an AVO on the father's behalf. The matter was then transferred to Tweed Heads police …. (female police DV officer). When DCJ workers were asked by [the Officer], both…. (case worker) and …. (case manager at the time) downplayed the incident and said they did not believe that she was serious and they didn't take it as a threat. (Because of these statements from both DCJ workers to police DV officer …., [the mother] was not arrested and no AVO was placed as she was not charged.) • The Manager Casework when cross examined on this subject further stated to the court that she didn't even pick up on the death threats until I raised them. • These actions (or lack of) by DCJ workers have potentially put both myself, my family and [the child's] safety and well-being both mentally and physically at risk, as [the child] was in [the mother] care with PR to the Minister at the time." 1. He then devotes several pages of his submission to a criticism of failures by DCJ to properly investigate various incidents that occurred in 2016 involving interactions with Police at Coolangatta, Tweed Heads and Mudgeeraba: [17]. 2. He goes on to complain of bias by DCJ against him, in favour of the mother, racial and gender discrimination, and a failure to provide him with any assistance, compared to the help and assistance provided to the mother: [18]. 3. The father's submissions detail a sustained attack on the Independent Legal Representative, Ms De Re: "36. … although Miss De Re is bound by no time restrictions, it is the father's belief that Miss De Re with all due respect has left it till the last minute before introducing herself, explaining her role, informing [the child] of proceedings and her rights, and most of all gain [the child's] views and wishes… this has breached [the child's] human rights as a young Indigenous Aboriginal under the UN charter of rights. 37. … if Miss De Re had introduced herself and kept [the child] informed of the proceedings after second removal from [the mother] and section 90 filed by the Department in 2019, [the child] would not have been intimidated by Miss De Re and would understand her role and feel comfortable to express her views and wishes without fear of external pressure and influence by other Parties. 38. Miss De Re said that she would ask her where she wanted to live, and then asked [the child] if the court made orders that she stay with the Wilsons would she be happy. [The child] said yes. If Miss De Re had asked the same question to [the child] about her Father, it's the father's belief that [the child] would have said yes and preferred that option to live with her father and her 2 Aboriginal sisters. 39. … the views and wishes of [the child], filed by Miss De-Re should bear no weight, as it was a loaded question, and did not allow [the child] to share her views and wishes in a comfortable environment with no fear of impact from the Department and her carers. Miss De Re should have introduced herself at the earliest convenience to inform [the child] of her Rights, keep [the child] informed of the proceedings, allow [the child's] input and gain her views and wishes, and direct the court of [the child's] views and wishes. Miss De-Re has clearly breached [the child's] UN human rights as an Aboriginal young person. The court clinician, Dr Munro asked [the child] where she wanted to live and [the child] stated that she wanted to live with her mother and her father. Although this relationship between the father and the mother will not happen and [the mother] is not suitable, the father is suitable and a very viable option for [the child]." 1. The father then detailed further criticisms of the Department and its lawyers. I won't detail all his complaints, but the following gives the flavour of his sense of grievance: "Both the Crown and the Department have perverted the course of justice and have had 3 years to investigate and dismiss all false allegations by the father and allow him to undergo testing and counselling to address their concerns. The father has done extensive counselling, positive parenting course for minors 0-12 and is currently extended this course to also complete 12-18 teenagers course. The father has done a Domestic Violence course, and is in the process of a man's behaviour change course to assist the way he comes across to people and how it could affect them." "Both the Department and the Crown have continually attacked the father's character by holding two events against him for the rest of his life: one incident 6 years ago in March 2015 and another 4 years ago in April 2017. The father has changed his life, has sought professional help and has no violence prior, or after his involvement with [the mother]." "How could the father not be frustrated with the Department's questionable decisions and handling of this case and their constant refusal to enforce [the child's] human and legal rights as an Indigenous young child and a human being to enjoy their Indigenous family, elders and there culture, both country of origin and their country of birth." "… although the father agrees that his tone of voice and facial expressions can be taken as anger it is not his intent. The father has PTSD, BPD, ANXIETY, ADHD. These conditions affect his concentration in long term events such as these proceedings. The father is unrepresented and it is his belief that it is his responsibility to argue his case, just as all other lawyers and Mr Moore do for their clients… The constant attack on the father's character by all parties will, with no doubt, raise his anxiety and heighten his hypervigilance throughout these proceedings." 1. The father is also critical of the Clinician his independent report, and his evidence: "It is the father's submission that no weight should be bared on the clinician's report against the father, as the clinician was given false and misleading information about the father and the facts of events. The court clinician has stated that the father threw [the child] over a fence and was charged with assault against [the child] and sentenced to a served a 9 month prison sentence for this offence. This is completely incorrect and inconsistent with evidence and police records… This false evidence has clearly clouded and influenced the clinician's report, his opinion and the outcome in his report." "The clinician knew who the father's counsellor was and how long she had been treating the father. The clinician chose not to contact [the father's counsellor] to gain her professional opinion as she had a clear view on the father's mental and physical capacity to care for [the child] and meet all requirements as a father. The clinician based his evidence and opinions on misleading, false, and unfounded allegations by both [the mother] and the Department…" 1. In a final statement, the father states his position as follows ([44]): "… The Father is a good guy and a good father that has made some poor decisions over a 2 year period and has changed his life… [the child] should not be punished and sentenced to a 12 year sentence because of a few poor decisions that he has made... When is the Department going to be held responsible for their poor decisions since 2015 when they first started investigating the mother until this date. Both the Department and the Mother have exposed [the child] to a lot more trauma, violence and drug/alcohol abuse than the father has ever done. .. It is the father's submission with all due respect to his Honour, that any decision not to allow a restoration order for [the child] to have the opportunity to live with her Aboriginal family and her Aboriginal siblings would be a miscarriage of justice and a breach of [the child's] human Rights." The submissions of the child's Independent Legal Representative (ILR) 1. The written submissions of the Independent Legal Representative (ILR) were filed late, but I accepted them due to some extreme personal circumstances she experienced. 2. The ILR first set out some procedural history and submissions as to the legal framework. She noted the child's Aboriginality and the requirements of s 13 of the Care Act: "The Court is required to have regard to s 13(4) of the Care Act as one of her parents is not an Aboriginal or Torres Strait Islander. This is not a complete abandonment of the placement hierarchy in s 13(1), but certainly emphasises the choice of permanent placement being a placement in the "best interests" of the child." 1. She goes on to address the factors set out in s 90(6) of the Care Act to be considered in the context of rescission of previous Care orders. In particular, it is submitted that the current placement is secure, stable and safe, but that neither the father or the paternal grandmother would be able to provide an adequate standard of care for the child: "… neither Mr or Mrs Bloom are particularly attuned to [the child] and her emotional and psychological needs…" 1. The ILR submits that perhaps the most important factor for the Court's consideration is the risk to the child of any variation to the current care arrangements, in particular the psychological harm that would cause. She refers to the evidence of the psychologist, Lauren Davis, and of Sonya Melbourne the counsellor assisting the child. 2. The ILR supports the Secretary's permanency planning and opposes restoration, and opposes placement of the child with her paternal grandmother. The issues for determination 1. Before me for determination are two Applications under section 90 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) ("the Care Act"). Leave to proceed has been granted under s 90(2) of the Care Act in respect of each application, and effectively all issues surrounding the child's future are open for review. 2. Both applications seek rescission of the prior Care orders, and that new Care orders be made. The Secretary seeks a finding that there is no realistic possibility of restoration of the child to either parent, and a finding that the permanency planning proposing placement of the child with her current carers, the Wilsons, till the child turns 18, and an Order for the allocation of parental responsibility to the Minister. However, the father seeks restoration of the child to him, and an Order allocating parental responsibility to him, albeit pursuant to a staged restoration over time. The paternal grandmother seeks a finding that the permanency planning has not been appropriately and adequately addressed in the Amended Care Plan filed on 6 July 2020, and an Order directing the Secretary prepare and file a further Care Plan, pursuant to which the child would be placed in her care. She seeks an Order that parental responsibility for the child be allocated to her. Restoration 1. I do not need to dwell in detail on the issue of restoration to the mother as, to her credit, she concedes that there is no realistic possibility of restoration to her, within a reasonable time. 2. I am satisfied, to the requisite standard, that restoration to the mother would pose an unacceptable risk of harm to the child, by reason of her relapse into alcoholism, and ongoing mental health issues. I find that there is no realistic possibility of restoration to the mother at the present time or within a reasonable time. 3. I turn next to the father. 4. I need first to make some observations as to credit. It is my assessment of both parents that they are both unreliable witnesses. The mother's account of events in January 2016 when, she alleges, he locked her up for a number of days and sexually assaulted her, has clearly been discredited as to the substance of the episode. Ultimately, even the investigating Police did not believe her. Something may have happened, as it seems strange that if the mother jumped from a first floor balcony and hid in bushes, as she alleges, one would wonder why she did that. But we will never know the full and accurate extent of those events, as the only witnesses are the mother and the father. 5. Likewise, the father's denial of his violent history, and the multiple discrepancies in his versions of various events, in particular the events on 18 March 2015 when he is alleged to have assaulted the mother's friend, and the episode on 3 April 2017 when the father was involved in the episode in which he took the child from the mother's home, are clearly tailored to suit his version of what occurred. 6. His assertions that he was the victim of violence by the mother, and only ever acted against her to protect himself or the child, are untrue. His claim, made on many occasions, to be in fear of the mother is palpably implausible. The father's capacity to dissemble and minimise in relation to events was manifest. 7. The result is that in assessing the evidence of the mother and father, I have sought to rely on other extrinsic evidence, preferably contemporaneous or written accounts or records such as Police records, or medical and hospital records. 8. It was submitted that I should reject the mother's allegations of physical and emotional abuse perpetrated by the father. That proposition is in my view tendentious and disingenuous. 9. The protracted period over which the allegations endured, and the specificity and detail involved make them entirely credible. The explanation for her lying in the past, but telling the truth now, is not supported by any expert evidence and is implausible. Her original allegations, on the other hand, are consistent and believable, and in some instances corroborated: by Police records and independent witnesses. 10. I am satisfied, to the requisite standard of proof, that the father was guilty of the matters involving emotional abuse and physical violence alleged against him by the mother. 11. In particular, I accept the version of events on 3 April 2017 as set out in the Police records. I find that what in fact occurred on that day was that the father arrived at the mother's home, unannounced, and late for a scheduled contact visit that the mother had cancelled due to the father's instability as evidenced by his texts. He entered the home without permission and proceeded to abduct the child. Instead of waiting for the mother's imminent arrival back home, he went off with the child, at times carrying her forcibly. When challenged upon the mother's arrival, rather than stopping to have a conversation with her, he ran down a drive, and negotiated some walls involving a considerable height, manhandling the child over those obstacles, causing her to be injured. The proposition that he ran away with the child by reason of physical fear of the mother is absurd and preposterous. The child was terrified throughout the ordeal. 12. The incident was horrific. But what is worse is that till this day the father fails to understand or acknowledge the lasting impact of the episode on the child, and his continuing attempts to justify his actions and minimise his conduct. 13. The effect of that finding, of itself, is to render the father an unreliable witness, and a perpetrator with a propensity to conceal the truth. This makes him someone who poses an unacceptable risk of harm so far as the future stability, security and safety of his daughter is concerned, were she to be restored to his care. 14. That of itself would in my view be decisive of his application for rescission. But there is more. There is other, independent opinion as to the father's unsuitability to care for this child. That includes the caseworkers and the independent clinician. Dr Munro's succinct assessment of the father was: "The Father presents himself as the alternate carer of the child but according to DoCJ reports and the AC's observations does not accept any culpability on his part for [the child's] removal and has limited understanding of the impact of his mental health, drug and alcohol issues and history of violence may have had on the child". 1. I have discussed the Clinician and his evidence above. I thought he was a thoughtful, objective and reliable witness. The father sought to suggest that his opinion was unreliable as it was based on misinformation. This proposition has not been borne out. 2. Finally, the father clearly has unresolved medical issues. These continue to be unsatisfactorily addressed. The reliability of his counsellor was demonstrated to be entirely lacking, as she was misled as to critical aspects of the father's propensity for violence, and clearly had no appreciation of the full circumstances of the father's history. 3. It is abundantly clear to me that restoration of this child to her father would give rise to an unacceptable risk of harm, incapable of amelioration over time, certainly not within a reasonable time, but probably never. 4. I am satisfied, therefore, having regard to the circumstances of the child and a consideration of the evidence that the father is not likely to be able to satisfactorily address the issues that led to the removal of the child, that there is no realistic possibility of restoration of her being restored to the father. 5. I therefore accept the assessment of the Secretary that there is no realistic possibility of restoration of the children being restored to the parents within a reasonable time: s 83(5) of the Care Act. Rescission of the previous final care orders 1. Leave under s 90(2) of the Care Act having been granted, the issue for the Court now is therefore, whether the previous Care orders should be varied or rescinded: s 90(6). In making this determination the Court is required have regard to the matters set out in s 90(6). I have given consideration to each: 1. The age of each child: this is often a relevant and persuasive factor, particularly with older children or young persons, but I do not consider it significant in the circumstances of the present case. 2. The wishes of the child and the weight to be given to those wishes: Again, in considering whether or not to rescind the previous Care orders, the child's wishes are not of significance. 3. The length of time the children have been in the care of the present caregivers: this is a factor of some weight in this case. 4. The strength of the child's attachments to the birth parents and the present caregivers: I have considered the question of attachment, but given my views as to restoration, this is not a factor that should militate against rescission. 5. The capacity of the birth parents to provide an adequate standard of care for the children: I have dealt with this issue above. 6. The risk to the children of psychological harm if the present care arrangements are varied or rescinded: I am satisfied that for the reasons given that more probably than not, restoration poses an unacceptable risk of psychological harm to this child. 1. For all the reasons articulated, I am satisfied that the previous Care orders should be rescinded: s 90(6). Permanency planning 1. Having rescinded the previous Care orders, I now turn to consider what orders are now required to be made: s 90(7)(b). 2. The issue that arises for determination is whether to approve the permanency planning proposed by the Secretary, which involves leaving the child in the care of her present carers, the Wilsons, or whether to reject the permanency planning and call for a new Care Plan the provides for a transfer of the child's care to the paternal grandmother, and if so, whether to allocate parental responsibility to her. 3. The first question that arises is whether the Secretary's proposed planning complies, as a matter of law, with the Aboriginal and Torres Strait Islander principles as set out in s 11, s 12 and s 13 of the Care Act, in particular the general order for placement under s 13(1). 4. Yes, placement with the Wilsons is clearly in conformity with s 13(1)(a) as the Wilsons are part of the child's extended family or kinship group, being cousins of the child, and Aboriginal in their own right. There is no rule or principle that the placement needs to be with the closest member in the family or kinship group. 5. So the issue of the better placement, with the Wilsons or the paternal grandmother, falls to be determined by reference to the paramount principle in s 9(1) of the Care Act, that is, the safety, welfare and well-being of the child being the paramount consideration. In this case, several of the principles under s 9(2) of the Care Act also need to be considered, including the views of the child; culture, and religion; the preservation of identity, language, cultural and religious ties; the principle of least intrusive intervention; the age of the child, and the need for an early decision; and the retention by the child of relationships significant to her, including her birth parents, siblings, and extended family. 6. Of all these principles, perhaps the most important is the principle of least intrusive intervention: s 9(2)(c). As the Secretary points out, the child is settled in her current placement; it is meeting her needs, and avoids the need for upheaval and change, including a different school. 7. The expert psychologist, Ms Lauren Davis, expressed the view: "[The child] is a young child with a history of complex trauma and attachment disruption. She is attending school full time, has friendships to develop and maintain and requires the vast majority of her time to be spent in a consistent, familiar and safe environment (i. e. the environment of her primary caregiver/s) where she can participate in family routines and rituals, have down time and engage in schooling and cultural activities with her primary carer/s. It is my view that this should be the primary focus for [the child], while balancing the need to ensure that connection with her other family members is maintained and supported." 1. Also important are the views of the child, having regard to her developmental capacity and the circumstances: s 9(2)(a). 2. The views of the child were the subject of much debate and contention in these proceedings 3. The ILR, in accordance with her responsibilities, sought to ascertain the child's wishes as to where she would prefer to live. She prepared a Views and Wishes Statement dated 24 July 2020, which was filed and tendered in evidence, over objection (Exhibit 2). The father and paternal grandmother were so incensed by this Statement that they went so far as to call for the Court to revoke the appointment of the ILR and dismiss her. 4. There was evidence of many other efforts to glean from the child her views, but it seemed to me these were all tainted by the particular viewpoint of the protagonist concerned, interpreting the child's statements to conform with their own desires. 5. As recently as 22 February 2021, in an unsolicited set of further written submissions, the paternal grandmother wrote: "During the PGM's contact visit with [the child] on 20/02/21, [the child] disclosed to the PGM that 'Mummy is mean. She told me she has sold all my toys and bunks and all of my things because she has no room. I've lost all of my memories. Mummy said I will never live with Mummy and I will live with my Aunty and Uncle.' As was previously said in Court, [the child] reiterated "Mama I want to live with all of my family, I am sick of them splitted up." (Not new evidence) This clearly shows the Court that [the child] is deeply impacted by being separated from her family. This was not an issue while [the child] was placed with the PGM as [the child] was involved with her whole family. I do not know the Court process, but respectfully ask that the ILR interviews [the child] not by Zoom and out of the presence of the Wilsons to confirm this conversation took place." 1. It would be inimical to re-open the hearing at this stage, especially if it involved subjecting the child to a further interview on this topic. 2. I listened carefully for the voice of the child in this case, as I do in all Care cases. Often the child's voice is misrepresented or misinterpreted or poisoned by the adults concerned. In the present case, two things clearly emerged. This child's primary wish is to be with her mother. Failing that, secondly, is her adamant desire not to offend anyone by providing an express view of where she wants to live. She told the ILR: "I don't want to talk about it. Everyone keeps saying that they want me to live with them. They keep telling me to say that I should live with them and I don't like being asked": Paragraph [5] of the Views and Wishes Statement (Exhibit 2). 1. I believe the child's true views finally emerged during her interview with the expert psychologist, Ms Lauren Davis, on 29 October 2020, as set out in paragraph [9], which I have set out in full above. 2. In particular, at paragraph [9.7], the psychologist said: "[The child] stated that it is her wish for her family to be together and not "splitted". Rather than questioning [the child] directly about who she wants to live with, which I viewed as being developmentally and situationally inappropriate, she was asked indirectly to offer her thoughts on whether the people who were making decisions about where she should live were doing a good job and doing the right thing for her. She identified [her caseworker] as being the decision maker with regard to where she lives and stated that she feels she is doing a good job with her decisions. She did not describe a preference for any changes to be made." 1. In my assessment, the child clearly prefers to remain in the ongoing care of the Wilsons if she can't live with her mother. 2. As the Secretary submitted, support for Ms Davis' opinion can be found in paragraph [14] of the Exhibit 2, the Views and Wishes Statement, when the child said: "It definitely makes me sad. Ma Ma says "Why don't you send me emoji's? Why don't you love me anymore? I tell her I am busy doing things like homework, gardening, jobs. It doesn't mean I don't love her. Why doesn't she understand? Why does she say I don't love her anymore? That makes me really sad and upset?" 1. I am satisfied to the requisite degree, and find, that the child's true wish is to remain with the Wilsons and not to be placed back with her paternal grandmother. 2. The other factors set out in s 9(2) of the Care Act that require to be considered are in my view subsidiary, and subservient to the overriding paramountcy principle in s 9 (1). Nevertheless, I will make some comments about some of those matters below. 3. I turn therefore to determine the issue of the preferred placement for the child on the basis that there can be no restoration to a parent. 4. In my view, this issue falls to be determined by the expert evidence. I have before me the carefully reasoned, thorough and thoughtful report of the expert psychologist, Ms Lauren Davis. She sets out in her report the reasons for her view, that it is better that the child remain with her current carers, the Wilsons, in preference to disturbing that placement and placing her back with her paternal grandmother. Those reasons are set out above in these reasons and I don't need to repeat them here other than to say I found them compelling. 5. The report of Ms Davis was heavily criticised by the paternal grandmother and the father, and she was extensively cross-examined about her views. However, she remained steady in those views, and in my view, the attacks on her views lacked merit. I accept the views of Ms Davis unreservedly and rely on them to form my view. 6. I also take into account the views of the child's therapist. For example, in her report of 26 October 2020 she said: "[The child] appears to be overly reliant on placating and appeasing behaviours when in unfamiliar situations. [The child's] reported and observed presentation appears consistent with a history of past difficulties and trauma" "It is likely that Louise and Stephen Wilson's provision of appropriate, loving and responsible care of [the child] is a key protective factor and may be the most significant contributing factor to [the child's] improved functioning over the past several months. [The child] has indicated on several occasions that she feels safe and loved in her current environment. Maintaining consistency and continuity of her current care is appropriate, and highly likely to have a significant positive effect on her continued wellbeing and the continued development of heathy attachment patterns that have both short – and long-term effects." 1. For these reasons, I find that the child's best interests will be served by her remaining in the care of the Wilsons, and that her care should not be transferred to her paternal grandmother. 2. I am satisfied, therefore, that the permanency planning for the child, as set out in the Amended Care Plan filed on 6 July 2020, has been appropriately and adequately addressed by the Secretary. Other issues 1. There are several other issues that I need to address. 2. As to future contact, the Minister will have parental responsibility, and as such will have all the say as to when, how, how often and with whom the child should have contact. The evidence tells me that the organisation and conduct of contact have been attended by ongoing conflict and disagreement. 3. I was not asked to make any specific orders for contact, under s 86 or otherwise. It seems to me, however, having regard to the acrimony evident in this case, and the history of disclosures made by the child, that contact be supervised at least until the adults in the matter start to behave in a more conciliatory and collaborative manner, in the interests of the child. 4. The next matter I want to refer to is the denigration of the caseworkers in this matter by the protagonists, particularly the father, and to some extent by the paternal grandmother and her legal representative. As I said in DFaCS re Day [2012] NSWChC 14: "60. Mr Day was also critical of RA. It was asserted, for example, that her assessment of Mr Day is of limited value because of the restricted and one-sided nature of the material provided to her by the Department, and her limited knowledge of him. 61. Mr Day's strongest disapprobation, however, was reserved for the caseworker, Ms B. The solicitor appearing for Mr Day levelled accusations of bias, devious and egregious behaviour, and unbalanced, even unprofessional, conduct on the part of Ms B. She was accused, for example, of disliking Mr Day, and allowing that dislike to inappropriately influence her decision-making. 62. These submissions were totally unfounded, were unnecessary and eristic. As I commented to the solicitor for Mr Day during his oral submissions, on my view of the evidence Ms B had done nothing in her administration of the Day children other than what she sincerely believed appropriate and otherwise in their best interests. The criticism of her was misconceived and inappropriate. The solicitor, however, pursued his submissions undeterred. It was not clear to me whether the solicitor launched and persisted with his attack on specific instructions, or on his own initiative, but it emanated as a shallow and hollow echo of his client's sense of resentment, anger and frustration, further considerations, I would have thought, in the assessment of and balancing of the risk/benefit equation surrounding any placement with Mr Day. 63. I have dwelt on this aspect, both to restore the integrity of the officer concerned and as a general message to practitioners in the Children's Court that ill-founded and unjustified criticism of departmental officers in Care & Protection matters is not the soundest form of advocacy, and is to be expressly discouraged." 1. Sadly, I encountered similar problems in this case. The caseworkers were subjected to egregious behaviour on the part of the father and the paternal grandmother, which the solicitor for the maternal grandmother echoed in what I regard as a less than professional manner. 2. The father and the paternal grandmother became the subject of the Departmental Client Context Risk Management (CCRM) Tool in which the history of the father's violence and psychological issues were noted, and: "Mr and Mrs Bloom's behaviour becomes heightened when they do not get their own way". The father, in particular, was consistently rude and difficult to deal with, and it was alleged he once said to a DCJ caseworker, "You're a bitch, [another caseworker] is a bitch and [the manager casework] is an even bigger bitch". 1. The Department put in place a number of risk management strategies, including: "There is little likelihood that Mr Bloom will attend the CSC but if he does he should be spoken to in the secure room. His behaviour is intimidating and he has previously harassed staff with ongoing phone calls and saying inappropriate things and giving directions to staff members… Attempt to de-escalate the client's behaviour – if not effective, cease interaction…" 1. The Secretary's written submissions also complain that the father recorded conversations with caseworkers, even after they objected to him doing so: "The Secretary's officers object to their conversations being recorded. The father ignores their objections. The father argues that he can record the conversation under Queensland Law… Recording conversations over objection with Caseworkers should be discouraged." 1. I was referred to a decision of Justice Rees in Rathswohl v Court [2020] NSWSC 1490. It seems to me that the Secretary may need to consider the need to record conversations between caseworkers and clients who have become the subject of the Client Context Risk Management (CCRM) Tool. 2. Criticism of the caseworkers has spilled over into the written submissions, and even extended to include the Independent Legal Representative, Ms De Re, and counsel for the Department, Mr Moore. 3. It is my observation that the caseworkers in this matter have in my view acted at all times in what they believed to be the best interests of the child, and all decisions made as to her safety, welfare and well-being have been taken carefully and cautiously, and where appropriate on the advice of the professionals involved in the child's care. 4. The attacks on Ms De Re were outrageous. She is the court-appointed legal representative of the child (the ILR). 5. In my observation the ILR discharged her duties assiduously, objectively and professionally throughout. (Although she was late with her written submissions, it is clear that this was due to some extreme personal circumstances). For the solicitor acting for the paternal grandmother to participate in those attacks was in my view discourteous to say the least. 6. Religion raised its head as an ugly issue in these proceedings, with criticisms of the religion of the Wilsons, who are Jehovah's Witnesses, being levelled. The evidence before me suggests that the Wilsons are tolerant of the child's religious background and have taken all reasonable steps to enable the child to stay connected with the religious beliefs of her birth family. 7. The paternal grandmother submitted that she is better placed to immerse the child in her Aboriginal culture and identity. I accept that proposition but say two things: first, it is not a factor that outweighs the other factors that militate against placement with the paternal grandmother. Second, I am satisfied that the Wilsons are sufficiently attuned to the cultural issues and will take all appropriate steps to immerse the child into her Aboriginal heritage and culture, including the facilitation of visits and her attendance at appropriate events for that purpose. 8. There was an incident that involved Mr Wilson on one occasion observing the child in the bath. This matter was investigated, and any suggestion of sinister connotations arising from that episode was dispelled. It is not a factor in these proceedings of which any account needs to be taken. 9. There was much made of the disclosure by the child of unauthorised sleepovers by the father at the home of the paternal grandmother, prior to the attempted restoration of the child to her mother. That issue is not dispositive of the issue in this case as I have preferred the placement of the child with the Wilsons for other reasons. I did, however, find it somewhat inimical for the paternal grandmother to describe the disclosure as a "fantasy" on the part of the child. The disclosures were investigated, and despite criticism of the extent of the investigation, it is hard to see what else could be done. 10. There were however, some corroborative features in the surrounding circumstances that tended to support the veracity of the disclosure about unsupervised contact with the father allowed by the paternal grandmother. These are set out in the written submissions. In my view, the proper approach is to categorise the risk posed in the way the High Court stated in M v M [1988] HCA 68: "No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made.... There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that …abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that …abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so." 1. In the present case, it cannot be said that the allegation of unauthorised sleepovers is groundless. And there is sufficient in the disclosure for the Court to be mindful of the risk. When that is combined with Dr Munro's reticence as to the capacity of the paternal grandmother to safely protect the child from the father, it raises alarm bells, and in my view, the Department was correct to take the action it did. The real question is, whether the paternal grandmother is strong enough to resist the father, for example if he were to embark upon another rampage such as the episode on 3 April 2017, when he abducted the child from the mother's home. The risk of her inability to do so is in my view more real than imaginary. Disposition 1. In reaching my decision in these proceedings I have taken account of the provisions of the United Nations Convention on the Rights of the Child 1989 (CROC) see Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89 at 264] - [268]. 2. References were made in the written submissions to CROC and to the United Nations Declaration on the Rights of Indigenous Peoples, but it was not apparent that that there was some different requirement, some additional principle, or some gloss that required the Court to have particular regard to in determining this case, such that I was required to go beyond the Care Act and the case law interpreting that Act and the relevant provisions, or in the consideration of the issue to be decided. 3. In making my findings and drawing my conclusions, I have drawn from material that is in my assessment satisfactory in the probative sense, so as to avoid decision-making that might appear capricious, arbitrary or without foundational material: JL v Secretary, Department of family and Community Services [2015] NSWCA 88 at [148], and I have had regard to the requirement that the Secretary prove his case on the balance of probabilities: s 93(4) of the Care Act. In that regard I have also taken into account the principles set out in the High Court decision in Briginshaw v Briginshaw [1938] HCA 34 in determining whether the burden of proof, on the balance of probabilities, has been achieved: Director-General of Department of Community Services; Re "Sophie" [2008] NSWCA 250. 4. I have also had regard to the provisions of s 9(2), and to ss 11 -13 of the Care Act. 5. For all these reasons, I dismiss the father's Application for rescission or variation of the previous final Care orders. 6. I allow the Secretary's application under s 90 and revoke all previous Care orders. I find that there is no realistic possibility of restoration of the child to either parent within a reasonable time. I find that the permanency planning for the child is appropriate and adequate. 7. I make final Care orders allocating parental responsibility for the child to the Minister until the age of 18. I make an order for the provision by the Secretary of a report pursuant to s 82 of the Care Act within 6 months. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 August 2021