District Court New South Wales Medium Neutral Citation: Y v The Secretary, Department of Communities and Justice (No 6) [2021] NSWDC 392 Hearing dates: 26, 27, 28, 29, 30 October 2020; 2, 3, 4, 5, 6, 13 November; 2, 10, 15, 18 December 2020; 11 January; 5, 9, 18 February; 19, 31 March; 9 April; 24, 25, 26, 27, 28 May; 1, 2, 3, 4, 7, 9, 10, 11 June; 2 and 16 July 2021 Date of orders: 13 August 2021 Decision date: 13 August 2021 Jurisdiction: Civil Before: Judge Levy SC Decision: See paragraph [955] for orders. Catchwords: CHILD CARE APPEAL – re-hearing of Children's Court proceedings pursuant to s 91 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) – self-represented appellant father sought restoration of his child into his parental care following removal on account of his violent injurious behaviour – bizarre litigation conduct by appellant – finding of parental unfitness – appeal dismissed – orders of the Children's Court confirmed; PRACTICE & PROCEDURE – disrespectful behaviour of appellant in Court – referral of the papers to the Attorney-General for consideration of appellant's disrespectful behaviour in Court: s 200A of the District Court Act 1973 (NSW); COSTS – application by the Secretary, Department of Communities and Justice for substantial compensatory costs against the appellant pursuant to s 88 of the Children and Young Persons (Care and Protection) Act 1998 claiming exceptional circumstances – separate determination of that question is required after hearing the parties Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW), s 9, s 65, s 71, s 88, s 91, s 93, s 94, s 96, s 99, s 105 Civil Procedure Act 2005 (NSW), s 56, s 57, s 58 Court Security Act 2005 (NSW), s 9 Crimes Act 1900 (NSW), s 59 Crimes Administration of Sentence Act 1999 (NSW), s 82A Crimes (Domestic and Personal Violence) Act 2007 (NSW) District Court Act 1973 (NSW), s 200A Practice Note DC (Civil) No. 5 Uniform Civil Procedure Rules 2005, r 12.1 Cases Cited: Angel v Hawkesbury Council [2008] NSWCA 130 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Blacktown City Council v Hocking [2008] NSWCA 144 Bradshaw v McEwans Pty Ltd (1952, unreported) (1951) 217 ALR 1 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Colt Children [2013] NSWChC 5 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Fox v Percy [2003] HCA 22; 214 CLR 118 Goode v Angland [2017] NSWCA 311 Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235 HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 Johnson v Page [2007] Fam CA 1235 Jones v The Queen (1997) 191 CLR 439 Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19 M v M [1988] HCA 68; (1988)166 CLR 69 Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48 Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 Paric v John Holland Constructions Pty Ltd [1985] HCA 58 Polsen v Harrison [2021] NSWCA 23 Re Henry; JL v Secretary, Dept of Family and Community Services [2015] NSWCA 89 Re Kerry (No 2) [2012] NSWCA 127 State Authority of NSW v Earthline Constructions Pty Ltd (In liq) (1999) 73 ALJR 306 The Secretary of the Dept of Communities and Justice and Fiona Farmer [2019] NSWChC 5 Twynam Agricultural Group Pty Ltd v Williams [2012] NSWCA 326 Warren v Gittoes [2009] NSWCA 24 Y v The Secretary, Department of Communities and Justice [2020] NSWDC 674 Y v The Secretary, Department of Communities and Justice (No 2) [2020] NSWDC 762 Y v The Secretary, Department of Communities and Justice (No 3) [2021] NSWDC 19 Y v The Secretary, Department of Communities and Justice (No 4) [2021] NSWDC 81 Y v The Secretary, Department of Communities and Justice (No 5) [2021] NSWDC 117 Yarrabee Coal Company Pty Ltd & Anor v Lujans [2009] NSWCA 85 Category: Principal judgment Parties: Y (Appellant father in person) The Secretary, Department of Communities & Justice (First respondent) M (Second respondent mother) Representation: Counsel: Appellant in person Mr M Anderson (First respondent) No appearance for the second respondent mother M Ms N Adams, Solicitor (Independent Legal Representative of the child the subject of the appeal to December 2020) Mrs D Clark, Solicitor (Direct Legal Representative of the child from December 2020) Solicitors: The Crown Solicitor (First respondent) Ms N Adams, Solicitor (Independent Legal Representative of the child the subject of the appeal to December 2020) Mrs D Clark, Solicitor (Direct Legal Representative of the child from December 2020) File Number(s): 2020/30525 Publication restriction: Non-publication order imposing restriction on publication of names and identifying details other than litigation pseudonyms: s 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) Judgment Table of Contents STRUCTURE OF THESE REASONS [1] – [4] PART A – Introduction, Issues, Summary of Outcome [5] – [56] Non-publication order [6] Nature and tone of the appeal and some difficulties that arose [7] – [48] Issues for determination in the appeal [49] Summary identifying the outcome of the appeal [50] – [56] PART B – Review and Consideration of Relevant Topics [57] – [544] Topics reviewed in these reasons [58] (1) Dramatis personae [59] – [61] (2) Method for transcript references [62] – [67] (3) Interlocutory decisions and listing days [68] – [81] (4) Documentary material for consideration [82] – [87] (5) Serial applications for judicial recusal [88] (6) The child's family history [89] – [97] (7) Factual basis for removal of the child [98] – [118] (8) Investigation and documentation of the child's injuries [119] – [137] (9) Contemporaneous photographs of the child's injuries [138] – [145] (10) Child's evidence of being assaulted by her father [146] – [158] (11) Evidence relied upon by appellant as exculpatory [159] – [207] (12) Appellant's conviction for assaulting his daughter [208] – [225] (13) Foster care arrangements following the child's removal [226] – [236] (14) Procedural history of the Children's Court proceedings [237] – [243] (15) Reasons for decision of the Children's Court [244] – [260] (16) Orders sought by the appellant [261] (17) Appellant's conduct of his appeal [262] – [276] (18) The appellant's disrespectful and disruptive behaviour [277] – [292] (19) Threats made in Court by the appellant [293] – [310] (20) Procedural delays due to appellant's litigation conduct [311] – [320] (21) Concern over impermissible recording of proceedings [321] – [330] (22) Effect of the proceedings on the child [331] – [340] (23) Pre-October 2020 procedural history [341] – [351] (24) Post-October 2020 procedural history [352] – [481] (25) Appellant's unsuccessful attempt to discontinue [482] – [488] (26) Appellant's last appearance in Court on 7 June 2021 [489] – [498] (27) Call from the appellant on 8 June 2021 [499] (28) Appellant's apparent unwellness on 9 June 2021 [500] – [510] (29) Appellant's continuing absence after 7 June 2021 [511] – [516] (30) Receipt of submissions in appellant's absence [517] – [532] (31) Appellant's email sent on 16 July 2021 [533] – [544] PART C – Evidence Review [545] – [812] Summary of evidence review [548] Evidence of Ms Alicia Pigot – in the appeal [549] – [553] Evidence of Ms Natalie Elder – in the Children's Court [554] – [566] Evidence of Dr Chloe Fletcher-Watson – in both proceedings [567] – [583] Evidence of Dr Adam Buckmaster – in the Children's Court [584] – [587] Evidence of Mr Sanjeev Chikara – in the appeal [588] – [594] Evidence of Mrs Melissa Currie – in the appeal [595] – [614] Evidence of Mr Simon Steward – in the Children's Court [615] – [628] Evidence of Mrs Rachana Gautman – in the Children's Court [629] – [633] Evidence of Ms Louise Murphy – in the Children's Court [634] – [641] Evidence of Mrs Barbara Power – in the Children's Court [642] – [666] Evidence of Mrs Debra Grigg – in the Children's Court [667] – [673] Evidence of Ms Rebecca James – in the appeal [674] – [681] Evidence of Ms Lauren Grant – in the appeal [682] – [693] Evidence of Ms Robyn Patience – in the appeal [694] – [697] Evidence of Mr Paul Witzerman – in the appeal [698] – [710] Evidence of Mr Charlie Gangemi – in the appeal [711] – [714] Evidence of Dr Damon Shorter – in the appeal [715] – [716] Evidence of the appellant – in both proceedings [717] – [791] Evidence of the mother – in the Children's Court [792] – [805] Evidence of the mother's new partner – in the Children's Court [806] – [812] PART D – Submissions of the parties [813] – [830] Submissions on behalf of the Secretary [814] Submissions by the child's DLR [815] – [817] Appellant's failure to make submissions [818] – [830] PART E – Consideration of Issues for Determination [831] – [952] Consideration of Issue 1 – Abandonment of the appeal [832] – [845] Consideration of Issue 2 – Findings in protective proceedings [846] Consideration of Issue 3 – Establishment finding [847] – [872] Consideration of Issue 4 – Weight of the child's wishes [873] – [892] Consideration of Issue 5 – Restoration [893] – [908] Consideration of Issue 6 – Amended care plan [909] – [919] Consideration of Issue 7 – Costs [920] – [922] Consideration of Issue 8 – Disrespectful behaviour in Court [923] – [925] A belated issue raised by the appellant's email dated 12 August 2021 [926] – [952] PART F – Disposition and Orders [953] – [955] Disposition [954] Orders [955] STRUCTURE OF THESE REASONS 1. On 16 July 2021 judgment was reserved in this long-running child care appeal. These reasons for decision are delivered in detail to record the outcome with relative urgency. 2. The urgency arises because the mental health of the subject child has been adversely affected by continuing uncertainty over the outcome of the proceedings. The background circumstances are that the child was taken into protective care following injuries inflicted upon her by the appellant father in the course of his unacceptable violent behaviour towards her. 3. In these proceedings the appellant's dilatory, unhelpfully combative, provocative, at times bizarre, and later, avoidant litigation conduct, has resulted in unnecessary prolongation of the proceedings. This has had a harmful effect on the mental health of his child. In ordinary circumstances, absent the urgency for declaring the outcome, further time would have enabled the delivery of shorter reasons for decision. 4. Although the essential issues calling for decision in this case are within relatively narrow confines, the compendious materials that required consideration necessitated a structured approach to deal with the detail and the issues involved, as identified below. PART A : Introduction; non-publication order; nature and tone of the appellant's conduct of the appeal and some difficulties that have arisen; transcript reference system; issues for determination; summary identifying the outcome of the appeal: See paragraphs [5] to [56] below. PART B : An extensive series of 31 identified topics of relevance are reviewed in these reasons, ranging from the dramatis personae, interlocutory decisions, documentary evidence, the appellant's applications for judicial recusal, factual evidence concerning the child's removal from the appellant's care, the appellant's explanatory evidence said to be of exculpatory import, and to the various procedural courses that the proceedings have taken: See paragraphs [57] to [544] below. PART C : Evidence overview and summaries of the relevant oral and documentary evidence: See paragraphs [545] to [812] below. PART D : Submissions: See paragraphs [813] to [830] below. PART E : Consideration and determination of the issues calling for decision: See paragraphs [831] to [952] below. PART F : Disposition, and orders: See paragraphs [953] to [955] below. APPENDICES : Appendix A – Transcript references to the appellant's disrespectful remarks to the Court. Appendix B – Redacted extract of transcript evidencing an aspect of the appellant's bizarre litigation conduct. PART A - INTRODUCTION, ISSUES, SUMMARY OF OUTCOME 1. Before identifying the issues calling for decision, and before identifying in summary form the outcome on those issues, it is appropriate to say something about the nature and the tone of the appellant's conduct of the appeal, and some consequential difficulties that have arisen in the course of the proceedings due to that conduct, which unfortunately set the tone for the proceedings. Non-publication order in child care appeal proceedings 1. A non-publication order has been made and remains in place pursuant to s 105 of the Children and Young Persons (Care and Protection) Act 1998 ("the Care Act"), prohibiting the publication of the name of the child the subject of this child care appeal. That order also prohibits the publication of any information or details of any other parties, witnesses or persons named in evidence, that would tend to identify the child. Nature and tone of the appeal and some difficulties that arose 1. The appealed decision of the Children's Court refused to restore to the self-represented appellant father the parental responsibility for his daughter. She was removed from his parental care following receipt of a mandatory child protection report. An ensuing investigation revealed that the appellant posed a risk of serious harm to the child, including in light of his history of violent and injurious behaviour towards her. 2. The appeal is brought as of right pursuant to s 91 of the Care Act. In this Court, as in the Children's Court, the appellant has chosen to represent himself, with shambolic consequences. 3. During the hearing of the appeal, the appellant sought to convey the impression he was an experienced litigant, stating that he has appeared before some 20 judges in many jurisdictions: Transcript, 9 April 2021: T18.39. 4. Notwithstanding that impression, at times the appellant's courtroom behaviour involved inappropriately disruptive and disrespectful elements. That conduct has unfortunately had an adverse impact on what should have otherwise been the smooth and more timely progress of the appeal. 5. In the course of the proceedings the appellant angrily expressed a vehement antipathy and disdain for lawyers. In that vein, with considerable grandiosity, he saw fit to make it clear to the Court that he despises the legal profession. In addressing the Court, he expressed those sentiments in the following terms: "… with people of your profession. I despise – I deal with the cockroaches and lawyers in the same fashion. And to come to this kind of setting with self-serving people around, who act in their interests rather than the child's interests, that is not in the best interest of the child." [Transcript, 15 December 2020, T376.38 – T376.41] 1. The appellant stated that although in the past he had sought legal assistance for these proceedings, ultimately he decided to represent himself. He stated that he has no faith in lawyers, and found the cost of engaging lawyers was significant, and unaffordable for him: Transcript, 27 October 2020: T11.4. 2. The appellant stated that he had consulted two lawyers for advice on procedural matters concerning this appeal: Transcript 9 April 2021: T10.35; Transcript, 24 May 2021: T30.34 – T30.37. The effect of those consultations appears not to have beneficially advanced his presentation of his litigation. Regrettably, he has remained self-represented. 3. In the course of the proceedings, where the appellant's parental fitness was a central question in issue, remarkably, he proffered many gratuitously abusive, disparaging and disrespectful remarks to the Court. Those comments were often made in a terse manner. That behaviour also extended to him making threatening remarks. 4. It is appropriate to record the appellant's disrespectful remarks to the Court. Transcript references to his disrespectful remarks to the Court, over 100 of them, which varied in egregiousness, appear in Appendix A to these reasons. 5. Initially, when the appellant's disrespectful remarks emerged, he was told those remarks would be overlooked because it appeared that he was emotionally upset. Therefore, initially, a benign view was taken in the interests of focussing on the true issues in the case. However, at times those remarks escalated and continued defiantly, even after the appellant had been informed of the terms of s 200A of the District Court Act 1973 (NSW), concerning the potential consequences of disrespectful behaviour in Court. 6. Although the appellant demeaned himself by arrogantly maintaining an attitude of challenge and ridicule in his remarks to the Court, these proceedings stand to be decided on a consideration of the content of the evidence tendered, in conjunction with a consideration of relevant evidence that remains starkly absent, rather being based on the appellant's unhelpful courtroom conduct and demeanour. That said, the appellant has not at all assisted the process by that behaviour. 7. Regrettably, as a consequence of the appellant's self-representation, he has conducted his appeal with considerable time-wasting prolixity and incompetence, the latter description being a term he has frequently invoked in the course of the proceedings when seeking to deprecate and criticise the conduct of others, according to his perceptions. 8. The appeal is a re-hearing of the Children's Court proceedings. The appeal must be considered in the legislative context that all decisions made pursuant to the Care Act must be subject to the principle that 'the safety, welfare and well-being of the child or young person are paramount": s 9(1) of the Care Act; Re Kerry (No 2) [2012] NSWCA 127, at [29]. 9. The nature of the appeal provided scope for the appellant to adduce fresh evidence in addition to what was considered in the Children's Court, if he chose to take that course. 10. Therefore, it was initially puzzling that the appellant had never complied with successive case management orders requiring him in a timely manner to file and serve detailed affidavit evidence setting out the substance of the factual evidence upon which he intended to rely in support of his appeal, and in particular, details of any intended evidence of his own in the appeal, as was required by Practice Note DC (Civil) No. 5. 11. In this Court, pre-hearing case management orders were made for the appellant to file and serve affidavit evidence in support of his appeal, but he did not comply with those orders, which were made on 23 March 2020, 12 May 2020, 2 June 2020 and 14 August 2020. 12. Similar orders to the same effect were subsequently made after the hearing of the appeal had commenced, namely, on 2 December 2020, 11 January 2021, 5 February 2021, 31 March 2021 and 9 April 2021. The appellant did not comply with those orders. 13. Significantly, in the Children's Court proceedings, the appellant had also failed to file and serve his evidence in those proceedings in a timely manner. In that Court he was required to do so by 8 April 2019, and instead, he filed some of that material on 17 May 2019, which led to him receiving a rebuke from the Children's Court Magistrate for his dilatory attention to that Court's important case management directions: Exhibit "M", Tab 11, pp 883.1 – 883.9. 14. In the Children's Court, and in this Court, the appellant has been afforded a great deal of procedural latitude over his persistent non-compliance with case management orders. 15. In this Court, during the final phase of the hearing of the appeal, when it was time for the appellant to give evidence, bizarrely, it became evident that he was hesitating and was undecided over whether or not he would in fact give any oral evidence in support of his own appeal. 16. At the time, exchanges occurred between the appellant and the Court on that question, the appellant sought and was given the indulgence of a short adjournment to seek legal advice to assist him to decide whether he would give evidence in his appeal. Ultimately, the appellant decided he would give evidence. 17. The appellant's ensuing unstructured approach to giving his evidence revealed that he appeared to have had very little if anything helpful to say in the way of factual substance to support his appeal. 18. At the conclusion of the appellant's cross-examination by counsel for the Secretary, much of the case the appellant sought to make had been undermined. Following that cross-examination, he chose not to avail himself of the opportunity to provide explanatory evidence in re-examination. That was so despite having been informed on several occasions that he had a right to take that course if he considered it necessary to do so. 19. In the Children's Court, the proceedings occupied a total of 13 non-consecutive hearing days over an 11 month period. Due to the appellant's litigation conduct, many difficulties arose in the course of those proceedings. 20. The record of the proceedings in the Children's Court clearly shows that the Children's Court Magistrate had displayed considerable patience and restraint when hearing the matter in light of the appellant's provocative, at times puzzling, and at other times, bizarre litigation conduct. In the Children's Court, at one stage the appellant seemed to have adopted a passive aggressive stance at a point when he resisted answering material questions that had been put to him in cross-examination. 21. In the Children's Court, the appellant was rebuked for his courtroom conduct on many occasions. On many other occasions he was counselled to stop wasting court time. On 2 September 2019, on the 9th day of those proceedings, the Children's Court Magistrate found it necessary to rebuke the appellant in the following terms: "HIS HONOUR: Mr [Redaction of appellant's name], again a matter of your tone of voice and the way that you've approached this litigation. This is not a combat sport. This is not a matter for you to vent your frustrations in that way. If there's a proper question to be asked, ask the question, but ask it in a way that's not belittling or demeaning or insulting. Do you understand?" [Exhibit "M", Tab 14, p 1093.13 – 1093.17] 1. Despite that admonition, and despite many others like it, the appellant continued his litigation misbehaviour in the Children's Court, and in this Court, in a time-wasting manner that would not have been tolerated without disciplinary consequences if such conduct had been displayed by a legal practitioner holding a current practising certificate. 2. These appeal proceedings involved a total of 39 non-consecutive listing days, where the case was originally estimated to require a 5 to 7 day hearing. 3. The inordinate amount of time taken for the appeal to have reached this point has been largely due to the appellant's wide-ranging, time-wasting disputatious attitude, his delaying tactics, whether intentional or not, and his at times provocative, bizarre, and difficult to control litigation conduct. 4. That conduct extended to the appellant seeing fit to make numerous disparaging and abusive comments to and about the Court and the legal practitioners who appeared in the proceedings. 5. At times, the appellant's courtroom misbehaviour included vehement intemperate outbursts, in which he made scandalous and inflammatory non sequitur statements about public figures. 6. The appellant's courtroom conduct in the appeal also extended to him articulating a number of oblique threats and menacing remarks to the Court. 7. At times, the appellant's presenting behaviour seemed elevated and aggressive, accompanied by insistent threatening remarks and gesticulations. Those circumstances required the deployment of additional security arrangements in the courtroom for the protection of those present. 8. The record of these proceedings sufficiently identifies the multiple instances of the appellant's courtroom misbehaviour and misconduct. At a later point in the course of these reasons, in the appropriate context, some of those matters will be referred to with greater particularity. 9. A challenging difficulty in this appeal has been the need to balance the appellant's diversionary litigation conduct, and his persisting non-compliance with Court orders requiring him to file and serve the evidence upon which he relied, with the concomitant requirements of the procedural fairness to which he is entitled, whilst at the same time recognising that the central focus of the proceedings must be the paramount consideration of the best interests of the child who is the subject of the proceedings: s 9(1) of the Care Act. 10. The lasting impression gained from the appellant's conduct in the litigation was that, despite his protestations to the contrary, he seemed to have lost sight of the fundamental requirements of s 9(1) of the Care Act. 11. In one of the appellant's elevated and intemperate courtroom outbursts, he grandiosely referred to his high professional status. He stated he is one of the very few people trained in the full nuclear fuel cycle, including designing a nuclear weapon: Day 6, T94.30. He sought to ascribe the origin of the events that have led to these proceedings as him having "been brought down by this unfounded things (sic) just because I picked a fight with a schoolteacher": Transcript, Day 28, T349.48 – T349.50. That cited remark was a misstatement on his part. It was also a significant over-simplification of the true underlying circumstances which had led to the child's removal from his parental care. 12. The appellant's perspective view of the origins of the proceedings, as cited in the preceding paragraph, is not supported or borne out by the evidence adduced in the proceedings. Nowhere in the evidence did the appellant acknowledge or adequately explain or address the causative significance of his violent behaviour towards his daughter, that behaviour being the foundation factual event which has led to the child's removal, the subsequent Children's Court proceedings, and these consequential appeal proceedings. 13. The appellant's statement as cited in paragraph [43] above seems to indicate that from his perspective, these proceedings are more about his own quest for self-vindication rather than him considering as paramount, the best interests of his child. 14. The appellant's courtroom conduct in his appeal was within a range of extremes. 15. Initially, the appellant gave the impression that he was seeking to prosecute his appeal with considerable ardour, but without complying with case management orders for the filing of his evidence. At a later point, at the other extreme, he attempted to discontinue his proceedings. At a later point towards the end of the hearing, after 7 June 2021, he failed to appear at successive listings, culminating in his failure to appear on 16 July 2021 to make his final submissions, despite being informed that this was the occasion for him to do so. 16. The end result has been that these proceedings have consumed extensive public resources at a great cost to the State. Consequently, the Secretary has flagged an intention to seek a gross sum costs order in the amount of $220,000, discounted from the greater sum of $270,251.60, claiming exceptional circumstances, as contemplated by s 88 of the Care Act. Issues for determination in the appeal 1. The evidence tendered in the appeal, including the emergence of some particularly unusual and bizarre conduct on the part of the appellant towards the end of the hearing, indicates that the essential issues requiring determination are as follows: 1. Whether, by reason of the appellant's absence and non-participation in his proceedings since 7 June 2021, also taking into account his unsuccessful attempt to discontinue his appeal on Day 33, and his failure to make submissions in support of his appeal on 16 July 2021, he should be taken to have abandoned his appeal. The consideration and reasons for determining that question in the affirmative, appear at paragraphs [832] to [845] below. ("Abandonment of the appeal"); 2. Whether, given the child protection focus of the proceedings, and having regard to s 9(1) of the Care Act, in the continuing absence of the appellant's participation in these child protection proceedings, the Court should nevertheless proceed to review the evidence and record specific findings based on the state of the evidence. The consideration and reasons for determining that question in the affirmative, appear at paragraph [846] below. ("Required record for child protection proceedings"); 3. Whether the establishment component of the decision of the Children's Court, which found the child was relevantly in need of care and protection, should be revisited and reconsidered in these appeal proceedings to arrive at a different decision to that found by the Children's Court. The consideration and reasons for determining that question in the negative, appear at paragraphs [847] to [871] below. ("Establishment"); 4. What determinative weight should be given to the submitted wishes of the child as was related by the child's former independent legal representative and her current direct legal representative. The consideration and reasons for determining that question requiring that such wishes and views should be given significant determinative weight, appear at paragraphs [873] to [891] below. ("Weight to be given to the child's wishes"); 5. Whether there is a realistic possibility of the child the subject of the appeal being restored into the parental care of her father, the appellant. The consideration and reasons for determining that question in the negative, appear at paragraphs [893] to [918] below. ("Restoration"); 6. Whether the state of the evidence justifies the making of an order requiring that an amended care plan be prepared. The consideration and reasons for determining that question in the negative, appear at paragraphs [920] to [922] below. ("Amended care plan"); 7. Whether the Secretary of the Department of Communities and Justice ("DoCJ") has demonstrated the existence of exceptional circumstances within the meaning of s 88 of the Care Act such that the justice of the circumstances requires that a compensatory order for costs be made in favour of the Secretary against the appellant in the appeal proceedings. The consideration of that question, as identified at paragraphs [920] to [922] below, must be deferred until the parties have had the opportunity to be heard on that question. ("Costs"); 8. Whether, pursuant to s 200A of the District Court Act 1973, the papers identifying the appellant's courtroom behaviour should be referred to the Attorney General for a consideration of what consequences if any should follow from that behaviour. The consideration of that question and reasons for determining that question in the affirmative, appear at paragraphs [923] to [925]. ("Disrespectful behaviour in Court"). Summary identifying the outcome of the appeal 1. In essence, the outcome of the consideration of the first six issues identified at paragraph [49] above, necessarily requires that the appeal should be dismissed, and that consequently, the appealed orders made by the Children's Court should be confirmed. 2. For reasons that will be identified in this decision in due course, the remaining two issues, namely the application for costs and the referral of the papers, require a separate consideration beyond the scope of these reasons. 3. The overwhelming conclusion to emerge from the evidence is that the appellant has not adequately addressed or allayed the serious doubts and concerns that have been raised by DoCJ over his fitness to be entrusted with the parental responsibility for his daughter on grounds of her safety, welfare and well-being. The evidence shows that he is unfit to have that responsibility restored to him. 4. Before proceeding to expand upon those matters within the structure of these reasons, it is instructive to review the appellant's disorganised and bizarre approach to the proceedings, where on 28 May 2021, on Day 34, he vacillated over the question of whether he would give oral evidence in his own appeal. 5. A redacted extract of the transcript of the proceedings of 28 May 2021 is reproduced as Appendix B to these reasons. That extract demonstrates the appellant's bizarre approach to the question of whether or not he would give evidence in his appeal. 6. Those events are revelatory of the appellant's inadequate approach to the planning and the presentation of his appeal. This is a somewhat paradoxical circumstance, given that he is an intelligent man and this case is of such obvious importance to him. 7. In determining the issues calling for decision in this appeal it became necessary to draw conclusions about the appellant as a witness. In that regard, as will be made clear in due course in these reasons, notwithstanding his intelligence, he has shown himself to be a most unsatisfactory witness. PART B - REVIEW AND CONSIDERATION OF RELEVANT TOPICS 1. A series of 31 topics of significance that have arisen in the proceedings, and which require review and consideration, is identified in the following structure. Topics reviewed in these reasons 1. These reasons are structured as follows: 1. Dramatis personae: see paragraphs [59] to [61] below; 2. Explanation of the method adopted for transcript references on account of the disjointed pagination of the transcript: see paragraphs [62] to [67] below; 3. Interlocutory decisions and listing days in the course of the appeal: see paragraphs [68] to [81] below; 4. Documentary material for consideration: see paragraphs [81] to [87] below; 5. Appellant's serial applications for judicial recusal: see paragraphs [88]; 6. The child's family history: see paragraphs [89] to [97] below; 7. Factual basis for removal of the child from the appellant's parental care: see paragraphs [98] to [118] below; 8. Hospital investigation and documentation of the child's injuries: see paragraphs [119] to [137] below; 9. Contemporaneous photographs of the child's injuries: see paragraphs [138] to [145] below; 10. Child's evidence of being assaulted by her father: see paragraphs [146] to [158] below; 11. Evidence relied upon by appellant claimed to be exculpatory of any wrong-doing on his part: see paragraphs [159] to [207] below; 12. Appellant's recorded conviction for assaulting his daughter: see paragraphs [208] to [225] below; 13. Foster care arrangements following the child's removal from parental care: see paragraphs [226] to [236] below; 14. Procedural history of the Children's Court proceedings: see paragraphs [237] to [243] below; 15. Reasons for decision of the Children's Court: see paragraphs [244] to [260] below; 16. Orders sought by the appellant's summons by which he commenced the appeal: see paragraphs [261]; 17. Appellant's deficient conduct of his appeal: see paragraphs [262] to [276] below; 18. The appellant's disrespectful and disruptive behaviour in Court: see paragraphs [277] to [292] below; 19. Threats made in Court by the appellant during the course of the proceedings: see paragraphs [293] to [310] below; 20. Procedural delays due to appellant's litigation conduct: see paragraphs [311] to [320] below; 21. Unexpected delay due to a concern raised that the proceedings were being impermissibly recorded by the appellant: see paragraphs [321] to [330] below; 22. Effect of the proceedings on the health, welfare and well-being of the child whilst the proceedings remain unresolved by findings: see paragraphs [331] to [340] below; 23. Pre-October 2020 procedural history of the appeal proceedings: see paragraphs [341] to [351] below; 24. Post-October 2020 procedural history of the appeal proceedings: see paragraphs [352] to [481] below; 25. Appellant's unsuccessful attempt to discontinue his appeal on 4 June 2021, Day 33: see paragraphs [482] to [488] below; 26. Appellant's last appearance in Court on 7 June 2021: see paragraphs [489] to [498] below; 27. Call from the appellant on 8 June 2021: see paragraph [499] below; 28. Appellant's apparent unwellness on 9 June 2021: see paragraphs [500] to [510] below; 29. Decision on 9 June 2021 to receive submissions in the appellant's absence: see paragraphs [511] to [516] below; 30. Appellant's continuing absence from the proceedings after 7 June 2021: see paragraphs [517] to [532] below; 31. Appellant's email sent to the District Court Civil Registry on 16 July 2021: see paragraphs [533] to [544] below. (1) Dramatis personae 1. To ensure the child's anonymity, and to give practical effect to the non-publication order made in the proceedings, in these reasons, the child and her parents have only been identified in general terms. The parties have been allocated litigation pseudonyms as follows: 1. The appellant father, who has been self-represented throughout the proceedings despite his claims of having some access to legal assistance and advice, will be referred to either by his status as the father or by the litigation pseudonym "Y", depending on the context; 2. The child the subject of the proceedings will be described by that status in order to maintain her anonymity; 3. The mother of the child, who is the second respondent to the appeal, will be referred to as the mother; 4. The child is represented in these proceedings by Mrs Denise Clark, solicitor, as the child's Direct Legal Representative ("DLR"), pursuant to a grant of legal aid for that purpose. 1. Mrs Denise Clark became the child's DLR in December 2020 after the child attained the age of 12 years. Beforehand, Ms Natalie Adams, solicitor, was the child's appointed Independent Legal Representative ("ILR"). The child's wishes and instructions on the issues raised in the appeal have been communicated to the Court by those legal representatives. 2. The underlying theme of the wishes the child has expressed over time with regard to the litigation, as conveyed by those representatives, has been consistent throughout. She simply does not want the appeal to succeed and she does not want to be returned into the parental care of her father. (2) Method for transcript references in these reasons 1. Unfortunately, the pagination of the transcript of the appeal proceedings became problematic as it has not been continuously paginated due to the non-continuous hearing dates. Nevertheless, in these reasons a systematic method for transcript references is required, particularly because of the possibility that, at some later stage, others may have to refer to these reasons, and they may also need to have available to them a convenient means of referring to relevant aspects of the transcript. 2. The first listing day of the appeal in Newcastle on 26 October 2020 produced 3 pages of transcript paginated in the series pages 1 – 3: Day 1. The transcript of the next nine listing days in Newcastle between 27 October 2020 and 6 November 2020 are paginated in the series pages 1 – 405: Days 2 – 10. The transcripts for the next 11 listing days in Sydney in the range 13 November 2020 to 9 April 2021 each starts at a new page 1: Days 11 – 23. The transcript for the remaining 16 listing days in Sydney commencing on 24 May 2021 and concluding on 16 July 2021, is paginated in the series pages 1 – 816: Days 24 – 39. 3. In those circumstances, for convenient reference, rather than calling for the transcript to be re-issued in its entirety with continuous pagination, the system adopted for transcript references in these reasons, will be by reference to the numerical day of the proceedings in the series Day 1 to Day 39, followed by the appropriate page and line references, according to the following index: Day Date Transcript page range 1 26.10.2020 1 – 3 2 27.10.2020 1 – 48 3 28.10.2020 48 – 52 4 29.10.2020 53 – 54 5 30.10.2020 55 – 59 6 02.11.2020 60 – 150 7 03.11.2020 151 – 161 8 04.11.2020 162 – 239 9 05.11.2020 240 – 275 10 06.11.2020 276 – 277 11 13.11.2020 278 – 289 12 02.12.2020 290 – 325 13 10.12.2020 326 – 358 14 15.12.2020 359 – 405 15 18.12.2020 1 – 3 16 11.01.2021 1 – 7 17 05.02.2021 1 – 21 18 09.02.2021 1 – 29 19 18.02.2021 1 20 12.03.2021 1 – 14 21 19.03.2021 1 – 54 22 31.03.2021 1 – 5 23 09.04.2021 1 – 48 24 24.05.2021 1 – 78 25 25.05.2021 79 – 178 26 26.05.2021 179 – 248 27 27.05.2021 249 – 346 28 28.05.2021 347 – 443 29 31.05.2021 444 – 490 30 01.06.2021 491 – 568 31 02.06.2021 569 – 649 32 03.06.2021 650 – 721 33 04.06.2021 722 – 745 34 07.06.2021 746 – 770 35 09.06.2021 771 – 794 36 10.06.2021 795 – 801 37 11.06.2021 802 – 805 38 02.07.2021 806 – 810 39 16.07.2021 811 – 816 1. Before leaving the topic of the transcript, it is noteworthy that it contains many non-transcribable portions. At times the appellant spoke at a rapid pace despite having been asked to slow down in his speaking out of consideration for those transcribing the recording of the proceedings. His arrogant response was to suggest those persons were not competent in their work if they could not cope with the pace of his delivery: Day 8, T210.1 – T210.30. 2. In contrast, the appellant had taken a more co-operative approach to the transcript in the Children's Court when he was asked to slow down and ask his questions calmly so that a witness could follow him more easily: Exhibit "M", Tab 8, pp 603.7 – 603.35. 3. Nevertheless, as a result of the appellant's pace of speaking there are many non-transcribable portions of the transcript of what he had to say in the proceedings both in the Children's Court and in this Court. In considering the overall context of those items in light of the issues calling for decision in the case, the non-transcribable portions did not seem to be of determinative significance. The appellant made no comment on a draft list of transcript corrections that had been circulated to the parties. The schedules identifying those corrections has been marked as Exhibit "Y". (3) Interlocutory decisions and listing days in the course of the appeal 1. Since October 2020, this is the sixth in a series of published judgments in the present appeal. The earlier interlocutory decisions in the matter have been published in the following series: 1. Y v The Secretary, Department of Communities and Justice [2020] NSWDC 674; 2. Y v The Secretary, Department of Communities and Justice (No 2) [2020] NSWDC 762; 3. Y v The Secretary, Department of Communities and Justice (No 3) [2021] NSWDC 19; 4. Y v The Secretary, Department of Communities and Justice (No 4) [2021] NSWDC 81; 5. Y v The Secretary, Department of Communities and Justice (No 5) [2021] NSWDC 117. 1. The series of interlocutory decisions referred to in paragraph [68] above relate to a cumulative 20 interlocutory listing days. The extent of those listings for proceedings of this kind was inordinate, and was occasioned by the appellant's aberrant litigation conduct, which at times has amounted to litigation misconduct. 2. The appellant's approach to the proceedings was not in conformity with the overriding purpose of assisting to facilitate a just, quick and cheap resolution of the matters in dispute, as required by s 56 of the Civil Procedure Act 2005 (NSW). 3. Of those many interlocutory listing days for this appeal, the first 10 were in Newcastle, where it was initially anticipated that ordinarily, the appeal would have been heard to finality as a matter of priority in a circuit sittings running list. 4. Following the emergence of a number of procedural issues and difficulties which stemmed from the appellant's self-representation and from his non-compliance with previous case management orders, a further 13 interlocutory and case management listings of these appeal proceedings took place in Sydney before the substantive hearing of the appeal could proceed. 5. The original listings were on 26, 27, 28, 29, 30 October 2020; 2, 3, 4, 5 and 6 November 2020. The further listing days were on 13 November; 2, 10, 15 and 18 December 2020; 11 January 2021; 5, 9 and 18 February 2021; 19 and 31 March; and 9 April 2021. 6. The final hearing of the appeal subsequently took place in Sydney over the course of 16 listing days on 24, 25, 26, 27, 28, 31 May, 1, 2, 3, 4, 7, 9, 10, 11 June, 2 and 16 July 2021. 7. On 16 July 2021, the appellant did not appear at Court, either in person or by means of an AVL connection that had been pre-arranged for him in advance of that date. After the Court convened on that day and after the other parties had announced their appearances, a communication was received from the Judicial Registrar which attached an email from the appellant sent at 8.22am on that day. 8. The content of the appellant's email was read onto the record. It will be cited in full at a later point in these reasons. It recited a litany of complaints and it contentiously asserted that "this matter cannot proceed to submissions in the absence of transcripts / orders / evidence available to the appellant". 9. That communication from the appellant was considered in the light of his absence and in light of a series of his other communications since 8 June 2021. Copies of those communications have been assembled into a convenient paginated bundle: Exhibit "W". 10. On 16 July 2021, without adequate explanation, the appellant did not appear. In light of earlier indications given to him that he must appear on that day if he wished to make submissions in support of his appeal, for reasons recorded in the transcript at that time, the evidence and submissions in the proceedings were declared to be closed, subject to any further applications that might be made. The Court then reserved judgment in the matter, with liberty to apply, if required: Day 39, T816. 11. Those circumstances are more fully set out and considered in the appropriate chronological context in connection with the matters described in Topics (25) to (31) below. 12. In essence, all that need be said of those circumstances at this point is that the appellant did not make any formal application that could reasonably have been considered to be an application for an adjournment. Instead, his email to the Judicial Registrar was nothing more than a complaint to the Judicial Registrar, and a statement of opinion. It was not an application to the Court. 13. The appellant's written request for the matter not to proceed, as identified in paragraph [76] above, was not treated as a formal application in view of the way it was expressed, addressed to the Registrar, who was not seized of the matter, absent the appearance of the appellant to speak to it, and absent supporting affidavit evidence. The appellant is a seasoned litigant who must be taken to have known the required procedure for making such a formal and significant application to the Court, and he did not take that procedure. (4) Documentary material for consideration 1. The documentary material requiring consideration in the appeal was extensive. It comprised over 5000 pages of documentary exhibits, albeit with some overlap. That material included transcripts for the 13 days of the Children's Court proceedings, and over 1200 pages of transcript in the appeal proceedings. 2. The documentary evidence as was initially assembled for the hearing in Newcastle on 26 October 2020, included affidavits, exhibited documents and Children's Court transcripts. Those materials were marked as Exhibit "A" on the application. In the substantive appeal they became Exhibit "M". It comprised 2 volumes of double-sided printed material, tabbed 1 to 38, pp 1 – 1752. 3. After the completion of the interlocutory hearings that unfolded in Newcastle and then in Sydney, when the appeal resumed in Sydney on 24 May 2021, the documentary evidence was augmented by tender of further material. This comprised 4 volumes of papers printed on both sides. That additional material was marked as Exhibit "E", Volumes 1 – 4,Tabs 1 to 51, pp 1 – 3009. 4. The documents at Tab 32 of Exhibit "E", replicated the material that was earlier tendered as Exhibit "A" on the application, and Exhibit "M" in the appeal. The latter course has led to difficulty and confusion in the course of oral evidence when it was necessary to refer witnesses to material located in those disparate volumes. 5. At the resumed hearing between 24 May and 16 July 2021, those materials were augmented by the tender of further exhibits. The series of Exhibits marked "A" to "X", will be considered and referred to in the appropriate context, when required. 6. Those materials have been taken into account and will be referred to in these reasons if it becomes appropriate to do so. (5) Appellant's 8 applications for judicial recusal 1. In the course of the hearing of his appeal, the appellant made eight applications for judicial recusal. The first seven of those applications were refused for reasons given at the time. Those applications raised fanciful and scandalous matters that did not meet the required test for judicial recusal: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63; Polsen v Harrison [2021] NSWCA 23, at [46]-[47], [51]-[61], citing Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48. The appellant withdrew his eighth recusal application: 7 June 2021, Day 34, T746.16 – T746.19. (6) The child's family history 1. The child the subject of the appeal was born in Australia. By the operation of law, she is an Australian citizen and she has no other nationality. The parents were both born in India. They each possess advanced professional tertiary qualifications. At present, the mother does not reside in Australia. Since the parents divorced the mother has re-partnered and resides in the United States of America, where she has had another child in her new relationship. 2. The child's family history has unfortunately been marred by parental discord amidst allegations of domestic violence, including contested Family Court proceedings in which the mother's application that she be permitted to take the child to her new domicile in the United States of America was rejected by that Court. As a result of the orders made by the Family Court, the child remained with her father until she was removed from his care on 7 August 2017 after his violent behaviour towards her came to light. 3. Although the child's mother is named as a respondent to this appeal, she has chosen not to take an active part in the appellant's appeal proceedings. Previously, in the Children's Court proceedings, the mother had unsuccessfully sought an order for parental responsibility to be allocated to her. The Children's Court Magistrate rejected that proposal. 4. At this point, it is relevant to refer to a significant historical event that preceded this litigation, namely that, in the Family Court proceedings, between the child's parents, the mother had failed to secure an order for the child to be moved overseas to live with her mother in her new overseas domicile. 5. Notwithstanding that outcome, the mother subsequently re-entered Australia, and, allegedly, with the apparent co-operation of the principal of the child's school, took the child away from her school during normal school hours at a time before the appellant would normally collect the child from school at the end of the school day. The mother then attempted to illegally travel with the child by plane to India, a non-Hague convention country. That attempt was in contravention of orders made by the Family Court. 6. Those described events were particularly disturbing because the child's school had previously been made aware of the orders made by the Family Court. The mother's attempt to remove the child from Australia at that time was thwarted because the child's name had been placed on an airport watch list. In those events, the Australian Federal Police quickly intervened and the child was then restored into the father's care. 7. Those events have apparently caused and still continue to cause the father considerable ire and disgruntlement. The father's reaction in that regard did not lessen when, after the subsequent removal of the child from his care by DoCJ, he learned that, during the currency of the Children's Court proceedings, the mother had re-entered the country and had, at public expense, been accommodated in a hotel by DoCJ in order to facilitate an extended period of contact between the mother and the child. 8. Those events appear to have also served as the foundation for the father's claim that in these proceedings, DoCJ has been running a proxy case for the mother. Whatever the true position might be in that regard, the appellant's apprehensions to that effect do not carry any decisive weight in this appeal because in this appeal, the mother no longer seeks allocation of the child into her parental care. 9. However, the appellant's disgruntled suspicions, once aroused, appear not to have diminished, and the appellant's sense of anger towards the department, the Secretary, and DoCJ staff, does not appear to have abated over the course of time. (7) Factual basis for removal of the child from the appellant's parental care 1. The child the subject of the appeal was removed from her father's care on the afternoon of 7 August 2017 at the age of almost 8 years after information had emerged which raised serious concerns that, on the previous day, he had inflicted physical violence and injury upon her. 2. The surrounding circumstances were that, on the previous evening of 6 August 2017, someone had heard concerning sounds emanating from the family home, to the effect that the child was crying out in a context where the appellant was heard to be yelling at her, and the child was heard to repeatedly request him to stop. Those events suggested that she was receiving multiple beatings. 3. Police were called and attended the appellant's premises. At that time the appellant hid himself and the child away from the premises and away from the police who had attended to investigate those reported matters. A mandatory report was then made to the authorities. According to the child, when the police arrived, the appellant took her away from the premises, through the back door, and hid in bushes to avoid being confronted by police officers, knowing that he could be in trouble at that time. 4. The next day police officers attended at the child's school where the appellant was interviewed. At that time he denied to police officers that he had physically disciplined the child. 5. At that time, in the context of elevated concerns over the safety, welfare and well-being of the child, in an atmosphere of safety, where the child expressed gratitude to the authorities at having been believed, she disclosed a history of the appellant having repeatedly struck her with the metal buckle of a belt and also with a metal ruler and another object like a wooden rolling pin, causing her to suffer laceration and bruising on various parts of her body. 6. Subsequent questioning of the child revealed a past history of the appellant having inflicted corporal discipline on her on an almost daily basis. At that time she also disclosed that she was scared of her father when he became angry. 7. Following the mandatory reporting of those events, a medical examination of the child was arranged by the Secretary, DoCJ. This was undertaken at Gosford Hospital where it became apparent that the child was displaying observable signs of bodily injury consistent with her disclosures of abuse. 8. Subsequent investigations, including a detailed history taken from the child, revealed that the appellant had, over time, repeatedly subjected her to injurious corporal discipline which amounted to abuse. 9. In these proceedings, the appellant father sought to mis-characterise and downplay the significance of his abusive behaviour towards his daughter as being mere "over-discipline", which he claimed was acceptable according to his culture: Day 14, T396.48 – T397.3. 10. At this point, it is necessary to state unequivocally that the foregoing proposition, as stated by the appellant, must be rejected as being completely unacceptable in this society. 11. The disclosure and formal investigation of those described events led to the removal of the child from the appellant's parental care. The child was then placed into temporary foster care pursuant to two emergency protection orders respectively obtained by DoCJ on 11 and 23 August 2017. 12. On 6 November 2017, with the consent of the appellant, which he gave "without admissions", the Children's Court made the establishment finding that the child was in need of care and protection. 13. On 12 December 2019, findings were made that the Children's Court was satisfied on the question of appropriate permanency planning and placement. The Children's Court then made final orders allocating parental responsibility for the child to the Minister, until the child attains the age of 18 years. Since then, the initial temporary foster care placement of the child has evolved into a permanent placement. 14. The appellant is dissatisfied with the outcome of the Children's Court proceedings as identified in the preceding paragraphs. However, by the close of evidence in this appeal from that outcome, the appellant had not produced any evidence that compelled a conclusion that the orders of the Children's Court are either incorrect or were in any way inappropriate to the circumstances disclosed in the evidence before the Children's Court. 15. The appellant's summons commencing the appeal has been framed in imprecise terms. In effect, he seeks that the child be restored into his care. The child is presently approaching the age of 13 years. 16. Pending the finalisation of the appeal, in December 2020, the child reached the milestone age of 12 years. She has therefore become entitled, through her direct legal representative, to express her wishes to the Court as to whether or not the appeal should succeed. The Secretary, the child's mother, and the child, through her direct legal representative, all oppose the course sought by the appellant in this appeal. 17. All parties to the appeal, including the appellant, have sensibly accepted that the child did not want to give evidence in these proceedings, and that she should not be subjected to the stress of being compelled to attend Court to give evidence and be cross-examined. 18. The present position submitted on behalf of the child is that she adamantly maintains she does not want to be restored into her father's care. She is happy to remain with her carers. Given the child's age, absent cogent rebuttal evidence, those statements as to her wishes must be given due weight in any consideration of the issues calling for decision in the appeal. 19. The appellant claims that the child's views as relayed to the Court in these proceedings, and as identified above, are the result of manipulation or coercion, as some kind of survival reaction the child has maintained in order to avoid the potentially adverse consequences of providing a response that might be more critical of the carers in her placement. There is no cogent evidence to support the appellant's suspicion-based contentions in that regard. Accordingly, his suspicions should be discounted. 20. In opposing the orders sought by the appellant in this appeal, the Secretary, DoCJ has argued, with cogent justification having regard to the limited evidence of the appellant, that he has not adequately addressed or acknowledged the harmful significance of his history of violent behaviour towards the child. 21. A fair reading of the appellant's evidence as a whole, given both in the Children's Court proceedings and in this Court, supports and confirms the view expressed in the assessment and findings of the Children's Court. That evidence, and the other evidence, will be examined in detail in these reasons. (8) Investigation and documentation of the child's injuries at hospital 1. The child did not give evidence in the Children's Court. The child's version of the underlying events, as placed before the Children's Court, was in an indirect form. It comprised the tender of her evidence given on 19 February 2018, in criminal proceedings that were brought against the appellant. This included a recorded JIRT interview by a police officer. That account will be examined in due course. Other accounts given by the child to persons who have interviewed her were also tendered in evidence. 2. It was open to the Children's Court to receive that evidence having regard to the less formal way in which evidence may be received in that Court. Nevertheless, despite that relative informality, the child's evidence and the evidence attributed to her concerning her account of those underlying events was capable of acceptance in those proceedings and in these proceedings. 3. The course taken in the Children's Court proceedings in receiving the child's evidence in the manner described was in conformity with the well-understood requirement that the proceedings were to be conducted with as little formality and legal technicality as the circumstances permit. That course was appropriate where the Children's Court, like this Court in exercising the jurisdiction of the Children's Court, is not necessarily bound by the rules of evidence: s 93(3) of the Care Act. 4. At this point, it is convenient to identify some material aspects of the documentary evidence of the uncontradicted circumstances which ultimately led to the removal of the child from the appellant's parental care. 5. The original source of direct information of the existence of a risk of serious harm to the child was the child's disclosure to a mandatory reporter of a history of physical abuse and injury at the hands of her father: Exhibit "M", Vol 1, Tab 3, p 31. 6. On 7 August 2017, DoCJ caseworkers, acting on information as to the existence of a risk of serious harm to the child, arranged for the child to be taken to the Gosford Hospital Emergency Department to undergo a medical examination and assessment to assist in determining whether she was in need of care and protection. 7. The triggering circumstances for that course was the child's disclosure that her father had hit her numerous times with a buckled belt in the course of purporting to administer discipline: Exhibit "M", Vol 1, Tab 3, pp 19 – 24. 8. At Gosford Hospital, the child was examined by a legally qualified medical practitioner. That examination was undertaken by an on-duty and suitably qualified paediatric registrar against a background of an emergent question of possible abuse of the child by the father. The timing of the examination was arranged to ensure that it took place prior to any possible subsidence or healing of abrasions, lacerations and bruising to the child, where these were evident at the time the examination was arranged: Exhibit "M", Vol 2, Tab 24, p 1578. 9. The medical examination of the child by the paediatric registrar was undertaken in accordance with the hospital's professional protocol for forensically investigating instances of injury suspected of being due to child abuse ("SCAN"). The examination was a reliable forensic procedure. The examining medical practitioner made an extensively detailed handwritten record of the history obtained from the child, as recorded in Exhibit "M", Vol 1, Tab 3, p 34. 10. The examining medical practitioner's affidavit, as read in the Children's Court proceedings, and in these proceedings, set out the details of that contemporaneously obtained history, in typed form, as follows: "18. During my examination of [the child], I recorded the following notes in the SCAN Medical Protocol; a. [The child] stated, "I was carrying a plate and an iPad at the same time. I dropped the iPad and my Dad got angry, and hit me with his belt and ruler on my arms and legs. I wasn't able to get up but after a rest I was able to get up"; b. [The child] stated, "I wasn't able to get up because of the pain"; c. When I asked [the child] about any pain she was then currently experiencing, [the child] pointed to her right heel, left shin and upper left arm; d. When I asked [the child] if this was the only time her father had done this, [the child] stated, "No it has happened a few times before" but was unable-to indicate when it first happened; e. [The child] stated, "my legs and arms were red" after being, hit; f. [The child] stated that she hit her head two years prior when she was jumping on her bed. [The child] stated that her head started bleeding so she was taken to hospital but did not stay overnight; g. I noted that [the child] denied any pain, injury or itching to her external genitalia, perineum or buttocks so I did not examine those areas at her request; h. I noted in relation to my musculoskeletal examination of [the child] that she had mild pain on assessing passive range of motion and when weight-bearing through her ankle. There was no bony point-tenderness, but there was a bruise and laceration over same region; and i. I observed that [the child] was smiling and easily engaged in conversation during the examination and she made frequent eye contact. I observed that [the child] was very cooperative and demonstrated an understanding that she was required to stay with foster carers for a short period." [Exhibit "M", Vol 1, Tab 3, p 20] [Redacted to de-identify the child] 1. In identifying and recording those matters at Gosford Hospital, the paediatric registrar undertook a detailed physical examination of the child and made reliable handwritten annotations on a series of pro-forma diagrams incorporated into the forms within the hospital notes to identify abnormalities that were observed on examination of the child: Exhibit "M", Vol 1, Tab 3, pp 44 – 50. The paediatric registrar's affidavit prepared for the Children's Court proceedings described those findings as follows: "19. Using a body diagram, I marked the external injuries I observed on [the child], including; a. Eczematous type rash on the front of her left upper arm and right upper arm; b. An abrasion on thickened skin on the front of her left upper arm which [the child] stated was from a belt buckle; c. Irritated/inflamed skin on her elbows consistent with the application of EMLA cream (a topical anaesthetic cream); d. Two bruises of 2.5 centimetres and 3.5 centimetres at the widest, diameters on the front of her right thigh; e. A small laceration on her lower left leg, with irregular margins of approximately 0.5 to 1 centimetre at the widest diameter; f. A six centimetre abrasion on her upper right arm; g. Two bruises of 4.5 centimetres by 1.5 centimetres and 3 centimetres by 1 centimetre on her right forearm; h. A small, crescent shape laceration approximately 0.5 centimetres long on her right forearm; i. A bruise 10 centimetres in length on her upper right thigh; j. Three small bruises on her lower right thigh; k. A small bruise on the back of her left elbow; l. A two centimetre by four centimetre bruise on the back of her right lower leg; and m. A 4.5 centimetres by 3.5 centimetres raised bruise on her right heel with a laceration in the middle of the bruise sized 0.5 centimetres by 0.5 centimetres. [Exhibit "M", Vol 1, Tab 3, pp 20 – 21] [Redacted to de-identify the child] 1. The examining paediatric registrar recorded her professional findings as being that the pattern of bruises and abrasions observed on the child's body were consistent with the description of being hit with a belt and a ruler. She also stated that the results of blood tests taken from the child at that time did not suggest an alternate underlying medical cause or explanation for the bruises which were observed to be present: Exhibit "M", Vol 1, Tab 3, p 22. 2. Before formalising her conclusions, the paediatric registrar discussed her assessments and findings with her supervising consultant paediatrician at Gosford Hospital: Exhibit "M", Vol 1, Tab 3, p 22. That discussion initially took place by telephone. The on-call consultant paediatrician from Gosford later reviewed the notes taken by the registrar in accordance with the hospital protocol for such assessments. 3. The hospital's on-call consultant paediatrician went on to express the opinion, without having personally examined the child, that his registrar's findings were in keeping with the history obtained from the child of having been hit multiple times with an implement. That course was open to him and was not unreasonable in the circumstances. The paediatric consultant saw no reason to doubt that a ruler and a belt had been used during the events about which the child had complained. That conclusion is not inherently unreliable. 4. The hospital's on-call consultant paediatrician also concluded that, by reason of the distribution, the position, and the shape of the bruising on the child, as described by Dr Fletcher-Watson, these signs were not in keeping with those possibly found in young children when acquired in the course of normal play. The consultant also excluded the existence of an underlying bleeding or bruising predisposition in the child: Exhibit "M", Vol 1, Tab 3, p 15. Those conclusions were also open to him on the evidence he had before him. 5. In these appeal proceedings, the appellant required the paediatric registrar, Dr Chloe Fletcher-Watson, for cross-examination. His challenges to her evidence, such as they were, raised no material contradictions or doubts as to the reliability of her notes, or her observations, or her evidence. 6. In this appeal, the appellant ultimately abandoned his request to cross-examine the consultant paediatrician, Dr Buckmaster. 7. Nevertheless, the appellant has made highly critical comments about the medical findings and opinions cited above. That said, on an overview of the evidence, those criticisms have not been supported or sustained. The appellant has not produced any cogently persuasive contradictory material to suggest that the findings which he criticises should be rejected as being incorrect or inherently improbable. 8. The evidence of the DoCJ staff and the evidence of the medical practitioners on those matters will be reviewed and summarised at a later point in these reasons. (9) Contemporaneous photographs of the child's injuries 1. With the best of intentions no doubt, using the camera function of a mobile telephone, a DoCJ caseworker took contemporaneous coloured photographs of the location of injuries seen on the child's body: Exhibit "E", Tab 32, pp 1908 – 1921. The appellant sought to use an expert interpretation of those photographs as a basis for seeking to contradict the suggestion that the child was injured in the manner she had claimed. 2. The appellant sought to rely upon an expert opinion dated 17 April 2019 from Dr Johannes DuFlou, a highly qualified and experienced forensic pathologist, to support the position he sought to maintain on the question of the alleged injuries: Exhibit "L". 3. As was pointed out to the appellant during argument in the course of the hearing, the difficulty he faced in that regard is that the interpretation of photographs for the purpose of making nuanced findings of fact is a problematic undertaking because photographs are of only limited utility and reliability for the purpose the appellant sought to use them. 4. That problem of using photographs for the purpose of fact-finding in litigation is well-understood. The reasoning in that regard has been remarked upon in many well-settled decided cases: Blacktown City Council v Hocking [2008] NSWCA 144, at [7]-[10], [167]-[170]; Angel v Hawkesbury Council [2008] NSWCA 130, at [69]-[72]; Warren v Gittoes [2009] NSWCA 24, at [2]-[3]; Yarrabee Coal Company Pty Ltd & Anor v Lujans [2009] NSWCA 85, at [8], [20]-[29]; Twynam Agricultural Group Pty Ltd v Williams [2012] NSWCA 326, at [66]; Goode v Angland [2017] NSWCA 311, at [89]-[96]. 5. To illustrate the point, if the injuries had been more grossly evident, such as an open wound, there may have been a utility in relying upon photographic evidence, that was not so in this instance. 6. Returning to a consideration of the evidence, it is significant to note that the photographs that were seen and examined by Dr DuFlou were in an electronic form which had not been tendered in evidence in these proceedings. According to Dr Duflou's description, the electronic images were obviously of a character, resolution and definitive quality that was different to the relatively poor resolution prints that were tendered in evidence. 7. Therefore, the evidence that was considered by Dr DuFlou and the evidence tendered in the proceedings appears not to have been of sufficiently similar likeness to the printed versions so as to render a comparison of those photographs to be a reliable or useful exercise in this case: Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505; Paric v John Holland Constructions Pty Ltd [1985] HCA 58 at [9]; HG v The Queen [1999] HCA 2; (1999) 197 CLR 414, at [39]. 8. Given such circumstances, and given the fact that Dr DuFlou did not identify or state that he had any special expertise in the interpretation of photographs for the purpose of detecting particular types of injuries and the causes of such injuries, this indicates that the evidence the appellant sought to obtain from him must be discounted, and must be seen to have very little if any probative value in this case. His opinions do not provide a reasonable basis for contradicting the contemporaneous clinical observations and opinions of Dr Fletcher-Watson. (10) Child's evidence against her father 1. It is instructive to review the oral evidence given by the child on 19 February 2018 in the Local Court criminal proceedings against the appellant that ultimately led to his conviction for assaulting his child: Exhibit "E", Vol 3, Tab 32, pp 2262 – 2272. 2. In the child's evidence in the criminal proceedings, in answers to questions asked in cross-examination by the lawyer who was at that time appearing for the appellant, the child confirmed that the appellant had become angry when she had dropped a plate, and he then used a belt to slap at her, thereby striking the iPad she was using as a shield at that time: Exhibit "E", Vol 3, Tab 32, p 2266.20. She said the iPad she had been holding became broken when the appellant hit it with a belt: Exhibit "E", Vol 3, Tab 32, pp 2265.27. 3. Earlier, in her evidence, the child confirmed that the appellant had hit her with a belt, and at other times with a wooden stick-like object which was later described as something like a rolling pin: Exhibit "E", Vol 3, Tab 32, pp 2263.21 – 2263.37. She also confirmed she had earlier given an account of the appellant having hit her with a ruler and she said that account was not a lie: Exhibit "E", Vol 3, Tab 32, pp 2264.26 – 2264.48. 4. Understandably, by the time the child gave her evidence in the Local Court she fairly and truthfully she had "forgot some things" when her evidence was being tested, but she said she "can remember most": Exhibit "E", Vol 3, Tab 32, pp 2266.25. For that reason, the more contemporaneously documented accounts noted by the DoCJ caseworker and Dr Fletcher-Watson take on considerable probative importance in this case: Fox v Percy [2003] HCA 22; 214 CLR 118, at [23]. 5. In cross-examination in those Local Court proceedings, the following interchange took place between the father's lawyer and the child: "Q. I am going to suggest that is a blister from your shoes? A. Well, no, it couldn't have been because the belt actually was in to my heel and I could see that was with my own eyes." [Exhibit "E", Vol 3, Tab 32, pp 2267.29 – 2267.31] 1. That evidence from the child was reliable. 2. At a later point in the cross-examination, the child rejected the proposition that an area of her skin which she said had been hit by the buckle of the appellant's belt, was in fact due to the remnant signs of henna decorations that had previously been applied. In the course of rejecting that proposition put forward by the cross-examiner, she clearly stated that her skin was red, whereas the colour of henna was orange, and she said that therefore the mark could not have been henna: Exhibit "E", Vol 3, Tab 32, pp 2268.2. 3. Significantly, the cross-examiner suggested to the child that she had invented her version of having been assaulted by her father as follows: "Q. [Child], if I was to suggest to you that you have made it all up, that your dad didn't hit you, what would you say? A. I did not make this up. Actually a great chunk wasn't recorded and I actually have proof of the that because the doctor has photos and she has recorded it - all of that on a piece paper with a shape of a body on it - so she recorded it and she has said that it was a bruise, et cetera. HIS HONOUR Q. Don't worry about what anybody else said, what is being suggested though is you made it up. Do you agree with that or not? A. No, QUINN Q. Do you remember when I started I said I am not trying to trick you but I am going to ask you some questions? A. Yes. Q. That's what I am trying to do, so what I am saying is you made it up that dad, your father, never hit you with a belt, what do you say? HIS HONOUR Q. Yes or no, just try and remember yes or no, so the suggestion is he never hit you, do you agree with that or not? A. No, not at all, QUINN Q. I am going to suggest that he didn't punch you; you talked about him punching you? A. On my - like my side, yes. HIS HONOUR Q. You are saying be did punch you, is that right? QUINN Q. I am going to suggest to you dad didn't put his hand over your mouth, what do you say about that? A. He actually put-he actually did so, yes, he did put his hand over my mouth. Q. I think you said he also slapped you. Do you remember that? A. Yes, he did. Q. Can you tell us about that? A. His hand was like my hand here, real hard it was. HIS HONOUR; Just for the record she had an open hand with her fingers pointing out moving it from one side to the other. [Exhibit "E", Vol 3, Tab 32, pp 2268.18 – 2269.20] [Name of child redacted] [Emphasis added] 1. In the circumstances, that suggestion of falsity could only have come from the appellant's instructions as provided to his lawyer. 2. The child's evidence to the effect that the photographs had been taken by a doctor at the hospital appears to have been an understandable conflation given that traumatic time. In fact it was the DoCJ worker, Ms Pigot, who took the photographs, both at the school and again later at the hospital, and the doctor recorded her findings on examination in diagrams contained in the hospital notes. 3. At a later point in the cross-examination of the child, she gave the following evidence: "Q. I think you told [name redacted] that towards the end dad was hitting you at least once a week, do you remember that? A. Yes. Q. Where was that generally, can you remember did he hit you on any particular part of the body? A. Legs, thigh and particularly on the thigh. Q. What did he use normally? A. A belt or a ruler. Q. Or the wooden stick? A. Or the wooden stick but that was very like ..(not transcribable)., Q. You spoke about slapping too? A. Yes, slapping too. Q. If you had a point that you said one was used more often than not, what would you say? A, The one that was used more often was the belt. [Exhibit "E", Vol 3, Tab 32, pp 2271.14 – 2271.33] [Emphasis added] 1. The audio of that evidence that was tendered by the appellant was not particularly contributory to the analysis. In these proceedings the appellant did not seek to contradict the evidence given by his daughter, which was largely corroborated by the contemporaneous notes taken by the DoCJ caseworker and Dr Fletcher-Watson, as noted at paragraphs [128] and [129] above. 2. In combination, the contemporaneous evidence of the child's account of her injuries and the later account she gave in evidence in the criminal proceedings reliably and convincingly shows that she was unlawfully assaulted by her father as she has claimed. (11) Evidence relied upon by the appellant as exculpatory 1. In the paragraphs that follow, absent any assistance from the appellant in the form of submissions, the evidence of a potentially exculpatory nature, introduced by him, is nevertheless reviewed to identify its probative value, if any. Local Court transcript of appellant's oral evidence denying the assault 1. In the criminal proceedings brought against the appellant, his evidentiary response to the evidence of his daughter, in which she described his assault upon her, was his statement : "No, that didn't happen": Exhibit "E", Vol 3, Tab 32, pp 2275.47. As will be explained in the course of the analysis of his evidence, the appellant's cited version was of limited and diminished probative value in these proceedings, given his lack of explanatory evidence to support the position he has taken, and also given his daughter's otherwise not improbable and contemporaneously noted account to the contrary. Documents emailed by appellant on 9 June 2021: Exhibit "Q" 1. On 9 June 2021, absent an appearance by the appellant, at 7.12am on that day, by email, he submitted a series of documents that were marked Exhibit "Q". Those documents, when considered both individually and in combination, do not in any sense provide the appellant with exculpatory evidence in this case. The Court has not been assisted by any focussed submissions on those documents because the appellant did not attend Court to make his final submissions on those matters. In those circumstances, the Court has been left to analyse those documents to determine whether or not any significant or determinative probative value should be assigned to them. That analysis, which relates to the eight documents that form part of Exhibit "Q", now follows. Statutory declaration by Mr Jarod Ainsworth 1. First, as part of Exhibit "Q", the appellant relied upon the statutory declaration of Mr Jarod Ainsworth affirmed on 17 April 2019. That document was prepared about 20 months after the underlying assault incident occurred. 2. Mr Ainsworth described having met the appellant and the child at a fast-food outlet at about 8.00pm on the evening of 6 August 2017. He said he had briefly chatted to the appellant, whom he had known for about 2.5 years, (before 17 April 2019). He stated that the child "appeared healthy and energetic and was cheerful" and he "noticed her running around the kid's play area". He said that "At no point did I see any physical impairment in her at any part of the body". Mr Ainsworth said he had a discussion with the appellant to that effect on the day after the child had been taken into care. 3. The consideration of Mr Ainsworth's evidence reveals it to be of limited probative value. It appears that he was not specifically looking for signs of injury on the child at the time he made his cited observations. His qualifications for detecting signs of injury were not stated. He was a former work colleague of the appellant. He does not suggest or claim that he has any medical qualifications. He did not describe the duration of his observations or the lighting conditions which prevailed at the time he made his observations. 4. Accordingly, Mr Ainsworth's statutory declaration does not serve as a reliable evidentiary basis for the appellant to displace the child's more contemporaneous detailed accounts as given to DoCJ workers, nor does it displace or contradict Dr Fletcher-Watson's contemporaneous professional observations. DoCJ file note dated 25 August 2017 1. Secondly, as part of Exhibit "Q", the appellant relied upon a DoCJ file note dated 25 August 2017, which made reference to a conversation between the DoCJ caseworker Mrs Currie and a Dr Rajan concerning the child's medical history. That conversation was limited to that doctor's last consultation with the child on 12 April 2017. 2. That file note does not provide a reasonable evidentiary basis for contradicting the child's more contemporaneous account of having been assaulted by the appellant some 4 months after that consultation. It is not clear as to what purpose the appellant thought could be achieved by relying upon this document to support his appeal. That lack of clarity was not assisted by the appellant in not making any submissions on that document. Letter from NSW Health dated 9 January 2018 1. Thirdly, as part of Exhibit "Q", the appellant relied upon a medico-legal letter from NSW Health dated 9 January 2018 which incorporated part of the child's medical record in which the process by which Dr Fletcher-Watson completed her SCAN report was described, including her discussion in consultation with Dr Buckmaster. 2. The evidentiary purpose of that letter did not emerge from the appellant's cross-examination of Dr Fletcher-Watson. The appellant did not require Dr Buckmaster for cross-examination. The possible evidentiary purpose of the document to the appellant's case, other than by way of background, remains obscure. Bankwest letter dated 29 January 2018 1. Fourthly, as part of Exhibit "Q", the appellant relied upon a letter from Bankwest dated 29 January 2018. That letter confirmed that the appellant's bank account was the subject of an ATM transaction at 7.04pm on 6 August 2017 at West Gosford, which is assumed to have been some distance away from his home. 2. The appellant appears to rely upon some kind of alibi based on this evidence. By itself, that material is of limited probative value as the timing of the appellant's assault on the child had not been precisely defined in the evidence. If the appellant had wanted to make something more out of this document, that intention unfortunately remains obscure because of his relative silence on this topic. Correspondence from a strata management company 1. Fifthly, as part of Exhibit "Q", the appellant relied upon a series of letters and emails ostensibly from BCS Body Corporate Services. One of those communications was said to be genuine, and the other one, fraudulent. 2. It appears that the appellant had intended to show that he had a vexatious neighbour, whom he presumed had made the complaint to DoCJ that ultimately led to these proceedings, the appellant's assertion presumably being that the neighbour had mal-intent towards him. Assuming that was his objective, he has not made good that claim by reliable evidence. Letter dated 8 June 2021 from Mr Phillip Screen, Psychologist 1. Sixthly, as part of Exhibit "Q", the appellant relied upon a letter dated 8 June 2021 from Mr Phillip Screen, a psychologist, who had been seeing the appellant professionally since 23 July 2019 for treatment of his anxiety and stress associated with "acquiring visitation rights with his daughter through the Family Law Court process". The appellant had attended sessions with Mr Screen on a total of three other unspecified dates, but apparently not in 2021. It was a matter of curiosity this letter only emerged towards the end of the proceedings. 2. Mr Screen had seen the appellant on a total of four occasions in the context of the appellant's Mental Health Care Plan. He provided the appellant with cognitive behavioural therapy, emotional regulation techniques and "Parenting / Assertiveness skills". Future therapy sessions were said to have been planned. It appears that the appellant had approached Mr Screen only recently, that is in 2021, and had requested further sessions under a new Mental Health Plan. The appellant did not disclose, in his own evidence the detail of those matters, or the factual basis of his most recent mental health plan. 3. If the appellant had intended to rely upon Mr Screen's letter as evidence of a change in his disposition or behaviour towards his child, and for some kind of proof of his claim of parental fitness, much more detailed evidence would have been required along those lines. 4. It is significant that the appellant disclosed this letter belatedly, near the close of the proceedings, and no steps were taken by him to call Mr Screen to give evidence to explore the matters referred to in his letter. Accordingly, this evidence is of only limited evidentiary and probative value. Statutory declaration by Mr Anoop Shrivastava 1. Seventhly, as part of Exhibit "Q", the appellant relied upon a statutory declaration affirmed on 19 April 2019 by Mr Anoop Shrivastava. 2. Mr Shrivastava had been acquainted with the appellant and his daughter as a neighbour for about 2.5 years before 19 April 2018, that is, for about 8 months before the assault incident of 6 August 2017. 3. Mr Shrivastava said that on the morning of 7 August 2017, which was the day the child was assumed into care, at about 8.00am on that day, he had seen the appellant and the child walking to school. At that time, he had stopped to have a brief chat with them. He said the child appeared happy and healthy, and "at no point did I notice any signs of injury or any physical impairment in her". He said he recalled the incident vividly because he became aware from discussion that the child had been assumed into care later that day. 4. Mr Shrivastava went on to state his belief that the appellant was a good and responsible parent and that the child was well cared for by him. Those statements were not further particularised with illustrative examples. 5. Mr Shrivastava's qualifications and his relative opportunity for observing the presence or the absence of injury to the child were not further defined or described. His evidence does not serve as a reliable evidentiary basis for displacing the child's more contemporaneous accounts given to DoCJ workers nor does it displace or contradict Dr Fletcher-Watson's contemporaneous professional observations. Statutory declaration by Mr Yogaboopathi Balakrishnan 1. Eighthly, as part of Exhibit "Q", the appellant relied upon a statutory declaration affirmed on 22 August 2017 by Mr Yogaboopathi Balakrishnan. He stated that he had known the appellant and the child for about a year. Omitting formal parts, the statutory declaration stated: "They have visited my home on Sunday 06th of August at around 5 pm to discuss enrolling into a dance class next day. [The child] and her dad were in my home for about an hour. During this time [the child] was playing with my daughter and was happy and healthy. She even showed us some dance moves she has been practising for her dance class. During the course of her stay I did not observe any obvious signs of injury or physical abuse on [the child]. Further I have known them for long enough and I consider Mr [appellant] to be a good parent." [Exhibit "Q"] [Names redacted] 1. Mr Balakrishnan's described observations, made between about 5.00pm and 6.00pm on 6 August 2017 do not form a reliable basis for contradicting the child's more contemporaneous evidence of the assault and the more contemporaneous observations of Dr Fletcher-Watson on the aftermath of the assault. Those materials do not serve to advance the appellant's case in these proceedings. Nor do they serve to exculpate him from the effects of his criminal conduct as described by his child. CCTV recording and sound files 1. The appellant relied upon the content of a USB flash drive which contained four electronic files. It was tendered in his absence, on his behalf, to give effect to an email communication he had sent to the Court with the intention to rely upon that material: Exhibit "V", Day 37. First electronic file: a CCTV recording entitled CCmp4, dated 13 February 2018 and timed at 1:44pm 1. The video comprising the file named CCmp4 was a 2' 25" series of visual images in an apparently continuous segment of what appeared to be a CCTV recording of the interior to the entrance to an apartment building showing the vestibule in the foreground, the metal framed glass doors in the middle ground, the courtyard garden, footpath and part of the roadway and the rear of a parked vehicle in the background. The time marking imprint on this segment was 18:11:01 on 6 August 2017. 2. The date and timing of that video material remains unexplained in terms of the chronological nexus between the events in question and the apparent time of the creation of the file on 13 February 2018. 3. The first movement of persons in the view of the camera is seen after a time lapse of 1' 39", at 18:11:39, when the appellant is recognisable as he walked into the framed view of the camera. Over the ensuing 12 seconds he is seen walking with a list to his left, carrying a slim female child close to the right side of his body in the crook of his right arm to a point where he leans forward on reaching the entrance doors, at which time he released the child, who then took her own weight onto her feet, and she then remained standing. 4. Then after a 22 second interval whilst the appellant and the child appeared to speak to what is assumed to be an intercom, the appellant is seen to open the door to the premises at 2' 13". 5. At that time, and over the ensuing 12 seconds to 2' 25", the appellant is seen to walk from the front door, diagonally, from the right to the left across the vestibule until he is no longer in the view of the camera. In that time, the child is seen walking parallel to him, to his right, walking whilst her arms were folded across her chest, wearing what appears to be a ballet costume, and wearing sandals or thong footwear. 6. Unfortunately, the appellant sought to introduce this evidence after he had given his own oral evidence, therefore a series of questions which emerged on a careful viewing of the video remain unanswered. Those questions are as follows. 7. First, is the girl shown in the segment the child the subject of these proceedings? This should be a matter of evidence, and not conjecture where the Court is not able to safely reach a concluded opinion on that question. 8. Secondly, was the segment filmed from a static CCTV camera without subsequent manipulation of the images? The segment on its face raises unresolvable doubts over those questions. Those doubts arise because it appears the camera does not remain in a static position, evidenced by slight, but nevertheless unexplained laterally shifting movements throughout the segment. Furthermore, from 18:13.19, the time signature on the top right of the image starts to move out of view of the camera disappear and is gone completely over the course of the few seconds that the appellant and the child are out of view. 9. It is beyond argument that courts must act on evidence, and not make findings based upon impermissible conjecture or unwarranted speculation: Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19; Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1, at [8], [10]. 10. Whilst it is possible that the child who is shown in the filmed segment is the child the subject of the proceedings, without confirmatory evidence on that matter, the Court is unable to resolve that question without venturing into impermissible conjecture or unwarranted speculation. 11. Whilst the time signatures on the filmed segment may be calibrated correctly, without confirmatory evidence on that matter, the Court is unable to resolve that question without venturing into impermissible conjecture or unwarranted speculation. 12. Whilst the apparent movement of the camera and the disappearance of the time signature on the recording may be explicable if one assumes the segment was in fact recorded by using a hand held camera filming to copy what was being displayed on a video monitor screen, without confirmatory evidence on that matter, the Court is unable to resolve that question without venturing into impermissible conjecture or unwarranted speculation. The appellant's reliance on a statutory declaration from Mr Ray Van Schie does not assist him in that regard. 13. Whilst the CCTV footage shows the child to be walking by herself for several seconds, and assuming for the purpose of analysis that the child seen in the video is the child the subject of the proceedings, in view of her evidence of injury on 6 August 2017, and the evidence of her limping as seen by Dr Fletcher-Watson on the following day, and in view of the fact that the appellant had seen fit to carry the child to the front door despite the fact she was not barefoot, a question arise, as to whether this footage was taken before or after the appellant had assaulted his child and whether any apparent absence of signs of the child limping should be taken to indicate the absence of injury, difficulty or discomfort. A further question arises as to why the appellant had to carry the child from the footpath, if not from further away, to the front door. Without confirmatory evidence on those matters, the Court is unable to resolve those questions without venturing into impermissible conjecture or unwarranted speculation. 14. On the basis of the foregoing analysis, the video material does not appear to provide a satisfactory basis for contradicting the evidence from the child as to the appellant having assaulted her as she has contemporaneously described. Nor does that material appear to serve to contradict the contemporaneous findings of Dr Fletcher-Watson which she made on the day after the date shown of the film segment: Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19; Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1, at [8], [10]. 15. If in fact there was satisfactory evidence which could have resolved those questions, the onus was on the appellant to adduce that evidence, and he did not do so. 16. This is somewhat surprising, given that the appellant was attuned to matters of forensic analysis, as was apparent from his criticisms of evidence that did not serve his interests in the proceedings. Evidence for that view is the appellant's reliance, albeit misplaced, on the forensic opinion of Dr DuFlou. Second, third and fourth electronic files respectively entitled LC1.wma, LC2.wma, LC3.wma, all stated to have been dated 27 May 2021 and respectively timed at 7:22pm, 11:22pm, and 7:26pm, containing audio recordings of the child speaking 1. Having regard to the apparent times of creation of the files entitled LC.1wma, LC.2wma and LC.3wma on 27 May 2021, it is difficult to see any apparent relevant nexus between the events in question in these proceedings and the dates on which those files were apparently created. 2. Notwithstanding that observation, in deference to the possibility that material might have some relevance to these proceedings, an analysis and commentary on those materials now follows, 3. As to the file entitled LC.1wma, an 8.3MB file, this apparently unauthenticated and partial selected sound recording, lasting 8' 36", without any verified date reference, has no obvious bearing of relevance to the issues to be decided in this case. The recording relates to a preliminary hearing in the Local Court criminal proceedings in advance of a hearing on the substantive charges that were later heard against the appellant, and which resulted in his conviction for assault and trespass offences. If this material was relevant, the appellant failed to attend to Court to present his arguments to establish such relevance. Listening to this recording was a waste of time. 4. As to the file entitled LC.2wma, a 75.3 MB file, this apparently unauthenticated and partial selected sound recording, lasting 1hour and 18 minutes, without any verified date reference, comprises what appears to be a partial recording of a Local Court hearing of charges where the appellant was the accused. This recording comprised a number of stages. The first 9 minutes recorded administrative set up difficulties. The next 40 minutes recorded what appeared to be the JIRT interview of the child by a police officer in the presence of the child's foster carer as a support person acting in loco parentis. After some further time consuming pauses due to technical difficulties, the presiding Magistrate took a few moments to explain to the child what was required in giving her evidence, and in those events he was satisfied the child, then aged nine years, understood the requirement to give truthful evidence. After a brief introduction of the child's evidence-in-chief, the appellant's lawyer commenced his cross-examination of the child. That cross -examination proceeded for about 9 minutes, during which time the child's evidence was not shaken in any material respect. Her answers directly responded to the questions asked, spontaneously without significant hesitation, and on their face, the answers appeared to be reliable. The recording was incomplete, but later, it appeared to continue on the next sound file. 5. As to the file entitled LC.3wma, a 18.4 MB file, on this segment of recording, the cross-examination of the child then continued from the previous recording summarised in the preceding paragraph. It was also a partial or selected recording that was not formally authenticated. It lasted for 19' 02". The substance of this segment of the recording touched upon two principal areas. First, in the cross-examination of the child, where her evidence was tested, she was heard to confidently, and at one point indignantly, reject challenges made on behalf of the appellant to the effect that he had never hit her, and that she had made up her account to the contrary. That cross-examination occupied 12' 19" of recording time. Secondly, the recording contained 3' 20" of the cross-examination of Leading Senior Constable Watson. He was the police officer who had conducted a formal record of interview with the appellant. That cross-examination sought to explore the answers to questions 26, 27 and 30, where two typographical errors were conceded. Nothing of consequence to the issues calling for decision in these proceedings arose from the evidence of LSC Watson. The record of interview referred to in his evidence was marked Exhibit "10" in the Local Court criminal proceedings, but it was not tendered in evidence in these proceedings. It was open to any party to do so if it was considered to be relevant. 6. The consideration of the establishment issue in these proceedings will include a careful review of the evidence described above, which was apparently put forward as being exculpatory of the appellant in support of his contention that the assault by him, as alleged by his child, "did not happen", a proposition that was forthrightly rejected by his daughter when she was cross-examined on very that point: Exhibit "E", Vol 3, Tab 32, pp 2275.47 and 2280.30. (12) Appellant's conviction for assaulting his daughter 1. After the child gave her evidence in the Local Court criminal proceedings, on 19 February 2018, the appellant was convicted on the charge of assault occasioning actual bodily harm to his daughter: s 59, Crimes Act 1900 (NSW). 2. The appellant's own evidence in those proceedings will be referred to at a later point in these reasons in a comparative analysis of his account of the underlying events. 3. In these proceedings the appellant has conceded that the clock cannot be turned back so as to expunge his convictions: Day 32, T656.16. 4. In the Local Court proceedings the appellant was also convicted of trespassing on school property, namely, being on prescribed premises without lawful excuse, which resulted in him being fined $400. 5. Following those convictions the appellant was sentenced to a term of imprisonment of 12 months to commence on 15 June 2018 and expiring on 14 June 2019. That sentence was ordered to be served by way of intensive correction in the community, in accordance with s 82A of the Crimes Administration of Sentence Act 1999 (NSW). 6. In that time an apprehended domestic violence order ("ADVO") was said to be in force to protect the child from her father for a period of 2 years from 19 February 2018. 7. On 19 July 2019, the District Court in its criminal jurisdiction at Gosford, dismissed the appellant's appeals from those findings and orders, and confirmed the appellant's convictions and sentences. In that regard, the intensive correction order was ordered to date from 19 July 2019 and to expire on 18 July 2020. It is not necessary to analyse the terms, timing or ultimate outcome, of the ADVO order in this appeal. 8. In these proceedings the appellant has misguidedly sought to make a great deal of fuss about the significance of some administrative correspondence he had with the Registrar of the District Court at Gosford suggesting a difference between the orders of the Court as made, and those described in that correspondence. 9. In that regard, the appellant distractingly claimed the existence of "fake" ADVO orders. That matter was an irrelevant consideration in this appeal but the appellant was repeatedly distracted by that subject matter, which has no bearing on the issues to be determined in this case. 10. The appellant's claims of "fake" orders goes nowhere in this case and such claims do not serve to diminish the significance of the underlying facts which led to the appellant's criminal conviction for assaulting his daughter. 11. The evidence of the appellant's convictions and the consequential sentences and orders that were imposed upon him as a result of such convictions is in a reliable form and should be accepted as proof of those matters and the facts which underpin those convictions. 12. Significantly, as previously cited, the appellant's daughter gave compelling evidence against him in the criminal proceedings in the Local Court. She was cross-examined on that evidence by the lawyer who was then acting for and representing the appellant. 13. In the course of that cross-examination the appellant's daughter convincingly rejected the assertion that had been put to her by her father's lawyer to the effect that the events she had described, being the criminal actions of the appellant, had never happened. 14. That evidence given by the child in the Local Court proceedings was tendered in these proceedings. That evidence is reliable. The appellant's explanation to the effect that his lawyer's questions asked in cross-examination of the child, had been asked without his instructions, was unconvincing. 15. This is because the record of those proceedings shows there was time for discussion to take place between the appellant and his lawyer before those questions were asked. For the appellant to rely upon the very serious assertion that questions had been asked without his instructions, cogent evidence is required to justify an assertion of such gravity: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. 16. In these proceedings, the appellant ultimately made the significant concession that he does not contradict his daughter's account of the underlying events: Day 31, T614.47. 17. Therefore, in the absence of substantive challenge, the compelling conclusion is that the child's evidence is reliable and it should be accepted. He is estopped from denying the fact and effect of the cited convictions and sentences. 18. As a consequence, it became incumbent upon the appellant to give some cogent explanatory evidence on those matters where he seeks to overcome the child protection consequences of those convictions. Such evidence would ordinarily be expected to include a sufficient acknowledgment of the egregious seriousness of the events in question, and some cogent detail of remedial efforts on his part to indicate an unlikelihood of a recurrence. Ultimately, his evidence was of insufficient character or content to have that effect. (13) Foster care arrangements following the child's removal from parental care 1. Whilst the initial placement of the child into foster care following her removal from her father's parental care was not an ideal arrangement, and whilst that foster placement was initially thought to be a temporary measure only, that placement has subsequently evolved into a satisfactorily permanent placement. DoCJ considers that placement to be safe, supportive and nurturing. The child has indicated that she is happy in that placement. 2. That said, whilst recognising that no out-of-home placement of a child could be a perfect arrangement, many of the child's needs are in fact being met. DoCJ caseworkers have acknowledged that in the Central Coast region, it is difficult to fully cater for the child's cultural and religious needs. 3. However, the evidence persuasively suggests that the current placement is more than just barely adequate for the child's cultural needs. The latter consideration is being addressed by the child being provided with opportunities for cultural contact with a suitable family of Indian cultural background who live in the same area where the child has been placed. 4. The appellant claims the child was being manipulated or has been coerced into saying that her placement is suitable. He has not called any reliable evidence to support his assertions in that regard. 5. Naturally, the child's view of her situation in her placement has varied over the course of the four years she has been in that placement. At an early stage, when she was less mature, she indicated she wanted to go to America to be with her mother. At another stage, somewhat impractically, she said that she wanted to spend equal alternative time with both parents in separate countries. 6. However, taking an overall view of the placement, the child's most recently expressed wishes, the confluence of the opinions of child protection workers, and the child's treating paediatrician, support the compelling conclusion that the current placement is suitable to the child's needs. 7. The appellant sought to undermine that view by seeking to pursue "fishing" subpoenas that were set aside as lacking a legitimate forensic purpose. That quest was misguided for many reasons, but principally because, as was pointed out to the appellant by the Children's Court Magistrate, the case was not about the adequacy of the placement, but was about whether restoration was indicated. 8. In any event, other than the appellant's dogged belief that the child's placement was unsuitable, he has not produced any cogent evidence or persuasive arguments to that effect. 9. In the appellant's endeavour to advance the proposition that the child's placement was unsuitable because a risk of harm from sexual assault had been raised in respect of another person at the placement premises, he had no effective answer to the evidence from DoCJ that established that event had been transient, no harm had occurred to his child, and the risk no longer existed because of changed arrangements. The evidence called by DoCJ effectively, satisfactorily and convincingly met and answered the appellant's expressed concern on that particular matter. 10. Similarly, the appellant's claims that the child had lied in the past in order to protect the carers is a matter of diminished importance to the assessment of the adequacy of her care placement. DoCJ staff have appropriately investigated the matter of concern which has been effectively and convincingly allayed. 11. In those circumstances, absent sound reasons for taking a contrary view, the views of the DoCJ caseworkers, the treating paediatrician, and the views of the child as expressed through her direct legal representative, should prevail over the appellant's unsupported and emotion-driven suspicions, accusations, and complaints to the contrary. (14) Procedural history of the Children's Court proceedings 1. The establishment phase of the Children's Court proceedings concluded on 6 November 2017 when that Court found that the child was in need of care and protection pursuant to s 71(1)(a), s 71(1)(c) and s 71(1)(e) of the Care Act. 2. Ultimately, on 12 December 2019, the Children's Court found it was satisfied that there was no realistic possibility of the child being restored into parental care of either or her parents, and on being satisfied as to the permanency planning for her care, the Children's Court proceeded to make final orders allocating parental responsibility for the child to the Minister. 3. Since then, the child has remained in foster care in conformity with the original care plan as modified by subsequent amended care planning. The appellant is considerably aggrieved and dissatisfied by the effect of those final orders. 4. As has already been identified, the child did not give evidence in the Children's Court proceedings, but the Children's Court received cogent accounts of the underlying events from several sources that were attributed to her. 5. The result of the Children's Court proceedings was that the mother had unsuccessfully applied for parental responsibility for the child to be allocated to her. In this appeal she has not sought to challenge that decision. 6. Similarly, in the Children's Court, the appellant father also failed to establish his suitability for parental responsibility to be re-allocated to him. 7. In this appeal, the appellant father seeks a different outcome to that which prevailed in the Children's Court. He therefore bears the evidentiary burden of adducing satisfactory evidence to justify such an outcome. (15) Reasons for decision of the Children's Court 1. On 14 November 2019, the Children's Court Magistrate delivered his reasons for refusing to allocate parental responsibility for the child to either the mother or to the appellant. 2. In reaching that conclusion, the Children's Court Magistrate found the appellant father's submissions to be unconvincing. Those findings required that an amended care plan had to be prepared for consideration by the Children's Court. The date for that consideration was set for 6 December 2019: Exhibit "M", Vol 2, Tab 37, pp 1694 – 1741. 3. It is evident from the detailed and comprehensive reasons of the Children's Court Magistrate that, in arriving at the decision to refuse allocation of parental responsibility to either parent, all relevant evidentiary and statutory factors were appropriately considered, including the questions of establishment, restoration and placement. 4. The establishment issue was convincingly and satisfactorily made out in the Children's Court proceedings. This was not only because the father had initially conceded that question, albeit "without admissions", but also because the Children's Court Magistrate properly exercised his jurisdiction and inquired into that question, and was satisfied that the evidence tendered in those proceedings justified the conclusion that the establishment issue had been satisfactorily made out: Exhibit "M", Vol 2, Tab 37, pp 1701.10 – 1717.22. 5. That finding serves to eclipse and render irrelevant the father's "without admissions" argument on the establishment issue. 6. The consequential question of whether or not there was a realistic possibility of the child being restored into parental care was comprehensively considered by the Children's Court Magistrate after correctly identifying and reviewing the applicable legal principles: Exhibit "M", Vol 2, Tab 37, pp 1716.24 – 1738.40. 7. In essence, on multiple grounds, the Children's Court Magistrate rejected the suggestion of the possibility of a restoration of the child to her mother. Those grounds included the fact that critical aspects of her evidence were not accepted, prioritising the needs of her new partner and newborn child ahead of the needs of the child the subject of the appeal, a lack of insight into the harm caused to the child by relinquishing her care to the appellant when she relocated to the USA, and a profound lack of insight that the impact of domestic violence has had on the child, and the fact that the mother lacked the necessary skills to cater for the child's emotional and psychological needs: Exhibit "M", Vol 2, Tab 37, pp 1725 – 1738. In addition, there was the obvious problematic and further difficulty of the unacceptability of an enforced international relocation of a child who is an Australian citizen. 8. The Children's Court Magistrate also rejected the suggestion of a restoration of the child to the father because of the finding that there was an unacceptable risk of harm to the child from physical assaults by the father where that risk remained extant. 9. On the evidence before the Children's Court, child abuse of that character was correctly considered to be a risk not capable of amelioration by the implementation of safeguards. That finding was plainly open on the evidence that was before the Children's Court. A finding was therefore made that there was no realistic possibility of restoration of the child to her father, the appellant: Exhibit "M", Vol 2, Tab 37, pp 1719 – 1725. 10. In making those findings, the Children's Court Magistrate noted that the father had taken an obstructive approach when giving his evidence in that Court, including a refusal to take ownership for his actions, despite the findings made against him in Local Court criminal proceedings which were confirmed on appeal in the District Court criminal proceedings: Exhibit "M", Vol 2, Tab 37, pp 1720.40. 11. The Children's Court also made findings to the effect that the father's case for restoration was not at all credible because it was based on the self-serving and inherently implausible propositions as relied upon by the father: Exhibit "M", Vol 2, Tab 37, p 1720.48. 12. The Children's Court also made a series of findings that the appellant had not adequately engaged in assessment and counselling programs, he had not accepted responsibility for what has happened to his daughter, he lacked insight and understanding concerning his harmful behaviours, he failed to adequately engage with the Department on the issue of domestic violence, he failed to acknowledge concerns arising from his contact visits with the child (Exhibit "M", Vol 2, Tab 37, p 1721), and he had been combative and disrespectful in his behaviours towards DoCJ staff: Exhibit "M", Vol 2, Tab 37, p1723. 13. Those conclusions by the Children's Court Magistrate were plainly open and they were compellingly supported and justified by the evidence that was before the Children's Court. That evidence was comprehensively analysed and correctly considered by the Children's Court Magistrate, as is evident from the content of his reasons for decision. 14. That observation does not overlook the evidence from the appellant as to coursework certificates relied upon to claim he was now a suitable parent. Those documents will be analysed at a later point in these reasons in summarising his evidence. 15. Having considered the evidence that was before the Children's Court, based on that evidence, the conclusions reached by the Children's Court Magistrate are plainly correct. The conclusions identified in the reasoning of the Children's Court Magistrate were irresistible on the evidence that was before the Children's Court. 16. That was so, especially given the father's bizarre refusal to answer an extensive series of highly relevant and material questions that had been put to him in cross-examination in the Children's Court proceedings, for example, as recorded in Exhibit "E", Vol 2, at Tab 16, pp 1158 – 1170. 17. On appeal, the consequential burning questions are : first, were those findings open on the evidence, and secondly, what if anything has changed since, that might justify a different outcome. The answer to those questions, in sequence, is first, yes, those findings were available on the evidence, and secondly, nothing of a material nature has changed with regard to the appellant as to his parental suitability. (16) Orders sought by the appellant's summons commencing the appeal 1. On 7 January 2020, the appellant filed his summons commencing this appeal. That summons sought orders as follows: "1. Appeal allowed; 2. Leave to appeal from the whole of the findings below; No realistic possibility of restoration of [the child] within a reasonable period of time to her father, [named]; No realistic possibility of restoration of [the child] within a reasonable period of time to her mother, [named]; Judgment Order 1 of the court below be set aside; Leave seeking appeal to set aside order 1 dated 12 December 2019 allocating parental responsibility to minister for families, communities and disabilities services; 4. Leave seeking appeal to reject amended care plan filed by department on contravention against court orders and not served on parties; 5. Leave seeking appeal to appoint a culturally appropriate consultant to prepare an independent clinical assessment to seek child's views." [Names redacted] (17) Appellant's deficient conduct of his appeal 1. The record of events occurring in the appeal proceedings shows that on any reasonable view, the appellant has conducted his appeal inefficiently, obstructively, and in an unhelpfully misguided manner. 2. An example of the appellant's obfuscatory behaviour, on Day 32, is recorded at T690 – T691. 3. These appeal proceedings became unnecessarily complicated by the appellant's self-representation. The appellant is the author of those circumstances. His self-representation has continued despite his claim, made on several occasions, of having had access to legal advice during the currency of the appeal. 4. The content of any such legal advice obtained by the appellant is not known. Whether he has conducted himself in accordance with the legal advice that he received, also remains unknown. 5. In that regard, as has already been observed, the appellant seems to have ignored the requirements of Practice Note DC (Civil) No. 5 concerning the timely presentation of affidavit evidence in support of his appeal. 6. In light of the importance of the issues at stake, and in deference to the practical disadvantage under which the appellant was operating due to his self-representation, many procedural indulgences and latitudes were extended to him in the course of the hearing of the appeal, and beforehand, at the case management stage. 7. As at 6 November 2020, in the course of the hearing in Newcastle, with some empathy to the appellant's impassioned pleading as to the circumstances, the Court reached the conclusion that, on the basis of the oral outline he had provided, he had an arguable case. 8. That threshold view was the basis upon which, in the interests of the proper administration of justice, the appellant's case was not dismissed at the outset, as was sought by the Secretary, although there were many preparation shortcomings on the appellant's part, as was pointed out on behalf of the Secretary: Y v The Secretary, Department of Communities and Justice [2020] NSWDC 674. 9. Nevertheless, since that time, the continuing sentinel failure of the appellant to comply with a sequential series of procedural orders requiring him to file his affidavit evidence in support of his summons which commenced the appeal, remained stark, significant, and telling. 10. The appellant's claim of an historical inability for him to access documents and collate material for inclusion in supporting affidavit evidence because of COVID-19 restrictions in Newcastle, should be rejected as a fundamentally unreasonable proposition, given the significant period of time over which his procedural defaults have persisted, despite several remedial opportunities having been afforded to him before the substantive hearing commenced. 11. In the context of a case of this kind, it is bizarre that the appellant has never filed any substantive factual affidavit evidence to support his appeal, despite the many orders requiring him to do so. He has remained in persistent and continual default of those orders. 12. Notwithstanding the appellant's continuing failure in that regard, in the interests of justice, including justice to the child, the appellant was permitted to give oral evidence in support of his appeal. An evaluation of that evidence will be summarised in these reasons in due course in the context of an evidence review. 13. In the meantime, at this point, it is sufficient to say that the content of the appellant's oral evidence fell well-short of the content that was needed to persuasively substantiate his appeal. 14. Furthermore, the belatedly disclosed evidence that the appellant is the subject of a current mental health plan raises a concern that remains unexplained by satisfactory evidence. The appellant bore the evidentiary onus on that matter. 15. The compelling conclusion is that despite the extensive facilitative procedural latitude that was extended to the appellant in the course of the proceedings to enable him to present his appeal, he has conducted his appeal in an incompetent manner that was manifestly deficient having regard to the well-understood procedural requirements that are expected to be observed in such cases: Practice Note DC (Civil) No. 5. (18) Appellant's disrespectful and disruptive behaviour in Court 1. It is necessary to say something further about the appellant's courtroom behaviour and his conduct of the litigation. 2. As was remarked upon during the course of the hearing, he is obviously an intelligent and resourceful man with advanced tertiary educational qualifications. He stated, and there was no reason to doubt, that he spoke seven languages, and that he was one of the few engineers who had been trained in the full production of the nuclear fuel cycle necessary to design a nuclear weapon: Day 6, T94.30. 3. In the course of the proceedings, the appellant also saw fit to indulge in grandiosity when he informed the Court, in grandiloquent terms, that he functioned at a high level in a profession that was held in higher esteem than lawyers: Day 30, T551.16 – T551.18. 4. On 1 June 2021, at a directions hearing in Sydney on Day 30, the appellant again indulged in irrelevant self-aggrandising statements, in which he suggested that his profession was the most credible and respected profession, again asserting with considerable grandiosity, after the health care professions, and that "legal lawyers and judges" were the "worst", according to his self-constructed hierarchy: Day 30, T551.13 – T551.18. 5. In the course of the proceedings, the appellant frequently sought to interrupt the flow of evidence, and he often sought to speak over others, especially on the occasions when he disagreed with the substance of what was being said. 6. The appellant's litigation misbehaviours have taken several forms. This included: his dilatory non-compliance with pre-hearing case management orders aimed at facilitating the efficient determination of the proceedings; his failure to file and serve affidavit evidence in a sufficient and timely manner; his aggressiveness and his grandiosity in the presentation of some of his arguments on points that arose for discussion in respect of rulings made in the proceedings; raising irrelevant matters; his disruptive behaviour including his disrespectful, disparaging, abusive and threatening statements directed at the Court, and at the legal representatives of the parties. 7. Throughout the litigation, it was evident from the appellant's behaviour and from his comments, that he chose to adopt an intentionally arrogant and provocative attitude of rudeness and grandiose superiority. This extended to him making insulting, scandalous and threatening remarks, and related commentaries. 8. The appellant took many opportunities to express criticisms of the legal profession generally, and the legal practitioners representing other parties in the case, and in relation to the Court. He created time-wasting opportunities for making irrelevant gratuitous, defiant and scandalous assertions in the course of exchanges on matters requiring procedural rulings. Those instances were on a spectrum that ranged from the mild to the extreme, the latter requiring that the appellant be rebuked for such aberrant behaviours. 9. The appellant's remarks in that vein also extended to him making irrelevant references to the alleged criminality of a Federal Minister who held high office, and to a senior State public servant. 10. Over the course of the proceedings, the appellant persisted in making insulting, sarcastic and disrespectful remarks to the Court. This was especially evident at times when he perceived that procedural rulings or corrective directional comments had or might have operated against his interests in the litigation. 11. It was plain that the appellant's courtroom behaviour and his conduct varied significantly depending upon whether or not he perceived the emergence of a point or a ruling that might or could operate adversely to his interests in the litigation. 12. The variations in the appellant's courtroom behaviour vacillated from him being benign and polite, to being hostile, voluble, provocative, disparaging, and disrespectful, accompanied by his emphatic efforts at inappropriately personalising his comments not only to the Court, but also to the legal practitioners appearing in the case, and in relation to particular DoCJ personnel. 13. At times, the appellant's emotionally laden and invective outbursts became elevated to fever pitch, especially when it appeared that he considered it was opportune to make provocative and scandalous comments about the Court as constituted to hear his appeal. He also targeted the legal practitioners present in Court, and the Secretary of DoCJ, with his insulting remarks. 14. The appellant persisted in that course notwithstanding that he was informed he was not assisting his case by making such comments, and notwithstanding that on several occasions, it became necessary to inform him of the potential adverse consequences for him of such behaviour, according to the punitive provisions of s 200A(1) and (2) of the District Court Act 1973 (NSW): Day 26, T247.43; Day 32, T666.17 and T717.5. 15. Those warnings seemed to have had little inhibiting effect on the appellant, and at times he maintained a defiant attitude in the face of rebukes for his misbehaviour. Some of his threats were delivered in a menacing tone, which necessitated the deployment of additional courtroom security personnel as a precaution for protecting the safety and well-being of the persons who were necessarily present in Court. 16. The numerous occasions on which the appellant displayed disrespectful aggressive behaviour and made disparaging remarks to the Court, including threats, are identified in the transcript references set out in Appendix A to these reasons. (19) Threats made by the appellant in the course of the proceedings 1. In addition to the many disrespectful comments the appellant made to the Court, he also articulated a number of threats that were plainly intended to have an intimidatory effect in the proceedings. 2. The appellant's threatening courtroom misbehaviour during the course of the proceedings required that he be rebuked on a number of occasions. 3. On 2 November 2020, on Day 6 in Newcastle, in the course of a procedural discussion where the appellant's incorrect understanding of the events was being corrected, he made the following relatively benign but nevertheless contemptuous disrespectful statement: "APPLICANT: You – you just made it into the Hall of Fame. HIS HONOUR: Mr [appellant's name], like with all of your other colourful comments and pejorations— APPLICANT: It is not a colourful comment, it is a fact, your Honour." [Day 6, T85.50 – T86.8] [Emphasis added] 1. On that same day, at a time when the appellant was being asked to calm himself and confine himself to matters of relevance when making submissions on a matter that required a ruling on his application for judicial recusal on the ground he articulated as being "perceived bias" (Day 6, T87.22), the appellant made the following threatening statement: "APPLICANT: Whatever is going to happen from here, your Honour, I can tell you, you would be very sad to have chosen this career because I am of the impression that you don't have the courage to go against the department in the interests of justice and in the interests of the child." [Day 6, T95.1 – T95.4] [Emphasis added] 1. On 9 April 2021, on Day 23, at a directions hearing in Sydney, after directing a series of derogatory and insulting statements to the Court, without apology when rebuked, the appellant proceeded to make a menacing statement to the effect that the Court would soon need to use the duress button located in the court room, the implication being that there would be a need to summon protective assistance: Day 23, T11.1 – T12.9. 2. Initially, on several occasions, the appellant was informed that for expediency, his courtroom misbehaviour was being overlooked due to the obvious emotional upset that was affecting him. In those circumstances, further consideration of the consequences of the appellant's misbehaviour in Court was deferred in the overriding interest of ensuring that the primary focus in the proceedings was directed to the child's paramount best interests, as required by s 9(1) of the Care Act. 3. In the course of the proceedings, the appellant continued to make threatening remarks in Court, seemingly whenever he felt the need to do so, even after the potentially punitive effect of s 200A of the District Court Act 1973 (NSW) had been drawn to his attention. 4. Regrettably, the appellant's unusual litigation behaviour tended to recur, and it extended to him at times continuing to make disrespectful, disparaging, abusive and threatening remarks. 5. On 9 April 2021, the appellant displayed menacing and threatening behaviour when, during discussions he was asked to stay on point. There were two particular occasions when he made threatening comments on that date. 6. The first occasion was as follows: "APPELLANT: When you reflect that, there - there is a special place in hell that has been reserved for people like you. A special place in hell. I'm telling you that. That's what - that- that amount of - all the karma will catch up with people - people like you. There is a special place in hell which has been specially made for you. If you think that--" [Day 23, T17.6 – T17.10] [Emphasis added] 1. Secondly, on 9 April 2021, the appellant also stated: "APPELLANT: Well, probably that could have suited you more than the secretary then. So that's - and again, you - you - it comes that you - the first thing that comes to you is you, and then the secretary, so it would have served your own purpose more that the secretary's purpose. So again, that is actually an extended apprehended bias. That's what I would call it Mr Levy, you are just someone who is just full of yourself. That is - that is the end. HIS HONOUR: : Okay, you've been insulting enough. APPELLANT: That is - that is what - that is exactly what you are. HIS HONOUR: Just confine yourself to the issues. There's no need to be insulting. Just have regard to the occasion where you sit. It's a formal-- APPELLANT: Well, I don't think that-- HIS HONOUR: --formal place. APPELLANT: --any form of submissions would insult you. You're so thick skinned that nothing would insult you. You should have seen so much of - as I said, there is - there is karma waiting for you when you-- HIS HONOUR: You've said that. Just move on to your next submission, please. I don't need for you to repeat yourself." [Day 23, T20.12 – T20.35] [Emphasis added] 1. On 24 May 2021, it became necessary to remind the appellant to behave in a proper manner whilst in Court: "I take this opportunity to remind you in light of previous events, especially on the last occasion, where you used threatening language and gestures in the courtroom, that special arrangements have been made for a security presence in the Court, especially in light of your comment that I will be soon needing to press the button, meaning the duress button. So I just remind you that you are required to behave in a proper manner befitting your appearance in Court where your focus should be on the issues that represent the business of the Court. Are you ready to proceed?" [Day 24, T2.17 – T2.24] 1. Later, the same day, on 24 May 2021, which was the first day of the resumption of the substantive hearing of the appeal in Sydney, whilst addressing the Court, the appellant made the following threatening statement: "I will ensure that you will not proceed – you will not continue to hear this matter anymore": Day 24, T18.1, [Emphasis added]. 2. On 25 May 2021, Day 25, during exchanges that dealt with the appellant's dispute over the correctness of the record of orders made by another Judge of the Court sitting in the criminal jurisdiction dealing with the appellant's appeal from the decision of the Local Court, where he was convicted of assaulting his daughter, the appellant's tone became elevated. 3. In the course of that discussion, the appellant issued the following threatening remark, although he denied that it was a threat: "APPELLANT: This will be the - this will be the benchmark - this will be the line I'm drawing and if this is not resolved to my satisfaction, this will be the end of the appeal and I can tell your Honour, and I'm saying this. I'm very well aware of the consequences and I'm aware of this thing being recorded, if that were the path to be taken there will be consequences, far reaching consequences. The consequences for which your Honour will be very far reaching and I wish not to take that path but I'm telling you, I'm saying this, very well aware of the consequences of saying this in an open Court. If I have to take that path-- HIS HONOUR: What consequences are you talking about? APPELLANT: The consequences which are available to me, which are available. If I have to because-- HIS HONOUR: You're not making yourself clear. APPELLANT: Well, you're not understanding. HIS HONOUR: Are you threatening me, Mr [appellant's name]? APPELLANT: No, your Honour, that's your interpretation of the things. The consequences--" [Day 25, T154.19 – T154.41] [Appellant's name redacted] [Emphasis added] 1. On 3 June 2021, Day 32, during some courtroom exchanges with the appellant on procedural matters (Day 32, T716.20 – T718.6), his arguments included disrespectful comments, and his delivery tone became raised, to the point where, in a threatening manner, he referred to unspecified consequences, as is recorded in the following extract: "HIS HONOUR: Lower your tone. APPELLANT: This has reached a point of a situation, your Honour, and I can tell you now from here the consequences arising from here are that I have lost complete confidence in your ability to deliver justice. HIS HONOUR: You have told that same thing to the Children's Court magistrate and you have also told it to me on several occasions. Just make your submission or sit down." [Day 32, T717.48 – T718.6] [Emphasis added] 1. At times it was necessary to counsel the appellant to contain his abusive tirades, and to desist from making pejorative and disrespectful references to the Court: Day 32, T717.8 – T717.17. 2. On multiple occasions during the hearing, the appellant's behaviour gave rise to a need to inform him that he might be removed from the courtroom if his disruptive behaviour continued: Day 23, T45.43, T45.47; Day 24, T12.37; day 26, T201.41; Day 27, T301.37; Day 31, T636.49; T637.4; Day 32, T713.41, T717.1, T718.44. (20) Procedural delays due to appellant's litigation conduct 1. It is apparent from the record of the Children's Court proceedings, and from the record of the appeal proceedings in this Court, that each set of proceedings have been afflicted by undue delays. Despite the appellant's early protestations to the contrary (Day 2, T44.24) the delay has plainly been occasioned by the appellant's litigation misbehaviour. 2. On occasion, those delays were compounded by the appellant's absences for claimed medical reasons, both in the Children's Court proceedings and in these proceedings, where not all of those absences were adequately explained by medical certificates. 3. In the appeal, manifest delay occurred at an early stage due to the appellant's lack of timely diligent attention to the preparation demands of his litigation. Further delays then arose due to the appellant's misbehaviour in Court, including his time-wasting conduct, as has already been outlined. 4. Recurrent delays also occurred due to the appellant's serially apparent inability to attend Court at the well-understood expected starting time of 10.00am on many of the listing days of the appeal. He also frequently engaged in distracting and argumentative delaying tactics. This was a matter that was remarked upon in the course of a directions hearing: Day 7, T159.42. The appellant frequently arrived to Court late, thereby continuing to waste and divert public resources. 5. The appellant was also rebuked in the Children's Court for what was referred to there as his completely unsatisfactory conduct in not arriving at Court on time, and instead, on one occasion turning up at 11.25am, thereby wasting Court resources which were at that time identified to him as an expensive public commodity: Exhibit "M", Tab 8, pp 557.29 – 558.45. 6. The transcript of evidence of the proceedings in this Court shows that the appellant conducted his cross-examination of witnesses with time-wasting prolixity, despite attempts at encouraging and requiring him to adopt a more efficient, non-repetitive, and structured approach. 7. At times, he wasted court time by sitting at the bar table and simply turning pages without asking questions of witnesses whom he had required to be present. At times, he exhibited an attitude of defiance when rebuked about his litigation conduct. 8. In the Children's Court proceedings, the appellant had to be rebuked for wasting time in a similar fashion, by just sitting there and page turning instead of asking questions, having "literally had months, if not years, to prepare for this hearing": Exhibit "M", Tab 12, p 936.19. Consequent upon his unhelpful approach to his appeal, the hearing of the proceedings became needlessly prolonged. 9. The appellant's, apparent lack of organisation in presenting and attending to the procedural requirements of his appeal as required by Practice Note DC (Civil) No. 5 was also a significant cause of delay in this case. 10. In that regard, the appellant did not provide advance notification to the Court of his objections to the evidence proposed by the Secretary, as was required by cl 2.1 of that Practice Note. At directions hearings, he did not give a timely indication of any new evidence upon which he intended to rely, as was required by cl 2.3. His lack of preparation for his appeal did not assist in facilitating the Court's well-understood aim of listing appeals such as this for priority hearing within 3 months of the filing of the notice of appeal, as indicated in cl 4.1. (21) Delay due to concern proceedings were being impermissibly recorded 1. Towards the end of the proceedings, on Day 33, an unexpected source of additional delay occurred on account of an aspect of the appellant's courtroom activity. This arose from his ambivalent responses to questions asked of him in circumstances where there was a concern that he might have been impermissibly recording the proceedings. This was a matter that required investigation. 2. Beforehand, within the body of the evidence, there was a documented historical instance of concern that had been raised over the appellant's behaviour at a supervised contact visit with his daughter. The circumstances were that a contact worker had raised a concern that the appellant had been impermissibly secretly recording events occurring during the contact visit. The appellant's daughter had also expressed a concern over him making a recording at a contact visit. Of themselves, those concerns were of no particular consequence in the appeal proceedings. 3. On 4 June 2021, during the closed court hearing of the appeal, the court officer who was present on duty at that time properly raised a concern that the appellant may have been impermissibly recording these closed-court proceedings by using his electronic devices located on the bar table. 4. When the Court raised that specific matter with the appellant he was asked questions directed at clarifying that matter. At that time, his responses were considered to be hesitantly ambivalent and evasive, with significant delays being evident between the end of questions and the commencement of his answers, accompanied by disengagement of eye contact by the appellant at those times. The transcript of those exchanges does not identify the extent of those inordinately long pauses before the appellant gave his delayed answers. 5. In those circumstances, the appellant's responses and the attitude he displayed in those responses raised concerns as to whether he was in fact making an impermissible secret recording: Day 33, T728.27 – T729.26. 6. Consequent upon the appellant's ambivalent answers, at the conclusion of the day's proceedings on 7 June 2021, an order was made for the Sheriff to impound the appellant's three electronic devices that he had been operating at the bar table. Those devices were then impounded for the purpose of the Sheriff arranging a forensic examination of the devices to determine whether or not the appellant had been impermissibly recording the proceedings: Day 34, T770.16 – T770.26. 7. Subsequently, the Sheriff enlisted police assistance for the task of forensically examining the appellant's devices. Ultimately, that task has taken some considerable time to complete. It appears the task remains incomplete at this time. Although there have been communications between the Sheriff and the appellant that touch upon this issue, it would be inappropriate to speculate on the reasons why that investigation remains incomplete. 8. The precise details of the full course of communications between the police and the appellant on this issue are not in evidence, but it is clear from the communications that are in evidence that the appellant had been appropriately informed as to how he could retrieve his devices if he wanted to do so. 9. On 17 and 23 June 2021, the appellant contacted the Court by email using the same email address he had used in the course of the proceedings, to ascertain how he might retrieve his electronic devices. In response, in addition to information that has been provided to him by others, he was informed of the necessary procedure by means of an administrative email. 10. Nothing further has been heard from the appellant in the way of specific reasons why he was experiencing any particular difficulty in making his submissions without his electronic devices, noting that in any event, he has paper copies of the relevant exhibits and he has been provided with the transcripts. (22) Effect of these unresolved childcare proceedings on the child 1. The evidence reveals that the fact of the unresolved state of these appeal proceedings over an extended period of time has had a significantly deleterious effect on the mental health of the appellant's daughter. 2. Whilst the removal of the child from the appellant's parental care was justifiable in the interests of child protection, his prior history of abusive behaviour to her has meant that the natural parental attachment between the father and his daughter has very likely become significantly disrupted if not damaged, and the child's cultural identity has been needlessly diluted by her removal from his parental care as a consequence of his actions. 3. An unfortunate consequence of the physical abuse which the appellant has inflicted on his child is that she is now affected by anxiety and depression. The evidence confirms that she receives appropriate psychological and medical support and treatment for those problems. The child's treating paediatrician and her treating psychologist gave satisfactory evidence on those matters. That evidence was not the subject of material contradiction by the appellant. 4. Despite what has happened to the child, in these proceedings, through her direct legal representative, she has expressed the hope that once these proceedings are finalised, and she no longer has to remain anxious and lose sleep over the possible outcome, she may over the course of time be able to salvage some meaningful relationship with her father, but not in his parental care. 5. Against the background of the Children's Court proceedings having taken 13 non-consecutive days before finalisation over the course of 11 months, the present appeal proceedings have taken a further 18 months from the date of filing of the appellant's summons commencing the appeal to reach this point. 6. In that period, the cumulative delays have caused the child to become distressed and anxious in relation to the continuing uncertainty that has been engendered by these prolonged proceedings. 7. The appellant has claimed that his preparation for the appeal was significantly delayed, in part due to access restrictions in relation to Court files on account of COVID-19 regulations that were then in force in Newcastle. Those claims have led to a series of interlocutory applications which were each considered and decided on their merits. 8. Despite the appellant's complaints of litigation disadvantage in that regard, the validity of those complaints should not be accepted. The Court Books to which the appellant has had access contain all the necessary evidence and material required for him to participate in a fair and proper appraisal of the evidence and the issues raised in the appeal, being a re-hearing of the Children's Court proceedings. Before he received the Court Books he was also in possession of copies of relevant documents that were relied upon in the Children's Court proceedings. These are included in the Court Books, and he was present at those proceedings. 9. To the extent that the appellant intended to tender additional evidence in these proceedings, subject to fundamental considerations of relevance, timeliness, and the appropriate level of attention he needed to give to his appeal, the onus was on him to do so in a manner that was compliant with not only those requirements, but also with the Court's standard procedural rules and practice notes which are framed with the paramount interests of children in mind. The product of the appellant's endeavours in that regard, have been deficient and meagre, to say the least. 10. In light of the appellant's persistently recurrent claims alleging that he was being denied procedural fairness, it is appropriate that some explanatory detail of the relevant antecedent procedural events be set out in summary form in an appropriate chronological and procedural sequence, as now follows. (23) Pre-October 2020 procedural history of the appeal proceedings 1. The paragraphs appearing under the four sub-headings that now follow summarise what turned out to be a series of interlocutory hearings in Newcastle which proceeded where the appellant was ordered to file his affidavit material in support of his appeal. An overview of those events shows that the appellant has failed to comply with successive case management orders made on 23 March 2020, 12 May 2020, 2 June 2020 and 14 August 2020, and further orders thereafter for the filing and service of his affidavit evidence in support of his appeal. (23.1) 23 March 2020 – Directions hearing in Newcastle 1. On 23 March 2020, at a circuit call-over and directions hearing conducted in Newcastle, a Judge of the Court ordered the appellant to file and serve any materials on which he relied for his appeal by 28 April 2020. The appellant did not comply with that order, which was made for a status conference to take place before the Registrar on 12 May 2020. (23.2) 12 May 2020 – Status conference and call-over by Judicial Registrar 1. At a status conference and call-over conducted on 12 May 2020 by the Judicial Registrar, orders were made for the appellant to serve an affidavit in support of an application for an Assessment Order he was seeking under the Children and Young Persons (Care and Protection) Act 1998, on all parties by 15 May 2020. A further order was made for any material, including submissions, from any party in reply to the appellant's application for an Assessment Order to be filed and served by 28 May 2020. 2. At that time, the Judicial Registrar also ordered that the application for an Assessment Order be listed on 1 June 2020 for an interim hearing on the papers only, with all parties to file and serve evidence on the substantive appeal by 1 June 2020. The matter was then listed for a status conference to take place on 2 June 2020, with liberty to apply on 3 days' notice. 3. Significantly, as the moving party in the appeal, the appellant failed to comply with the order for the service of his evidence in the substantive appeal by 1 June 2020. (23.3) 2 June 2020 – Directions hearing in Newcastle 1. On 2 June 2020, at a circuit call-over and directions hearing conducted in Newcastle, in light of the appellant's failure to serve his evidence in the appeal by 1 June 2020 as was required of him, a Judge of the Court made a remedial order that the appellant was to file and serve any affidavits and reports upon which he wished to rely in his appeal, by 1 July 2020. The appellant did not comply with that order. (23.4) 14 August 2020 – Appeal set down for hearing to start on 26 October 2020 1. On 14 August 2020, at a call-over of circuit sittings in Newcastle, in light of the appellant's continuing default in filing and serving his evidence, an Acting Judge of the Court who presided at that time made a further remedial order that the appellant file and serve his affidavit evidence on which he intends to rely in support of his appeal by 30 September 2020. At that time the appeal was set down for a 7 day hearing due to commence at a circuit sittings in Newcastle on 26 October 2020. 2. The appellant has never complied with the successive orders cited above requiring him to file and serve his evidence in support of his appeal by the dates specified, or at all. 3. Viewed in hindsight, those circumstances would have merited a pre-hearing application to the Court to seek to vacate the hearing date due to non-compliance with Court orders, and possibly other orders. It is always open to a party to approach the Court for remedial orders if another party to the litigation is in default of compliance with Court orders. 4. The appellant's continuing default and non-compliance with the orders for the filing and service of evidence became increasingly more egregious over time, notwithstanding that reminders for compliance were issued to him. The extent of the procedural latitude extended to this self-represented appellant would not ordinarily have been afforded to a non-compliant litigant appearing with legal representation. 5. The appellant's explanations for such non-compliance, when viewed in hindsight, became increasingly more hollow and unacceptable as time passed, COVID-19 issues notwithstanding. (24) Post-October 2020 procedural history of the appeal proceedings 1. In the 23 sub-headings that now follow, the chronological course which the appeal has taken from 26 October 2020 to the present time is set out, by reference to the initial listed hearing days in Newcastle, the subsequent supervisory directions hearings that were required in Sydney, and the final hearing in Sydney. (24.1) 26 October 2020 – D1 – First scheduled hearing day in Newcastle 1. On 26 October 2020, the hearing of the appeal was scheduled to commence in Newcastle as a matter of priority in the running list of those sittings. 2. Pursuant to a case management order made in chambers in advance of the hearing, on that day, whilst the running list for the circuit sittings was being called over and whilst orders were made in respect of other matters, the parties were required to attend a compulsory dispute resolution conference ("DRC") in the nature of a mediation to be presided over by a Children's Court Registrar: s 65 of the Care Act. Whilst that DRC process was unsuccessful in resolving the appeal, no adverse inferences are available from that fact against any party in the appeal. (24.2) 27 October 2020 – D2 – Second hearing day in Newcastle 1. On 27 October 2020, the hearing of the matter commenced and continued in Newcastle over the course of the available days of the circuit, continuing on 28, 29, 30 October, 2, 3, 4, 5 and 6 November 2020: D2 – D10, T1 – T277. On the latter date, since the time allocated for those sittings had expired, necessarily, the proceedings had to be stood over to be continued in Sydney. 2. On those 9 listing days in Newcastle nothing substantive was achieved in the appeal because the available time was taken up with arguments and applications concerning procedural matters, and the appellant's absences from Court, in the sequence described as follows. 3. In Newcastle, counsel for the Secretary presented an opening address and sequentially recounted the underlying circumstances that led to the child's removal from the appellant's care. That opening address also referred to the related criminal proceedings taken against the appellant, and the course of the hearing of the underlying proceedings in the Children's Court. 4. The second respondent to the appeal, the mother, was heard briefly, in person, by means of an audio-link from the USA. She was later excused from further participating in the proceedings as she and the Secretary were in the same interest in the appeal proceedings, there was poor quality of the audio connections, and also because she was not intending to take an active part in the proceedings. 5. Procedural matters were outlined to the parties and time was taken up with the appellant volubly articulating complaints over the availability of documents relating to the appeal, his claim of a lack of adequate access to Court files, and his claims of a lack of co-operation by Court registry staff in providing him with access to documents. 6. The appellant's complaints in that regard must be seen to have been misplaced and without merit, especially as the appellant appears never to have exercised the liberty granted to the parties on 12 May 2020, or otherwise, to re-list the matter to agitate any such complaints to seek remedial orders if they were truly required. 7. At the commencement of the hearing in Newcastle, arguments also ensued over a belated subpoena issued by the appellant on 14 October 2020, just 12 days before the hearing was due to commence. 8. Following argument, and for reasons given ex tempore on 27 October 2020, the appellant's subpoena was set aside on the application of counsel for the Secretary. Further argument then ensued over the completeness of the Secretary's tender bundle, at that time comprising 1752 pages of documents that were housed in two volumes behind 38 tabs. That material was marked Exhibit "A" on the applications. It was later marked as Exhibit "M" in the substantive appeal heard in Sydney. 9. The matter was then listed to proceed to a hearing at 10.00am on 28 October 2020. (24.3) 28 October 2020 – D3 – Third hearing day in Newcastle 1. On 28 October 2020, Court time was wasted when the appellant did not appear at Court at 10.00am as was required of him. Despite having been sent administrative correspondence by email requesting an indication as to when he was intending to appear. 2. The appellant did not reply to that correspondence. The matter was then stood over to the following day so as to allow other circuit matters in the running list which were waiting to be heard to be interposed and dealt with having regard to the need to avoid wasting further Court time: Day 3, T49 – T52. (24.4) 29 October 2020 – D4 – Fourth hearing day in Newcastle 1. On 29 October 2020, it transpired that the appellant's non-attendance at Court the previous day was because he had undergone a COVID-19 test and was awaiting the result of that test. It was unfortunate the appellant did not communicate those facts to the parties or to the Court Registry in a more timely manner. The matter had to be stood down in the list to be continued on 30 October 2020. In the meantime, other matters in the circuit running list were called on for interposed hearings in order to occupy the Court's time which had become available due to the appellant's absence: Day 4, T53 – T54. (24.5) 30 October 2020 – D5 – Fifth hearing day in Newcastle 1. On 30 October 2020, absent the appellant's attendance at Court, at the direction of the Court, the Registrar of the Court at Newcastle sent him an email indicating the availability of COVID-19 safe AVL facilities by which he could give his evidence whilst he was awaiting his COVID test results. 2. In light of the appellant's continued non-attendance, counsel for the Secretary flagged the Secretary's intention to apply, on notice, to have the appellant's proceedings dismissed. That day's hearing was then terminated and adjourned for a continued hearing to 2 November 2021: Day 5, T55 – T59; (24.6) 2 November 2020 – D6 – Sixth hearing day in Newcastle 1. On 2 November 2020, the appellant appeared at Court but no evidence was taken on that day. This was because the Court's time was fully occupied with discussion over a notice of motion that had been filed and short-served by the appellant on 28 October 2020: Day 6, T60 – T150. 2. It appears that the appellant had used his time spent away from Court to prepare that notice of motion. 3. The appellant's short-served notice of motion identified wide-ranging procedural matters that raised scandalous comments and inaccuracies expressed in disrespectful, pejorative and intemperate language: Day 6, T63.5 – T64.19; T71.9 – T71.21. 4. In the face of the appellant's vehement and emotion-laden criticisms of the way in which the case was proceeding he was advised that he had remedies available to him, namely an avenue of complaint to the Judicial Commission of New South Wales, or an application for judicial review in the Court of Appeal. He was told that he should proceed as he might be advised: Day 6, T65.30. 5. At that time, the course taken by the appellant appeared to be a delaying tactic, although he denied that was the case: Day 6, T99.45 – T100.44. In the course of those events he made an application to have the matter referred back to the Children's Court for a further hearing. That application was necessarily refused because of the imperative that the proceedings be dealt with expeditiously, including the need to avoid adjournments: s 94 of the Care Act: Day 6, T102.20 – T102.25. 6. In the appellant's address to the Court on that day he frequently jumped from point to point without addressing material points (for example at Day 6, T79.2; T82.47 and T84.2), and he made frequent interruptions (for example at Day 6, T79.49; T80.30; T80.49; T81.20; T83.18 and T83.48), he was defiant in his attitude when corrected (Day 6, T85.20 – T85.30), and he made colourful pejorative comments and contemptuous remarks which were overlooked at the time in the greater expedient interest of advancing the proceedings: Day 6, T85.50 – T86.12. 7. In the course of those events, the appellant made a discourteous and offensively expressed application for judicial recusal on grounds of alleged bias. That application was rejected for reasons given ex tempore at that time: Day 6, T86.50 – T95.9. 8. At that time it was observed that the appellant did not always conduct himself in a calm manner in the courtroom and he was counselled to calm himself: Day 6, T94.48. At other times he was counselled to avoid descending into irrelevant querulous and disparaging remarks: Day 8, T170.49. At an early stage of the appeal he resorted to making threats in Court, as cited earlier in these reasons, commencing at paragraph [293] above. 9. At that time, the appellant objected to the position statement provided to the Court by the ILR for the child: Day 6, T95.26. 10. On 2 November 2020, the Secretary sought a hearing of a notice of motion seeking that the appellant's proceedings be dismissed: Day 6, T99.5. On a consideration of the balance of convenience, having regard to the issues raised, and for expediency, justice required that the Secretary's motion for dismissal be determined first before the hearing of the motion filed by the appellant on 28 October 2020. 11. On 2 November 2020, the appellant gave some brief oral evidence in reply to evidence adduced by the Secretary on the interlocutory question of whether the appellant's appeal should be dismissed: Day 6, T104.5 – T146.25. Argument on that motion was then scheduled for the following day: Day 6, T147 – T150. (24.7) 3 November 2020 – D7 – Seventh hearing day in Newcastle 1. On 3 November 2020, it became necessary to correct the appellant's misunderstanding as to the required procedure and order of events with regard to his request that he be permitted to cross-examine a solicitor from the office of the Crown Solicitor on a procedural affidavit, where he misguidedly claimed that he was not afforded procedural fairness: Day 7, T151.24 – T160.25. 2. The parties were required to proceed and make their submissions on the Secretary's motion for the dismissal of the proceedings. 3. Unfortunately, surrounding those events, a significant amount of available Court time was wasted because the appellant had absented himself from the precinct of the Court whilst the mention of another short matter had been interposed from the circuit running list. Consequently, the appeal was then listed to resume at 10.00am on the next day: Day 7, T160.35 – T161.7. (24.8) 4 November 2020 – D8 – Eighth hearing day in Newcastle 1. On 4 November 2020, the counsel for the Secretary made his submissions in support of the motion that the appeal be dismissed: Day 8, T163.10 – T170.42. The appellant was then given the opportunity to make submissions in response to the Secretary's dismissal motion. He did so at length, despite attempts to confine his approach to focussed and reasonable proportions. His submissions in respect of that notice of motion continued into the following day: Days 8 and 9, T170.44 – T267. (24.9) 5 November 2020 – D9 – Ninth hearing day in Newcastle 1. On 5 November 2020, the appellant continued to make his submissions. In doing so he made numerous factual statements that did not constitute evidence in the conventional sense. Nevertheless, his statements raised matters of threshold concern which warranted that an unusual course be adopted, given the provisions of s 94 of the Care Act requiring the expeditious determination of the proceedings. 2. In light of the appellant's self-representation, and in order to assist him, the appellant had his attention drawn to the distinction between oral evidence given on oath or affirmation, and assertions made in the form of submissions. 3. In those events, an expedient course was identified by which he was invited to consider whether he would be prepared to give formal evidence on the matters of fact he had asserted in his submissions: Day 9, T267.37 – T268.41. He agreed to do so, by way of affirmation: Day 9, T269.1 – T272.50. 4. The solicitor for the Secretary, who appeared due to the unavailability of counsel on that day, decided, obviously pragmatically, that on that interlocutory evidence, the appellant would not be cross-examined: Day 9, T273.34. A decision on the Secretary's motion for dismissal of the appeal was then reserved. An indication was given that a judgment on that motion might be delivered on the following day if circumstances so permitted: Day 9, T275.19 – T275.35. (24.10) 6 November 2020 – D10 – Tenth hearing day in Newcastle 1. On 6 November 2020, the final day of the scheduled circuit sittings in Newcastle, a reserved judgment was delivered which dismissed the Secretary's dismissal motion: Y v The Secretary, Department of Communities and Justice [2020] NSWDC 674. 2. The effect of that decision meant that the appellant's outstanding motion filed on 28 October 2020 remained on foot to be determined. In view of the state of the proceedings and the fact that the scheduled Newcastle sittings had come to an end, that notice of motion was then stood over to a further directions hearing scheduled to be conducted in Sydney on 13 November 2020, with a view to fixing a suitable date for the hearing of that motion prior to resuming the hearing of the appeal: Day 10, T276 – T277. 3. On 6 November 2020, before adjourning the proceedings to Sydney, the appellant was advised to regard the fact of the dismissal of the Secretary's motion for dismissal as a catalyst opportunity for him to change his approach to the appeal: Day 10, T276.44. 4. In response, the appellant indicated, with some considerable alacrity and relief, that he would do so. At that time, with considerable enthusiasm, he indicated that he was already in the process of finding a lawyer to assist him to get his appeal on track having regard to the interests of all concerned: Day 10, T276.45 – T277.6. 5. In that regard, in Newcastle, on 6 November 2020, when the appellant was encouraged to seek legal assistance, the following interchange occurred: "HIS HONOUR: Now, I need to adjourn in a moment to return to Sydney. Mr [appellant's name], the effect of these reasons is that your appeal remains standing. You will see, when you read my reasons, that there are things you have got to do. It's not my role to give you advice but I strongly urge you to treat this moment as a catalyst for changing the approach-- APPLICANT: I will, your Honour. HIS HONOUR: --and please - I hope you can find a lawyer who will read this judgment and-- APPLICANT: The process is already on. HIS HONOUR: --hopefully this appeal will be on course - on track soon in the interests of all concerned. APPLICANT: Thank you, your Honour." [Day 10, T276.42 – T277.8] [Appellant's name redacted] 1. Unfortunately, it appears from the subsequent record of the proceedings that the appellant's enthusiasm or resolve for such a course did not translate into a benefit for the proceedings, nor did it follow through to the remainder of the proceedings. 2. In the discussion that took place in Court on 6 November 2020, the appellant indicated his willingness to travel to Sydney to continue his appeal: Day 10, T277.26. As the transcript shows, he later resiled from that position, and he later spuriously claimed that the Court had deliberately chosen to move the hearing from Newcastle to Sydney in order to disadvantage him: Day 24, T16.17. On that day he asserted that there was a conspiracy that involved the Court, and which was against his interests: Day 24, T21.39. 3. Misguidedly, and with some vehemence, the appellant would not accept that the Court's rostering arrangements would not have permitted the appeal to continue to proceed to conclusion in Newcastle over the remainder of 2020. (24.11) 13 November 2020 – D11 – Supervisory directions hearing in Sydney 1. On 13 November 2020, the appellant appeared at the appointed directions hearing conducted in Sydney. He did so by means of an AVL connection to Newcastle Court House for the purpose of advancing his notice of motion filed on 28 October 2020: Day 11, T278 – T289. That notice of motion was wide-ranging in the orders that it sought. 2. At that time it was determined that the proceedings were not ready for a further hearing date to be fixed for the substantive appeal: Day 11, T280.19. The appellant agreed that he would attend the next directions hearing in person due to emergent noise interference issues on the AVL link: Day 11, T282.25 – T282.29. 3. Accordingly, the appellant's notice of motion filed on 28 October 2020 did not proceed on 13 November 2020. Instead, discussion took place on some subpoenas issued by the appellant, a further preparation programme was discussed, and some interim issues over contact arrangements with his child were raised by the appellant. The continuing unavailability of a grant of legal aid to the appellant was noted and lamented upon at that time: Day 11, T287.11. 4. In the circumstances, the appellant enthusiastically undertook to "put every effort into this" appeal to avoid the proceedings being further delayed: Day 11, T287.25. The question of making interim changes to the orders made by the Children's Court, a matter raised by the appellant, was considered, but an order along those lines was determined to be inappropriate at that time: Day 11, T289.4 – T289.42. 5. On that date, the appellant acknowledged the need to obtain some legal assistance in order to benefit the progress of the matter: Day 11, T289.42. Regrettably, this appears not to have eventuated, or if it did, the effect of any such assistance did not extend to the appellant having legal representation in Court. (24.12) 2 December 2020 – D12 – Supervisory directions hearing in Sydney 1. On 2 December 2020, the proceedings resumed in Sydney on Day 12: T290 – T325. On that occasion the appellant arrived at Court at 10.30am rather than at the well-understood appointed time of 10.00am for the commencement of the business of the Court. 2. The purpose of the short notice listing on this date was to consider an application by the appellant to ventilate an issue raised by him concerning the quality of the contact he was to have with his daughter, including the issue of her forthcoming 12th birthday, which was a significant milestone in the proceedings: s 99C(1) of the Care Act. 3. The other reason for this listing was to supervise the appellant's efforts at marshalling his affidavit evidence in support of his outstanding notice of motion filed on 28 October 2020: Day 12, T291.16 – T292.18. 4. On this occasion the appellant took the opportunity to raise a matter of concern which had emerged from an affidavit obtained from a caseworker affirmed on 30 November 2020. This matter, described by the appellant as an "extremely serious development" in the current placement, namely that "the child has been assessed as being at high – high risk of being sexually abused" in the current placement, was plainly a matter which was extremely distressful to him: Day 12, T293.26 – T293.34. 5. At this point, for context, it is appropriate to note that concern was the subject of specific evidence from a DoCJ caseworker which satisfactorily allayed any such concerns. Mrs Clark, the child's DLR, also made submissions which rebutted the substance of the appellant's concern in that regard: Day 12, T370 – T374. 6. At the directions hearing on 2 December 2020, attention was given to the fact that the appellant had not yet provided his factual evidence in affidavit form as was foreshadowed at the hearing in Newcastle on 6 November 2020 (Day 12, T295.8), and at previous case management listings. 7. At the 2 December 2020 directions hearing, it was noted that the appellant's outstanding notice of motion was due to be heard on 10 December 2020: Day 12, T312.20. At the directions hearing some discussion centred around whether the appellant's daughter should give evidence: s 96 of the Care Act. That question was deferred until the child reached the age of 12 years, which was only a matter of days away, because, at the age of 12 years, she would be able to instruct her direct legal representative: Day 12, T295.35 – T296.5. 8. The appellant raised many issues at the 2 December 2020 directions hearing. However, he did not advance any persuasive argument for changing the prevailing contact arrangements in the short term, particularly as the appeal did not operate as a stay of the orders made by the Children's Court. 9. When the appellant was advised of that position he immediately sought a stay of the proceedings without giving prior notice of that application: Day 12, T303.22 – T304.7. It was then determined that a stay of the orders of the Children's Court was not justified at that time: Day 12, T310.37. The appellant raised many other issues which were more properly pursued at a full hearing, and which do not require reconsideration in the summary of events at this point. 10. On the appellant's proposal for varying the contact arrangements, he was informed that the concluded position was as follows: "HIS HONOUR: [Appellant], look, I'm going to have to interrupt you to try and keep this focused. Here, we have a human rights case involving the rights of a child as they may conflict with the right of a parent. In addition, there are questions of public policy involved for which the minister and the secretary are charged with administration and where there's a history of proven risk of harm to a child evidenced as the secretary advances it, evidenced by the fact of your conviction, the minister and secretary have a responsibility to ensure the child's safety, including at times of contact. And I apprehend that is why this regime which currently prevails has been devised and implemented. Now, you're challenging it. I understand why you're challenging it. You've explained it many ways and at different times. But on an interim basis, I'm having difficulty seeing how I can displace the present orders and arrangements." [Day 12, T318.9 – T318.22] [Name of appellant redacted] 1. The appellant then took the opportunity, in the privileged circumstances of a court hearing, to make extensive criticisms of DoCJ staff. Those criticisms were made in vehement and trenchant terms: Day 12, T318.44 – T324.3. In the course of those events, the appellant became emotive in his comments, and in those circumstances, he was reminded not to gesticulate towards practitioners whilst making the criticisms that he chose to make in the course of his submissions: Day 12, T322.40. 2. On 2 December 2020, an ex tempore judgment was delivered refusing the interim orders sought by the appellant. His outstanding notice of motion filed on 28 October 2020 was then confirmed as being listed for a directions hearing in Sydney on 10 December 2020. He was again reminded that he was required to file his affidavit evidence in support of that motion, this time by 7 December 2020. He did not comply with that order. (24.13) 10 December 2020 – D13 – Supervisory directions hearing in Sydney 1. On 10 December 2020, the proceedings resumed in Sydney on Day 13, T326 – T358. On that occasion the appellant arrived at Court at 10.35am, thereby yet again wasting court time and inconveniencing the other parties: Day 13, T326.20 – T326.31. 2. The appellant's explanation for the delay in his arrival at Court was that he was unsuccessful in getting a Justice of the Peace to attest to his belated affidavit in support of his notice of motion filed on 28 October 2020: Day 13, T326.23. That problem was quickly addressed and resolved by the expedient course of inviting him to give brief oral evidence affirming the content of his affidavit as being truthful: Day 13, T329.12. 3. When the appellant's affidavit was examined it became obvious that it contained a significant amount of objectionable material. To save time, a practical course was taken to rely on only the very limited portions that were relevant: Day 13, T329.29. (24.14) 15 December 2020 – D14 – Supervisory directions hearing in Sydney 1. On 15 December 2020, a supervisory directions hearing was convened in Sydney: Day 14, T359 – T405. On that occasion the appellant again arrived at Court late, and by doing so, he wasted further Court time, and he inconvenienced the other parties. This was the occasion on which his notice of motion filed on 28 October 2020 was fixed for hearing. 2. However, the hearing of the appellant's notice of motion filed on 28 October 2020 could not proceed at that time because of logistic difficulties the parties had experienced in obtaining access to bulk photocopying facilities in Newcastle in order to make further copies of the voluminous Children's Court file: Day 14, T361.10. 3. Facilitative directions were then made to try and overcome that problem by ordering those files to be brought to Sydney for photocopy access by the parties (Day 14, T361.42), despite the appellant having beforehand had ample photocopy access to those files in Newcastle: Day 14, T362.10. 4. Discussion ensued on whether the child should be subjected to further clinical assessments as was proposed by the appellant where that prospect distressed her (Day 14, T363.21), and where any such assessment by a Children's Court Clinician would necessarily result in an unacceptable delay of between 6 to 8 weeks: Day 14, T364.5. 5. This was an application which had previously been rejected by order of another Judge of the Court. Further time was then taken up in dealing with subpoena issues, a notice to produce, and the interpretation of earlier child placement orders: Day 14, T390.40 – T405.27. 6. The child's DLR, Mrs Clark, took the opportunity to make submissions that resisted affording the appellant any further procedural delays. She also took the opportunity to rebut the appellant's suggestion that the child was in a placement that placed her at risk of sexual assault: Day 14, T370 – T374. 7. The only common ground identified by the parties at this directions hearing was that the child the subject of the appeal would not be required to give evidence in these proceedings: Day 14, T376.29 – T380.16; T385.45. That common ground had significance to the issue of what weight should be given to the child's evidence in this appeal. 8. The appellant then digressed into a distracting discussion of what he described as "fake" ADVO documents relating to matters arising out of his criminal conviction for assaulting his daughter, and matters that he considered "dubious": Day 14, T382.27 – T382.35. Whilst those matters were of great concern to the appellant they were not relevant to the substantive appeal. 9. Judgment on those matters of contest arising from the appellant's notice of motion filed on 28 October 2020 was then reserved: Day 14, T405.29. (24.15) 18 December 2020 – D15 – Reserved judgment and supervisory directions hearing in Sydney 1. On 18 December 2020, on the 15th listing day, Court was convened at the end of the term: Day 15, T1 – T11. On that occasion a reserved judgment was delivered on the appellant's notice of motion filed in Newcastle on 28 October 2020: Y v The Secretary, Department of Communities and Justice (No 2) [2020] NSWDC 762. 2. In that decision, some of the orders sought by the appellant were noted to have become otiose, and other orders sought by him were refused. An agenda was set for an urgent directions hearing to be convened during the Court vacation in order to advance the matter to a state of readiness for hearing in the new term: Day 15, T2 – T3. (24.16) 11 January 2021 – D16 – Supervisory directions hearing in Sydney 1. On 11 January 2021 a directions hearing was convened to proceed in Sydney during the Court's vacation: Day 16, T1 – T7. 2. On that day technical difficulties arose with audio equipment, including an unacceptable level of noise, feedback and echo, apparently from the appellant's end of the connection in Newcastle, which did not allow the Court to clearly discern what the appellant was saying. 3. For that reason, the audio connection with the appellant was discontinued (Day 16, T1.50 – T2.20). This was on the basis that nothing substantive would occur in his absence and he would be provided with a transcript of that directions hearing. That was the most convenient practical course available in the circumstances. Those events have led to the appellant subsequently making voluble complaints of prejudice where it was clear that no material prejudice has arisen: Day 16, T5 – T7. 4. The remainder of the directions hearing on 11 January 2021 proceeded on the understanding that the appellant would be provided with a transcript of the directions hearing. That directions hearing proceeded in the form of a review of progress of the preparation orders made on 18 December 2020 concerning photocopying arrangements for the distribution of documents, a proposed parenting capacity assessment that had been flagged to be arranged by the appellant, documentary confirmation from the Secretary of the historical change of the child's placement from temporary care to long-term care, and a discussion on the selection of an appropriate hearing date for the substantive appeal. 5. The consideration of the last item was postponed for another date as it was clear that the matter had not reached a state of readiness for hearing: Day 16, T2.39. 6. The copying of documents involved some 4010 pages. The documents were scanned and distributed amongst the parties via an electronic link: Day 16, T3.2. The Court was informed that link had expired on 29 December 2020. The DLR, Mrs Clark had accessed and downloaded the documents before that expiry date. 7. It later transpired that the appellant had not sought access before the link had expired notwithstanding that he had been sent a reminder to do so on 28 December 2020: Day 16, T3.8. This explained why he could not access the documents. He had simply failed to give the matter his timely attention. 8. The transcript in relation to whether the appellant had downloaded the documents before the link had expired contains the following extract of a discussion on that question with the solicitor for the Secretary: "SPENCER: So at this point, I'm unaware as to whether [redaction of the appellant's name] downloaded the documents. HIS HONOUR: Well, from what you've said, he was given every opportunity. If there's a dispute about this, I'll need an affidavit from him explaining the circumstances." [Day 16, T3.18 – T3.23] 1. The appellant did not present any explanatory affidavit evidence on that question. However, he later complained he could not download the documents: Day 24, T2.28. He provided no evidence to indicate why or how that was so, and what, if any, remedial steps he had taken to deal with that problem. 2. In those circumstances no valid criticism arises as to the course taken by the solicitor for the Secretary. The preparation demands of the case were pressingly urgent, and the appellant appears to have failed to give the issue his timely attention in a case where he was required to co-operatively ensure expeditious progress of preparation for his appeal. 3. At the directions hearing in the Court's vacation on 11 January 2021, facilitative orders were made for the parties to inspect documents produced to the Court's Registry: Day 16, T4.41. The solicitor for the Secretary undertook to provide the appellant with a transcript of this directions hearing: Day 16, T7.10. 4. Before concluding the 11 January 2021 directions hearing, at the invitation of the Court, a short updating statement of the child's position was provided by Mrs Clark. This was requested with s 9(1) of the Care Act in mind, and in the knowledge that the appellant would receive a copy of the transcript of what was said. 5. At that time Mrs Clark described the child's state of anxiety over what the appellant has said to her at a contact visit, indicating to her that he knows something of her placement location and her schooling location. On behalf of the child, Mrs Clark expressed a concern that the child was anxious about the possibility that she was being watched and that she was being stalked by the appellant, and that he may turn up at her school or at the home of her carers: Day 16, T6.37 – T7.3. 6. At the conclusion of the 11 January directions hearing, a further directions hearing was then fixed for 5 February 2021. (24.17) 5 February 2021 – D17 – Supervisory directions hearing in Sydney 1. On 5 February 2021, the supervisory directions hearing fixed for that day in Sydney did not get off to a smooth or constructive start: D17, T1 – T21. 2. This was because first, the appellant expressed his considerable anger about the audio connection to him having been terminated on 11 January 2021, and secondly, because he disputed having been served with a copy of the transcript of what had transpired on 11 January 2021: Day 17, T1 – T21. 3. In those circumstances, the solicitor for the Secretary, Ms Spencer, gave satisfactory oral evidence which, contrary to the appellant's unverified assertions, established that he had been served with a copy of the transcript of the directions hearing that had proceeded in his absence for technical reasons on 11 January 2021: Day 17, T4 – T8. 4. The evidence of Ms Spencer, which was tested by questions asked in cross-examination by the appellant, satisfactorily demonstrated that the appellant had been provided with a copy of that transcript at 12.27pm on 11 January 2021: Day 17, T4.9 – T4.19. 5. Ms Spencer also gave evidence that at 10.46am on 11 January 2021 she had sent a text message to the appellant's mobile telephone providing details of the next directions hearing date, namely 5 February 2021 and as to what was scheduled as the business before the Court on that date: Day 17, T4.23 – T5.29. 6. Ms Spencer was cross-examined by the appellant on that evidence: Day 17, T5.33 – T8.2. Nothing arose in the course of that cross-examination that raised doubts about the reliability or the correctness of the evidence of Ms Spencer, which was accepted. 7. On 5 February 2021, part of the business scheduled for the Court on that day was a notice of motion filed by the Secretary. In order to ensure the appellant was afforded procedural fairness in light of his complaints of a lack of readiness to meet that motion, in balancing his interests and those of his daughter who was seeking a swift conclusion of the proceedings, the hearing of that motion was stood over for hearing to 2.00pm on 9 February 2021: Day 17, T12.20 – T20.47. 8. At that time the appellant was required to file and serve by 2.00pm on 8 February 2021, any affidavit evidence upon which he intended to rely in relation to that notice of motion. He did not comply with that order within the required time. (24.18) 9 February 2021 – D18 – Supervisory directions hearing in Sydney 1. On 9 February 2021, the appellant appeared in Sydney in person at the appointed directions hearing: D 18, T1 – T29. 2. It became evident that the appellant had not complied with the most recent order for the timing of service of his affidavit evidence. Instead, he filed his affidavit in sworn form at 10.12am on the day of this directions hearing. 3. The appellant claimed he had served the documents the day before but it appears that he did so without also providing those served with the necessary electronic access passcode until 11.00am on 9 February 2021. This was unsatisfactory litigation conduct on his part and the discussion on that matter caused a further waste of Court time on that day: Day 18, T1.35 – T2.47. 4. At the 9 February 2021 directions hearing time was also taken up with submissions on the contentious contents of the appellant's affidavit, and contentious subpoenas issued by the appellant which were the subject of objections. 5. In the course of those events, the appellant persisted in making scandalous remarks. Examples of this occurred on Day 18, T14.31 – T15.10, T17.15, T17.24 – T17.33, T18.6 – T18.11, T22.17 – T22.20, T22.30 – T22.33, T25.12 – T25.15, T26.6 – T26.7. Those transcript references are not intended to exhaustively identify all of the appellant's scandalous remarks made on that occasion. 6. Given the inadequate state of the appellant's preparation efforts at that time, it became apparent that further directions were required to supervise readiness for a resumed hearing. At the conclusion of the 9 February 2021 directions hearing, facilitative orders were made relating to subpoenaed documents and the collation of relevant documents. A further directions hearing was appointed for 12 March 2021. (24.19) 12 March 2021 – D20 – Supervisory directions hearing in Sydney 1. On 12 March 2021, a directions hearing was undertaken in Sydney as part of the Court's continued attempts at supervision of the preparation of the appeal for a resumed hearing: Day 20, T1 – T14. 2. On this occasion the appellant proceeded to ventilate a series of his complaints about the Court Registry staff and the Court in a misguided way that indicated he either had a fundamental misunderstanding of, or was ignoring, which party carried the onus for the preparation of his case, claiming he had been the victim of disgraceful and incompetent conduct and bias: Day 20, T3.44 – T4.41. 3. The appellant then proceeded to misuse this listing occasion to take the opportunity to make broad-based time-wasting criticisms of the Court, the Court Registry staff, the attending legal practitioners, and in doing so, he ventilated false issues in a raised voice, resorting to invective statements that were delivered by him in an intimidatory tone: Day 20, T12.10 – T13.16. 4. After much argument, including over the contentious terms of a subpoena issued by the appellant, facilitative orders were made for access to documents. A further directions hearing was appointed to proceed on 19 March 2021 with a view to achieving a state of readiness to enable a hearing date to be fixed after dealing with any outstanding interlocutory issues: Day 20, T3 – T11.12. 5. At that time, the appellant indicated that he had obtained advice from counsel in chambers located not far from the Court. He used that opportunity as a basis for ridiculing as "fabricated", the factual basis for the position taken by the Secretary in these proceedings. It seemed improbable that such remarks were reflective of the advice he had received from counsel. 6. The appellant was encouraged to avoid any further procedural delays. The proceedings were stood over again to 19 March 2021 in the expectation of achieving a state of readiness to enable the appointment of a resumed hearing date. (24.20) 19 March 2021 – D21 – Supervisory directions hearing in Sydney 1. On 19 March 2021, a further directions hearing took place in Sydney: Day 21, T1 – T54. 2. A matter that was raised at this directions hearing was that the Secretary had filed a notice of motion on 16 March 2021 with a supporting affidavit of the same date, seeking to set aside two subpoenas that had been issued by the appellant: Day 21, T1.45. 3. After hearing the appellant's objections to the affidavit relied upon by the Secretary, and making rulings on those objections, the parties made their submissions. The appellant made wide-ranging submissions that tended to stray from the issues at hand. In doing so he invoked a conspiracy theory that does not require repetition. At times he also made various abusive, inflammatory and scandalous statements to the Court, accompanied by gesticulation, and maintaining a defiant refusal to desist from same when called upon to do so. 4. Following those events, judgment was reserved on the Secretary's motion: Day 21, T54.2. 5. In the course of those events, it became necessary to appoint a further supervisory directions hearing to ensure the preparedness for a timely disposition of the appeal. That directions hearing was fixed for 31 March 2021: Day 21, T54.37. 6. In the meantime, before that date, on 24 March 2021, the judgment reserved on 19 March 2021 was delivered, on the Secretary's motion filed on 16 March 2021. The result was that the appellant's contentious subpoenas were set aside: Y v The Secretary, Department of Communities and Justice (No 4) [2021] NSWDC 81. (24.21) 31 March 2021 – D22 – Supervisory directions hearing in Sydney 1. On 31 March 2021, the appellant did not attend the directions hearing at the appointed time of 10.00am in Sydney: Day 22, T1 – T5. The purpose of this directions hearing was to fix a resumed hearing date for the appeal: Day 22, T3.4. 2. At 9.25am on that day, improperly, the appellant sent an email to the Court, without copying it to the other parties, asking that the matter be stood down in the list until 10.30am: Day 22, T2.5. 3. At this directions hearing, following the appellant's late arrival, and without prior notice, the appellant presented and distributed a notice of motion dated 31 March 2021, without a supporting affidavit, seeking various orders, some of which were plainly otiose having regard to a series of interlocutory orders that had already been made in the proceedings. He did not produce any fresh evidence to indicate a justification for revisiting those matters. 4. The principal relief sought by that most recent notice of motion filed by the appellant was a further application for judicial recusal. That application was stood over for hearing on 9 April 2021 to enable the appellant to prepare his affidavit evidence in support of that motion. The next Court date, 9 April 2021, was selected in light of the forthcoming Easter break and on account of a period of pre-arranged leave: Day 22, T5.16. (24.22) 9 April 2021 – D23 – Supervisory directions hearing in Sydney 1. On 9 April 2021, the matter was listed in Sydney at 10.00am, as was previously foreshadowed for the hearing of the appellant's notice of motion for judicial recusal. The matter was also listed for directions on this date. Unsatisfactorily, the appellant arrived at Court at 10.46am. The transcript of that day chronicles those events: Day 23, T1 – T48. 2. On this occasion, the appellant relied upon his own affidavit, which was electronically filed, belatedly, at 7.27am that same morning. It was supposed to have been filed and served by close of business on 7 April 2021. The appellant's affidavit was largely in the form of submissions instead of providing factual evidence. In his submissions, the appellant was asked to confine himself to the issues as 15 minutes had been allocated to the hearing of his motion because another pressing case was also listed on that day: Day 23, T4.43 – T5.3. 3. The appellant developed his recusal submissions, asserting that the Court was brazenly biased. He also developed his other submissions as reflected in the orders sought in his notice of motion: Day 23, T5.23 – T48.30. 4. On that day, after a short adjournment and for reasons published at that time, the appellant's motion filed on 31 March 2021 was dismissed: Y v The Secretary, Department of Communities and Justice (No 5) [2021] NSWDC 117: Day 23, T48.38. 5. A case management order was then made to fix a resumed hearing of the substantive appeal to commence on 24 May 2021. At that time the parties were encouraged to direct their energies to ensuring that the case would be ready to proceed on that date: Day 23, T48.45 (24.23) 24 May 2021 to 16 July 2021 – D24 to D39 – Resumed hearing in Sydney 1. As ordered on 9 April 2021, the hearing of the appeal resumed in Sydney on 24 May 2021, and it proceeded in stops and starts over the course of a further 15 non-consecutive listing days up to 16 July 2021, when judgment was reserved: Day 39, T816. 2. Over those 15 listing days, evidence and arguments ensued. Oral evidence was called in addition to that which was called in the Children's Court proceedings. The totality of that evidence, including relevant documents and transcripts, will shortly be reviewed. In the meantime, the following two tables provide an overview of the oral evidence that has been considered in this appeal. 3. In the appeal, the following oral evidence was called in the following order that was dictated by the availability of the witnesses: No Date Name of witness Category Transcript references to appeal hearing Day 24.05.2021 T32 – T78 24 1. 25.05.2021 Mrs Lauren Grant Caseworker T81 – T177 25 27.05.2021 T328 – T345 27 2. 26.05.2021 Dr Fletcher-Watson Paediatric registrar T182 – T218 26 3. 26.05.2021 Mr Sanjeev Chikara Henna shop proprietor T227 – T231 26 4. 26.05.2021 Ms Alicia Pigot Caseworker T232 – T241 26 5. 27.05.2021 Mrs Robyn Patience Contact supervisor T250 – T309 27 6. 28.05.2021 Appellant Father T373 – T440 28 7. 31.05.2021 Mr Paul Witzerman Psychologist T446 – T463 29 31.05.2021 T472 – T490 29 8. 01.06.2021 Ms Rebecca James Caseworker T492 – T568 30 02.06.2021 T570 – T584 31 9. 02.06.2021 Mr Charlie Gangemi Departmental psychologist T594 – T610 31 10. 02.06.2021 Dr Damon Shorter Paediatrician T628 – T649 31 1. The evidence referred to in the above table was in addition to reading the transcript of the oral evidence given in the Children's Court proceedings, as tabulated below. No. Date Name of witness Category Reference Exhibit "M" 1. 18.12.2018 Mr Simon Steward DoCJ Tab 8, Caseworker (called by the Secretary) pp 541-589 Tab 8, 2. 18.12.2018 Ms Melissa Currie DoCJ pp 594-634 07.02.2019 Caseworker (called by the Secretary) Tab 9, pp 643-672 3. 07.02.2019 Ms Natalie Elder DoCJ Tab 9, Caseworker (called by the Secretary) pp 673-702 4. 18.03.2019 Dr Adam Buckmaster Paediatrician (called by the Secretary) Tab 10, pp 738-746 5. 18.03.2019 Dr Chloe Fletcher-Watson Paediatric Registrar (called by the father) Tab 10, pp 748-786 Tab 10, 6. 18.03.2019 Ms Louise Murphy DoCJ pp 787-797 20.05.2019 Manager, Caseworker (called by the Secretary) Tab 11, pp 813-835 7. 20.05.2019 Mrs Debra Grigg Life Without Barriers Contact Worker Tab 11, (called by the Secretary) pp 836-862 Tab 11, pp 864-880 8. 20.05.2019 Ms Barbara Power DoCJ Tab 12, 22.05.2019 Casework Manager, (called by the Secretary) pp 889-981 Tab 13, pp 988-1048 9. 02.09.2019 Mrs Rachana Gautam DoCJ Tab 15, Multicultural Caseworker (called by the Secretary) pp 1076-1096 Tab 15, 10. 02.09.2019 Y Appellant father pp 1115-1146 03.09.2019 Tab 16, pp 1152-1209 Tab 17, 04.09.2019 pp 1217-1277 11. 05.09.2019 M Mother of the child Tab 18, 06.09.2019 pp 1281-1393 Tab 19, pp 1399-1423 12. 06.09.2019 Mother's de facto partner Mother's de facto partner Tab 19, pp 1441-1489 1. The substance of the matters revealed in the oral evidence given in the appeal, and the related documentary materials, will be reviewed where relevant in these reasons after some more recent events are identified. 2. Those events concerned the appellant's unsuccessful attempt to discontinue his appeal, and the circumstances of his subsequent absence from the proceedings on listing days after 7 June 2021, when he was expected to appear either in person or by means of an AVL connection. (25) Appellant's unsuccessful attempt to discontinue his appeal 1. Over the course of the 33 listing days up until 4 June 2021, the appellant had vigorously maintained his appeal, albeit in an inefficient manner. Earlier, in Newcastle, with considerable impassioned pleading and ardour, he succeeded in resisting an application by the Secretary to have the appeal dismissed without a hearing on the merits due to his lack of progress in advancing the appeal. The dismissal application had been refused because the appellant had identified an arguable threshold issue which precluded that course. 2. Surprisingly, against that historical background, on 4 June 2021, the appellant ineffectively purported to discontinue his appeal by filing a notice of discontinuance on-line, at 1.04am in the morning on 4 June 2021. 3. When the hearing of the appeal resumed on 4 June 2021, his notice of purported discontinuance was examined. It was rejected and set aside for reasons delivered ex tempore on that date. In essence, it was set aside because it was expressed in an improper form, and because it included inappropriate scandalous content: Day 33, T740.12. 4. Thereafter, the appellant unsuccessfully sought to negotiate the terms of an agreed discontinuance with the other appearing parties, as required by UCPR r 12.1. 5. As the parties could not agree upon the terms of a discontinuance, and where the appellant was not prepared to agree to the Secretary's terms, namely, for an order for his appeal to be dismissed, it was necessary for the appeal to continue to its logical procedural conclusion. Those events caused an unfortunate further delay to occur between 4 June 2021 and 16 July 2021. 6. The appellant's sudden and unexpected change of tack in seeking a discontinuance of his appeal at that late stage of the proceedings was surprising because of an earlier statement he had made in Court in which he reflected on "what's been happening in five years" and he said he was "not someone who will abandon [the appeal] that easily": Day 14, T383.44. 7. In the circumstances, the proceedings were adjourned and listed to be continued in Sydney on 7 June 2021: Day 33, T745.34. He appeared on that date but he has not appeared on any of the subsequent listing days that were assigned for the prosecution of his appeal. (26) Appellant's last appearance in Court on 7 June 2021 1. On Monday 7 June 2021, as the proceedings were drawing to a close, whilst the appellant was present in Court, he was informed that he would be required to make his final submissions on the following day, Tuesday 8 June 2021: Day 34, T766.31. This was in circumstances where he said "As of now, my decision is to go on with the bill (sic for appeal)": Day 33, T747.37. 2. At that time, the appellant protested over that course, claiming "that's too short a notice", also claiming that there were so many errors in the transcript: Day 34, T766.34. 3. At that time (Day 34, T766.34), on the subject of transcript corrections, he was reminded that a schedule of transcript errata had already been distributed to the parties on 4 June 2021 for their consideration. He was also told in effect, that the errata schedule was not in final form, and that it was amenable to discussion and amendment: Day 34, T767.45. 4. The appellant has never submitted any discussion, commentary, or suggested amendments to that schedule to indicate that any of the suggested corrections listed therein were in his view, incorrect or should be augmented, or changed to different corrections of his own formulation. 5. Notwithstanding those circumstances, and without any supporting detail, the appellant has argued that the transcript had been prepared with selectivity, in a biased way. He claimed that the transcribers "seemed to have picked up only [non-transcribable portions] of the appellant's submissions (sic) not anyone else, and they seem to portray a different image (sic)": Day 34, T768.4 – T768.17. 6. An examination of the transcript reveals the patent spuriousness of the appellant's complaint, especially where, despite having been admonished to slow down his rate of speech, the pace of his diction had proceeded without regard or consideration to the task of the transcribers: Day 8, T210.1 – T210.30. Having regard to the appellant's pace of speech and his accent which became amplified at the times he was upset or elevated in his affect, it is not surprising that some aspects of what he had been saying were not transcribable. 7. But for the need to suit the convenience of counsel for the Secretary on 7 June 2021, the proceedings would have continued on Tuesday 8 June 2021. Instead, the proceedings were adjourned to 10.00am on Wednesday 9 June 2021 to accommodate counsel's conflicting commitments in a superior court. 8. In the circumstances that prevailed, it was appropriate to accommodate counsel for the Secretary from the proceedings for that purpose given the prolix manner in which the appellant had conducted this appeal: Day 34, T768.35. That conflict of dates only arose because of the appellant's dilatory and prolix conduct. If the proceedings had been confined to the pre-hearing estimate, or a near enough estimate, the conflict would not have arisen. 9. Before the proceedings were adjourned to 9 June 2021, as has been referred to at paragraphs [321] to [330] above, pursuant to an order made by the Court at the end of the hearing on that day, the Sheriff impounded the appellant's electronic devices for forensic examination in light of a concern over whether the appellant had been impermissibly recording the proceedings contrary to s 9 of the Court Security Act 2005 (NSW). 10. At the time the appellant's devices were impounded, he was informed that the Sheriff would advise him as to when those devices would be returned to him. He was also advised that he would be given a contact number to call the Sheriff: Day 34, T770.16 – T770.25. Subsequent documents copied within Exhibit "W" confirm that such information was given to the appellant. (27) Call from the appellant on 8 June 2021 1. On the afternoon of Tuesday 8 June 2021, after normal court sitting hours, a person assumed to have been the appellant rang chambers to ascertain how he could retrieve his devices. At that time that person was informed that he should contact the Sheriff. The summarised content of that call has been noted in the transcript on the next available Court date: Day 35, T772.1 – T772.10. The appellant had been given the same information in Court on the previous sitting day, Monday 7 June 2021: Day 34, T770.16 – T770.24. (28) Appellant's apparent unwellness on 9 June 2021 1. At 7.12am on 9 June 2021, two separate messages were received to indicate that the appellant was unwell on that day, and therefore, he would not be attending Court. 2. The first such message was in the form of a personal email sent by the appellant to the associate: Exhibit Q: Day 35, T773.6. He sent that message at 7.12am on 9 June 2021 advising that he was unwell, also indicating that it was unlikely he would be attending Court the next day, 10 June 2021: Day 35, T771.18 – T771.34. 3. The second such message was received on 9 June 2021. It was from someone calling his or herself "Ish". Ostensibly, it was a text message sent on the appellant's behalf. That message was addressed to, and received by the solicitor for the Secretary at 7.17am that same day. 4. The 7.17am text message from the person named as "Ish" stated : "Mr [appellant's first name redacted] has collapsed and fainted. We are taking him to hospital". The solicitor for the Secretary responded to "Ish" by texting back saying "I'm sorry to hear that. Please keep me updated as to his progress. I will inform the Court.": Day 35, T771.36 – T771.43. 5. Subsequently, after further communications from "Ish", at 10.31am on 10 June 2021, a text message was received from him informing the solicitor for the Secretary to the effect that the appellant had been kept in the hospital Emergency department overnight for monitoring for a "heart stroke": Day 36, T801.17 6. The medical evidence which was later submitted by the appellant, which is part of Exhibit "W", did not refer to any diagnosis or any continuing impediment to attending Court after 11 June 2021: Exhibit "W", p 92. 7. Since that time, no further objective evidence was provided to the Court or to any other party as to the appellant's state of health since 11 June 2021. 8. The only subsequent indication that the appellant might be unwell came at a later date in the form of Exhibit "X", which will be referred to shortly. At this point, all that needs to be said is that on 16 July 2021, the appellant decided to send an indirect message to the Court's Civil Registry stating, amongst other things, that he "is unable to attend in person at proposed listing on 16th July 2021 due to unavoidable medical reasons and public health concerns": Exhibit "X". 9. Those vague expressions invoking medical reasons and public health concerns were never expanded upon by reliable evidence. 10. The appellant's stated inability to appear in person as stated in his 16 July 2021 email to the Court was misguided as he was not required to appear in person in Sydney. Instead, he was required to appear by means of an AVL connection from Newcastle. The public health concern he mentioned in his email remained unspecified. Absent additional and specific factual evidence, it would be unduly speculative to infer that the reason for his non-appearance at Court was COVID-19 related: Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19; Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1, at [8], [10]. 11. It is necessary to now return to the events of 9 June 2021, and the decision to proceed in the absence of the appellant on that date, and thereafter. (29) Decision on 9 June 2021 to receive the Secretary's submissions in the appellant's absence 1. The proceedings were listed on 9 June 2021 for the purpose of receiving the final submissions of the parties before reserving judgment. 2. As all other parties were present, and having regard to the need to ensure the appropriate use of court time, and seek to limit additional costs in a case that had already spiralled well beyond what had been anticipated, a decision was made to receive final submissions from counsel for the Secretary and from the child's direct legal representative on the basis that those submissions would be provided to the appellant. At that time, it was also indicated that an updated transcript errata schedule would be distributed before the delivery of a judgment. The proceedings were then adjourned to Thursday 10 June 2021: Day 35, T774 – T794. 3. At that time it was determined that it was necessary to bring the proceedings to a timely conclusion in the paramount best interests of the child. For that purpose, the Secretary's submissions were received first, followed by the DLR's submissions so that the appellant would have a transcript of those submissions and he should have the opportunity to make his own submissions, and include anything that he needed to submit in reply to the submissions of the Secretary and those of the DLR: Day 35, T777.31 – T778.36. 4. In those events, a short adjournment followed, so that the solicitor for the Secretary could send a letter to the appellant by email at the Court's request as the most expedient means by which to inform him of the course being taken, and to also provide the appellant with a copy of the written submissions that were to be relied upon by counsel for the Secretary: Day 35, T777.41 – T777.50. 5. Those events were the subject of an ex tempore decision: Day 35, T778.45. That decision was in the following terms: (1) The state at which these proceedings were left when Mr [appellant's name] last appeared was that he was to identify and prepare for circulation a bundle of documents which would conclude the tender of his documentary evidence, other matters having already been decided as to whether or not he was to be given leave to introduce any further oral testimony. (2) Today, by email sent at 7.12am, he has indicated he is unwell. Since then, at 7.15am the Crown Solicitor has received a text message from a person self-identifying as "Ish", stating that they would be taking the appellant to hospital after he had collapsed. Whatever the position is concerning the appellant's state of health, medical evidence will be required to explain his absence today. Hopefully that absence will not continue until tomorrow. If it does continue, his absence will still require explanation. (3) In the circumstances, I am presented with something of a procedural dilemma where conflicting interests must be balanced and taken into account. The overriding interest is that of procedural fairness. Co-extensive with that interest is the paramount interests of the child pursuant to s 9(1) of the Care Act. As the proceedings are subject to the procedural rules by which this Court is governed, I must also bear in mind the purpose of effect of s 56 of the Civil Procedure Act 2005, and the dictates of justice as required by s 58(2) of the Uniform Civil Procedure Rules 2005, as well as the statements of procedural principles concerning the appropriate use of public resources: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27. (4) It seems to me that this case must conclude with due dispatch and with some due urgency, given that the effect of the appellant's self representation has been to prolong the proceedings to an extraordinary degree with injurious effects to his child the subject of the appeal. Necessarily, the matter must now come to a timely and efficient end, subject to fairness to all concerned. (5) In those circumstances, it seems to me that the appropriate procedure that serves all of those interests, including the statutory interests, is that following the tender of the appellant's final documentary evidence, I should receive the written submissions of the Secretary, supplemented by such oral submissions as deemed necessary by counsel for the Secretary, followed by any submissions that the direct legal representative, Mrs Clark, wishes to make. I consider that these submissions should be received in the absence of the appellant because of the unusual circumstances, noting that he has been provided with the transcript and all exhibits to date, and that he will be receiving a copy of today's transcript. (6) In my assessment, when he is well enough, he will have the fair and reasonable opportunity of examining today's transcript and the Secretary's written submissions in order to determine what content should be included in his own primary submissions, also allowing for the possibility that he may wish to reply to some things that are said on behalf of the Secretary and his child. (7) I consider that course would better serve his interests than if the addresses were to proceed as originally planned, namely, that his address commence first, followed by those on behalf of the Secretary and his child, with a right for him to reply. (8) In the manner that is presently proposed, once he is well, he would have the unfettered opportunity of considering what needs to be said, recognising that there are finite issues only, and as has been ventilated before, but which I now repeat for convenience, those issues are first what weight, if any, should be placed on the evidence of the wishes of the child who is the subject of the appeal, as conveyed by her direct legal representative; secondly, is there a realistic possibility of the child being restored to the appellant's parental care; thirdly, depending upon the outcome of the second issue, should there be an amended care plan, and if so, in what terms, including what might be submitted by the appellant on that question. (9) A fourth issue, which has been flagged earlier, is the question of costs. That is a matter to which s 88 of the Care Act applies. Necessarily, that question must be reserved for later argument, if pursued, on proper notice and preparation, depending upon the outcome of the earlier issues, once decided. (10) Against that background, and having regard to the Court's confidence that the appellant will receive a transcript of today's proceedings and the submissions delivered today, I consider that the matter should proceed to the conclusion of the submissions of the Secretary and the direct legal representative. This will allow the appellant the opportunity of reflecting on those submissions and considering what it is he wants to say in his own submissions as a consequence. (11) At this moment, absent any evidence of when the appellant is likely to be fit to make his own submissions, I am reluctant to impose a timetable, but I will do so at short notice once the Court is better informed as to the appellant's position. In the meantime, the effect of receiving submissions from the other parties today, as outlined just now, is that those submissions will be held in escrow, as it were, as a step towards completing the proceedings. No definitive decisions will be made until the appellant is heard. I will simply read and consider the effect of those submissions, pending the receipt of the appellant's submissions for a complete consideration to take place. (12) In the described circumstances, although perhaps unorthodox and unusual, I consider that there is no procedural unfairness to the appellant where the paramount consideration of this Court is the best interests of the child the subject of the appeal. Therefore, I will proceed along those lines. These reasons will be printed, and will be provided to the appellant for his better understanding of what has occurred and what should now occur to finalise the proceedings. [Format numbering of paragraphs has been added] 1. At 10.38am on 10 June 2021, the Court was informed, by electronic means, that the appellant had been provided with a copy of the written submissions prepared on behalf of the Secretary. Those submissions were marked MFI "10": Day 35, T778.49 – T779.7. Supplementary oral submissions on behalf of the Secretary and oral submissions by the DLR then followed. (30) Appellant's continuing absence from the proceedings after 7 June 2021 1. After the appellant had left the Court on 7 June 2021, he has failed to respond to a number of administrative communications and he has failed to acknowledge receipt of most of those communications. This has raised a question as to whether he abandoned his appeal. 2. The appellant has also failed to appear on subsequent listing days, namely, 2 July 2021 and 16 July 2021. Subsequently, those circumstances led to a number of administrative communications being sent to, and served on the appellant, as is evidenced by the material within the tender bundle that became Exhibit "W". 3. Exhibit "W" was tendered on 16 July 2021. This occurred in the absence of the appellant in the knowledge that, notwithstanding his absence, he would be provided with a copy. He has been provided with a copy. 4. Exhibit "W" comprises a bundle of administrative correspondence that ensued between 24 May 2021 and 13 July 2021. It includes emails sent to the appellant and received from the appellant concerning the provision of relevant transcripts and notifications to the appellant about listing dates for finalisation of the proceedings. In those communications he was informed he would have the opportunity to make his final submissions in support of his appeal. 5. The appellant had already been in possession of copies of those materials before they were assembled into the form of the convenient bundle that comprised Exhibit "W'. 6. In view of the appellant's recurring complaints of lack of procedural fairness, it becomes relevant and appropriate, especially on account of his non-attendance at Court, that the factual chronology within Exhibit "W" be identified in some detail, in the sequence in which the events occurred. It confirms the following matters: 1. The appellant has been provided with copies of all relevant transcripts of the appeal proceedings: Exhibit "W", pp 1, 3, 4, 5, 6, 9, 10, 12, 13, 15, 50, 54, 60, 79, 108; 2. The appellant has been provided with copies of all relevant ex tempore judgments, including all those delivered in the final phase of the proceedings: Exhibit "W", p 8; 3. On Wednesday 9 June 2021, at 7.12am, the appellant sent an email stating he had been unwell on 8 June 2021, and indicated it was unlikely he would be able to attend court the following morning on 10 June 2021. At that time, no supporting medical certificate was attached to that email: Exhibit "W", pp 16 – 26; 4. On 9 June 2021, in view of the appellant's non-attendance at Court, at 10.33am on that day, by email, the appellant was provided with a copy of the Secretary's written submissions in the substantive proceedings: Exhibit "W", pp 27 – 47. The Court then proceeded to read those submissions and hear supplementary oral submissions from counsel for the Secretary on the understanding that the written submissions had been sent to the appellant and he would receive a copy of the transcript of what had been said in Court on 9 June 2021. The ordinary expectation was that he would read that material: Day 35, T776.1 – T779.8; 5. On 9 June 2021, at 10.49am, at the Court's direction, the solicitor for the Secretary wrote to the appellant to request that he provide a medical certificate to explain his non-attendance at Court on the previous day. In that communication, the appellant was also asked if he would be in a position to attend Court the following day to make his submissions. At that time it was indicated to him he had the option of making oral submissions instead of providing written submissions: Exhibit "W", p 48; 6. On 9 June 2021, at 5.37pm, the solicitor for the Secretary wrote to the appellant seeking an indication from him as to whether the appellant would be attending Court on the following day: Exhibit "W", p 51; 7. On 10 June 2021, at 4.41pm, the solicitor for the Secretary provided the appellant with a sealed copy of a subpoena directed to the John Hunter Hospital returnable at 10.00am on Friday 12 June 2021, requiring production of medical records relating to the appellant: Exhibit "W", p 53; 8. On 10 June 2021, at 5.33pm, the solicitor for the Secretary provided the appellant with a copy of the Court's transcribed ex tempore reasons for permitting, subject to conditions, the delivery of the Secretary's submissions in the appellant's absence: Exhibit "W", pp 55 – 59; 9. On 11 June 2021, at 1.23pm, the solicitor for the Secretary emailed the appellant a letter sent by express post to his post office box address, advising him, inter alia, that in his absence, the proceedings had been stood over to 10.00am on Friday 25 June 2021 for the appellant to make his submissions, either in person, or by means of an AVL connection from Newcastle, at his option: Exhibit "W", pp 61 – 78; 10. On 17 June 2021, at 11.02 and 3.52pm, the solicitor for the Secretary provided the appellant with transcribed copies of the Court's ex tempore reasons delivered on 1 June 2021, 4 June 2021 and 7 June 2021, respectively dealing with the appellant's most recent application for judicial recusal, his application for setting aside his purported notice of discontinuance, and the appellant's application for an adjournment: Exhibit "W", pp 82 – 89; 11. On 17 June 2021, at 3.04pm, the appellant sent an email to the Court, copied to the other appearing parties, in the following terms: "Dear Associate, Please find attached a medical certificate for period when this matter was last due. Also attached is proof of receiving Audio transcript from LC Gosford which was provided as annexure in appellant's affidavit. This audio annexure caused unnecessary anxiety leading to possession of my computer/accessories on 7th June 2021. Many a documents, orders/directions in this matter were communicated to parties electronically and this matter cannot proceed with out (sic) Appellant having access to same. Appellant has tried contacting sheriff's office in vain. As such i (sic) respectfully request you to liaise with sheriff's office to return possessions failing which this matter cannot proceed at next instance. Please revert with any clarifications. Regards, VY." [Exhibit "W", pp 90 – 92] Significantly, the content of that email was not the subject of affirmation or oath, as would be expected in such circumstances; 1. The appellant's 17 June 2021 email sent at 3.04pm attached a copy of a "medical/attendance certificate" signed by a junior medical officer in the emergency department at John Hunter Hospital. That certificate stated, unsatisfactorily in terms of reasons and content, that the appellant had attended at that hospital's emergency department on 9 June 2021 and would be unfit from 10 June 2021 to 11 June 2021: Exhibit "W", p 92; 2. On 17 June 2021, at 7.35pm, the appellant was personally served with material that had also been sent by email and by express post as identified at sub-paragraph (9) above. Such service was effected by a process server acting on instructions from the solicitor for the Secretary: Exhibit "W", pp 93 – 96; 3. On 21 June 2021, at 2.19am (sic for pm), the Court sent the appellant an email, copied to the other parties, advising him of what was required for him to retrieve his electronic devices in light of the content of his email of 17 June 2021 sent at 3.04pm. That advice was as follows: "The Sheriff's department has confirmed that contact details for collection of your laptop and phones have been forwarded to you on 18 June 2021. Please confirm that you have collected your items as soon as possible." [Exhibit "W", pp 99 – 100]; The appellant has not provided any reliable evidence of his attempts to retrieve his electronic devices; 1. On 23 June 2021, at 12.09pm, the appellant sent an email to the Court with copies to the other parties, in the following terms: "Dear associate, I was unable to contact relevant persons on details provided by sheriff's office as they are on holidays. I am unable to access documents filed, orders made, prepare submissions or even make phone calls. Relying on public library to access emails and prepare documents has also become difficult due to COVID situation. In such circumstances this matter cannot proceed to submissions. As such i (sic) respectfully seek this matter be stood down until Appellant has his possessions returned. Apologies for late response as i (sic) could not access Emails. Contact me with any clarifications. Regards, VY" [Exhibit "W", p 99]; The appellant did not elaborate on is attempts to contact the Sheriff. The appellant's request to stand the case down was not in affidavit form. There was no formal application made by the appellant along the lines of his cited email. In light of the litigation events that have occurred to date in these proceedings, the notion that the appellant was not aware of what was required in the circumstances is neither tenable nor acceptable; 1. In the period 21 June 2021 to 23 June 2021, the appellant did not communicate with the Court as to what further steps if any he was taking to seek a return of his impounded devices. He seemed to have been relying on the Court to arrange the return of his devices, notwithstanding, that he had been informed he needed to take that course himself. If he held a contrary view, it was misguided; 2. On 23 June 2021, at 1.02pm, the Court sent an email to the appellant and to the other appearing parties advising that the scheduled date for taking final submissions was changed from 25 June 2021 to 10.00am on 2 July 2021 on account of the Court's continuing circuit commitments: Exhibit "W", p 98. That email was in the following terms: "To the parties His Honour is presently sitting on circuit in Lismore and the circuit has not yet concluded. This will mean that the resumption of the hearing for the taking of final submissions on Friday 25 June 2021 will not be possible. In the circumstances, his Honour intends to relist the matter for final submissions at 10.00am on 2 July 2021. If the current COVID situation continues all parties may appear via AVL on that date. In respect of Mr [appellant's name]'s submissions, his AVL appearance must be from the Court House in Newcastle and he is to contact the Registrar in Newcastle to confirm that arrangement. The Court has been advised by the Sheriff that on 18 June 2021 Mr [appellant's name] was informed of the contact details for the collection of his devices. If Mr [appellant's name] is unable to provide written submissions in accordance with previous orders then he will be given leave to make his final submissions orally, but limited to no more than 2 hours. Please acknowledge receipt of this email by return email today. Yours sincerely [Exhibit "W", p 104]; [Appellant's name redacted] The appellant did not respond to that email or acknowledge its receipt; 1. On 24 June 2021, at 2.46pm, the Court sent the appellant an email requesting that he acknowledge receipt of the Court's email previously sent to him on 23 June 2021: Exhibit "W", p 103; 2. On 25 June 2021, at 4.50pm, the Court sent the parties an email confirming the new Court fixture for 2 July 2021. That email referred the appellant to previous emails that were sent to him (23 June 2021 at 1.02pm and 24 June 2021 at 2.46pm) and noted that those emails had not been acknowledged by him, as had been requested. In that email the appellant was also informed that the matter was listed for him to deliver his final submissions on 2 July 2021. The appellant was informed that if he did not attend either by AVL or in person on that day, his absence may be seen as a constructive abandonment of his appeal: Exhibit "W", p 102. The appellant did not respond to that email; 3. On 29 June 2021, at 9.38am, the Court sent the appellant a further email requesting that he respond to the previous emails that had been sent to him: Exhibit "W", p 102; 4. On 5 July 2021, at 11.21am, by email, the solicitor for the Secretary provided the appellant with copies of the transcripts of proceedings on 2 July 2021 and 26 October 2020. The transcript of 26 October 2020 was not available beforehand. It related to the first listing day of the proceedings in Newcastle, where nothing substantive occurred on that date: Exhibit "W", p 108. The Court ordered that transcript in light of the appellant's baseless claim that there had been a hearing in his absence on that date where he had failed to attend at Court following the unsuccessful dispute resolution conference; 5. On 5 July 2021, the Judicial Registrar sent a letter to the appellant. It was also sent by email on that date at 12 noon. It was erroneously dated 6 July 2021. Nothing turns on that date error. The parties were also sent a copy by email: Exhibit "W", p 109; 6. The Judicial Registrar's letter cited in (22) above referred to in the previous sub-paragraph, apparently mistakenly dated 6 July 2021, was in the following terms: "Mr [name redacted] PO [number and address details redacted] By email: [redacted] Dear Mr [name redacted] 2020/30525 [initials redacted] v Department of communities and Justice This letter concerns outstanding issues relating to your non-attendance at Court for the finalisation of your childcare appeal to the District Court (2020/30525). The Court has noted that you have not provided any explanations for non-appearances at scheduled hearing dates on 9, 10, 11 June 2021 and 2 July 2021. The 2 July 2021 date was rescheduled from the previous listing for 25 June 2021. Your appeal was listed before his Honour Judge Levy SC on those dates for the purpose of the Court receiving your final submissions. If your non-attendances on those dates were in fact due to your medical unfitness, explanatory evidence is required to provide satisfactory reasons for such non-attendances. On 2 July 2021, the Crown Solicitor, representing the Secretary, Department of Communities and Justice, informed the Court that you were personally served with due notice of the rescheduled hearing listed for 2 July 2021 and the Court has noted that you did not appear on that date. In light of your continuing unexplained non-appearances, and absent satisfactory medical evidence providing an explanation for your non- attendances to date, the proceedings have been stood over to 10.00am on Friday 16 July 2021 for the purpose of providing you with a final opportunity to appear and make your submissions to conclude the hearing of your appeal. If you do not appear on that date, absent satisfactory evidence providing a reasonable explanation for your absences, the Court may receive evidence and act upon relevant notices that have been provided to you in correspondence, and the Court may draw the inference that you have abandoned your appeal. If an inference of abandonment of the appeal is made, the Court will then identify a date on which a judgment will be delivered to finalise the appeal, and you will be given due notice of that date. Alternatively, if you intend to appear on 16 July 2021 to make your final submissions, please note the following: 1. The Court will convene in Sydney at 10.00am on Friday 16 July 2021 to receive hard copy medical evidence concerning your recent non-attendances and to hear your final submissions; 2. You may appear in person on 16 July 2021 or you may appear by means of an AVL connection from Newcastle Court House. 3. If you wish to appear by an AVL connection from Newcastle you must beforehand make the necessary arrangements with the Newcastle District Court Registry. Any such arrangements must be made by you well in advance of Friday 16 July 2021 for an AVL facility to be made available to you on that date. The Registry in Newcastle has been alerted to expect contact from you for that purpose. It is noted you have had prior communications with the Newcastle Registry. 4. Subject to any further order that might be made on application to the presiding Judge on 16 July 2021, as has already been indicated to you in the record of the proceedings that has been provided to you, your time for making final oral submissions will be limited to 2 hours." [Exhibit "W", pp 110 – 111] 1. The Judicial Registrar's letter as cited above was sent to the appellant by email and to his two known postal addresses, namely his residential address and his post office box: Exhibit "W", pp 110 – 111. That letter informed the appellant that he had the opportunity to make his final submissions on Friday 16 July 2021 at 10.00am, in Newcastle by means of an AVL connection to be arranged by him with the Newcastle Registry, the allocated time for those submissions being limited to a period of 2 hours; 2. On 6 July 2021, at 11.20am, the appellant was personally served with a copy of the Judicial Registrar's letter informing him of the 16 July 2021 fixture for his submissions, amongst other documents. Personal service was effected by a process server engaged by the solicitor for the Secretary: Exhibit "W", pp 115 – 127; 3. On 13 July 2021, at 8.22am, absent any communication from the appellant responding to emails relating to the 16 July 2021 fixture, the Court informed the Registrar at Newcastle that the appellant had been told to make contact with the Registry in Newcastle to confirm arrangements if he intends to appear via AVL on that date: Exhibit "W", p 128; 1. The appellant has never acknowledged the emails sent to him by the Court as had been requested. It is noteworthy that his two emails sent on 17 June 2021 and 23 June 2021 were each sent from the email address he used in all his communications prior to 16 July 2021. The appellant had not informed the Court of any changes to his contact details beforehand. In light of those facts, and absent evidence of any incapacity on his part, the appellant's claim of a lack of access to relevant materials is difficult to understand or to accept without explanatory evidence from him. 2. The content of Exhibit "W" provides satisfactory evidence that the appellant had been on notice at least since 5 July 2021, that the proceedings had been listed on 16 July 2021 for the purpose of the final stage of receiving such submissions as he intended to make. 3. The reasonable inference that follows from the content of Exhibit "W" is that the appellant was sufficiently well aware of the fixture of 16 July 2921 which was the occasion for him to make his final submissions in support of his appeal. He must have known that if he failed to appear, the proceedings would continue to conclusion in his absence, leading to orders finalising his appeal. 4. That much is clear from the letter the appellant received from the Judicial Registrar dated 5 July 2021, at least from time to time he had been served with a copy of that letter. This is also clear from the terms of the appellant's email sent to the Court's Civil Registry on 16 July 2021 in which he indicated his awareness that the proceedings were due to conclude on that day. 5. Relevant to the question of the appellant being sufficiently equipped to make his submissions, it is evident from the course of the proceedings, that the appellant has had paper copies of all the necessary documents comprising the Exhibits tendered in the appeal, as well as having been provided with copies of the transcripts of the appeal hearings to enable him to construct such submissions as he considered appropriate to the issues in the proceedings, both generally and specifically, according to his own perception and understanding of those issues and what he wanted to say about them in submissions, including any submissions in reply to the submissions made by counsel for the Secretary. 6. The appellant has demonstrated himself to be a person of intelligence and forensic acumen. He has an ability to discern and identify relevant issues in the proceedings emerging either from his own understanding or from reading the documentary materials referred to in paragraph [527] above. 7. The appellant failed to appear on the appointed day to either make his submissions or to apply with reasonable cause in proper form to have the final hearing deferred to another date on which he could be ready to make his final submissions. 8. The appellant's earlier attempt to discontinue the proceedings provides a reasonable basis for inferring that he did not want to continue the proceedings. His continued absence from the proceedings without reasonable or adequate explanation, despite having had reasonable notice of the hearing fixed for 16 July 2021, suggested that he did not want to appear and make submissions. 9. Previous reference has been made to the appellant's communication to the Court on 16 July 2021, as described at sub-paragraph (26) of paragraph [522] above. 10. In those circumstances, a number of other considerations had to be taken into account, as follows: 1. The appellant has exercised his right of appeal to this Court. Therefore in the consideration of competing rights, here, the appellant's rights on appeal and the paramount consideration required by s 9(1) of the Care Act, the provisions of the Civil Procedure Act 2005 (NSW) are engaged, particularly s 56 of that Act which requires the just, quick and cheap disposition of proceedings before the Court, subject to questions of procedural fairness; 2. There is a public interest, shared by the Secretary, Department of Communities and Justice, including the statutory interest within s 94 of the Care Act, that requires the proceedings to be finalised with due despatch as litigation should not be prolonged unnecessarily and litigants should not seek an unjust advantage based on their own procedural dilatoriness or misconduct: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27, at [5], [23]-[25], [27], [30], [111]; 3. It is in the appellant's interests to have the proceedings brought to a timely conclusion to quell the dispute which he has instigated; 4. The child who is the subject of the appeal has an undoubted interest in having the proceedings brought to finality, especially where there is a reliable indication that prolongation of the proceedings is having an adverse effect on her mental health. In that regard, there is a confluence of the public interest and the interests of the child. (31) Appellant's email sent to the District Court Civil Registry on 16 July 2021 1. The letter sent to the appellant on 5 July 2021 by the Judicial Registrar, as cited at sub-paragraph (23) of paragraph [522] above, did not result in any communication from the appellant until the morning of 16 July 2021. 2. On 16 July 2021, the appellant sent an email, not to the Judicial Registrar, but instead, to the Civil Registry of the Court. He did so by using a different email address from those which are referred to at sub-paragraphs (11) and (15) of paragraph [522] above. It appears from that email, which is now marked as Exhibit "X", that in the appellant's newly identified email address, he had renamed himself as DCAppellant@outlook.com. The reason for the appellant using a different email address was not explained on the face of the document. 3. The appellant's email, which was sent by the appellant at 8.22am on 16 July 2021, was addressed to the Sydney Civil Registry of the Court, in the following terms: 1. The District Court Civil Registry forwarded the above email to the Judicial Registrar at 8.56am on that day. It was then sent to the Associate at 10.09am after the appellant's absence was noted and the hearing on 16 July 2021 was already underway in Court. The content of that email was then considered in the course of the hearing once its existence became known. 2. For reasons outlined in Court at the time and noted in the transcript, it was decided that the proceedings should continue in the interests of justice to the parties, especially the paramount interests of the child, and because the protracted proceedings needed to be brought to a close: Day 39, T813.11 – T816.1. 3. There was no reliable objective evidence of the appellant being unwell after 11 June 2021. The only objective medical evidence of the appellant's unwellness on 9 June 2021 was the medical attendance certificate from John Hunter Hospital; signed by a junior medical officer stating that the appellant attended the Emergency Department of that hospital at an unstated time on 9 June 2021 and was certified to be "unfit for work / school / usual activities" from 10 June 2021 to 11 June 2021, without identifying any condition of health or the potential for any such condition to render the appellant either physically or emotionally unfit to attend to the requirements of his litigation. 4. From the form and the appearance of the document, it appears the appellant left the hospital on the same day as when he attended: Exhibit "W", p 92. There was no suggestion of a significant state of continuing unwellness after 11 June 2021. 5. On its face, the appellant's request for "tomorrow's listing to be stood down" was in the nature of an application for an adjournment or a stay. An examination of the email reveals that, for whatever reason or effect, he had written the text of the email the day before 16 July 2021, and had not sent it until 8.22am on 16 July 2021. The appellant's request to have the proceedings "stood down" was not the appropriate means by which to seek an adjournment. 6. Such a request required a formal application on due notice, supported by evidence and argument. The appellant's email did not satisfy those basic requirements. If the appellant had submitted current medical evidence showing satisfactory reasons for an adjournment the circumstances might have been otherwise, although an adjournment could not be granted lightly, in view of his many already identified procedural non-compliances when considered against the interests of the child and the public interest of achieving a timely end to litigation of this kind. 7. The appellant's email dated 16 July 2021 did not call for a reply, especially as it was apparent that he would be receiving a copy of the transcript of what transpired in Court in his absence on 16 July 2021. 8. Since that time no formal applications or any further communications have been received from the appellant, or from anyone acting on his behalf. 9. Those matters will be taken up in the consideration of the issues calling for decision. PART C - EVIDENCE REVIEW 1. Before considering and deciding the issues calling for determination it is necessary to identify and review the substantive evidence of relevance to those issues in some detail. 2. In the paragraphs that follow, the salient features of the oral evidence given and transcribed in the Children's Court, and the oral evidence given in this Court, are summarised and reviewed for the purpose of ascertaining whether any of that evidence could reasonably assist the appellant to support any of the contentions he has raised in this appeal so as to compel conclusions that differ in substance from those arrived at by the Children's Court Magistrate. 3. The oral evidence from the respective witnesses, as variously given in the Children's Court, and in this Court, is reviewed in the following sequence: * Ms Alicia Pigot, DoCJ caseworker: see paragraphs [549] to [553] below; * Ms Natalie Elder, DoCJ caseworker: see paragraphs [554] to [566] below; * Dr Chloe Fletcher-Watson, paediatric registrar: see paragraphs [567] to [583] below; * Dr Adam Buckmaster, consultant paediatrician: see paragraphs [584] to [587] below; * Mr Sanjeev Chikara, henna shop proprietor: see paragraphs [588] to [594] below; * Ms Melissa Currie, DoCJ caseworker: see paragraphs [595] to [614] below; * Mr Simon Steward, DoCJ caseworker: see paragraphs [615] to [628] below; * Mrs Rashana Gautam, DoCJ cultural consultant: see paragraphs [629] to [633] below; * Mrs Barbara Power, DoCJ caseworker: see paragraphs [634] to [641] below; * Ms Louise Murphy, DoCJ caseworker: see paragraphs [642] to [666] below; * Ms Debra Grigg, agency contract worker: see paragraphs [667] to [673] below; * Ms Rebecca James, DoCJ caseworker: see paragraphs [674] to [681] below; * Ms Lauren Grant, DoCJ caseworker: see paragraphs [682] to [693] below; * Ms Robyn Patience, agency contact worker: see paragraphs [694] to [697] below; * Mr Paul Witzerman, Family Court psychologist: see paragraphs [698] to [710] below; * Mr Charlie Gangemi, departmental psychologist: see paragraphs [711] to [714] below; * Dr Damon Shorter, the child's current treating paediatrician: see paragraphs [715] to [716] below; * The appellant: see paragraphs [717] to [791] below; * The mother's evidence in the Children's Court proceedings: see paragraphs [792] to [805] below; * The evidence of the mother's new partner given in the Children's Court proceedings: see paragraphs [806] to [812] below. Summary following review of evidence 1. On a fair reading of the evidence reviewed, including the appellant's own evidence, which he gave in different courts, the compelling conclusion which emerges, is that none of that evidence provides a reasonable basis for assisting the appellant in any material respect on any issue he has raised or which has been identified as calling for decision in his appeal. Evidence of Ms Alicia Pigot – in the appeal 1. Ms Pigot was a DoCJ child protection caseworker located at the department's Central Coast Response Unit. Her involvement in the removal of the child from the appellant's parental care is set out in a contemporaneous file note she prepared following her arrival at the child's school at 14:56 hours on 7 August 2017: Exhibit "E", Vol 3, Tab 32, pp 1796 – 1818. 2. Ms Pigot gave evidence at the hearing of the appeal at the request of the appellant: Day 26, T232 – T241. She had not been required to give oral evidence in the Children's Court proceedings. 3. The relevant features of Ms Pigot's oral evidence in the appeal are as follows. She attended at the child's school with Ms Natalie Elder, another DoCJ caseworker, where the child was interviewed in the presence of the school chaplain: Day 26, T233.7, T236.28. She used the camera function on an iPhone supplied by her employer to take some photographs of the child's apparent injuries, both at the school and later at Gosford Hospital after the child's shoes were removed: Day 26, T234.23 – T234.34, T235.30. 4. Coloured prints of those photos appear in the Court Book: Exhibit "E", Tab 32, pp 1908 – 1921. Ms Pigot identified the purpose of the child's attendance at Gosford Hospital as being for a medical examination that was required to be undertaken in accordance with an applicable child protection protocol for investigating and documenting instances of suspected child abuse and neglect: Day 26, T238.24. 5. Nothing of significance emerged from the evidence of Ms Pigot that could possibly be construed as being of assistance to the appellant's objectives in this appeal. Evidence of Ms Natalie Elder – in the Children's Court 1. Ms Elder gave evidence in the Children's Court proceedings. She gave that evidence at the request of the Secretary. Whilst the appellant had initially required her to give evidence in the appeal, he ultimately abandoned that requirement. 2. Ms Elder was the DoCJ child protection response caseworker who was involved in the applications for emergency care and protection orders being obtained for the child in August 2017. She was well qualified for that role: Exhibit "M", Vol 1, Tab 9, p 678.32. The transcript of her evidence in the Children's Court appears at Exhibit "M", Vol 1, Tab 9, pp 673 – 702. Her work, which resulted in the child being assumed into care, was in conjunction with her casework manager, Ms Louise Murphy: Exhibit "M", Vol 1, Tab 9, p 681.11. 3. Ms Elder's role commenced on 7 August 2017 and concluded on 15 August 2017. She provided two affidavits in the Children's Court proceedings. These were respectively dated 10 August 2017 and 20 September 2017: Exhibit "E", Vol 3, Tab 32, pp 1808 – 1865; pp 1964 – 1985. 4. The 10 August 2017 affidavit of Ms Elder was used as a basis for obtaining the original emergency care and protection order. It is not necessary to review that affidavit in further detail in this context. 5. Ms Elder's 20 September 2017 affidavit explains that two sets of photographs had been taken of the child's injuries. The first set was taken at the child's school shortly after 3.00pm on 7 August 2017. The second set was taken later that evening, after 9.00pm, at Gosford Hospital. The second set was obtained because of injuries that were seen at hospital and not previously observed by the DoCJ caseworkers when the earlier photographs were taken at the child's school. 6. Significantly, Ms Elder's 20 September 2017 affidavit also annexed a copy of Ms Pigot's handwritten notes taken at the child's school when the child was interviewed by Ms Pigot and Ms Elder at 2.50pm on 7 August 2017 in the presence of the school chaplain. Ms Pigot's note of the account provided by the child stated: "I was holding the iPad and a plate. I dropped it. He started hitting me with a belt. I said stop-stop-stop." [Exhibit "E", Vol 3, Tab 32, p 1970] 1. Ms Pigot is recorded as having asked the child whether there were any other times her father had hit her with a belt. The recorded answer was: "Almost every day. For no real reason. I got used to it. Before the belt it was a metal ruler. Different belts. 3 things he hits me with. 4 belts, buckles, broom + black, metal ruler, wooden stick, like a rolling pin, used to make flat bread, doesn't have handles." [Exhibit "E", Vol 3, Tab 32, pp 1970 – 1971] 1. In the Children's Court, the appellant's cross-examination of Ms Elder elicited her qualifications, namely, a Bachelor's degree in Social Science and a Graduate Certificate in Family Studies, as well as experiential qualifications in dealing with mental health and drug and alcohol issues: Exhibit "M", Tab 9, p 678.30. Plainly, she was well qualified for her role. 2. In the course of Ms Elder's evidence in the Children's Court proceedings, her attention was drawn to the delays that had been incurred in those proceedings between 2017 and 2019. In that context, and in a general sense, uncontroversially, she agreed with the obvious and trite proposition that time spent by children being away from their family can cause detachment: Exhibit "M", Vol 1, Tab 9, p 675.45. 3. In the Children's Court, the appellant father repeatedly sought to canvass with Ms Elder the proscribed question of the identity of the person who had reported that the child was at a significant risk of harm: Exhibit "M", Vol 1, Tab 9, pp 684.49, 685.2. He took a similar approach in also seeking to identify who had called police to attend at his daughter's school: Exhibit "M", Vol 1, Tab 9, p 689.6. Those contraindicated pursuits were extraneous to the proceedings. 4. Apart from eliciting from Ms Elder some details about the involvement of Ms Murphy as the DoCJ casework manager, the appellant pursued an unproductive time-wasting cross-examination of Ms Elder, as was observed by the Children's Court Magistrate. 5. In the course of the appellant's cross-examination of Ms Elder, the Children's Court Magistrate reminded him that the essential issue to be decided in the proceedings was the question of restoration: Exhibit "M", Tab 9, pp 685.46 – 686.16; p 694.20; p 698.40. None of the appellant's cross-examination of Ms Elder which then followed those reminders had the effect of assisting to advance the appellant's interests that were at stake in the Children's Court proceedings. 6. Nothing emerged from the evidence of Ms Elder that could be reasonably construed as being of assistance to the case the appellant was seeking to make in this appeal. Evidence of Dr Chloe Fletcher-Watson – in both proceedings 1. Dr Fletcher-Watson, a paediatric registrar at Gosford Hospital, gave evidence in the Children's Court proceedings. The transcript of her evidence given in the Children's Court appears in the Court Book: Exhibit "E", Tab 10, pp 748 – 786. At the hearing of the appeal, on 26 May 2021, Dr Fletcher-Watson gave oral evidence by telephone at the request of the appellant: Day 26, T182 – T214. 2. Dr Fletcher-Watson's affidavit was sworn on 17 June 2020. Salient portions of that affidavit have already been cited in these reasons at paragraphs [128] and [129] above. 3. At the time Dr Fletcher-Watson assessed the child on 7 August 2017, she had previous experience in carrying out numerous paediatric SCAN assessments in the course of her paediatric training: Exhibit "M", Vol 1, Tab 10, p 754.1 – 754.10. She said that typically, completion of a SCAN protocol takes about 3 hours: Exhibit "M", Vol 1, Tab 10, p 760.13. She completed the SCAN protocol on the following day after certain test results became available: Exhibit "M", Vol 1, Tab 10, p 774.25. 4. Dr Fletcher-Watson stated that her examination of the child revealed the child was able to walk and weight-bear, but she walked with a limp (Exhibit "M", Vol 1, Tab 10, p 757.37), she had a rash in the context of a history of mushroom allergy (Exhibit "M", Vol 1, Tab 10, p 758.15), she was distressed when discussing her injuries (Exhibit "M", Vol 1, Tab 10, p 758.29), and she had pain in her right heel, left shin, and upper left arm: Exhibit "M", Vol 1, Tab 10, pp 758.35 – 759.10. 5. Dr Fletcher-Watson formed the view that unrelatedly, the child probably had a chronic patch of eczema and excoriated dry skin: Exhibit "M", Vol 1, Tab 10, pp 760.37 – 761.33. She also observed some brown staining consistent with the decorative application of henna dye: Exhibit "M", Vol 1, Tab 10, pp 761.48 – 762.4. 6. Dr Fletcher-Watson was asked to comment on some raised bruising and a laceration as was seen on photographs taken of the child. The anatomical locations of those findings were not identified in the questions or the answers. She said those marks were possibly consistent with a belt or a ruler being used as an implement for hitting the child to inflict a series of injuries: Exhibit "M", Vol 1, Tab 10, pp 765.29 – 769.35. This was in the context that the child's right heel, left shin and left upper arm were painful: Exhibit "M", Vol 1, Tab 10, p 780.5. Apart from suspected abuse at the hands of the appellant, she could not think of any likely alternative explanations for those observations: Exhibit "M", Vol 1, Tab 10, p 782.24. 7. In the Children's Court the appellant sought to question Dr Fletcher-Watson on aspects of the child's appearance in the photographs that were taken of her injuries. Unsurprisingly, given the limited utility of photographs, which she had not taken herself, Dr Fletcher-Watson found it difficult to answer questions based on what was shown in those photographs. 8. Instead, Dr Fletcher-Watson preferred to base her evidence on the content of the diagnostic drawings she had recorded in her own notes because of the contemporaneous detail she had included in those notes: Exhibit "E", Tab 10, p 757.20. She said the photographs she had been shown were not sufficient for interpretation purposes: Exhibit "E", Tab 10, p 765.46. 9. Dr Fletcher-Watson said that when she saw the child at Gosford Hospital she had observed that the child was only distressed when she was discussing the injuries she had sustained. She was observed to be in apparent pain when walking: Exhibit "E", Tab 10, pp 758.30 – 759.10; p780.5. 10. Dr Fletcher-Watson described the process of her examination of the child and the related preparation of her documentation. She explained that she had delayed completing her report until the following day after her examination of the child, so that she could consider the results of the blood tests she had ordered: Exhibit "E", Tab 10, p 774.26. 11. It is noteworthy that during the appellant's questioning of Dr Fletcher-Watson, the Children's Court Magistrate found it necessary to rebuke the appellant for making a spurious application in the course of that evidence: Exhibit "E", Tab 10, p 765.15. 12. The appellant appeared to have been quick to take offence to that rebuke. He did so in grandiose terms when being corrected on the approach he was taking to his questions. In that context, unhelpfully, he made insulting remarks to the Children's Court Magistrate along the same lines that he pursued in this Court: Exhibit "E", Tab 10, pp 776.22 – 776.46. 13. The relevant features of the oral evidence of Dr Fletcher-Watson given in the appeal are as follows. 14. At the time of Dr Fletcher-Watson's examination of the child on 7 August 2017, she was a junior medical registrar deployed at Gosford Hospital: T186.30. At that time she was the paediatric registrar on duty at that hospital: T186.9. She was a legally qualified medical practitioner who was undertaking paediatric training: Day 26, T207.7. The appellant's attempts at seeking to diminish or discount Dr Fletcher-Watson's qualifications should be rejected. 15. Dr Fletcher-Watson's examination of the child involved her undertaking a SCAN protocol examination of the child. After test results which she had ordered were received and reviewed, she discussed those results and her findings with her supervising paediatric consultant, Dr Adam Buckmaster on the following day. She then completed her SCAN assessment report: Day 26, T195.31; T196.27. She had conducted her examination of the child in the presence of DoCJ caseworkers: Day 26, T206.14. 16. Dr Fletcher-Watson confirmed her recorded findings of bruising on the child and the appearance of different areas of skin colouring, rashes and some residual henna colouring (Day 26, T200.43; T201.6), and she also observed that the child appeared to be limping (Day 26, T207.29), which she assessed to be on account of bruising and soft tissue swelling: Day 26, T208.18; T210.37. 17. The appellant did not obtain any relevant concessions from his questioning of Dr Fletcher-Watson, either in the Children's Court or in this Court. Dr Fletcher-Watson's evidence was reliable and the compelling conclusion is that her evidence should be accepted in its entirety. Evidence of Dr Adam Buckmaster – in the Children's Court proceedings 1. Dr Buckmaster was the consultant paediatrician on call at Gosford Hospital on 7 August 2017. Dr Buckmaster provided an affidavit sworn on 1 June 2020 in the Children's Court proceedings: Exhibit "M", Vol 1, Tab 2, pp 10 – 15. The appellant father called him to give evidence in the Children's Court proceedings. 2. An overview of Dr Buckmaster's evidence in the Children's Court indicates that he supervised Dr Fletcher-Watson's work and considered it to be appropriate to the circumstances. He did not carry out a personal examination of the child after Dr Fletcher-Watson had carried out her examination. The appellant sought to make much of that fact but nothing of significance turned on such criticisms. 3. In the appeal, ultimately, the appellant announced that he no longer required Dr Buckmaster to be cross-examined on his earlier evidence given in the Children's Court. The transcript of the evidence he gave in the Children's Court appears at Exhibit "E", Tab 10, pp 738 – 746. 4. The appellant pursued an unproductive course of questioning of Dr Buckmaster in the Children's Court. On a consideration of that evidence in this Court, nothing emerged from the evidence of Dr Buckmaster that could reasonably be construed to have been of assistance to the appellant's case on appeal. Evidence of Mr Sanjeev Chikara – in the appeal 1. On 26 May 2021, the appellant called Mr Chikara, the proprietor of a henna tattoo shop, to give evidence in his appeal by means of a telephone connection: Day 26, T227 – T231. 2. Mr Chikara's statutory declaration dated 26 September 2018 appears as Annexure 'A' to the affidavit of the appellant affirmed on 17 December 2018: Exhibit "E", Vol 4, Tab 33, p 2761. An examination of the content of Mr Chikara's underlying statutory declaration revealed it to be of limited probative value. 3. Mr Chikara's statutory declaration was dated 13 months after Dr Fletcher-Watson's medical examination of the child. He claimed no special expertise in examining or interpreting photographs of residual signs of henna dyeing on skin. His opinion did not relevantly contradict the evidence of Dr Fletcher-Watson or the evidence given by the child in the criminal proceedings in the Local Court. 4. The relevant features of Mr Chikara's oral evidence in the appeal are as follows. He confirmed that he had given his earlier statutory declaration dated 26 September 2018 which was used by the appellant in the Children's Court proceedings: Day 26, T227.11 – T227.14. 5. Mr Chikara confirmed that his business records showed that the child had attended at his henna shop business in July 2017 for the purpose of decorative application of henna dye patterns to a forearm and to her legs: Day 26, T229.25 – T225.39. 6. Although Mr Chikara had seen photographs of parts of the child's body on 26 September 2018, he did not claim any special expertise in the interpretation of photographs so as to enable him to reasonably differentiate between marks that could represent signs of injury and marks that could represent signs of the residue of previously applied decorative henna dye: Day 26, T229.18. 7. Accordingly, the evidence of Mr Chikara was of very limited probative value regarding assisting with the determination of any issue calling for decision in the appeal. The evidence of Mr Chikara did not assist the appellant's appeal in any material respect. Evidence of Mrs Melissa Currie – in the Children's Court 1. After the child had been assumed into the care of the Minister, Mrs Currie was the DoCJ caseworker who had the day-to-day responsibility for the child between 15 August 2017 and 20 February 2018. On that latter date, Mr Steward took over that responsibility. 2. The transcript of Mrs Currie's evidence in the Children's Court appears in the Court Book at Exhibit "E", Tab 8, pp 594 – 634; Tab 9, pp 643 – 672. Ultimately, Mrs Currie was not required to give oral evidence in the appeal. 3. Mrs Currie had prepared an affidavit affirmed on 29 September 2017 for the Children's Court proceedings: Exhibit "E", Vol 3, Tab 32, pp 1981 – 2041. That affidavit has been taken into account as part of the background material and it does not require further analysis in these reasons. 4. Mrs Currie was cross-examined by the appellant on matters that were largely irrelevant to the issues to be decided in the present appeal: Exhibit "M", Vol 1, Tab 8, pp 594 – 634. Those matters included the mother's subsequent pregnancy from her new relationship whilst overseas (Exhibit "M", Vol 1, Tab 8, p 595.15), and intervention by DoCJ in the Family Court proceedings: Exhibit "M", Vol 1, Tab 8, p 595.28 5. The appellant cross-examined Mrs Currie at length in the Children's Court proceedings. That cross-examination traversed topics such as contact visit issues, and the appellant's issue of wanting to bring Indian food for the child at contact visits, although this had not always occurred as he had promised: Exhibit "E", Tab 8, p 606.32. The issue which the appellant sought to explore was whether the child's cultural and dietary needs were being adequately met. 6. Mrs Currie was also cross-examined by the appellant on matters that had been observed at contact visits (Exhibit "M", Vol 1, Tab 8, p 596.46) and about the child being scared to have contact with the appellant (Exhibit "M", Vol 1, Tab 8, p 599.30), as well as the frequency of face to face contact access between the mother and the child (Exhibit "M", Vol 1, Tab 8, p 604), and regarding the appellant cooking food for the child. 7. The appellant's cross-examination of Mrs Currie in the Children's Court sought to elevate the significance of a single occasion, where, in preparation for a contact visit with the appellant, the child had not beforehand had afternoon tea or an afternoon snack, expecting that her father would bring her something to eat. In those circumstances the child had simply complained of experiencing hunger pains. He sought to characterise such circumstances as the carer "starving her out of food", and he sought to contradict Mrs Currie's view that the child was being well looked after in her placement: Exhibit "M", Vol 1, Tab 8, p 606.21. 8. In the appellant's cross-examination of Mrs Currie, he spent significant time exploring the explanation for the child having had a few scratches and scrapes on various parts of her body as observed at a contact visit. Those matters of concern to the appellant turned out to have innocent explanations rather than being attributed to the consequences of assumed abuse in her placement, as was maintained by the appellant, based on his suspicions, rather than being based on hard evidence. 9. The background to those events was described by Mrs Currie in her affidavit of 29 July 2017. Following a contact visit, the appellant had requested police to do a welfare check on the child in her care setting. The result was that the appellant's concerns were not substantiated. 10. Mrs Currie's affidavit also dealt with concerns over whether the appellant had been trespassing at the child's school in an endeavour to locate her. 11. It is of interest to note that when the appellant was to face court on the trespass charges at Gosford Local Court on 19 September 2017, he complained he was unwell and was taken to hospital which necessitated an adjournment of the Children's Court proceedings: Exhibit "E", Vol 3, Tab 32, p 1986, par 25. 12. In the context of the appellant's concerns over the appropriateness of the child's placement, the Children's Court Magistrate reminded the appellant that the case was not about the child's placement, but was instead about whether there was a realistic possibility of the child being restored into his parental care. At that time, the appellant was also reminded that he needed to deal with the issue of whether he had failed to address the allegation that he had assaulted his daughter: Exhibit "E", Tab 8, pp 614.39 – 615.16. 13. In the Children's Court, the time taken by the appellant to cross-examine Mrs Currie was excessive. The continuation of her evidence had to be adjourned and resumed several months later after it had commenced: Exhibit "E", Tab 9, pp 643 – 672. 14. In the appellant's resumed cross-examination of Mrs Currie, he focussed on peripheral issues, including the fact that the child had at one stage exhibited signs of injury to her forehead said to be due to having slipped in the shower whilst in her care placement. In the Children's Court, the appellant had to be reminded that he needed to address his focus to the true issues at stake, as identified at paragraph [606] above. 15. When the appellant's cross-examination of Mrs Currie resumed, the Children's Court Magistrate found it necessary to again remind him of the need for him to focus on the fundamental issue at stake in the proceedings, namely, the issue of restoration: Exhibit "E", Tab 9, p 651.34 – T651.48. 16. Instead, notwithstanding that suggestion, the appellant irrelevantly continued to pursue the peripheral issues of the child having scratches, scrapes and bumps, matters to do with the child's schooling, and the child's contact with the mother. 17. Eventually, and materially, the appellant's cross-examination of Mrs Currie touched upon the question of restoration. He sought Mrs Currie's opinion on whether she thought there was a realistic possibility of restoration of the child to him. She answered the appellant's question definitely in the negative. When pressed, her reason for that negative opinion was because the appellant had never acknowledged that he had assaulted his daughter: Exhibit "E", Tab 9, pp 667.48 – 668.15. 18. Towards the conclusion of the appellant's cross-examination of Mrs Currie the Children's Court Magistrate again reminded the appellant that the case before the Court was not an inquiry into whether the department could have done better in its placement arrangements for the child, but rather, whether at that stage there was a realistic possibility of restoration of the child into the care of either parent: Exhibit "E", Tab 9, pp 670.14 – 670.19. That issue was barely addressed by the appellant. 19. Without supporting evidence, the appellant suggested to Mrs Currie that part of the content of a file note, on a peripheral question, she had prepared had been fabricated by her. She denied that proposition: Exhibit "E", Tab 9, p 672.7. The appellant's allegation of fabrication remained unsubstantiated. Mrs Currie's evidence was shown to be reliable and should be accepted. 20. Nothing of substance emerged from the evidence of Mrs Currie that could reasonably be considered to have advanced or assisted the appellant's position in these appeal proceedings. Evidence of Mr Simon Steward – in the Children's Court 1. Mr Steward was the child protection caseworker who was responsible for writing the original care plan for the child and the subsequent addendum to that plan. The transcript of the evidence he gave to the Children's Court appears at Exhibit "E", Tab 8, pp 541 – 589. In those proceedings, the appellant extensively cross-examined Mr Steward. 2. Mr Steward provided a series of five affidavits for the Children's Court proceedings. These were respectively sworn on 15 March 2018 (Exhibit "E", Vol 3, Tab 32, pp 2042 – 2181); 16 April 2018 (Exhibit "E", Vol 3, Tab 32, pp 2212 – 2233); 16 May 2018 (Exhibit "E", Vol 3, Tab 32, pp 2234 – 2303); 4 October 2018 (Exhibit "E", Vol 3, Tab 32, pp 2304 – 2352); 29 November 2018 (Exhibit "E", Vol 3, Tab 32, pp 2353 – 2381). 3. Mr Steward's 15 March 2018 affidavit provided the Children's Court with the factual background that covered a number of historical issues that included the appellant's contact with DoCJ whilst he was incarcerated after being charged with assaulting his daughter, seeking contact with the child, casework updates, contact arrangements with the mother, and the child's wish to have contact with the father, but only within the rules she had set for him, not to touch her hair, and limited conversation topics: Affidavit 15 March 2018, par 44. It is not necessary to review and analyse the voluminous departmental documents annexed to this affidavit other than to note that on 13 February 2018, the contact worker, Robyn Patience, had noted the child was nervous about seeing the appellant at that contact visit: Exhibit "E", Vol 3, Tab 32, p 2175. 4. Mr Steward's 16 April 2018 affidavit provided an update for the Children's Court proceedings and identified the fact that a referral had been made for the child to receive psychological therapy to commence on 23 April 2018. This affidavit recorded that the carer had disclosed the child had been crying and was anxious. Annexure 'C' to this affidavit identified four specific contact rules that were established at the child's request for meetings with the appellant. These rules provided for no conversation about the maternal family, no touching of the child's hair, no fuss was to be made about injuries, and there was to be no talk about court proceedings: Exhibit "E", Vol 3, Tab 32, p 2220. The affidavit also annexed some contact visit reports which do not require analysis at this point: Exhibit "E", Vol 3, Tab 32, pp 2224 – 2233. 5. Mr Steward's 16 May 2018 affidavit dealt with a factual update on the child's placement. It recorded the fact that on 14 May 2018, the child intimated that she did not want to have contact with the appellant. The affidavit noted the appellant's convictions for the charges of assault and trespass had been recorded on 19 February 2018. The affidavit also noted that immigration advice had been received to the effect that the child would be able to obtain a visa for travel to the USA. At that point, DoCJ was obtaining legal advice as to whether the child could achieve legal permanency in the USA. This affidavit annexed the transcript of the Local Court criminal proceedings against the appellant where the appellant gave evidence as recorded at Exhibit "E", Vol 3, Tab 32, pp 2275 – 2294, following which the appellant was later convicted. 6. Mr Steward's 4 October 2018 affidavit provided his casework update and reviewed matters concerning the child's health and development, her schooling, contact arrangements, noting that since 16 April 2018, the child had not had contact with the appellant. The affidavit recorded that the Department of Immigration had stated no passport could be issued to the child without a Court order and the matter was not pursued further after that advice was received. The annexures to this affidavit do not require further analysis at this point. 7. Mr Steward's 29 November 2018 final affidavit, provided an update on the child's health and development. It recorded the fact that the departmental psychologist determined that as at 5 October 2018, the child did not require ongoing therapy, but the child had requested supportive counselling and this was being arranged. The affidavit annexed a report from the department's psychologist, Mr Ganjemi, and a report from the child's treating paediatrician, Dr Shorter. Those reports will be considered in the context of a review of the evidence of those practitioners. 8. Mr Steward's final affidavit, dated 29 November 2019, also annexed further material in the form of contact reports and contact rules which do not require further analysis at this point. Significantly, this affidavit annexed a copy of a letter from the child to the appellant that had been provided to Mr Steward on 12 October 2018: Exhibit "E", Vol 3, Tab 32, p 2370. In that letter, the child invited the appellant to correspond with her. She had expressed appreciation over his earlier letters and it indicated that she was interested in learning about her family. 9. Mr Steward's affidavit material formed the historical basis for the assessment by DoCJ that there was a realistic prospect of restoration of the child to the mother: Exhibit "E", Tab 8, p 543.36. That proposition was ultimately rejected by the Children's Court. That aspect of his evidence has no relevance to the issues to be determined in this appeal. 10. On 18 May 2018, Mr Steward stated his understanding that the child had been happy in her placement over the previous 15 months but at that time an assessment was yet to be made as to whether that placement was capable of being seen as a suitable long-term placement for the child. 11. In the Children's Court proceedings, the appellant elicited evidence from Mr Steward to the effect that the child was frightened of the appellant because he had assaulted her, and that she was worried about the possibility of him hitting her again: Exhibit "M", Tab 8, pp 563.20 – 563.46. In that evidence, Mr Steward also said the child did not want to have Skype contact with the appellant, and that the child had also indicated she was uncomfortable with the content of the appellant's conversations at contact visits, which resulted in the child stating that she needed rules for such contact visits: Exhibit "E", Tab 8, p 568.26; p 572.22; p 581.21. 12. In his evidence, Mr Steward candidly conceded that whilst the department could have done better to meet the child's cultural needs, it was not easy to do so in the geographic location on the Central Coast of NSW: Exhibit "E", Tab 8, p 565.11. 13. A significant part of Mr Steward's evidence in the Children's Court no longer requires analysis in these proceedings insofar as it related to the possible restoration of the child to her mother and her new de facto partner about whom the appellant made allegations of dishonesty and human trafficking. 14. Nothing that emerged from Mr Steward's evidence in the Children's Court proceedings had the effect of assisting the position taken by the appellant in his appeal. Evidence of Ms Rachana Gautman – in the Children's Court 1. Ms Gautman was a multicultural caseworker employed by DoCJ. She had provided Mr Steward with a cultural consultation by telephone in conjunction with working with the foster carers with regard to the child's Indian cultural background. Ms Gautman's file note of that consultation appears at Exhibit "E", Vol 3, Tab 32, p 2328. Nothing of significance turns on that file note. The transcript of her evidence in the Children's Court proceedings appears at Exhibit "E", Tab 14, pp 1076 – 1096. 2. It was observed that in the appellant's cross-examination of Ms Gautman, he adopted a loud, aggressive, fast-talking and argumentative tone in his questioning. The Children's Court Magistrate rebuked him for that approach, describing it as being inappropriate to the proceedings: Exhibit "E", Tab 14, p 1085.32. 3. The cross-examination of Ms Gautman identified as a general proposition only, that in the Hindu community, domestic violence is accepted and prevalent, and that it is not believed to have a negative effect on the children who are exposed to it Exhibit "M", Vol 2, Tab 15, p 1083.14 – 1083.28. That proposition cannot be regarded as being acceptable in this society. Plainly, the Children's Court Magistrate also rejected that extraordinary proposition and gave it no credence in his evaluation of the evidence. 4. The matters the appellant sought to explore in his cross-examination of Ms Gautman are no longer relevant in this appeal because the questions that were explored essentially related to the mother's situation, and in this appeal, the mother of the child no longer seeks that the child be restored into her parental care. 5. The appellant's cross-examination of Ms Gautman achieved nothing of benefit to the case he sought to make in the Children's Court proceedings. Evidence of Ms Louise Murphy – in the Children's Court 1. Ms Murphy was the manager of casework who supervised the work of Ms Pigot and Ms Elder. She authorised the application of an emergency care and protection order for the child in August 2017 and subsequently, before handing over those casework responsibilities to Mrs Barbara Power. The transcript of Ms Murphy's evidence appears in the Court Book at Exhibit "E", Tab 10, pp 787 – 797; Tab 11, pp 813 – 835. 2. Ms Murphy had made the decision to assume the child into protective care from her school on 7 August 2017: Exhibit "E", Tab 10, p 788.23. Ms Murphy's affidavit evidence in the Children's Court was not canvassed in the appeal. 3. Ms Murphy confirmed that the decision to arrange for a medical examination of the child at Gosford Hospital was essentially based on the content of the interviews with the child: Exhibit "M", Vol 1, Tab 11, p 827.20. 4. Ms Murphy had suggested at an early stage after the child's removal, that the appellant father should enrol in a course called "Facing-Up" regarding domestic violence issues: Exhibit "M", Vol 1, Tab 11, pp 830.30 – 830.44. 5. In addressing the Children's Court during his cross-examination of Mrs Murphy, without cogent evidence, the appellant made an allegation that she had misled the Court. When rebuked about that statement, despite its seriousness, he defiantly refused to withdraw it, and the allegation remained unsubstantiated whilst some time was wasted by the appellant searching through his documents before abandoning the point: Exhibit "E", Tab 10, pp 793.43 – 794.48. 6. The evidence of Ms Murphy in the Children's Court could not be completed until it was resumed several months later: Exhibit "E", Tab 11, pp 813 – 835. When the cross-examination of Ms Murphy resumed, much time and transcript was taken up with argument and correctional directions which the Children's Court Magistrate needed to give to the appellant. 7. At one stage the appellant sought to raise a question about the credibility of an underlying report of serious harm which had led to the child's removal from his care. In that regard, the appellant suggested that the reporter, a neighbour had made vexatious claims against him. Nothing of substance came from that suggestion: Exhibit "E", Tab 11, pp 829.25 – 829.38. 8. There was nothing in the evidence given by Ms Murphy that could reasonably assist the appellant on any issues of significance in his appeal. Evidence of Mrs Barbara Power – in the Children's Court 1. Mrs Power is the DoCJ casework manager who was responsible for instituting the childcare proceedings in the Children's Court. She was responsible for casework in relation to the subject child. The transcript of her evidence given in the Children's Court appears in the Court Book at Exhibit "E", Tab 11, pp 864 – 880; Tab 12, pp 889 – 981. In the Children's Court Mrs Power was cross-examined at length by the father: Exhibit "M", Vol 1, Tabs 11 & 12, pp 865 – 981; Vol 2, Tab 13, pp 988 – 1048. 2. The Secretary called Mrs Power as a witness in the Children's Court proceedings. At the time she gave her evidence, she had 27 years of accumulated experience working in various capacities with DoCJ dealing with child protection issues. She has had involvement with the case concerning the subject child since September 2017. At the time she gave evidence in the Children's Court, DoCJ was essentially seeking an order that the child go to America to live with her mother: Exhibit "M", Vol 1, Tab 11, p 864.16. That is no longer the case. 3. The appellant elicited evidence from Mrs Power to the effect that the rules about what should or should not occur at contact visits with the appellant had been imposed at the instigation of the child because she had expressed discomfort over the appellant's behaviour at contact visits: Exhibit "E", Tab 11, p 865.50. 4. Mrs Power identified the immediate concern held by DoCJ as to whether the appellant, in disciplining the child, had applied force by belting her: Exhibit "M", Vol 2, Tab 13, p 993.26. 5. The appellant sought to embark upon a provocative course of cross-examination of Mrs Power, but ultimately, he withdrew from that approach: Exhibit "E", Tab 11, pp 872.31 – 872.42. 6. In his lengthy cross-examination of Mrs Power, the appellant sought to yet again explore why injuries which had been seen on the child had not been investigated by DoCJ. Mrs Power answered that those injuries had been adequately explained by the child and they were healing and not causing the child any great discomfort: Exhibit "E", Tab 11, pp 867.45 – 870.26; p 875.14; Tab 12, p 916.30; p 917.23. 7. When the appellant's cross-examination was interrupted by the Children's Court Magistrate, on the ground that the line of questioning was irrelevant, the appellant delivered a rancorous soliloquy, alleging disgraceful and malicious conduct by DoCJ personnel, which the Children's Court Magistrate stopped, describing it as an extraordinary attack of no relevance to the issues: Exhibit "E", Tab 11, pp 871.22 – 872.16. 8. The appellant sought but failed to obtain concession from Mrs Power to the effect that the child's wishes were being manipulated to ensure contact would not occur: Exhibit "E", Tab 11, pp 873.47 – 873.49. 9. When the evidence of Mrs Power continued on a later date, the appellant cross-examined her at considerable length: Exhibit "E", Tab 11, pp 889 – 981. 10. In his cross-examination of Mrs Power, the appellant sought to make speeches, for which he was rebuked (Exhibit "E", Tab 12, p 891.5), and he sought to explore many issues that have no relevance to the present appeal as the mother is no longer seeking that parental responsibility be restored to her. It is therefore not necessary to review that part of Mrs Power's evidence in the Children's Court. 11. At times during his cross-examination of Mrs Power, the appellant was admonished by the Children's Court Magistrate, and was told to lower his tone of voice: for example at Exhibit "E", Tab 12, pp 947.15; 971.21, and at other places in the Children's Court transcript. The appellant achieved nothing by taking that approach with the witness. 12. On 24 May 2019, the appellant's cross-examination of Mrs Power resumed in the Children's Court: Exhibit "E", Tab 13, pp 988 – 1048. Previously, the appellant said that he had concluded his cross-examination of Mrs Power but in the interim break he found the need to ask further questions in cross-examination. He was given leave to pursue that course but only on limited issues: Exhibit "E", Tab 13, p 1026.33; p 1027.5; p 1038.18. 13. The key topics of relevance to the proceedings that the appellant raised in his lengthy cross-examination of Mrs Power were as follows: 1. A concern was raised by the appellant that the child had incurred injuries whilst in care. Those injuries were identified as being scratched by a cat, and hurting her knee when she slipped whilst running: Exhibit "M", Vol 1, Tab 11, p 865.42. The father wanted those injuries investigated as instances of possible abuse, whereas the casework manager considered those injuries had been adequately explained: Exhibit "M", Vol 1, Tab 11, pp 867.45 – 868.13; 2. The father was most concerned that DoCJ had apparently not investigated those injuries. Mrs Power explained this was because they were considered as not causing great discomfort, they were healing, and the cause had been adequately explained: Exhibit "M", Vol 1, Tab 11, p 870.25; 3. DoCJ had promptly informed the appellant that the child had sustained an accidental bump to the head which was said to have occurred when she slipped in the shower: Exhibit "M", Vol 1, Tab 12, p 916.30. Although the father was concerned that there was no medical follow-up of that event, Mrs Power explained this was because the injury was considered to be minor: Exhibit "M", Vol 2, Tab 12, p 917.22; 4. Mrs Power rejected the proposition put to her by the appellant to the effect that the child's wishes were being manipulated in the proceedings: Exhibit "M", Vol 1, Tab 11, p 873.48; Vol 2, Tab 12, p 975.48. 5. The child had previously given evidence in criminal proceedings in the Local Court against the appellant on 19 February 2018. The caseworker considered the child had been greatly relieved at having done so: Exhibit "M", Vol 2, Tab 11, p 876.18; 6. The Department's approach (in 2019) of wanting to restore the child to her mother was explained by Mrs Power in detail: Exhibit "M", Vol 2, Tab 12, p 906.50 and following. That former approach, which was ultimately rejected by the Children's Court Magistrate, has no relevance to these appeal proceedings. 1. In the Children's Court much time was taken up with the appellant seeking to cross-examine Mrs Power as to her understanding of the mother's visa situation, the legality of her current domestic relationship in the USA, whether the mother's current partner has criminal convictions, whether he has been the perpetrator of assaults in the past, and whether the mother is involved in human trafficking. 2. Those matters were not relevant to the question of whether there was a realistic possibility of the child being restored into the care of the appellant father, especially in the context that an ADVO had been taken out against the appellant on 15 August 2017 in favour of the subject child: Exhibit "M", Vol 2, Tab 12, p 943.20 – 943.30. 3. In the Children's Court proceedings, Mrs Power stated that the question of whether the child could be placed with her grandparents had not been investigated: Exhibit "M", Vol 2, Tab 12, p 977.13. This appears to have been so because the grandparents are not in Australia and because of concerns over child safety issues: Exhibit "M", Vol 2, Tab 12, p 978.14. 4. In the Children's Court, Mrs Power reiterated the position of DoCJ to be that the child not be restored to her father: Exhibit "M", Vol 2, Tab 13, p 995.44. The Department's position in the Children's Court was to the effect that all parental responsibility be restored to the mother: Exhibit "A", Vol 2, Tab 13, p 996.46. 5. Mrs Power recounted that the child was uncomfortable about the father's behaviour at contact visits and therefore wanted rules to be put in place to control those contacts: Exhibit "M", Vol 1, Tab 11, pp 865.40 – 865.50. 6. In her evidence in the Children's Court, Mrs Power recounted that over the course of her multiple dealings with the appellant, he had refused to talk with her about any concerns that had been raised. She also stated that in his dealings with her he had raised his hand up in front of her face, he was loud, difficult, intimidating and aggressive in his behaviour: Exhibit "M", Vol 2, Tab 13, pp 998.27 – 999.6. 7. In answers to questions asked of Mrs Power in the Children's Court by the child's independent legal representative concerning the mother's present partner and an alleged history of violence on his part, Mrs Power stated that the position of DoCJ was that it would not want to place any child into an environment which would involve exposure of the child to domestic violence: Exhibit "M", Vol 2, Tab 13, p 1010.47. 8. Mrs Power stated that DoCJ regards the child as being an Australian citizen, born in Australia, of Indian heritage; Exhibit "M", Vol 2, Tab 13, pp 1022.45 – 1023.50. This appeared to relate to questions over the issue of a passport to the child and possible overseas travel. 9. Mrs Power confirmed that as at 24 May 2019, the child's placement with carers was not considered by DoCJ to be a long-term placement but was instead considered as being an emergency placement: Exhibit "M", Vol 2, Tab 13, p 1026.22. However, that position later changed into a permanent placement. 10. In his cross-examination of Mrs Power in the Children's Court proceedings, the appellant sought to obtain opinion evidence from her to the effect that the child "seems to be a people pleaser where she will adapt her responses to gain approval of whoever she wants to like her": Exhibit "M", Vol 2, Tab 13, p 1040.26. That view seems to be the basis for the appellant's recurrently expressed view that the child has been manipulated. 11. The appellant achieved no forensic advantage from his cross-examination of Mrs Power. He obtained no concessions that could reasonably be of material assistance to his interests on the issues that the Children's Court had to determine. 12. Nothing of relevance to the issues to be determined in his appeal emerged from the appellant's cross-examination of Ms Power. Evidence of Mrs Debra Grigg – in the Children's Court 1. Mrs Grigg is a contact worker with the agency Life Without Barriers. Her role was to supervise the appellant's contact visits with his daughter. She had prepared contact reports dated 31 August 2017, 7 September 2017 and 27 February 2019. Those reports were in evidence in the Children's Court proceedings. The transcript of the evidence she gave in those proceedings appears in Exhibit "E", Tab 11, pp 836 – 862; Tab 13, pp 988 – 1048. 2. The appellant's cross-examination of Mrs Grigg commenced with his pursuit of irrelevant peripheral matters and time-wasting exchanges. If he had been represented by a legal practitioner familiar with the Children's Court procedures that would have been an unlikely course. 3. When the Children's Court Magistrate rebuked the appellant for making unnecessary comments on the evidence as it was being given, he misguidedly accused the Children's Court Magistrate of intimidating him, thereby displaying his lack of understanding of the required procedure: Exhibit "E", Tab 11, p 848.4. 4. The appellant further demonstrated his ignorance of the required procedure in the Children's Court. This was at a point where he was pulled up during his cross-examination of Mrs Grigg for not putting propositions appropriately for her to comment. In response, he misguidedly stated "We are still in the process of gathering evidence", when plainly, that was not so: Exhibit "E", Tab 11, pp 853.46 – 854.3. His role at that time was to cross-examine on evidence that had been introduced by the Secretary. 5. In his cross-examination of Mrs Grigg, the appellant elicited from her the department's concerns over the behaviour he displayed at contact visits, where he was "constantly rude to family contact workers and that [he] would not listen to what [the child] wants": Exhibit "E", Tab 11, p 855.36. 6. Mrs Grigg explained that the reason the appellant father was required to speak English during contact visits was so that contact workers could hear and understand what he was saying to the child: Exhibit "M", Vol 1, Tab 11, p 857.45. 7. The evidence given by Mrs Grigg was of no assistance to the appellants' case in which he sought restoration of his child into his parental care. Evidence of Ms Rebecca James – in the appeal proceedings 1. At the appellant's request, on 31 May 2021, the Secretary called Ms James, a DoCJ caseworker, to give evidence. The appellant required her for cross-examination on the subject of her work with the child as her caseworker: Days 29 and 30, T472 – T584. Much of that cross-examination raised matters that were irrelevant to the issues to be decided in the appeal. 2. Ms James was the child's caseworker from 18 January 2019 until January 2020: Day 29, T485.19. She had interviewed the child on 11 February 2019 for the purpose of formulating a care plan: Day 29, T472.37. She had not looked at the documentation from that interview since that time: Day 29, T478.17. The appellant had not given notice that she should do so before giving her evidence. She was not involved in preparing the first care plan which was dated 25 June 2018. 3. Ms James' notes of interview with the child on 11 February 2019, were relied upon by the Secretary in the Children's Court: Exhibit "E", Vol 4, Tab 40, pp 2858 – 2878. Those notes have been taken into account. 4. In the course of the appellant seeking to cross-examine Ms James, he wasted a significant amount of time on matters that were either irrelevant, or peripheral to the issues to be determined in the appeal. This was despite many attempts to keep him on track and confine the ambit of his questions to relevant matters. His unstructured approach to the cross-examination of Ms James meant that it was necessary to give him some latitude in view of his self-representation. 5. In the appellant's cross-examination of Ms James, he pursued the following matters which he claimed to be relevant to the issues raised in the appeal: 1. The care plan prepared by Ms James was prepared on the basis that the DoCJ believed the appellant had not demonstrated a willingness to accept responsibility for his behaviour and he has not demonstrated relevant change: Day 29, T485.35; 2. The terms of the care plan prepared by Ms James were in part determined by the fact that the appellant was not adhering to the rules of contact which had in part been drafted by the child in conjunction with Ms James, where such non-adherence was upsetting to the child: Day 29, T488.36 – T488.50; 3. It seemed that his predominant complaint was that the DoCJ records system contained an erroneous description of a past history of domestic violence between the child's parents and an AVO issue, and he therefore argued this error somehow vitiated the care plan drafted by DoCJ in 2019. That complaint was spurious; 4. Much of the cross-examination of Ms James was irrelevantly taken up with the appellant reading material to her from documents that were not of her creation; 5. Ms James was asked many irrelevant questions on her work on the 2019 care plan which had superseded the previous amended care plan prepared by Mr Steward on 25 June 2018, which had recommended restoration to the mother: Day 29, T478.38 – T478.43; 6. The care plan drafted by Ms James was filed in the Children's Court at Parramatta on 4 December 2019: Day 29, T481.50. Ms James confirmed that when drafting the care plan, relevant background information when taken from the DoCJ records system: Day 29, T480.32. Ms James also confirmed that when she prepared the amended care plan for the child she had obtained and relied upon information obtained from earlier caseworkers and the information within the DoCJ system: Day 29, T564.44 – T564.47; 7. The appellant's cross-examination of Ms James at times inappropriately resorted to insults and abuse, and included misplaced accusations that she was being evasive and repetitive: Day 29, T489.24 – T490.2. The assertion of repetition was somewhat ironic given his own course of seeking to repetitively pursue irrelevant matters; 8. The impression gained from the appellant's approach to the cross-examination of Ms James was that he was wasting time. At a relatively early stage in the cross-examination of Ms James, which resulted in some 25 pages of transcript (Day 29, T473 – Day 30, T491), he indicated he was "almost done": Day 30, T491.46. However, later, that cross-examination continued, in a largely unstructured manner, for a further 75 pages of transcript; 9. The appellant chose to frame some questions to Ms James in offensive terms: Day 30, T502.48 – T503.14; T505.35 – T505.46; 10. Despite the appellant being requested to avoid asking Ms James questions on irrelevant matters, he persisted with that course, and at times cavilled with rulings, for example, at Day 30, T521.2 and T540.38 on Day 30; 11. The appellant attempted to cross-examine Ms James on documents in an unfair manner, by using incomplete quotations, which mis-cited the material in a misleading way, for example, at T513.20 – T513.25 on Day 30; 12. The appellant tried to curtail and inappropriately comment upon Ms James' answers to questions. He sought to interrupt her answers where he considered that her answers did not suit his objectives (for example, at T517.41 and T526.42 – T527.2 on Day 30), and where he sought to comment on her evidence whilst it was being given; 13. Ms James explained that when the contact arrangements with the appellant were changed from fortnightly to six times per year for two hours at a time, this decision was taken in light of the final orders made by the Children's Court, also taking into account the child's wishes, but she also indicated that in the future, this arrangement could be re-negotiated: Day 31, T570.26 – T571.4; T573.43; 14. Ms James recounted that at the appellant's contact visits, where she was the caseworker, the appellant was "usually about 20 minutes late": Day 31, T571.20. This was obviously a matter that was upsetting for the child; 15. Ms James recounted that in the course of her time as the child's caseworker, there was at least one occasion when DoCJ intervention was required in order to suspend a contact visit because the appellant was not complying with the set rules of contact, apparently by using his phone to make a recording: Day 31, T575.14 – T575.33 16. The appellant questioned Ms James on whether she felt the child was safe in her present placement. Ms James affirmed the proposition that the child was safe in that placement, and stated that the placement met the child's long-term needs as seen at that time: Day 31, T576.30 – T576.48; 17. Ms James stated that in February 2019, it was the child who was seeking long-term orders in accordance with her wishes as she felt safe and secure in her placement: Day 31, T579.30 – T579.38. 1. The written materials prepared by Ms James comprised a file note of the interview with the child on 11 February 2019 (Exhibit "E", Volume 4, Tab 40, pp 2858 – 2878) and an amended care plan dated 3 December 2019 (Exhibit "E", Volume 4, Tab 50A, pp 2999.1 – 2999.34). 2. An overview of the appellant's cross-examination of Ms James reveals that it was prolix, relatively unstructured, inefficient and repetitive, as was remarked upon at the time: Day 31, T573.5 – T573.12. Nevertheless, the appellant was given considerable latitude in that cross-examination, as was recorded: Day 31, T526.15. 3. The impression that remained after that cross-examination was that her evidence was reliable, and it should be accepted in its entirety. Evidence of Mrs Lauren Grant – in the appeal proceedings 1. Since January 2020, Mrs Lauren Grant is the child's current DoCJ caseworker with day-to-day responsibility for the child under the supervision of her direct manager, Mr Geilweiler. In January 2020, she took over that role from her predecessor, Ms James. 2. In these proceedings Mrs Grant has prepared three affidavits, namely an affidavit affirmed on 1 July 2020: Exhibit "E", Vol 1, Tab 8, pp 108 – 135; an affidavit affirmed on 30 November 2020: Exhibit "E", Vol 1, Tab 10, pp 554 – 565; and an affidavit affirmed on 27 January 2021: Exhibit "E", Vol 1, Tab 15, pp 686 – 696. 3. As the current caseworker, the evidence of Mrs Grant provides the most recent and most informative material of relevance to the issues calling for decision. Consequently, her evidence will be examined in some detail in the paragraphs that now follow. 4. The appellant required Mrs Grant for cross-examination on her affidavits. She gave oral evidence on 24 May 2021 (T32 – T78), 25 May 2021 (T81 – T177) and 27 May 2021 (T328 – T345). The appellant undertook an extensive, prolix and fruitless cross-examination of Ms Grant. Her affidavit and oral evidence is summarised in the paragraphs that follow. Mrs Grant's first affidavit: affirmed on 1 July 2020 1. Mrs Grant's first affidavit, affirmed on 1 July 2020, summarised the historical involvement of DoCJ in the child's case. She identified the precipitating concern for the child being taken into care as being non-accidental injury caused by excessive discipline resulting in significant psychological harm: Exhibit "E", Vol 1, Tab 8, p 112, par 20. 2. Mrs Grant's first affidavit recounted the history of the Children's Court proceedings and the fact that on 6 November 2019, the appellant father had consented to an establishment finding in the Children's Court "without admissions", which resulted in an order from the Children's Court allocating parental responsibility to the Minister on an interim basis pending further orders of the Children's Court: Exhibit "E", Vol 1, Tab 8, pp 114 – 115, par 40 – par 44. 3. The salient features of Mrs Grant's affidavit affirmed on 1 July 2020 were as follows: 1. She recounted the history of the criminal proceedings against the father and the ADVO's that had been made against him: Exhibit "E", Vol 1, Tab 8, pp 115 – 118, par 48 – par 66; 2. She recounted the history and the detail of the department's involvement with the child through its successive historical phases, including on matters of contact with family members and with the appellant. That history included identification of the child's wish, as expressed in 2019, that she did not want to go to the USA to live with her mother. Mrs Grant referred to the steps taken to consider the child's psychological well-being, and described matters concerning contact visits, COVID-19 complications which caused changes to those arrangements, and the child's satisfaction with her current placement: Exhibit "E", Vol 1, Tab 8, pp 118 – 126; 3. She went into particular detail about the psychological support that the child has been receiving since 5 February 2018, initially from a departmental psychologist and then from an external private provider of psychological services which involved regular counselling. She also made reference to the child's education, health and cultural needs: Exhibit "E", Vol 1, Tab 8, pp 128 – 130; 4. She summarised the chronology of dates and incidents relating to contact that has taken place between the child and her father, as well as between the child and the mother, and she made reference to a perception that the father had been attempting to intimidate a contact worker: Exhibit "E", Vol 1, Tab 8, pp 130 – 134; 5. She referred to the need for the establishment of rules to govern contact with the father in accordance with an amended care plan that has been in place since December 2019, which provided for supervised contact 6 times per year for 2 hours on each occasion. That amended care plan also provided for the mother to have weekly contact with the child from her overseas location by means of a Skype connection: Exhibit "E", Vol 1, Tab 8, p 133, par 192 – par 206. Mrs Grant's second affidavit: affirmed on 30 November 2020 1. Mrs Grant's second affidavit was affirmed on 30 November 2020. It served to update the historical facts outlined in her first affidavit: Exhibit "E", Vol 1, Tab 10, pp 554 – 565. The salient features of her second affidavit were: 1. The child's temporary carers had by this time become her long-term carers, and this was to remain the position until she reaches the age of 18 years: Exhibit "E", Vol 1, Tab 10, p 567, par 17; 2. She visits the child every 4 – 6 weeks to check on how various aspects of her life are progressing and she is of the view that the child's placement is stable, the child is very settled, feels safe and comfortable, and that no current concerns regarding those matters have been identified. It was noted there was a short period between July and September 2020 when the child was sharing a room in her placement, but that arrangement no longer applies: Exhibit "E", Vol 1, Tab 10, pp 559 – 559, par 21 – par 26; 3. She identified the fact that the child has current concerns and is stressed about the ongoing Court proceedings and the lack of finality, and does not want changes to be made to the existing contact arrangements with her father: Exhibit "E", Vol 1, Tab 10, p 559, par 28; 4. She identified that there was a report of a significant risk of harm having been made on 7 November 2020 in respect of another child living in the carer's household. She noted that concern ceased to be an issue on 13 November 2020, and subsequent screening did not reveal that any harm had been incurred by the child the subject of the appeal: Exhibit "E", Vol 1, Tab 10, p 559, par 30 – par 31; 5. She noted that the child expected to be going into high school in 2021 and she did not want her father to know which high school she was going to attend: Exhibit "E", Vol 1, Tab 10, pp 559 – 560, par 32 – par 38; 6. She identified the fact of the child's need for ongoing psychological support, including in relation to the stress of the pending proceedings, and because of a sporadic sleep disturbance. Mrs Grant indicated that appropriate arrangements had been made for the child's health issues to be addressed by suitably qualified practitioners: Exhibit "E", Vol 1, Tab 10, pp 560 – 561, par 39 to par 54; 7. She stated that the child's cultural, language and recreational needs are being addressed: Exhibit "E", Vol 1, Tab 10, pp 561 – 563, par 55 – par 65; 8. She reiterated that the child has stated that she did not want changes to be made to the contact arrangements that were in place: Exhibit "E", Vol 1, Tab 10, pp 563 – 565, par 66 – par 80. Mrs Grant's third affidavit: affirmed on 27 January 2020 1. Mrs Grant's third affidavit was affirmed on 27 January 2021. It provided a further update of the historical facts outlined in her earlier affidavits: Exhibit "E", Vol 1, Tab 15, pp 686 – 696. The salient features of her third affidavit were: 1. DoCJ has determined that, on account of the need to ensure the child's safety, the father should be restricted from receiving high level placement information relating to the child: Exhibit "E", Vol 1, Tab 15, pp 690 – 691, par 33 – par 34; 2. The child's educational and medical needs were being met: Exhibit "E", Vol 1, Tab 15, p 691, par 36 – 37; 3. Caseworker home visits have continued, and it has been noted that the child was participating in a regime that included appropriate extra-curricular and cultural activities: Exhibit "E", Vol 1, Tab 15, pp 692 – 693, par 42 – par 54; 4. The child was continuing to receive psychological support as has been planned: Exhibit "E", Vol 1, Tab 15, p 693, par 55 – par 56; 5. The child had been seen by a paediatrician for review, an existing mental health plan for the child has been renewed, and an updated behavioural support plan was awaiting supervisory approval at that time: Exhibit "E", Vol 1, Tab 15, p 694, par 57 – par 62; 6. The child's education had been progressing appropriately: Exhibit "E", Vol 1, Tab 15, p 694, par 63 – par 66; 7. The child has raised concerns about contact visits with her father and the child has experienced stress in that regard: Exhibit "E", Vol 1, Tab 15, pp 694 – 695, par 67 – 75. Mrs Grant's oral evidence 1. The appellant cross-examined Mrs Grant extensively. A review of Mrs Grant's evidence indicates that despite the appellant's extensive cross-examination of her, that cross-examination was without substantive benefit to him regarding the issues he has raised in the appeal. Much of his questioning referred to events outside Mrs Grant's personal work and involvement in the department concerning care and responsibility for the child. 2. Mrs Grant gave oral evidence over the course of three days. In that time the self-represented appellant was given considerable latitude to explore matters in her evidence which he claimed to be relevant to his appeal. In essence, the transcript of the evidence of Mrs Grant reveals the following matters: 1. Mrs Grant stated that she has seen nothing in the DoCJ files which contradicted the child's historical statement of the underlying facts to the following effect: "I was carrying a plate and an iPad at the same time. I dropped the iPad and my dad got angry and hit me with his belt and ruler on my arms and legs. I wasn't able to get up. But after a rest I was able to get up. That's what happened, isn't it, on or about 6 August 2017?" [Day 25, T173.7 – T174.26]; 1. The department maintains the view that the appellant father has never acknowledged and addressed his violent behaviour towards his daughter: Day 25, T170.31 – T170.32; 2. The child is very worried about the outcome of the appeal: Day 24, T35.48; 3. The child has asked for rules to be put in place to control and to mitigate the effects of the contact she has with her father as she feels intimidated and interrogated by him at contact visits: T39.15. Mrs Grant rejected the proposition that those rules were drafted with mal-intent towards him or to his interests: Day 24, T40.34 – T40.45; 4. It was the child who had chosen to cancel two recent contact visits with the appellant: Day 24, T42.50; 5. Mrs Grant denied the proposition that the child's carer is influencing the wishes of the child: Day 24, T43.46; 6. Mrs Grant confirmed that there had been a report of a serious risk of harm in her current placement. This was identified as a temporary problem that is no longer extant. It related to the behaviour of another child towards the carer's adult child who was disabled: Day 24, T50.26 – T51.3; T52.42 – T52.49; 7. The appellant attacked Mrs Grant with the un-particularised assertion that she had lied in her evidence: Day 24, T60.49 – T61.37. That proposition is rejected as being offensive and unsupported by cogent evidence; 8. The appellant questioned why the child's mother had in the past been given unsupervised contact, including in hotel accommodation paid for by the Department: Day 24, T69.27 – T69.38. That matter is irrelevant to the issues to be determined in this appeal as the mother is no longer seeking that the child be restored into her parental care; 9. The uncontradicted evidence is that the child had spent 5 weeks of unsupervised contact with her mother and had intimated that she had not enjoyed the experience at all times. This resulted in a changed regime for weekly contact by Skype: Day 25, T83.47 – T84.2; 10. The appellant questioned whether the child's current placement met all of the child's long-term care needs: Day 24, T75.20. That question was affirmatively and satisfactorily addressed in the evidence of Mrs Grant: Day 24, T77.25 – T78.15; 11. Mrs Grant identified the reason why the Department had changed its initial view that the child should be restored to the mother. This was because the child's wishes had changed in that regard so that a proposal along those former lines was no longer realistic: Day 25, T81.41 – T82.3; 12. Mrs Grant stated that the child has access to appropriate health care providers, including a general practitioner, a paediatrician and a counsellor: Day 25, T87.46. The progress of the child's development and her health was described in an answer she gave as follows: "A. Physical she is developing well above her peers in terms of height, she's very tall for her age. There is no concerns based off Dr Shorter's reports around her physical development. Her emotional development, she - there's no concerns in terms of where she is at an age appropriate level. She does however experience generalised anxiety, she's very fearful of being abducted or similar so she requires ongoing weekly counselling with her therapist." [Day 25, T87.5 – 87.10]; 1. Mrs Grant stated that the child had reported to the department that historically, whilst she was in her father's care, on an almost daily basis, she had been subjected to discipline with physical violence, and the department had no reason to doubt her account in that regard: Day 25, T94.14 – T94.37; 2. Mrs Grant confirmed that the child's special needs relating to a need for counselling for her anxiety are funded by the department: Day 25, T90.45 – T91.5; 3. Mrs Grant confirmed that when required, consultations with a psychologist are arranged by the carer in conjunction with the department: Day 25, T91.40 – T91.47; 4. Mrs Grant confirmed, as has been reported by the department's in-house psychologist, that the child remains worried that if she is restored to her father's care he would hurt her again. The psychologist reported that the child has become disconnected from her father due to his historical abuse: Day 25, T93.18 – T93.46; 5. Mrs Grant described the child's relationship with her mother as having changed after she had received counselling: Day 27, T331.42; 6. Mrs Grant confirmed that the child's carer relayed an opinion to her to the effect that following a psychological assessment where it had been concluded that those sessions would be ending, the child had felt traumatised, and was experiencing panic attacks at night: Day 25, T100.30 – T100.39; 7. Mrs Grant confirmed that the child's heightened level of anxiety is a matter that falls within the department's "mental health problem umbrella". Her anxiety relates to uncertainty over the permanency of her placement: Day 25, T102.35 – T103.37; 8. The appellant sought to place significance on a change of mind by the child about no longer wanting to go to America to be with her mother, as reported in her third psychological counselling session: Day 25, T111.48. In this case, nothing turns on the child's change of mind in that regard; 9. Mrs Grant described the child's extra-curricular activities in the following exchange: "Q. So she had language classes, she had art classes, she had tennis classes, she had swimming classes and now, can you advise what - since her being taken into care, with the assumption that she was able to speak language fluently, what actions do you have taken to preserve her connection to her culture in terms of language and religion or generally her background? A. There has been a multicultural consult that was done, I believe, in 2019 that then led on to a cultural plan. There has been lots of consultation with [the mother]. I have awarded you the opportunity, [the appellant], to provide cultural information, you have not. You have provided some things to do with significant cultural days like Holi and Diwali, I know you've dropped in some sparklers and saris and things like that." [Day 25, T133.44 – T134.4]; 1. When Mrs Grant was questioned by the appellant about parenting courses she said, she considered that he needed to take those in order to address the fact that he had perpetrated physical violence against his daughter: Day 25, T166.22 – T166.44; T167.39; T177.27; 2. Mrs Grant denied the appellant's unparticularised assertion that she had provided fabricated information to the child regarding her parents: Day 27, T330.25. That question was not followed up by evidence from him to support the assertion he had made; 3. Mrs Grant reiterated the child's concern and worries as expressed on 16 November 2020, about an outcome of the appeal that would result in her being restored to the parental care of her father: Day 27, T331.20 – T331.30; 4. Mrs Grant stated that on multiple occasions, the child has stated that she wished to remain in Australia with her authorised carers: Day 27, T334.24; 5. Mrs Grant stated that two scheduled contact visits with the appellant that were cancelled this year were because the child had felt very stressed, angry and did not want to see her father (Day 27, T335.25), and that there were related stresses about the current proceedings because of the continuing uncertainty surrounding the outcome: Day 27, T336.6 – T336.10; 6. The child has stated that she wants to remain in care without restoration to either parent and that she finds the uncertainty over her permanency very stressful: Day 27, T336.20. The child's present situation was described in the following exchange: "Q. One of the issues [the father] is concerned about is the emotional and psychological effects of the circumstances. What is your considered view on that with stress in mind? A. What is contributing to her stress? Q. Yes. A. She - she wants to remain with her carers. She's very attached to them. She loves and cares about them. She feels safe there. She would love to have a relationship with her dad that is more than it is now, a more meaningful relationship. She wants that to be while she remains in care, not when she's restored back to her father." [Day 27, T336.32 – T336.42] 1. Mrs Grant stated that the child is part of the department's Out of Home Care Pathway, and the department and attending paediatrician are satisfied with the child's development and growth: Day 27, T345.7 – T345.11. 1. Nothing emerged from the evidence of Mrs Grant or the appellant's cross-examination of her, which assisted the appellant's case in any material respect. Her evidence should be accepted in its entirety. Evidence of Ms Robyn Patience – in the appeal proceedings 1. At the request of the appellant, Ms Patience made herself available by telephone so that the appellant could cross-examine her regarding observations she made at supervised contact visits when he saw his daughter in her presence: Day 27, T250 – T309. 2. The appellant was offered the opportunity of reviewing a bundle of contact visit reports by Ms Patience in the course of her evidence and rejected that opportunity at that time: Day 27, T258.21 – T258.47; T259.28. He subsequently sought to argue procedural unfairness because he had not been provided with that material. That argument was rejected. 3. The relevant features of the evidence of Ms Patience were as follows: 1. She has been working as a contact supervisor with Life Without Barriers for 14 years: Day 27, T251.20; T260.36. The training she received for that role was in-house: Day 27, T260.28; 2. She has prepared reports on some 37 contact visits she had supervised regarding contact between the appellant and the child: Day 27, T257.12; 3. She did not arrange the various locations and times of those contacts, she only attended for the purpose of supervising them: Day 27, T262; T265.50; 4. After each contact visit she prepared a summary report, from her notes, and after proof reading she submitted them to the appropriate DoCJ caseworker: Day 27, T264.32; 5. She confirmed that at the contact visits the appellant was permitted to ask the child questions about her school work (Day 27, T268) but the conversation was required to be undertaken in the English language: Day 27, T269.49; 6. At contact visits with the appellant, the child had expressed concern over her conversations being recorded by him: Day 27, T273.33; 7. Ms Patience confirmed there were no topics upon which the child had said she was not allowed to talk about at contact visits with the appellant: Day 27, T285.36; T286.12; 8. Ms Patience identified the fact that the child is self-conscious about aspects of her appearance and confirmed that the caseworker has agreed the father was not to make comments about the child's skin, nails, teeth and any marks on her skin: Day 27, T290.25 – T290.44; 9. Ms Patience confirmed that the mother had suggested to the child that she covers her ears with her hair: Day 27, T292.47; 10. Ms Patience confirmed that at times the child had said she looks forward to having contact with the appellant (Day 27, T301.39), but she also said that the child has said that she does not want to be in the father's presence whenever he has told her that she would be coming home: Day 27, T299.14; T300.11; 11. Ms Patience confirmed that the timing of contact with the appellant on school days meant that the child would have left school before the final bell: Day 27, T303.47; 12. Ms Patience confirmed that the rules over contact visits were the rules required by the child, as approved by the caseworker: Day 27, T306.42. 13. The appellant's summation of Ms Patience's contact supervision was positive as expressed by him in the following terms: "APPELLANT: and I would like to emphasise a point here, that of all the contact visits that have occurred Ms Patience has been wonderful and I apologise that today - in fact, the child actually has a bond that she has developed with Ms Patience over a period of time and - which is why I actually wrote to the caseworkers saying that I want Ms Patience to be the person who should be conducting the contact visits, but unfortunately that hasn't been the case with the earlier cases who - earlier contact facilitators who actually are nothing but the former employees of DCJ. That's put things at ease." [Day 27, T277.33 – T277.40] 1. Ms Patience gave the following evidence of relevance: "HIS HONOUR Q. Ms Patience, over the 37 contact visits that you have supervised, that is, where [the appellant] was present with his daughter, have you had on any of those occasions cause to make a note of any negative impressions of [the appellant]'s behaviour that seemed to have a deleterious effect on his daughter? A. Negative behaviours of [the appellant]? Q. Yes. A. That was APPELLANT: No, that question relates to you interpreting it and making note of them. HIS HONOUR Q. So what I'm getting from your answer is that you cannot point to any instance where there's been behaviour of negative impact from [the appellant] on his daughter? A. No, not - not offhand, I can't." [Day 27, T281.45 – T282.15] [Name redacted] 1. Ms Patience was a reliable witness on all matters that were canvassed in her evidence. Her evidence should be accepted in its entirety. Evidence of Mr Paul Witzerman 1. The appellant called evidence from Mr Witzerman, a psychologist located in Queensland: Day 29, T446 – T463. He had been engaged by the child's independent lawyer in the earlier Family Court proceedings between the child's parents. He had prepared a report which was dated 29 August 2016 for those proceedings. The appellant relied upon that report in these proceedings. It was puzzling that he should do so as Mr Witzerman had not interviewed the child after she had been assaulted by her father in the circumstances that were the subject of these proceedings. 2. Mr Witzerman has not seen the child or any other member of the child's family since 2016. His report was dated 29 August 2016: Exhibit "E", Vol 3, Tab 32, pp 2644 – 2652. He had little recollection of the matter beyond what he had noted in his report, and did not feel that he could add or qualify anything beyond what he had written in the report: Day 29, T449.5. 3. The historical purpose of Mr Witzerman's report was to assess the mother's application for the child to be relocated to the USA: T449.19; T462.6. The child had at that time, indicated a desire to divide her time, one year at a time, equally between the mother and the father, in different countries: Day 29, T450.12. He considered that arrangement was impractical as a solution, having regard to the best interests of the child: Day 29, T450.47. 4. The appellant sought to obtain evidence from Mr Witzerman to the effect the child was being induced by the mother to say certain things: Day 29, T453.24. He was not prepared to affirmatively agree with that possibility: Day 29, T453.48 – T454.3. 5. The substance of Mr Witzerman's interview with the child is recorded in his report between paragraphs 19 – 31. The views as expressed by the child at that time are not indicative of her present views. 6. The context of Mr Witzerman's report was the Family Court proceedings and the related questions of custody and domicile. 7. The appellant's examination in chief of Mr Witzerman did not focus on any material issue calling for decision in this appeal. In essence, the matters that emerged from that evidence-in-chief were as follows: 1. Mr Witzerman was well qualified as a psychologist who practised in Queensland. He was asked to examine the child and make a family assessment, which he did for the Family Law proceedings between the parents, where the issue was the parental placement and domicile of the child: Day 29, T446 – T452; 2. The context of his assessment was a dispute between the parents as to where the child should live; 3. He noted a history taken from the child that her father had hit her after she had "punched him a bit": Day 29, T455.46; 4. At the time of his interview, he did not notice the child to be fearful of either parent: Day 29, T458.44. 1. Those views were necessarily anchored in 2016 when he undertook his assessments. They were also anchored to the issues that were before the Family Court. 2. At an earlier stage of the proceedings, on 10 December 2020 (Day 13, T336), the appellant expressed the intention of obtaining a more recent opinion from Mr Witzerman. The onus was on him to arrange that if he wanted to do so. That further opinion did not eventuate and Mr Witzerman was called without having seen any of the relevant parties since 2016. 3. At the conclusion of his evidence, Mr Witzerman touched upon the general but important topic of the paramount question of the best interests of the child. The question he was asked to address concerned the concepts of safety and welfare: Day 29, T463.22. He expanded on those concepts, saying they involved physical, psychological and emotional considerations: Day 29, T463.28. He also included in that mix the notion of well-being, as a continuum, that is what would be good for the child's physical and emotional well-being "today and into the future": Day 29, T463.39. 4. It was tolerably clear that the appellant was seeking to draw from Mr Witzerman's evidence more than was reasonably available as to the child's wishes. This was because almost 5 years had passed since Mr Witzerman had last interviewed and assessed the family in 2016. 5. Although Mr Witzerman said that at the time of his assessment he did not notice the child to be fearful of the father (Day 29, T458.44), the historical basis of that evidence was not a reliable foundation upon which to rebut the child's more recently expressed wishes as conveyed by her DLR, Mrs Clark, where those more recent views had been expressed in the contest of the assault which had led to the child's removal from his care. 6. The appellant's case was not materially assisted by the evidence of Mr Witzerman. Evidence of Mr Charlie Gangemi – in the appeal proceedings 1. The appellant required the attendance of the department's in-house psychologist, Mr Charlie Gangemi, for cross-examination. Mr Gangemi's report dated 5 October 2018 appears at Exhibit "E", Vol 3, Tab 32, pp 2361 – 2365. He saw the child over a series of sessions concluding on 20 August 2018: Day 31, T595.36. He gave his oral evidence on 2 June 2021: Day 31, T594 – T610. 2. In his cross-examination of Mr Gangemi, the appellant sought to make the point that the department had somehow failed to implement some of his recommendations, and that this therefore required the formulation of a different care plan: Day 31, T592.9 – T592.19. His report was based on his interviews of the child and information obtained from the child's carer: Day 31, T595.40. His consultations were with the child alone: Day 31, T596.16. 3. The essential matters emerging from Mr Gangemi's evidence were as follows: 1. Mr Gangemi stated that in his assessment, the child was very confused about everything that had happened to her and how that had occurred: Day 31, T599.47; 2. Mr Gangemi described the child as having mixed attitudes, namely, on the one hand being disconnected and feeling separated from the appellant due to the abuse she has experienced, and on the other hand, the existence of a vestigial relationship with the appellant that was based on the past, that is, events that had occurred prior to the occurrence of the abuse: Day 31, T603.14 – T603.37; 3. Mr Gangemi reported that his psychological counselling sessions with the child had continued over 8 sessions until the child felt she no longer needed to continue with those sessions: Day 31, T607.50; 4. When questioned about the child's anxiety, and the court process as an aspect of the cause of that anxiety, Mr Gangemi explained that the situation is a challenge for the child in that the longer the process continued to elongate "it's not going to be good for her": Day 31, T609.6 – T609.14. 1. Mr Gangemi's report and his evidence were of limited assistance in the appeal proceedings because he had not seen the child for 3 years. The appellant's case was not materially assisted by the evidence of Mr Gangemi. Evidence of Dr Damon Shorter – in the appeal proceedings 1. The appellant required Dr Shorter, the child's current treating paediatrician, for cross-examination on his reports. He had provided four reports respectively dated 11 April 2019 (Exhibit "E", Vol 1, p 518), 17 October 2019 (Exhibit "E", Vol 1, p 522), 7 March 2020 (Exhibit "E", Vol 1, p 528), and 19 November 2020 (Exhibit "E", Vol 1, p 767). Due to the limited nature of the appellant's questions to Dr Shorter, it is not necessary to review his reports in detail. His oral evidence is adequately descriptive. He gave oral evidence on 2 June 2021: Day 31, T628 – T649. Essentially, his oral evidence covered the following matters: 1. He first saw the child on 11 October 2018 in his hospital clinic on referral from her general practitioner: Day 31, T629. He has seen her on five occasions over the past two and-a-half years for a total of three and-a-half hours: Day 31, T640.42; T648.22; 2. In that time, Dr Shorter said that he has had an adequate professional opportunity to identify the child's medical issues of relevance: Day 31, T648. In that regard, he is without doubt, convinced that the child's views on the litigation and her situation are her own, uninfluenced by others: Day 31, T645.50 – T646.5; 3. Each of his assessments included paying attention to the child's mental health because of her generalised symptoms of anxiety and depression: Day 31, T633.29 – T633.31. He is of the view that the breakdown of the child's family, her exposure to alleged domestic violence and corporal punishment, have had a substantial impact upon her mental health, taken together with the fact that she is in an unusual situation in foster care rather than being cared for by parents or a parent: Day 31, T633.41 – T633.42; 4. Dr Shorter considered the child to be a mature and intelligent 12 year old who has a clear understanding of the implications of the present proceedings, and he described her clear apprehensiveness or nervousness about the outcome of the proceedings: Day 31, T636.1 – 636.13. He recounted the child's directly communicated and clearly expressed views as to what she thought was the cause of her anxiety and depression. He had asked the child as to why she felt stressed or worried: Day 31, T635.5. His evidence on that question was as follows: "And the things that she highlighted were intrusive worries and concerns about the uncertainty of her home life. She was nervous about upcoming court challenges to her existing home life. She was concerned that her wishes, which were to live in her foster family, would not be respected by the Court. She was worried that she might be returned, contrary to her wishes, to move back in with her father. She was worried about being abducted. She was worried about--" [Day 31, T634.38 – T634.44] 1. Dr Shorter addressed a question posed to him by the Court. That extract of his evidence, including the appellant's interruptions, was as follows: "Q. I'm interested in your comment on my summary of what has been put to me, which now follows. The child has said that she wishes for her father's appeal to fail, and she does not want to have his appeal succeed or to have to live with him. And she hopes in the fullness of time that he will accept that outcome-- APPELLANT: Your Honour, I object, your Honour, you're putting words into the witness's mouth. HIS HONOUR: Be quiet. APPELLANT: You're putting words-- HIS HONOUR: Be quiet, sit down or I will have you removed. If you are intending to disrupt these proceedings anymore— APPELLANT: It's not a disruption, it's a valid objection. HIS HONOUR: --from this point, I'll have you removed. Now, sit down. APPELLANT: It's a valid objection. HIS HONOUR: Sit down. Q. As I was saying, she has expressed the wish, that in the fullness of time she hopes that her father will come to accept the realities of the situation, and she can go on to develop and meaningful and productive relationship with him. That's my summary of what has been put to the Court from the direct legal representative. Whilst Mr [appellant's name redacted] does not accept that as a valid summary, or any proposition within it, I am interested in your view, as to whether there is a consistency or not between those expressed views and what you have discerned in discussions with your patient over time. A. So, I can answer that question. And I would, you know, I will read the last paragraph of the letter that I wrote in November 2020, which is the last time that I discussed this with [the child]. And I've written that: "She is an intelligent and insightful adolescent who has had a complicated childhood and still has mixed emotions around her extended family. She has expressed a clear and consistent wish to stay in her current home environment in the time I have known her." And I think that is broadly in line with what the sentiment you've just expressed to me. So, when I say she "has mixed emotions", I think my understanding of her position is that she loves her dad, she does not want to have a fractured relationship with him. But at the same time, she feels that it is important that she has independence from him and lives away from him until she is in a position to establish a more balanced adult relationship with him. So, I have no doubt that - because she has explicitly said to me during our consultations, not once, but on a number of occasions, that she does not want to go back and live with her dad. I don't think that is her position because she is immature and doesn't understand. I think it is a well-formed, well-thought and sensible opinion of a girl who is in her right mind." [Day 31, T636.36 – T637.40] 1. Later, Dr Shorter added to the above discussion by saying: "A. [The child], as I've said before, presents to me as a child who is more mature than her years. And I think part of that is because she does have a good handle on a lot of this detail. She is aware of a lot of this background. And the - I - look, I would not have an objection to her reading the content of those letters, because they are about her, and that they've been - the content has been fairly freely discussed in her presence, by her and also by her carer. If [the child] was a less mature child, then I wouldn't usually have those discussions in front of her. But a lot of this conversation was initiated by [the child]." [Day 31, T642.16 – T642.23] [Names redacted] 1. As to the suitability of the child's current placement, Dr Shorter gave the following evidence: "Q. Dr Shorter, do you think the current placement is considered to be a complex social situation? A. I think her current placement is the environment that [the child] has felt is the best of a bad bunch of options for her, in the medium term, as she has expressed to me. Q. So, you said "best of the bad bunch"? HIS HONOUR: You don't need to repeat it. He said it, it was recorded. APPELLANT Q. Thank you. When I say-- A. To clarify that, the - I think that for most children that I care for, most children prefer to live in a happy family with both their parents together. That's not an option that is available to all the children that I see. It's not to stop them wanting that. I think [the child] is intelligent and thoughtful enough to recognise that that option is not available to her, and has chosen that the next best option is to live where she lives currently. Q. You seem to refer again and again as to a "complicated childhood". What do you actually relied upon, and can you explain what you meant by "complicated childhood"? A. I think as I said before, it is complicated when you are in a situation where her mother is overseas and has limited contact, and her father is challenging her wishes in the District Court, trying to overturn what she has expressed fairly clearly is her wish. I think that is complicated. Q. So you're telling that the child's wishes have been consistent with respect to her parents over the period of the time that you have seen her? A. They've been remarkably consistent - her wishes - in the time that I've seen her. And she has had mixed emotions relating to her parents and particularly to her father, who she loves, but find difficult to live with. But she has consistently said that she would like to stay where she lives at the moment in her life. [Day 31, T644.46 – T645.31] 1. On reviewing the entirety of Dr Shorter's evidence comprising his reports and his oral evidence, it is clear that his evidence did not assist the appellant's case in any material way on any of the issues calling for decision in this appeal. Evidence of the appellant 1. In the appeal, the appellant gave his oral evidence after some bizarre ambivalence on his part. This occurred after some considerable time had been taken up, during which he was reluctant to indicate whether he would give evidence in his own appeal: Day 28, T365.10 – T368.50. 2. Be that as it may, in the Children's Court proceedings the police narrative of the underlying events was received into evidence. It was in the condensed terms of the COPS Event entry in the police records, as follows: "MOST RECENT INCIDENT: The defendant is the father of the PINOP [person in need of protection]. On the 6th of August 2017, the defendant has grabbed a belt and began to strike the PINOP several times on her arms and legs. The PINOP attempted to protect herself and screamed in pain. She put her left forearm out and her hands to try and protect herself from being struck by the belt. As a result of the force of the impact from the belt, the PINOP has, sustained a 10 centimetre bruise to her right arm, which is consistent with a belt as it was about 2-3 centimetres, wide. The PINOP also sustained multiple bruising to her left forearm which is consistent to defending herself. At some point during the night, the PINOP went into her room and laid on her bed with the intention of going to sleep. The defendant entered her room, began to yell at the PINOP again because she had not done her chore of doing the washing up. The defendant again grabbed a belt and began to hit the back of the PINOP's lower legs. As a result the PINOP has sustained bruising and red marks to the rear of both of her legs." [Exhibit "E", Vol 3, Tab 32, p 2063] 1. The reasonable inference which arises from that COPS entry is that the investigating police officers had obtained that condensed version of the underlying events from the appellant's daughter. 2. In light of that factual summary, it is appropriate to examine the appellant's evidence in the four stages in which it has been given, to see whether it includes any reliable evidence that might contradict the child's version of the underlying events. Those stages of the appellant's evidence are: 1. His evidence given on 19 February 2018 when he was convicted on the charge of assault occasioning actual bodily harm and how that evidence should be viewed in these proceedings; 2. His affidavit evidence in the Children's Court proceedings; 3. His oral evidence in the Children's Court proceedings; 4. His affidavit evidence in the appeal proceedings; 5. His oral evidence in these appeal proceedings. 1. The examination of those affidavits now follows. Appellant's evidence on 19 February 2018 in Local Court criminal proceedings 1. The content of the appellant's evidence given on 19 February 2018 was that he was the accused in the criminal proceedings brought against him by the police in respect of the underlying events. That evidence is instructive in several respects: Exhibit "E", Vol 3, Tab 32, pp 2275 – 2294. 2. First, on the question of whether he had in fact beaten his daughter as she had alleged in her evidence in those Local Court proceedings, he simply said that did not happen. He said he did not hit her with a belt, his hand or a stick, or a ruler: Exhibit "E", Vol 3, Tab 32, pp 2275.12 – 2276.5. 3. Secondly, when the appellant was asked to recount his version of the underlying events he answered by saying : "I have given you my version of the events in the typed document": Exhibit "E", Vol 3, Tab 32, p 2277.50. That was the extent of his evidence-in-chief on the underlying event. The typed document to which he referred in the evidence cited does not appear to form any part of the tender bundle in these proceedings. Given that it was referred to by the appellant in the Local Court proceedings, if he intended to rely upon it in these proceedings, it was incumbent upon him to tender it in evidence and refer to it in argument if it was considered by him to be an important part of his case. He took neither of those steps in circumstances where he must be taken to be aware of the content of his own document that was used in his defence. 4. Thirdly, and significantly, in the appellant's earlier evidence-in-chief he was taken to the fact he had heard the child's version of events as recorded and played to the Court: Exhibit "E", Vol 3, Tab 32, p 2275.13. His evidence on that subject was : "I disagree with the version of events given by [child's name]. I have to give you some background information about this": Exhibit "E", Vol 3, Tab 32, p 2275.25. The rest of the appellant's evidence-in-chief in that Court went on to deal with matters arising out of the trespass charge. He did not later raise, and he was not taken back to, the subject matter on the underlying matter on which he had expressed his disagreement. Furthermore, he did not revisit that specific topic in detail in the evidence he gave in these appeal proceedings. Although he had the opportunity to develop that line of evidence in these proceedings that "background information" remained absent. 5. Fourthly, when the appellant, as the accused, was cross-examined by the prosecutor in the Local Court proceedings, he was taken to the child's factual evidence against him concerning the underlying events, and he stated "her version of the events are total (sic) baseless and they're definitely not true": Exhibit "E", Vol 3, Tab 32, p 2279.45. He disagreed that the child had an iPad and a plate at the time of the events (Exhibit "E", Vol 3, Tab 32, p 2279.50), and when it was put to him that whilst holding those items she dropped a plate, he said "… from my recollection nothing of that sort happened": Exhibit "E", Vol 3, Tab 32, p 2280.30. 6. Fifthly, in that evidence the appellant rejected a series of propositions that were put to him in cross-examination by the prosecutor, namely, after the child had run to her room and was situated in a curled up position in a corner with her arms wrapped around her knees, he took his brown leather belt and struck her with it on her right leg, and then punched her twice on the torso, whilst he had a hand over mouth: Exhibit "E", Vol 3, Tab 32, pp 2281.15 – 2281.48. 7. Sixthly and incredibly, when the appellant was asked to identify his child in some photographs he had been shown, he gave what appears to have been a qualified if not an evasive answer to the prosecutor, saying : "Yes, she does look like [name of child]": Exhibit "E", Vol 3, Tab 32, p 2283.50. 8. Finally, towards the end of the appellant's cross-examination in the Local Court proceedings, the following exchanges took place between the prosecutor and the appellant: "Q. That is the reason that you have come to Court, I am going to suggest to you that you are making up what you are telling the Court as your evidence? A. Sorry? Q. I am going to suggest to you that you are lying to the Court today about what happened on 6 and 7 August because you want to make sure that [name of child] doesn't get sent back to the United States, would you agree or disagree with that? A. I disagree with that. Q. It is your evidence that [name of child] is just making all of this up, is that right? A. I can't say that about my daughter but unfortunately the tone of the events seems to be is not accurate, that's all I can say." [Exhibit "E", Vol 3, Tab 32, pp 2293.30 – 2293.42] [Name of child redacted] 1. There was no re-examination on that aspect of the appellant's evidence. The appellant's conviction on the charge of assault occasioning actual bodily harm to his daughter then properly followed on the basis of the evidence that was presented. 2. A matter of significance that emerged from the last cited portion of the appellant's evidence in the Local Court proceedings against him, was that there was an inconsistency between the appellant's evidence where he said he could not say that his daughter's underlying account had been made up or had been invented by her. That evidence was materially different to the positive challenge that was put to his daughter on his behalf in cross-examination by his lawyer in those proceedings to the effect that she had made up her account of the events. Those two propositions do not sit well together. 3. The appellant's evidence in these proceedings, to the effect that the subject matter of the cross-examination of his daughter was not in accordance with his instructions to his lawyer (Day 28, T395.27), seems improbable, and seems unlikely to be true. 4. This raises the question of how the appellant's evidence in the Local Court proceedings, to the effect where he said that his daughter's version of events was baseless and untrue, as cited in paragraph [726] above, should be viewed in these proceedings. 5. The appellant sought to use a recording of records of those Local Court proceedings as annexures to his affidavit dated 27 May 2021. They were received in evidence. Those recordings do not materially cast doubt on the official transcript of those proceedings. They have been examined in detail at paragraphs [202] to [207] above. The appellant's approach in that regard was misguided and not supported by satisfactory evidence. Having taken that recording into account, the appellant's approach must therefore be rejected in favour of reliance on the authorised transcript of evidence. Appellant's affidavit evidence in the Children's Court proceedings 1. In the Children's Court proceedings the appellant relied upon his own affidavits as follows: 1. Affidavit of unspecified date in August 2018; 2. Affidavit deposed to on 17 December 2018: Exhibit "M", Vol 2, Tab 20, pp 1500 – 1538; 3. Affidavit deposed to on 17 May 2019: Exhibit "M", Vol 2, Tab 34, pp 1659 – 1661 (incompletely reproduced); 4. Affidavit deposed to on 4 September 2019: Exhibit "M", Vol 2, Tab 36, pp 168 – 1692. 1. In the paragraphs that follow, I set out my review of the appellant's affidavits which were read in the Children's Court proceedings. Appellant's August 2018 affidavit – Children's Court 1. Paragraph 26 of the appellant's 17 December 2018 affidavit reviewed below, made a brief reference to "my last affidavit in August 2018", which refers to Family Law proceedings and the mother having allegedly "consistently lied": Exhibit "M", Vol 2, Tab 20, p 1505]. That affidavit is not in evidence in these proceedings. Furthermore, from the context described by the appellant in his affidavit dated 17 December 2018, it appears to relate to matters that do not represent issues calling for decision in this appeal. Appellant's affidavit dated 17 December 2018 – Children's Court 1. On 17 December 2018 the appellant prepared a document in the form of an affidavit. It was finalised in ambiguous terms in that, although it was signed and witnessed, it did not state whether it was sworn or affirmed. Its content is largely argumentative. Nevertheless, the document requires evaluation to determine whether it has any possible relevant factual content. 2. The apparent purpose of the appellant's affidavit dated 17 December 2018 was to seek to vacate hearing dates that had already been set in the Children's Court for 17 and 18 December 2018. It invoked delays in preparation said to be due to the child's mother and delays in preparation on the part of the Crown Solicitor acting for DoCJ. The affidavit was partly argumentative and partly factual in its content. 3. The relevant factual content of the affidavit identified some courses and programs which the appellant had undertaken in the hope of improving his position for claiming restoration of parental responsibility: Exhibit "M", Vol 2, Tab 20, p 1506, par 33. Those courses will be considered at a later point in these reasons on the establishment issue. 4. The argumentative parts of the affidavit variously raised assertions and complaints about medical and legal professionals, it alleged fabrications by "rogue elements" in the police force, it alleged factual manipulations and distortions by DoCJ staff, it referred to a range of criticisms of the mother's conduct, including her attempted abduction of the child, it referred to alleged corrupt practices by DoCJ staff in permitting the mother to spend time with the child, it raised criticisms of the foster carer placement, and it made criticisms of the child's appointed independent legal representative. 5. Nothing of substantive relevance to the issues in this appeal emerged from the affidavit dated 17 December 2018. Appellant's affidavit dated 17 May 2019 – Children's Court 1. On 17 May 2019 the appellant prepared a further affidavit. The copy of part of that affidavit is replicated in the tender bundle. The incompleteness of that affidavit has not been the subject of discussion in these proceedings: Exhibit "M", Vol 2, Tab 34, pp 1659 – 1662. Appellant's affidavit dated 4 September 2019 – Children's Court 1. On 4 September 2019, the appellant prepared a further affidavit with annexures for the Children's Court proceedings: Exhibit "M", Vol 2, Tab 36, pp 1668 – 1692. The main focus of that affidavit comprised his commentary on the content of the affidavits provided by the mother and her new partner: Exhibit "M", Vol 2, Tab 36, pp 1669 – 1670. Those matters are not relevant to the present appeal. 2. In this affidavit the appellant stated that he had completed parenting programs and had sought counselling in his effort to work with the department with regard to safety concerns regarding the subject child, and he raised complaints over his limited contact with the child, alleging "corrupt and malicious intent" on the part of the department's care manager and caseworker: Exhibit "M", Vol 2, Tab 36, p 1670. 3. In this affidavit, relevantly, he gave the following undertaking: "17. Finally, I make an undertaking that I will do everything with my ability to allay any safety / welfare concerns with respect to [the child] so that she could be returned to my care." [Exhibit "M", Vol 2, Tab 36, p 1670] [Redaction of the child's name] The evidence suggests otherwise. 1. The affidavit included a number of annexures between pp 1671 – 1672 of Exhibit "M". Those annexures are of only background relevance to the appeal and do not require detailed analysis. Appellant's oral evidence in the Children's Court 1. The appellant gave oral evidence in the Children's' Court on 2 and 3 September 2019: Exhibit "M", Vol 2, Tab 15, pp 1115 – 1146; Tab 16, pp 1152 – 1209. 2. The appellant's evidence in the Children's Court was in addition to "a number of affidavits" he had filed: Exhibit "M", Vol 2, Tab 15, p 1115.8. His evidence in the Children's Court was in the sequence whereby he was cross-examined by counsel for the Secretary (pp 1115 – 1174); he gave further evidence-in-chief (pp 1175 – 1177); he was then cross-examined by counsel for the mother (pp 1177 – 1186; pp 1198 – 1203); and he was then cross-examined by the child's independent legal representative (pp 1203 – 1207); and this was then followed by further cross-examination from counsel for the mother (pp 1208 – 1210). 3. In answer to questions asked in cross-examination by counsel for the Secretary, the appellant gave wide-ranging answers not all of which were relevant or helpful to his case. Confining this analysis to matters of relevance to the issues to be determined in this appeal, the appellant's evidence was to the following effect: 1. There were many instances in the transcript of the appellant's evidence in the Children's Court proceedings where he avoided providing direct responses to legitimate questions. Those instances are too numerous to chronicle in these reasons. Some are identified in the sub-paragraphs that follow; 2. Incredibly, and bizarrely, the appellant said that he could not answer a factual question seeking an admission that he had been legally represented in criminal proceedings in the Local Court concerning allegations about his conduct towards the child the subject of the appeal: Exhibit "M", Vol 2, Tab 15, p 1115.33 – 1115.38; 3. Also incredibly, given the issues that were at stake, the appellant refused to provide responsive answers to questions which sought to explore whether he was in current employment: Exhibit "M", Vol 2, Tab 15, pp 1116.24 – 1117.6; 4. The appellant refused to provide responsive answers to questions concerning his conviction in the Local Court on a charge of assaulting his child occasioning bodily harm, the making of an AVO, and questions on the result of his appeals to the District Court on those matters: Exhibit "M", Vol 2, Tab 15, p 1117.14 – 1117.39; 5. The appellant disrespectfully responded to questions asked of him by the Children's Court Magistrate who was seeking from the appellant an acknowledgment that he had understood that observations were being made about his willingness to answer questions, and that assessments were being made of him as a witness, saying: "Your observations are irrelevant, Your Honour. I have already told you I have lost confidence in you", as well as asserting an apparent lack of understanding of what was being said to him: Exhibit "M", Vol 2, Tab 15, pp 1117.43 – 1118.20; 6. The appellant was reluctant to confirm that a document identified to him was a copy of an affidavit of his own making: Exhibit "M", Vol 2, Tab 15, pp 1120.4 – 1121.39; 7. The appellant was on many occasions combative in his answers to questions asked by counsel for the Secretary, and when clarification of his position was sought on such occasions, incredibly, he made responses such as "I'm unable to answer that": Exhibit "M", Vol 2, Tab 15, p 1124.9 – 1124.18. He did not explain his claim of an inability to answer those questions; 8. When the Children's Court Magistrate sought to assist the appellant by drawing to his attention the fact that his combative answers to questions was not assisting the process (such as at Exhibit "M", Vol 2, Tab 15, p 1126.48), he rebuffed that attempt dismissively, and in inappropriate terms; 9. Remarkably, on the fundamental question of whether the appellant had struck his daughter with a metal ruler, as she had alleged, in connection with photographs of her injuries, and concerning contentious body markings generally, he gave unresponsive answers: Exhibit "M", Vol 2, Tab 15, pp 1127.4 – 1128.11; 10. In the appellant's evidence in the Children's Court, when he was taken to matters of record, he stated "I'm not going to rely on any transcripts until they all have been rectified": Exhibit "M", Vol 2, Tab 15, p 1130.50. There is no evidence to suggest the transcripts required significant rectification. He did not accept that he was being "passive aggressive" (Exhibit "M", Vol 2, Tab 15, p 1132.4), although a fair reading of the transcript of his evidence in the Children's Court proceedings suggests otherwise, including for whatever reason, instances of deliberate avoidance in answering questions; 11. The appellant refused to answer a simple question that sought to confirm his mobile telephone number: Exhibit "M", Vol 2, Tab 15, p 1140.40; 12. The appellant was blatantly disrespectful to the Children's Court Magistrate on many occasions, for example, at Exhibit "M", Vol 2, Tab 15, p 1141.43, where he unfoundedly asserted the proceedings were being conducted in a manner that was an actual disgrace to the whole legal profession; 13. Incredibly, the appellant refused to comment on the correctness of his daughter's critical factual statement "'I was carrying a plate and an iPad at the same time. I dropped the iPad and my dad got angry and hit me with his belt and ruler on my arms and legs. I wasn't able to get up, but after a rest I was able to get up'. That's what happened, isn't it, on about 6 August 2017?": Exhibit "M", Vol 2, Tab 16, pp 1158.46 – 1160.38; 14. The appellant disputed the correctness of Exhibits 10 and 11 comprising the bench sheets produced by the Registrar of the District Court in appeal proceedings brought by him numbered 2017/00240336 regarding an AVO against him to protect the subject child, and proceedings numbered 2017/002760801 involving his conviction for assault occasioning actual bodily harm to the subject child: Exhibit "M", Vol 2, Tab 16, pp 1153.34 – 1154.10. Without reliable supporting evidence, he claimed the documents were fraudulent: Exhibit "M", Vol 2, Tab 16, pp 1155 – 1156.39; 15. When the Children's Court Magistrate sought to clarify the appellant's position with regard to the contents of the District Court Bench Sheets that were in evidence and which are referred to at sub-paragraph (14) above, rather oddly, and incredibly given his earlier assertions, the appellant answered "I can't confirm or deny that, your Honour": Exhibit "M", Vol 2, Tab 16, pp 1169.45 – 1170.17; 16. The appellant claimed that the final AVO made by the District Court on 19 July 2019 "does not exist": Exhibit "M", Vol 2, Tab 16, p 1172.9. It was marked as Exhibit 12 in the Children's Court proceedings: Exhibit "M", Vol 2, Tab 16, p 1172.25. That said, nothing in these proceedings turns on that issue; 17. The Children's Court Magistrate gave the appellant the opportunity to explain why he asserted that Exhibits 10, 11 and 12 were misleading: Exhibit "M", Vol 2, Tab 16, p 1175 and following, to p 1176.48. The appellant's claims of error on the part of the Registry, fraud on the part of counsel for the Secretary, or a mistake on the part of the Judge sitting in the criminal jurisdiction who made the orders recorded in those Exhibits, were not supported by reliable evidence. That said, nothing in these proceedings turns on that issue. 1. In the Children's Court, the appellant's answers to questions asked in cross-examination on behalf of the child's mother did not reveal any material which assisted his case seeking restoration. As with his earlier answers to questions asked in cross-examination, his answers were unco-operative, he frequently did not engage with the substance of questions, and he avoided providing responsive answers. 2. In particular, in response to a question relating to the child's disclosure of a beating by him lasting about 15 seconds, as far back as on 8 August 2015, his answers varied from "I can't confirm that" to "I am unable to answer that": Exhibit "M", Vol 2, Tab 16, pp 1181.34 – 1182.2. 3. The appellant's general approach to questions that sought his comments on allegations and disclosures by the child of alleged child abuse on his part was to obfuscate, avoid answering, or to claim an inability to answer the question. This occurred on numerous occasions, for example, at Exhibit "M", Vol 2, Tab 16, pp 1182 – 1183, and at many other places in that evidence. 4. The legal representative of the mother asked the appellant father to comment on the proposition that he had caused harm to his child, consistent with the child's recall of the events. He responded to that proposition by saying he couldn't answer: Exhibit "M", Vol 2, Tab 16, p 1202.20 – 1202.27. The bizarre nature of those responses was puzzling to say the least. 5. In answer to questions asked by the child's independent legal representative, the appellant gave long and unresponsive answers to questions in the form of speeches: Exhibit "M", Vol 2, Tab 16, pp 1203 – 1206. 6. When the appellant was asked why he was supporting the child's placement with the mother, he said that the option of placing the child with the mother was "the lesser of evils" compared to placement in foster care: Exhibit "M", Vol 2, Tab 16, p 1207.8. Appellant's affidavit evidence in this appeal 1. As has already been observed, at paragraphs [22] and [341] above, the appellant failed to comply with successive orders for the timely service of his affidavit evidence in support of his appeal. 2. In the paragraphs that follow, I set out my review of the appellant's affidavits that were read in the appeal. Those affidavits are dated 14 May 2020, 28 October 2020, 3 November 2020, 9 February 2021 and 9 April 2021. Appellant's affidavit dated 14 May 2020 – in the appeal 1. In anticipation of a hearing of the appeal the appellant prepared an affidavit sworn on 14 May 2020. The purpose of that affidavit was to seek a Children's Court clinic assessment by "a culturally appropriate clinician" or a named person who had prepared a report for the Family Court proceedings. That affidavit also sought the replacement of the ILR with another practitioner. Those applications were rejected by another judge at an interlocutory stage. 2. In that affidavit the appellant sought to blame DoCJ for procedural delays and it ventilated complaints about the mis-filing of extraneous medical records in the Court file and it invoked a spurious conspiracy theory baselessly alleging misconduct on the part of counsel for the Secretary. The affidavit also made scandalous allegations against the department and the Secretary that do not require repetition in these reasons. 3. In summary, the appellant's affidavit dated 14 May 2020, and his complaints within that affidavit, did not advance his cause on any issue calling for decision in this appeal. Appellant's affidavit dated 28 October 2020 – in the appeal 1. The appellant's affidavit stated to have been sworn on 10 June 2020 but filed on 28 October 2020 was not intended to be read as evidence in the substantive appeal. Instead, although it contained criticism of DoCJ staff and the court registry, it seems that it was intended as an explanation of the appellant's apparent lack of readiness to proceed with his appeal: Affidavit 28 October 2020, par 2. Appellant's affidavit dated 3 November 2020 – in the appeal 1. The appellant's affidavit sworn on 3 November 2020, comprising 11 paragraphs, was filed partly in response to the Secretary's strike-out motion, which has been dismissed. To a limited extent, it seems it was intended to support the substantive appeal: Affidavit 3 November 2020, par 3. 2. That affidavit, comprised 34 paragraphs. It canvassed the topics of the history of the substantive appeal (par 4 to par 9), the chronology of interlocutory orders made in the proceedings in the District Court (par 10 to par 15), the appellant's restricted ability to appear in court for the appeal (par 16 to par 18), the appellant's commentary on the previous criminal proceedings relating to his assault of the subject child (par 19 to par 25), the views of the child on the subject matter of the proceedings (par 26 to par 29), the appellant's request for unsupervised contact with the child (par 30 to par 31), and procedural matters that have already been considered and determined in the procedural motions that have already been decided: par 32 to par 34. 3. In considering the topics identified in the preceding paragraph, it is not necessary to analyse or make findings on the matters raised in paragraphs 1 to 18, other than to note the appellant's wide-ranging criticisms and claims of nefarious, unethical and blatant conduct by DoCJ, and claims of procedural unfairness on the part of court registry staff. 4. As to the matters raised in paragraphs 19 to 20, the appellant's claims of alleged collusion between DoCJ staff and an unnamed "tainted police constable" resulting in "fabricated dubious and malaise [possibly sic for malicious] and capriciously formulated" ADVO charges, and the appellant's claim that his child was forced to give evidence in the allegedly intimidatory presence or influence of her carer. Ultimately, those serious matters of gravity remain unsubstantiated allegations made in the appeal, which by their grave nature, remain unproven by satisfactory evidence of standard that is proportionate to such serious allegations: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. 5. The appellant's claim that the presiding Magistrate in the Local Court criminal proceedings derailed the case, of assault occasioning actual bodily harm to his daughter against him, on the basis of a demeanour assessment, that is not a relevant consideration in this case, particularly since the appellant exercised his right of appeal on that matter, and that appeal has been finalised. 6. As to the appellants' claims that ADVO documentation was "fake" and produced as a result of "malicious conduct" on the part of DoCJ, staff, that grave assertion remains unproven by satisfactory evidence that is proportionate to such a serious allegation: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. 7. As to the appellant's claims that the views of the child as expressed by her appointed former independent legal representative should not be taken into account due to a claim of the child's non-comprehension of the implications of those views, this is a matter that will be given separate consideration in these reasons in the context of the entire available information concerning the identified views of the child. That said, the appellant's assertion that the child's views as identified by the former independent legal representative were misleading and driven by commercial interests remains unsubstantiated. 8. The appellant's claim for the establishment of a different regime for contact orders will be the subject of separate consideration in these reasons in the appropriate context. 9. The annexures to the appellant's affidavit sworn on 3 November 2020 do not require separate consideration or commentary, other than to state that the undated photographic annexures showing the appellant and the subject child apparently enjoying a birthday celebration (in one instance) and being in each other's company, possibly smiling, should be given only very limited weight for well-settled limitations concerning the interpretation of photographic evidence when making findings of fact as cited at paragraph [141] above: Angel v Hawkesbury Council [2008] NSWCA 130, and the other cases there cited. Appellant's affidavit dated 9 February 2021 – in the appeal 1. The appellant's affidavit stated to have been sworn on 8 December 2020, but filed on 9 February 2021 was directed at historical procedural matters that have been determined at an earlier interlocutory stage for the reasons that have been identified in the published decisions referred to at paragraph [769] above. 2. The appellant's serious assertions of manipulation and misconduct by DoCJ staff (at par 4), his assertion of the Crown Solicitor having "clearly misled the court" on an identified occasion, and the appellant's assertions of departmental incompetence, corrupt practices, blatant lies and reliance on "fake court orders, medical records and concocted reports from experts", is no more than a diatribe that remains unsubstantiated by evidence which is proportionate to the gravity of those allegations: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. Appellant's affidavit dated 9 April 2021 – in the appeal 1. The appellant's affidavit sworn on 8 April 2021, filed on 9 April 2021, comprising 36 paragraphs, was stated to be in support of his notice of motion filed on 31 March 2021. That notice of motion, which included an application for judicial recusal, was dismissed on 9 April 2021: Y v The Secretary, Department of Communities and Justice (No 5) [2021] NSWDC 117. 2. Before leaving the consideration of the appellant's affidavit filed on 9 April 2021, it is pertinent to cite paragraph 32 of that affidavit in its entirety: "CHILD'S WISHES 32. This appeal is about decisions of children's court and events alleged to have occurred while child was 8 years of age and in the midst of highly contested family court proceedings. Also, which She looks forward to as only timeout of controlling & intimidating environment." 1. The evidence for the above statement will be examined and considered in the appropriate context, namely, the Family Court proceedings which were on foot between the child's parents, and which were extensive and protracted. In these reasons, it is not necessary to analyse those proceedings. Appellant's affidavit dated 27 May 2021 – in the appeal 1. Towards the final stage of the appeal, the appellant presented an affidavit which is said to have been sworn on 27 May 2021. The attestation signature did not confirm that date, and the annexures were dated 28 May 2021. Be that as it may, it appears that for pragmatic reasons, no point has been taken in that regard. 2. That affidavit, in 18 paragraphs, touched upon three areas under topic headings. First, annexures which were provided in flash drive form: par 3 to par 6; secondly, the appellant's criminal convictions: par 7 to par 11; and thirdly, the child's wishes: par 12 to par 18. The consideration of those matters now follows. 3. As has been analysed at paragraphs [202] to [207] above, the flash drive contained four electronic documents, as follows: 1. CCTV recorded footage, the content of which showed the child on the evening of 6 August 2017, which the appellant said should be viewed in conjunction with a statutory declaration of a named acquaintance who does not need to be identified in these reasons; 2. An undated audio recording of the commencement of proceedings involving the appellant at Gosford Local Court relating to ADVO proceedings; 3. An undated audio recording which includes the JIRT interview of the child; 4. An undated audio recording of proceedings that contained the evidence and the cross-examination of the complainant child at Gosford Local Court. 1. The CCTV footage taken on 6 August 2017 as relied upon by the appellant was of no probative value or utility in rebutting the child's evidence that she had been assaulted by the appellant. Whatever is shown in that footage does not erase or eclipse the other contemporaneous evidence from his child, especially when the appellant has conceded that he does not contradict his daughter's evidence of the underlying events (Day 31, T614.47), where beforehand, in the Children's Court, he had said the events as his daughter described them, did not happen: Exhibit "E", Vol 3, Tab 32, pp 2275.12 – 2276.5. His concession was significant. 2. In the portion of the appellant's affidavit dealing with criminal convictions he claimed he had no criminal convictions before the events in question. That part of his affidavit then went on to, irrelevantly, and at times scandalously, refer to others. It also referred to the mother's breaches of orders of the Family Court. 3. In that section of the appellant's affidavit, he alleged malicious conduct against DoCJ and claimed his daughter's evidence against him was given as a result of intimidation, in the context of an unexplained head injury. None of those allegations have been substantiated by the appellant. 4. In the section of the appellant's affidavit that dealt with the child's wishes, he referred to some out of context statements of the child in documents between August 2017 and February 2018 to claim the ILR had provided misleading statements to the Court as to the child's wishes, especially as to contact visits and the placement with the carers, alleging the child is in a controlling and threatening environment, and her views as communicated by her representatives, should be seen in that light. 5. In drawing attention to those matters the appellant used the florid language of diatribe, alleging conflict of interest of the ILR, "fabricated" professional advice from a psychiatrist, "dubious" conduct, and expressing doubts about "competence of court system and amounts (sic) to system abuse". He also alleged the child's wishes regarding the organising of contacts with him were being ignored. 6. None of the appellant's serious allegations summarised in the preceding paragraph, grave as they are, have been substantiated to the standard of proof that is required to substantiate allegations of such serious proportions: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. Appellant's oral evidence in this appeal 1. Before the appellant gave his oral evidence he was requested to focus on the issues of : why the establishment issue should be revisited in the appeal; whether there is a realistic possibility of the child being restored to his care; the weight to be given to the expressed wishes of the child; and the need for an amended care plan. 2. The appellant gave his oral evidence on 28 May 2021 without having, beforehand filed a required affidavit outlining that evidence: Day 28, T373 – T440. Although this was a regrettably anomalous approach in this affidavit-based jurisdiction, he was given considerable latitude in that regard in the interests of expediency: Day 28, T368.5 – T369.13; T370.39. At times during his evidence-in-chief it was necessary to interrupt him to remind him to confine himself to the issues: Day 28, T374.22 – T374.50; T377.2 – T377.15; T380.14; T384.37. The salient features of the appellant's evidence-in-chief, given in narrative form, were as follows: 1. He sought to downplay the circumstances which had led to the need for the child's removal, at the same time stating that he did not contest the child's version of the events, simply noting his disagreement: Day 28, T374.6 – T374.27; 2. He claimed he had only consented to the establishment phase of the Children's Court proceedings with "no admissions" for expediency: Day 28, T375.12; T376.10; T389.29; 3. He claimed he had tried his best to work with the department "in every single thing": Day 28, T377.29; T378.6; 4. He claimed he had "insight" into the concerns expressed by the department, claimed he had attended courses as required, including seeing two psychologists in Newcastle (from whom he has not obtained any formal reports for use in these proceedings) and he "tried to work with the department" where he felt the department was pursuing the best interests of the carer and not those of the child: Day 28, T378.6 – T379.36; 5. Unacceptably, he sought to justify on "cultural" grounds that the "physical discipline" he had meted out to the child was "common practice": Day 28, T377.50 – T378.4; 6. On the subject of the possibility of the restoration of the child into his care, he said he was willing to work with the department to address any concerns in order to achieve restoration (Day 28, T379.47 – T380.8; T387.33; T390.31; T391.1 – T391.17) but paradoxically, he stated that he could not bring himself to work with the department where "the goal post seems to be changing every single time": Day 28, T390.34; 7. When asked to address the question of his child's wishes as expressed by her DLR, he referred to the fact that the child's wishes have changed over time, but he did not address the fact that the child's wishes over time had consistently been that she did not want to be in his care: Day 28, T380.18 – T381.30; 8. He was critical of the contact visit regime which the department had imposed upon him, and he claimed that the child's expression of her wishes were being controlled from within her care environment: Day 28, T381.44 – T382.13; 9. He maintained that the child's current placement does not meet her cultural, social and religious needs: Day 28, T384.23; 10. He accepted that if there was to be restoration of the child into his care this would require an extensively revised amended care plan to achieve this, and it would need to be implemented over the course of some time, noting that in the meantime, the child has an attachment to her carer: Day 28, T384.39 – T384.44; 11. He focussed on what he described as a lie by the carer that the child had her own room, as evidence of the carer's unsuitability and he asserted that the child had lied to protect the carer: Day 28, T386.11 – T386.20; 12. He sought to portray his own criminal conviction for his assault on his child as somehow being due to the fault of the lawyer who appeared for him: Day 28, T386.48 – T387.16; 13. He did not dispute that the child was telling her DLR the things which had been relayed in Court concerning the child's wishes, but he suggested, without proffering proof, that there was an additional factor at play, namely that the child was being influenced in that regard: Day 28, T387.39 – T387.50; 14. He did not accept as correct the department's opinion that he has not adequately addressed the issue of his violent behaviour towards his child: Day 28, T388.23 – T389.24; 15. He was critical of what he saw as the department's refusal to investigate injuries he asserted to have been found on the child whilst in care, and he asserted that the department seemed to him to be protecting the carer and not the child: Day 28, T389.35 – T390.20; 16. He sought to downplay and deflect from the fact that he had not provided relevant affidavit evidence to support his appeal: Day 28, T391.28 – T391.46; 1. The appellant was cross-examined by counsel for the Secretary on a number of matters: Day 28, T392.10 – T435. In the order in which the cross-examination proceeded, those matters were as follows: 1. The appellant said he was not presently in employment and was recovering from an unspecified medical procedure: Day 28, T392.20; 2. By asserting, incredibly, that the Children's Court Magistrate had not made a determination that the child was in need of care and protection, the appellant sought to misrepresent the findings of the Children's Court on the establishment issue where he had consented to that determination, arguing that there was an error in the transcript: Day 28, T393.2 – T393.24; 3. The appellant was evasive when he was asked whether a particular part of the transcript of the Children's Court proceedings had refreshed his memory on the question of whether he was legally represented at the establishment phase of the proceedings, and he raised a deflective and unsubstantiated assertion over the alleged discrepancies in the transcript: Day 28, T394.28 – T394.46; 4. Obfuscatorily, and incredibly, the appellant claimed that his lawyer's consent to the establishment phase in the Children's Court, as recorded in those proceedings, was not in accordance with his instructions: Day 28, T395.1 – T395.33; 5. The appellant accepted that on 4 November 2019, the Children's Court had declined to reopen the establishment issue: Day 28, T396.40. When asked what had changed since that time, the appellant claimed there was new evidence, but he then diverted the discussion to a series of conflated references to irrelevancies and allegedly "false documents" and "false medical records", claiming non-coincidence, implying there had been a conspiracy against him: Day 28, T396.44 – T397.6. No new evidence of relevance to the establishment issue emerged; 6. When the appellant was pressed to identify factors other than fake documents and records as new evidence to justify a reopening of the establishment issue, he went off topic and became argumentative, and he sought to raise false issues of contention, and he sought to deflect further cross-examination: Day 28, T398.11 – T402.35; 7. The appellant sought to contest the accuracy of his daughter's account of his abusive behaviour as summarised by Mr Paul Witzerman, the psychologist who provided evidence in earlier Family Court proceedings between the appellant and his wife, and who is a witness relied upon by the appellant in these proceedings: Exhibit "E", Vol 3, p 2650, par 27; Day 28, T402.36 – T404.31; 8. When asked to comment on the critical question of an allegation having been received by the department that, before his daughter's removal he had hit her nearly every day when he was angry, and she was therefore scared of him, he fenced with the cross-examiner, and he gave evasive non-committal answers that avoided answering questions directly. He continued along that course despite having been warned that his manner of unhelpfully dealing with those questions might result in his evidence being seen to be in a poor light: Day 28, T405.41 – T408.42; 9. When the appellant was pressed to indicate the correctness of his factual account given to DoCJ caseworkers at the child's school on 7 August 2017, reciting his claim of not having used physical force to discipline his daughter, and being unaware of bruising or markings on her body, he said "… I do not have a good recollection …", and "I can't recall" in relation to material follow-up questions: Day 28, T408.44 – T409.34; 10. Those answers led to the appellant being advised that giving non-direct and deflective answers to material questions on this topic could give rise to possible inferences that he has not acknowledged his violent behaviour toward his daughter: Day 28, T409.36 – T409.44; 11. The appellant later continued to give deflective and argumentative answers to material questions, despite having been advised that a compelling inference might arise that he was deliberately avoiding questions because it did not suit him to answer them truthfully: Day 28, T409.47 – T414.27; 12. The appellant denied the truthfulness of his daughter's account as recorded by Dr Fletcher-Watson, to the effect that he had hit her "a few times before" 7 August 2017: Day 28, T415.12; 13. The appellant sought to argue with the proposition that in 2019, his conviction appeal had been dismissed by the District Court, claiming a different recollection when the court documents stated otherwise as a matter of record, and he also tendentiously asserted that someone in the office of the Crown Solicitor had created a document which he implied as being false: Day 28, T416.45 – T423.17; 14. Incredibly, the appellant asserted that there "is a process on foot" to overturn the 19 July 2019 decision of the District Court criminal proceedings but he avoidantly refused to elaborate on that assertion when asked to provide relevant details: Day 28, T423.36 – T424.37; 15. The appellant claimed that when his daughter was cross-examined in the Local Court criminal proceedings that had been brought against him, that cross-examination was not based on his instructions: Day 28, T424.41 – T425.6; T426.26 – T426.28; T430.2. When pressed to explain that evidence, his subsequent answers rambled off the point in an unsatisfactory manner: Day 28, T425.8 – T426.1; 16. In those Local Court criminal proceedings, the appellant was cross-examined about a critical question that was central to the case for removal of his child. In those proceedings, in the cross-examination of his child by his solicitor, it was suggested that the injury to the child's heel could have been a blister rather than being due to being struck by a belt: Day 28, T427.9 – T427.21. When that matter was explored in these proceedings, at times he gave evasive and avoidant answers which did not fully address the question despite it being at the heart of his case: Day 28, T427.21 – T430.8; 17. The appellant asserted that the Local Court criminal proceedings (in which his daughter gave evidence against him and was cross-examined) had started without him being present so that he had not had the opportunity of giving his counsel instructions: T430.36. He gave that answer in an apparent endeavour to explain why his counsel had suggested to his daughter in cross-examination that she had made up the allegations that her father had hit her as she had alleged. In light of the fact that prior email exchanges had taken place between the appellant and his lawyer, the appellant's assertion is unlikely to be correct: Day 28, T430.12 – T430.45; 18. The appellant denied the specific propositions put to him to the effect that he had hit his daughter with a belt, a ruler and a wooden stick-like rolling pin: Day 28, T430.49 – T431.7; 19. The appellant rejected the assertion that he had not completed an anger management course: Day 28, T431.18. He stated he had done a Pathways to Parenting course but he acknowledged he had not completed a Facing Up domestic violence course: Day 28, T431.23 – T431.36; 20. When cross-examining, counsel drew the appellant's attention to the fact that his courtroom behaviour had been aggressive, he gave a somewhat distracting, qualified and rambling partial answer which only partially acknowledged the proposition, without expressing any form of apology for such behaviour: Day 28, T431.38 – T432.26; 21. When the appellant was asked questions on the content of the evidence he gave in the Children's Court, where he gave vague and at times unresponsive answers, he rejected the proposition that the answers recorded in the transcript of the Children's Court proceedings suggested he had been obfuscatory and unco-operative: Day 28, T432.30 – T434.23; 22. The appellant did not accept that his daughter has taken the position that she does not want to live with him and that she did not want his appeal to succeed: Day 28, T434.24 – T435.17. 1. The appellant's evidence in answer to questions asked in cross-examination by the child's DLR, Mrs Clark (Day 28, T435 – T440) was as follows: 1. On the issue of a possible restoration of the child to the appellant's care, he acknowledge that in view of the breakdown in the relationship, restoration could not occur overnight, and if it occurred, this would involve an elaborate and laborious process: Day 28, T435.26; T440.40; 2. In developing and articulating his resistance to the proposition that his daughter did not want contact with him, he sought to make an unsupported argument that contact visits had been arranged in a manner and at places aimed at disadvantaging him: T436.13. His argument failed to recognise the importance of ensuring adequate child protection measures were required at contact visits. He also asserted, without supporting evidence, that his daughter had opened up to him at contact visits as to her wishes, and had done so in a manner that was contrary to that which has been submitted on her behalf by the child's DLR: Day 28, T440.30 – T440.40. 1. On several occasions the appellant had been advised of his right to re-examination after the completion of his cross-examination: Day 28, T405.16; T405.24; T416.4; T440.49. His own litigation conduct indicates that he understood the concept of re-examination as he exercised that right in respect of a witness whom he had called to give evidence: Day 29, T462.41. Has also observed the process in other proceedings. He did not seek to exercise that right in respect of his own evidence in this case. Conclusions from appellant's evidence 1. In summary, when the appellant's evidence is read as a whole, it is plain that in his evidence he has not adequately or satisfactorily addressed the central issues in the case regarding the acknowledgment of his violent behaviour and his fitness for the restoration of his child into his parental care. The appellant has conducted his appeal in a manner that at times seemed bizarre, largely unstructured and inefficient. He did not file his supporting affidavits as was required for a hearing in October 2020 or for May 2021. His aberrant approach to answering questions and his refusal to answer crucial questions, both in the Children's Court and in this Court, revealed that he was a most unsatisfactory witness. Mother's evidence in the Children's Court 1. On 16 October 2017, the mother provided an extensive 94 paragraph affidavit for the Children's Court proceedings which annexed copies of numerous photographs, a record of telephone contacts, and copies of text messages: Exhibit "E", Vol 3, Tab 32, pp 2388 – 2502. On 26 August 2019, the mother prepared an affidavit whilst in the USA: Exhibit "M", Vol 2, Tab 37, pp 1630 – 1634. The bulk of that affidavit dealt with matters that are no longer relevant to the present appeal. However, at paragraph 19 of that affidavit (at p 1632), relevantly she observed that the father appears to be doing everything to prolong these court proceedings. 2. It is not necessary to review and analyse those affidavits or the annexures at this point because in this appeal the mother does not seek an order for the child to be restored to her parental care. 3. On 10 November 2018 (possibly 11 October 2018, noting American style of date recording), the mother's new partner prepared an affidavit with annexures: Exhibit "E", Vol 3, Tab 32, pp 2503 – 2517. That affidavit does not require analysis or review at this point. 4. The mother of the subject child gave evidence in the Children's Court proceedings by means of an AVL connection. Her solicitor called her as a witness to support her claim for allocation of parental responsibility. 5. On 29 September 2019, the mother's partner prepared an affidavit in the USA; Exhibit "M", Vol 2, Tab 35, pp 1663 – 1667. No matters of present relevance emerge from that affidavit. 6. In the Children's Court proceedings, the mother was cross-examined by counsel appearing for the Secretary: Exhibit "M", Vol 2, Tab 17, pp 1218 – 1233. She was also cross-examined by the child's independent legal representative: Exhibit "M", Vol 2, Tab 17, pp 1233 – 1263. The appellant cross-examined the mother at length: Exhibit "M", Vol 2, Tab 17, pp 1263 – 1277; Tab 18; Tab 19, pp 1399 – 1423. 7. In the Children's Court, the mother was seeking restoration of the child into her care, and planned to undertake family therapy with the child, subject to certain undertakings: Exhibit "M", Vol 2, Tab 17, pp 1219.50 – 1120.22. The appellant indicated his opposition to that course. 8. The mother described her present relationship with the father of the child as not a good one. She said in her contacts with the child when they spoke, which was mainly by Skype, nothing negative was said about that relationship. 9. In this appeal it is not necessary to review the mother's evidence in great detail as there is no current or active proposal for the child to be restored into her maternal care. The legal context was that, following proceedings in the Family Court of Australia, interim orders were made placing the child into the care of the appellant father. Those orders operated until the child was assumed into the care of the Minister: Exhibit "M", Vol 2, Tab 17, pp 1226.43 – 1227.7. 10. The mother described her relationship with the father as having been abusive, referring to his aggressive behaviour, having beaten her, and other domestic violence: Exhibit "M", Vol 2, Tab 17, p 1227.39. 11. The mother rejected the proposition that her current partner was in a bigamous relationship with her: Exhibit "M", Vol 2, Tab 17, p 1230.6. She described her present relationship as de facto: Exhibit "M", Vol 2, Tab 17, p 1231.21. She rejected the proposition that her present partner was a violent person: Exhibit "M", Vol 2, Tab 17, p 1233.23 – 1233.31. The mother was questioned extensively about her current relationship in the USA. That evidence is of little if any relevance to the present appeal. 12. The mother was cross-examined at length by the child's independent legal representative. The issues canvassed in that cross-examination now have very limited relevance to the issues to be determined in this appeal. The matters of relevance as raised by the child's independent legal representative were as follows: 1. The mother has the degree of Masters of Business Administration and she has information technology skills to an advanced level: Exhibit "M", Vol 2, Tab 17, pp 1244.35 – 1245.7; 2. In February 2018, in the USA, she has had another child in her new relationship: Exhibit "M", Vol 2, Tab 17, p 1247.50; p 1249.38; 3. She alleged the father had in the past perpetuated extreme physical domestic violence upon her, requiring that she be hospitalised: Exhibit "M", Vol 2, Tab 17, p 1236.7; 4. She alleged she had been threatened by the father and she was concerned he would be aggressive and hurtful towards the child: Exhibit "M", Vol 2, Tab 17, p 1236.26 – 1236.33; 5. The last time the child had lived with the mother was in June 2015: Exhibit "M", Vol 2, Tab 17, p 1235.29; 6. She has spent time with the child over a period of 4 weeks, in August 2018, on a visit to Sydney: Exhibit "M", Vol 2, Tab 17, p 1251.46; 7. She conceded her relationship with the child the subject of the appeal requires some building: Exhibit "M", Vol 2, Tab 17, p 1255.3. 1. In the Children's Court, the appellant father cross-examined the mother extensively over the course of several days: Exhibit "M", Vol 2, Tab 17, pp 1263 – 1277; Tab 18, pp 1281 – 1393; Tab 19, pp 1399 – 1423. The features of relevance to these proceedings that emerged in that cross-examination were as follows: 1. The mother stated that she is presently in a legal marriage with her new partner: Exhibit "M", Vol 2, Tab 18, p 1326.14; 2. The appellant was repeatedly invited to adduce evidence relevant to his attack on the evidence of the mother and very little in that regard was forthcoming: Exhibit "M", Vol 2, Tab 18, p 1328.9; 3. The appellant accused the mother of lying about her qualifications, a proposition she rejected: Exhibit "M", Vol 2, Tab 18, p 1399.30. 1. The appellant's cross-examination of the mother was extensive, and was interrupted by much argument as to the relevance of the matters being raised. In that regard, the Children's Court Magistrate observed, as the record of the proceedings confirms, the appellant had been given an extraordinary degree of latitude, including the granting of great indulgences with regard to the conduct of his case: Exhibit "M", Vol 2, Tab 18, p 1392.29 – 1392.36. Evidence of mother's present partner – in the Children's Court 1. The mother's present partner gave evidence by means of an AVL connection from the USA. He was called as a witness by the mother's legal representatives: Exhibit "M", Vol 2, Tab 19, pp 1441 – 1489. The affidavits previously prepared by the mother's partner on 15 October 2018 and 30 August 2019 that were before the Children's Court are no longer relevant as there is no question before the Court as to a possible restoration to the mother in the USA. 2. The evidence given by the mother's partner canvassed his previous relationships. He claimed he had never been arrested or convicted for any offence. He was cross-examined by the appellant at length: Exhibit "M", Vol 2, Tab 19, pp 1452 – 1488, and more briefly by the child's independent legal representative: Exhibit "M", Vol 2, Tab 19, pp 1488 – 1489. 3. The matters sought to be raised in the Children's Court proceedings by the appellant in the cross-examination of the mother's present partner were of limited, if any, relevance to the central issue in this case, namely whether there was a realistic possibility concerning restoration of the child to the appellant. 4. It is sufficient to here note that the key matters canvassed in that cross-examination of the mother's partner were: the possibility of a child in his care being at risk, whether he has made full disclosure of his prior relationships, his marital status in India, the authenticity of certain documents on that topic, and his employment status. 5. Significantly, when the appellant cross-examined the mother's present partner, he did not put to him the allegation that he or any member of his family had been involved in human trafficking, a matter the appellant had raised as an allegation when criticising the mother's evidence. 6. Nothing of relevance arose from the questions asked of the mother's partner by the child's independent legal representative in the Children's Court proceedings. 7. The evidence given by the mother's partner in the Children's Court has no bearing on the issues calling for decision in this appeal. PART D - SUBMISSIONS OF THE PARTIES 1. In the paragraphs that follow the submissions of the parties are reviewed. Submissions on behalf of the Secretary 1. The Secretary's detailed written submissions were marked MFI "10". They were supplemented by oral submissions on Day 35, T778 – T791. The appellant has been provided with timely copies that ought to have enabled him to make submissions in response. Absent contradictory submissions by the appellant it is unnecessary to summarise the Secretary's position other than to state, simply put, the Secretary seeks a dismissal of the appellant's appeal and confirmation of the orders of the Children's Court. The Secretary also seeks an order for costs against the appellant. Submissions by the child's direct legal representative 1. On behalf of the child, Mrs Clark, her direct legal representative, seeks an order that the appeal be dismissed: Day 35, T791.34. 2. Mrs Clark justified that submission by pointing out that since the child's removal from the appellant's parental care, she has expressed the consistent and specifically determined view that she does not want to live with the appellant, her father: Day 35, T791.48. That submission was developed as follows: "And for us to send her back to Dad, if we were to accept his appeal that restoration is something that is realistic, we have to think about what the implications of that are for [the child]. She's just started high school. She's been in this current placement for a number of years. She's happy in the placement. Nobody wants to be a DOCS kid, to use the vernacular, especially not [the child] because that sets her apart from her peers. But she thinks these carers can provide her with a life that is more normal than any other placement option in front of her. They have a sense of family. She has extended family and friendships in their own social group. She has peers at school that she gets to have playdates and do all those sorts of things. Everybody treats each other respectfully. I've observed [the child] with her step-foster children and the child of the carers, who is disabled. And she is empathetic and she is kind and she is happy with them. She laughs and plays and does all the things a child would do. That's a lifestyle for [the child] that she can see herself living as she goes through her teens and is allowed to live that existence that's as normal as possible for a child in the care of the department. That's all she's asking, just to be allowed to stay where she is. She's virtually been with this carer now almost as long as she's lived with any other person in her life. She's had constant changes. She's had Mum's care. She's had Dad's care. She's lived with Grandma in India. And this carer is the most settled and the least frightened she's ever been. And I think that is backed up, not only by my predecessor, Ms Adams, who was the ILR in this matter, her conversations with [the child] always suggested that what she's saying now is pretty much what she was saying back then. [T792.20 – T792.46] [Child's name redacted] 1. In the circumstances, those submissions must be given considerable determinative weight. Appellant's failure to make submissions 1. The appellant failed to attend at Court to make his final submissions. He had ample opportunity to do so if he wished to do so. He had ample notice of the course that was proposed, that is, to proceed to hear final submissions on 16 July 2021. 2. On 16 July 2021, the appellant sent an email to the Registry, not to the Associate, as was the case with previous emails, in the knowledge that his appeal was listed on that day for him to make his final submissions. His email, which is replicated at paragraph [535] above, stated that "this matter cannot proceed in the absence of transcripts / orders / evidence available to the appellant". He also asserted that "tomorrow's (sic) listing to be stood down" to await a decision concerning an unspecified complaint which he said he had lodged with the Judicial Commission. 3. Furthermore, the appellant did not attend at Court on 16 July 2021 to apply for his submissions to be deferred or postponed, as was suggested by the content of his email. 4. The appellant's email did not adumbrate upon what, if any, efforts he had made to obtain the "transcripts / orders / evidence" that he considered necessary for him to make his submissions. The evidence provided by the Secretary, and served on the appellant, discloses that beforehand, he had been provided with those materials. 5. The appellant did not provide any medical evidence or other reliable evidence to substantiate his claim of the existence of "unavoidable medical reasons" for not being able to either attend in person or by means of a pre-arranged AVL connection. Nor did he arrange for a representative to address the Court on his behalf, or to make an application of the kind he had foreshadowed. 6. In these proceedings the appellant has shown himself to be a seasoned and a resourceful litigant. He had communicated with the Court through the Associate on many occasions. It was therefore curious that he chose to take the course of sending an eleventh hour email to the Court's Civil Registry on 16 July 2021 in the terms cited at paragraph [535] above. 7. Those circumstances raised a concern that the appellant's non-attendance, and his email sent at the eleventh hour at 8.22am on 16 July 2021, might be a delaying tactic. That possibility had to be considered and balanced against the interests of his child. However, given that his child's interests are paramount in this case, it is not necessary to speculate on the question of whether the appellant was seeking to pursue a delaying tactic other than to observe that to accede to his request would be to perpetuate the harmful effects of delay in this case. 8. Instead, it is sufficient to record that the appellant was given ample notice of the listing for 16 July 2021 and his non-attendance was not adequately explained by reliable evidence. The timeline of the appellant's litigation inactivity speaks for itself. 9. The appellant has known from the transcripts of previous listings and from being served with the submissions made on behalf of the Secretary, that contrary to his own interests, the Secretary was seeking, amongst other things, a dismissal of his appeal. In those circumstances, he must be taken to have known that if he did not attend on 16 July 2021, he risked a dismissal of his appeal. 10. On reviewing the appellant's emailed communications which have been replicated and incorporated into Exhibit "W", since his last appearance in Court on 7 June 2021, that is, after his unsuccessful attempt at achieving a discontinuance of his appeal, several of his emails stand out as requiring consideration with regard to the position he seemed to be taking in the litigation: 1. He may have been unwell in June 2021, and he may have been unable to continue, as was communicated in an earlier email dated 9 June 2021. However, there is no medical evidence to reliably suggest any lasting adverse condition of health that might be relevantly affecting him since 11 June 2021 so as to prevent him from attending Court to make his final submissions. That part of his email dated 9 June 2021 that requested he be advised as to the future course of action was the subject of a reply which indicated to him that his presence at Court was required; 2. On 17 June 2021, at a time when the appellant knew that he would have to appear in Court on 25 June 2021 to make his final submissions, he took the position of emailing the Associate to state his opinion that, absent the return of his impounded devices, "this matter cannot proceed at next instance". That opinion did not reflect the true position. His appeal was expected to proceed to finality either with or without his assistance provided he had been given a fair opportunity to make submissions, if he chose to avail himself of that opportunity; 3. On 23 June 2021, when the appellant emailed the Associate stating that he had been able to access emails and prepare documents by alternative means, albeit with difficulty "due to COVID situation", he restated his position to be that "In such circumstances this matter cannot proceed to submissions". He requested that he be contacted for clarifications. In the circumstances, that was an incorrect and an odd position for him to adopt where the onus was on him to respond appropriately to the procedural demands of his case; 4. On 23 June 2021, after the appellant sent his email of the same date as cited above, he was advised by the Associate that the listing for him to make his submissions had been changed from 25 June 2021 to 2 July 2021 for administrative reasons. That communication, which is copied at sub-paragraph (17) of paragraph [522] above, made it abundantly clear to the appellant that he was expected to make his oral submissions on 2 July 2021, either in writing or orally, at his choice. However, he did not attend Court on that date; 5. Consequently, and as a further procedural indulgence provided to the appellant in the interests of ensuring procedural fairness, on 5 July 2021 the appellant was informed of a new date fixed for him to make his submissions, namely 16 July 2021. In that regard, he was advised by the Registrar that date would be his final opportunity to make his submissions to conclude his appeal. He did not attend on that date, and he did not make what might reasonably be considered to be a proper application for an adjournment. Instead, he sent a newly threaded email to the Registrar in the terms cited at paragraph [535] above, which included his contentious opinion that "the matter cannot proceed to submissions". 1. Those cited communications from the appellant, unsupported by reliable evidence, sought to prevent the pressing need for finalisation of the proceedings without identifying any proper grounds for doing so. The appellant's emailed statements to the contrary are misguided and spurious, especially in circumstances where the Court is duty-bound to ensure that care appeal proceedings are finalised in a timely manner having due regard to the paramount interests of the child: s 9(1) of the Care Act. The stance apparently taken by the appellant sought in effect to place his own interests ahead of the paramount statutory interests of his child. 2. The sequence of events that have been chronicled in these reasons indicate the appellant has had a more than adequate and procedurally fair opportunity to make his final submissions yet he has chosen not to take that course. He appears to have laboured under a misguided belief that, without a formal application supported by reliable evidence, his email correspondence as cited in these reasons would achieve a delay in the finalisation of these protracted proceedings which he initiated by the filing of his summons commencing the appeal on 7 January 2020. 3. On 16 July 2021, in the described circumstances, the time for submissions was declared to be closed. The appellant's position, as gleaned to have emerged from the evidence, his statements made in Court during the proceedings and from his correspondence, where relevant, will be taken into account and considered in reaching concluded reasoned views on the particular issues calling for decision in the appeal. PART E - CONSIDERATION OF THE ISSUES FOR DETERMINATION 1. The paragraphs that now follow set out the consideration and the consequential findings on the issues calling for decision as identified at paragraph [49] above. Consideration of Issue 1 – Abandonment of the appeal by the appellant 1. An overview of some key events that have occurred in this case, including the appellant's litigation conduct in his appeal, strongly suggest that despite his eleventh hour missive email sent to the Court's Civil Registry, at 8.22am, on 16 July 2021, by which he sought to have the case stood down or adjourned, he must be taken to have chosen to abandon his appeal by not appearing, either in person or by AVL to make his final submissions. 2. In taking that course, he took the risk that if his quest for an adjournment failed, the proceedings would continue to conclusion in his absence. 3. Before 16 July 2021, the appellant had been addressing his communications to the Court through the Associate on procedural matters. On 16 July 2021 he used a different email address and chose to communicate with the Registry rather than with the Judicial Registrar or the Associate. That curious approach was unexplained. It suggests an avoidant approach. 4. The genesis for the view that the appellant has abandoned his appeal is that earlier, on 4 June 2021, he sought to discontinue his appeal. Subsequently, when that move proved unsuccessful, after 7 June 2021 or more relevantly, after 11 June 2021, and without any reasonable excuse, he has either refrained from, or withdrawn from, any further appearance in the proceedings. 5. The effect of the sequence of communications chronicled in Exhibit "W", which was tendered on 16 July 2021, as explained at paragraphs [518] to [525] above, suggests that, despite the appellant having been duly notified of the requirement that he should appear either in person or by means of an AVL connection on 16 July 2021 to make his final submissions, he did not appear to make any submissions. 6. The appellant's email dated 16 July 2021 did not constitute an adequate explanation for his non-attendance. The appellant is a seasoned litigant. He knew the appropriate procedure for making a formal application to the Court on a matter of significance such as an application for an adjournment. The course he chose did not meet that requirement. 7. Instead, it appears that the appellant has assumed that the untested statements he made in his email communication to the Court's Registry on 16 July 2021 would be a sufficient basis upon which to secure the further procedural indulgence of an adjournment to advantage his own interests, without due regard to the competing public interest of the Secretary, and more importantly, the overriding statutory interest of his child who is the subject of his appeal. 8. Other than the appellant's unverified emailed statements, there is no cogent medical or other evidence to suggest that he was unable to attend Court on 16 July 2021. He was given due notice that the 16 July 2021 date was set for him to make his final submissions. The appellant's 16 July 2021 email sent to the District Court Civil Registry was in the nature of a complaint. It was not accompanied by or followed by any formal application to seek to vary the procedural course that had been set by the Court for the finalisation of the proceedings. 9. The appellant had ample notice of the 16 July 2021 fixture. The content of his 16 July 2021 email communication to the Court's Civil Registry, suggests that he chose the course of making a complaint to the Judicial Commission of NSW about the course these proceedings have taken, rather than taking the step of appearing in Court to make a formal application for an adjournment. A complaint of that kind does not operate as a stay of these proceedings. If the appellant's view was to the contrary, necessarily, it was procedurally flawed. 10. The compelling conclusion to be drawn from the described circumstances is that by his conduct, the appellant has chosen not to appear to present his final submissions, and he must be taken to have abandoned his appeal rather than appear in Court to make such arguments as he thought fit to see his case through to its logical procedural conclusion. 11. The central issue in the appeal remains the paramount consideration of the best interests of the child having regard to her safety, welfare and well-being: s 9(1) of the Care Act. That consideration must be given greater weight and determinative emphasis when compared with the appellant's emailed claim of his need for an adjournment, especially in circumstances where he has had adequate and ample opportunity to participate and to prepare himself in order that he be heard on the issues calling for decision in the proceedings. 12. The appellant's long history of dilatory litigation conduct disentitles him to any further procedural indulgences of the kind he has sought in his eleventh hour email dated 16 July 2021. He has had the benefit of many prior procedural indulgences in this case. There must be a limit to the procedural indulgences of the kind that have hitherto been afforded to him to shield him from the effects of his misguided self-representation: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27, at [5], [23]-[25], [27], [30], [111]. 13. An important consideration in determining this issue is the fact that the Court has been reliably informed by the child's direct legal representative, supported by the evidence of Dr Shorter, her treating paediatrician confirming that the child's mental health has unfortunately suffered because of the uncertainty of the outcome and the prolongation of the proceedings. The child suffers from anxiety, depression and insomnia. The evidence and the submissions made on those matters indicates that the determinative point has been reached where a reasoned decision is required for the disposition of the appeal. 14. The foregoing analysis compels the conclusion that the appellant should be taken to have abandoned his appeal. In those circumstances, the Court must proceed to deliver a reasoned judgment on the issues calling for determination. This must occur as adroitly as the analysis of the bulk of evidence and the issues permits, as a matter of record, to formally and finally conclude the proceedings that have become unnecessarily protracted by the appellant's aberrant litigation conduct. Issue 2 – Necessary protective findings 1. The appealed orders made by the Children's Court have never been stayed, and those orders therefore still remain in place. The fact that the appellant has filed this appeal did not operate as a stay of those orders. As the proceedings are protective in nature, where the appellant is taken to have abandoned his appeal, findings on the evidence must nevertheless be recorded on the issues raised. The proceedings must be concluded by making formal orders, based on recorded reasons, as now follows. Issue 3 – Establishment finding justified 1. In the Children's Court, the proceedings passed through a number of phases that were presided over by different Children's Court Magistrates, as is the practice of that Court. 2. The establishment finding in the Children's Court was made with the consent of the appellant father on 6 November 2017 "without admissions". On 12 December 2019 the Children's Court Magistrate who dealt with that early phase, made a finding that the Children's Court jurisdiction was engaged. Accordingly, and in conformity with the appellant's concession, the Children's Court made a finding that there was no reasonable possibility for the child to be restored into parental care: Exhibit "E", Vol 3, Tab 32, pp 2705 – 2706. 3. In these proceedings, counsel for the Secretary has correctly pointed out that the Children's Court is not a consent-based jurisdiction. The appellant did not dispute the authenticity of the transcript in the Children's Court proceedings (Day 28, T394.45), where a solicitor who was acting for him at the time he consented to the proposition that the child the subject of the proceedings was in need of care and protection: Exhibit "E", Vol 3, Tab 32, p 2705; Day 28, T394.5 – T395.33. Absent cogent and reliable evidence to the contrary, that solicitor must be taken to have had actual and ostensible authority from the appellant to make that concession: Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235, at [10]. 4. On the basis of that concession the Children's Court Magistrate determined that the child was in need of care and protection: s 71(1)(a), (c) and (e) of the Care Act. The Children's Court Magistrate justifiably proceeded to make an establishment finding in the following terms: "HER HONOUR: The father has conceded without admissions, that the child is [sic - in] need of protection, and the Department has sought that ruling pursuant to s 71 (c) and (e). In relation to the mother she is not presently available to care for the child and I can extend that determination to s 71 (1)(a) because of that. I am satisfied to make that finding now. So we get past the first base." [Exhibit "E", Vol 3, Tab 32, pp 2705 – 2706] 1. Later in the Children's Court proceedings the appellant father unsuccessfully sought to re-open the establishment issue on two occasions, as was referred to on Day 28 of these proceedings, at T396.42: Exhibit "E", Vol 3, Tab 32, p 2707. 2. In these proceedings, the appellant has not introduced any reliable evidence that would provide a proper basis for concluding that the establishment issue has not been made out. To supplant the existing establishment finding of the Children's Court, the appellant must demonstrate that his daughter was not and is not at serious risk of harm from him. 3. The appellant's evidence, including his reliance on Exhibit "Q" and Exhibit "V", does not have an exculpatory effect that benefits him in this appeal with regard to the establishment issue. 4. The appellant's contrary opinion is fallacious. His evidence in previous proceedings, in which he said of the underlying events, as described his child, "it didn't happen", was rejected in the Local Court (Exhibit "E", Vol 3, Tab 32, pp 2275.45 – 2276.5), does not assist him in these proceedings. The following matters are germane to the analysis. 5. The actual time of day of the appellant's assault on his daughter on Sunday 6 August 2017 was not ever precisely identified by the child in her evidence (Exhibit "E", Vol 3, Tab 32, pp 2262 - 2272), or in the police records comprising the COPS Event (Exhibit "E", Vol 3, Tab 32, p 2063), other than in terms of it having occurred on 6 August 2017. Neither was the actual time of the assault identified in those Local Court criminal proceedings. In those criminal proceedings, the appellant took particular care to tell the cross-examining prosecutor that he had to be specific about the time: Exhibit "E", Vol 3, Tab 32, p 2282.1. 6. In light of the array of factual evidence presented in these proceedings, in these reasons it is not necessary to identify the precise time of the assault which led to the mandatory report and to the child's removal from the appellant's parental care. 7. The term assault is used in these reasons rather than an alleged assault because it is a matter of record that the appellant has been convicted on that charge. For the purpose of analysis in these proceedings it is sufficient to refer to the time of the assault as having occurred at some time during the evening of 6 August 2017, at the appellant's home, after he and his daughter had returned there from their earlier activities. 8. The appellant has put forward a range of material that was presumably intended to be exculpatory of him in relation to his daughter's allegation that he had assaulted her: Exhibit "Q" and Exhibit "V". That presumption is made in the appellant's favour for the purpose of analysis, despite his failure to attend Court to make submissions of any kind, including a submission along those lines. 9. Proceeding on the basis of that assumption for the purpose of analysis, an apparent fallacy emerges from within the appellant's reliance on those materials, which he presumably intended to refer to in support of his claim that his daughter's assertion of assault by him "didn't happen": Exhibit "E", Vol 3, Tab 32, p 2277.47, p 2280.31. 10. That fallacy emerges from the following chronological sequence of events as described in the evidence, starting with the fact that the actual time the assault took place has not been identified: 1. At about 5.00pm on 6 August 2017, and over the course of about an hour at around that time, an acquaintance of the appellant, Mr Balakrishanan, saw the appellant and the child at his home, at which time he saw some of the child's dance moves, and he said that he saw no obvious signs of injury or physical abuse on the child: Exhibit "Q"; 2. At about 18:11 hours on 6 August 2017, domestic CCTV video surveillance footage showed a child, presumed for the purpose of argument to be the subject child, without apparent injury: Exhibit "V", CCmp4. This may or may not have been at the premises of Mr Balakrishanan, although the timing would suggest that was not so because Mr Balakrishanan said the appellant and the child had arrived at about 5.00pm. This leaves open the possibility that either Mr Balakrishanan was incorrect in identifying the approximate time, or the time calibration on the surveillance camera may have been incorrectly set; 3. At about 7.04pm on the evening of 6 August 2017, the appellant's bank account was accessed by means of an ATM transaction at West Gosford, a location which is presumed to be some distance away from his home: Exhibit "Q". That time would have been in approximate keeping with the appellant having spent about an hour at the house of Mr Balakrishanan, the assumption being that only the appellant was able to access the bank account in that way; 4. At about 8.00pm on the evening of 6 August 2017 the child was seen by Mr Ainsworth, an acquaintance of the appellant, at an un-named fast-food outlet, without apparent signs of "impairment": Exhibit "Q"; 5. At some stage the appellant and the child had an evening meal at Hungry Jacks before going home: Exhibit "E", Vol 3, Tab 32, p 2283.26. Allowing for possible imprecision of time estimates, this may have been at the time of the encounter with Mr Ainsworth as described above; 6. Of the events of 6 August 2017, in the criminal proceedings brought against him, the appellant gave evidence to the effect that during that day, they, being both the appellant and the child, had been to language classes. They then went to a few other places, including at West Gosford, before arriving at home, where they had stayed, without going out again until he had put the child to bed at some unspecified time: Exhibit "E", Vol 3, Tab 32, pp 2280.35 – 2283.29; 7. Of the evening of 6 August 2017, the appellant also said that during that evening, whilst at home, they never left the house that night. He said that he did not hear the intercom buzzer to his apartment at the time when police officers arrived seeking to make contact with him and the child in response to a report of concerning sounds from within, as reported by a neighbour. In giving that evidence, the appellant denied the child's version of events whereby she said the appellant had taken her away from the premises using the back stairs, to hide from the attending police officers: Exhibit "E", Vol 3, Tab 32, p 2279.40; 8. At about 8.00am on the morning of 7 August 2021, the day after the assault, Mr Shrivastava, an acquaintance of the appellant, saw the child walking to school, and at that time he did not notice any signs of physical impairment on her: Exhibit "Q". The non-observation by Mr Shrivastava of any injury being evident on the child on the following morning is not a reliable basis for asserting there were no such injuries; 9. On 7 August 2017, at school, the child's injuries were disclosed. School staff noted that the injuries were evident, and subsequently those injuries were confirmed and medically documented in greater detail when the child was examined at Gosford Hospital by Dr Fletcher-Watson. 1. The analysis reveals that there was ample opportunity, on the evening of 6 August 2017, for the assault to have taken place after the appellant and the child returned to their home and before the police arrived at the premises to investigate after a concern had been reported. It is fallacious for the appellant to assert otherwise. 2. Therefore, the factual analysis must proceed according to the content of available conflicting factual testimonies. 3. In contrast to the appellant's testimony, the child's version of the assault was contemporaneously recorded, as was noted by DoCJ staff, and by Dr Fletcher-Watson. The detail of the child's versions had been cited in detail elsewhere in these reasons. The child's version is not inherently improbable. 4. Pitted against the child's version is the appellant's denial in which he states the child's account simply did not happen. The two versions cannot stand together. 5. In cases where factual findings must be made on the balance of the probabilities to resolve conflicting factual evidence, including circumstantial evidence, all the evidence of relevance to the matter at issue must be considered: Fox v Perry (2003) 214 CLR 118; [2003] HCA 22, at [23], following Jones v The Queen (1997) 191 CLR 439, at 466-467; State Authority of NSW v Earthline Constructions Pty Ltd (In liq) (1999) 73 ALJR 306, at [64]. 6. In conformity with that requirement, these reasons are based on a review of the evidence read as a whole, as has been outlined in PART C above. That evidence includes the child's evidence as recorded in its various forms, and the evidence relied upon by the appellant, including his own evidence. 7. A comparative review of that evidence leads to a compelling conclusion, on the balance of probabilities, that not only is the child's contemporaneously corroborated evidence more likely to be correct and true, but that the evidence put forward and relied upon by the appellant as exculpatory or contradictory of the child's account is unpersuasive, especially where the appellant refused and avoided answering relevant questions on the subject of his actions. The child's evidence, which is not inherently improbable, and which has not been contradicted in any material respect, is accepted in preference to the limited and qualified contrary evidence of the appellant. 8. That comparative analysis has been undertaken in circumstances where, unfortunately, the appellant has failed to attend at Court to make any submissions directed at arguing for a contrary conclusion to that which was submitted on behalf of the Secretary. 9. In these proceedings the appellant has not produced any reliable evidence that would justify a reconsideration of the establishment finding which was fundamental to the proceedings in the Children's Court. Until now, that finding has remained in place and has effect for almost 4 years. The establishment finding was made in the context of the uncontradicted statements by the child that the appellant had criminally assaulted her. She continues to remain fearful and scared of the appellant. 10. In these proceedings, as in the Children's Court beforehand, the appellant resisted answering crucial questions on the underlying events which had led to the child's removal from his parental care. This was in the context where DoCJ continued to have un-allayed concerns that the appellant has never acknowledged his wrongdoing towards his daughter, and he has never addressed the harmful effects that behaviour has had on his child. 11. In those circumstances the appellant's contention that the establishment issue should be revisited, and that a different outcome should prevail, must be rejected. 12. The compelling conclusion is that the child has at all times since at least 6 August 2017, been in need of care and protection from harm at the hands of the appellant. That risk of harm to the child continues to remain unacceptable thus requiring ongoing child protection. The appellant's application for a reconsideration of the establishment issue is therefore rejected. Issue 4 – Weight to be given to the child's wishes 1. Before considering the restoration issue, it is necessary to consider the wishes of the child. The evidence of the child's attitude and wishes on the subject of contact with the appellant after the assault has been consistent, throughout the proceedings, both in the Children's Court, and in this Court. 2. The child the subject of the appeal is now aged over 12 years. The child's previous independent legal representative has now been replaced by the appointment of a direct legal representative as a result of the operation of the legislation. The child is now prima facie entitled to express her own views in relation to the appeal. No rebuttal evidence has been forthcoming from the appellant in respect of those conveyed views of the child. 3. In these proceedings, through her direct legal representative, Mrs Clark, the child has made it abundantly clear that she does not want to be returned into the parental care of her father. Instead, she has expressed the wish for her father's appeal to be dismissed as quickly as possible, so she could remain in her present placement. 4. Similarly, the child has indicated that she is happy and content in that placement. She has also indicated that in the fullness of time she hopes to have some form of salvaged relationship with her father, but in the meantime as she feels overwhelmed by the current proceedings, and she refuses to spend any time with or to have any communication with her father: Exhibit "F" paragraph 5. 5. Although the appellant has raised a question as to whether the child has been inappropriately influenced or manipulated to give instructions to the above effect, he has not produced any persuasive evidence that would either support or tend to support that contention. 6. Whilst the child the subject of the appeal did not give evidence in the Children's Court proceedings, the Children's Court Magistrate reviewed the transcript of the child's evidence in the Local Court criminal proceedings that were brought against the appellant: Exhibit "M", Vol 2, Tab 37, pp 1715 – 1716. 7. In that regard, and in particular, the Children's Court Magistrate recorded the following description of the child: "Firstly, [the child] is recorded as being an intelligent young woman with a maturity beyond her age. I note particularly what is set out at p 16 and exhibit 8 and the words spoken by he (sic) are entirely consistent with an understanding of the change in her relationship with her father following her disclosure of physical abuse." [Exhibit "M", Tab 37, p 1715.27] [Name of child redacted] 1. The Children's Court Magistrate also drew upon the transcript of the earlier Local Court criminal proceedings to record the following observation that had been made in relation to the child when he made the following observation: "In terms of her wishes, [the child] is not yet 11 but on the evidence before me she is an articulate, coherent and intelligent young person who understands her situation and the decisions that can be made on her behalf. She was an exceptionally impressive witness according to the magistrate that heard her evidence in criminal proceedings. I note that she excels academically." [Exhibit "M", Vol 2, Tab 37, p 1717.15] [Name of child redacted] 1. The Children's Court Magistrate stated that, "In summary, her views are entitled in my view to weight consistent with her age and development": Exhibit "M", Vol 2, Tab 37, p 1717.46. That was a view which was open to the Children's Court Magistrate, and it is a compelling view that should also be accepted in this appeal on the basis of the evidence thatw has accumulated over time. That is so, especially now that the child has attained the significant age of 12 years. 2. Over the period of time the proceedings were before the Children's Court, because of her young age, the child was not directly represented. The Children's Court was nevertheless concerned with the paramount issue of the child's best interests: s 9(1) of the Care Act. 3. In those circumstances, the child's independent legal representative had legal standing to speak on the issue of the child's best interests and did so to the effect that was in conflict with the outcome sought by the appellant at the time the Children's Court proceedings were determined. It is abundantly clear that the Children's Court Magistrate made the correct decision as to the weight to be given to the views of the child. 4. Since then, during the currency of this appeal, since the child has attained the age of 12 years the independent legal representative discharged her role and the child now has an appointed direct legal representative and is presumed to be able to give instructions to that representative on the issues requiring determination in the proceedings. The child's direct legal representative is therefore in an appropriate position to make relevant submissions based on instructions from the child and she has properly done so. 5. Although the statutory presumption of the child's capacity to give such instructions is rebuttable, in this case, nothing that has emerged from the appellant or any other witness or party in the course of either evidence or argument to suggest that statutory presumption has been or should be regarded as having been rebutted or should be discounted. 6. Relevantly, the child's insights into the dynamics that drive the appellant in these proceedings have been recounted to the Court as follows: "[Child's name] instructs me that she does not believe that these Court proceedings are a result of her father's love for her but instead continue only because he wants to 'win' so that he can tell people how clever he is in Court. It makes her very sad and angry that he does this whilst knowing that she does not wish to live with him ever again." [Exhibit "F", paragraph 6] 1. Absent any evidence that serves as a basis for rebutting or discounting the statutory presumption to the effect that the child's views as conveyed may be considered in this case, the onus lies on the appellant to call such evidence. He has not produced any cogent evidence to rebut those views. 2. In those circumstances, due weight must be given to the submissions made on behalf of the child, based on the reasonable inference, the submissions presented on her behalf reflect and convey the child's true views. 3. In these proceedings, due to the effluxion of time, this Court has had the considerable advantage which the Children's Court did not have, namely a more mature and focussed rendition of the expressed views of the child, whose preferred outcome is that the appeal should fail and that her father should not ever be allocated parental responsibility for her care pending the child attaining the age of 18 years. 4. On the evidence, the compelling conclusion is that the child's present views, as submitted through her direct legal representative, are consistent with the views of her prior independent legal representative. In addition, having regard to the evidence, the child's views as submitted, also accord with prudence, common-sense and the need for self-preservation, notwithstanding the unsupported contrary commentaries of the appellant. 5. The Court is comfortably satisfied, without doubt, that the child not only does not want parental responsibility to be restored to her father, but she wants his appeal to be dismissed, and she wants protective restrictive rules to apply to any future contact between them. 6. The child's views must be given considerable determinative weight. Those views outweigh anything the appellant has put forward to the contrary, and they are therefore accepted as indicative of what should now happen in the course of any future contact between father and daughter. Issue 5 – Restoration not justified 1. On reviewing the evidence as a whole, the compelling conclusion which emerges is that there has been no realistic possibility of the child being restored into the care of the appellant father at any time within the continuum of events that has followed the removal of the child from the appellant's care. 2. The Children's Court Magistrate correctly decided that question at the time he delivered his decision on 12 December 2019 when he rejected the appellant's application for restoration. 3. The fact of the appellant's uncontestable conviction for having assaulted his daughter, combined with the fact that the appellant has not adequately acknowledged or addressed his violent behaviour indicates that, unacceptably, the child would be at risk if restored to his care. In combination, those factors overwhelmingly militate against restoration: the Colt Children [2013] NSWChC 5, at [143], following Johnson v Page [2007] Fam CA 1235 and applying M v M [1988] HCA 68; (1988)166 CLR 69, at [23]-[25]. 4. In this appeal, the state of the evidence on the restoration question has not materially changed from the time the Children's Court refused the appellant's application, except in one material respect. The recent disclosure by the appellant, through his reliance on correspondence from his treating psychologist, Mr Screen, to the effect that he is the subject of a current mental health plan, the details and reasons for which, remain undisclosed. That raises questions about the appellant's mental health which remain undefined and unaddressed. Those matters are relevant to an understanding and an assessment of whether he is a fit or good enough parent. 5. The appellant has pointed to various remedial and educative courses that he attended with the aim of satisfying the requests of DoCJ with a view to obtaining a restoration order from the Court. 6. However, in this case, it is inescapable that the appellant's reliance on his attendance at such courses must be seen to be an insufficient measure that does not assist his case where, at all relevant times since 7 August 2017, he has failed to face up to the fact that his violent behaviour towards his daughter has amounted to damaging child abuse. 7. Those circumstances, and the fact that the appellant is the subject of an only recently disclosed mental health plan only came to light after he had completed giving his oral evidence, thereby precluding cross-examination on the relevant details of that plan, does not allay those concerns. 8. In oral evidence in the Local Court, in the Children's Court, and in this Court, the appellant never acknowledged the fact, the force, or the effects of his violent actions by which he inflicted injuries on his child under the spurious guise of administering what he deflectively and euphemistically described as excessive discipline. 9. The appellant avoided engaging with that topic, and he has downplayed its damaging significance. The compelling inference which arises from those circumstances is that this is because he had no evidence that could be reasonably considered to be mitigatory of his abusive behaviour. 10. As the appellant has to date failed to address and allay concerns over his failure to acknowledge and satisfactorily address his violent behaviour towards his daughter, the inescapable conclusion is that he cannot be entrusted with the parental responsibility for his daughter. 11. The evidence has been left in a state that indicates a continuing unacceptable risk of harm to the child if she were to be restored into the appellant's care. He has not demonstrated his fitness to assume that responsibility. 12. The risk of harm to the child remains unacceptable in terms of child safety, health, welfare and well-being. That is so, especially where the appellant has not acknowledged his violent behaviour towards the child and he has not provided evidence of the nature and the extent of the operative factors that have led to his current mental health plan, the fact of which he has only belatedly and indirectly disclosed by putting forward a letter from Mr Screen, but only after he had completed his oral evidence. 13. The appellant had the onus of demonstrating the justification for a restoration order. In this case, the evidence required to justify a restoration order is starkly absent. 14. In those circumstances it would be fanciful and unacceptable in terms of child safety considerations to suggest there is a realistic prospect of the child being restored into the appellant's care: Re Henry; JL v Secretary, Dept of Family and Community Services [2015] NSWCA 89, at [41]-[42]. 15. If there were to be a restoration of the child into the parental care of the appellant, on the uncontested evidence in this case, any benefit to the child would be unlikely, and would be overwhelmingly outweighed by the likely risks to the physical and mental well-being of the child: The Secretary of the Dept of Communities and Justice and Fiona Farmer [2019] NSWChC 5, at [71]. In this case that risk would be unacceptable and contrary to the paramount issue of the child's health, welfare and well-being: s 9(1) of the Care Act. 16. Consequently, the compelling conclusion is that the appellant has failed to establish his parental fitness and suitability to justify an order for the restoration of his child to his parental care. His application for restoration must therefore be rejected. Issue 6 – Amended care plan not required 1. In the course of the proceedings, it was indicated to the appellant that an amended care plan would be required whatever the result of the appeal: Day 27. T279.1 – T279.10. However, that view must necessarily be taken to have been overtaken by events, and it can no longer apply in light of the appellant's subsequent failure to attend at Court to make submissions in response to the Secretary's contrary submissions which, on the evidence, have been fully justified. 2. The state in which the evidence has been left contraindicates an order for an amended care plan at this point. This is because the evidence demonstrates that the child is well cared for in her present placement. She is well supervised by DoCJ staff and the arrangements are stable. The child does not want those arrangements to change. Her voice should be heard and appropriately acknowledged in that regard. 3. Before leaving this issue, it is relevant to note that the child's medical needs are being well recognised, supervised and managed by Dr Shorter. Furthermore, between 1 December 2018 and 2 May 2019 the child had 10 therapy sessions that involved focussed psychological intervention with Ms Nada Potter, a psychologist in private practice, who was engaged by DoCJ for that purpose. Her report dated 19 May 2019 is in evidence: Exhibit "M", Vol 2, pp 1600 – 1603. The child is able to re-engage with such therapy and counselling at any stage she feels she needs such assistance. 4. Ms Potter elicited from the child that she had been subjected to a history of parental punitive violence. She also elicited a history of parental secrecy on many matters. She chronicled the child's confusion in the context of the parental relationship. The psychological sessions Ms Potter had with the child focussed on the child's emotional trauma and her coping abilities in relation to her anxieties and her distress over the situation in which she finds herself. 5. Ms Potter's sessions identified the child's express wish as not wanting to live with her father and not wanting to go to America to live with her mother (p 1600). Her opinion was that the child had no real attachment to the mother (p 1601), and she also noted a past history of the father having slapped, smacked and belted her (p 1601). 6. Ms Potter summed up the effect of the sessions she had with the child by saying the child "is concerned about her Mum and Dad. She seriously wants the best for them but not to stay with them". She wanted to stay with the family of her carer's household, where she felt safe. Further therapy sessions were recommended to assist in managing the child's distress: Exhibit "M", Vol 2, Tab 26, p 1603. The Secretary will meet any expense in that regard. 7. After a number of psychological treatment sessions, Ms Potter noted that the child was "stuck in her emotions and thoughts", and although very intelligent, the trauma and anxiety she has experienced and is still experiencing in respect of those events, required that she have further therapy sessions directed at enabling her to understand her feelings, to trust safe people, and to feel attached and connected to people (p 1602). 8. Ms Potter noted that the suggested therapy for the child would require engagement in a process that would progress slowly, and that in the meantime, the child felt safe in the household and in the family of her carers. 9. That review of the evidence of the child's situation overwhelmingly suggests that the child's issues and needs are best managed under the existing amended care plan. The circumstances described in the evidence as summarised above indicate that there is no need for a further amended care plan to be undertaken. 10. The futility of ordering a further amended care plan is confirmed by the appellant's own concession that any such plan would involve an elaborate and laborious process: Day 28, T435.26 – T440.40. The appellant has not satisfied the threshold requirement for entertaining or considering such an undertaking. This is because he has not acknowledged or adequately addressed the fundamental question of his violent behaviour towards his daughter, and he has not provided relevant details of his own current mental health plan, which remains undisclosed and unknown. 11. A further amended care plan is therefore contra-indicated on the evidence in his case. Issue 7 – Costs 1. The Secretary has signalled that an application will be made for a compensatory costs order against the appellant because of the claimed existence of exceptional circumstances: s 88 of the Care Act. 2. On 15 July 2021, the solicitor for the Secretary filed an affidavit formally identifying a claim for costs in the gross sum of $220,000. This amount was a discounted sum derived from a greater amount of costs of $270,251.60 identified as having been incurred up until 15 July 2021. 3. Necessarily, the parties must be heard before the appropriateness of any such order can be considered. A procedural timetable for evidence and submissions to deal with that question is therefore required. Issue 8 – Disrespectful behaviour in Court 1. The proper administration of justice requires that parties and witnesses appearing in Court behave appropriately to the formality of the occasion including, behaving with respect to the Court as the authoritative institution that society has established to hear and determine disputed litigation. 2. In this case, the appellant's extensive, at time egregious, well-documented, and recurring disrespectful behaviour that he has displayed in Court, requires consideration within the framework of s 200A of the District Court Act 1973 (NSW). The appellant has had his attention drawn to that provision on several occasions, and has continued that behaviour, apparently wilfully, notwithstanding the warnings given to him. 3. The Attorney General for the State of NSW is the proper person to undertake that consideration. The papers comprising the transcript in these proceedings will be referred to the Attorney General for that purpose. A belated issue raised by the appellant's email dated 12 August 2021 1. After the above reasons had been completed, and were being proof-read, a further matter arose, as described below. 2. On 12 August 2021, somewhat belatedly and without explanation for the delay, 27 days having passed since the appellant's non-appearance to make his final submissions on 16 July 2021, during which time the Court had not received any communications from him, he sent an email to the Associate. That email, which was also copied to the parties, has been marked in chambers as Exhibit "Z" in the proceedings. 3. That email, sent at the eleventh hour, as was a previous email as described at paragraph [535] above, was sent as the Court was preparing to deliver reserved judgment in the proceedings on the following day, namely today. Omitting the scandalous, abusive, and disrespectful content of that email, it relevantly stated: "… It would be deplorable to embark on judgement (sic) without even providing parties an opportunity for submissions. Accordingly, I demand for a new timetable be setup for appellant to make submissions after appellant had access to documents, transcripts and orders made so far" 1. That most recent email from the appellant was considered in chambers. It resulted in the Associate sending the following reply to the appellant: "To the Appellant Please note that this email is also being copied for the information of the legal representatives of the other parties who have actively appeared in this litigation. I am instructed to inform you of the following: • The formal business of the Court is not conducted by email or by correspondence; • Your email sent today, at 3:12am (12 August 2021), has been considered and noted by his Honour; • This matter was listed on 2 July 2021 for you to make your final submissions. You did not appear on that date and the Court was not provided with any information that suggested a reasonable cause for your absence; • The further date of 16 July 2021 was then set to provide you with a further procedurally fair opportunity to appear and make your submissions; • In your absence, judgment was reserved on 16 July 2021 as you did not appear to make your submissions; • There is satisfactory evidence that you were provided with due notice for both of those fixtures; • You did not appear at 10.00am on 16 July 2021, and before the scheduled time for your appearance, you did not inform the Associate that you could not attend. Instead, you sent an emailed letter of complaint to the Civil Registry of the Court; • On 16 July 2021 you were provided with a transcript of the proceedings in Court on that date; • In the 27 days between 16 July 2021 and 12 August 2021 you have not taken any steps to inform the Court of any relevant circumstances which required consideration relating to your non-appearance in Court, either on 2 July 2021, or 16 July 2021; • Your email to the Civil Registry of the Court sent on 16 July 2021 forms part of Exhibit "W" in the proceedings, and it will be the subject of consideration in his Honour's judgment to be delivered in this matter; • Your email of today's date, and this reply, will be marked as Exhibit "Z" in these proceedings; • His Honour is now in a position to deliver his reserved judgment in this matter, where the timing must take into account the paramount interests of the child who is the subject of the appeal: s 9(1) of the Care Act; • Having regard to current COVID-19 restrictions, judgment will be delivered remotely from Court 13A, 86 Goulburn St, Sydney, at 12 noon on Friday, 13 August 2021; • You will be provided with an electronic copy of the judgment by email, which will be sent to the above email address, noting that it has been used by you for this present chain of communication. The other parties will simultaneously receive a copy of the same email with attachments; • The Registrar will also send you a printed copy of the judgment by express post to your post office box; • The legal representatives of the active parties will be informed of the relevant AVL contact details this afternoon; • If you wish to appear by AVL tomorrow you must make the appropriate arrangements with the Newcastle Registry of the Court where special supervised facilities exist for that purpose, as was utilised by you in a past appearance. The Court will not accept an unsecure AVL connection with you in these closed Court proceedings. You must proceed as you think fit." 1. Annexed to the appellant's 12 August 2021 email were two unverified documents. The first document was a copy of an untimed and undated communication addressed to the appellant from NSW Health confirming that he had an appointment to receive a COVID-19 vaccination appointment at the John Hunter Hospital at 10.00am on 16 July 2021, and also confirming that he had a second appointment for 2.15pm on 10 August 2021. There is no evidence as to when the appellant had applied for those appointments. 2. The second document annexed to that email was a copy of a medical certificate dated 16 July 2021 which certified that between 9.30am and 10.45am on that date, the appellant had attended the John Hunter Hospital Covid Vaccination Clinic. The certificate was signed by the Team Leader of that Clinic. 3. Between the time when the appellant was notified on 5 July 2021 of the 16 July 2021 date for the listing of the appeal for him to make his final submissions and that 16 July 2021 date, the appellant had not made any contact with the Court to vary the 16 July 2021 fixture in advance of that date. Furthermore, the appellant made no contact with the Court after 10.45am on 16 July 2021 and before 12 August 2021 to seek to relist the matter to re-open the proceedings for him to make his final submissions. 4. The timing of the appellant's 12 August 2021 email to the Associate coincided with the Associate having beforehand circulated to the parties a schedule of transcript errata prior to the delivery of the judgment. That step was known to the parties, as described at paragraph [67] above. 5. On 12 August 2021, the final form of the transcript errata schedule has been marked in chambers as Exhibit "Y". This occurred after the parties had an opportunity to make suggestions or submissions as to inclusions. On 11 August 2021, the solicitor for the Secretary had provided a number of suggestions for inclusion into the errata schedule. The appellant has never made any such suggestions. 6. The appellant had been made aware that such a schedule would be circulated prior to the delivery of judgment. It would appear that the appellant's email dated 12 August 2021 may have been prompted by those transcript errata communications. Whilst that may be so, it is not necessary to speculate on that question. 7. The appellant's email dated 12 August 2021 was received after these reasons for judgment had been finalised, when proof-reading was underway in readiness for the delivery of judgment on 13 August 2021, but for the additional content under the present topic heading, which has been prompted by the appellant's most recent email. 8. For present purposes, the appellant's email dated 12 August 2021 is assumed to comprise an application by him for an adjournment, notwithstanding that it is belated as to its timing, not in a proper form, and is unsupported by evidence in the conventional sense. 9. In the above circumstances, no valid justification has been advanced by t he appellant for deferring the delivery of the Court's judgment which had otherwise been completed. In such circumstances, judgment is required to be delivered without further delay. The urgency for the delivery of these reasons for judgment is apparent from the content of the reasons within, as is evident in paragraphs [331] to [340], [711] to [716] above. 10. After 27 days of silence, the appellant's belated email demanding a timetable for submissions comes too late. To accede to that request at this time would be contrary to the requirements of the proper administration of justice where the appellant has beforehand had many procedural indulgences, where he has not complied with the Court's directions, and where he has ignored the Court's procedural requirements. 11. The appellant has had timely access to all the materials that were needed for him to make his submissions before now. At this point, his demand for a further procedural indulgence must be weighed along with the competing interests of his daughter who is experiencing mental suffering from the effects of his delaying litigation conduct. The Secretary's interests and the public interest in achieving finality of the litigation must also be weighed and taken into account. 12. In balancing those interests, applying the requirements of s 9(1) and s 94(1) of the Care Act, which require expeditious disposition of the proceedings with the safety, welfare and well-being of the child in mind as the paramount consideration, the appellant's demand for a delay must be seen to be subservient to the child's interests. 13. It would be an affront to the proper administration of justice to delay giving judgment in this case on the basis of the appellant's 12 August 2021 email, or any of his earlier emails, whether considered individually or cumulatively. 14. In arriving at that view, due regard has been given to the overriding purpose of facilitating the just, quick and cheap resolution and disposition of the real issues in the proceedings before this Court: s 56(1) of the Civil Procedure Act 2005 (NSW) ("CP Act"). 15. The appellant, as a person with a relevant interest in the proceedings, has not conducted himself in a manner that was in conformity with his duty to assist the Court to achieve that overriding purpose. Instead, he has acted in a dilatory, unreasonable, and unhelpful manner in this litigation. 16. That much is evident from the appellant's litigation misbehaviour as described earlier in these reasons, including his failure to file and serve his evidence in a timely manner, in accordance with the Court's directions, or at all: s 56(2), (3), (4) and (5) of the CP Act. A review of the history of these proceedings shows that the appellant, by his litigation behaviour, has not assisted in furthering the objects of case management of these proceedings: s 57 of the CP Act. 17. The appellant's belated 12 August 2021 email demand for a timetable for submissions, which is in effect an application to either re-open or adjourn the proceedings, must be determined according to the dictates of justice, that is, not only what is just to him, but also what is just to the other parties with a relevant interest: s 58(1) of the CP Act. 18. In considering that question, alongside the appellant's procedural failures and non-compliance with s 56 and s 57 of the CP Act as outlined above, the considerations of s 58(2) of that Act are important matters to take into account. 19. In that regard, the issues in these proceedings have been rendered needlessly more difficult and complex by the appellant's litigation conduct: s 56(2)(b)(i) of the CP Act. The appellant has not acted with the appropriate degree of expedition in any relevant sense since filing his appeal on 7 January 2020: s 56(2)(b)(ii), (iv), (v) of the CP Act. 20. In addition to those factors, the child the subject of the proceedings has rights that must be considered to be paramount to those of the appellant: s 9(1) of the Care Act. Furthermore, the child must be afforded the full force and benefit of her statutory right to have the proceedings finalised as expeditiously as possible in order to minimise the effect of the outstanding proceedings on her: s 94(1) of the Care Act. 21. The latter consideration must be given full force in this case in preference to the appellant's interests where the uncontested evidence is that the proceedings, whilst unresolved, continue to have an adverse and detrimental effect on the safety, welfare and well-being of the child. In that regard, she is anxious, depressed and suffers from insomnia. That is a most untoward circumstance for a 12 year old girl to bear. She is entitled to know that the proceedings have been brought to a timely end at this point so as to enable her to get on with her life, secure in the knowledge that her rights have been respected, acknowledged, and that she remains protected from harm from the appellant. 22. The appellant's demand for a delay in the finalisation of the proceedings at this late stage is a breathtaking display of self-entitled conduct whereby he seeks to place his own interests ahead of those of his child. That observation is not just that of the Court, but it also represents the belief of the child herself, as observed at paragraph [886] above, citing Exhibit "F", paragraph 6. The child's views in that regard bear repetition for the appellant's better understanding of her position: "[Child's name] instructs me that she does not believe that these Court proceedings are a result of her father's love for her but instead continue only because he wants to 'win' so that he can tell people how clever he is in Court. It makes her very sad and angry that he does this whilst knowing that she does not wish to live with him ever again." [Exhibit "F", paragraph 6] 1. The evidence before the Court indicates that the proceedings must not be adjourned or delayed any further. The Court will now proceed to make the required dispositive orders to give effect to the reasons that are identified within the body of this judgment. PART F – DISPOSITION AND ORDERS 1. It therefore remains to identify the dispositive remarks, orders, and ancillary matters. Disposition 1. Nothing the appellant father has said during the course of these proceedings justifies a re-agitation and reconsideration of the establishment issue that was properly determined in the Children's Court. The Children's Court Magistrate dealt with that issue comprehensively, and correctly. The evidence overwhelmingly establishes that at the time of the child's removal from parental care, she was in need of care and protection within the meaning of s 71(1)(a), (c) and (e) of the Care Act. This continues to remain so insofar as the child needs protection from the appellant. There is no need for an amended care plan. The appellant has not succeeded on any substantive issue that has been identified in his appeal. The child is still at risk of harm from him if he were to have unsupervised contact with her. The child does not want that to occur. Accordingly, the appellant's appeal must be dismissed. Orders 1. The Court makes the following orders: 1. The appellant's summons commencing the appeal filed on 7 January 2020 is dismissed; 2. The orders made by the Children's Court on 12 December 2019 are confirmed; 3. The transcript of the proceedings and the Exhibits in these proceedings are to remain with the court file pending the further order of this Court or a superior Court; 4. Pursuant to s 200A of the District Court Act 1973 (NSW), a copy of the transcript of these proceedings and these reasons for decision are to be referred to the Registrar of the Court for referral to the Attorney General for the State of NSW for the consideration of the implications of the appellant's disrespectful behaviour in Court; 5. The Secretary of the Department of Communities and Justice, is directed to file and serve, within 7 days of today's date, a formal notice of motion with any supporting affidavit evidence, returnable in Sydney on Friday 27 August 2021, concerning the application for costs made pursuant to s 88 of the Children and Young Persons (Care and Protection) Act 1998 (NSW); 6. The appellant may appear at the hearing of the notice of motion referred to in order (5) above by means of an AVL connection from Newcastle Court house. To facilitate that hearing he is required to beforehand make appropriate timely arrangements with the Newcastle Registry for AVL facilities to be made available to him if he wishes to do so; 7. A PDF copy of these reasons is to be forthwith provided to the appellant by email to all of his email addresses from which he has communicated in these proceedings; 8. The Registrar is to forthwith provide a printed copy of these reasons to the appellant by express post sent to the post office box to which previous correspondence from the Court has been sent to the appellant; 9. Liberty to the parties to apply on 7 days' notice if further or other orders are required. ********** APPENDIX A Transcript references to appellant's disrespectful behaviour in Court 1 02.11.2020 : D6, T85.50 – T86.5 2 02.11.2020 : D6, T86.50 – T87.40 3 02.11.2020 : D6, T91.7 4 02.11.2020 : D6, T93.26 5 02.11.2020 : D6, T95.1 – T95.4 6 02.11.2020 : D6, T105.17 – T105.26 7 02.11.2020 : D6, T113.40 – T114.4 8 02.11.2020 : D6, T121.33 9 02.11.2020 : D6, T135.42 10 02.11.2020 : D6, T140.31 11 02.11.2020 : D6, T142.33 12 04.11.2020 : D8, T208.14 13 04.11.2020 : D8, T209.49 14 04.11.2020 : D8, T214.43 15 02.12.2020 : D12, T316.4 – T316.18 16 15.12.2020 : D14, T376.31 – T376.41 17 15.12.2020 : D14, T400.32 – T400.44 18 09.02.2021 : D18, T17.16 19 12.03.2021 : D20, T4.5 20 12.03.2021 : D20, T12.47 – T13.9 21 19.03.2021 : D21, T11.42 – T12.2 22 19.03.2021 : D21, T16.21 – T17.4 23 19.03.2021 : D21, T21.38 – T21.40 24 19.03.2021 : D21, T25.22 25 19.03.2021 : D21, T26.14 – T26.22 26 19.03.2021 : D21, T26.38 – T26.40 27 19.03.2021 : D21, T26.49 – T26.50 28 19.03.2021 : D21, T30.3 – T30.11 29 19.03.2021 : D21, T38.34 – T38.36 30 19.03.2021 : D21, T45.20 – T45.45 31 19.03.2021 : D21, T47.43 – T48.29 32 19.03.2021 : D21, T49.50 33 09.04.2021 : D23, T7.29 34 09.04.2021 : D23, T10.28 35 09.04.2021 : D23, T11.1 – T12.23 36 09.04.2021 : D23, T13.15 – T13.18 37 09.04.2021 : D23, T15.28 – T15.29 38 09.04.2021 : D23, T16.3 – T16.18 39 09.04.2021 : D23, T17.1 – T18.4 40 09.04.2021 : D23, T18.18 – T18.28 41 09.04.2021 : D23, T19.28 – T19.29 42 09.04.2021 : D23, T19.48 – T20.4 43 09.04.2021 : D23, T20.12 – T20.35 44 09.04.2021 : D23, T22.16 – T22.26 45 09.04.2021 : D23, T22.40 – T22.48 46 09.04.2021 : D23, T25.39 – T25.40 47 09.04.2021 : D23, T26.1 – T26.2 48 09.04.2021 : D23, T37.11 – T37.20 49 09.04.2021 : D23, T39.24 – T39.30 50 09.04.2021 : D23, T45.34 – T45.43 51 24.05.2021 : D24, T16.3 – T16.6 52 24.05.2021 : D24, T17.6 – T17.16 53 24.05.2021 : D24, T17.39 – T18.16 54 24.05.2021 : D24, T18.50 – T19.8 55 24.05.2021 : D24, T19.38 – T20.3 56 24.05.2021 : D24, T21.37 – T21.41 57 24.05.2021 : D24, T25.16 – T25.17 58 24.05.2021 : D24, T42.1 – 42.21 59 24.05.2021 : D24, T48.16– T48.28 60 24.05.2021 : D24, T53.21 – T54.3 61 24.05.2021 : D24, T54.45 – T55.11 62 24.05.2021 : D24, T58.14 – T58.26 63 24.05.2021 : D24, T67.33 – T67.48 64 24.05.2021 : D24, T68.27 – T69.8 65 24.05.2021 : D24, T73.5 – T73.9 66 24.05.2021 : D24, T76.44 – T77.21 67 25.05.2021 : D25, T83.10 – T83.17 68 25.05.2021 : D25, T94.35 – T95.14 69 25.05.2021 : D25, T96.41 – T97.14 70 25.05.2021 : D25, T100.40 – T101.2 71 25.05.2021 : D25, T104.5 – T105.48 72 25.05.2021 : D25, T114.10 – T114.31 73 25.05.2021 : D25, T116.26 – T117.11 74 25.05.2021 : D25, T123.46 – T124.49 75 25.05.2021 : D25, T125.17 – T127.16 76 25.05.2021 : D25, T145.45 – T147.13 77 25.05.2021 : D25, T148.20 – T149.27 78 25.05.2021 : D25, T153.29 – T153.37 79 25.05.2021 : D25, T154.11 – T156.19 80 25.05.2021 : D25, T156.21 – T156.47 81 25.05.2021 : D25, T158.17 – T158.38 82 25.05.2021 : D25, T161.15 – T161.22 83 26.05.2021 : D26, T200.41 – T201.6 84 26.05.2021 : D26, T201.13 – T201.46 85 26.05.2021 : D26, T202.2 – T202.45 86 26.05.2021 : D26, T203.45 – T204.24 87 26.05.2021 : D26, T205.4 – T205.22 88 26.05.2021 : D26, T214.35 – T215.11 89 26.05.2021 : D26, T220.10 – T220.19 90 26.05.2021 : D26, T239.45 – T239.50 91 26.05.2021 : D26, T243.8 – T243.23 92 26.05.2021 : D26, T244.1 – T244.42 93 26.05.2021 : D26, T245.7 – T246.28 94 26.05.2021 : D26, T247.20 – T247.47 95 27.05.2021 : D27, T256.16 – T256.42 96 27.05.2021 : D27, T332.20 – T332.34 97 28.05.2021 : D28, T347.38 – T348.35 98 28.05.2021 : D28, T349.26 – T350.12 99 28.05.2021 : D28, T352.35. – T353.15 100 28.05.2021 : D28, T422.39 – T422.46 101 31.05.2021 : D29, T488.26. – T488.34 102 01.06.2021 : D30, T549.21 – T551.44 103 01.06.2021 : D30, T552.10 – T552.49 104 01.06.2021 : D30, T554.4 – T555.31 105 02.06.2021 : D31, T601.24 – T602.23 106 02.06.2021 : D31, T637.46 – T639.8 107 03.06.2021 : D32, T650.23 – T651.1 108 03.06.2021 : D32, T657.37 – T658.23 109 03.06.2021 : D32, T665.35 – T666.23 110 03.06.2021 : D32, T716.20 – T718.6 111 03.06.2021 : D32, T718.13 – T721.45 112 04.06.2021 : D33, T744.12 – T745.32 APPENDIX B (83958, pdf) 28 May 2021 – Day 34, T365.2 – T372.11 Amendments 13 August 2021 - inserted link to Appendix B 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: 13 August 2021