District Court New South Wales Medium Neutral Citation: KH v Secretary, Department of Communities and Justice [2021] NSWDC 498 Hearing dates: 24, 25 August; 18 September; 1, 23 October; 6, 20 November; 4 December 2020; 1 April, 3, 4, 5, 6, 7, 10, 11, 12, 13, 14 May and last submissions 16 July 2021 Date of orders: 21 September 2021 Decision date: 21 September 2021 Jurisdiction: Civil Before: Judge Levy SC Decision: See paragraph [652] for orders Catchwords: CHILD CARE APPEAL – rehearing of child care and protection proceedings where final orders were made in the absence of the child's mother in the Children's Court at Port Kembla on 4 March 2019 – finding that procedural fairness was not afforded to the mother – finding made pursuant to s 83(2) and s 83(8A) of Children and Young Persons (Care and Protection) Act 1998 concerning the existence of a realistic possibility of the child the subject of the appeal being restored into the parental responsibility of the appellant within a reasonable period – requirement for an Amended Care Plan to be prepared to reflect findings before final orders are made – interim preservation of orders made by Children's Court pending final orders Legislation Cited: Children and Young Persons (Care and Protection) Act 1998, Pt 1, Pt 2, s 9, s 10A, s 28, s 78A, s 79, s 83, s 84, s 90, s 91, s 93, s 94, s 99B, s 105, s 107 Civil Procedure Act 2005 (NSW), s 26 UCPR Sch 7, cl 3(e) Cases Cited: D v C; Re B (No 2) [2018] NSWCA 310 The Secretary of the Department of Communities and Justice (DCJ) and Fiona Farmer [2019] NSWChC 5 Vaccaro v MLC Limited [2016] NSWDC 85 Category: Principal judgment Parties: KH (Appellant) Secretary, Department of Communities and Justice (Respondent 1) No appearance for second respondent father No appearance for third respondent grandmother Mr D Schier, Independent Children's Representative Representation: Counsel: In Person (Appellant) Mr B Dean (Respondent 1) Mr D Schier, solicitor (Independent Legal Representative) Solicitors: Crown Solicitor (Respondent 1) File Number(s): 2019/105176 Publication restriction: Non-publication order Judgment Table of Contents PART A - INTRODUCTION [2] – [70] Child care appeal [3] Non-publication order [4] – [5] Summary of outcome [6] – [35] Appellant's self-representation [36] Termination of legal aid grant [37] – [54] Procedural background of the appeal [55] – [59] Final orders of the Children's Court [60] – [67] Issues for determination [68] Applicable legal principles [69] – [70] PART B - APPELLANT'S CIRCUMSTANCES, EVIDENCE REVIEW [71] – [321] Credibility and reliability of appellant's testimony [72] – [86] Appellant's circumstances [87] – [156] Family background [94] – [102] Unaddressed sexual assault in childhood [103] – [104] Difficulties in appellant's adolescent years [105] Non-participation of the appellant's mother [106] – [111] Early motherhood with first child at age 16 years [112] The birth of the subject child in 2011 [113] – [117] Educational and work achievements [118] – [124] Housing and neighbour issues [125] – [129] Departmental involvement in 2015 [130] – [134] Difficulties with teachers at son's school [135] – [137] Circumstances of child's removal [138] – [145] Appellant's PTSD [146] – [147] Health issues leading to involuntary hospitalisation [148] – [151] Ex-parte decision in Children's Court on 4 March 2019 [152] – [156] The appellant's conduct of the appeal [157] – [184] Evidence in the Children's Court proceedings [185] – [189] Evidence in the appeal proceedings [190] – [197] Affidavit evidence in the appeal [192] – [193] Oral evidence in the appeal [194] – [197] Concession by appellant [198] – [201] Review of affidavit evidence in both proceedings [202] – [321] Amanda Whitfield – first affidavit – 25 October 2017 [207] – [211] Amanda Whitfield – second affidavit – 14 December 2017 [212] – [216] Amanda Whitfield – third affidavit – 22 February 2018 [217] – [218] Amanda Whitfield – fourth affidavit – 9 April 2018 [219] – [222] Emily Wright – first affidavit – 9 November 2018 [223] – [224] Emily Wright – second affidavit – 19 February 2019 [225] – [228] Emily Wright – third affidavit – 31 July 2019 [229] – [231] Tanya Bazley – first affidavit – 7 July 2020 [232] – [239] Tanya Bazley – second affidavit – 17 November 2020 [240] – [244] Tanya Bazley – third affidavit – 20 April 2021 [245] – [262] Tanya Bazley – oral evidence [263] – [264] Yvonne Gray – affidavit – 28 September 2020 [265] – [268] Addendum to care plan – 8 April 2021 [269] – [272] Appellant's first affidavit – 26 October 2017 [273] Appellant's second affidavit – 12 December 2017 [274] Appellant's third affidavit – 5 September 2018 [275] – [283] Appellant's fourth affidavit – 25 November 2018 [284] – [288] Appellant's fifth affidavit – 1 March 2019 [289] – [291] Appellant's sixth affidavit – 29 May 2019 [292] – [294] Appellant's seventh affidavit – 12 July 2019 [295] – [305] Appellant's eighth affidavit – 30 July 2020 [306] – [320] Appellant's ninth affidavit – 26 April 2021 [321] PART C - OPINION EVIDENCE [322] – [551] Aboriginal Medical Service correspondence [323] – [335] Dr Heiner's correspondence and report [336] – [347] Mr Di Martino's correspondence [348] – [355] Mr Di Martino's oral evidence [356] – [410] Mr Wootton's parenting capacity assessment [411] – [419] Mrs Griffiths' parenting capacity assessment [420] – [431] Mrs Griffiths' oral evidence [432] – [446] Mr Ralph's parenting capacity assessment [447] – [504] First affidavit – 5 March 2021 [447] – [480] Second affidavit – 23 April 2021 [481] – [487] Mr Ralph's oral evidence [488] – [504] Evaluation of opinion evidence [505] – [521] PART D - CONSIDERATION OF ISSUES FOR DETERMINATION [522] – [650] Consideration of Issue 1 – Procedural fairness [523] – [576] Consideration of Issue 2 – Weight of child's wishes [577] – [598] Consideration of Issue 3 – Possible restoration (4 March 2019) [599] – [612] Consideration of Issue 4 – Possible restoration (At present) [613] – [614] Consideration of Issue 5 – Possible restoration (Future) [615] – [643] Consideration of Issue 6 – Amended care plan [644] – [650] PART E – CONCLUSION AND ORDERS [651] – [652] Dispositive conclusions [651] Interim orders [652] STRUCTURE OF THESE REASONS 1. This protracted child care appeal brought by a self-represented appellant involved 19 non-continuous listing days and required the examination of voluminous assembled material that spanned a considerable period of time. For the assistance and the understanding of the parties and the persons affected by the outcome, including those who will be required to act in accordance with the conclusions reached and the orders to be made in these proceedings, these reasons for decision are structured as follows: PART A : Introduction; non-publication order; summary of outcome; appellant's self-representation; termination of appellant's grant of legal aid; procedural background; final orders of the Children's Court that dissatisfied the appellant; issues for determination; applicable legal principles: See paragraphs [2] to [70] below. PART B : Factual matters concerning the appellant's circumstances and the removal of the child from her care; conclusion on the credibility and the reliability of the appellant's testimony; evidence review comprising the evidence made available to the Children's Court and in the evidence adduced in the appeal: See paragraphs [71] to [321] below. PART C : Opinion evidence from appellant's treating health care practitioners; opinion evidence from successive parental capacity assessors and the conclusions to be drawn as to the reliability of that evidence in relation to the issues to be decided: See paragraphs [322] to [521] below. PART D : Consideration and determination of the issues calling for decision: See paragraphs [522] to [650] below. PART E : Conclusion and orders: See paragraphs [651] to [652] below. PART A – INTRODUCTION 1. At the outset of these reasons, after identifying the nature of the case and the effect of a non-publication order, it is appropriate to briefly identify the outcome of the proceedings in summary form before proceeding to outline matters of overview, the appellant's self-representation in the absence of availability of legal aid, the procedural background, the appealed orders, the issues calling for decision, and the legal principles that govern the proceedings. Child Care Appeal 1. These reasons concern an appeal by a self-represented litigant who is dissatisfied with a decision of the Children's Court sitting at Port Kembla in child protection proceedings. The Children's Court proceedings were decided on the papers in the absence of the appellant. This raises a question of procedural fairness. The proceedings are governed by the provisions of the Children and Young Persons (Care and Protection) Act 1998 ("Care Act"). The appeal proceeded as a hearing de novo pursuant to s 91(1) and (2) of that Act. Non-publication order 1. An order has been made pursuant to s 105 of the Care Act, prohibiting the publication of the name of the child the subject of the proceedings, or the publication of any information or details of any other parties, witnesses or persons named in evidence, so as not to identify the child who is the subject of the appeal. 2. To preserve the anonymity of the child who is the subject of the appeal, the child, the mother, the child's maternal grandparents, and the father of the child, will be referred to by those terms. The father of the child and the maternal grandmother of the child, both of whom have been named as respondents to the appeal, have chosen not to participate in the proceedings, despite their obvious interest in the proceedings. Summary of outcome 1. On a consideration and evaluation of the entire array of evidence, I have concluded that the submission made on behalf of the Secretary, Department of Communities and Justice ("DoCJ"), to the effect that the appeal should be dismissed, and that the appealed decision of the Children's Court should be confirmed, should not be accepted. 2. As will be explained in these reasons, contrary to that submission, the dispositive conclusions reached in this appeal are that it must necessarily succeed, and that a new care plan should be prepared to reflect the findings identified in these reasons in order to fundamentally re-set the respective rights and responsibilities of the parties. 3. That outcome compellingly arises because, first, the record comprising the transcript of the Children's Court proceedings indicates that the appellant was denied procedural fairness. That is not a conclusion arrived at lightly. That event has had a pervadingly adverse impact and effect upon the appellant's circumstances, and secondly, the consideration of the merits of the appellant's case, based on the evidence received in this Court, which was not available to be considered or explored in the Children's Court, compels the conclusion that the appeal should succeed, and that remedial re-set orders should be made to govern the future relationships between the respective parties. 4. At this point it is convenient to briefly identify four sequential factors which have contributed to the finding that a denial of procedural fairness occurred in the Children's Court. 5. First, the appellant's legal aid lawyer withdrew from the Children's Court proceedings in the absence of the appellant without prior notice. That withdrawal occurred in response to a suggestion of the Children's Court Magistrate in circumstances where the appellant had beforehand, in an apparently courteous telephone call, made it known to the Court that she was experiencing a delay in attending at the hearing. 6. Secondly, in those circumstances, after a delay of about an hour, by which time the appellant had not appeared, the appellant's lawyer acquiesced, without demur, to an inquiry from the Children's Court Magistrate which suggested that she might seek leave to withdraw from the proceedings in the continuing absence of the appellant. This occurred without further investigation of the circumstances that influenced the appellant's delayed arrival. The result was that no-one was present in Court to advocate for the appellant's interests, as had been pre-arranged, and which the appellant was entitled to assume would occur because she thought she had appropriate legal representation. 7. Thirdly, the lawyer retained by the Secretary, in the absence of a contradictor, then proceeded to submit a factually incorrect construction of prior material events that did not correctly reflect the circumstances as to why an earlier listing of the case had not proceeded in the Children's Court, when in fact the reason was that the appellant had been hospitalised at that time, thus preventing her from appearing. 8. Fourthly, in the absence of a contradictor, the Children's Court Magistrate acted upon the erroneous misapprehension of the events proffered by the legal representative of the Secretary, and then dealt with the matter on the papers in the absence of the appellant on the implied but nevertheless incorrect and unexplored assumption that the appellant would not be intending to contest the application for the final orders which were being sought by the Secretary where, beforehand, the content of those orders had not been made known to the appellant. 9. The sequence of events which has led to the above conclusions will be identified, examined and explained in more detail at a later point in these reasons in the consideration of Issue 1. 10. At this point it is appropriate to record that counsel who appeared for the Secretary in this Court was not the Secretary's legal representative in the appealed Children's Court proceedings. Overview 1. The appeal is brought as of right by a self-represented litigant, a 46 year old Aboriginal woman who identifies her heritage as being of the Gamilaroi nation and Dharug people of the Eora nation. She resides in the Illawarra region. Her son, the subject of the appeal, is now aged almost 10 years. He was removed from her parental care in August 2017 in traumatic circumstances when he was aged almost 5 years. The child's father, who is also Aboriginal, has not participated in the proceedings. 2. In this appeal, on the basis of a reflective insight that the appellant gained in hindsight during the course of the hearing, she has now properly and pragmatically conceded that the child's removal from her parental care was legally justified. 3. Nevertheless, she continues to rail about the traumatic circumstances, and the systemic failure to consider less intrusive alternatives that were available to DoCJ at the time, instead of the final orders that were sought. She consequently argues that her present circumstances justify an order for restoration, on conditional terms that are protective of the child. 4. On 4 March 2019, the principal issue before the Children's Court in the appealed decision was whether or not the removal of the child and the transfer of his care from his mother, the appellant, to the maternal grandmother, should be made permanent, or whether a less intrusive alternative pathway towards the restoration of the child to his mother was realistically possible. 5. On the day of the hearing in the Children's Court, in circumstances where the appellant was late in arriving at Court without intentional fault on her part, the Children's Court made final orders on the papers in her absence. Those orders allocated parental responsibility for the child to his maternal grandmother, the appellant's mother, with the Minister to retain responsibility for contact arrangements. 6. The appellant is deeply dissatisfied and angered by those orders, and with the circumstances in which they were made. This occurred after the legal representative who had been retained to appear for her had withdrawn from the proceedings without prior notice to her. 7. The appellant is also dissatisfied and angered by the ensuing dystopic and cruelling repercussions for her and for her son because since time has passed, the prospects for restoration have now become much more complicated by the consequential and deleterious alteration to her own life's circumstances. In that regard, the effluxion of time has not only exacerbated her difficulties, but it has also served to entrench the ongoing adverse repercussions of the orders made in her absence. This has made it much more difficult for the appellant to restore the position she was in before those orders were made, as best can be achieved in the circumstances. 8. That changed dynamic now presents challenges to the task of re-setting the relationships of the parties, having regard to the interests of justice in the context of the paramount best interests of the child. 9. In the Children's Court, the appellant was intending to argue that there was a realistic possibility of her child being restored into her care within an identified time frame, consistent with a position adopted by DoCJ some months earlier, before she was hospitalised. That argument was not presented because of a combination of circumstances over which she had little if any control, and which at the time prevented that argument from being made on her behalf. The ensuing circumstances have been tragic, and damagingly cruel to both the mother and her son. 10. Whilst time has passed since the orders were made by the Children's Court, and the clock cannot be wound back on the events complained of by the appellant, a question to be considered, amongst many others, is whether, in the paramount best interests of the child, co-incidental with the interests of justice, the circumstances justify a material re-set in favour of restoration of the child to the appellant, notwithstanding the content of some sceptically critical opinions that have been expressed by parenting capacity assessors engaged by the Secretary, who have argued to the contrary. 11. The appeal has become protracted and complicated by many pre-existing elements of trauma and disadvantage affecting the appellant that have been brought to light, and which have had a cumulatively adverse impact upon her. 12. Those adverse factors include the effects of what is now increasingly well understood in enlightened sections of society as being underlying historical issues of intergenerational trauma affecting indigenous people resulting from the events known as the Stolen Generations, lasting emotional trauma from an unaddressed and unacknowledged sexual assault that was inflicted upon the appellant when she was a child aged about 10 years, her unsurprising related mental health issues, including a post-traumatic stress disorder ("PTSD") and major depression, a consequential history of reactive alcohol abuse, related social disadvantage, including the unavailability of suitable safe housing free from assaults and harassment by mal-disposed and abusive neighbours, and the super-added unavailability of legal assistance for the conduct of this appeal, the latter factor being a glaring stand-out complication. Those factual matters will be reviewed in greater detail at a later point in these reasons. 13. A crucial factor of significance to this appeal is that when the appellant's legal aid lawyer withdrew from the Children's Court proceedings, the appellant was left without a representative voice for her interests in those proceedings. As a result there was no-one present in Court to contradict or rebut a significantly incorrect statement made by the legal representative of DoCJ. 14. That misstatement made on behalf of the Secretary seems to have been persuasively influential on the outcome in the Children's Court, having had the effect of portraying the appellant's commitment to her case in a poor light. An unfortunate denial of procedural fairness then followed, where orders were made on the basis of a minute of order not seen by the appellant. Those circumstances will also be examined in closer detail at a later point in these reasons. 15. Subsequent to the final orders made by the Children's Court, after the appeal had been filed, on 25 February 2020, the appellant's grant of legal aid that was formerly made available to her for this appeal, was terminated. 16. Since that time, the appeal became protracted because at times, the appellant found the task of representing herself to be more than just merely daunting. This became evident to the point where, at times, she became obviously overwhelmed and appeared discombobulated to the point of exasperation. 17. This required that she be given a series of procedural indulgences, in fairness to her, particularly in view of the circumstances in which the initial disposition of the proceedings in the Children's Court occurred peremptorily, and because of the traumatic consequences to her, which have followed on from that outcome. 18. The appellant explained that with so many things adversely affecting her life she was having difficulty explaining herself properly. It goes without saying that she could have presented a more coherent account of her situation with the help of a skilled advocate. 19. Despite the many disadvantages the appellant has had to face in her life, she has tenaciously made some impressive achievements. This is evidenced by the fact she was a successful mother to another son who is now an independent adult, and by her impressive multiple educational accomplishments in her pursuit of tertiary education, and in pursuing a meaningful career, until interrupted by some adverse events. 20. More recently, in the face of triggering traumatic circumstances, the appellant has re-engaged in pursuing psychological treatment for her trauma-related issues with a suitably qualified, experienced and insightful therapist, who remains committed to supporting her in her need to deal with her mental health issues and in her quest in seeking to demonstrate her fitness to be allocated the responsibility for the care of her young son. Appellant's self-representation 1. Since 25 February 2020, the appellant has had no choice but to remain self-represented. Attempts to obtain pro bono and other forms of charity-based legal assistance for the appellant have unfortunately been unsuccessful. No criticism of those pro bono schemes arise from such unavailability as the over-stretched and limited nature of those goodwill resources is well understood by courts. In the appeal it was apparent that the burden of self-representation led to the appellant becoming at times overwhelmed and inarticulate when she became stressed by her upwelling emotions. Termination of legal aid grant 1. As the appellant had been granted legal aid for the Children's Court proceedings, and as those proceedings were determined on the papers in her absence, she had the relatively short term benefit of a continuation of the grant of legal aid for the appeal. However, the grant was ultimately terminated on 25 February 2020. 2. The termination of the grant of legal aid has had consequential burdensome effects on the course of the appeal. It is therefore appropriate to identify the surrounding circumstances which led to the termination of that assistance, and the events that followed. 3. The reasons for the termination of the appellant's grant of legal aid for this appeal became apparent on a review of the several hundred pages of annexures to the appellant's affidavit of 30 July 2020, copied at Exhibit "1", Vol 3, Tab 25, pp 789 – 1109. 4. Whilst that affidavit and its extensive annexures will be the subject of a separate review later in these reasons in connection with an overall review of the evidence, it is appropriate at this point to review the legal aid aspect as it provides some relevant explanatory detail as background to the assessment of the appellant's parental capacity. 5. In the period between 24 September 2019 and 17 February 2020, there was some lengthy correspondence from Legal Aid NSW to the appellant. This was included as annexed exhibits to the appellant's 30 July 2020 affidavit, along with a copy of a 7 day Notice of Intention to File Notice of Ceasing to Act which was dated 17 February 2020, having the effect of terminating the grant of legal aid on 25 February 2020: Exhibit "1", Vol 3, Tab 25, pp 1000 – 1017. 6. Ordinarily, such correspondence would have been regarded as being privileged, and it would not have featured in the evidence. However, whether knowingly or not, it matters not which, the appellant has waived that privilege by including the material in her affidavit. At the time of tender of the exhibits it was not apparent that such correspondence formed part of the documentary evidence as neither party alerted the Court to that material or its significance. 7. A review of the legal aid correspondence in question is instructive. In normal circumstances, in litigation, it would not be necessary to comment on correspondence of that kind, but in this case it becomes relevant to do so in brief terms because it contains evidence which in part serves to explain the tortuous path this appeal has taken, and it explains something of the beleaguered position in which the appellant finds herself, and which has made the appeal more difficult for her to conduct. 8. On 24 February 2019, the Child and Family Advocacy Service of Legal Aid NSW wrote to the appellant suggesting she should carefully consider whether she wished to proceed with her appeal. This was in the context that the appellant was pressing for a professional Aboriginal cultural assessment that dealt with her parenting capacity, which was a material issue in dispute. The context of her pursuit of that assessment was her concern that Aboriginality issues had not been appropriately taken into account in the proceedings. 9. The 24 February 2019 letter from Legal Aid NSW referred to anticipated delays and difficulties that were likely to be experienced in obtaining an Aboriginal Assessor to undertake a parenting capacity assessment through the Children's Court Clinic. The letter records that a suitable assessor, Mrs Chryne Griffiths had been located in Canberra, and it also records that Legal Aid NSW had refused to contribute to the cost of that assessment. 10. Fortunately, and most fairly, as would be expected of a model litigant in such circumstances, DoCJ agreed to cover the cost of the assessment, but the delays which then followed, only served to exacerbate the appellant's personal circumstances and difficulties. 11. The 24 September 2019 letter from Legal Aid NSW reviewed the appellant's PTSD condition, her general health, her problematic housing situation, and the fact that a report following an Aboriginal assessment would take some 6 to 8 weeks to obtain. It was noted that this would not fit in with the forthcoming hearing of the appeal which was scheduled to commence on 28 October 2019. Plainly, that listing was premature, notwithstanding the statutory urgency. This ultimately resulted in that hearing date being vacated by a facilitative case management order of the Court made by the Care List Judge on 9 October 2019. 12. The 24 September 2019 letter from Legal Aid NSW properly drew the appellant's attention to the possibility of a grant of legal aid being the subject of a merit review if the proposed parenting capacity assessment ultimately did not recommend that the child the subject of the appeal be returned into her maternal parental care: Exhibit "1", Vol 3, Tab 25, pp 1011 – 1015. 13. On 10 February 2020, the appellant's legal aid lawyer wrote to her following receipt of Mrs Griffiths parenting capacity report dated 30 January 2020, advising her that the grant of legal aid had been terminated on a consideration of the opinions within the report of Mrs Griffiths. The appellant then asked for that decision to be reconsidered. 14. On 17 February 2020, the appellant's legal aid lawyer wrote to the appellant to advise her that the material she had put forward had been considered, but the decision to terminate the grant of legal aid was confirmed. In that letter the appellant was also advised by her solicitor to consider not pursuing the present appeal. A Notice of Intention to File Notice of Ceasing to Act was enclosed: Exhibit "1", Vol 3, Tab 25, pp 1000 – 1001. 15. The form and timing of that notice was in accordance with the proper procedure, which was very different to what occurred in the Children's Court on 4 March 2019 when the appellant's assigned legal aid lawyer withdrew from representing her interests in that Court without prior notice to her. 16. The basis for the decision by Legal Aid NSW to terminate the grant of legal aid for the appeal was its assessment of the implications of the parenting capacity report of Mrs Griffiths: Exhibit "1", Vol 4, Tab 30, pp 1586 – 1627. The opinions in that report will be analysed in the appropriate context at a later point in these reasons. 17. On my ultimate review of the evidence as a whole, my assessment of the report of Mrs Griffiths, taken in conjunction with her oral evidence, did not wholly coincide with the assessment made by Legal Aid NSW when it determined the appellant's grant of legal aid should be terminated. That statement is not intended as a criticism of Legal Aid NSW. My assessment is based on my consideration of the more extensive evidentiary materials that were not available to Legal Aid NSW when it made its decision to terminate the appellant's grant of legal aid. 18. Before identifying some relevant details of the appellant's background circumstances it is appropriate to review the procedural background of the appeal and identify the terms of the final orders of the Children's Court which have led to the appeal. Procedural background of the appeal 1. Although the appeal has gone through a tortuous path of interlocutory listings, including an instance of dismissal and subsequent re-instatement before a hearing date was set, it is not relevant to chronicle the details of that interlocutory course in these reasons. 2. In anticipation of the hearing commencing on 24 August 2020, the Secretary prepared a detailed 30 page chronology, cross-referenced to the documentary evidence that was intended to be tendered. 3. Unfortunately, on 24 August 2020 a hearing of the appeal could not commence for valid reasons that affected the self-represented appellant's readiness to proceed. It was plain she needed legal assistance. The hearing of the appeal was therefore stood over for further case management, and it ultimately commenced on 3 May 2021, and it then proceeded, without the appellant having any legal assistance over the course of the ensuing two weeks, until the evidence and the oral submissions concluded. This involved non-consecutive listing days. 4. Those interlocutory delays were permitted in this case because the evidence disclosed that the child the subject of the appeal was in a stable placement with his maternal grandmother, and at that time the anticipated delay was not considered to be particularly detrimental to the child. The delay, which took longer than was initially anticipated, enabled the appellant to pursue other possible sources of legal assistance, albeit unsuccessfully. 5. After final submissions were made on behalf of the Secretary, and from the child's Independent Legal Representative ("ILR"), an order was made providing for the appellant mother to provide her submissions in writing by 4 June 2021. This became necessary as she became overwhelmed by the circumstances and she was experiencing obvious difficulty in making her submissions orally. Due to practical problems and COVID-19 related delays, her written submissions, which were lucid and structured, were subsequently received on 6 July 2021, and then updated on 16 July 2021. Final orders of the Children's Court that dissatisfied the appellant 1. On 4 March 2019, in the appealed proceedings, in a brief hearing, the Children's Court made the following final dispositive orders on the basis of a papers review: 1. Pursuant to s 79(1) of the Care Act, parental responsibility for the child, except for contact, was allocated to the maternal grandmother, until the child reached the age of 18 years; 2. Pursuant to s 79(2)(b) of the Care Act, all aspects of parent responsibility for contact, be allocated to the Minister until the child reached the age of 18 years; 3. Pursuant to s 28 of the Care Act, on or before 4 February 2020, the Secretary was to provide the Court with a report concerning the suitability of the arrangements for the child's care to include matters of placement, physical health, welfare and development, and progress of contact with relatives, including with the mother. 1. In making those orders the Children's Court was satisfied that permanency placement had been appropriately and adequately addressed and the Children's Court was satisfied that there was no realistic possibility of the child being restored to parental care: Exhibit "1", Vol 2, Tab 19. At that hearing on 4 March 2019, neither the child's mother, nor the lawyer who had been retained to represent her, were present to argue to the contrary. 2. Those orders were particularly dissatisfying to the appellant mother because her son, the child who is the subject of those orders, was placed into the care of her own mother, a person with whom she has had a historically angst-ridden relationship breakdown against a background of significant trauma. 3. On the evidence, this appears to be, at least in part, consequential upon an historical parental decision not to pursue or refer to police, the facts and circumstances of a sexual assault committed upon the appellant when she was a child, as she described in her evidence, without contradiction. This is one of the troubling issues that the appellant needs to work through with her treating psychologist, who is aware of that history. 4. The appellant explained, without contradiction, that the childhood sexual assault to which she had been subjected had been covered up and was not reported to authorities. It was apparently not pursued because it was thought, spuriously, if not misguidedly, that the perpetrator, not a family member, was a prominent person in the community. 5. If there was contrary evidence on those matters, this could most likely have been obtained from the appellant's mother, the second respondent to the appeal. Although she has chosen not to appear or participate in the proceedings, she has sought to influence the outcome, at least through her negative commentaries in the parenting capacity assessment process, as will be identified when reviewing the opinion evidence. 6. Absent contradictory evidence, the appellant's account of those events, which was not inherently improbable, is credible, and capable of acceptance. I accept her evidence on that matter and on her many historical descriptions of trauma and disadvantage. 7. At this point, following the appellant's concession made during the course of the hearing as to the establishment issue of the removal of her child being legally justified at the time, it is convenient to identify the remaining issues that call for consideration and determination, and to also identify the applicable legal principles which govern the appeal. Issues for determination 1. The remaining issues requiring consideration in these proceedings are identified in the following convenient order: 1. Whether the effect of the sequence of events which occurred at the Children's Court hearing and in that Court's disposition of those proceedings relevantly gave rise to a denial of procedural fairness. My reasons for determining that question in the affirmative appear at paragraphs [523] to [576] below ("Procedural fairness issue"); 2. What weight should be given to the child's wishes as related in the evidence. My reasons for determining that issue as being of limited determinative significance, appear at paragraphs [577] to [598] below ("Child's wishes"); 3. Whether, as at 4 March 2019, there was a realistic possibility of the subject child being restored to the care of the appellant mother. My qualified reasons for determining that question in the affirmative appear at paragraphs [599] to [612] below ("Possibility of restoration in 2019"); 4. Whether, at the present time, there is a realistic possibility of the subject child being restored to the care of the appellant mother. My reasons for determining that question in the affirmative, with some qualification, appear at paragraphs [613] to [614] below ("Present possibility of restoration"); 5. Whether there is a realistic future possibility of the subject child being restored to the care of the appellant mother. My reasons for determining that question in the affirmative, subject to a staged approach, appear at paragraphs [615] to [643] below ("Future possibility of restoration"); 6. Whether, in light of the determination of the preceding issues, an amended care plan for the child is indicated. My reasons for determining that question in the affirmative appear at paragraphs [644] to [650] below ("Amended care plan"). Applicable legal principles 1. At this point, before reviewing the evidence and determining the above issues, it is relevant to identify some uncontroversial legal principles which apply to these proceedings, as follows: 1. The safety, welfare and wellbeing of the child is the paramount consideration when making decisions within the scheme of the legislation: s 9(1) of the Care Act; 2. The paramount best interests of the child must necessarily be linked to the fundamental procedural requirement that a parent at risk of having a child removed from their care must be afforded procedural fairness in the consideration of whether or not parental responsibility should be allocated to someone other than that parent: D v C; Re B (No 2) [2018] NSWCA 310, at [43], [91]-[92]; 3. Care proceedings are not to be conducted in an adversarial manner and are to be conducted with as little formality and legal technicality as the circumstances permit: s 93(1) and (2) of the Care Act; 4. The rules of evidence do not necessarily apply to care proceedings. However, those rules may be applied to particular parts of the evidence in the proceedings where considered necessary on the grounds of fairness: s 93(3) of the Care Act; 5. In care proceedings, the standard of proof is on the balance of probabilities: s 93(4) and (5) of the Care Act; 6. Care proceedings are expected to proceed as expeditiously as possible in order to minimise the effect of the proceedings on the child and the child's family, and adjournments should be avoided to the extent possible unless there is some cogent or substantial reason for the proceedings to be adjourned: s 94(1) and s 94(4)(b) of the Care Act; 7. Where a child who has been removed from parental care pending final orders of the Children's Court is in a stable placement, the urgency of making orders on grounds of administrative convenience must not override the paramount consideration residing in s 9(1) of the Care Act, nor should any perceived sense of urgency override the fundamental general law requirement that an affected parent be afforded a procedurally fair opportunity to contest disputed factual assertions and opinion evidence upon which the Secretary to the Minister relies when seeking an order for allocation of parental responsibility to someone other than a natural parent; 8. The Aboriginality of a child the subject of care proceedings is an issue that requires special statutory consideration regarding placement: Pt 1 and Pt 2 of the Care Act. In particular, if practicable, where restoration of a child to a parent is not in the best interests of the child, the second preference is for permanent placement with a relative: s 10A(3)(b) of the Care Act; 9. Once the threshold question of the establishment phase of the child safety inquiry has been determined, the consequential question of placement must be addressed. The scheme is explained in the decision of his Honour Judge Johnstone, the President of the Children's Court (as his Honour then was) in The Secretary of the Department of Communities and Justice (DCJ) and Fiona Farmer [2019] NSWChC 5, at [94]-[125], applying s 83 and s 84 of the Care Act, having regard to the permanency placement requirements of s 78A(1) of the Care Act; 10. Where the Secretary has made an assessment of the issue of whether there is a realistic possibility of restoration of the child into parental care and responsibility in accordance with s 83(1) of the Care Act, the Court must decide whether or not to accept the assessment of the Secretary, and if not, the Court may direct the Secretary to prepare a different permanency plan: s 83(5) and (6) of the Care Act; 11. In determining what is a reasonable period for restoration of a child into parental care that period must not exceed 24 months: s 83(8A) of the Care Act. 1. The findings on the issues for determination in this case must be guided by application of those principles. PART B – APPELLANT'S CIRCUMSTANCES; EVIDENCE REVIEW 1. In the paragraphs that now follow I identify my conclusions on the credibility and reliability of the appellant's testimony, followed by a review of the appellant's factual circumstances, including a review of the way she presented in the course of the proceedings, followed by a review of the evidence to be considered in the proceedings. Conclusion on credibility and reliability of appellant's testimony 1. Following my overall consideration of the evidence it is appropriate at this point to identify the conclusions I have reached as to the credibility and the reliability of the appellant's testimony, noting that in these proceedings, such testimony was received in a less conventional and informal manner than would otherwise be the case in proceedings conducted within a different legislative framework where the rules of evidence must be applied: s 91(3) of the Care Act. 2. The effect of the submissions made by the Secretary and the ILR is that the appellant's evidence should be viewed with caution and discounted in terms of its reliability on key points in contention. In those proceedings, those submissions are understandably made considering the content of the historical documentary material in evidence. 3. Accepting that the appellant's evidence must be weighed with caution, particularly as to the genuineness and the timing of a significant concession she made during the course of the hearing, by which she accepted that on 23 August 2017, DoCJ had legal justification for the removal of the child from her parental care unlike her earlier views. 4. After considerable reflection, I have concluded the appellant was an honest witness whose testimony could be relied upon and should be accepted on critical points in contention. In coming to that conclusion, I note and am reinforced in that view by the opinion of the appellant's treating psychologist, Mr Di Martino, who has had clinical contact with her since 2015 to discuss the matters upon which this litigation is based, where he considered that in his clinical contact with her, she was honest: T558.28. I was also impressed by his professional view that she is "not a lost case": T545.20 – T545.26. 5. At the hearing there were many aspects of the appellant's demeanour and responses to questions that were available to be drawn upon to make an adverse assessment of the reliability of the appellant as a witness, However, caution requires that assessment of credibility on demeanour alone is not appropriate, 6. In my view, on a proper and fair analysis, those behavioural and attitudinal matters which were on display when the appellant was angry and frustrated, must be considered, weighed and discounted in view of the emotional content of the proceedings for the appellant, and because she was self-represented in most challenging circumstances, which she no doubt perceived to be oppressive and adversarial to her. 7. The appellant was obviously distracted and heavily burdened by issues that unfortunately frequently affect and disadvantage Aboriginal people in such settings. For her, those burdens also involved some problematic family dynamics, where her own mother, who by description, by her negative input into the several parenting capacity assessments, and by her decision not to participate in the case, appears to be an éminence grise in the proceedings. 8. This is in circumstances where, if there was scope for it, the maternal grandmother could have been a potential contradictor of any critically important factual evidence given by the appellant, yet she has chosen not to involve herself in the proceedings, notwithstanding that she has been joined as a respondent as the Children's Court allocated parental responsibility for the child to her. 9. In my assessment, the appellant's railings about the adverse chaotic events in her life, particularly in relation to how she has been dealt with by DoCJ, by some members of the police force, by her harassing neighbours including some persons doing their bidding, and the Department of Housing, have been unfairly labelled and downplayed as being claims by her of systemic conspiracies against her. On the evidence, I consider that portrayal of her to be fundamentally unfair, and it must be rejected. 10. The appellant has been seriously disadvantaged by the confluence of her life's circumstances. Her explanations for the context of her various adversities have understandably downplayed her own role in those events. This is in the context of this case, where her role as a safe and good enough mother is called into question, and where she in effect carries the onus of proof to positively establish her credentials. 11. In that sense, it is understandable that in her beleaguered situation, she has downplayed and sought to place some different complexions on some negative factors within those events, in contrast to the more adversarially-driven constructions raised by others. 12. Considering her self-representation and the multitude of emotion-laden issues she has had to grapple with in this case, where she felt she was under attack, and where she has issues with self-esteem and assertion, as explained in the medical evidence, her downplaying of some of the negative factors was understandable in that context, and not dishonest. 13. There is little room for doubt that on the material presented in this case, if the appellant had been represented and was benefitted by having an advocate of ordinary skill and competence appearing for her to structure her evidence and her approach to her case, she would most likely have presented as a much smaller and faster moving target for the criticisms that have been levelled against her, and her evidence would have been much more focussed on the issues. 14. In these proceedings, which are required to be conducted in a non-adversarial manner (s 91(3) of the Care Act), and with as little formality and legal technicality and form as the circumstances of the case permit (s 93(2) of the Care Act), the appellant nevertheless found herself somewhat beleaguered, and understandably, she reacted accordingly. 15. In making that assessment, I found her evidence to be generally reliable and credible. In accordance with convention, I have discounted negative aspects of her demeanour and her manifestations of anger as exhibited in the course of the proceedings and noted in some of the documentary evidence. The appellant's circumstances 1. At this point, for perspective and context, it is relevant to set out something of an overview of the appellant's background, including her early life, and leading up to her present situation. 2. Those matters are revealing, and assist to enable an understanding of the appellant's at times assertive and abrasive responses, including her dismissive responses, to certain people, who have the authority and the ability to adversely assert authority over her to her disadvantage. 3. The appellant has a background of multiple historical traumas the effects of which feature prominently in her life. These influence her interactions with others, including with a number of government agencies. 4. The facts concerning those matters have been pieced together from the documents that have been amassed and included in the tender bundles. Those matters did not entirely emerge directly from the appellant's evidence in the usual convenient orderly sequence that would ordinarily have been expected in proceedings of this kind had she been legally represented. 5. That departure from the usual course of events is largely as a consequence of the appellant's self-representation, and for her, the overwhelming nature of these proceedings. Therefore, in fairness, and in view of the range of emotions and frustrations that the appellant has displayed and experienced in the course of the proceedings, it has become necessary to seek to draw out those matters in her evidence, where at times, she was so stressed that she spoke in a stream of consciousness style, including with elements of rage, which proved difficult to interrupt, in circumstances where she was affected by medication and she felt "bombarded" by the questioning. 6. Relevant aspects of the appellant's life, and the origins of the anger she experiences, are conveniently identified as follows: 1. Some details of her immediate family 2. A sexual assault that occurred in her childhood; 3. Some difficulties that emerged during her adolescent years; 4. The non-participation of the appellant's mother in the proceedings; 5. Her first pregnancy and her early experience of successful motherhood; 6. Her pursuit of education and employment; 7. Her housing situation and the related problematic issues she had with neighbours; 8. Her second pregnancy and the child who is the subject of these proceedings; 9. The traumatic impact upon her of certain knowledge she has acquired relating to her Aboriginal family history concerning Stolen Generation issues, a related post-traumatic stress disorder, and how those matters have impacted upon her relationship with her mother; 10. Her interaction with teachers at her son's school; 11. Her state of health. 12. The removal of her child, and the aftermath that event has had for her. 1. A summary of the evidence on those topics now follows. Family background 1. The appellant has an older brother who was removed from parental care at the age of 11. She "removed herself from parental care" at the age of 12 or 13. There was an obvious history of trauma associated with those circumstances when the timeline is viewed in retrospect. This obviously had some effect on the relationship she has with her own mother. She has two younger half-brothers from her mother's second relationship. 2. At the outset of any consideration of the appellant's family situation there must include an acknowledgment of her Aboriginality, and the many traumas and disadvantages that have arisen in the course of her life on that account, including having due regard to issues arising from an enlightened understanding of intergenerational trauma experienced by indigenous people concerning the Stolen Generation issues. 3. Shortly stated the appellant's mother, had been removed from her parents in circumstances that have eventually become known as the Stolen Generation era. She was taken from her family when she was an infant aged two years. This left the appellant's mother without any deep knowledge of her own family background, and she was therefore unable to provide the appellant with a detailed historical grounding on family matters. Her mother has never meaningfully engaged with the appellant to discuss that subject as is apparent from her mother's account referred to in the parenting capacity reports of Mr Wootton and Mrs Griffiths. 4. On that point, it is interesting that the maternal grandmother gave a different account to Mr Ralph in early 2021. If she had been called as a witness, that matter was worthy of exploration in her evidence. 5. The appellant's parents separated when she was young. She appears to have had a good relationship with her stepfather when her mother re-partnered. She has taken her stepfather's surname. She maintained a good relationship with her natural father, and later in his life she participated in the task of arranging his nursing care rather than leaving him in a nursing home. These events speak to her character. He died on 6 July 2020 whilst this appeal was on foot. 6. The appellant and her mother have a broken relationship on several fronts that will shortly be described. The fact that, by order of the Children's Court on 4 March 2019, her mother has been allocated parental responsibility for the child the subject of the appeal has not assisted their difficult relationship. In the interests of the child, if nothing more, they need to work on their relationship. It appears that the problem is not just one-sided. 7. Those facts are an important feature in this case. The appellant cannot look her mother in the eye. In the historical evidentiary material there is reference to an account of her mother having slapped her around. The appellant has longstanding unresolved issues with her mother. 8. That said and nevertheless, the appellant has adopted a mature approach to that situation, and she is satisfied that for the time being, her son is in a stable situation in her own mother's care. The appellant is in a way relieved or pleased that since her son cannot be with her, that he has his grandmother, step-grandfather and her younger brothers, his uncles, in his life. 9. The appellant's description of the living arrangements at the maternal grandmother's home suggests they are cramped and inadequate, and despite promises from the Department of Housing, this has not been given remedial attention. Her son occupies a bedroom. Her two brothers shared a bedroom, and the grandmother and the step-grandfather share the dining room whilst waiting for extensions to be carried out by the Department of Housing. Unaddressed sexual assault in childhood 1. Foremost amongst the appellant's many issues with her mother is the unresolved fact that the appellant, as a child, was the victim of an untoward sexual assault committed upon her by a prominent community member. Her mother did not acknowledge it, or report the fact to the police for appropriate action to be taken. This appears to be a big issue of mistrust and trauma for the appellant. There is a need for the appellant and her mother to try and address this and their other issues. They most probably need a skilled facilitator to seek to achieve a material improvement in their relationship. 2. The appellant had not intended to talk about that childhood experience but was relieved that it came out in her evidence. She said that she was happy to see a psychiatrist to be fully assessed because of the serious anger and emotions she is carrying with her. She feels this may help her deal with the experiences she has had in her life, as she has come from "the school of hard knocks". Some difficulties in the appellant's adolescent years 1. The appellant did not have a happy childhood. This has left her with issues that she is working through with the assistance of her treating psychologist. She left home at the age of about 12 years and for a time she went to live with her natural father in Canberra. This appears to have followed having been sexually abused as a child. She was understandably reticent to elaborate upon this subject in her evidence: T185.27 to T186.13. She is still receiving counselling in respect of those events which were never appropriately addressed, either within the family or according to law. Non-participation of the appellant's mother 1. The appellant's mother, who is a respondent to the appeal, has chosen not to take any active part in these proceedings. It is not appropriate to speculate as to the reason for her adopting that position other than to record first, the existence of a broken relationship between them, and secondly, the unavailability of relevant information that she must be presumed to possess. 2. The appellant's mother is described as being articulate, having been a head teacher at TAFE in Aboriginal Studies. Before that she worked as an Aboriginal Liaison Officer for a council and as a helper at pre-schools. That history suggests that if she were called as a witness in the proceedings she would have relevant things to say about the child's situation, his schooling, and his development. 3. As the Minister presently retains responsibility for contact issues concerning the child, it may be reasonably assumed that there is some basic level of contact between the appellant's mother and the department on important issues to do with this case, concerning the care of the child. 4. It may therefore be safely assumed that if the appellant's evidence on certain matters within the knowledge of the appellant's mother was open to factual challenge, the Secretary would have had access and recourse to contradictory information if a challenge on a material matter of fact was thought to be necessary in this case. As was pointed out to counsel for the Secretary, the maternal grandmother could have been called as a witness if there was anything that needed to be clarified through her evidence: T323.10. 5. One such matter of the appellant's concern was with regard to worries she has about her mother's health in connection with her ability to look after the child: T10.50. The appellant is angry that she is being denied access to information about her son's health: T26.31. The appellant is frustrated that she only gets snippets of information as to her son's progress at school. 6. The appellant's anger about those and other issues does not assist in improving the appellant's relationship with her mother. They have issues they need to try to work through with the structured support of facilitative counselling. Early motherhood with first child at age 16 years 1. At the age of 15 years the appellant became pregnant and later gave birth to her first son. He lives a successful adult life. She has been a good and successful mother to that son. No need has arisen for him to be involved in this case. There has been no ongoing relationship between the appellant and that son's father. The birth of the subject child in 2011 1. In 2009, the appellant and the father of the child the subject of the appeal commenced their relationship. In that year, she had a mid-range drink driving offence for which she received a 6 month driving disqualification. In 2010, she continued to have issues with the police and with authority in general. There is little room for doubt from the subpoenaed materials that she was abrasive in her interactions with authority, including with the police. 2. In 2011, the appellant mother began seeing a psychologist for counselling. In that year, when she became pregnant she "managed to pull [her] life back together for the sake of [her] unborn baby". This was not a simple task for her in light of the described historical events. 3. The child the subject of the appeal was born late 2011. The appellant's relationship with the father of the child was not long lasting. In 2013 the appellant enrolled the child in a pre-school at the University of Wollongong whilst she undertook further studies. 4. The early years of the appellant's care of her second son were unremarkable. To the extent that it is permissible to draw conclusions from photographs, a review of the content of Exhibit "8", which comprised the appellant's photograph album shows photographs of the appellant and the child in apparent happy, well cared for, and well looked after circumstances, including group photos, photographs at play, at school, engaged in stimulating activities, including in family settings, and extended family settings. 5. Of that material, the appellant stated that a picture can tell a thousand words. Many pictures can say much more. There is nothing in those photographs that would suggest a shortcoming in the appellant's abilities and care, as a mother to her child in those good years. Educational and work achievements 1. At about age 23 years, the appellant graduated from the University of Wollongong with a teaching degree. She then worked for the Department of Education and Training as an indigenous education officer. She was also elected to a position in a local Aboriginal Land Council. At about age 28 years, she became a Youth Officer with the Department of Juvenile Justice. At about age 31 years, she became a research assistant at The George Institute for International Health, and she remained in that employment for about 2 years, earning a good salary, until she ceased work in 2008. 2. In that time, in about 2006, the appellant took on the role of caring for her natural father who was seriously unwell. She maintained some oversight of his community care arrangements (T191.35 – T191.43) until his death in 2020. 3. In about 2007, at age 32 years, the appellant completed a Graduate Certificate in Health Sciences at the University of Sydney. 4. Before the appellant became pregnant with the child who is the subject of the appeal, as is evident in the chronology comprising Exhibit "3", she had a number of run-ins with police on a series of minor matters for which she variously received fines, recognizances, suspended sentences, or community service orders. Such a history is unfortunately not uncommonly seen in cases involving disadvantaged indigenous people. 5. The appellant identified the year 2008 as being the year when her life started to spiral out of control and she began to abuse alcohol. She attributes those spiralling events to her growing awareness of her post-traumatic stress issues to do with her Aboriginality, her mother's history as part of the Stolen Generation and her own earlier traumatic childhood experiences. She said of that period between 2008 and 2010 that her whole life and her career fell apart: T186.45. 6. She attributed those circumstances to having realised in the course of her work that her mother was part of the Stolen Generation. That realisation had profoundly affected her, and she "just fell apart": T187.5 – T187.20. As she began to acquire a better understanding of those events she became angry and turned to alcohol: T18842 – T188.45. It "hit her all at once" and she got angrier and drank, which then led her into difficulty with police: T189.18 – T189.41. 7. In 2013, the appellant had enrolled to pursue a Master's degree in Public Health at the University of Sydney but found she could not continue because of the persisting difficulties she had been experiencing with unfriendly neighbours. She has unsuccessfully sought a public housing reallocation to avoid those difficulties and continues to seek that outcome. It has apparently been approved after much difficulty but that approval is still delayed in the implementation. Housing and neighbour issues 1. One of the issues that continues to fester for the appellant is the housing issue where she has conflict with neighbours, and the difficulty in obtaining suitable alternative housing in an area where she would have access to family and support services, including the alcohol counselling service that assists her to deal with her craving for alcohol. 2. In 2006, the appellant began having difficulties involving frictional interaction with some for her neighbours who were associated and well connected with members of a motorcycle gang, and it appears, some persons in authority who were sympathetic to them, and who were able to take steps to cause difficulty for her. 3. Those persons successfully pursued and obtained an AVO against the appellant: T190.32. She stated that they were in conflict with her and they made false allegations about her behaviour and about the safety of the child: T197. Beforehand, she had apparently rejected some unwelcome advances from a neighbour who was seeking to have a personal relationship with her. That rejection then led to ongoing vindictive aggressive hostility towards her by that person, and by persons apparently acting on his behalf. 4. Those neighbourhood difficulties have unfortunately continued to the present time, and they have become pronounced, exacerbated, and have caused her to have issues with the Department of Housing. She characterised this as being due to false and malicious complaints having been made against her about noise, nuisance, offensive language, and damage to property. She has alleged that there has been a related threat to kill her. She has already been the victim of an assault in her home which she blames on that quarter of mal-intent. She addressed the stress of those circumstances by turning to alcohol. 5. The appellant's housing difficulties have spilled over into a case that was heard in NCAT. Those proceedings were ultimately resolved in her favour. Departmental involvement in 2015 1. In 2015 the appellant's difficulties with her neighbours became exacerbated. There were conflicting accounts of the various events. Police were involved and the appellant said that the police favoured the versions proffered by her neighbours, which added to her difficulties. It was very likely that her abrasive and forthright attitude when asserting herself defensively in such circumstances would not have assisted in calming those situations. 2. In 2015, the department acted on reports of serious risk of harm to the child, with allegations that the appellant had been intoxicated on occasions whilst the child was in her care. Police and DoCJ were involved and there were conflicting accounts of the events. 3. In 2015, as a result of a series of meetings with DoCJ officers, the appellant agreed to engage with the local Mental Health Service and to seek assistance with her alcohol issues. The surrounding circumstances were complicated by housing issues, and complaints and allegations by neighbours about the appellant's behaviour and intoxication. The appellant characterises those complaints as having been made maliciously. 4. In late 2015, child safety assessments were made, including with the involvement of an officer of the Protecting Aboriginal Children Together organisation. In those events, it was observed that the appellant had made relevant and meaningful changes in her life and it was determined that the child was considered to be safe in the care of his mother, but "with a plan". 5. However, the neighbourhood complaints continued to be made to DoCJ and to police. The events led to the mother being arrested and receiving a suspended sentence for a breach of a personal violence order taken out on behalf of the neighbours. Clearly, she found her housing situation frustrating and increasingly less tolerable. Difficulties with teachers at son's school 1. The appellant found herself in conflict with teachers at her son's school. That dynamic was complicated because this was the same school where she had her initial teaching placement and she did not get on well with the principal. 2. Unresolved issues emerged when she sought to advocate on behalf of her son, who was one of only two indigenous boys in the class, where he was being bullied and assaulted. She felt marginalised when she sought to intervene, and nothing was resolved despite her efforts. She became excluded from the school, which angered her: T192 – T193. In those events, she found she was drinking alcohol more frequently. 3. Despite her efforts in advocating for her son, she felt the school had done nothing to resolve her issues of concern, apart from excluding her from the school. Her attempts to engage with the principal brought her into even more conflict with her son's school, and it was claimed she was intimidating and harassing staff, which she denied. Circumstances of the child's removal 1. Between August 2016 and July 2017, various aspects of the appellant's behaviour came under the notice of police and department officials. 2. The matters at issue concerned allegations of alcohol intoxication and challenging behaviours in the presence of her son. This also involved reported instances of violence towards her brother's girlfriend, in the home of her mother, being in charge of a motor vehicle whilst intoxicated, and alleged harassing and intimidating behaviours directed at teachers at her son's school, resulting in her being banned from the premises, neighbourhood disputes whilst intoxicated, and an allegation that the child had been temporarily left in the charge of a security guard in a shopping centre whilst she retrieved her purse from a shop. 3. The written submissions of counsel for the Secretary have carefully chronicled those historical instances in detail, with references to underlying evidence relating to those matters: Secretary's written submissions; paragraphs 28 to 35. 4. Whilst the appellant had sought to explain some of those events in a more favourable light to herself, ultimately, in light of the appellant's concession that the removal of her child was legally necessary and justified at the time when that decision was taken, it becomes unnecessary to traverse those matters in detail. 5. It is therefore sufficient to record that by August 2017, aspects of the appellant's described interactions had justifiably come to the attention of departmental officers. 6. Following those events, on 23 August 2017, a series of events had led to the decision to remove the child from the appellant's care. These included previous observations concerning her earlier "heightened" behaviour at the offices of the Department of Housing, which were adjacent to DoCJ offices, her refusal to engage in discussions with departmental officers, her alleged intoxication at her son's school where there was a dispute over whether, in that state, she had verbally abused a teacher, and had physically pushed another child. 7. On the afternoon of 23 August 2017, departmental officers attended the appellant's home without prior arrangement but co-incidental with the presence of police officers who were trying to gain entry to the premises where the appellant and the child were barricaded inside. After a period of stand-off, either the appellant or the child, were persuaded to unlock the door. 8. At that time, the appellant was arrested. The departmental officers then took steps to remove the child from her care and place him into the care of his maternal grandmother, the absent third respondent, in whose care he has remained to date. The appellant now accepts that the removal of her son was legally justified: T355 – T356. Appellant's PTSD 1. The appellant has PTSD and related major depression. These conditions appear to have become accentuated on the appellant learning of her family history. Her condition has been difficult to treat. She sees her psychologist, Mr Marcello Di Martino for these problems. She still has problems dealing with past events in her life. He has been treating her since 2015. 2. The appellant is taking Zoloft for her anxiety and depression, and feels that this is helping her. This medication also helps her to "get a grip" of herself and to avoid an inclination to drink alcohol. At the time the appellant gave her evidence that just before the hearing she had recently started and then stopped taking naltrexone. It appears this may have possibly influenced her manner and presentation. Health issue leading to involuntary hospitalisation 1. In October 2018, the appellant attended Wollongong Hospital for investigation of an old back or hip injury. At that time, her assertive statements raised concerns for staff. This brought her into conflict with hospital staff and as a result, she was seen by a psychiatrist. After she was discharged home, the police later became involved. She was detained as an involuntary mental health patient between 14 October 2018 and 15 November 2018. She found those events profoundly upsetting, and this later led to her increased use of alcohol. 2. The appellant explained that the hospitalisation on 15 October 2018 had its origins in her disappointment over the events that occurred, and things that had been said to her, on 20 September 2018 at a dispute resolution conference. 3. Up until that time the department were proposing restoration of her son to her over a 2 year period, whereas her preference was for it to be a 6 month period. At that time, the appellant had been putting great effort into getting her life back in order with professional help. She felt devastated over the department's change of tack, in no longer supporting a possible restoration, where the department's change of tack was supported by the ILR. 4. These events "shattered" the appellant, and caused her to "fall apart", to use her expressions. She later explained that her use of alcohol was a means by which to manage her feelings of anxiety. Her anxiety seems to have been exacerbated by episodes of conflict with the neighbours with whom there have been ongoing personal difficulties and tensions. Ex parte decision in Children's Court on 4 March 2019 1. The appellant arrived at the Children's Court in Port Kembla after 11.00am on 4 March 2019. This was after the hearing had been concluded in her absence after her lawyer had withdrawn from the proceedings. She was informed of this by her lawyer outside the Court immediately after she arrived. It appears no further steps were taken at that time to re-list the matter before the Children's Court for remedial attention. Hence the present appeal. 2. In summary, the appellant explained her late arrival as follows. Although she lived not far from the courthouse, she woke late on the morning of the hearing. This was due to a side-effect of the psychotropic prescription medication she was taking. 3. Her evidence on that account was corroborated by the records of the Aboriginal Medical Service ("AMS"). In summary, after her last monthly depot or slow-release injection of psychotropic medication which was received during preceding involuntary hospital admission. After discharge from hospital she needed to be weaned off her medication. On 20 December 2018, she was prescribed the substitute drugs Olanzapine and Sertraline, and was to take them until 18 June 2019. These drugs also had side-effects. This was a reasonable explanation for walking late. 4. In addition to that reason for her lateness on the day of the hearing, her transportation also arrived late. This compounded the problem. After speaking with her lawyer, and after leaving a message for the Court to advise of her impending late arrival, and after a further telephone conversation with her lawyer, her mobile telephone lost power and was discharged. No-one was able to make contact with her in those circumstances. 5. The Children's Court did not get to hear those explanations on the day of the 4 March 2019 hearing after the proceedings had been dealt with in her absence, on the papers, as is evident from the transcript of those proceedings. Those events will be the subject of a more detailed consideration in relation to Issue 1, concerning procedural fairness. The appellant's conduct of her appeal 1. It is necessary to say something about the demeanour that the appellant exhibited at the hearing of the appeal, both in her own presentation, and during the cross-examination of her evidence. 2. Without intending any disrespect to the appellant, it is fair to say that she did not advocate very well for her own interests in these proceedings. Her pervading attitude of hostility towards DoCJ staff, and in relation to the dynamics of the proceedings, became more understandable after hearing oral evidence from her treating psychologist, Mr Di Martino, whose evidence will be reviewed and analysed in some detail at a later point in these reasons. 3. The appellant would doubtless have benefitted from legal assistance to prepare and structure her approach, her evidence and her focus, but in view of her continued self-representation, that was not to be. The result was that her evidence was unstructured, disjointed and not particularly well focussed on the issues to be determined. 4. The appellant feels beleaguered by her belief that her parlous situation has been influenced by so many lies having been told about her and her conduct. I did not get the impression she was being paranoid in making that statement. She has so many issues to deal with on so many fronts on which she is required to interact with people. She could certainly do with the help of a skilled social worker in that regard. She feels that she has attempted to take responsibility for her actions in her life. but she feels thwarted and disadvantaged by the fact of her self-representation in these proceedings. 5. The appellant displayed and maintained something of a fixated attitude of anger and resentment over the fact that the department had removed her child from her care. Joining the dots as it were, rightly or wrongly, that attitude seemed to be accompanied by an apparent parallel as she saw it, between those events and the unfortunate and shameful historical events concerning the removal of Aboriginal children from their parents now known and accepted under the label of the Stolen Generation. 6. She made several references to this in her exchanges in her oral evidence. That view appears to have served to perpetuate her anger of the events that have affected her and her son, and she seemed to have difficulty seeing past those events in these proceedings, at one point referring to the cord that joined them having been cut. 7. The effect of the appellant's evidence was to reject or to seek to downplay the significance of the many factual matters of embarrassment that counsel for the Secretary was obliged to put to her as part of the historical narrative of the events that led to the child's removal, and to the child protection proceedings in the Children's Court, and more recently. 8. The cross-examination of the appellant commenced on the second day of the hearing; T299-T327. However, it was necessary to call a halt to the questioning as the appellant was very distressed and her responses were not representative of how she would ordinarily conduct herself, as explained in the summary that now follows. 9. The appellant was plainly annoyed and angry at being confronted with extensive and embarrassing historical references made in the in the course of cross-examination. These included elements of her past conflicts with neighbours, with police, her son's school, with DoCJ, in circumstances where DoCJ had prepared an extensive tender bundle of materials in that regard. That questioning was a legitimate course to identify the appellant's past conduct which was part of the Secretary's case for the justified removal of the child from her care. 10. Whilst on a forensic consideration, that cross-examination was an available course for counsel for the Secretary to pursue where in ordinary circumstances it was felt necessary to test the evidence of a witness, however, the circumstances proved untenable for the questioning to continue in view of the appellant's state of upset. 11. In addition to the appellant's underlying anger over the circumstances that have led to the proceedings having been brought to this point, and being put through the figurative wringer by the process, she was tired from daily travel to court from the South Coast region, she was in a sad mood, she was stressed by her un-empowered position within the power dynamics of the litigation, she had not eaten for two days, she was resentful of the questions being asked, she was speaking in an unstructured manner in the form of stream of consciousness with running commentaries when interrupting questions that angered her, as to form and content, when a series of historical factual events were being put to her, as is standard procedure in contested litigation. 12. At times when matters of unpleasant historical fact were being put to her, where she variously described them as being untrue, false or ludicrous, she displayed some aggression in her answers, and at times she used sarcasm and irony in her statements, exhibiting a laconic "attitude", with tears streaming down her face, blurring her vision from seeing documents when they were put to her. Some of her attitudes were capable of ambiguous interpretation, namely aggression or just assertiveness. She refused the offer of a rest break when she appeared obviously upset during those events, and instead, she said she wanted to press ahead to finish the process in order that it conclude quickly. She was told she was not assisting her case in the circumstances, especially where she was self-represented. 13. Plainly, as was observed at the time, the appellant was having a difficult day. Those circumstances did not assist the appellant's case and they provided a readily convenient means of support for the position being taken by the Secretary. However, given that proceedings of this kind are not to be conducted in an overly adversarial manner, in my initial assessment of the described situation, fairness and the justice of the case, required that the Court should look past those matters of demeanour in deciding the issues to be determined in this case. That view was later borne out by the content of the testimony of Mr Di Martino. 14. The questioning of the appellant resumed on the following day: T335 to T425. In that second phase of her cross-examination, the appellant explained that she was having a "meltdown" the previous day. She was obviously stressed, felt humiliated by the content of the questions being asked, saying those matters made her feel ill when they were drawn to her attention. She maintained her attitude of indignant upset when questioned on those matters. 15. When those questions were being asked the appellant said that she felt "like a flat tyre" at having to relive those embarrassing matters. She said that she had blocked some of those questions and had "switched off" when they were being asked, and felt she had been discredited. At times she was told she needed to remain calm, to take a deep breath and to focus her attention. Plainly, she was embarrassed by those episodes of past bad behaviour when they were drawn to her attention. 16. Ultimately (at T355.23 – T356.12), after the appellant had the concerning aspects of those past events drawn to her attention, on reflection she conceded that the removal of her child had been justified. That concession was appropriate on the materials presented, and it has helpfully served to narrow the issues in the proceedings by enabling the appellant to achieve some moments of clarity. 17. These included the concession that in the past, alcohol has been her backstop, as she put it, and she needed help with that problem. In that regard, she accepted that children had a right to be raised by a parent who was not affected by alcohol. However, she rejected the proposition that she would be at risk of future relapse into alcohol dependence. 18. Another moment of clarity concerned the appellant's evidence of her anger towards the department and DoCJ officers. She acknowledged that for her to exhibit anger of that kind in her son's presence would be damaging to him. She accepted that she needed to resolve that anger and her related frustration, and realistically and fairly, she said she did not know how long this might take to achieve. 19. One of the issues which obviously influences the appellant's circumstances is her present unsatisfactory housing predicament. She resides at a place where there is conflict with a particular neighbour and those who apparently act against her at his behest. She believes from the actions and statements of that neighbour that he might kill her. Apparently, after much dispute and pleading, a housing transfer is now anticipated to take place. The date for this remains uncertain. On the evidence, that transfer cannot come soon enough. 20. Another of the appellant's acceptances was that when she is well enough, she will accept supervision at contact visits with her son, but she does not want the inhibiting effect of close supervision to continue. She finds that to be a disheartening process. She feels it has operated as something of an unnecessarily intrusive, inhibiting, and overshadowing straight jacket in her relationship with her son, to use her description. She explained that in the past, when she had cancelled contact visits at short notice, it was because she had been upset with herself. Obviously, contact visit arrangements will have to be modified in the short term for the benefit of both the mother and the son. 21. The appellant obviously needs to find a way of achieving some adjustment if not healing with regard to the many things that cause her to become angry. Her anger at the department is a major issue for her to address in this case because she is resentful over the diminished contact she has had with her son as a result of the actions of the department. 22. Although there was much material for consideration, at this point, without intending to ignore or overlook the magnitude or the content of that material, it seems to me that two essential points emerge for determinative consideration. 23. First, in light of the appellant's changed position where she made the concession that her child had been justifiably removed from her care, it is not necessary to chronicle the full extent of her past behaviours of concern in definitive detail. Instead, it is sufficient to acknowledge and note that those important historical background matters as recorded in the tender bundles need to be considered in terms of her likely future conduct, as to which Mr Di Martino's evidence takes on great relevance and significance. 24. Secondly, those matters identify the baseline for the consideration of the appellant's case for restoration, and as such, they also serve as the framework for the assessment of the guidance value of the opinion evidence in the case for determining whether, on the evidence when considered as a whole, there ever has been a realistic possibility of restoration, or alternatively whether such a possibility now exists, or is likely to exist within a reasonable time in the future. 25. In that latter regard (at T410.27), the appellant accepted the opinion of Mr Ralph where he said that at the moment, in the current climate, being a reference to her present situation, it would not be in her son's best interests that he be returned into her parental care because he would be in a situation of risk of harm. Parts of that opinion required careful consideration. 26. The opinion evidence concerning the assessments of the appellant's parental capacity will be reviewed in PART C of these reasons. 27. On a positive note, it seems that more recently, the appellant has been receiving some financial assistance from a charitable organisation with a view to seeking employment when these proceedings are over. She is also planning to resume and complete her university studies. 28. The appellant's evidence left me with the impression that the process involved in giving evidence in the appeal has had something of a cathartic effect upon her. Evidence in the Children's Court proceedings 1. In the Children's Court proceedings, voluminous evidence was assembled by all parties. Those materials have also been tendered in the appeal. 2. The Secretary had prepared an updated care plan which was progressively amended: Exhibit "1", Vol 1 & Vol 2, Tabs 2, 16, 17 and 18. Affidavit evidence was presented by the departmental caseworker: Exhibit "1", Vol 1, Tabs 3, 4, 5, 6, 7, 8 and 9. The mother had also presented extensive affidavit evidence of her own: Exhibit "1", Vol 1, Tab 10; Exhibit "1", Vol 2, Tabs 11, 12, 13 and 14. 3. The Children's Court had before it a Wishes Statement prepared on behalf of the child by his ILR, Mr Schier, who has continued in that capacity until the present time. 4. In essence, that Wishes Statement indicated that the child was happy in the care of his maternal grandmother, and he was reported to have expressed a degree of upset in recounting aspects of his mother's behaviours which had attracted the critical attention of departmental caseworkers: Exhibit "1", Vol 2, Tab 15, pp 658 – 659. In these proceedings, those statements require careful consideration in light of aspects of the opinion evidence on the issue of the appellant's parental capacity, which will be referred to in detail at a later point. 5. The documentary evidence presented in the Children's Court proceedings is identified in the following tabulation: No. Affidavit dates Deponent Category Reference Exhibit "1" 1. 25.10.2017 Amanda Whitefield DoCJ Caseworker Vol 1, Tab 3, pp 15-149 2. 14.12.2017 Amanda Whitefield DoCJ Caseworker Vol 1, Tab 4, pp 150-214 3. 22.02.2018 Amanda Whitefield DoCJ Caseworker Vol 1, Tab 5, pp 215-304 4. 09.04.2018 Amanda Whitefield DoCJ Caseworker Vol 1, Tab 6, pp 305-325 5. 09.11.2018 Emily Wright DoCJ Caseworker Vol 1, Tab 8, pp 327-353 6. 18.02.2019 Emily Wright DoCJ Caseworker Vol 1, Tab 9, pp 354-404 7. 27.10.2017 Appellant Mother Vol 1, Tab 10, pp 405-446 8. 13.12.2017 Appellant Mother Vol 2, Tab 11, pp 447-600 9. 05.09.2018 Appellant Mother Vol 2, Tab 12, pp 601-638 10. 06.12.2018 Appellant Mother Vol 2, Tab 13, pp 639-642 11. 01.03.2019 Appellant Mother Vol 2, Tab 14, pp 643-657 12. 04.03.2019 The child's wishes statement - Vol 2, Tab 15, pp 658-659 Evidence in the appeal proceedings 1. The evidence in the appeal was in the form of both affidavit and oral evidence. In these reasons, references to the Exhibits are references to the documents marked as Exhibits in the appeal. The initial collation of Exhibits for the hearing scheduled to commence in this Court on 24 August 2020 was marked Exhibit "1", Volumes 1 to 4, Tabs 1 to 30, pp 1 – 1627. At the resumed hearing on 3 May 2021, the Secretary produced further voluminous supplementary documents which were marked Exhibit "4", Volumes 1 to 3, Tabs 1 – 22, pp 1628 – 3093. 2. In the appeal the appellant handed up a copy of her affidavit filed 6 December 2018 which was also dated 28 November 2018. That affidavit contained some relevant handwritten annotations she had made on some relevant factual matters which have been taken into account in these reasons given that a degree of informality is permissible: MFI "11". Affidavit evidence in the appeal 1. In the appeal the following affidavit evidence was filed: : No. Affidavit dates Deponent Category Reference Exhibit "1" 13. 29.05.2019 Appellant Mother Vol 2, Tab 23, pp 736-749 14. 12.07.2019 Appellant Mother Vol 2, Tab 24, pp 750-765 15. 30.07.2020 Appellant Mother Vol 3, Tab 25, pp 766-1109 16. 31.07.2019 Emily Wright DoCJ Caseworker Vol 3, Tab 26, pp 1110-1181 17. 07.07.2020 Tanya Bazley DoCJ Caseworker Vol 3, Tab 27, pp 1182-1191 18. 30.01.2020 Mrs Chryne Griffiths Parenting capacity assessment Vol 4, Tab 30, pp 1586-1627 1. In the appeal, the Secretary also relied upon an extensive bundle of copied documents extracted from material that had been produced on subpoena: Exhibit "1", Vol 4, Tab 29, pp 1195 – 1585. Oral evidence in the appeal 1. The following witnesses gave oral evidence in the appeal: No. Dates Name of witness Category Transcript Reference 1. 03.05.2021 Mrs Tanya Bazley DoCJ Caseworker T167-T181 11.05.2021 T438-T440 03.05.2021 T184-T250 05.05.2021 T254-T269 2. 05.05.2021 Appellant Mother T299-T327 06.05.2021 T335-T425 11.05.2021 T443-T444 3. 05.05.2021 Mr Marcello Di Martino Mother's treating clinical psychologist T274-T296 13.05.2021 T530-T560 4. 11.05.2021 Mrs Chryne Griffiths Parental capacity assessor and Aboriginal consultant T448-T488 5. 13.05.2021 Mr Stephen Ralph Forensic psychologist and Aboriginal consultant T493-T524 1. In the appeal, the Secretary's supplementary tender bundle, which contained the material identified in the following tabulation, will be referred to where it becomes relevant to do so: Tab Document Description Date Reference Exhibit "4" 1. Affidavit of Tanya Bazley, affirmed 24 August 2020 25.08.2020 Vol 1, pp 1628-1655 2. Affidavit of Yvonne Gray, affirmed 28 September 2020 29.09.2020 Vol 1, pp 1656-1663 3. Affidavit of Tanya Bazley, affirmed 17 November 2020 18.11.2020 Vol 1, pp 1664-1692 4. Affidavit of Tanya Bazley, affirmed 20 April 2021 20.04.2021 Vol 1, pp 1693-1820 5. Addendum to Care Plan, 8 April 2021 23.04.2021 Vol 1, pp 1821-1824 6. Affidavit of Appellant 23.10.2020 Vol 1, pp 1825-1856 (unsealed) 7. Affidavit of Appellant 06.11.2020 Vol 1, pp 1857-1862 (unsealed) 8. Affidavit of Appellant (with annexures) 27.12.2020 Vol 1, pp 1863-2123 17.12.2020 9. Wishes statement of the child 26.10.2020 Vol 2, pp 2124-2125 (unsealed) 10. Transcript, 24 August 2020 24.08.2020 Vol 2, pp 2126-2167 11. Transcript, 25 August 2020 25.08.2020 Vol 2, pp 2168-2193 12. Transcript, 18 September 2020 18.09.2020 Vol 2, pp 2194-2217 13. Transcript of 1 October 2020 01.10.2020 Vol 2, pp 2218-2221 14. Transcript, 23 October 2020 23.10.2020 Vol 2, pp 2222-2236 15. Transcript, 6 November 2020 06.11.2020 Vol 2, pp 2237-2238 16. Transcript, 12 November 2020 12.11.2020 Vol 2, pp 2239-2244 17. Transcript, 20 November 2020 20.11.2020 Vol 2, pp 2245-2267 18. Transcript, 4 December 2020 04.12.2020 Vol 2, pp 2268-2273 19. Transcript, 1 April 2021 01.04.2021 Vol 2, pp 2274-2294 20. Supplementary subpoena bundle prepared by Secretary 19.04.2021 Vols 2&3, pp 2295-3026 21. Affidavit of Stephen Ralph, affirmed 5 March 2021 05.03.2021 Vol 3, pp 3027-3081 22. Affidavit of Stephen Ralph, affirmed 26 April 2021 27.04.2021 Vol 3, pp 3082-3093 1. Within the above materials, but not collated as to categories or authorship, are various letters from the appellant's treating doctors and her treating psychologist. Those documents are embedded as annexures to various affidavits. They will be considered in conjunction with the opinion evidence that will shortly be identified. 2. Before proceeding further, it is appropriate to identify an important concession that the appellant mother made in the course of the appeal. Concession by the appellant 1. Before the commencement of the hearing the principal order sought by the appellant was for her child to be restored into her parental responsibility and care. Her amended summons, which was filed by a legal aid lawyer on her behalf before the grant of legal aid was terminated, sought a staged return of the child into the mother's parental care. 2. As identified at paragraph [16] above, during the course of the hearing of the appeal, and with the benefit of hindsight, the appellant made the pragmatic concession that her child had been justifiably removed from her care in 2017. 3. Notwithstanding that concession, the appellant still maintains her challenges to some of the factual background circumstances which led to the child's removal. Those matters require evaluation but in less detail than might otherwise have been the case absent that concession. 4. In the appeal, the effect of the appellant's concession as identified above enabled focus to be applied to a less complicated analytical framework. Her concession now obviates the need for a more detailed examination of the chronological factual background than might otherwise have been the case. Review of affidavit evidence as read in both proceedings 1. In the paragraphs that now follow, after referring to the Secretary's factual chronology, I set out a summary of the affidavit evidence with an indication of whether it was read in the Children's Court or in this Court in the appeal. 2. In the appeal, a factual chronology was presented on behalf of the Secretary. It relevantly commences with the mother's date of birth and concludes with events occurring in 2020: Exhibit "3". Not all of the background events recorded in that chronology have determinative significance. 3. Many relevant factual events within the mother's background do not feature in that chronology. They are nevertheless relevant and need to be identified and considered as part of the required analysis. The non-inclusion of those matters is not a basis for criticism of the legal representatives of the Secretary. 4. Rather, such non-inclusion is unfortunately due more to the appellant's lack of legal assistance and her lack of litigation experience and knowledge as to what was required of her in this case in marshalling and highlighting evidence to be adduced in her appeal. 5. A review of the entire array of the extensive affidavit evidence read in both sets of proceedings now follows. Amanda Whitefield – First affidavit, 25 October 2017 – Children's Court 1. The first affidavit of Amanda Whitefield, a DoCJ caseworker, affirmed on 25 October 2017, with annexures, appears in Exhibit "1", Vol 1, Tab 3, pp 15 – 149. 2. Ms Whitefield's first affidavit dealt with the circumstances of the child's assumption into care following a report of a risk of serious harm relating to the appellant's alcohol use, mental health issues, and an allegation of a lack of supervision concerning a child safety issue. 3. The underlying circumstances related to the appellant's argumentative relationship with her ex-partner in the context of domestic violence, her resort to excessive use of alcohol, her need to maintain a safe home environment for her child, her allegedly violent behaviour towards her father when intoxicated, difficulties with neighbours, and concerns over the related safety of her son when she is intoxicated. 4. The negative statements the appellant is said to have made about her son as cited in this affidavit, are disputed. They must be viewed in terms of her intoxication at the time. They do not represent her true views when sober. 5. In light of the appellant's concession as cited at paragraph [199] above, a more detailed analysis of Ms Whitefield's affidavit of 25 October 2017, and the annexures to it, is not required. Amanda Whitefield – Second affidavit, 14 December 2017 – Children's Court 1. The second affidavit of Ms Whitefield, affirmed on 14 December 2017, is in the same category as her first affidavit, as outlined in the preceding paragraphs: Exhibit "A", Vol 1, Tab 4, pp 152 – 214. 2. It is an updating affidavit which recorded that the appellant wanted to work co-operatively with the department to have her son restored into her care and in the meantime, the twice weekly contact she was having with her son was described as positive. Relevantly, it was noted that the child's school had been changed, apparently to suit the convenience of the child's grandmother. 3. At that time, the department's view of the future direction of the Children's Court proceedings was that an 8 week adjournment to late February 2018 was to be sought in order to enable a parenting capacity assessment to occur. 4. A contact report dated 24 November 2017 annexed to this affidavit was positive in its terms. It recorded that there was a lot of positive physical contact between the appellant and her son, but the document also noted the grandmother's pessimism about a future relationship between them. 5. In assessing the array of evidence in this case, the 17 November 2017 terms of reference for the commissioning of the parenting capacity assessment from Mr Wootton is instructive: Exhibit "1", Vol 1, Tab 4, p 214. Those terms of reference contemplated the possibility that restoration of the child to his mother might be recommended. Subsequently, that position changed in the lead-up to the hearing in the Children's Court on 4 March 2019. Amanda Whitefield – Third affidavit, 22 February 2018 – Children's Court 1. The third affidavit of Ms Whitefield, affirmed on 22 February 2018, confirmed that the appellant's recent test result for determining whether there had been alcohol consumption was consistent with her history of having ceased using alcohol at that time: Exhibit "1", Vol 1, Tab 5, pp 215 – 304. 2. Reference was made to DoCJ having received an extensive parenting capacity report dated 14 February 2018 from Mr David Wootton, a clinical psychologist, who suggested that restoration of the child back into the appellant's care appeared viable in certain circumstances if conditions were fulfilled. That position will be examined in a later part in these reasons. Amanda Whitefield – Fourth affidavit, 9 April 2018 – Children's Court 1. The fourth affidavit of Ms Whitefield, affirmed on 9 April 2018, provided a historical update of the circumstances which prevailed at that time: Exhibit "1", Vol 1, Tab 6, pp 305 – 325. 2. It was noted that the child's case management had been moved to an Aboriginal caseworker, Ms Tammie Shearer. This was in accordance with the recommendation of Mr Wootton in his report dated 14 February 2018. There is no contemporaneous affidavit from Ms Shearer in that regard. Her role seems to have been short-lived, concluding on 9 March 2018. 3. The affidavit described an unfortunate dysfunctional communication from the appellant that occurred on 6 April 2018 which resulted in a stand-off with DoCJ. An adjournment of the Children's Court proceedings was suggested to try and sort out the problem so that a new caseworker could commence engagement with the appellant. That was an unfortunate development as the appellant and her son would have benefitted from working with an Aboriginal caseworker. 4. The contact reports annexed to Ms Whitefield's 9 April 2018 affidavit for the period between 3 March 2018 and 7 April 2018 showed that the appellant's behaviour was causing problems. The problem appeared multifactorial in origin, but principally related to the appellant taking aggressive umbrage to the inhibiting effect of close supervision at contact visits that was imposed by DoCJ. This also appeared to carry over into the relationship between the appellant and her own mother, who was at that time the child's carer. Emily Wright – First affidavit, 9 November 2018 – Children's Court 1. The 9 November 2018 first affidavit of Ms Emily Wright, a DoCJ caseworker, was prepared in order to update the Children's Court on the outcome of a Dispute Resolution Conference that took place on 20 September 2018, and to provide an update on the appellant's situation, including with regard to her health, contact visits, and placement issues: Exhibit "1", Vol 1, Tab 8, pp 327 – 353. 2. The appellant had not attended a meeting with the DoCJ scheduled for 27 September 2018. Subsequently, after a period of no contact, DoCJ ascertained that on 26 October 2018, the appellant had been admitted to a Mental Health Unit on 15 October 2018 for treatment following an episode of aggressive behaviour towards police in the context of intoxication: Exhibit "1", Vol 1, Tab 8, p 328. The circumstances were the subject of dispute. The contact visit reports of the preceding period noted that the child had exhibited unsettled behaviour at school after contact with his mother: Exhibit "1", Vol 1, Tab 8, p 345. Emily Wright – Second affidavit, 18 February 2019 – Children's Court 1. The 18 February 2019 second affidavit of Ms Wright was prepared in order to update the Children's Court in anticipation of the hearing in that Court that was scheduled for 4 March 2019: Exhibit "1", Vol 1, Tab 9, pp 354 – 404. 2. Ms Wright's affidavit referred to the fact that on 12 November 2018, DoCJ had become aware that there had been an historical incident on 27 September 2018, in which the appellant had been in a verbal argument with neighbours about a window in her house having been broken, where this incident resulted in police involvement, and later on 15 October 2018, police had attended the appellant's home to assist a mental health team, which resulted in the appellant mother being involuntarily sedated and hospitalised until 15 November 2018. The background was that there had been a recently unsuccessful DRC on 20 September 2018. Another background element was the toxic relationship with the neighbour concerned. 3. This affidavit also dealt with some updated details on supervised contact visits that had taken place, and it provided an update on the placement of the child with his maternal grandmother. 4. This affidavit annexed the most recent supervised contact report for when contact had last occurred on 25 January 2019, some 5 weeks before the scheduled Children's Court hearing. The interaction between the child and his mother on that occasion was noted to have been positive, and that she had behaved in an appropriately protective manner at a swimming pool where the contact visit took place: Exhibit "1", Vol 1, Tab 9, p 375. Emily Wright – Third affidavit, 31 July 2019 – in the appeal 1. Ms Wright's third affidavit of 31 July 2019 explained that she took over as the child's caseworker from Ms Shearer on 9 March 2018: Exhibit "1", Vol 3, Tab 26, pp 1110 – 1181. 2. The affidavit records that on 1 May 2019, due to the appellant's non-appearance at a listing of the appeal for mention in the District Court, the appellant's summons concerning the appeal was dismissed by another Judge of the Court: Exhibit "1", Vol 3, Tab 26, pp 1114, 1130. The appellant had arrived at Court late without fault on her part due to a traffic delay occasioned by a highway blockage. The affidavit also records that on 12 June 2019, on the appellant's application, the dismissal order made on 1 May 2019 was set aside without objection by a different Judge of the Court: Exhibit "1", Vol 3, Tab 26, pp 1114, 1150. 3. Ms Wright's affidavit disclosed that since the final orders were made in the Children's Court on 4 March 2019, no further casework has been undertaken between the DoCJ and the appellant, but there have been supervised contact visits between the appellant and the child. These have been documented and were the subject of contact rules specified by DoCJ: Exhibit "1", Vol 3, Tab 26, pp 1114 – 1117. The affidavit also summarised some aggressive behaviour the appellant had displayed towards the contact supervisor at some of those visits. That aggressive behaviour and its context, being the appellant's anger over the circumstances, became more understandable after considering the evidence of Mrs Griffiths. Tanya Bazley – First affidavit, 7 July 2020 – in the appeal 1. On 7 July 2020, Ms Bazley, a Maori multicultural caseworker employed by DoCJ, prepared an affidavit setting out a summary of her role as the child's caseworker since July 2018: Exhibit "1", Vol 3, Tab 27, pp 1183 – 1191. It is not clear as to why DoCJ has not engaged an Aboriginal caseworker as was suggested by Mr Wootton. This seems to be a significant cultural deficiency. During the course of the hearing, it was made plain by the appellant that she harboured considerable hostility towards Ms Bazley. 2. In summary, on 13 February 2020, DoCJ made a decision to cancel future contact visits between the child and the appellant. That change has antagonised the appellant. This drastic regime change was instigated by the maternal grandmother who maintained that view should prevail including up to the time of the preparation of Ms Bazley's affidavit: Exhibit "1", Vol 3, Tab 27, pp 1185 – 1187. Unfortunately, the maternal grandmother did not appear or give evidence to explain her stance on this issue, notwithstanding that she is a party to the proceedings. 3. That said, a possible explanation arises from the appellant's evidence. The appellant and her mother don't really talk much. It seems that her mother is petrified about anything that might jeopardise the current care arrangements. The appellant gave some evidence that her mother gets angry at her, and was hypervigilant and fearful of what DoCJ may do in relation to the present arrangements, probably due to issues her mother has about her own upbringing. This seems to be an inhibiting factor in their relationship and communications: T211.9 – T211.50. It may possibly be a factor in the decision of the second respondent to refrain from participating in the proceedings. 4. In the circumstances that prevailed, the position of DoCJ is set out in paragraph 29 of Ms Bazley's affidavit, as follows: "29. Communities and Justice's position is that phone contact occur between the mother and [the child] every two months, and will be supervised, It is then anticipated that contact will progress to FaceTime contact then face to face contact, on the condition that the mother continues to behave appropriately during these contacts. As noted at paragraph 24 above, Communities and Justice will engage with the maternal grandmother, with the assistance of an Aboriginal support worker, to discuss the importance of contact occurring where it is safe to do so." [Exhibit "1", Vol 3, Tab 27, pp 1188] [Redacted] 1. That limited contact position seems to have precipitated and then elevated the appellant's level of anger towards the department over those arrangements. 2. The Secretary's position remains that the long-term placement with the maternal grandmother should remain. The department did not support restoration of the child to his mother, the appellant: Exhibit "1", Vol 3, Tab 27, pp 1188. 3. A significant parenting capacity assessment report dated 30 January 2020 from Ms Chryne Griffiths was annexed to Ms Bazley's 7 July 2020 affidavit: Exhibit "1", Vol 3, Tab 27, pp 72 – 113. In her parenting capacity report, Mrs Griffiths made the following recommendations: "• [The child] remain in the care of his Maternal Grandmother [name redacted] and Step-Grandfather [name redacted] on a long-term basis to promote safety, stability and family connection. • [The child] continue to participate in healing and therapy programs as required to support him to heal from his experiences of trauma. • [The appellant] be supported to participate in healing programs which are culturally safe and address the trauma she has experienced including inter-generational trauma. • [The appellant] to work through the struggles that resulted in [the child] being removed from her care with her psychologist and continue to attend the gym to promote wellbeing. • [The appellant] to be provided with support letters to address the housing concerns so she is able to move to another location to support her wellbeing • [The appellant] and [the child] to continue their connection through supervised family visits which could be increased although must only go ahead when [the appellant] is well. • A family visit schedule to be developed in consultation with both [the appellant] and [the grandmother]. Strategies to be developed to identify [the appellant's] wellbeing prior to any family visits. • No more Parenting Capacity Assessment's until [the appellant] has shown her commitment to getting well and is well on the way to recovery." [Exhibit "1", Vol 3, Tab 27, pp 112 – 113] [Redacted] 1. Those recommendations must be read in light of the oral evidence given by Mrs Griffiths. That evidence requires evaluation. Tanya Bazley – Second affidavit, 17 November 2020 – in the appeal 1. On 17 November 2020, Ms Bazley, prepared a second affidavit during the currency of the appeal: Exhibit "4", Vol 1, Tab 3, pp 1664 – 1692. This affidavit confirmed that Ms Bazley had responsibility on behalf of the Secretary for the child's casework since 6 February 2020. 2. The context of this affidavit concerned contact arrangements between mother and son, where the appellant had expressed dissatisfaction with the insufficiency of contact she had with her son, where the Court had suggested some adjustments to the regime in the interests of humanity to all concerned. 3. This affidavit (at par 10), identifies the fact that a supervised contact between the appellant and her son took place by telephone for 10 minutes. 4. This affidavit identified (at par 14, on pp 1668 – 1669), a series of 13 contact rules that the Secretary has insisted upon for contact. In light of those demeaning rules it is unsurprising that they caused the appellant to exhibit anger in her dealings with DoCJ. 5. The annexures to this affidavit document the appellant's anger: Exhibit "4", Vol 1, Tab 3, pp 1674 and 1676. A contact report dated 26 October 2020 (at pp 1680 – 1681), shows how painful those arrangements have been for the child. Tanya Bazley – Third affidavit, 20 April 2021 – in the appeal 1. On 20 April 2021, Ms Bazley, affirmed a third affidavit which included an updating narrative: Exhibit "4", Vol 1, Tab 3, pp 1693 – 1820. 2. This affidavit dealt with two principal issues, the first being the history of contact between the child and the appellant between 17 November 2020 and 20 April 2021 (par 8 to par 21), and secondly, the reported views of the maternal grandmother on that contact: par 22 to par 24. As to the contact visits themselves, six were planned, four were attended, and two were cancelled for reasons that were explained by the appellant. 3. The contact supervisor's reports indicated that the contact visits that took place were positive, but the contact supervisor noted that the appellant's behaviour towards her was consistently dismissive. That dismissive attitude seems to have been as a result of the appellant's anger towards DoCJ over contact issues. 4. As to the advisory if not controlling input of the maternal grandmother, she has informed DoCJ that the appellant appears to get very unwell in the months of March, April and May, and she requested "extra" vigilance, a matter that was bound to infuriate the appellant. The psychological origin of that pattern was not explored or explained in the evidence. It is best not to speculate as to the reasons behind that view. 5. It is unfortunate that the maternal grandmother has chosen not to participate in these proceedings, as this is an issue that could have been informatively and relevantly explored as to the reasons for her request to the DoCJ so that the true level of risk to the child, if any, could be identified and understood. 6. The maternal grandmother reportedly expressed fury that DoCJ was considering the option of possible contact between the child and his father, indicating that such a course would require the use of force to take the child from her house for that purpose, the implication being that she would vehemently resist such a prospect with physical force if necessary. 7. Amongst the 117 pages of annexures to Ms Bazley's affidavit were contact visit reports, screen shots of text messages that had been exchanged between the appellant and Ms Bazley, and correspondence between DoCJ and the appellant. 8. The contact visit reports confirm the existence of a "great" mutual state of affection between the child and his mother, and vice-versa. It was evident they were happy to be in each other's company. 9. It is also evident from the annexures to this affidavit that the appellant continues to harbour great resentment over the close degree of supervision she must endure at contact visits, at the instigation of DoCJ, to the point of feeling antagonised: Exhibit "4", Vol 1, Tab 3, p 1741. 10. A deeply poignant email from the appellant to Ms Bazley, dated 29 March 2021, is instructive as to the nature of the bond between mother and child, and as to the mother's sense of hurt over being limited in the time she is allowed to spend with her son: "Dear Tanya I would like to start by saying thank you for allowing me the opportunity to put forward evidence to you and your management team for your meeting in relation to further supervised contact between my child and me. Issues I have about why I had chosen not to participate in the supervised contact visits February 20 and March 20 are confounded in the post trauma I am experiencing for the denial of my child from having time to spend with me for almost a year, actually caught up with me emotionally. I'm sure you and your management team can relate being women yourselves. I have been deeply hurt, wounded and oppressed/suppressed because always my child are not allowed to spend time together on special occasions being: • Easter • Mother's Day • Christmas • Birthdays • Or at special places (without being questioned indepth by the department). I am always being told that I am intimidating, harassing (sic), abusive and aggressive to the department of communities justice DCJ. I love my child and to cut me out of such important festive special occasions, which as you know hold a lot of weight within the NSW Education system really is quite disappointing to me and the reality of the facts/importance of these days, as a mother really makes me feel that I have no place of importance in my child's life. He is growing up and these are times that he will remember and the foundations for who he will be and who is important in his life - and there will be no memories of such beautiful times with his own mother. I think maybe I am willingly starting to back out of the picture as I have been pushed away from my child and I do not want him to feel that it is his fault or your fault for me not being allowed in his life in those crucial developmental times for him. But as I am working through my grievances with my psychologist and new AOD counsellor I am reaware (sic) that I do not want to be forced out of my child's life rather I would like to still be allowed to spend time with my outstanding young fellow [the child's full name]." [Exhibit "4", Vol 1, Tab 3, pp 1744 – 1745] 1. This affidavit included an annexure that contained an informative email to the Department of Housing outlining the anti-social and threatening behaviour the appellant was experiencing as a result of the behaviour of mal-intentioned and abusive neighbours. Clearly she needs to be relocated, as is evident from the nature and the content of the threats, as referred to in the following extract: "I returned home yesterday late in the afternoon as I had an appointment in Sydney fighting for my child. As I walked past [address redacted] which is a housing commission property rented by [name redacted] he yelled out, "You filthy grub. No-one wants abos like you around here. Fuck off." I looked over at his house and he was standing at his front door. I ignored him and proceeded to come home. I opened all my windows and tried to relax from his abuse. I then heard him yelling from his backyard, "Do you hear me you filthy grub, you're scum, and I am going to get you." I closed my windows and was very distressed. I called your office and was too shaky and distressed to talk properly and I hung up as I thought there's no point me telling you what is happening as there have been no concerns for my well-being from your office anyway. This morning he was in his backyard yelling out obscenities at me again, "you're gone this time. [Name redacted] (from [address redacted]) told me that you didn't get evicted before. We've had enough of you. You wait this time. You're a filthy abo and we don't want you here. So, Fuck off." I am highly distressed, and I am writing this to let you know. There is no point me contacting the police as when [address redacted] smashed my windows, they did not charge her. I had been in a domestic violence relationship and the police only charged him with assault when in fact after an investigation took place from NSW Victims Services, they found from the medical evidence that it was grievous bodily harm from serious injuries." [Exhibit "4", Vol 1, Tab 3, p 1751] [Names and addresses redacted] 1. In light of those described circumstances, it is unsurprising the appellant is stressed and feels unsafe in her accommodation, as is evidenced by the fact that an invasive assault upon her had taken place at her home. 2. The affidavit annexes evidence (at p 1782), that the Department of Housing has as a consequence of those events, re-activated the appellant's application for transfer to different accommodation. An available place is now awaited. The annexures to the affidavit show (at p 1766), that the appellant has struggled to obtain that result, as well as struggling to have her eviction notice revoked as it was based on incorrect information, which she believed to have resulted from distressing circumstances generated by malicious complaints from her neighbour, a spurned suitor, who had targeted her. 3. At one stage, in September 2020, the appellant's housing circumstances were so dire and dangerous that her treating psychologist, Mr Di Martino, felt compelled to write to the Department of Housing in the following terms: "My name is Marcelo Di Martino and after being referred to me by her GP, I have seen [the appellant] regularly for the last four years. [The appellant] meets the DSM V criteria for a posttraumatic stress disorder with combined major depressive disorder. I was made aware of an incident in which she was bashed and badly hurt on mid-August, this year. As a consequence, her condition has worsened but I am worried about further attacks. In light of the above, I would like to respectfully request and on compassionate grounds, if you could possibly consider an urgent transfer for this patient. Prompt and positive resolution of this case will be greatly appreciated for it will undoubtedly contribute positively to this patient's social and emotional wellbeing. I am very worried for this patient's safety." [Exhibit "4", Vol 1, Tab 4, p 1773] [Names redacted] 1. The appellant's January 2021 correspondence to the Department of Housing and related documents (copied at pp 1774 – 1824), demonstrates that, with little or no success, she has been fighting a long-running battle to have her very real housing issues, and concerns over threats to her safety, taken seriously by the Department of Housing. In her mind, not unreasonably, although perhaps not causally, she has linked that behaviour to the present trouble she is having with DoCJ as their offices are adjacent to each other. 2. A matter of some significance to have emerged from within the annexures to Ms Bazley's affidavit (at p 1820), was a note dated 19 April 2021, which recorded that the maternal grandmother had been encouraged by DoCJ to tell the appointed Aboriginal Assessor, Mr Ralph, of her thoughts and feelings on the issues at the forthcoming assessment by Mr Ralph so that her views could be presented to the Court for this case in the context of the opinions of that expert. This point will be taken up in the analysis of the evidence of Mr Ralph. 3. A further matter of interest within the annexures to this affidavit (at pp 1866 to 1807), was a letter dated 7 March 2021 addressed to DoCJ by Mr Di Martino, in which he referred to the appellant's diagnosis of PTSD, combined with major depressive disorder, where he also referred to the treatment that he has been providing to her. 4. Mr Di Martino referred to the appellant as having made progress in therapy, particularly in the management of anger, impulsivity and anxiety. He asked that this information be taken into account. Mr Di Martino's evidence will be analysed at a later point in these reasons. Ms Bazley's oral evidence in the appeal 1. Ms Bazley was called to give updating evidence as to the care and situation of the child, and contact visit arrangements: T167 – T180. She explained the process of the assembly of her affidavit evidence. Her evidence-in-chief was brief. Nothing of significance emerged from the appellant's cross-examination of Ms Bazley: T172 – T174; T179 – T180. The cross-examination of Ms Bazley by the ILR, Mr Schier, centred on contact visit arrangements: T174 – T179. 2. The essence of Ms Bazley's evidence is that since October 2020, when contact visits were reinstated, the contacts have been positive, and the child has not been upset over seeing his mother getting angry with people: T178..7 – T178.24. Yvonne Gray – Affidavit, 28 September 2020 – the appeal 1. Ms Yvonne Gray, a DoCJ casework manager, prepared an affidavit affirmed on 28 September 2020: Exhibit "4", Vol 1, Tab 2, pp 1656 – 1663. Ms Gray was the person who had DoCJ responsibility for the child's casework since July 2018. She supervised the work of Tanya Bazley. Ms Bazley had taken over that role from Ms Emily Wright. 2. In her affidavit, Ms Gray referred to the procedural history of the matter in the Children's Court where, on 5 November 2018, the scheduled hearing of the case was vacated because the mother had been an involuntary patient in a psychiatric hospital. A further listing occurred on 30 November 2019, at which time the further hearing date of 4 March 2020 was set in the Children's Court. 3. Annexed to Ms Gray's affidavit was a letter dated 30 November 2018 from the Children's Court to the Secretary advising of the new hearing date. The letter contained, amongst other things, a notice to the parties stating: "If you do not attend and have not been excused by the Court, findings and / or orders may be made in your absence": (p 1662). 4. The apparent purpose of that annexure is presumably to base an inference that the appellant received a similar letter. There is no issue on this point as the appellant attended at Court on that date, albeit late. The circumstances will be revisited in connection with the examination of the procedural fairness question. Addendum to care plan – 8 April 2021 – appeal 1. On 8 April 2021, Ms Tammie Shearer, formerly an Aboriginal caseworker, and now a DoCJ manager caseworker, prepared an addendum to the child's care plan dated 4 March 2019 with regard to contact so as to provide for 12 contacts per year between the appellant and her son, for 2 hours at each contact on conditions. Several matters of note emerge from this care plan. 2. Secondly (at p 1821), it appears this regime had been influenced by the maternal grandmother expressing her unwillingness to organise or supervise contact between the child and his mother. It is unfortunate that the maternal grandmother did not give evidence in these proceedings to expose the basis for that position which she has taken, so that it could be explored in appropriate detail. 3. Thirdly (at pp 1821 – 1822), the addendum note to the affidavit quoted a portion of Mr Ralph's parenting capacity report dated 2 March 2021 and a further addendum to that report, dated 8 April 2021, where he made pessimistic comments about future contact between the appellant and her son. 4. Mr Ralph's reports and opinions will be the subject of a review and analysis at a later point in these reasons. Appellant's first affidavit – sworn 26 October 2017 – Children's Court 1. On 26 October 2017, the appellant prepared an affidavit in support of her position in the forthcoming Children's Court proceedings: Exhibit "1", Vol 1, Tab 10, pp 405 – 446. It annexed five documents: 1. Annexure A comprised a detailed narrative statement of the appellant consisting of 34 pages: Exhibit "1", Vol 1, Tab 10, pp 407 – 440; 2. Annexure B comprised a letter from the appellant's treating psychologist, Mr Di Martino, dated 13 September 2017, addressed to the Children's Court Magistrate: Exhibit "1", Vol 1, Tab 10, p 441. That letter recorded the fact that he had been treating her for 2 years with a referral history of post-traumatic stress disorder, a major depressive disorder, and bi-polar disorder type 1 (which he later doubted as to its applicability), where he noted that all conditions were stable. He advised that the appellant was regularly seeing him, her psychiatrist, and her general practitioner, and she was ready to resume her care plan; 3. Annexure C comprised a letter dated 12 September 2017 from the AMS general practitioner, Dr Ivers: Exhibit "1", Vol 1, Tab 10, pp 442 – 443. Dr Ivers said she had known the appellant for many years. She stated the appellant did not have a thought disorder, she was not hypomanic, and she did not at that time have bipolar 1 symptoms (which were apparently diagnosed by someone else on 10 November 2014). She noted that a psychiatric referral was being arranged, but that a considerable waiting time was expected. 4. Annexure D comprised a vehicle alcohol interlock report for the period February 2017 to August 2017: Exhibit "1", Vol 1, Tab 10, pp 444 – 445. No concerns were stated on that report, however, a "test violation" at 0.069 was noted on 21 June 2017; 5. Annexure E comprised a pathology report dated 4 September 2017 which was negative for opiates, amphetamine type solutions, cannabis metabolites, cocaine metabolites and benzodiazepines: Exhibit "1", Vol 1, Tab 10, p 446. Appellant's second affidavit – 12 December 2017 – Children's Court 1. The appellant's second affidavit for the Children's Court proceedings was affirmed by her on 12 December 2017: Exhibit "1", Vol 1, Tab 11, pp 447 – 600. This affidavit dealt with the following matters: 1. It was prepared in response to Ms Whitefield's affidavit of 25 October 2017, and it comprised 40 paragraphs of narrative: Exhibit "1", Vol 1, Tab 11, pp 447 – 467; 2. Annexure A comprised medical and dental notes in short form relating to the child. Nothing turns on those matters: Exhibit "1", Vol 1, Tab 11, pp 469 – 471; 3. Annexure B comprised a police facts sheet regarding a motor vehicle incident that occurred on 2 August 2016 when, after what was described as a domestic altercation between the appellant and her brother's partner, she drove her vehicle with her son in it, into a parked vehicle, just as police officers attended apparently having been called by neighbours. At that time, she returned a blood alcohol reading of 0.180 grams of alcohol in 210 litres of breath: Exhibit "1", Vol 1, Tab 11, pp 472 – 473; 4. Annexure C comprised a copy of an order dated 23 March 2017 revoking an apprehended violence order made on 10 August 2016. The initial order had been taken out against the appellant by the partner of the appellant's brother: Exhibit "1", Vol 1, Tab 11, p 474; 5. Annexure D comprised a mitigatory statement by the appellant regarding events that occurred on 2 August 2016 which led to the police actions referred to above: Exhibit "1", Vol 1, Tab 11, p 475. That explanation places a different complexion on the circumstances as described in the police facts sheet; 6. Annexure E comprised copies of 54 pages of the appellant's diary entries for the period 3 February 2017 to 10 July 2017: Exhibit "1", Vol 1, Tab 11, pp 476 – 528; 7. Annexure F comprised a two page letter written by the appellant to the local area police commander, politicians, the NSW Ombudsman, a local women's centre, NSW Housing, and the Legal Aid Commission of NSW, about traumatic events surrounding her arrest by police officers in her home on 25 June 2015, and subsequent complaints about the behaviour of police officers towards her: Exhibit "1", Vol 1, Tab 11, pp 529 – 530; 8. Annexures G and H comprised letters from FACS dated 31 July 2017 and 30 August 2017, concerning an unresolved housing rental dispute: Exhibit "1", Vol 1, Tab 11, pp 531 – 532; 9. Annexure I comprised 21 pages of FACS documents concerning contact visits on 1 November 2017, 24 November 2017, 26 November 2017, and 2 December 2017: Exhibit "1", Vol 1, Tab 11, pp 533 – 553; 10. Annexure J comprised a pathology report on tests dated 1 November 2017 which indicated no recent excessive alcohol use: Exhibit "1", Vol 1, Tab 11, pp 554 – 555; 11. Annexure K comprised a series of 15 pages of pathology test results for urine samples testing for drug use taken on 3 November 2017; 6 November 2017; 8 November 2017; 10 November 2017; 13 November 2017; 15 November 2017; 17 November 2017; 20 November 2017; 22 November 2017; 24 November 2017; 27 November 2017; 29 November 2017; 1 December 2017; 4 December 2017; 6 December 2017, which did not reveal any illicit drug use: Exhibit "1", Vol 1, Tab 11, pp 556 – 571; 12. Annexure L comprised 15 pages of copies of the appellant's tertiary transcripts, certificates of achievement and degrees in general teaching, education, health science, teacher training, advanced computing, occupational WorkCover induction in health and safety, senior first aid, drug and alcohol emergency first aid, workplace planning competency, and a letter of acceptance into a university course for the degree in Masters of Public Health: Exhibit "1", Vol 1, Tab 11, pp 572 – 584; 13. Annexure M comprised a series of 9 pages of personal references, including on attestations of suitability for teaching approval: Exhibit "1", Vol 1, Tab 11, pp 585 – 593; 14. Annexure N comprised an updated letter dated 6 December 2017 addressed to the Children's Court from the appellant's treating psychologist Mr Di Martino, which relevantly stated: "[The appellant's] condition is currently stable, but she is quite frustrated about not being able to care for her son which (she) has done for all of his life. … She has been making progress in therapy but this issue remains unresolved not having her child under her care has the potential to have a detrimental impact on her general social and emotional well-being." [Exhibit "1", Vol 1, Tab 11, p 594] [Redacted] 1. Mr Di Martino at that time stated that with cognitive behavioural therapy, goal setting, assertiveness skills, training and relapse prevention treatment, her past regular alcohol intake had at that time resolved; 2. Annexure O comprised letters from the AMS dated 31 October 2017 with annexures, and 5 December 2017, in which Dr Ivers, the plaintiff's treating general practitioner, stated the appellant had not been drinking for a long time: Exhibit "1", Vol 1, Tab 11, pp 595 – 598; 3. Annexure P comprised a backgrounding letter dated 27 March 2017 from the AMS relating to a GP Management Care Plan for the appellant's natural father, who was then aged 62 years, and had dementia: Exhibit "1", Vol 1, Tab 11, pp 599 – 600. Appellant's third affidavit – 5 September 2018 – Children's Court 1. The appellant's third affidavit, affirmed on 5 September 2018, was also prepared in advance of a forthcoming hearing in the Children's Court on 5 November 2018: Exhibit "1", Vol 1, Tab 12, pp 601 – 638. 2. This affidavit explained that the appellant could not deal with the prospect of a hearing that was scheduled for 23 February 2018 in the Children's Court because of her homelessness, which resulted from a tenancy dispute. 3. As at September 2018, the appellant was seeking that a restoration of her son take place within 6 months of a hearing, rather than involving a period of 18 months of gradual restoration, as had been suggested by DoCJ at that time. 4. Those parts of the appellant's affidavit which raised factual disputes about antecedent events, as referred to between paragraphs 9 to 19 of the affidavit, no longer require consideration in light of the appellant's concession that has been identified at paragraph [199] above. 5. In this affidavit, the appellant indicated her preparedness to attend relationship counselling with her mother in an attempt to resolve underlying issues that had hitherto affected their relationship (paragraphs 26 to 28). Unfortunately, her mother's voice on that issue, or any other issue, has not been articulated in this appeal. 6. In this affidavit, the appellant described how stalking charges that had been brought against her due to false complaints by a neighbour, and a protracted dispute involving contested allegations over neighbourhood stalking and intimidation, had led to her experiencing a housing crisis which was ultimately resolved at an NCAT hearing that was determined in her favour (paragraphs 38 to 47). 7. The appellant stated she has built a relationship of trust with her treating psychologist, Mr Di Martino. His letter dated 5 September 2018 (at pp 620 – 621), confirmed that the appellant was stable, she was making progress in therapy, she was pursuing her master's degree, she was not in need of psychiatric treatment, and he supported the appellant's application for restoration on multiple grounds. 8. The affidavit (at p 623), annexed a letter from Dr James Heiner, a consultant psychiatrist, who did not consider there was a need to recommend any psychiatric treatment for the appellant. 9. In this affidavit, the appellant confirmed (at paragraph 62), that she had maintained alcohol abstinence for a sustained period, and she annexed supportive material from alcohol counsellors and a mental health counsellor, indicating her compliance with the requirements of her counsellors: Exhibit "1", Vol 1, Tab 12, pp 625 – 626; pp 632 – 638. Appellant's fourth affidavit – 25 November 2018 – Children's Court 1. The appellant's third affidavit, affirmed on 25 November 2018, deposed as to her inability to attend a hearing in the Children's Court scheduled for 5 November 2018, and the consequential difficulties that had followed for her: Exhibit "1", Vol 1, Tab 13, pp 639 – 642. 2. In this affidavit the appellant recounted the stressful events that led to an inability for her to attend at the hearing in the Children's Court on 5 November 2018. In short, following a stressful DRC, and the stress associated with her housing situation, the vandalism that had occurred at her home, and whilst coincidentally at Wollongong Hospital for investigation of an old hip and back injury, she was in a state of upset. Her hospital presentation at that time led to her being assessed by a mental health team and then detained as an involuntary patient between 15 October 2018 and 15 November 2018. She was then discharged without any need for a community treatment order, but she was discharged on psychotropic medication, including in the form of a depot injection. 3. In the ensuing circumstances, the appellant experienced many destabilising disruptions to her life. The medication had affected her functioning. She had difficulties persuading the Department of Housing to obtain safe accommodation for her, she experienced a disruption to, and an inability to complete, her University studies, and all of those matters appeared to have had an adverse impact on her mental health. 4. In those circumstances, whilst the appellant accepted that her son was being well cared for by her mother, she still sought a restoration order, fearing that her relationship with her son may become unduly strained by their continued separation. 5. This affidavit had been filed in the Children's Court proceedings on 6 December 2018, which was well before the hearing that occurred in her absence on 4 March 2019. It may therefore be reasonably assumed that the mother's lawyer was aware of the contents of this affidavit on 4 March 2019. Neither the record of the Children's Court proceedings nor the reasons of the Children's Court Magistrate disclose whether this affidavit had been taken into account on that date when final orders were made. Appellant's fifth affidavit – affirmed on 1 March 2019 – Children's Court 1. The appellant's fifth affidavit, affirmed on 1 March 2019, was an updating affidavit that had been prepared 3 days in advance of the Children's Court hearing on 4 March 2019. It was witnessed by the same lawyer who appeared for the appellant in the Children's Court on 4 March 2019 when the case was called. It is plain from the content of this affidavit that the appellant was intending to appear in order to press her case for the return of her son into her parental care: Exhibit "1", Vol 1, Tab 14, pp 643 – 657. It may therefore be reasonably assumed that her lawyer was instructed accordingly, including with this affidavit. 2. In that regard the relevant aspects of this affidavit are as follows: 1. The appellant was pursuing ongoing psychiatric assessments with her psychiatrist, Dr Heiner, who had prepared an amended report dated 8 February 2019, in which he described the appellant as intelligent and articulate. He said that she was coherently expressing great distress at being separated from her son, and how she felt she had been unfairly treated: Exhibit "1", Vol 1, Tab 14, p 652; 2. The appellant had received psychiatric support as an out-patient, including on 31 January 2019: Exhibit "1", Vol 1, Tab 14, p 643; 3. The appellant did not consume alcohol to excess, she had become engaged for a short time as it turned out, and was having regular positive contact with her son, and was seeking his restoration into her care: Exhibit "1", Vol 1, Tab 14, pp 643 – 644; 4. The appellant was disputing the accuracy of the recorded description of the circumstances of a police attendance at her home, including in respect of the words that had been attributed to her on 15 October 2018: Exhibit "1", Vol 1, Tab 14, p 644; 5. Medical evidence dated 11 February 2019, showed the appellant had not been drinking alcohol since her discharge from hospital on 15 November 2018, she was attending the AMS regularly, her mood was stable, she was "driven" in her preparation for her case in the Children's Court, she loved her son deeply, and had commenced a 6 week parenting course with Family Services Australia, she was seeking a housing transfer far away from her threatening neighbours, and she was anticipating a less stressful existence as a result: Exhibit "1", Vol 1, Tab 14, p 647; 6. The appellant had been compliant with mental health counselling sessions, and was on a medication regime since she was released from hospital: Exhibit "1", Vol 1, Tab 14, pp 656 – 657. The letter from the AMS (at pp 656 – 657), indicated that the appellant's recent instability resulting in her involuntary admission to hospital was due to her alcohol consumption, and since her release on a medication regime, she had "reneged" (sic for re-engaged) with medical services. Continuing improvement was noted. 1. The evidence cited in sub-paragraph (6) above is of great significance for several reasons. First, it convincingly contradicts a submission made on behalf of the Secretary as to the appellant's situation and reasons for being late to Court on 4 March 2019, where it was suggested her lateness was not due to any medical-related issue. Secondly, it paints a picture which, if accepted, raised the realistic possibility of a restoration of her son into her care. Appellant's sixth affidavit – affirmed on 29 May 2019 – appeal 1. The appellant's sixth affidavit was affirmed on 29 May 2019. It was an updating affidavit with annexures: Exhibit "1", Vol 2, Tab 23, pp 736 – 749. 2. This affidavit dealt with the listing history of the appeal (between paragraphs 5 to 27) and provided an explanation for why the appellant had missed her attendances at the District Court mentions on 17 April 2019 and 1 May 2019 after the orders of the Children's Court were made on 4 March 2019. Her explanations were reasonable and understandable. 3. On the first occasion, on 17 April 2019, her Google search led her to attend the Court House at Parramatta. The matter was listed for 1 May 2019. On that date, despite having left home at 6.30am for the 2 hour drive to Sydney, she was delayed because the highway to Sydney was blocked due to a motor vehicle accident, which resulted in her appeal being dismissed due to her non-attendance at the 9.30am listing. It was later restored after a notice of motion seeking relisting was granted. Appellant's seventh affidavit – affirmed on 12 July 2019 – the appeal 1. The appellant's seventh affidavit was affirmed on 12 July 2019. It was an updating affidavit with annexures: Exhibit "1", Vol 2, Tab 24, pp 750 – 765. 2. Between paragraphs 1 and 26, this affidavit dealt with matters of family history and the life the appellant had experienced and enjoyed with her son before he was removed from her care. Between paragraphs 27 and 31, the appellant set out the details of her involvement with the department in 2015, until the department decided to close its file without taking interventionist action at that time. 3. Between paragraphs 32 and 36, this affidavit dealt with problems the appellant had experienced with her son having been bullied at his school, and her housing issues, events which preceded the child's removal. The affidavit recounted her chagrin on learning that her son had been interviewed by DoCJ staff at school, without a support person, without notice to her, a matter which caused her great concern. 4. Between paragraphs 37 and 39, in the context of the Children's Court proceedings that were already on foot after 28 August 2017, the appellant made reference to the original proposal by DoCJ for a 2 year plan for restoration of the child into her care as at 20 September 2018. 5. Between paragraphs 40 and 42, the appellant made references to the DRC on 27 September 2018, which had upset her immensely, her unfortunate domestic situation where there had been a break-in and theft at her home. It was noted that she was scared and upset over that occurrence, and at the department's proposal for a 2 year restoration period. In those events, she considered that she would not attend a scheduled meeting. Clearly, she was in a state of upset. 6. The appellant described her health concerns at that time. She thought she might be suffering from rheumatic fever. Therefore, on 5 October 2018, she cancelled a contact visit scheduled for the next day. This has been wrongfully held against her by DoCJ. 7. Between paragraphs 42 and 49, the appellant described how, on 12 October 2018, she went to hospital for an investigation of her lower back pain from an old injury. The medical staff then arranged for a psychiatric consultation to take place, which resulted in her involuntary admission into a mental health unit between 15 October 2018 and 15 November 2018. It was whilst she was in hospital that she missed the hearing in the Children's Court on 4 November 2018. 8. At paragraph 45, the appellant described how she later learned that on 15 October 2018, the department had changed its decision as to restoration, and was no longer supporting the notion of her child being restored into her care. 9. The appellant had been discharged from the psychiatric hospital with prescribed medication, which is assumed to include psychotropic medication. This included Paliperidone, Epilim and Thiamine, with follow-up arrangements to take place with the AMS. 10. At paragraph 52, the appellant described having arrived at Port Kembla Court around 11.00am on 4 March 2019, only to find that the Children's Court Magistrate had already decided the case notwithstanding that she had rung earlier to let the Court and her lawyer know that she was running late. 11. This affidavit went on to describe some of the adverse consequences the appellant has experienced since that time. She has also described the therapeutic relationship with her psychologist, Mr Di Martino. Annexure B to the affidavit (at pp 763 to 764), comprised Mr Di Martino's letter to Ms Emily Wright, the DoCJ caseworker, confirming the following matters: 1. Between 16 January 2017 and 18 September 2019, the appellant was seen in consultation by Mr Di Martino on a total of some 24 listed occasions; 2. He believed the appellant was capable of taking responsibility for her actions; 3. He had no reason to believe the appellant's claims of being racially denigrated were only her perceptions, and he described how his therapeutic work with the appellant had progressed in assisting her to deal with emotionally charged situations; 4. He stated that if the appellant continued to receive regular support, she would be able to maintain her (then) current state of stability, he identified and listed some support networks to which she had access, and he stated that she did not need referral to other providers at that time. Appellant's eighth affidavit – affirmed on 30 July 2020 – the appeal 1. The appellant's eighth affidavit was affirmed on 30 July 2020. It was an updating affidavit that had a number of annexures: Exhibit "1", Vol 2, Tab 23, pp 766 – 1109. 2. In this affidavit, over the course of 60 compendious paragraphs, supported by 320 pages of annexures (between pages 789 – 1109), the appellant dealt with the following topics: 1. The history of the proceedings; 2. Her background; 3. Her dissatisfaction with the process of removal of the child from her care; 4. Her dissatisfaction with the order made by the Children's Court Magistrate; 5. Aboriginality issues; 6. Her enforced medication regime; 7. Issues to do with her son's school and her interactions with teachers; 8. The role of DoCJ in the Children's Court proceedings; 9. The chronology of the involvement of the police and related documentation; 10. The unexpected involvement of a psychiatrist at Wollongong Hospital when she went there for assessment of a physical complaint on 14 July 2017; 11. Contact issues; 12. Her current circumstances, including her studies, her housing, her lack of support from the AMS since 11 November 2019, her treatment with her psychologist, Mr Di Martino, her financial situation, and the stress associated with the recent death of her father a few weeks earlier. 1. The broad-ranging content of this affidavit is not easily condensed into a short narrative. Essentially, in this affidavit, the appellant acknowledges that her relationship with DoCJ had been strained, but she stated that she has worked very hard to get through difficult times, and stated that she is willing to undertake what is required of her for restoration to occur. 2. The appellant continues to dispute the unfavourable complexion that has been placed on some past events involving conflict with police and school authorities, and her use of alcohol which influenced her behaviours. 3. Nevertheless, the appellant's pragmatic concession as to the justified removal of her child from her care indicates that much of the material as to past events need not be dwelt upon in this case. 4. The appellant identified her reason for attendance at hospital on 14 October 2018 to be for the effects of an earlier back injury in 2010 caused by being kneed in the back by police. At that time, her assessment had been taken over by a psychiatrist, and she then became an involuntary patient on what she described as spurious grounds relating to a dispute with neighbours that ultimately involved the police, where charges had never been laid against her. 5. Relevant to her explanation for her delayed arrival at the Children's Court hearing on 4 March 2019, in this affidavit (at p 772), and without contradiction, the appellant identified the fact that she had been forced into taking what should be inferred as being psychotropic medication since her discharge from hospital on 15 November 2018. 6. That hospital admission required that she be later weaned off psychotropic medication which had affected her gait, her neuromuscular functioning, and was sedative in its effect. In her evidence she pointed to this as being a contributing reason for her being late to the Children's Court hearing on 4 March 2019. 7. At paragraph 39 of this affidavit, between pages 781 and 783, the appellant candidly identified her interactions with police between 2010 and 2017. The evidence suggests that those matters are now behind her. 8. This affidavit identified the pitifully limited contact that the appellant has had with her son since his removal from her care. Throughout those events, the appellant has remained determined to regain her son. 9. Of particular interest is the 11 February 2019 annexure to this affidavit (at p 789), which, at just 3 weeks before the 4 March 2019 hearing in the Children's Court, identifies the opinion of the AMS that the stresses the appellant was experiencing had profound side effects including from the medication that had been commenced in hospital (and by inference, continuing), causing her to have gait and neuro-muscular problems, falls, and sedation. At that time, her mood was noted to be stable, although there were signs of depression, which had improved with Sertraline. She had not been drinking, her mental state was stable, and impressively, her doctor identified her determination, and stated that she would again be able to be "a great mother" to her son. 10. It is plain from the annexures to this affidavit that the appellant's psychological and housing problems were causing her significant stress at that time. Such stress is also plain from the recorded content of her at times abrasive communications with DoCJ personnel (pp 885 – 896). 11. The appellant's attitude to DoCJ (then FACS), was perhaps understandable given that amongst the matters documented in these reasons, the nature of the communications she was receiving from that department. An example was the peremptory undated letter by which she was told (it appears in 2018 but one cannot be certain) that further contact between her and her son "has been placed on hold". This was an understandable source of distress to her: Exhibit "1", Vol 3, Tab 25, p 1101. 12. It seems that the appellant's subsequent pleas for re-consideration by DoCJ were not met with success: Exhibit "1", Vol 3, Tab 25, p 1109. This could only have served to increase her anger at the actions of the department. 13. In those circumstances it is not surprising that the appellant's psychiatrist described her as a determined abrupt lady when outlining the series of battle fronts on which she was experiencing conflict, not all being of her own making: Exhibit "1", Vol 3, Tab 25, p 1108. Appellant's ninth affidavit – affirmed on 26 April 2021 – the appeal 1. The appellant's ninth affidavit was affirmed on 26 April 2021. It was an updating affidavit with annexures. The materials exhibited to that affidavit were: 1. A letter from NSW Health dated 16 April 2021 evidencing the fact that the appellant had re-engaged with the Illawarra Drug and Alcohol Service and was being supported in her goals; 2. A copy of the submissions put to NCAT on 12 April 2021 concerning the appellant's tenancy dispute; 3. A copy of a statutory declaration affirmed by the appellant on 14 April 2021 relating to her tenancy dispute and her unfriendly interaction with a DoCJ worker on 23 February 2021; 4. Copies of NCAT submissions and financial statements related to the appellant's tenancy dispute. In those NCAT submissions reference is made to historical matters where a named neighbour that had once expressed interest in developing a personal relationship with the appellant, which she had rejected, has resulted in mal-intended vindictive false allegations being made against her by, or on behalf of that neighbour; 5. A copy of a letter dated 7 March 2021 from Mr Di Martino was attached and concerned her PTSD condition and her major depressive disorder. His letter had concluded with the following remarks: "[The appellant] has making progress in therapy and particularly in what concerns to anger management, managing impulsive behaviour, managing anxiety and self-esteem enhancement. [The appellant] tells me she has received a notice of eviction. I would like to request, on compassionate grounds, that [the appellant] is not evicted and alternatively, to be granted a transfer to another property as her child was forcibly removed from her in the current property thus producing triggers which spark trauma. I am certain that this will positively contribute to [the appellant]'s social and emotional wellbeing." [Affidavit 26 April 2021, p 25] 1. A copy letter from the appellant's treating general practitioner concerning the management of her depression, anxiety and PTSD. PART C – OPINION EVIDENCE 1. At this point it is appropriate to identify and review the medical and allied correspondence of a factual and historical nature before proceeding to identify and analyse the differing perspectives that have emerged from within the opinion evidence that has featured in this case. The starting point is to examine the factual material as to the appellant's past treatment. That evidence comes from: 1. The AMS and the treating general practitioners; 2. Dr Heiner, the treating psychiatrist; 3. Mr Marcello Di Martino, the treating clinical psychologist. Aboriginal Medical Service correspondence 1. Scattered amongst the thousands of pages of documentary material tendered in evidence in this case were a series of letters from the appellant's treating general practitioner at the Illawarra AMS, as follows: 1. Letter dated 12 September 2017: Exhibit "1", Vol 1, Tab 10, pp 442 – 443; 2. Letter dated 31 October 2017: Exhibit "1", Vol 1, Tab 11, pp 595 – 596; 3. Letter dated 5 December 2017: Exhibit "1", Vol 1, Tab 11, pp 597 – 598; 4. Letter dated 11 February 2019: Exhibit "1", Vol 1, Tab 14, p 647; Exhibit "1", Vol 2, Tab 23, p 789; 5. An undated letter from the AMS drug and alcohol counsellor: Exhibit "1", Vol 1, Tab 14, pp 656 – 657. 1. Also included in the bundle was a letter from the AMS dated 27 March 2017 relating to the medical treatment of the appellant's father outlining his long medical history from 1975 to 2017 which does not require analysis in these reasons but it adds to an understanding of some of the stresses affecting the appellant: Exhibit "1", Vol 1, Tab 11, pp 599 – 600. 2. In recent times the appellant's abrasive behaviour has led to a falling out with the AMS. For the time being, she has been banned from attending, apparently on account of her at times, over-assertive demands. 3. The medical material in the bundle included a letter dated 9 March 2021 from a general practitioner at an alternative medical centre that the appellant now attends. That letter included a copy of the appellant's current mental health treatment plan: Appellant's affidavit 26 April 2021, pp 26 – 28. 4. The latter correspondence confirms the appellant is being treated with counselling and Zoloft medication to deal with her PTSD and her depression. She is also noted as receiving CBT and psycho-social education all aimed at relieving her symptoms and preventing relapse of what is inferred to be acute presentations. 5. The earlier correspondence identified in sub-paragraphs (1) to (5) of paragraph [323] above, in essence confirms the appellant's long history of PTSD, depression and alcoholism. An earlier diagnosis of bipolar disorder has been discounted in the absence of symptoms of that condition. It is evident from that correspondence that the appellant has engaged with treatment for those problems, including psychological counselling and a parenting course was contemplated following the child's removal from the appellant's care. 6. That correspondence reveals the appellant has abstained from using alcohol and has maintained engagement with treatment in the past, including by taking prescribed medication, but relapses have occurred at times of crisis. 7. The correspondence from the AMS records and confirms the appellant's history as recounted in her evidence that she needs a housing transfer due to harassment by neighbours. The correspondence also records the referral of the appellant for psychiatric assistance, although the waiting time to be seen was significant. 8. The 11 February 2019 letter from the AMS is striking, in that just 3 weeks before the Children's Court hearing on 4 March 2019, the appellant's general practitioner had noted that the appellant's depression had lessened, her mood had lifted, her mood was stable, she was not exhibiting anger, she was able to deal with the activities of daily living, and she was taking her psychotropic medication daily. She had been discharged from the care of the local mental health team, and was attending her general practitioner regularly. 9. Significantly, that letter recorded that the appellant was very organised and driven in her preparation for the forthcoming hearing in the Children's Court, she was attending the gym, she was preparing to resume her university studies, she was not drinking or abusing other substances, she was about to commence a 6 week parenting course, she was regularly seeing the drug and alcohol counsellors at the AMS practice, and she had seen Dr Heiner, a psychiatrist, and was waiting for the next appointment at the end of March 2019, that is, after the Children's Court hearing scheduled for 4 March 2019: Exhibit "1", Vol 1, Tab 14, pp 647 – 648. 10. The 11 February 2019 letter from the AMS shows that the appellant had last attended the AMS on 16 January 2019, having been seen on five occasions since her discharge from hospital on 15 November 2018. Significantly, it was noted that on 20 December 2018 the plaintiff had been commenced on Olanzapine and Sertraline, both being psychotropic drugs, and had been on Paliperidone and Valproate in hospital, which had caused profound side effects including sedation, requiring adjustment to her medication regime. Beforehand, the plaintiff had involuntarily received monthly depot injections whilst in hospital, which later required a weaning process. 11. An important factual matter of significance to emerge from the AMS records is that the plaintiff's evidence of the effects of psychotropic medication on her on 4 March 2019 where she was being weaned off her medication, is likely to be correct. After her last depot injection in hospital she was taking Olanzapine and Sertraline on prescription from 20 December 2018 and this was to continue until 18 June 2019: Exhibit "1", Vol 1, Tab 14, pp 647 – 648. The Secretary's submission which cast doubt on her evidence in that regard must therefore be rejected. 12. This evidence was of interest in view of the appellant's uncontradicted evidence that she was, as at 4 March 2019, being weaned off her psychotropic medication, and the effects of her medication regime had affected her ability to ensure her timely arrival at Court on 4 March 2019. Dr Heiner's correspondence 1. On 8 April 2018, at the referral of the AMS, the appellant was seen by Dr James Heiner, a consultant psychiatrist. At that time the appellant was concerned about the Children's Court proceedings, conflict with a number of neighbours and an attempt to have her evicted from her community housing. He recorded a history of the appellant having ceased using alcohol, as evidenced by blood testing. 2. Dr Heiner's second report was dated 8 February 2019. It was in the form of a code compliant expert report: Exhibit "1", Vol 1, Tab 14, pp 650 – 653; UCPR Sch 7. It was prepared in anticipation of the forthcoming hearing in the Children's Court. By that time he had seen the appellant on three occasions. 3. Dr Heiner took a history from the appellant which included her accounts of "quite complicated longstanding conflicts and difficulties with her neighbours", allegations neighbours had made against her, and a history of difficulties she had with school authorities. 4. Dr Heiner noted the appellant had tried very hard to regain custody of her son and there were current proceedings over that question. 5. Dr Heiner noted the appellant's view that she had experienced numerous conflicts and difficulties, and felt there was a campaign of harassment from neighbours, government officials, community services (DoCJ) and others, to the point she believed she was the victim of a conspiracy and was not being treated fairly. 6. Dr Heiner noted the appellant presented as neat and tidy, she looked healthy, she was well presented on the occasions he saw her, she was articulate and friendly, she presented as being intelligent, and she spoke coherently about her various difficulties and problems. He considered there was no evidence of any acute psychotic symptoms or delusions and she showed no signs of an affective disorder. He noted her great distress at being separated from her son. 7. Dr Heiner stated there was no evidence of a formal diagnosis of a psychiatric illness such as schizophrenia or bipolar affective disorder. He noted her past alcohol use was a major factor that contributed to her emotionally dysregulated behaviours in the past. 8. Whilst Dr Heiner did not have objective corroborative evidence of the basis of the appellant's complaints about her neighbourhood difficulties he noted alcohol could have been a contributory factor those problems. 9. Dr Heiner concluded by stating his then current impressions that the appellant had been stable for some time, and on his assessment of her then current presentation, there did not appear to be any reason to believe that the appellant would not be able to safely and appropriately have contact with, and eventual custody of her children (sic): Exhibit "1", Vol 1, Tab 14, p 652. 10. Importantly, Dr Heiner identified the need to ensure the appellant "does not slip back into consuming alcohol". In that regard (at Exhibit "1", Vol 1, Tab 14, p 653), he made the following treatment recommendations: "a) Non-use of alcohol or non-prescribed psychotropic substances. The information I have indicates that she has not been drinking as she had done, and that the behaviours have not recurred. b) Maintaining regular contact with support workers and counsellors. This is described by [the appellant] as having been of great benefit. c) Finding safe, conflict-free accommodation and neighbourhood. [The appellant] has applied for a transfer from the Department of Housing, but I do not know if her application has been accepted or how long such a transfer would take. d) If over a period, [the appellant] proves to be stable, I can see no reason why she should not be able to have more regular, increased contact with her son. At no point through our conversation was there anything to suggest that she "posed a direct danger to her son". The episodes she describes were certainly loud, vocal and distressing but there is nothing in the information I have been given to suggest that she poses a direct physical threat to her son. e) [The appellant] does not accept that her behaviour was a factor that has contributed to the current situation, which is unfortunate. I have explained that the onus is on her to demonstrate that she can be a responsible adult and parent. She has been doing that for the last few months, and it needs to be reinforced that she MUST continue to do so in the future. f) With the history of alcohol consumption, it would not seem unreasonable for her to be FREE OF ALCOHOL IN ORDER TO HAVE CONTACT WITH HER SON. Requiring breathalyser confirmation would be one way of guaranteeing that this was achieved." [Exhibit "1", Vol 1, Tab 14, p 653] [Emphasis as in the original document] 1. A review of the material from the AMS and from Dr Heiner as summarised in the preceding paragraphs identifies an important and a reliable baseline for assessing the appellant's condition and positon in life in terms of stability, hope for the future, and how she could be perceived when she was due to be heard in the Children's Court on 4 March 2019 concerning her quest to regain parental responsibility for the care of her son. 2. I now turn to a review of the correspondence and evidence of the appellant's treating psychologist for a comparative view of the impression recorded in the immediately preceding paragraph. Mr Di Martino's correspondence 1. The analysis of the views of Mr Di Martino looms large in this case because of the significantly greater vantage point he has had to make his observations as the appellant's treating psychologist, as distinct from the lesser opportunities the parental capacity assessors have had to make their observations over the course of time. In that regard, he correctly stated the need for a baseline to be identified before meaningful criticisms of therapeutic progress could be made. 2. The evidence bundles contained various letters authored by Mr Di Martino relating to the plaintiff. They were located in different parts of the materials in differing contexts. So far as I could ascertain, those letters were as follows: 1. A letter dated 13 September 2017 addressed to the presiding Magistrate: Exhibit "1", Vol 1, Tab 10, p 441; 2. A letter dated 6 December 2017 addressed to the Children's Court: Exhibit "1", Vol 2, Tab 11, p 594; Exhibit "1", Vol 3, Tab 25, p 877; 3. A letter dated 5 September 2018 addressed to the appellant's then lawyer who later withdrew from the Children's Court h earing on 4 March 2019: Exhibit "1", Vol 2, Tab 12, pp 620 – 621; 4. An undated letter, probably dated on or shortly after 18 September 2018 addressed to Ms Emily Wright, the DoCJ caseworker: Exhibit "1", Vol 2, Tab 20, pp 763 – 764; 5. A letter dated 7 March 2021 addressed to the Court during the currency of this appeal: Annexure to the appellant's affidavit of 26 April 2021. 1. Mr Di Martino's correspondence shows that in 2017, he considered that the appellant had been making great progress in therapy and he was supporting her in her attempts to regain parental responsibility for her son. He referred to a patient care plan current at that time that involved her general practitioner, her psychiatrist in conjunction with his own CBT treatment in combination with goal setting and assertiveness skills. He considered her to be a genuinely committed mother who deserved the opportunity she was seeking and he identified the need for a prompt resolution of the proceedings which he felt would undoubtedly contribute positively to the appellant's "amelioration" and her son's social and emotional well-being. 2. In September 2018, Mr Di Martino informed the appellant's lawyer of the following, just 6 months before the 4 March 2019 hearing in the Children's Court: "My name is Marcelo Di Martino and after being referred to me by her GP, I have seen [the appellant] in order to provide her with assessment and psychological support. [The appellant] has been my patient for at least three years. I have seen her regularly during this period of time (from fortnightly to monthly depending on both need and availability). The main focus on the sessions in the last 12 months has been her pursuing for restoration of her son under her care. We discussed every issue related to this topic at length and I do not have any concerns regarding this. [The appellant] is well aware of her obligations as a mother in the field of child protection and has acknowledged she understands what needs to be done to have [the child] restored to her care. She has demonstrated this by full filling the initial requirements of the proposed plan for a safe restoration. I am making this reference in relation to [the appellant] application of restoration of care of her son ([the child]) and in addition to other letters I have written in the past [The appellant]'s condition continues to be stable and she keeps on making progress in therapy. She has also been able to carry on with a program of exercising and gym training as well as she has stated she has not been drinking at all. [The appellant] stated she has tests which prove this. [The appellant] has been also pursuing her masters degree at the UOW proving she is capable and strong minded when pursuing a goal. I have been informed [the appellant] has seen Dr James Heiner (a well-recognized local psychiatrist) who assessed her and concluded she did not need psychiatric treatment. I am also aware [the appellant] has been seeing a drug and alcohol worker at the local AMS (Illawarra Aboriginal Medical Service). I believe [the appellant] has made improvements beyond the average in last few months and I will keep on communicating with other professionals involved in her care to ensure continuity of care and consistency. I am of the opinion that [the appellant] has made genuine efforts and achieved positive results proving she is a loving and caring mother who will do just about everything that is right to be with her son. This is consistent with what I have observed when I had the opportunities of seeing them together ([the child] appeared well and securely attached to his mother, well presented, well-nourished and happy). I never found [the appellant] to be an inherently angry or violent person. I never observed any signs that made me believe she is abusing alcohol or other substances. In light of the above, and consistent to what I have expressed in my previous letters, I would like to respectfully request if you could possibly take this information into consideration while representing your client. [The appellant] speaks as a genuinely committed mother and I believe she deserves an opportunity. I am a strong believer in kinship and especially among Aboriginal People so, giving [the appellant] an opportunity, will be also a great opportunity for [the child]. Prompt and positive resolution of this case will be greatly appreciated for it will undoubtedly contribute positively to this patient's and her son's social and emotional wellbeing. [Exhibit "1", Vol 2, Tab 12, pp 620 – 621] 1. At that time, Mr Di Martino had seen the appellant in therapeutic sessions on about 24 occasions, and progress was being made. Until that time, DoCJ were contemplating restoration of the child to the appellant. 2. In Mr Di Martino's updated 2021 letter, he referred to his treatment of the appellant as involving the following therapeutic elements: "• psychoeducation in the background of relapse prevention • observing, monitoring and challenging unhelpful beliefs with the ultimate goal of modifying behaviours • relaxation techniques • establishing a healthy and consistent sleeping routine • cognitive challenging techniques (including problem solving) • awareness of stress triggers and early application of coping strategies to avoid escalation of stress • reminders to check for unhelpful thinking patterns • self-management steps for relapses • anger management paced program (definitions, understanding of trauma, anger management strategies and behaviour modification) • a review of activity pacing and goal setting" [Appellant's affidavit 26 April 2021, pp 24 – 25] 1. At that time Mr Di Martino considered the appellant has been making progress in therapy particularly in respect of her anger management, managing her impulsive behaviour, managing her anxiety, and self-esteem enhancement. He noted, in the context of an impending eviction, that if she were forcibly removed from the current property, this would be likely to produce triggers which spark trauma. 2. I now turn to my review of the written and oral evidence given by Mr Di Martino, followed by the evidence of the parenting capacity assessors, Mrs Griffiths and Mr Ralph. Mr Di Martino's oral evidence 1. Mr Di Martino gave the initial part of his oral evidence on 3 May 2021. His oral evidence continued on 13 May 2021. The appellant had called him as a witness but she was understandably confused as to the procedure that was required of her in asking him questions. The appellant's questioning of him revealed that she did not know how to proceed with relevant questions: T277.22. 2. The appellant's initial questions of Mr Di Martino were aimed at seeking an explanation of his cognitive behavioural therapy (CBT) treatment of her. It was relevant to explore those questions not only because they were relevant to her history but also because of some sceptical critical remarks made by Mr Stephen Ralph, a forensic psychologist, whom the Secretary had retained to provide a parenting capacity assessment to take into account issues relating to Aboriginality in this case. 3. Mr Di Martino explained that the CBT treatment he had been providing to the appellant in the following terms: "A. Yes. A therapeutic - a therapeutic process for complex trauma involves the use of a series of strategies. Cognitive behavioural therapy would be the most basic one in terms of explaining some behaviours by means of evaluating and assessing cognition and trying to - and trying to educate - for use of a better word - the patient into understanding the connection between the psyche and - and it's behaviour. So the idea is to modify cognitions in order to ultimately modify behaviours that may be unacceptable or completely - or problematic for the patient. So it's just one of the strategies in the background of trauma - trauma informed counselling, which is what we usually use as a baseline - as a baseline in psycho education, which means educating the person about information that makes, for example post-traumatic stress disorder, easier to understand in terms of how the past experiences may affect our personal life." [T276.30 – T276.43] 1. In view of the difficulty experienced by the appellant in asking questions of Mr Di Martino, it became necessary for the Court to elicit some matters of substance from within his evidence: s 107 of the Care Act. The questions and the answers are set out in full in the following extract in view of their significance: "HIS HONOUR: I just want to try and keep this within reasonable bounds. And I'm going to ask Mr Di Martino some questions. If you have follow up questions, you, of course, will be able to ask those supplementary or follow up questions, and Mr Dean and Mr Schier may want to ask questions as well. So it's probably best that I get my questions dealt with first. And so this will be a more efficient process. Q. Mr Di Martino, you mentioned post traumatic stress disorder, and [the appellant] has identified that as a problem she has. She's also identified historically a number of other matters that are relevant. For example, what I interpret to be the intergenerational trauma she's experienced from the fact that her mother is an Aboriginal person who was taken from parental care in circumstances that are known as the Stolen Generation events. And in addition, she has given evidence of having been the victim of a sexual assault at the age of about ten, if I recall the evidence correctly. And these are obviously traumatic events for her, and she's had to deal with that in her community. And this has had an apparent ongoing effect in the way she transacts her life and deals you others, if I can put it in those brief terms. Does that summary accord with your formulation of her situation? A. Yes, it is, your Honour. Yeah, there is a story of traumatic events, and in the history of traumatic events, we consider the diagnosis of complex PTSD. Q. Now, I've had the opportunity of observing her at various procedural points along the way of this case has journeyed to its present point. And she has, at times, presented in a discordant, dysfunctional, and unresponsive manner. But more recently, this week, against the background of having had treatment and going on to the drug naltrexone to treat her alcohol issues, it seems to me that she has approached and turned a significant milestone corner in her journey where she's got better insight into what her problems have been. And this comes at an odd point in the timeline, because it's smack bang at the beginning of the hearing of her case where significant events might have been followed. So I'm interested in your insights into the position she has reached psychologically at this point and how you see her future course and commitment to a positive course? If I can put it that way, do you understand my question? A. Absolutely. I always consider [the appellant]a very committed person with her therapy, and she had reached various points of stability of her conditions. Concerns have been in the past that there are circumstances that may work against that improvement. But I see her this time around once again as you have said, your Honour, reaching another cornerstone or milestone in her - in her therapeutic process. And I know that some people may think that the world of faith doesn't have anything to do with psychology, but I do - I do believe she has achieved more than the average person that I treat with post traumatic stress disorder in terms of her own growth and understanding of her situation. And I do believe that [the appellant] can keep on achieving those positive outcomes from therapies. As I said, she's committed. She has gained a great level of insight over the years - not that she didn't have it before but her levels of reflection, into the connection that when she might not fully understand how it works to explain it from her own point of view. But she has a good insight on the way she thinks, acts. It's. Now you find her be as strikingly honest person. I see that in most patients, at times, it's not the lack of honesty but it's hard for them to accept a new situation. They are, for example, with use of drugs or alcohol, people seem to - to avoid taking charge and it takes a long time for that to be achieved. It's not the case for [the appellant]. So that's why I believe that a therapy can always be successful with her. Q. Over the course of your sessions with her, has there been a focus on her level of anger and disappointment at being separated from her son in the sense of having him removed from her care? A. Yes, we have always discussed, your honour, the levels of frustration she feels, and the frustration is the cause of that anger. Q. The evidence in this case reveals instances of frictional confrontation in her interactions with various people, such as schoolteachers, police, people in a therapeutic situation, and with the Department of Communities and Justice. I think that accords with your understanding of the history, does it? A. Yes. Yes, your honour. Q. Now, concomitant with that, she has also exhibited quite a degree of anger about her circumstances as they have evolved to her disadvantage. Do you consider that she is now better equipped in a psychological sense to deal with that anger in a more positive way that is not detrimental to her and her family, and her relationships.? A. I think so, your Honour, in different instances we have worked on that - finding the explanation that due to these past experiences what I have noticed is that [the appellant] does probably react in anger because of the lack of trust of institution, in authority. And I guess that in most times I cannot fully disagree because I understand where the anger is coming from so yeah, I think that at times some people might resent figures of authority without being such and she finds these confronting. The way she says she was treated at the school, for example. And the feeling of - if she doesn't feel safe there and doesn't feel her son is safe there with him at school and leaving her son at that school for a few hours makes her really agitated, yes. Q. She presents herself as a vehement advocate for her son, where she feels the need to intervene in that way. In that in accordance with your understanding of her situation? Did you hear my question? A. I think so. Yes, I believe so, your Honour. Q. I appreciate you carried out what's known as a parental capacity assessment, but from your vantage point as a treating psychologist who presumably sees a variety of people and families within your expertise, do you have a view on her capacity to be a responsible parent? A. Yes, I do, based on the way she speaks about this relationship with her son. And I believe [the appellant] to be capable. I don't have any major concerns. If she was keeping up with her treatment and with being supported by institutions, family and other professionals. Q. In your sessions with her, what you have read about from whatever sources, do you have any concerns whatsoever about her capacity to make best efforts to ensure the health, wellbeing and welfare of her son, if he were to be within her parental responsibility? A. I have read and heard from a variety of sources, that may have been - flat waiting when her condition wasn't stable. But I think that at the base of it - at the base of that relationship and with the right support in place, is why I don't see any concerns. I don't have any objections for that relationship to take place. I understand it's something that cannot happen again over night, and the process itself will tell, I think, that - that that's possible." [T277.29 – T279.40] [Redacted] 1. Mr Di Martino has been the appellant's treating psychologist since 2015: T274.8. This was before the child was removed from her care. In that context, he has had some albeit limited opportunity to see the child on one or two more or less limited informal occasions when he had accompanied her to his appointments so the child would not be left unattended: T280.5. From that albeit limited vantage point, he was able to provide the following background evidence: "Q. And from those limited observations, how did you see the interaction between them? How should it be described? A. A loving and caring relationship. [The child] looked well dressed, neatly dressed and groomed, well fed, happy. I cannot judge attachment to be a secure of safe attachment by observing probably a mother with her son for a few minutes. But what I would say if someone asked me for a - for a quick answer to it, I will say that that's what I observed. I didn't see an insecure child around a mother. I know although that we ought to - make our - be more based on observation - longer observation, more objective in terms of the time applied into it and - and different techniques to assess it, again, I didn't observe any red flags or signs of major concern, in seeing them both together. Q. Is your practice one which also occasionally deals with families and children. A. Yes. Yes, your Honour. Q. Now, I appreciate that you haven't seen [the child] since he was removed from his mother's care, but I'd like you to address a question based on some assumptions I'm going to now outline, it's been said of [the child], that he becomes anxious and upset when he sees his mother displaying anger and being argumentative with others in certain situations. Assume that's correct. A. Yes. Q. And assume that's an historical fact. In light of that problem as it impacted on her son, where do you see [the appellant]'s anger management abilities in the present context, given that history? Are they split events or are they connected events now? A. Assuming that that is correct, as you would say that that has been said about [the child] and that - assuming that that was correct, I think it's a common reaction from a child to feel that way with an upset parent. I think that [the appellant] has made progress in that area as well, but how can we really tell. They haven't been spending much time together with each other. Well, I think, from what I hear and observe from her, is that she has made progress, I think that if there was a process in place eventually in which she could spend more time with [the child] and gradually regain more contact, or the contact she wishes for, we can observe that in the process itself. But even if it that was the case, I don't find anything abnormal in that, it's a reaction that any child will have. No child would be aloof to their parents reaction …" [T280.11 – T281.1] [Redacted] 1. From that albeit limited vantage point, Mr Di Martino considered that there was no insecure or problematic attachment issues between the boy and his mother: T280.17; T281.25. There was no contradictory evidence on that point from any of the other parental capacity assessors. 2. Mr Di Martino was questioned on the appellant's insights and the appellant's approach to parenting, as the following exchange shows: "HIS HONOUR: And Mr Di Martino, this is an important question for me to consider and therefore I'd be benefitted by your views on this subject. Recognising that [the appellant] has made significant achievements in acquiring insight into past problems and how they should be dealt with, I asked her the question of how she would approach the issue of exerting parental responsibility for [the child] if he was allocated into her care. And she seemed to me to be struggling with answering that question. She had an overnight opportunity to consider it. But she's struggling it seems, because she's upset, overwhelmed by the proceedings, and the content and subject matter of the proceedings, and her limited answer to the question has been to focus on her next contact visit with [the child] which is I think on 22 May-- APPELLANT: Without dismaying him. HIS HONOUR Q. And she doesn't seem to be able to see past that at the moment. A. Yes. Q. Can you explain that in a context that makes sense to you and which you can explain to me. A. Yes, yes, I - I believe that there is much hesitation in [the appellant] in regards to being observed and in terms of how is she going to do things to the point that she is second-guessing every move I assume. There is something that we haven't discussed in depth yet, but it looks like she cannot see past that visit because she doesn't know how that visit it is going to go, who is going to be there besides [the child] obviously, how everything is going to evolve and how that is going to reflect on her. It's again that matter of trust that we have been discussing from this perspective of how she feels about the next steps to take. APPELLANT: When is Sorry Day? A. And I think that she cannot see following steps. What she is seeing is the procedure then turned into another night move. If someone asked me how this should happen, I would say it will be a process, isn't it? It is not something that can - can happen just like making a decision overnight and changing everything around. But I think she finds it hard to see this process because she feels as though she will be evaluated along the way all the time. And I - I think that one of the - one of the major capacities that had been affected for [the appellant] is that one of feeling that is being observed and making his own decisions means that she needs to please the system, she needs to please other people nearby. But it doesn't happen in here, at least. So in here she is very open and honest, and I could never say, "I was just wanting to look good on paper." But I think she is resistant of any forthcoming process because she doesn't know what to expect and at times, she's unclear on what people expect from her." [T282.1 – T282.50] [Redacted] 1. Mr Di Martino's evidence showed he had a dedicated commitment to his role of continuing to provide the appellant with supportive psychological treatment: T283.18. In that regard, he was asked for his view as to how the appellant might be able to reach a point where she could proceed confidently as a parent without fear of the disruptive effects of oversight and interference. His response was as follows: "A. Well, I guess that there will be a bit of a goal setting involved to start with. And we need to work on those aspects that will need attention while we keep on doing the work we have been doing with her own issues with PTSD, with her own transgenerational trauma to get her back not only - to me, a stable relationship will not be only raised on the relationship, mother and son, but also with [the appellant] reconnecting with her academic activities, with her social activities..(not transcribable)..this connection from other activities as well that are part of the structure that made [the appellant] the promising that she was at the beginning of this story. So we need - we need to do quite a holistic work in that regard that tackles different areas of her life. Q. I know this is perhaps difficult to predict but what sort of timeframe could you envisage knowing your patient as you do-- APPELLANT: Another ten on it." [T283.30 – T283.44] 1. Understandably, Mr Di Martino could not express a definitive view on how long it would take for the appellant to achieve the therapeutic goals he was contemplating. However, he did indicate that in his clinical assessment, the appellant was not an argumentative or a treatment resistant person: T285.33. He considered that her motivation in seeking therapy was more than just getting her child back, it was also to do with her genuinely seeking treatment to improve her other relationships and her personal goals generally: T285.30 – T285.47. Those assessments suggest the appellant did not exhibit aggressive or disruptive angry behaviour in his sessions and was co-operating with treatment. 2. To an uninformed observer of the circumstances, the evidence given by Mr Di Martino along those lines might have been seen as having been accompanied by the appellant making occasional disruptive non-sequitur comments (T281 – T287), for which she later apologised: T285.26. The unexplained record may not reveal the reasons for her state of upset, but she was plainly distressed and unable to cope with the circumstances: T287.15. 3. It appears that behaviour of hers had been set-off by what she saw as the intrusive presence in the courtroom of the DoCJ caseworker, Ms Bazley, with whom she seemed to have an animosity-laden, tense, if not, hostile relationship: T285.1 – T285.60. In my assessment, those reactions should not be held against the appellant in the context of this case, where emotions have run deep. 4. Mr Di Martino was asked about a perceived issue of a seemingly authoritarian-based element in the relationship between the appellant and her mother. He referred to it in passing as a "mother daughter thing", which had not featured largely in his treatment sessions with the appellant: T286.27. Clearly, that relationship requires some significant sorting. 5. That said, it appeared to me from the appellant's evidence and from the remarks made by Mrs Griffiths and Mr Ralph in their respective commentaries, that the appellant's mother was an absent but nevertheless influential éminence grise in these proceedings. 6. During the cross-examination of Mr Di Martino by counsel for the Secretary, it was revealed that Mr Di Martino's current regime of treatment of the appellant was in accordance with a mental health treatment plan that was approved by Victims Services (T289.49), which gives considerable credence to the appellant's claim of in more recent times having been subjected to an injurious criminal assault which she said had invasively occurred in her home – a notion that was doubted and categorised by Mr Ralph in his assessment as being something of a claim of conspiracy on the appellant's part. Dr Heiner's clinical assessment seemed to be more informed and reliable on that score as the problems Mr Ralph encountered with the plaintiff's behaviour were not evident when he assessed her in a much more calm state. Dr Heiner's history taking was not afflicted by the appellant's hostile behaviour. 7. Mr Di Martino confirmed that he had been made aware that the appellant had been subjected to historical sexual abuse perpetuated by a prominent person and he understandably appeared to me to be appropriately reserved and reticent to adumbrate upon his understanding of the factual matters within that topic in the presence of the appellant in Court: T290.21 – T290.43. 8. Mr Di Martino has been seeing the appellant in sessions at approximately monthly sessions: T291. In comparison, to use the terminology adopted by Mrs Griffiths, Mr Ralph's exposure to the appellant seems to have been a "snapshot" at an unrepresentative moment in time. 9. Mr Di Martino was cross-examined on the nature of the appellant's mental health diagnoses. He confirmed that her condition already met the DSM criteria for the diagnosis of PTSD and a major depressive disorder before he started to see her (in 2015), and he doubted the attributed diagnosis of bipolar disorder which was said to have been made in 2013 as he never saw any indicators for that diagnosis: T292.15. 10. Plainly, Mr Di Martino has had a longstanding and good clinical vantage point from which to reliably reach the conclusions identified in the preceding summary and I accept his evidence in that regard. 11. From the context of interjections from the appellant during the course of Mr Di Martino's evidence it seemed that in the past she had experienced difficulty in securing access to psychiatric treatment: T292.50 – T293.4. In that regard, one of the appellant's interjections was instructive but, not the subject of follow-up: "APPELLANT: I didn't even get this much attention when I was a child." [T293.33] 1. The cross-examination of Mr Di Martino was conducted remotely, and had to be suspended and adjourned to 13 May 2021 because of his clinical commitments. The appellant's disruptive side commentaries, where she was observably upset due to the nature of the evidence, and for which she apologised, did not assist the process: T294.46. 2. Mr Di Martino was asked to consider the prospect where, if in the future the appellant resumed parenting responsibilities, she might resume consuming alcohol to excess at the same time. He considered this risk could be met and kept in check by therapeutic monitoring. The effect of his evidence was that he considered that since alcohol was being used by the appellant as a coping mechanism for dealing with her stresses, if the protective monitoring mechanisms were in place, she would not find it necessary to resort to the use of alcohol. He acknowledged that progress of treatment to a stage where concerns would not exist as to the safety of the child in her care would not occur overnight: T531.3 – T532.5; T533.22 – T533.37. 3. Mr Di Martino agreed that the appellant's adherence to a process for change and improvements in the early days would not result in changes being effected overnight, which required a cautious approach: T534.33. 4. Counsel for the Secretary took Mr Di Martino to a number of historical examples of the appellant's unfortunate anti-social behaviour involving neighbours and police that had reportedly taken place whilst she was affected by alcohol, for example, at T535. 5. Insightfully, in my view, Mr Di Martino considered the analysis of the significance of those events of that kind in terms of causative psychological factors, to be a "chicken and the egg" scenario. Nevertheless, he was asked to consider the potentially damaging effects on the child if he was exposed to such behaviours. His explanatory evidence on that question was reasonably as the following extract shows: "Q. Throughout this hearing, [the appellant] has always been asked about these events. She has denied for the most part that they occurred. Although, she does accept the two spitting incidents. If you assume the court is satisfied that these events, or something like these events, did occur, how does that affect or impact upon your view as to whether [the appellant] has the capacity to be a responsible parent? A. Well, in this set of circumstances, I think also [the appellant] is going through a series of emotional roller coasters, due to the fact that she doesn't have access to her son as much as she would like to. In terms of affecting her capacity of parenting, as I said before, I would like to think that with proper supports in place, she would be able to. I think that she may be inducing the - her grief at times because of that very reason of not being able to be a parent to her son. But I don't know if all the events - I mean, if the court is going to go by, obviously, police statements and assume that all those things occur that she said. Well, most people might want to think that her parenting skills will be affected, but to me that capacity is still there for her to be a good parent to her son. I don't know if this thing did occur again, that she would do the same thing in the presence of her son. Q. Would you accept that if she were to do these kinds of things in the presence of her son, that that could be damaging to him psychologically? A. Well, if it was to be the case, it's obvious that it's not a good example and it will be, of course, some psychological damage there. But as I said, it's - it's like the chicken and the egg. I don't know if she's - if she was acting in this way, I don't know if she's not acting this way because [the appellant]'s not allowed to see her child. The focus of her attention is basically nowhere when she doesn't have her child with her." [T535.27 – T536.3] 1. Mr Di Martino was asked to explain how it was anticipated that the appellant's progress in therapy would result in manifest signs of improvement. His answer was in reassuring terms, as follows: "A. In discussions in therapy, we work on case scenarios, I ask her questions. And in general, the way in which she presents what is happening to her - the way in which [the appellant] is expressing herself, it sounded to me much calmer, more insightful. [T536.37 – T536.40] 1. Whilst Mr Di Martino was not prepared to commit to a precise time frame for the anticipated improvement in the appellant's behaviour to occur (T536.44), he said more sessional therapy work had to be done (T537.3), which would have to proceed slowly and with caution (T537.14; T538.6), during which time the appellant would have a greater opportunity to show her parenting skills (T537.32), which has not occurred in recent times, due to limited child contact and access: T537.43. 2. One of the concerns raised on behalf of the Secretary relates to the appellant's willingness and her mental capacity to work with Government agencies and other services, including with the schools her child would be attending: T539.14. 3. Mr Di Martino said that he has already addressed that issue with the appellant. His evidence along those lines was as follows: "A. No, but it's - it - it sounds like concerns that we have discussed with [the appellant] because of the long family history of - of being part of the Stolen Generation. I explained to her that it's very unfortunate that she will have to work with government agencies and we discussed that at length, if that's the topic that was of concern for those professionals. Is - is that what the concern was, that - that paradox of having to work with government agencies when - when there is this Stolen Generation issues to deal with? HIS HONOUR Q. Just to clarify that, Mr Di Martino, I just want to ask you this, I'm assuming from what you just said, that these conversations are not just casual conversations, but are structured clinical consultations with some objective, is that correct? A. Absolutely. Q. And is that separate and distinct from any cognitive behavioural therapy that you have been administering to [the appellant]? A. Well, in part, it's not. Because there will be a wrong commission there to say, "I am going to work with government organisations." Because it's the government who carried out with the removal of children for generations. So I would have worked around that statement with her. And by changing that commission, we expect to change the behaviour and - and even the attitude towards the possibilities of working with government organisations to achieve that positive outcome that everyone's expecting. [T539.25 – T539.49] 1. In giving the evidence cited in the preceding paragraph, Mr Di Martino was not dismissive of the concerns that were put to him in summary form as had been raised by Mrs Griffiths in her 2020 parenting capacity assessment. He shared those concerns, but with a different emphasis, that is, therapeutically, and not in the critical forensic sense that marked Mr Ralph's approach, as he realistically explained in the following extract of his evidence: "A. Any concerns I may share - I may not share it exactly in the same way or handle the same. But if I share in any concerns, that's why I suggest that if a process is to happen, it can only happen within a therapeutic setting. With a required monitoring and making decisions along the way. As we progress, we've experienced with noting what we can observe in regards to that opportunity. I might not have said exactly the same concern but I wouldn't have any major concerns if I knew that [the appellant] continues her therapy. [the appellant] works cooperatively with government agencies and government agencies will work cooperatively with [the appellant] and myself or any other party involved in her care and in Master [the child]'s care. Q. Doesn't her history including a history of her anger issues, don't they suggest you can't have much, if any, confidence she will work cooperatively with government agencies and support services in the manner you're hoping? A. If I have started every therapy of the thousand therapies that I started with people thinking that's nothing going to change for the better ever, I would have no hesitation for more than one or two sessions and I have seen many people succeeding over the term of therapy. I am not saying I don't have concerns or I don't share part of her concerns. What I'm saying is that I work all the time with those concerns in the back of mind but trying to overcome any barrier that might present so those concerns end up not being there. I have seen cases that are basically right and wrong. I can see this one as being a completely wrong case and, with that, I'm not saying I don't have any concerns. What I'm saying is I work with a premise that things can get better and that things can be attainable by means of doing therapeutic work, having a support network, that is appropriate to each case. If I pass judgment with a first assessment, as I said before, for each and one of my patients, I would have taken very few cases, you know what I mean? Q. There's an element of crystal ball gazing, I think, is what you would accept. A. No, I don't work with crystal balls." [T540.9 – T540.40] 1. Whilst the last question cited in the preceding extract of the cross-examination of Mr Di Martino was withdrawn after discussion (T540.3), it was suggested that the described process was speculative in terms of prospects of success: T540.50. In his response, Mr Di Martino fairly conceded that proposition in a logical sense, and he explained that this was why he was recommending that a process be undertaken in therapy to effect relevant change in the appellant: T541.2. 2. Although in answer to a question put to him in cross-examination, Mr Di Martino stated that he had not been provided with a copy of Mr Ralph's parenting capacity report (T541.12), counsel for the Secretary indicated the intention to take him to some aspects of the report: T541.15. In view of the different underlying contexts the opportunity was taken to first obtain an understanding of Mr Di Martino's view of the appropriateness of the CBT he was providing to the appellant in view of Mr Ralph's dismissive commentary on this topic: s 107 of the Care Act. Those exploratory questions proceeded as follows: "Q. I want to take you to just a few aspects of his - in fairness, there are three reports - I want to take you to some aspects of his first one. HIS HONOUR: Before you do that, Mr Dean, I'd like the benefit of Mr Di Martino's take on something Mr Ralph said in his oral evidence. Q. Mr Di Martino, Mr Ralph was taken to the fact that you in your therapeutic relationship with [the appellant] have been principally providing her with cognitive behavioural therapy and he made the comment, which in effect suggested that the cognitive behavioural therapy doesn't seem to have done much good to date and therefore wouldn't seem to be of much use in the future. That's my summary. Do you agree with that formulation and, if not, please explain why. A. I'll try and explain the first time that I gave evidence. Cognitive behavioural therapy is one of many tools that you can use in the background of using, for example, trauma and so on counselling. I have experience working with a local Aboriginal community and I still have. Cognitive behavioural therapy alone wouldn't do much in these sort of situations but is the most basic tool. I don't know who can do some counselling of psychology avoiding the use of cognitive behavioural therapy. It will be like asking a mechanic not to have a screwdriver in his workshop. Whenever you're hearing a statement that may be wrong, misguided, negative, admits to be changing in order to modify behaviour, which I will say happened at a certain point in time in the therapy, at certain points in time, many times in every therapy you will utilise, even inadvertently, what will be - inadvertently what will be a cognitive behavioural technique. So it's impossible to base - to me in former - it's impossible to base the whole therapy on CBT or cognitive behavioural therapy but it's unavoidable to obtain to challenge a thought not to use these techniques. These techniques that will come up during the session just naturally, during any conversation just naturally. Even if it wasn't a therapy, it would be testing when you want to challenge a wrong assumption or recognition. Q. I'm taking it from your A. So I don't know exactly which context - sorry to interrupt. Q. No, that's all right. I'm taking it from your summary that you've given just now where you refer to techniques that cognitive behavioural therapy was one of the techniques that you were using in your therapeutic encounters with [the appellant]. A. There is a - yes, there is a test (sic for set) of techniques, yes. DEAN Q. Just picking up on something that his Honour may be touching on, Mr Ralph made the observation in his written report that [the appellant] has engaged with you for over three years and his observation is that she's done that without achieving any significant improvement in her adjustment and psychological functioning. Were you aware that he said that? A. No. HIS HONOUR Q. Do you agree with the proposition? A. No, I don't. DEAN Q. You wouldn't accept that A. I don't know how - I don't know how he measure such improvement. Q. Well, you wouldn't accept that her continuing alcohol use, at least as at the beginning of this year, is suggestive that there has been a lack of progress in that therapy to the extent that it addressed the alcohol A. Can Mr Ralph tell me that without therapy this woman would have been worse? I don't think he can." [T541.14 – T542.30] 1. An issue that concerned the Secretary were the instances of the appellant's use of alcohol this year, which counsel for the Secretary acknowledged was different from the concept of continuing use: T542.50. 2. When Mr Di Martino was taken to that topic he said that whilst not disputing there were such instances, he had never observed the appellant to exhibit signs to suggest she was intoxicated at the times when he saw her: T543.9. 3. In response to the suggestion made in cross-examination that between August 2020 and March 2021, the appellant had exhibited impulsive and aggressive behaviours, Mr Di Martino considered that such behaviours would have been worse without therapy: T543.26. This identifies the artificiality of relying upon a forensic assessment alone, where the true effect of therapy has not been identified. It also raises the question of what triggered the appellant's behaviours when they were seen at their worst. 4. The discussion on that issue led to the following evidence: "Q. Well, Mr Dean has identified what I'll call the elephant in the room A. Yes. Q. which is the stress of this litigation. It's quite clear from my observation, as I will explain in my reasons for decision in due course, that [the appellant] has been affected by significant stress during the course of these hearings and that this has caused her to become exasperated and border upon acopia on occasions, to my observation. And one can't ignore that fact that this litigation is not only a current stressor but has been a stressor in her life for some considerable period of time. Do you agree with that summation or not? A. I do agree with that. Q. Now if that stressor is removed by the conclusion of litigation one way or another, do you see a pathway of change in her stress related behaviour? A. The possibilities will be greater, yes. HIS HONOUR: Thank you. DEAN Q. Is it really that simple? A. No, that's why I said the possibilities will be greater. Your Honour invited me to say plainly yes. I'm saying the possibilities will be greater." [T543.37 – T544.9] 1. Mr Di Martino properly acknowledged the obvious proposition that before the child could be returned to the appellant's maternal care she needed to demonstrate "a degree of sobriety", improvement, stability in her mental health, and an ability to work with service providers: T544.15 – T544.34. 2. With some poignancy, and in my view significantly, Mr Di Martino said that from his clinical perspective, he did not see the appellant as a lost case: T545.20 – T545.26. 3. Mr Di Martino explained that he believed the appellant to be a person who had the capacity to work positively within the framework of cognitive behavioural therapy to address challenges to any problematic cognitions she might have because she is an intellectual person who is prone to think logically and who is amenable to clinical conversation, provided her emotions do not take over, these being the effects of trauma, anxiety and depression: T547.28 – T548.8. He was well placed to reliably make that judgment. 4. A topic raised by the appellant with Mr Di Martino, concerned his understanding of her main focus for achieving stability in her life, apart from issues to do with her older brother. The appellant was having difficulty with the unusual circumstance of putting that question to her therapist. However, he had a sufficient understanding of the thrust of the question and he responded that she wanted stable housing accommodation, and he referred to a series of other factors that might arise from time to time: T547.14 – T547.44. 5. Mr Di Martino stated that his sessions with the appellant had flowed well, she always presented well, and she behaved appropriately: T549.15. This leads to the observation that her presentation to Mrs Griffiths and Mr Ralph were very different. This is a matter that requires consideration in terms of the observed differences on the occasions of such presentations. 6. Mr Di Martino was taken to the underlying jurisdictional topic of whether there was a realistic possibility of restoration of the appellant's child into her parental care within a reasonable period: T550.20. The topic was explored in a series of questions to which he responded as follows: "HIS HONOUR Q. Having regard to the therapeutic relationship that you've had with [the appellant], the progress you've seen her make, and your understanding of her personality and behavioural issues that need to be addressed. A. Yes, I believe you asked these questions before, your Honour. What will the process entail is the gradual process of regaining more access Q. Well assume that A. and then consider restoration. APPELLANT: Yes, it is. HIS HONOUR Q. Assume that's the case. I'm interested to know what you regard as a reasonable period. A. If [the appellant] was to continue with her therapy, and assuming that she's going to have support from other agencies Q. Yes. A. I am willing to - to provide more regular sessions than what I have providing. Then working closely with other agencies, which at times doesn't happen, but I would really like this happen. And I'm willing to cooperate, I'm a very cooperative professional I believe. But most times I'm not - people might have not want to work closely with me. Q. No one doubts this at all. But I'm asking this question because you did emphasis before that this doesn't happen overnight. I just want to get some sort of a handle on what you would regard as reasonable period. A. If it has to be a gradual increase of access, permission and involvement of agencies, what other professionals including myself, I would say anywhere within the six period to 12-month period." [T550.31 – T551.13] 1. The further cross-examination that ensued which explored that opinion suggested it was in effect based on a hope that was in turn founded upon an idealistic view: T551 – T552. Mr Di Martino's response was to in effect point to the need for what I will summarise as calling for an expectant approach, this being one of the meanings of the word hope on which he was challenged, where the measurement of parental readiness was required. 2. In answer to that challenge, Mr Di Martino properly pointed out that until the process started, one could not be very objective about it (T552.7), this being what I understood from the context to be the issue of realistic possibility of restoration. He stated that one can only be objective about it if one has objective observations to rely upon: T552.37. That was a fair comment which requires a fair consideration in terms of the interests of not only the mother, but also those of the child. They have not been permitted to have much time together for reliable judgments to be made on that topic. This has served to limit the baseline for assessment. 3. The questioning of Mr Di Martino, and the court room context, raised issues that obviously upset the appellant, and she wanted to ask him questions about what had happened to her in her own childhood. Mr Di Martino indicated he would be making himself available to have that discussion in a continuation of their therapeutic sessions rather than in the courtroom setting: T553.11 – T553.48. The fact that the question was raised at all is indicative of how the appellant remains troubled by that issue, and by inference, her own mother's role in not addressing it earlier, in her childhood. 4. Mr Di Martino was cross-examined by Mr D Schier in his role as the ILR: T554 – T559. The ILR sought to test Mr Di Martino's opinion on the time frame of six to 12 months as the reasonable period for restoration: T554. Mr Di Martino said that parenting skills could not be assessed without any parenting activity taking place. Questions such as abstinence from alcohol use and the absence of adverse interactions with police, the community, or with other organisations, can't be assessed in abstract. The effect of intensive weekly therapy needs to be assessed to see what transpired from that process. 5. In view of the deleteriously causative effect of a misstatement in the Children's Court by the representative of DoCJ that was a stepping stone to the making of final orders that have so vexed the appellant and which has been instrumental in her further downward spiral, if the Court was assessing compensation, it would seem just, reasonable and appropriate that the department pay for the cost of the therapy to address her anger so caused, but these proceedings are not of that nature. 6. The significance of the appellant continuing to use alcohol, given her history with it, was identified in terms of it raising a risk of conflict with people in society, and this was identified as a risk to the child: T556.32 – T556.47. That will obviously be on the agenda as part of Mr Di Martino's proposed therapy. 7. In general terms, Mr Di Martino noted that delay in resolving the issue of contact between mother and child is detrimental to attachment of the child to his mother, which is not a good thing to happen: T556.15. 8. Mr Di Martino emphasised the benefits of the appellant pursuing therapy in her present pressured circumstances of disadvantage, as follows: "A. I hope it won't, I hope - I hope [the appellant] will continue her therapies; I hope [the appellant] will continue her career path. It's another good example for [the child], I think, that has a - a mother that can study and can prosper in life, has the potential to do so. Can she do it in this current situation? I - I don't know; this - this pressure she's under, it's no good at all for her - for her, I can say." [T557.10 – T557.14] 1. Mr Di Martino regarded that anticipated process of considering the appellant's fitness for parental responsibility as representing an incentive that could be reinforced in a team setting. His evidence on that point was as follows: "WITNESS: I would also - I would also like to think that it will be a good incentive, having more opportunities to see [the child] and having people supporting her more closely and - and I cannot stress this enough - and working as a team. I'm willing to do so. I hope that the other agencies are willing to work as a team. It is something that I hardly can ever do. APPELLANT: And for what WITNESS: I base my work - as I said, I base my work in the potential that people have, otherwise I would initiate - I wouldn't initiate any therapy, because at times people come to me completely broken and I have seen them succeeding. But I find it very hard and I think that people find it very hard to work with me, if we are going to be thinking that this can never change for the better. If it doesn't, as I said before, I will be the first one to throw my hand up in the air and say, "Well, this is not happening." And, that's why I proposed the process. To observe, if this is possible, to evaluate along the way, needs to us, maybe for - if it would be better to wait longer, not - not having this relationship happen in full-time to make sure that things get amended. But I'm saying that as time goes by and we don't put that bit of hope and bit of faith in the process, I think that [the appellant] will keep on feeling resentful towards the system and towards everything else that comes with it." [T557.42 – T558.14] 1. It follows, that the appellant should not only accept help in therapy to deal with her alcohol issues, but she should abstain from use of other illicit substances to promote and retain the advances offered by the proposed therapy. 2. Mr Di Martino considered the appellant to be strikingly honest in his clinical contact with her: T558.28. 3. Mr Di Martino's evidence concluded with the appellant raising the topic of her experience of sexual abuse in childhood, as follows: "Q. Marcello, Marcello, Marcello, for someone like me with limited knowledge about certain things in my life, like what happened to me when I was a little girl because of everything else being smashed into my face, like, where would you refer me to, just knowing what you know, from everything I've written to you in texts, like, email, everything over the phone, who would you refer me to?" [T559.37 – T559.41] 1. This raised the question of what Mr Di Martino envisaged as being the provision of appropriate team support for the appellant. Mr Di Martino's response was the following series of concluding statements: "WITNESS: Okay. Well, I can - let me plan this a bit better and I can - I can back to you - I can get back to you with that. But, if - if you need to prove your honesty, for example, in terms of use of substance, alcohol and other substances, that will have to be based on evidence. I don't know how productive for my sessions, if it becomes a weekly session, if to ask every session, have you smoked pot, have you done this, have you done that? But, having a testing system in place for that, having your trauma counselling with me, having a relapse prevention program with some other agency, I think that every - everyone can make a contribution in terms of what - what sort of services - and we can add services along the way to make sure that all of these areas in which I have been questioned are tabled. To me, even being in this Court, and I - I am grateful for everyone to have me there, is also for me to reflect upon what will be the best process and that will cover for all these concerns that I assume that we share for Master [the child] and [the appellant] - and, [the appellant]. So, I can work on it, you know, an on everything but, on everything, or every service that I can think of that can be of benefit for this process." [T560.8 – T560.25] 1. Those matters will be the subject of consideration in dealing with the issues calling for decision. Parenting capacity assessment by Mr Wootton 1. Mr Wootton's opinion as to the viability of restoration to the appellant was given on the proviso the appellant accepted that she was responsible for her child's removal, and that she would fully acknowledge she had a problem with alcohol abuse, and that she understood the psychological precipitants that led her to drink alcohol. Ongoing rehabilitation and counselling was recommended at that time: Exhibit "1", Vol 1, Tab 5, pp 275 – 304. 2. The tenor of Mr Wootton's report was that the appellant had not acknowledged the reason for the child's removal, but if she did, with the appropriate therapeutic assistance of her treating psychiatrist, Mr Di Martino, restoration appeared to be a viable option: Exhibit "1", Vol 1, Tab 5, pp 301 – 302. 3. In his assessment, Mr Wootton recommended a housing transfer for the appellant if the child was to be restored to the mother: Exhibit "1", Vol 1, Tab 5, p 302. The evidence discloses that such a housing transfer was needed in any event. 4. Notably, Mr Wootton identified a communication problem that subsisted between the appellant and her own mother. He stated that this required skilled intervention through relationship counselling to seek to resolve that problem: Exhibit "1", Vol 1, Tab 5, p 303. This has not yet occurred. He noted (at p 279), that there were, according to the appellant, "big barriers" between them. There was no evidence from the appellant's mother to contradict that view. 5. Mr Wootton reviewed the results of his psychological testing of the appellant (at p 290), which indicated some areas that merited further inquiry, namely, her unhappiness, the impact of traumatic events upon her, her sense of identity, her physical signs of anxiety, and her experience of environment stress, amongst other things. The appellant had not disclosed the fact of childhood sexual assault to Mr Wootton. 6. Mr Wootton identified the details of his interview of the appellant's mother, which took place in a park, which was her choice: Exhibit "1", Vol 1, Tab 5, p 273, pp 293 – 294. Interestingly, as at 14 February 2018 (at p 294), he recorded that at that time, the appellant's mother "would support [the appellant] in restoration and strongly believes this is best for [the child] who is often asking when he can return home". 7. Insightfully, (at p 300), Mr Wootton observed that the appellant would be more likely to accept responsibility, gain insight, and improve her functioning through intervention provided by Aboriginal professionals. Professional intervention of that kind appears not to have been achieved up to this point in time. 8. Mr Wootton's report noted that the child held a primary attachment to his mother and he said that this attachment needed to be maintained. Significantly, Mr Wootton stated: "For [the child's] sake, the mother and grandmother should be supported to improve their relationship, possibly through mediation with the assistance of a cultural consultation" [Exhibit "1", Vol 1, Tab 5, p 303] 1. That comment presciently identified a factual matter central to this appeal, namely the broken relationship between the appellant mother and her own mother. This subject will be revisited when considering the requirements of a suitable amended care plan. Parenting capacity assessment by Mrs Griffiths 1. On 26 September 2019, the DoCJ caseworker, Ms Wright, commissioned a parenting capacity report to be undertaken by Mrs Griffiths of Curijo Aboriginal Consultants. That report is very detailed and comprehensive: Exhibit "1", Vol 4, Tab 30, pp 1586 – 1627. The terms of reference for commissioning of that report were to make assessments with regard to the child, the mother, and with regard to any recommendation for restoration and contact. 2. Mrs Griffiths' report must be read in light of a number of considerations. These include the content of her oral evidence in which her opinions were explored, the reasonableness and the acceptability of any matters of fact that she has assumed, and with regard to a relevant matter of reservation or qualification that she has identified in the detail of her report, namely that there is no single psychological or social work assessment framework that can be used systematically to assess parenting capacity: Exhibit "1", Vol 4, Tab 30, p 1589. Mrs Griffiths indicated (at p 1593), that her assessment is to be considered as a "snapshot" of parental functioning and capacity in the overall framework. 3. The Secretary had provided Mrs Griffiths with an extensive briefing of supporting documents that were listed in the body of the report as having been reviewed: Exhibit "1", Vol 4, Tab 30, pp 1591 – 1592. Mrs Griffiths carried out the interviews herself, on various identified dates with identified persons between 13 November 2019 and 22 December 2019. Her report was co-signed by Ms Belinda Kendall and it was checked for quality assurance by Dr Jodie Park, a social worker and family practitioner. The most current affidavit evidence that was considered in the preparation of the report of Mrs Griffiths was the mother's affidavit dated 1 March 2019, the wishes statement of the child dated 4 March 2019, and the care plan addendum of the same date. 4. Mrs Griffiths' report properly set out details of the appellant's history of past difficulties with alcohol, with police, and with school authorities. Mrs Griffiths identified (at p 1595), that the relevant child protection risks identified in this case that impacted upon the appellant's ability to provide a safe and nurturing environment for her son were: 1. The mental health and well-being of the mother; 2. The mother's alcohol dependence; 3. The mother's ability to keep her son safe and work with support services, including educational facilities and community services; 4. The mother's ability to not display aggressive behaviour so her son would not be exposed to this; 5. The mother's ability to keep her son safe within the home and community. 1. Mrs Griffiths recorded a history of the appellant having ceased drinking alcohol and she recorded the mother's view that she considered her alcohol use would not recur again. She also noted that the appellant was prepared to "do whatever it takes" to get her "son back" into her care. Mrs Griffiths noted that the appellant continued to see her therapist, Mr Di Martino, for ongoing trauma informed therapy to assist her with her trauma and anxiety issues. 2. Mrs Griffiths did not manage to elicit from the appellant any disclosures about her PTSD condition, or the concealment of the sexual assault she had endured in her childhood. The appellant expressed some anger at the process and was clearly upset, as was recorded in Ms Griffith's detailed commentary. Mrs Griffiths fairly commented that she believed the appellant "wasn't in a good space mentally" during the interview: Exhibit "1", Vol 4, Tab 30, pp 1601 – 1608. 3. Mrs Griffiths sensed that things were good in the appellant's childhood to a point when something had "changed", but she was unable to get the appellant to elaborate upon that issue: p 1612. She noted the factors of domestic historical violence between the appellant's mother and her natural father, and the background issue of transgenerational trauma. She noted (at p 1614), that the appellant's parenting style for her two children differed, with the youngest child's upbringing having been complicated by the impact of the appellant's alcohol addiction. 4. In Mrs Griffiths' exploration of whether there were risk factors to the child, she noted the appellant had some positive strategies, such as staying fit, abstaining from alcohol and attending appointments with Mr Di Martino, from whose report she quoted. However, Mrs Griffiths felt the risk factors to the child would remain if he were in her care. She pointed to apparent unstable behaviour, ongoing disputes and conflicts with neighbours, a lack of suitable accommodation for herself and the child, her belief that people were "out to get her" and that the appellant was not co-operating with services: Exhibit "1", Vol 4, Tab 30, pp 1614 – 1615. 5. Mrs Griffiths made some detailed observations of the appellant's interactions at family visits, which confirmed the appellant's care and affection for her son, and she noted he had affection for her. She stated that a good loving bond between them was observed: Exhibit "1", Vol 4, Tab 30, pp 1616 – 1620. 6. In addressing the terms of reference for her assessment (at pp 1620 – 1626), in summary, Mrs Griffiths' opinion was as follows: 1. The nature and quality of the bond between the appellant and her son was strong; 2. On the question of the nature and quality of the relationship between the grandmother and the child, Mrs Griffiths placed considerable focus and attention on the grandmother's incredulity that a further parenting assessment was being undertaken, but she nevertheless noted that if the appellant "got her act together and became emotionally stable, she would support [the appellant] in transitioning [the child] back into her care" although she expressed doubt this could happen. Mrs Griffiths noted a very close and loving bond between the child and his grandmother, and noted that the child has said to his grandmother that "mummy needs to get off the grog"; 3. As to the child's wishes, and the weight to be given to them, Mrs Griffiths noted that the grandmother did not want her to talk to the child (beyond making a few cursory observations) because of a concern that if he was questioned he could be "impacted emotionally". The grandmother told Mrs Griffiths that the boy loves his mother although he is fearful of going back into his mother's care as he is settled down living with the grandmother, his step-grandfather, and his two uncles who live in the house; 4. Mrs Griffiths commented that the child appeared to be a well-adjusted happy boy, progressing well at school, with a natural curiosity and he was very proud of his Aboriginal culture and his participation of activities at school. Mrs Griffiths' perspective on this aspect of the analysis seemed (at p 1624), to be focussed on her citation of an extract of an article that stated the notion: "We cannot change the past, however hard we might want to try, but we can make sense of it, and in doing so, move into a healthier future"; 5. Mrs Griffiths concluded (at p 1624), that any change in the present care arrangements would be detrimental to the child's emotional development and "would cause psychological damage beyond description" because of the appellant "not being in a fit state of mind to have [her son] placed back in her care". 1. Mrs Griffiths addressed her assessment of the appellant (at pp 1624 – 1626), in the following terms: 1. Mrs Griffiths believed the appellant did not have the capacity to parent the child. She formed that view because of her observations of the appellant's erratic behaviour at interview, although positive parenting skills were seen to be evident at a family visit, noting that the appellant had a belligerent fixation on the fact of removal rather than reflecting on the reasons for such removal; 2. Mrs Griffiths believed that the appellant did not have the capacity to understand the impact of her behaviour on her parenting ability, and she needs to understand how her actions have greatly impacted upon her son's emotional development, and will continue to do so whilst she is unwell; 3. Mrs Griffiths believed that the appellant is "all consumed with her anger towards the authorities as it is their fault [her son] is not living with her", and she believes the appellant needs "help towards her journey to healing". She identified what she considered to be a confusing issue, namely, that by reason of her teaching degree, the appellant should be aware of the child's "development, physical, emotional and educational [needs]". My reading of the report does not readily reveal that argued confusion. It seems more like a paradox, that may be explained by the stressors affecting the appellant. This will be taken up in the analysis of Mr Di Martino's evidence; 4. Mrs Griffiths believed that the appellant does not "have any understanding of the child protection concerns which have led to the current court proceedings and motivation to address these concerns". In my view, the concession made by the appellant identified at paragraph [17] above, and Mr Di Martino's evidence, suggests otherwise; 5. Mrs Griffiths noted (at p 1625), the appellant's statement that she does not consume alcohol anymore. Mrs Griffiths then went on to make a series of statements that did not appear to have a link to the issue of alcohol consumption; 6. Mrs Griffiths stated (at p 1625), based on her observations made at a swimming pool and at an interview, that she "deems that [the appellant] does not have the willingness, nor the emotional mental capacity to work with Government agencies and other support services" and she believed the appellant's ability to positively parent the child will be significantly hindered "[u]ntil [she] is able to work closely and accept support from professional services"; 7. Mrs Griffiths confirmed that the appellant had expressed a willingness to undertake testing to confirm she was no longer consuming alcohol; 8. Mrs Griffiths noted there were no recent mental health assessments of the appellant. In that context, Mrs Griffiths cited the following statement from Mr Wootton's report dated 14 February 2018: "In my opinion, restoration does appear viable in this matter and will essentially rest with [the appellant's] decision to either accept or reject that she is responsible for [the child's] removal. This acceptance will be more of a guided process than a single decision or epiphany and a conservative prediction is that this will require many months". [Exhibit "1", Vol 4, Tab 30, p 1625] 1. Mrs Griffiths then went on to state her belief (as at 22 December 2019), that the appellant needs "intense therapy and healing"; 2. Mrs Griffiths concluded: "It is not recommended that restoration [to the mother] occur at this time". She also recommended (at p 1626), that family contact visits continue and that conversations need to be age appropriate. 1. In conclusion, (at pp 1626 – 1627), Mrs Griffiths made the following recommendations: 1. The child remain in the care of his grandmother, and step-grandfather on a long-term basis to promote safety, stability and family connection; 2. The child continue to participate in healing and therapy programmes as required to support him to heal from his experiences of trauma; 3. The mother be supported to participate in healing programmes which are culturally safe and address the trauma that she has experienced including intergenerational trauma; 4. The mother should work through her struggles that have resulted in the child being removed from her care, with her psychologist, and that she continue to attend the gym to promote well-being. 5. The mother be provided with support letters to address the housing concerns so she is able to move to another location to support her well-being; 6. The mother and her son should continue their connection through supervised family visits which could be increased although they should only go ahead if the mother is well; 7. A family visit schedule should be developed in consultation with both the mother and the grandmother, with strategies to be developed to identify the mother's well-being prior to any family visits; 8. No more parenting capacity assessments should take place until the mother has shown her commitment to getting well and is well on the way to recovery. Oral evidence of Mrs Griffiths 1. The opinions of Mrs Griffiths as cited above were modified somewhat in her oral evidence. She identified her professional qualifications as having a bachelor's degree in welfare, a master's degree in social administration, a graduate diploma in infant health, and a great deal of practical experience in working with Aboriginal families for over the course of 20 years in parenting programmes and with parental assessments. 2. Counsel for the Secretary clarified four items with Mrs Griffiths arising from her report dated 30 January 2020, as well as an additional matter of Aboriginal culture that emerged from the evidence of the appellant, as follows: 1. The appellant's attitude during the assessment, where she was "quite agitated" was significant, so that the assessment "was difficult to actually carry out". Therefore, her opinion was based on what she had read, plus how the appellant was in the assessment: T450.5 – T450.14; 2. The need for the appellant to take responsibility for the events that led to the child's removal, especially where the appellant was not well mentally, and the impact this was having on the child, which raised the importance of following a therapeutic pathway: T450.16 – T450.25; 3. The impression she gained was that the appellant was "really angry" with DoCJ workers, a matter that also required the appellant to take stock of the situation and take responsibility for what had happened: T450.26 – T450.33; 4. The cultural significance of the child being given the correct Aboriginal totem as part of his Aboriginal identity, which was raised by the appellant as a significant issue of confusion for her son. Mrs Griffiths confirmed that growing up with a mistaken token is a "huge thing" in Aboriginal culture: T456.42. Mrs Griffiths confirmed that if the boy had been assigned the incorrect totem, here kangaroo instead of magpie, it would be very hurtful and very confusing for him, which would explain why his mother was so upset about that: T456.50 – T458.30. Counsel for the Secretary confirmed with Mrs Griffiths that the totem comes from the matriarchal line, so the mother's input would be important, and this should not be the subject of confusion: T458.8 – T458.45. 1. The child's ILR cross-examined Mrs Griffiths: T460 – T470. The following matters were canvased in that cross-examination: 1. The ILR drew attention to that part of Mrs Griffiths' report where she said it was not good for the child's emotional growth to attend family visits and see his mother being abusive to the supervisor. Her answer was as follows: "A. Well, it doesn't - it's not rocket science. I mean, with mum raising her voice to the supervisor and I think Jodie felt – [the child] felt quite embarrassed and he was a little bit tentative, like he wasn't sure what was going to happen. Mentally it's not good for him because he wants the visits to go with mum that he - you know, he doesn't seem (sic) mum much at all, which I think is very sad, but I think, you know, to see mum get angry, that would set alarm bells off - off for him mentally, and in the past, you know, he's seen what happens when mum can get angry. So, it's certainly not good for - like for the visit, but also for - for [the child's] mental health, you know?" [T463.19 – T463.27] [Redacted] 1. Mrs Griffiths identified the ideal solution to be that the mother's access visits could be without such close and imposing supervision because the boy loves his mother very much and seeing his mother being angry with the system of supervision is a "vicious cycle" that causes him confusion. She said the solution is "supervision but in a way that is not so confronting" or unnatural: T463.35 – T464.49. She agreed with the formulation that there was a need for supervisory vigilance but not to the extent of intervention by close proximity unless a safety issue emerged: T465.5 – T465.11; 2. Mrs Griffiths identified the boy's intelligence and perceptiveness as follows: "Q. If [the appellant] isn't able to provide some, I guess, confidence with the supervisors that she is not going to behave inappropriately to contact, would that change any of your recommendations about the frequency of contact? A. When you're sort of looking at futuristic - I think - I can understand where you're coming from. But I'm just thinking of - of [the appellant] with her anger and [the child] with his love of mum. He loves his mum. There's no doubt about it. You know, and - and he's quite a wise young man. But he knows that mum's not well at the moment and he is scared at the time - at times, when mum gets angry. So, I think that - look, there's no easy APPELLANT: Can I just interject. Are you talking past or present? HIS HONOUR: I'm sorry, [the appellant]. Just take a seat for a moment. You can take it that Mrs Griffiths' evidence relates to the matters within her knowledge up to 31 January 2020, which is the date of her report if that assists your understanding. Q. Yes, Mrs Griffiths. A. I'm just trying to think. Look as I said, there's no easy answer but I think you're looking at a child who is suffering and a mum that is suffering. There's no easy answer. So, really, you know, perhaps supervised access but at a distance, you know. Not so visible." [T465.29 – T465.50] [Redacted] 1. Mrs Griffiths clarified that evidence, as follows: "Q. If [the appellant] is to turn the corner, as it were, and put that anger behind her, would it be usefully facilitative for the department to recognise the need for a different caseworker to supervise these contacts, where the baggage of prior history is not in the room? A. That would be ideal. I mean, I can't speak to the department but I don't know. You know yourself when you're being watched all the time or, whatever, you're on edge as it is. And I think [the appellant], you know, loves [the child] and, I mean, looks forward to the visits but she's also very angry. And when things go wrong, it comes to the surface. So there needs to be some therapeutic program for [the appellant] to help her control her anger. But I think also to - to look at - for [the appellant] to meet with the supervisor, as such, before [the child] gets there and - and have a bit of a yarn and sort of get a bit of a relaxed atmosphere happening before [the child] even comes on the scene." [T466.10 – T466.22] [Redacted] 1. Mrs Griffiths identified the appellant's anger that seems to surface at contact visits as justifiable: T466.50. In that regard she summed up the position as follows: "…You know, you've got a child that loves his mum. There's no doubt about that? And Mum loves [the child]. Some leeway has to give here. Otherwise, you're going to have a child growing up that is very confused. And, really, it's going to affect his schoolwork, which you don't want to happen, and also his emotional development." [T467.3 – T467.8] 1. In the child's interests, the ILR asked what the result might be for the child if he were to be restored to his mother before she was able to address her issues with alcohol and with those around her. Understandably, Mrs Griffiths indicated that the child would be devastated: T468.49; 2. The pervading theme to emerge from Mrs Griffiths' evidence was that without doubt, the boy loves his mother, but he is confused, and that confusion can be detrimental to his learning and progress: T469.25 – T469.35. Her response to the question of whether some form of family therapy session could be convened at which the boy and his mother could have the benefit of joint counselling, was unremarkably affirmative, except for the fact this has not been implemented to date. She said: "That would be great if that could happen": T469.42. 1. The opportunity was taken to clarify Ms Griffith's evidence on those matters: s 107(1) of the Care Act. On the issue of the appellant's aggrievement and anger over the fact and manner of removal of the child from her care, and in relation to the circumstances that have occurred since then, Mrs Griffiths confirmed she had not attempted to dissect those elements to determine which of them was operating as a source of perpetuation of the appellant's anger: T452.2 – T452.217. 2. Mrs Griffiths made the point that if the appellant wants to get her son back, she is going to have to find, through therapy, a way of complying with the needs of DoCJ in terms of child safety: T452.20. This emerged as an important issue in her evidence, and in the case, as she identified the fact that although the boy loves his grandmother, "the ultimate aim is, he wants to get back to mum", and she therefore needs to do something about getting rid of her anger, forget about or overcome the past, in the interests of the boy's mental health, otherwise "it's just going to be in limbo all the time": T452.30 – T452.36. 3. Mrs Griffiths confirmed that process required the therapeutic assistance of a psychologist, including a therapeutic intervention to deal with her alcohol issues: T452.38 – T452.50. 4. Mrs Griffiths confirmed that if the result of these proceedings was that the appellant derived some sort of material vindication from the determination that resolves the proceedings, this could be a beneficial and cathartic event that would be likely to significantly ameliorate what has to date been making her angry: T453.1 – T453.40. This seems to be a matter of some significance which requires further consideration. 5. Mrs Griffiths made an uncontroversial perspective comment that on the issue of restoration, assuming that underlying requirements were met, children should be with their parents: T453.34. 6. In the context of the appellant's anger, Mrs Griffiths confirmed that "there's nothing more degrading than how … [the supervision at contacts] is carried out", which makes it very difficult for the mother and the child to have a good contact visit: T455.1 – T455.6. She confirmed that issue was a significant stressor which would be assisted by a therapeutic analysis with a view to changing the regime of contact to something more natural and less discomforting and anger-making for the mother: T455.12. – T455.49. 7. The appellant had the opportunity to cross-examine Mrs Griffiths: T471 – T488. 8. In doing so, the appellant obtained confirmation from Mrs Griffiths that, unlike other interviewees such as herself, the appellant's mother did not agree to a recorded interview: T473.48. That stance was not helpful to the exercise of testing the validity of the grandmother's apparent input in the portrayal of factual matters in dispute. 9. The appellant sought clarification of Ms Griffith's report on her decision about the nature and quality of the relationship between the child and his carers, being the maternal grandmother and maternal step-grandfather, the following exchanges occurred: "Q. Can you please tell me what that sentence means? Because you're the assessor, so. A. I'll read it out: '[The grandmother] advised the assessor that she was concerned about the parenting capacity assessment, she couldn't understand why [the appellant] was allowed to have another one conducted as she is now the guardian of [the child] and she was assured that the one that was carried out last year in 2018 would be the last.' I'm only repeating here what your mum said: '[The grandmother] reported that she was worried about how it would impact on [the child] emotionally because as he is now beginning to settle down. [The grandmother] shared that she has taken [the child] to see a psychologist at Warehouse 17 in Wollongong and reported that his has helped [the child] deal with his anger and frustration. And she stated—' Q. So A. Yeah. Sorry? Q. But I'm the one who's being assessed. I'm the one who's been assessed by every step, so, that's your - that's your writing in your report of me. A. Yeah. Q. Like this - like this is - this is how - how I've been interfered with. I'm not even allowed near my mother without being supervised from you lot. Like, I'm referring to the Department of Communities Justice. A. I'm not with Department of Communities and Justice HIS HONOUR: Mrs Griffiths, you might be at a disadvantage here because what started out as a question directed at you has ended up as comment direct at DOCS. APPELLANT: Well, it's secret women's business. I didn't even know this Jodie until I just read one of the assessor's quality assurance. WITNESS: She's a phycologist (sic) and a social worker. APPELLANT Q. That's why it's difficult for me to express myself as I'm the one who's not allowed to be involved in [the child]'s life because it's care for the child. A. I didn't say that. Q. Well, you referred me back to what my mother had said to you apparently. As you're the assessor, so - and about my mother wanting to be subpoenaed or ordered from [the child]'s care and protection worker. A. I don't understand where you're coming from, [the appellant]. Q. I'm - I'm not here to describe anything. I'm trying to ask you a question and you keep throwing off." [T478.34 – T479.36] [Redacted] 1. The appellant was palpably angry at the time that evidence was given. The issues raised by those questions would have been benefitted by evidence from the absent maternal grandmother. 2. In an answer to a question asked by the appellant on the subject of the child's emotional growth and attending family visits seeing his mother being angry and abusive to the contract visit supervisor, Mrs Griffiths pointed out the following: "A. Okay, it's not good for [the child]'s mental health when you are abusive to the supervisor. What is good for [the child]'s mental health is a positive visit. He's a child. He doesn't need to have that anger around him. He needs to have mum's love and support. So, what is detrimental is (1) mum gets angry and quite verbal to the supervisor, and I understand it's a very difficult situation. I wouldn't like to be in that situation. So, really, it is looking at where the child is coming from and the impact on - on [the child] with those visits when you're angry. He gets scared. [T484.33 – T484.40] [Redacted] 1. The opinions of Mrs Griffiths and the factual foundations for those opinions will be examined in conjunction with the evidence as a whole in connection with the consideration of Issue 5 concerning the probability of a future restoration. Mr Stephen Ralph – first affidavit 5 March 2021 1. On 5 March 2021, Mr Stephen Ralph, a forensic psychologist and Aboriginal assessor, swore his first affidavit, which annexed the expert report which he prepared for the proceedings at the request of the Secretary: Exhibit "4", Vol 3, Tab 21, pp 3027 – 3081. In his oral evidence, Mr Ralph identified himself as a descendant of the First Nation people of this country: T509.20. 2. Mr Ralph's report was prepared in response to a letter of instruction forwarded to him on 22 December 2020. He acknowledged that he was bound by the Code of Conduct for Expert Witnesses. He was briefed with a copy of Exhibit "1" (pp 1 – 1627) and a copy of part of what became Exhibit "4" (pp 1 – 572). 3. Mr Ralph was informed that the purpose of his report was to assess the mother in a parenting capacity assessment. His approach to the task was as follows: 1. He reviewed the extensive historical documents provided to him, he summarised the history and the basis of the proceedings: pp 3049 – 3053; 2. He interviewed the maternal grandmother and maternal step-grandfather; 3. He interviewed the child at a home visit on the same day that he interviewed the grandparents; 4. On the following day, he interviewed the appellant at a library, a venue which she had chosen; 5. He followed-up his interview with the appellant in a telephone interview four days later; 6. He noted the child's father had failed to respond to an initial invitation to participate in the assessment. 1. In the paragraphs that follow, the products of Mr Ralph's interviews are reviewed and summarised. Mr Ralph's interview of the appellant 1. In Mr Ralph's summary of his interview of the appellant (at pp 3054 – 3057), he made the following observations which painted a very bleak picture of the appellant's situation: 1. The initial interview was relatively brief as the appellant had difficulty responding to questions. She reported to Mr Ralph that she had been on "a bender" following the recent incarceration of her older brother, although, at 2.30pm on the day of the interview, he thought she did not seem to be affected by alcohol when interviewed; 2. She was expressing anger and was railing over the intervention by DoCJ, and at what she saw as the mocking and disrespectful attitude of DoCJ caseworkers; 3. She appeared to be thought disordered in her speech, rambling, and not well focussed, and was unable to appropriately respond to questions that were asked about her mental health; 4. He had the impression she was displaying persecuted thought processes that appeared delusional, paranoid, and had a theme of underlying conspiracy against her; 5. He obtained a history of her housing and neighbourhood conflict problems, and how on that day, she had been sprayed with some sort of substance when passing by an unfriendly neighbour's home that morning, and I infer from Mr Ralph's description, that she was upset about that during Mr Ralph's interview; 6. He obtained a history of the limited supports in her life and her difficulties accessing medical services at that time, and that she had been turned away from her local hospital with a Valium in a recent attempt to obtain treatment for her alcoholism; 7. He identified her only supports as being the assistance provided by Mr Di Martino, including by telephone and email. He expressed the opinion that the CBT Mr Di Martino had been providing was unlikely to be helpful to her; 8. He considered that, from his discussion with her, she displayed little insight into what was required in order for her son to be restored into her care. He pointed to a key issue as being her failure to address long-standing concerns around her alcohol consumption, whereas she had been focussing on her need for a housing transfer and getting her licence back. He said she expressed the view to him that she would not have these problems if her son had not been removed from her care; 9. He considered she had failed to appreciate that her non-attendance at contact visits was a contributing factor to the visits being suspended in late 2020; 10. Mr Ralph's impression from his interview with the appellant was that her mental health was very poor, and that she continued to use alcohol, and had displayed little, if any, insight into her son's needs, portraying him as having been "stolen" from her; 11. Mr Ralph noted that on the Friday night before his interview, she had left a voicemail message on his phone with an expletive description, and a critical comment about Mr Wootton's previous assessment in which he had used tests that had been normed for testing people in the USA. 1. On reviewing Mr Ralph's summary I gained the impression, to adopt Ms Griffith's terminology, that the circumstances of this assessment comprised an unfavourable "snapshot" of the appellant. The question is whether it is a reliable or reflective snapshot that should form the determinative basis for making far-reaching decisions in this case. Mr Ralph's interview of the maternal grandparents 1. Mr Ralph interviewed the maternal grandparents together. In that interview, the appellant's mother took the lead, and at times, her step-father added supporting commentary. The following noteworthy matters arise from Mr Ralph's summary: pp 3057 – 3059: 1. Mr Ralph formed the view the child's grandmother presented as an intelligent thoughtful woman who spoke in an open and balanced manner about her family situation; 2. She expressed deep disappointment with her daughter, the child's mother, and at what she described as her daughter's inability to address the identified issues of concern, and the impact of those issues had on the child; 3. She described the mother as being deeply troubled, needing boundaries to be in place in her dealings with the mother, for her own sake and well-being, including for family well-being; 4. She recounted that the child had exhibited anger "after contact visits with his mother" leading to angry outbursts and a violent incident at school, and after contact was suspended, the child's behaviour settled down. It is difficult to determine the true cause and effect from that summary as the appellant's mother's opinion could not be explored in evidence in these proceedings. The difference between a temporal and a causative connection is of some importance in this case; 5. Notwithstanding those described events, the grandmother acknowledged that the child loved his mother and that he wanted to spend time with her, noting she was "not well" and needed the help of "a brain doctor to stop her feeling angry and sad". It was noted the child had received counselling from a child psychologist in 2019 and 2020, but this had ceased, he was far more settled, and no longer required counselling; 6. The grandmother was reported as being concerned about possible adverse implications for the child if he were to be exposed to the mother's poor mental health, anger and adjustment issues at times of contact; 7. The grandmother reported that she has had very little contact with the appellant and that their relationship has always been difficult, and she has sought to distance herself from the appellant, including on account of what was identified as being a volatile and unstable temperament, where she said contact and communication with the mother was often unsettling and distressing; 8. The grandmother was reported to have said that she therefore gave the focus of her attention to the child rather than to the mother as she could not support the mother in view of "the troubled relationship that exists between them"; 9. The grandmother said that she had seen nothing over the years to indicate that the mother was capable of addressing her mental health issues, and she was consistently blaming others for her plight. No examples were given; 10. The grandmother said she believed the child did not wish to return to the care of his mother until such time as she was better. 1. A significant difficulty of concern arises in assessing that evidence as the grandmother has chosen not to participate in the proceedings, notwithstanding her prominent role in the factual background of the case. Mr Ralph's interview with the child 1. Mr Ralph set out the summary of his interview with the child: pp 3059 – 3060. The following matters of note were identified as having arisen from that interview: 1. The child was interviewed at the home of the grandparents; 2. Mr Ralph considered the child to be a bright and engaging young boy who spoke openly about his family situation and about contact with his mother; 3. In the context of recently resumed supervised contact with the appellant, he was "really happy" to see his mother gain, having "missed her" over a 12 month break in contact between them; 4. Mr Ralph decided not to obtain a detailed account from the boy of when his mother was not "good" or when there were "arguments" and "fights with other people", out of concern that this could cause the boy distress; 5. The boy stated that he loves his mother and wants to continue to spend time with her. Mr Ralph's summary stated: "She's kind to me … looks after me … she makes me lovely dinners … she takes care of me"; 6. The boy said it was "really good" living with his grandparents and he enjoyed being at his current school; 7. Mr Ralph cited a description provided by a psychologist who saw the boy in 2018, which stated the boy had "mixed and confused feelings" in his relationship with his mother, and he concluded that description "is, in my opinion still pertinent"; 8. Mr Ralph's impression as that whilst he was happy to spend time with his mother, he wished to remain with his grandparents. 1. Mr Ralph's impressions must be evaluated in light of the evidence when considered as a whole. Mr Ralph's assessment 1. Following the interviews as summarised above, Mr Ralph set out his assessment on the specific matters that he was asked to address, first with regard to the child, secondly with regard to the mother, thirdly with regard to the issue of restoration, and fourthly, with regard to the issue of contact: pp 3061 – 3064. As to the child 1. As to the child, Mr Ralph considered the child's relationship with his mother is marked by a high degree of ambivalence on account of her unwellness, evidenced by his wishes statement. He also considered the relationship the child has with his carers, which has been continuous, positive, loving and trusting, where he depends upon his grandmother as his primary carer. 2. Mr Ralph said that the child does not "think about" returning to live with his mother but he has observed the child has a loving attitude to his mother and hoped that in time she would get better. He referred to the 26 October 2020 Wishes Statement that had been provided to him and suggested that significant weight should be given to that statement. Mr Ralph referred to the boy's rich Aboriginal heritage, and he stated that the grandmother is promoting and growing the boy's confidence in his own Aboriginal heritage. 3. Interestingly, Mr Ralph obtained a history from the grandmother that she had shared the impact that Stolen Generations issues had upon the family, which is different to what she had disclosed to Mrs Griffiths on that topic. It was not possible to explore this topic of significance in the evidence in the absence of the grandmother as a witness in the proceedings. As to the non-restoration recommendation 1. Based on the above considerations, Mr Ralph was firmly of the view that restoration of the child to his mother would not promote his best interests and if it occurred, it would place him in a situation of harm: pp 3065, 3073, 3074. Mr Ralph's assessment with regard to the mother: pp 3065 – 3073 1. Mr Ralph acknowledged that, from the parenting capacity reports of Mr Wootton and Mrs Griffiths which were annexed to the affidavit evidence, that the appellant can perform well in her parenting role when mentally well and when she is not struggling to cope with anger, or other strong emotions, or if she is drinking alcohol to excess. 2. Mr Ralph considered it unlikely that in the foreseeable future restoration would be viable, citing Mr Wootton's view that the appellant has not made the necessary acknowledgments or commitments to date. 3. Based on his interviews, and on the documents and information provided by other family members, Mr Ralph considered the appellant's parenting capacity for her son was less than adequate because she labours under the heavy burden of poor mental health "that has remained untreated in the years" since her son was first removed from her care, and he considered the prognosis for sustained improvement to be poor. He referred to her alcohol consumption on the day of his interview and her continued use of alcohol beforehand. That summation bears close analysis. 4. Mr Ralph referred to his own observations and the previous parenting capacity assessments that had been made available to him, and he concluded that the appellant continues to exhibit significant and major deficits in her parenting capacity to the extent that she is unable to ensure her son would receive an adequate standard of care if he were to be restored into her care. Whilst it was open to Mr Ralph to make that comment on the evidence he had before him, I consider that formulation should be read as being softened in light of the appellant's concession as to the justification for removal in this case, taken together with the fact that she has not had much of a chance in recent times to prover herself. I consider she had been unduly "written off" on that account. 5. Mr Ralph's assessment placed emphasis on the appellant's "untreated mental health disorder and her alcoholism" and the lack of discernible progress on that front in the years that have passed. I consider that Mr Ralph's comment in that regard should be discounted because he did not have a reasonable and measurable baseline from which to make that judgment, as was explained by Mr Di Martino. Mr Ralph's opinion was based on a less reliable snapshot, and not a clinical overview of the kind that was available for Mr Di Martino. 6. Mr Ralph also placed emphasis on his view that the appellant's ability to understand her son's developmental needs has been limited by her lack of involvement in his life since he had been removed from her care. Mr Ralph considered the appellant had little if any capacity for self-reflection and insight into her parenting and into her ability to meet her son's needs. On the basis of the appellant's concession made during the course of the hearing, and Mr Di Martino's evidence, I discount and read down the applicability of that comment by Mr Ralph. Mr Di Martino has painted a different and in my view, a more reliable picture. 7. Mr Ralph also placed considerable emphasis on the appellant's apparent inability to work co-operatively with support services, and be pointed to her being overwhelmed at times by frustration, anger and abusiveness in relation to some service providers "who might assist her", displaying anti-social behaviour which could lead to safety issues within the home, in the neighbourhood, and in the community. It appears he had no confidence in treatment having the effect of ameliorating triggering events that lead to such behaviours. 8. Those matters led Mr Ralph to the conclusion that the appellant displays little if any understanding of child protection concerns that exist in her circumstances, saying she displays "no insight" into her contribution and responsibility to the identified child protection concerns. I do not accept that opinion in light of the appellant's acknowledgment, her evidence generally, and the evidence of Mr Di Martino. 9. Mr Ralph focussed on an example of the mother having become irritated by the presence of some teenagers in the library at the time of her interview, saying this "could well have escalated into conflict in a public place". He also focussed on her tendency to be abusive and intimidating towards others, anger management issues, and emotional dysfunction. He considered that these characteristics have impeded her capacity to engage with support services. In my view, his comments in that regard are unduly critical. A public place such as the library was not an ideal assessment location. The appellant's described state of upset and irritation at the intrusive presence of others was to a degree understandable. 10. Mr Ralph seems to have downplayed the significance of Mr Di Martino's assistance to the appellant, not as a criticism of Mr Di Martino, but rather, as evidence of the appellant's inability to benefit from counselling, a factor he considered would be unlikely to change in the foreseeable future, in view of her lack of acknowledgment of responsibility to date. That view must be read down in light of the significant concession the appellant made during the course of the hearing on that subject. 11. Pointedly, Mr Ralph stated: "In my opinion, the mother has limited capacity to work co-operatively with government agencies and other support services. Her capacity to implement positive change has not been demonstrated, and this remains an issue bearing upon [the appellant's] capacity to move forward from her experience of poor mental health, and to get better. There is reference, for example, throughout the documents reviewed by the writer, of the mother engaging in a negative and abusive manner when dealing with staff from such agencies as DCJ, NSW Housing, NSW Education, and the Illawarra Aboriginal Medical Service. It is my opinion that while the mother remains in denial of her mental health issues, and takes no responsibility for any observed deficits in her parenting and adjustment - and while she continues to abuse alcohol - that there is no likelihood of the mother implementing positive change that might indicate that restoration is a realistic possibility. [The appellant] has been given ample opportunity to address the identified child protection concerns, but the issues that were first identified as a concern in 2017, are still present more than three years on." [Exhibit "4", Vol 3, Tab 21, p 3071] [Redacted] 1. Mr Ralph went on to say that the appellant's failure to address her alcoholism is a significant factor that contributes to her poor mental health and her adjustment issues. He considered this to be a major deficit in her parenting capacity "which undermines any proposal she may advance in relation to her son being restored into her care". 2. In his report (at p 3072), Mr Ralph ultimately acknowledged that in considering the appellant's mental health issues, "she has endured significant adversity and trauma during 2019 and 2020" which "is likely to have led to a further decline in her coping ability and adjustment". In my assessment, the root cause of the denial of procedural fairness and the downhill decline since then is relevant to this analysis. Mr Ralph went on to say: "[The Appellant's] poor mental health remains a very significant issue of concern in relation to her capacity to parent [the child]. It was an issue of concerns in 2015, and again from 2017 onwards, when [the child] was removed from her care. Since then, prescribed treatments and therapeutic endeavours have had little, if any, discernible impact in promoting better psychological adjustment and functioning on the part of [the appellant]." [Exhibit "4", Vol 3, Tab 21, p 3072] [Redacted] 1. Mr Ralph therefore felt unable to make any recommendations for the provision of additional support, given the appellant's "apparent inability to work constructively with service providers". In my view that assessment was unduly harsh as it appears not to have been based on a full analysis of the triggers and the losses in the appellant's life that produced the behaviours of concern. Those matters will be taken up in the consideration of Issue 5, namely future restoration. 2. Mr Ralph summed his views as follows: "To date, [the appellant] appears to have made no progress in addressing this issue, despite her having had the support of counsellors and other health professional in seeking to address this issue." [Exhibit "4", Vol 3, Tab 21, p 3073] [Redacted] 1. Those matters will also be taken up in the consideration of Issue 5 on restoration. Mr Ralph's assessment with regard to contact 1. In addressing the issue of future contact, Mr Ralph noted (at p 3073), that contact arrangements between the appellant and her son had in the past been problematic, this being marked by the appellant's abuse and intimidation of contact supervisors and by the appellant's failure to achieve a consistent stable pattern over time, with cancellations of the visits and her abuse of contact supervisors. 2. The appellant's son keenly wants to have contact with her, as Mr Ralph has observed, subject to her being well. Whilst Mr Ralph identified the basis for his view that achieving a fine balance between the child maintaining a relationship with his mother in accordance with his wishes and needs and protecting him from psychological harm when exposed to his mother's mental unwellness is a vexed problem that will continue to play out given the lack of progress, thus impacting on future viability of arrangements. In my view, three additional ameliorating factors seem to be relevant to the analysis. 3. These are, first, the potential for an emergence of a calming influence on the mother after receiving some vindication for her position in this litigation, secondly, the lessening of the triggering impact of over-intrusive and upsetting close supervision by contact supervisors at contact visits, thirdly, the identification of changed dynamics from an emergent need for an amended care plan. All of those matters would be likely to provide the appellant with a reasonable platform from which to re-approach her role as a mother and her relationship with DoCJ from a more dignified and less denigrated standpoint, supported by her psychologist, and such other modalities as those who treat her consider to be helpful to achieving and maintaining well-being. Mr Ralph's second affidavit dated 23 April 2021 1. Mr Ralph's second affidavit, sworn on 23 April 2021, with annexures appears at Exhibit "4", Vol 3, Tab 22, pp 3082 – 3093. 2. On 7 April 2021, Mr Ralph prepared an Addendum No 1 to his report following an interview with the child's father. On 8 April 2021 he prepared Addendum No 2 at the request of the ILR, Mr Schier, to address some further questions relating to future contact arrangements between the child and his mother. On 21 April 2021, the lawyer for the Secretary asked Mr Ralph to consider an 8 April 2021 Addendum to the previous care plan, and the 20 April 29021 affidavit of Ms Bazley. 3. Mr Ralph had no comment to make on the Addendum to Care Plan or Ms Bazley's latest affidavit. 4. Mr Ralph's Addendum No 1 contained references to the unqualified medical opinions of the child's father as they related to the mother. Those opinions should therefore be discounted. The father indicated that when he had "sorted" himself out, he intended to apply to have contact with his son. It is not necessary to analyse that evidence. 5. Significantly, the father had reportedly stated to Mr Ralph that in his view, the maternal grandmother, who had disdain for him, was "overly-protective" of the child. This is an issue that merited further exploration which would have occurred if the father and the grandmother, or either of them, had given evidence. They were compellable witnesses. 6. In Mr Ralph's Addendum No 2, he addressed the questions posed by Mr Schier, and he responded with the following views: 1. Any contact between the child and his mother should be supervised in view of her poor mental health and alcoholism until such time as she is able to demonstrate a positive change in her psychological adjustment; 2. The mother should be consistent in attending all scheduled contact visits; 3. The frequency of contact visits should be reviewed with a view to increase in duration and frequency if the mother is able to address the issues of concern in relation to her mental health and alcoholism; 4. In those events, fortnightly contact for 3 – 4 hours under supervised conditions, with further increases to be considered at appropriate times as time goes by; 5. Mr Ralph suggested a minimum 12 month evolution period in which the appellant's alcoholism and mental health should be reviewed the requirement of supervision at contact visits is dispensed with; 6. If the mother is unable to participate in contact visits in a consistent and positive manner, this could be problematic for the child and therefore the mother's contact visits should be suspended until she has demonstrated a genuine and sustained effort to address her mental health and alcoholism issues. 1. Those views require consideration in connection with all of the other professional opinions within evidence in this case, and in accordance with commonsense and humanity. Mr Ralph's oral evidence 1. Mr Ralph gave his oral evidence on 12 May 2021: T493 – T524. The following summary of that evidence is necessarily lengthy. In short, he said that he did not see the need to modify or change any aspect of his reports. 2. Mr Ralph maintained his view that there was little likelihood of any change occurring to the child's placement for so long as the appellant maintained her denial of the fundamental issues which led to the child's removal. He also maintained his view that the appellant needed to accept and acknowledge some responsibility for the child's removal in the first place: T494.38 – T494.44. 3. It transpired that on the day Mr Ralph gave his evidence, the appellant felt the need, to use her words, to say she was "buggered", in the sense she was exhausted from having to repeatedly travel to Court for the proceedings and, was she somewhat overloaded with information in the task of cross-examining Mr Ralph. Some of her questions had to be reformulated on her behalf: T519.34 – T522.12. 4. Mr Ralph's evidence on the topic of the appellant's need to address her mental health issues and her problems with alcohol, he considered that taking naltrexone and engaging the ongoing involvement of a drug and alcohol counsellor was positive, but he stated that a level of sustained engagement and commitment was required, including appropriate treatment: T495.1 – T495.16. 5. Mr Ralph acknowledged that it was difficult to specify a required period for those matters to be fulfilled as the situation of each individual was unique, including the various impediments they face in dealing with ongoing issues, noting that there may be periods in which lapses occur. In summary, he considered it important that progress was ongoing and an open commitment was being displayed: T495.33 – T495.46. 6. Mr Ralph's evidence had a sceptical standpoint as to the likelihood of the appellant changing, as he acknowledged in his evidence: T500.33 – T500.50. That scepticism came through in different aspects of Mr Ralph's evidence when questions were raised on the potential for more positive assumptions to be made about the appellant's future, as follows: 1. When his assumption that the appellant was not taking any medication to address her mental health issues, and it was pointed out to him that she was taking the prescribed drug Zoloft, he said that such a regime might be of assistance, but therapy was also required: T496.3 – T496.31; T496.36. – T496.42; 2. He seemed dismissive of the psychological support being provided to the appellant by Mr Di Martino, and on a number of occasions he sought to cast doubt upon its efficacy of that treatment by pointing out that Mr Di Martino had been seeing her over several years without any significant impact on her mental health, and he seemed to downplay or diminish that interaction: T496.15 – T496.21; T502.6. At one point, he said, incorrectly, there was no benefit whatsoever from that treatment: T498.42; 3. He seemed to avoid the question of whether, if the appellant's historical pattern of anger and denial as to the acceptance of responsibility changed, he would be open to express a different prognosis. His response to that question was to say: "It's something of a hypothetical question": T496.49. When that answer was explored, he was asked to engage with an example, so that if there had been a material change in the circumstances of the appellant's denial and willingness to engage in a more meaningful therapeutic relationship aimed at achieving improvement. In response to the question of whether that scenario would lead him to be open to expressing a different prognosis, his answer maintained his scepticism, as follows: "A. In response to that, I would say that this, from my reading of the documents and my understanding of the history, there have been periods where the mother has engaged and has indicated that she would seek treatment. But over the course of time, that is not being sustained. My - my view of the mother's - of the prospect of any significant improvement in the mother's mental health and her overall functioning as a parent and as an individual is not particularly - not particularly encouraging. I guess I looked at the history to this where there's been numerous agencies and other professionals involved who have attempted to work with the mother and, for various reasons, that has been unsuccessful. And during the course of this, there have been lapses in the mother's ability to - to - to function effectively in day to day life." [T497.9 – T497.21] 1. When he was asked whether the appellant's change of position in these proceedings, that is her acknowledgment and concession that the circumstances of the child's removal justified that removal, and whether this could be considered to be a significant charge or turning point from her earlier denial, in his answer he maintained his scepticism as follows: "A. It may be a significant turning point, but I think the - what follows on from there is probably the most important aspect of this in judging whether that is a significant turning point. That is, as I mentioned before, about her engaging in a sustained commitment to work with service providers to achieve sobriety and to - to achieve improved mental health. And although she may be - although [the appellant] may be indicating that she accepts responsibility and that it was justified at the time, I think that needs to be seen in the light of her capacity to actually move forward and onwards from that and address the issues that were a concern at the time of [the child] having been removed from her care, which, from my perspective, those issues were still current as of only a couple of months ago." [T497.33 – T497.43] 1. When the appellant's anger issue was explored in the context that she may receive some vindication from the resolution of these proceedings, and whether this could also represent a significant turning point for a review of the opinions he has expressed, his response did not include any material concessions as appears from the following extract of his evidence: "A. If there was some vindication that was achieved by [the appellant] as a result of the current proceedings, and it was acknowledged that procedurally she had not been treated in a just manner, then certainly it would give her some - some degree of, I guess, satisfaction or the - her anger would be assuaged to some extent. But I think the issue of anger goes back a long - a long - further than simply dealing with the children's court. There's been anger directed at pretty much everybody who she's ever had any association with. And I say that in particularly in relation to service providers, to the point that many - most of the service providers that she has dealt with in the past have declined to have any further dealings with her. So, although it might provide some vindication for her, I think the anger that she displays at times goes far deeper than simply, you know, a - a mistake, for example, on the part of the Children's Court in dealing with the matter." [T498.11 – T498.24] [Redacted] 1. In the context of the appellant's anger being focussed on family issues, Mr Ralph was questioned on the significance of those matters and on the scope for amelioration of the stressors which affected the appellant. His evidence on that topic included the following extract: "Q. You would be aware, I think, that part of her anger is focused upon family issues to deal with what I'll describe as stolen generation circumstances and also the fact that she had been sexually assaulted at a young age. And that these matters have had a materially continuing adverse effect on her outlook on life and behaviours - are you aware of those matters? A. Yes, I do understand that. Q. And you do understand that she has been in therapy with Mr Di Martino for a variety of matters, including those matters, and that such therapy takes time to have an effect. You agree with that? A. I do agree with that. I guess I would just add, though, in relation to her working with Mr Di Martino, that there have been three years of involvement with - with Mr Di Martino. And yet there is, in my observations, my - of assessment of [the appellant], there was nothing that could be observed to indicate that that had been of any benefit to her whatsoever. Q. Whilst that may be so, the changes that I've asked you to assume concerning her acceptance of the reasons for removal and the possibility of vindication being achieved by her, if those are considered to be relevant matters, surely the amelioration of the stressors producing ongoing anger and related behavioural problems would need to be reassessed in terms of changed circumstances - or likely change in circumstances. Would you agree with that proposition? A. I would agree with that proposition. I - I suppose I would like to - to have someone if I was - I suppose what I would like is to have some understanding of what has brought about a change in the mother's view that - or - or her acceptance of some responsibility for the removal of [the child] in the first place. …" [T498.28 – T501.5] [Redacted] 1. On the issue of whether the appellant had expressed a light-bulb moment or an epiphany, Mr Ralph maintained his sceptical view and said that such an event may not necessarily lead to a behavioural change (T501.15 – T501.27), and he went on to define what he meant by the threshold question of whether there was a meaningful relationship with therapy, as follows: "Q. And then I guess, in specific terms, turning to [the appellant] is the answer any different? A. No, the answer is no different. Clearly, given the history to this matter, as I've said before, it would be - it would be a sustained engagement over the course of time with the therapeutic goals established in sets and working with [the appellant] to ensure that those goals would - could be achievable. Q. Now, these are my words, you've expressed what I would describe as some reservations about the efficacy of the therapy that [the appellant] has had with Mr Di Martino. Is that accurate? A. That is correct." [T501.46 – T502.7] [Redacted] 1. He took the position that he would expect to see a lengthy period of engagement and sobriety for "up to 12 months or more": T502.43; 2. Whilst he acknowledged that treatment modalities would be a matter for the clinical judgment of the treating practitioner (T502.31), he was still critical of Mr Di Martino's treatment, as follows: "A. Talking with [the appellant] about the - the counselling that she'd had with Mr Di Martino, she said she found it to be helpful. She said that Mr Di Martino was doing cognitive behavioural therapy with her. When I asked what had been helpful for her or was there any noticeable changes that she could identify, there was nothing that she could refer to. She said that she enjoyed - I'm not too sure if that was the word - but she enjoyed talking with - with her psychologist. But my understanding is that [the appellant's] issues run far deeper than simply cognitive behaviour therapy. Cognitive behaviour therapy has its uses. But I think, in a situation like this where there has been ongoing issues around mental health over several years, the cognitive behavioural therapy alone is not sufficient to be able to address those issues." [T502.11 – T502.23] [Redacted] 1. On the subject of treatment, Mr Ralph gave further evidence, as follows: "Q. For the sake of assessing the future efficacy of treatment, is it necessary to have, perhaps, some insight into why the treatment presently is not efficacious? A. Yes. Generally speaking, if somebody has been through the situation where they've attempted to address their mental health issues with other professionals or practitioners, my view would be that it would be important to understand, well, what has been attempted in the past in terms of therapy and the perspective from the client as to, well, why that has not been beneficial to you. Q. And accepting that it's your view that [the appellant]'s treatment with Mr Di Martino has not been efficacious, are you able to answer the question why that may be the case? A. My understanding - I haven't spoken to the psychologist involved - but my discussion with [the appellant] was simply around trying to get some sense of well, what had happen - what was - what did she do with the psychologist involved? And she mentioned that she'd been undergoing cognitive behaviour therapy. Now, my understanding with cognitive behaviour therapy is that it is - it is efficacious in some situations. But for more complex issues, more complex problems, it's unlikely to be the best option in terms of working with an individual HIS HONOUR Q. On the subject, apart from discussing with [the appellant] what the nature of the treatment was, did you seek to ascertain from Mr Di Martino's consultation records, or his formal formulations for treatment, what he had actually provided by way of treatment to [the appellant] - that is, other than from her own description? A. No. The only contact - the only information I had directly from the psychologist was the correspondence and - and information that he's provided on the court record. HIS HONOUR: Thank you. DEAN Q. But at least, to some extent, I assume the proof of the pudding is in the eating. We've got several years. A. Well, yeah. I guess, you know, after three years of counselling and therapy, I would have thought that there would have been some noticeable improvement in terms of functioning, in terms of sobriety and so on. But my contact with [the appellant] indicated that there was nothing there to indicate that things have moved on from where they were when [the child] was first removed from her care. HIS HONOUR Q. I think you've, in effect, accepted in an earlier discussion that whether one calls it an epiphany or a light bulb moment, such events have the capacity to change the future course of events. Is that correct? A. Yes, sometimes they do." [T502.49 – T503.50] [Redacted] 1. Mr Ralph identified the need for the appellant to show a willingness to seek overall improved functioning in the context of her therapy: T504.14; 2. Mr Ralph expressed a safety concern about the appellant's premises where there was a report of the appellant having problems with a local motorcycle gang, as described in the following extract: "Q. You say in your report on page 17, that "restoration of [the child] to the care of his mother would not promote his best interests and would place him in a situation of risk of harm." What did you have in mind when you wrote that restoration would place him in a situation of risk of harm? A. There's a range of things here. As I've said, the mother's mental health is a concern. The fact that she was continuing to drink alcohol at the time of the interview. She reported, for example, that she did not want [the child] to come back to her house in the current circumstances because of the disputes with the neighbours and the people who came through her house and took things and - and assaulted her. She had a narrative regarding a former partner and his association with a bikie element who had been to her house. She reported - and I was very confused - she reported being raped by - by a motorcycle gang. To me, it was - to me, it was a situation where this was not a safe environment for [the child] to be in. [T504.22 – T505.36] [Redacted] 1. Mr Ralph's commentary on the home safety issue was interesting but difficult to accept. The assumption implicit in his analysis was that somehow the appellant had, by reason of remaining at her place of residence, created a risk of criminal assault occurring in her home, making it an unsafe environment, that is, she had somehow invited trouble and danger. Whilst Mr Ralph was stating that point of view from the perspective of child safety, on a logical analysis, it seems an overly critical commentary on the appellant's ability to provide a safe home for her son. This is so particularly where the appellant has credibly suggested that she is the target of a vindictive campaign against her by some neighbours, and was actively seeking a housing transfer. 2. Mr Ralph reiterated that the child's best interests would be served if he were to remain in his current placement: T506.16. 3. The appellant cross-examined Mr Ralph, but understandably, that cross-examination was not particularly focussed. The key points that were made by the appellant in that context were as follows: 1. Mr Ralph's comments on the re-introduction of supervised contact visits were based on what he considered to be the crucial failure of the appellant to attend them in the past: T508.13; 2. The difference between Mr Wootton's assessment in 2018 to the effect that restoration was viable, subject to the appellant acknowledging responsibility for the child's removal, and Mr Ralph's perspective of non-viability, was his belief that restoration was not viable or was not in the child's best interests: T509.32 – T509.50; 3. Mr Ralph said he did not have great confidence in the appellant's ability to engage with service providers for more than just a limited periods, that is, without disengagement, where problems had resumed if that was the case: T511.30; 4. The appellant took umbrage from Mr Ralph's evidence according to an apparent perception that Mr Ralph had portrayed her in other than "in a positive light" as an Aboriginal woman: T512.18. The question was reframed on the appellant's behalf. The question, and the answer, proceeded as follows: "HIS HONOUR: [The appellant], the workforce is not the issue. Look, perhaps I can ask this question APPELLANT: Back to holistic health, I'm referring back to. HIS HONOUR: that you've phrased in a slightly different way that might get us where you want to go. Or, if not, you can take it up from there. Mr Ralph, are there particular challenges that need to be addressed in managing the treatment of indigenous women with psychological and mental health issues such as those exhibited by [the appellant]? WITNESS: Yes, there are particular issues in relation to addressing those - those matters. In terms of engaging with, for example, we've non Aboriginal professionals, that can be a challenge in itself in terms of issues of trust and developing a functional therapeutic relationship with them. Most psychologists, psychiatrists in the workforce are non indigenous, and it's often an issue around trust and an issue around cultural understanding and being able to have a clear view or understanding of that individual circumstances in life and what's important to them due to differences in culture." [T513.1 – T513.19] [Redacted] 1. In the course of asking a question to Mr Ralph, the appellant digressed and expressed her resentment at "these overseers [having] a lot of input into making decisions as to assessing [her] as a parent": T514.45. The appellant was disheartened by his comments concerning his assessment of her as a parent: T508.46. 2. A moment arose in Mr Ralph's evidence requiring that the appellant be advised of the possibility she may need to clarify a discussion that Mr Ralph had included in his report referring to a suggestion that she may have been raped in her home by members of a motorcycle gang associated with a former partner of hers: T515.5 – T515.41. The appellant stated that she did not know how to ask him a question, which I interpreted to mean she did not know how to ask a question on that topic: T515.19. 3. Mr Ralph stated that he would not have made that particular comment if the topic had not been raised by the appellant at the time he interviewed her: T515.48. 4. The topic raised a question as to whether the reference to rape in the home was a factual statement of the appellant having been sexually assaulted or whether it was a metaphorical reference to her dire circumstances, a possibility raised by Mr Ralph. 5. The appellant had the opportunity of clarifying that matter but she became side-tracked with her questions to Mr Ralph despite having had her attention drawn to that issue. In those circumstances, I recorded that in view of the lack of clarity on the point, further speculation on it was not appropriate: T517.5 – T517.13. 6. Mr Ralph acknowledged that the child needed to be "accustomed" in his cultural background: T518.34 – T519.11. 7. Mr Ralph seemed to have based his opinion as to the difficulty of foreseeing change in the appellant in the future as follows: "WITNESS: Your Honour, my comments there in relation to the history of contact which has been stopping and starting from various times, has been suspended because of the mother's inconsistency in attending ,as being suspended as a result of abuse of supervisors, the APPELLANT: Yes, that's all on the tape already. HIS HONOUR: Just wait for the witness to finish, Ms H. APPELLANT: He's just re-hashing everything. WITNESS: The HIS HONOUR: Go on. WITNESS: The history of contact has been one that contact has been disrupted as a result of the behaviour displayed by the mother in not attending at times and at times attending and engaging in angry outbursts against contact supervisors and others who may have been present at that time, in the presence of [the child]. There was nothing in this situation, given that Ms H had apparently - well, at the time, had appeared to have made no progress in addressing her issues with alcohol or her mental health and that there was nothing that had changed in the situation to suggest to me that contact - future contact was going to be any different than what it had been in the past." [T520.19 – T520.42] [Redacted] 1. The ILR sought to explore a question over the efficacy of the treatment provided by Mr Di Martino, as follows: "Q. Mr Ralph, I'm [the child's] independent legal representative, can you hear me okay, first of all? A. I can hear you okay. There's a bit of an echo, but I can still hear you okay. Q. Okay, thank you. Firstly, when I ask this question, I'll firstly ask you whether you can confirm if you're qualified to answer it. And the question is this, how important is it for [the appellant] in her therapy with Mr Di Martino - or any other therapist you may engage with - to fully inform that therapist of her alcohol abuse issues and any occurrences with police or other problems that she's had with other people in society? A. I think in any - any therapeutic relationship with somebody who's working with somebody to improve their mental health, openness and honesty and a willingness to disclose information that even may be somewhat negative - that needs to be part of the whole process. It's meant to be an - an open and honest engagement with a counsellor who is fully - who is able to become fully aware of the circumstances of the individual. HIS HONOUR: As I understand it, the clinical relationship is not an occasion on which one makes speeches of disclosure. Information comes out in answer to questions asked insightfully by the acumen of the clinician. Is that a fair assumption? WITNESS: I think part of the initial engagement in a therapeutic process is an understanding of the issues around openness and a willingness to disclose matters that are relevant to - to the individual's day to day functioning at that time. And if there are matters around sobriety, for example, that are not mentioned, then it - it doesn't bode well for an achievement of, you know, better functioning through a therapeutic process. HIS HONOUR: Yes, but you do appreciate the difference between withholding information and simply not providing information because questions about that information were not asked. WITNESS: Yes, no, I appreciate the difference there." [T523.12 – T523.45] [Redacted] Conclusions on evaluation of opinion evidence 1. The evidence of the appellant, and that of the DoCJ caseworkers and contact workers alone, is an insufficient basis upon which to determine the issues calling for decision arising from the factual circumstances of this case. The opinion evidence, and its reliability must be assessed. 2. The evidence comprising the opinions of the appellant's treating psychologist and her treating medical practitioners, and the opinions of the independent parenting capacity assessors must be evaluated in terms of reliability for guidance to the evaluative task of determining the central issues in this case. 3. The starting point for the evaluation is to recognise that all the opinion givers approached the task from their different perspectives, and the exercise is not aimed at resolving contests or conflicts between those opinions. Instead, expert evidence guides, but does not determine, the issues to be decided. 4. The opinions of those persons who have been treating the appellant (her general practitioners, her psychiatrist Dr Heiner, and her psychologist Mr Di Martino), gained their perspectives from the clinical relationships that have had with the appellant over the course of time. 5. That said, on reviewing their evidence, I do not discern any reasonable basis for concluding that the opinions of those treating practitioners should be discounted on account of a possible sub-conscious bias in favour of their patient, or by reason of a possible contaminating effect due to the existence of a clinical relationship, or a possible perception of bias on account of a possible lack of objectivity. 6. The opinions of the respective parental capacity assessors (Mr Wootton, Mrs Griffiths and Mr Ralph) were sought in order to obtain objective views on the historical material they had before them, augmented by the observations they made at relevant interviews, as they described, and most importantly, the impressions they gained from their contact with and their assessment of the appellant on the occasions they each separately met with her in the assessment setting. It is plain from an examination of the reports of the respective parental capacity assessors that they approached their respective tasks in methodical and reasonable ways. However, their commentaries still require evaluation. 7. On one side of the analytical balance, the common element evident in each of the parental capacity assessments is that on each of the separate occasions of their respective assessments, the assessors saw the appellant's anger driven behaviour in what for her, was a resentful adversarial setting, where she felt that she was being scrutinised in a system she felt was weighted against her. Accordingly, to varying degrees, they saw the negative aspects of the appellant's behaviour on display and properly based their opinions on that glimpse or "snapshot" of what they saw on these respective single occasions. On those occasions it is clear that she was not putting her best foot forward. 8. On the other side of the analytical balance, the practitioners who have been treating the appellant for her anger-related issues, and her issues concerning her use of alcohol over the course of time, have each had cumulative opportunities to build up a clinical picture of the origins of the appellant's anger and her resort to alcohol, where these factors, together with her housing issues and her history of trauma, have driven her behaviours, which have in turn led to her present problematic situation, including the removal of her child from her care, and the chaotic effects that all of those matters have had on her life's circumstances. 9. Mr Di Martino has aptly portrayed the analysis as the chicken and the egg question as to the cause of the appellant's anger, as cited at paragraph [379] above. As I interpret that evidence, it seems that if the triggers continue to provoke the appellant's anger, those triggers need to be appropriately addressed in order to reduce or manage the anger. 10. In the mix of opinions, I consider that Mrs Griffiths offered a most insightful observation that serves to guide the described exercise that I must undertake, when she said that her assessment process must be seen to be a "snapshot" opportunity to observe the appellant when assessing her parental capacity, of course not ignoring that she had other materials she considered and analysed. 11. In considering Mrs Griffiths "snapshot" explanation, it is clear that the same observation should be seen to apply to the earlier assessment made by Mr Wootton, and the subsequent assessment undertaken by Mr Ralph. In making that observation at this point, I intend no criticism of the manner in which any of the parental capacity assessors conducted their assessments or the way in which they argued and expressed their conclusions. 12. The basis for and the conclusions of the respective treating practitioners and the respective parental capacity assessors has been extensively set out in the evidence review at paragraphs [411] to [521] above and that review does not need to be further summarised at this point, other than as now follows. 13. On the basis of their respective clinical observational advantages gained on multiple occasions over a significant period of time, on my assessment of the evidence, I consider that the opinions of Mr Di Martino, Dr Heiner, and the respective general practitioners who have been treating the appellant, should carry greater persuasive weight compared to the opinions of the respective parental capacity assessors, namely Mr Wootton, Mrs Griffiths and Mr Ralph, when considering the appellant's parental fitness at the time the case was dealt with in the Children's Court. The parental capacity assessors carried out their assessments in less than ideal circumstances (at least in the case of Mrs Griffiths and Mr Ralph), and the appellant was displaying her anger at the circumstances. 14. My reasons for that view will be more fully identified in the consideration of Issue 3, namely, whether, as at 4 March 2019, there was a realistic possibility of a restoration of the child to the appellant within a reasonable period. 15. A different conclusion arises in respect of Issue 4, namely, whether at the present time, a realistic possibility of restoration exists. On that question, the combined effect of the evidence of Mr Wootton, Mrs Griffiths and Mr Ralph should be accepted as applying to the continuum commencing from shortly after March 2019, until the present time, thus negativing the proposition of a restoration at present. Relevantly, at this point in time, Mr Di Martino's evidence does not suggest a contrary conclusion. 16. A further differential conclusion arises in respect of Issue 5, namely, whether within a reasonable period from this point, there is a realistic possibility of restoration, that is, within the ensuing 24 months as a maximum. 17. In the course of those evaluative considerations, all of the opinion evidence as summarised above will be taken into account, and my reasons for my conclusions on those matters will make appropriate reference to relevant aspects of that evidence. PART D – CONSIDERATION OF THE ISSUES FOR DETERMINATION 1. I now turn to the consideration of the issues calling for decision as identified at paragraph [68] above. Consideration of Issue 1 – Procedural fairness 1. The consideration of the issue of whether or not the appellant had been denied procedural fairness at the Children's Court hearing on 4 March 2019, by its nature, has necessarily arisen in retrospect. 2. However, a finding that there was a relevant denial of procedural fairness requires a prospective consideration of the objective record of proceedings in the Children's Court, without reliance on knowledge or explanations acquired in hindsight concerning after-occurring events as a basis for conclusions. 3. Accordingly, the analysis that now follows is not based on the appellant's after the event explanations for her late arrival at Court on 4 March 2019, which have been identified in the factual background set out at paragraphs [152] to [156] above, but rather, on what information was available for consideration in the Children's Court at the times and the stages of consideration disclosed on the objective record, together with inferences that may reasonably arise from the objective record. 4. The sequence of events that has raised for consideration the issue of procedural fairness, has already been briefly identified at paragraphs [8] to [14] above. As foreshadowed in that summary, a more detailed analysis of those events now follows. 5. At the outset of the consideration of this issue, for the purpose of elimination of irrelevant matters, such those arising from the 18 September 2020 affidavit prepared on behalf of the Secretary by Ms Yvonne Gray, as cited at paragraphs [265] to [268] above, reference should be made to the background fact that, on 30 November 2018, the Children's Court issued a notice, which may reasonably be assumed to have been provided to all interested parties, confirming the hearing date scheduled for 4 March 2019, and amongst other things, stating: "If you do not attend and have not been excused by the Court, findings and / or orders may be made in your absence": Exhibit "4", Vol 1, Tab 2, p 1662. 6. Ignoring for present purposes the scope for confusion arising from the use of what has become known as the bastard conjunction "and/or" (as to which see the discussion in Vaccaro v MLC Limited [2016] NSWDC 85, and the cases there cited, at [10]), the warning letter cited in the preceding paragraph does not obviate the fundamental requirement that a litigant whose matter is before a Court for a determinative adjudication on matters affecting personal rights, is entitled to be afforded procedural fairness. 7. That is especially so in proceedings in the Children's Court where the underlying human rights of affected parties, such as those of a parent and a child, may by force of orders made in that Court, undergo a radical change, despite the contrary wishes of an affected parent. 8. Turning then to the objective facts on the record, there is no dispute that the appellant was not present at the Children's Court hearing that was scheduled for 4 March 2019, this being an occasion when all parties were aware that it was likely that final orders would be made after a contested hearing. That fact immediately raises for consideration the issue of whether she had been afforded procedural fairness. 9. At the time the Children's Court made its final orders, the appellant's interests were not represented. This was because, following on from a suggestion made by the Children's Court Magistrate, the appellant's lawyer, who had been retained to appear on her behalf, without prior notice that was due to her, had withdrawn from the proceedings leaving her interests without representation. This occurred in circumstances where both her lawyer and the Court were aware that beforehand, she was having difficulty arriving at Court at the appointed time. 10. In the lead-up to the hearing in the Children's Court, the appellant had prepared affidavit evidence dated 28 November 2018 and 1 March 2019. That evidence was intended to be relied upon by her in order to advance or protect her interests at the Children's Court hearing. That evidence is summarised at paragraphs [284] to [291] of these reasons. 11. The appellant's lawyer must have known, from the existence of that evidence, and from the reported content of the conversation she had with her client on the morning of the Children's Court hearing, that the appellant was intending to actively participate in the proceedings to seek to influence the outcome through advocacy in court on her behalf: Exhibit "1", Vol 2, Tab 20, pp 723.21 – 723.32. 12. Accordingly, the warning content of the above letter dated 30 November 2018 annexed to the 28 September 2020 affidavit of Ms Gray becomes an irrelevant consideration in this context. This is because on the day in question the appellant's lawyer was present and was appearing for her, and the appellant's absence was considered to be a matter worthy of inquiry and investigation. 13. The events of 4 March 2019 in the Children's Court bear a closer examination. 14. It appears from the record of the Children's Court proceedings, that when the case was first called, it was known the appellant was not in attendance. This is evident from her lawyer's apologetic announcement to the Court at the outset, at that time flagging to the Court the appellant's likely arrival at 11.00am. This was the first thing that was said on the record, notwithstanding that the disclosed plan for the day, from prior contact with the appellant the week before, was for her to be there at 9.45am. 15. Doubtless, the appellant's non-attendance at that point, would have been inconvenient to the efficient management of the business of the Court, but the context was an important consideration as it appears that the day had been set aside to hear the case. 16. The prior allocation of the hearing of 4 March 2019 must have been made on the assumption the appellant would be contesting the Secretary's proceedings. Whilst there is no evidence of what if any other cases were listed in that Court on that day, the record shows that, in a later context, the Secretary's representative (at Exhibit "1", Vol 2, Tab 20, p 725.43), raised the prospect of deferral of the Court approving final orders based on the document that had only been circulated that morning, until later that afternoon. 17. This suggests the case in question would not have been short if the appellant had been present, as the Court had set aside time to deal with that case. Whilst it must be recognised that Court time should not be wasted, it appears from the context that the time had been set aside for this case in any event. 18. After the appellant's lawyer made her apologetic opening remark as cited above, the first recorded comment made by the Children's Court Magistrate was to ask why the appellant was going to be an hour late: Exhibit "1", Vol 2, Tab 20, p 723.25. 19. At that time, the Children's Court Magistrate then placed on the record his summary of an ex cathedra background telephone conversation that had taken place between a court officer and the appellant at 9.55am that morning, the effect of which was that she wanted the Court to be notified that she was running late, and she wanted that fact to be drawn to the attention of the presiding Magistrate. That call appears to have been a considerate courtesy to the Court in the circumstances. The recorded summary outlined by the Children's Court Magistrate ended with the statement that the caller, the appellant, had "hung up" the call as the court officer tried to investigate when the appellant would arrive at Court. 20. It is irrelevant that the call had ended with an apparent hang-up as described. This is because the circumstances were later clarified on the record by the appellant's lawyer who had in the meantime spoken to the appellant by telephone after that earlier call to the Court had been made, as appears from the transcript: Exhibit "1", Vol 2, Tab 20, p 723.21 21. It is clear from the described content of those two contacts with the appellant, that she was intending to be at the hearing, albeit late, for whatever reason. Her lawyer was appropriately present at Court at the appointed time and had instructions to appear for her. Evidence had been prepared to argue her cause. The relevant time for an informed explanation for the appellant's late arrival would have been after her arrival, or after an emergence of an unequivocal statement to the effect that she was not intending to be there. 22. When the Children's Court Magistrate asked the appellant's lawyer whether the appellant would be there by 11am, it became abundantly clear that the lawyer's cited telephone conversation with her client the appellant post-timed the earlier 9.55am telephone message left at the courthouse: Exhibit "1", Vol 2, Tab 20, p 723.43. It was therefore clear that the appellant was intending to be at Court for the hearing. 23. At that point in those proceedings, a significant mischief then occurred when the representative of the Secretary proceeded to misstate or mis-describe to the Court the sequence of some prior events relating to the appellant's non-appearance at an earlier hearing of the matter that had been scheduled for 5 November 2018. 24. The initial statement made by the Secretary's representative was factually correct, namely that: "this is the second time that the matter has been listed for hearing, and on the last occasion [being 5 November 2018], it did not go on because the mother did not attend": Exhibit "1", Vol 2, Tab 20, pp 723.46 – 723.48. That observation was a relevant matter of concern to raise in view of the statutory requirement for such proceedings to be dealt with expeditiously: s 94 of the Care Act. 25. However, the Secretary's representative then immediately proceeded to make a factually incorrect and fundamentally problematic statement that contained the false assertion: "Apparently, later she was admitted to a hospital, and I'm clearly concerned that we don't want to find ourselves in exactly the same position again": Exhibit "1", Vol 2, Tab 20, pp 723.48 – 723.50. A review of the factual background shows that the concern as expressed was based on a false premise. 26. Contrary to the above-cited assertion, the true position was that on 5 November 2018, the appellant had not been able to attend the previous Children's Court hearing that was scheduled for that date because she was at that time already an involuntary patient in a mental health unit, and the record shows that the appellant's lawyer later referred to the evidence which confirmed that fact. 27. It was therefore false to state that on the previous occasion the appellant had been admitted to hospital after a non-attendance at a scheduled Court hearing. However, at that point, a consequential false implication arose to the effect that the appellant appeared not to be interested in pursuing her case due to some kind of medical issue. 28. Notwithstanding a correction of the record by the Children's Court Magistrate on that point (at Exhibit "1", Vol 2, Tab 20, p 724.40), the transcript then goes on to record the following statement made by the Children's Court Magistrate: "Well, this matter has been before the Court since August 2017. I will stand it down for 50 more minutes. If she is not here by 11, I will proceed to determine the matter on the papers": Exhibit "1", Vol 2, Tab 20, p 724.46. 29. The last cited sentence of the course flagged at that time plainly reflected and incorporated the infectious effect of the erroneous statement made by the representative of the Secretary, it did not reflect the legitimate reason for a delay since 5 November 2018, and it left no room for consideration of the possibility that the appellant might have had a legitimate reason for being late in attending Court at the expected time on 4 March 2019. 30. Immediately beforehand, on the stated ground of expediency, that is, so as not to waste Court time, the representative of the Secretary had gone on (as recorded at Exhibit "1", Vol 2, Tab 20, p 724.6), to refer to a significant new document that had been only circulated amongst the parties that morning, namely an Amended Minute of Order. Plainly, that document had not previously been seen by the appellant as she had not been at the courthouse when it was circulated. That document was seeking an order that the maternal grandmother be given guardianship of the child. 31. That proposed course was identified as being in material contrast to the Secretary's earlier proposal in August 2018, for a possible restoration of the child to the appellant over a two year period, as was observed on the record by the Children's Court Magistrate after a short adjournment of 50 minutes: Exhibit "1", Vol 2, Tab 20, p 726.31. 32. At that point, the appellant's absence was of particular significance in terms of procedural fairness because, on the evidence, the appellant, by her absence, could not have known of the terms of the newly proposed Amended Minute of Order which, if adopted as the basis for final orders, would have materially affected the appellant's parental rights. She had a right to be heard on that matter. 33. The record shows that after that short adjournment, at 11.00am the matter was called again and the appellant still did not appear. At that time the transcript shows that for an unstated time, the Court's recording equipment had not been switched on, but the gist of what was being said was plain enough from the exchanges that were recorded when the equipment was switched off: Exhibit "1", Vol 2, Tab 20, pp 725.1 – 725.23. 34. The Children's Court Magistrate had in effect asked whether the appellant's lawyer had tried calling her client again. In response, the appellant's lawyer placed on the record the fact that she had had done so, and that she had left her a recorded voice message informing her client that the Court was going to deal with the matter at 11.00am. There was no evidence that the appellant had accessed that message and in the circumstances it was unsafe to assume that it was likely that the message must have come to her attention. 35. At that point, the court officer was asked to call the appellant's name outside the Court. The appellant still did not appear when her name was called. On noting the continued non-appearance of the appellant, the Children's Court Magistrate then asked the appellant's lawyer whether she was seeking leave to withdraw her appearance. The appellant's lawyer then acquiesced to that suggestion by saying "Yes, I think I should, your Honour". Leave for the appellant's lawyer to withdraw was then swiftly granted. The matter was then dealt with on the papers on the basis of the Amended Minute of Order that the appellant had never seen, or it appears, had never had its effect explained to her. 36. It is noteworthy that when the Children's Court Magistrate was considering the available evidence that could provide some kind of explanation for the continuing absence of the appellant, there were two slightly differing accounts noted on the record in relation to the appellant's earlier ex cathedra communication to the Court at 9.55am that day. 37. There appears to be a difference between the Children's Court Magistrate's initial summary of the terms of that message, which was incorporated into his dispositive remarks, namely, the factual summary that "she is not sure she can be part of these proceedings" compared to the later summary, namely, the statement of a conclusion that "she may not come". Both propositions were speculative. 38. The initial summary was recorded in the presence of the appellant's lawyer. The record shows that no subsequent investigatory steps then followed to seek to ascertain the reason why it was said that the appellant had indicated she was "not sure she can be part of the proceedings". There was some ambiguity in the attributed reasons as to why the appellant was not present, and this was not further investigated. The statements merited some further investigation. 39. All that the Court was told by the appellant's lawyer was that the appellant was yet to have a shower and then come to Court. The underlying reasons for the relatively late timing of the appellant's shower were not evident at the time and for the purpose of this particular analysis on this issue those reasons do not require consideration. However, the overarching implication was she was intending to attend the Court. Her continued absence therefore merited further consideration and inquiry before the making of final orders. 40. That said, these reasons should not be read as a criticism of the appellant's lawyer for not further investigating the appellant's absence before she withdrew as that lawyer has not been called to give evidence in these proceedings and therefore the surrounding facts and circumstances are not fully available for consideration. The analysis must therefore be restricted to an examination of the record. 41. Whilst exercising its jurisdiction, the Children's Court is required in every case to give due regard to the need for expedition of proceedings involving the care and protection of children. The need to observe that requirement is to minimise the effect of the proceedings on the child and his or her family, including the need to avoid adjournments to the maximum extent possible unless there is some cogent or substantial reason to do so: s 94(1) and s 94(4)(b) of the Care Act. 42. In this case there was a co-existing requirement that needed to be observed in the timely disposition of the proceedings, namely that procedural fairness be afforded to the mother, who was at risk of being deprived of her parental care rights, a fundamental human right that should not be displaced lightly or contrary to the requirements of natural justice. It was therefore necessary that she be informed of the effect of the order then being sought by the Secretary. This did not occur because that proposal had only been circulated that morning in the appellant's absence. 43. At the time the matter was before the Children's Court, it was known that the child was in the stable care of his grandmother so that there were no immediately discernible adverse effects from a further short delay if that was allowed to occur whilst steps were taken to seek to clarify the reasons for the absence of the appellant, especially as she lived nearby. 44. This was a cogent and substantial reason to consider adjourning the matter, even if only for a further short time, to seek to ascertain why the mother was not at court because her last communication indicated an intention to attend after she had showered, as was recorded in the transcript of the proceedings. It was speculative to consider otherwise. 45. For example, given the appellant's stated intention to attend at 11.00am, even allowing for the uncertainty of the precise terms of the message that was noted and summarised by the Children's Court Magistrate, it was not beyond the realms of foreseeable possibilities that the appellant may have met with some kind of misadventure on the day, either before or after those telephone calls, or both. The stark incongruity between the appellant's stated intention to be at the hearing, and her continuing absence, merited further inquiry especially given the issue that was at stake at that stage of the proceedings. 46. At the hearing of the appeal, in response to an inquiry, counsel for the Secretary confirmed that the actual note containing the message summarised by the Children's Court Magistrate was not available for examination in the appeal. 47. The circumstances cogently merited some further investigation of the mother's position given the attendance of her instructed lawyer and her earlier expressed intentions and actions in resisting the proceedings, including the preparation of affidavit evidence that was intended to be used in the proceedings. One such cogent reason was knowledge of the fact that the appellant had in the background experienced historical mental illness: s 94(4)(b) of the Care Act. 48. According to the record of what was said by the representative of the Secretary, it appears the Court had time available to allow for some further investigation to be pursued. The appellant's place of residence was not far from the Court House: Exhibit "1", Vol 2, Tab 20, p 725.43. If the appellant mother had attended and the matter had proceeded as a contested hearing, as was originally envisaged, having regard to the volume of material to be considered in the Children's Court, and the prospect of oral evidence also being called, the case would have taken some hours that day, at least. 49. Instead, the proceedings were disposed of peremptorily, on the papers, after the appellant's lawyer was prompted to seek leave to withdraw her appearance. In taking that course, without a cogent basis in the evidence before him, the Children's Court Magistrate stated: "I have no confidence that she will come": Exhibit "1", Vol 2, Tab 20, p 726.46. 50. Whilst that sentiment may have been a background concern that the Court held at that particular time, it was an unduly speculative concern, and it was not a procedurally fair basis upon which to make an ex parte determination of final orders in the described circumstances. 51. I am satisfied that in the described circumstances as they unfolded, the disposition of the proceedings in the Children's Court on the papers in the absence of the appellant amounted to a material denial of procedural fairness to the appellant. 52. That said, the particular procedural problem of a denial of procedural fairness is generally curable in these proceedings because this appeal operates as a re-hearing of the Children's Court proceedings. 53. However, the adverse knock-on ill-effects of the denial of procedural fairness for the appellant, and for her son for that matter, are not so readily ameliorated. The effect on the appellant has been, to use her words, to make her feel "shattered". After that, things went downhill for her. Consideration of Issue 2 – The weight to be given to the child's wishes 1. The child the subject of the appeal is now aged 9 years and 10 months. As he is under the age of 12 years, absent cogent evidence to the contrary, he is presumed to be incapable of giving proper instructions to his court-appointed independent legal representative, and remains the present situation in this case: s 99B of the Care Act. 2. Mr Schier, the child's ILR, has provided the Court with three documents that set out indications as to the child's wishes over the course of time between 2019 and 2020. The first such indication was dated 4 March 2019: Exhibit "1", Vol 2, Tab 15, pp 658 – 659. The second indication was dated 11 August 2020: Exhibit "1", Vol 3, Tab 28, pp 1192 – 1194. The third was dated 26 October 2020: Exhibit "4", Vol 2, Tab 9, pp 2124 - 2125. 3. As to the first expression of the child's wishes, dated 4 March 2019, the child was then aged 7 years and 4 months. The interview apparently took place at Mr Schier's office. Those wishes were summarised following a 45 minute conversation he had with the child and the ILR. The child was in Year 2 at the time. 4. That first wishes statement identified the child's wishes as at 4 March 2019, in the following terms: 1. He liked being with his grandmother because she looked after him all the time, took him to school, helped him with his maths, cooked good food, treated him nicely and he was never scared at her home, and there was nothing he did not like about living with her, he got on with his two uncles and his step-grandfather, and their dog, and they were all nice to him; 2. He said when he had lived with his mother it was just the two of them, she didn't look after him all the time, she treats him "silly", which was clarified to mean sometimes he doesn't feel good, his mother used to be rude to his teacher, he felt scared about that, he didn't want it to happen again, he felt sad; 3. He said he liked the food his mother prepared for him. He said there was always food at his grandmother's house, but this was only so sometimes at his mother's home, and his mother did not treat him nicely all the time, whereas he wanted to be treated nicely; 4. He said he did not want to stay living with his mother rather than with his grandmother because his mother "treats me naughty and silly"; 5. He referred to "this year", presumably being the 2019 year, as being "really good" compared to the previous year, when he was in Year 1, referring to how his mother "fights with people", at which point it was noted by the ILR that the discussion ended as he became upset. 1. As to the second wishes statement, dated 11 August 2020, the child was then aged 8 years and 9 months. This interview took place at the offices of DoCJ. He was in Year 3 at the time. That wishes statement, 17 months on from the first wishes statement, identified the child's updated wishes in the following terms: 1. He is happy being with his grandmother, she looks after him "good" and she is a good cook, he enjoys doing things at home with his family, there was nothing he disliked about living there, and he would things to continue as they are; 2. He said he mostly only talked to his mother on the phone, a recent face to face contact was "half good, not that bad but still good", and he stated that he was happy when his mother told him she loves him, he recounted that his mother had said some negative or "weird" things about a teacher which displeased his grandmother; 3. He recalled a visit at which his mother argued with family workers at a contact visit and he had to be picked up by his grandmother, he recounted how at times his mother "argued and argued" with contact workers when told to "keep it in the present"; 4. He said he wanted to see his mother, but not when she argues or fights. 1. As to the third wishes statement, dated 26 October 2020, the child was then aged 8 years and 11 months. The meeting, 2 months on from the previous wishes statement, took place at an undisclosed location in the late afternoon, and it lasted for 30 minutes. That third wishes statement identified the child's wishes in the following terms: 1. He said he would be "proud and happy" to live with his mother again, but not until "she gets better", meaning she stops "arguing with people and stuff" because arguing and fighting with other people is not good, and it makes him feel a "bit scared", and the "neighbourhood isn't that good and [she] always gets mad at them"; 2. He wants to stay with his grandmother until his mother gets better; 3. He looks forward to seeing his mother and talking to her and he felt a bit sad when he didn't get to talk to her. He experienced mixed feelings of excitement, happiness, and being scared and worried and anxious if she argued with family workers; 4. He said he preferred a family worker to be present [at contact visits] as it felt safer and better, being watched, in case something goes wrong, like when she argues with people; 5. He wanted his time with his mother to be fun. He wasn't sure about how much he wanted to see his mother, but was looking forward to seeing her that afternoon. 1. In addition to the wishes statements reviewed in the preceding paragraphs, it is instructive to refer to the impressions of the child's wishes as recorded by those persons who have conducted parenting capacity assessments in this case, where, to varying extents, they interviewed the child, but albeit in limited circumstances. 2. Mr Wootton's 14 February 2018 parenting capacity report provided little in the way of focussed information on the child's wishes as that was not part of his brief. Mr Wootton's opportunity for observations of the child was limited to a 2 hour observation of the interaction between the child and his mother at a public park. He also drew conclusions from the documents supplied to him. Mr Wootton's report did not reveal any matters of reliable significance as to the child's wishes in 2018: Exhibit "1", Vol 1, Tab 5, pp 275 – 304. 3. The 30 January 2020 parenting capacity report of Mrs Griffiths stated that she only spent a short time with the child at the time of an access visit which took place at a swimming pool. Based on that observational opportunity, she noted he was a happy little boy with a natural curiosity about his surroundings, he appeared well adjusted, and he was proud of his Aboriginal heritage: Exhibit "1", Vol 4, Tab 30, pp 1586 – 1627, at p 1624. Mrs Griffiths observed the child had a close attachment to his mother. There was no reported detail of the child's actual wishes at that time. 4. On 24 February 2021 Mr Ralph interviewed the child at the home of his maternal grandmother: Exhibit "4", Vol 3, Tab 21, pp 3059 – 3060. The interview took place after school. Mr Ralph's interview notes indicate the child had described his mother as good, and that he was really happy to see her again, and he had missed her. He described his mother as kind, she looks after him, cooks for him, and takes care of him. Mr Ralph stated that whilst the child was happy to continue to spend time with his mother, it was also evident, on Mr Ralph's interpretation, that the child wished to remain with the maternal grandparents. 5. Mr Ralph's report makes reference to the child having been seen by a psychologist, Ms Jocelyn Barnet. She provided some brief correspondence to indicate that as at 16 March 2020, the child has been progressing well and was starting to talk about his mother a little more. Her impression was that the child had mixed and confusing feelings about his mother. Whereas he loves her and wants to keep seeing her, yet, as Ms Barnet anticipates, it can be confronting and embarrassing for him when he sees his mother being angry. 6. On the basis of some opinions expressed to Ms Barnet by the maternal grandmother, Ms Barnet advised Ms Bazley, the caseworker, that the best course of action would be for the appellant to engage in her own therapy before contact visits were recommenced to promote a sense of predictability around his meetings with his mother rather than him being witness to her dysregulated behaviours when she was angry, as this could be detrimental for him: Exhibit "1", Vol 3, Tab 27, pp 22 – 23. 7. It is unfortunate that the grandmother has chosen not to participate in the proceedings. As a result, the justification for the opinions she passed on to the psychologist, and which have influenced the course of the events, cannot be explored with her for an assessment of reliability. 8. Overall, the evidence in this case indicates that the child is relatively mature for his years. He is intelligent, insightful, and sensitively aware of his Aboriginal heritage and culture. 9. The child has reportedly said that he is happy to be in the care of his maternal grandmother and the family members of her household. He also misses his mother, whom he clearly loves, and there is a strong bond of attachment between mother and son. That said, he has expressed a wish to not be in her company when she is angry and exhibits angry behaviour, as understandably, he finds such behaviours to be upsetting. This sometimes occurs at contact visits. The reasons for this will be identified and revisited for further consideration on another issue at a later point in these reasons. 10. Of particular relevance to these proceedings is the child's reportedly expectant attitude to the possibility that his mother could get well with the assistance of a "brain doctor" and his expressed view that this might occur if she did not consume alcohol. Those very mature statements, but in part naïve statements, indicate that the child envisages circumstances where he could be living with his mother again. 11. My overall impression and interpretation of the indications of the child's wishes as summarised above is that he is open to the idea of returning to live with his mother if her circumstances are suitable and safe for him. 12. The written submissions made by the ILR essentially made the following points: 1. The appellant's concession as to removal being justified was "extremely recent", and the "light bulb moment" should be considered with some caution. In making that submission, Mr Ralph's scepticism of an "epiphany" moment was adopted; 2. The ILR's submissions referred to what was stated to be the limited nature of the appellant's admissions as to her conduct. Whilst I accept that the appellant's evidence could have been better shaped and organised if she were legally represented, in light of the appellant's anger over past events, I discount that particular submission in light of the appellant's self-representation; 3. The mother's history of alcohol abuse and her conflicts with individuals and organisations were highlighted in some detail as contra-indications for restoration, and those submissions drew upon Mr Ralph's critical assessments for support; 4. If restoration was to occur then the risks to the child would be great and the prospect of restoration was heavily dependent upon the appellant successfully persevering with therapy, and other recommendations that meet the permanency planning principle; 5. The reasonable time frame for a realistic possibility of restoration should not exceed 24 months: s 83(8A) of the Care Act; The Secretary of the Department of Communities and Justice (DCJ) and Fiona Farmer [2019] NSWChC 5. Although the ILR acknowledged this, nevertheless, a short term order was sought, meaning that permanency principles were not met in the appellant's appeal, with the result that there should be confirmation of the orders made on 4 March 2019. 1. The effect of the submissions were for the appeal to be dismissed, noting that a s 90 rescission application was always open as a future option for the appellant to pursue if the evidence justified such a course. 2. It is not necessary to review the ILR's submissions as to contact at this point. They will be considered in relation to Issue 6. 3. In this case I conclude that caution must be observed in interpreting the child's wishes because of the absence of evidence from the second respondent, the maternal grandmother, also allowing for the possibility that the child's views, as expressed, may have been influenced by his need not to rock the family boat, figuratively speaking, in his current care placement with his maternal grandmother. 4. In my view, it follows from the above analysis that the observations of the ILR should not be considered as being of determinative weight in this case on the issue of restoration. In this case, those views were based on relatively brief contact with the child and should not carry the day on such an important issue. 5. In considering all relevant factors, I consider that the child's views as conveyed by the ILR, whilst they should be respected, should not carry determinative weight in this case. A boy aged almost 10 years, even though intelligent and insightful, is not presumed to have sufficient insight into the question of how his best interest, might be served in a placement over the course of the next 8 years until he reaches the age of his majority. For those reasons I discount the submissions made by the ILR. Consideration of Issue 3 – Possibility of restoration as at 4 March 2019 1. I now turn to the consideration of the question of whether, at the time of the Children's Court hearing on 4 March 2019, there was a realistic prospect of the child being restored into the parental care of the appellant within a reasonable time. 2. The significant intervening facts were that on 20 September 2018, the appellant attended what she considered to be an unsatisfactory Dispute Resolution Conference which upset her. She sought a psychiatric consultation for this reaction. The circumstances resulted in her resumed use of alcohol and she became involved in social friction, thereby resulting in an involuntary admission to a mental health unit from which she was discharged after one month. At this point, it must be said that an event of that kind, alone and without further focussed evidence, cannot be a proper basis for concluding she was not a good enough mother. 3. The starting point for the consideration of the issue of whether restoration was a realistic possibility as at 4 March 2019, is to recognise that from August 2018, and as at 2 October 2018, just a month before the anticipated hearing in the Children's Court, DoCJ were seeking to explore whether there was a realistic possibility of restoration of the child to the mother, and if so, what should be the duration of any short term parental responsibility order in favour of the Minister: Exhibit "1", Vol 1, Tab 7, p 26. 4. In my assessment of the historical evidence of the circumstances leading up to the 4 March 2019 hearing in the Children's Court, reveals that evidence to contain a series of elements in favour of a consideration for restoration to occur. Those elements were as follows: 1. In the months prior to the appellant's involuntary admission to a mental health unit on 15 October 2018, in the lead-up to the 5 November 2018 hearing in the Children's Court, DoCJ appeared to be open to conditionally supportive of a restoration of the child to the appellant, on stringent terms; 2. The 8 February 2019 considered expert opinion of Dr Heiner, psychiatrist, as cited at paragraphs [236] to [347] above, made in compliance with the Expert Witness Code, stated that he believed there did not appear to be any reason to believe the appellant would not be able to safely and appropriately have contact with, and eventually have custody of the child: Exhibit "1", Vol 2, Tab 14, p 652; 3. The content and the opinions within the 11 February 2019 letter from the AMS, as cited at paragraphs [331] to [333] above, were impressive in support of the appellant in her determination to continue to seek to care for her son. It was of some significance that the appellant's treating general practitioner was of the opinion that the appellant's mental health was stable, and that she would again be able to be a great mother to the child: Exhibit "1", Vol 2, Tab 23, p 747. This is an important consideration because of itself, as past history of poor mental health that has stabilised, was not a contrary indication for refusal to allocate parental responsibility to the appellant; 4. Mr Di Martino's opinion dated September 2018, as cited at paragraph [351] above, expressed the opinion that the appellant deserved the opportunity to demonstrate that she was a genuinely committed mother following her genuine efforts to achieve positive results in her situation: Exhibit "1", Vol 2, Tab 12, pp 620 – 621; 5. The cumulative effect of the appellant's 5 affidavits that had been prepared at that stage, between 26 October 2017 and 1 March 2019, as summarised at paragraphs [273] to [291] above, provided reliable evidence of her good intentions and changed attitudes, including alcohol abstinence, and pursuit of treatment, that would have enabled an advocate of ordinary skill and competence to construct and present reasonable arguments in favour of a programme of gradual restoration of the child to his mother within a reasonable period of time. 1. As to (1) above, concerning the position of DoCJ, there was not a lot of communication between DoCJ and the appellant following her discharge from the mental health unit on 15 November 2018, and in the lead-up to the 4 March 2019 hearing, where, at the 11th hour, DoCJ presented an Amended Minute of Order that changed its position without prior notice on the morning of the hearing. A well represented litigant in those circumstances would most likely have cross-examined the DoCJ caseworkers to explore the justification of that changed position. That fact of the change in position by DoCJ was not necessarily a determinative factor. 2. As to (2) above concerning the opinion of Dr Heiner, the expert opinion of the assessing psychiatrist would have arguably carried significant persuasive weight in favour of the position sought to be argued by the appellant. 3. As to (3) above concerning the evidence from the AMS, the letter dated 11 February 2019 from the plaintiff's treating general practitioner, Dr Ivers, evidencing a positive change in the appellant from the perspective of parental ability, had arguably carried persuasive weight given the historical vantage point that her general practitioner had at that time. An advocate of ordinary skill and competence would most likely have utilised that evidence, including any supplementary oral evidence if thought relevant, in support of the appellant's position. 4. As to (4) above concerning the correspondence from the treating psychologist, the evidence of Mr Di Martino would also have arguably carried significant persuasive weight and could have been explored to the same effect as occurred at this hearing. 5. As to (5) above concerning the content of the appellant's affidavits, the appellant appeared to have been in a reasonably good state of mind in the lead-up to the Children's Court hearing. An advocate of ordinary skill and competence would most likely have explored the appellant's affidavit evidence to develop reasonable arguments in favour of what she was seeking. 6. In light of the above analysis, it could not be reasonably said that, as at 4 March 2019, the appellant had no reasonable prospects of succeeding to obtain orders in her favour for a gradual return of her son into her parental care, on terms, most likely as outlined by Dr Heiner at paragraph [345] above. 7. On the contrary, the circumstances described above persuasively suggest that as at 4 March 2019, the appellant had reasonable prospects for arguing her cause for restoration. The fact that she had a current grant of legal aid for that purpose, serves to reinforce that view. 8. In these proceedings it is not necessary for the appellant to show that arguments based on the above analysis would, on the balance of probabilities, have been accepted by the Children's Court. That argument is not open at this point and it is therefore unnecessary for her to make good that argument. The relevance of pointing to that argument is that it identifies a reasonable baseline position as at 4 March 2019 before the appellant's circumstances deteriorated and descended into chaos, after she felt "shattered" following the making of final orders of the Children's Court which were made in her absence. 9. I therefore conclude that as at 4 March 2019, the appellant had reasonable evidence and arguments available to support a conclusion that, at that time, there were realistic prospects for her child to be restored to her within a reasonable time. 10. Regrettably, the appellant has encountered much anger-driven destabilising chaos and misfortune since that time, the downward spiralling effects of which have unfortunately altered the dynamics of the consideration that is now required. Consideration of Issue 4 – Possible restoration at the present time 1. In light of those further downward spiralling events within the appellant's circumstances since the ex parte final orders made on 4 March 2019, and in view of the precarious position in which she now finds herself, personally, healthwise and in her unsatisfactory neighbourhood accommodation, where she has unresolved anger, where she needs intensive therapy to deal with her alcohol issues and her accommodation-related issues, it is indisputable that at present, without the sustained implementation of material changes, there is no realistic prospect of the child being restored into her parental care. 2. That position must necessarily remain so for so long as the appellant's anger remains unmanageable, including where there is a risk that she may relapse into inappropriate use of alcohol, and where her unsuitable housing situation remains unchanged. The appellant has much work ahead of her in her endeavours to overcome those problems. She needs skilled assistance to enable her to do so. She has limited time in which to do so if she is to regain the parental care of her son. Consideration of Issue 5 – Possibility of a future restoration 1. I now turn to the consideration of the ultimate question that calls for decision in the appeal, namely, of whether there is at present a realistic possibility of a future restoration to the appellant. 2. That question does not arise in isolation. Instead, it arises in the context of systemic historical failure to provide the appellant with the procedurally fair opportunity to pursue a case that was arguable in March 2019, where afterwards, that opportunity was overwhelmed and thwarted up to this point by that systemic failure, which I find to be a root cause sentinel event. 3. In those circumstances it would be manifestly unjust and wrong to simply focus on the appellant's present precarious position and thereby reject outright her claim for a restoration of her child based on such a superficial analysis. Such an outcome would not be in the paramount best interest of her son who is the subject of these proceedings: s 9(1) of the Care Act. 4. In the explanatory circumstances that have been outlined in these reasons, not only the interests of the mother, but also of the child, require a re-set of the position in light of the events of 4 March 2019 whereby the mother was denied procedural fairness. 5. As at 4 March 2019, according to the cited descriptions of the practitioners who were treating the appellant, her life was in the process of undergoing a transformative turn-around or re-set. Unfortunately, the course of that re-set was derailed by the destabilising events of 4 March 2019, and the dystopic course the appellant's life has taken since that time in a litigation framework that has had causative ill-effects following the decision of the Children's Court, made in her absence, where she was denied procedural fairness, and where her lawyer who was retained to advocate for her, was given leave to withdraw, thereby leaving the appellant without a voice in the proceedings. 6. After the orders made in the Children's Court on 4 March 2019, a material reversal occurred in the appellant's situation, where, beforehand, she had a reasonable and available argument in favour of seeking a finding that there was a realistic possibility of restoration, after that date her life's circumstances became more chaotic. She must now face the task of re-establishing her credentials as a suitable mother. 7. It is plainly evident that in taking on that task with a palpable sense of outrage, the appellant has not done so out of reasons of personal vanity, but rather, out of motherly love for her son, where that love is mutual, and because she sees the fact of his removal from her care a some kind of generational recrudescence of the experiences of the Stolen Generation. 8. In considering the psychological implications of those circumstances, taking into account the regrettable Stolen Generation history that has befallen Aboriginal people in this country, it cannot reasonably be said that the appellant's view is fanciful or unfounded. To date, she has faced the task of pursuing this appeal fearlessly, but unfortunately without the benefit of legal representation. 9. In my opinion, the appellant's circumstances, in terms of who should have the parental responsibility for caring for the child, requires that there should be a material re-set of the arrangements to enable her to regain the position that the appellant had, but which became denied to her on 4 March 2019. To do otherwise would unfairly add another layer of injustice to the appellant's already beleaguered circumstances. 10. It is significant to note that the appellant's state of personal chaos has continued to subsist since the appealed orders were made on 4 March 2019, that is, over a damaging period of more than 2 years. In those circumstances, I consider that justice requires that the appellant be afforded the maximum period allowed by statute to demonstrate her parental capacity, namely 24 months. I consider that period to be reasonable in the circumstances, where in the meantime, the child is in a stable and safe placement with his maternal grandmother. 11. Mr Di Martino considered a reasonable period for the appellant to achieve the goal of readiness for restoration to be between 6 and 12 months, with therapy. That opinion is suitably qualified. The evidence of Mr Di Martino persuades me that if the necessary treatment and supports are in place for the appellant, she could realistically achieve the goal of restoration within a reasonable time: s 83(8A) of the Care Act. 12. Time will tell as to whether this would occur within his predicted time range of 6 to 12 months, or a little later. Some flexibility is required. Mr Di Martino's evidence persuades me that the appellant should be given a little more leeway – the maximum statutory leeway, namely 24 months, to prove herself considering the deleterious effects of the last two and-a-half years since her position became radically changed through no material fault on her part. 13. The deleterious consequences of the events of 4 March 2019 indicate that she is entitled to that further time and consideration, if it proves to be necessary, in order to effectively achieve a re-set. If circumstances later justify a shortening of the period of 24 months, this can be the subject of an application to vary the orders. 14. In reaching the above conclusions I have not overlooked the discouraging and more pessimistic predictions embedded within the opinions of Mr Wootton, Mrs Griffiths and Mr Ralph. My reasons for preferring the views of Mr Di Martino appear between paragraphs [505] to [650] above. 15. Whilst a re-set cannot have the effect of turning back the clock, as much has happened since the Children's Court orders made on 4 March 2019, it is possible to re-set the parameters for charting an appropriate course for the future arrangements for the child if the required child safety, well-being and welfare requirements can be met. 16. A re-set along those lines cannot ignore the negative parental capacity factors identified in the recent opinions of by Mrs Griffiths and Mr Ralph. However, their opinions must be viewed in the appropriate analytical perspective as follows: 1. The respective "snapshot" descriptions of the appellant by Mrs Griffiths on 30 January 2020 relating to her observations in December 2019, and Mr Ralph's observations in March 2021, are not representative of the appellant's overall presentation, as explained by Mr Di Martino. His overall more expansive views are to be preferred because he had the advantage of longer term clinical contact with the appellant in a more relaxed therapeutic setting, and he has shown that he has a better understanding of her presentation and background circumstances compared to the other unfavourable snapshots which were on display as a function of the appellant's anger, resentment, and frustration; 2. Mr Di Martino's assessment of the appellant over the course of time concerned her mental health issues from a therapeutic perspective, whereas the glimpses afforded to Mrs Griffiths and Mr Ralph were much more limited, where they saw the products of the appellant's anger-driven behaviour. Furthermore, the analytical standpoint for Mrs Griffiths and Mr Ralph was limited to child safety issues, not the formal diagnosis of the cause and treatment of the appellant's behavioural issues; 3. Without material contradiction, the preponderance of the evidence leads to the compelling conclusion that the cumulative effect of the appellant's PTSD, anger, depression, feelings of outrage and anxiety fuelled by the circumstances of 4 March 2019, her subsequent resort to the use of alcohol as her backstop, and the related further downward spiral in the appellant's life, were viewed through a therapeutic lens by Mr Di Martino. In that overview he formed the uncontradicted professional opinion that intensive treatment was available to address these problems, whereas Mrs Griffiths and Mr Ralph principally focussed on the existence of the problems as a child safety concern, even though it was proper they did so, this being the focus of their remit; 4. I discount Mr Ralphs' negative opinion to the effect the appellant has made no progress in her past treatment with Mr Di Martino over time. I do so because that comment, whilst possibly a superficially attractive throwaway line, is insufficiently informed, and does not constitute a reasoned view measured on a baseline. Improvement, or non-improvement, is a measurement that arises if a measurement baseline is identified. Mr Ralph did not seek to discuss his view with Mr Di Martino to identify the detail of what his treatment entailed before expressing his own dismissive view of that treatment. Furthermore, the cited opinion of Mr Ralph is no answer to Mr Di Martino's evidence, which I accept. That is, without treatment, the appellant's problematic presentation would most likely have been much worse; 5. Mr Di Martino's opinion is in my assessment, more fully informed on the appellant's prior history of having been sexually abused as a child, and her PTSD issues. Undoubtedly, these matters were difficult for the appellant to discuss in the pressured and limited environment of a parental capacity assessment, where one of those interviews was conducted in a public space that permitted strangers to overhear what was being said. Those issues of concern almost did not get a mention in her presentation in these proceedings. 6. Mrs Griffiths did not manage to elicit that history from the appellant in her single interview with her. This was in circumstances where she acknowledged that it was difficult to interview the appellant because of her agitation and it appears she formed significant conclusions based on what she had read: T450.1 - T 450.14. Despite that, Mrs Griffiths said that she sensed something had gone wrong in the appellant's childhood, and she fairly noted that at the time of her interview of the appellant, the appellant "wasn't in a good place mentally", as was earlier observed; 7. The appellant was also not in a good space mentally at the time of her interview with Mr Ralph, and beforehand, as was evidenced by the expletive voice message she had left for him. In my view, those views did not produce reliably indicative results for the prediction of a future possibility of restoration; 8. The observations of Mrs Griffiths and Mr Ralph referred to in sub-paragraphs (5) and (6) above are in contrast to the more positive descriptions of the appellant's mental state as was described by the AMS and Dr Heiner in February 2019, which means that the clinical observations of Mr Di Martino which span the whole period between 2015 and 2021, are a most important and relevant consideration in terms of what is possible for the appellant to achieve; 9. The absence of any direct evidence from the child's maternal grandmother, not even a written statement, is problematic in this case because of the negative comments she has provided to Mr Ralph, and to Mr Wootton for that matter. Her input is therefore untestable, and it appears that the opinions of those assessors have at least in part been influenced by the grandmother's statements, especially where Mrs Griffiths observed that the grandmother has adopted an adversarial stand point against the appellant having been allowed to have a further parenting capacity assessment, much to her incredulity: See paragraph [443] above, citing Mrs Griffiths oral evidence at T478.34 – T478.11; 10. I discount Mr Ralph's view where he stated the unlikelihood of a future possibility of restoration arising within a reasonable time. I do so because of his general attitude of scepticism in his analytical standpoint, where he was unjustifiably critical of the efficacy of Mr Di Martino's treatment of the appellant, where he had an incomplete understanding of the CBT treatment the appellant received from Mr Di Martino, and which was satisfactorily explained by Mr Di Martino, and because his assessment was made on the assumption that there would be no likely improvement in the appellant's situation, which did not amount to an adequately reasoned conclusion: UCPR Sch 7, cl 3(e). He did not undertake a full clinical analysis of the factors that triggered the appellant's concerning behaviours, and he assumed, with little stated basis, that those behaviours would continue, without amelioration. This was very different to the more open and analytical viewpoint of the chicken and egg analysis referred to by Mr Di Martino: T535.50; 11. A further reason for discounting Mr Ralph's opinions as to the unlikelihood of a material change in the appellant's situation was his stated inability to recommend the provision of additional supports to the appellant because of her "apparent inability to work constructively with service providers" where that opinion did not take into account the root cause of the triggering factors that influenced the appellant's problematic attitude to DoCJ caseworkers, contact supervisors, and the "straightjacket" circumstances that fuel her anger at what has occurred both before and after the events of 4 March 2019; 1. Of critical importance and requiring consideration is Mr Ralph's overarching negative commentary about the appellant regarding any proposal for restoration of the child to his mother. That commentary is based on his assessment that the appellant has not acknowledged responsibility for the circumstances of the removal of the child from her care, and she has not therapeutically addressed her alcohol and her health issues. In my view, the appellant's acknowledgment made during the course of the proceedings was credible. That acknowledgment must be seen to alter the significance and the relevance of Mr Ralph's cited opinion on the point. 2. Whilst criticisms have been advanced concerning the reliability of the "lightbulb" moment, or the "epiphany" characteristics of appellant's cited acknowledgment, and its timing, I consider those criticisms to be unfair. I accept that the appellant's acknowledgment was made genuinely, and that it is credible. 3. That conclusion necessarily requires that Mr Ralph's critical comments as summarised at paragraphs [472] to [476] above, should be discounted in favour of an acceptance of Mr Di Martino's more reliable clinical view which was based on his long term therapeutic contact with the appellant. 4. It is indisputably accepted that the appellant has in the past failed to effectively address her alcoholism and her poor mental health issues. However, in view of the evidence of Mr Di Martino, I find myself unable to accept Mr Ralph's more critical and sweeping formulation to the effect that those past events serve to undermine any proposal the appellant may advance in relation to her son being restored into her care as recorded at paragraph [473] above. The apparent fallacy in Mr Ralph's opinion is the speculation that the past problems will continue into the future, despite treatment. That comment dos not sit well with the guiding notion identified by Mrs Griffiths, to which I shall shortly refer. 5. As already observed at paragraph [474] above, whilst Mr Ralph acknowledged that the appellant had encountered significant traumas and adversities during 2019 and 2020, which led to a decline in her coping and her adjustment, that analysis is necessarily incomplete. This is because it does not focus on or reflect the more favourable position of the appellant achieved in February 2019, as was confirmed by medical evidence, and which has been outlined in the consideration of Issue 3, at paragraphs [599] to [612] above. 6. The apparent root cause for the change in the appellant's situation was the denial of procedural fairness to her on 4 March 2019, and the subsequent adverse effects that event has had on the appellant, as is evidenced by her decline since that time. 7. The assessment that the appellant was in a more favourable position in February 2019 has a factual basis in the medical evidence already cited. Since then her situation has demonstrably declined, markedly and it has materially changed over the last two and a half years, as was observed by Mr Ralph. 8. The tragic irony embedded in those events is the sentinel misstatement of the factual background as submitted to the presiding magistrate by the Secretary's representative, where, in something of an advocate's flourish, he conveyed an incorrect factual portrayal to the effect that the appellant's commitment to her case was poor, where that misstatement was in turn influential in the case being disposed of peremptorily, on the papers, influenced by that misapprehension, in the appellant's absence, thus contributing greatly to the appellant's present precarious situation. This has never been acknowledged. 9. In light of those circumstances, on the issue of whether there is a realistic possibility of restoration within a reasonable period, subject to interim consideration of questions of child safety, wellness and well-being being met whilst the child is for the moment adequately cared for by his grandmother, the appellant is nevertheless entitled to every remedial systemic consideration and support that can be made available to her whilst she seeks the implementation of a re-set of the wrong she has had to endure. 10. The evidence of Mr Di Martino persuades me that the plaintiff's claim for restoration should be viewed positively, in accordance with the notion identified in the report of Mrs Griffiths, namely: "We cannot change the past, however hard we might want to try, but we can make sense of it, and in doing so, move into a healthier future". 11. Having considered the evidence of Mr Di Martino, I find that within the meaning of s 83(8A) of the Care Act, that is, within the ensuing 24 months, the appellant has a realistic possibility of regaining parental responsibility for her son who is the subject of these proceedings. 12. Accordingly, pursuant to s 83(6) of the Care Act, I am not satisfied with the Secretary's assessment that there is no realistic possibility of restoration in a reasonable period as was reflected in the final orders of the Children's court on 4 March 2019. 13. Therefore, the Secretary must prepare an amended Care Plan that reflects the decision reached in this case. I will shortly turn to consider what that Amended Care Plan should entail. The appellant will require considerable assistance if she is to gain that lost ground. Consideration of Issue 6 – Amended care plan 1. I am satisfied that the appellant has now reached a mature and rational realisation that she must be willing to do what is required to co-operate with DoCJ for restoration to occur, and to attend to her health, housing, and related issues. She will need the assistance of Mr Di Martino and other service providers, as well as the co-operation of her own mother who to date, has been very protective of the child, and resistant to any changes in his care arrangements, for so long as the appellant's situation has remained problematic. 2. When Mrs Griffiths interviewed the appellant she indicated she would do whatever it takes to get her son back. At the time, and continuing since then, the appellant has been beset with much difficulty which has prevented her moving forward. 3. Effecting a re-set at this time will not be an easy task, but I am satisfied the appellant is motivated to do what it takes to achieve this over the course of time, in the manner and in the context described by Mr Di Martino in his evidence. The conclusion of this litigation and its related constraints will be a significant liberating factor that will enable her to get on with those tasks. 4. Underpinning the task of implementing changed arrangements in this case is the requirement that all concerned act in the paramount best interests of the child where, as Mrs Griffiths has insightfully observed, the bond between mother and son is strong. The attachment to his mother is secure. He wants to be with his mother, if she is well. 5. Her wellness is dependent upon her appropriately attending to her own mental health needs, appropriately managing the things that trigger her anger, and overcoming her past tendency to resort to the use of alcohol as a backstop in the illusory belief that this will ease her difficulties. If she achieves those objectives, as to which there is a realistic possibility, her son will not be subject to an unacceptable risk of harm in her care. Until that point is reached she cannot regain unconditional parental responsibility for his care. 6. It now falls to the Secretary to prepare an Amended Care Plan that reflects these reasons. Having analysed the evidence in this case it is appropriate that the Secretary be provided with some guidance on what should be included in an Amended Care Plan. There are aspects of the opinion evidence which provide useful assistance in identifying what is now required to guide the process for a re-set to occur. The following elements, all of them pressingly urgent, are drawn from that evidence and must be included in any new care plan before it can be considered appropriate for approval: A common narrative for the child's benefit 1. As an urgent priority, a common narrative or script must be identified forthwith and adhered to by all who have contact with the child, with the aim of ensuring that no mixed messages are received by him as to the outcome of these proceedings. At the age of almost 10 years, with the mature and intelligent insights he has already disclosed, it is only reasonable that he be informed that in his best interests he will be spending more time with his mother, with less intrusive supervision from contact workers, as she progressively pursues treatment to achieve stability of her mental health, obtains safe and suitable accommodation, demonstrates her wellness, and remains abstinent from the use of alcohol, and if all goes well in those endeavours, in time, subject to those matters being achieved satisfactorily, within the next 2 years, he may transition to return to live with her, but he will still retain close contact with his extended family. A simplified form of those elements should be the subject of an urgently agreed narrative; A mediation between the appellant and her own mother 1. Prompt arrangements must be made for the appellant and her mother to meet in an appropriate setting to mediate the "big barriers" that exist between them, and which adversely impact on their interaction with each other and which affects the child. The process would preferably be assisted by an Aboriginal consultation to take into account relevant cultural issues. If the parties cannot agree on the engagement and terms of engagement of a suitable mediator within a reasonably short time, my Associate should be informed of that fact, and the Court will then re-list the matter for argument on that issue with a view to selecting and appointing a suitably accredited and experienced mediator pursuant to s 26 of the Civil Procedure Act 2005 (NSW); Undertakings by the appellant 1. The appellant must provide suitable undertakings to behave and act co-operatively in a regime that will require her to maintain regular co-operative contact with all relevant government agencies, treatment providers including her general practitioner and her psychiatrist, other service providers, including schools, including undertakings with regard to ensuring her sobriety, especially at contact visits, during the 24 month restoration period envisaged by these reasons; Assignment of a new caseworker 1. In view of the appellant's past experience of difficulty in dealing with caseworkers, in order to facilitate a re-set, and to jettison what one of the parental capacity assessors has referred to as the baggage of the past, a new case worker should be appointed, preferably of Aboriginal heritage, or if that is not possible, then a caseworker experienced in issues arising from Aboriginal issues and culture, to facilitate a fresh start to the relationship between the appellant and the department. In making this recommendation, I intend no disrespect or criticism of the work or professionalism of Ms Bazley, a Maori caseworker who has been the assigned caseworker in recent times; Changes to contact visit supervision arrangements 1. A new and more generous schedule for contact visits should be prepared. Future contact visits should occur with less intrusive, less confronting, more distant, less oppressive, and less degrading supervision, provided that the contact supervisor is satisfied the appellant is sober at the time of each visit and that she is aware of her need to control her emotions so her son feels safe and comfortable in her company. To facilitate the progress of the new arrangements, it would be best to appoint a new contact supervisor to avoid renewal of complications arising from past conflicts at contact visits: T466.10 – T466.22; Intensive treatment plan 1. In light of Mr Di Martino's expressed willingness to assist, with his assistance, or that of his nominee, the appellant must provide an identified but flexible plan for a regime for her intensive psychological consultations and therapy proposed for the ensuing 12 months to treat her mental health issues and related issues, including regarding her use of alcohol and other issues identified by Mr Di Martino, including anger management. That plan should allow for Mr Di Martino or his nominee to direct or refer the appellant to other services considered to be relevant and necessary. Whilst the Court does not have the power to compel the Secretary to fund the psychological treatment identified by Mr Di Martino, given the findings made on the events which led to the appellant being denied procedural fairness on 4 March 2019, a recommendation is made for ex gratia funding for that treatment; Suitably safe accommodation 1. The department should expeditiously provide the appellant with all necessary assistance, including letters of support to the Department of Housing, to facilitate the appellant's urgent transition to nearby suitable and safe alternative housing that will ultimately enable her to have her son stay with her when it is considered safe and reasonable for him to do so. 1. The parties are at liberty to expand upon those matters to identify other areas they agree upon for inclusion in an Amended Care Plan before forwarding it to the Court for consideration of approval. The process should be capable of completion within a month or so. PART E - DISPOSITIVE CONCLUSIONS 1. In conformity with my findings, I consider the appropriate orders allowing the appeal should in the interim preserve the present arrangements for up to 24 months pending the appellant demonstrating she has satisfactorily fulfilled the requirements of an amended care plan, allowing for flexibility if the appellant achieves her set goals in a shorter time, but not before the expiry of 12 months, for which there should be liberty to apply for further orders if required. Orders 1. I make the following orders: 1. Pursuant to s 83(2) and s 83(8A) of the Children and Young Persons (Care and Protection) Act 1998 (NSW), the Court finds that there is a realistic possibility of restoration of the child the subject of the appeal into the parental care and responsibility of his mother, the appellant in these proceedings; 2. Within 5 weeks of today's date, the Secretary, Department of Communities and Justice, in consultation with the appellant, is to prepare an Amended Care Plan that reflects these reasons for decision; 3. The appeal is allowed, subject to Order (4) below; 4. Pending the making of final orders, Orders (1) and (2) of the orders made by the Children's Court at Port Kembla on 4 March 2019 are to remain in place until the further order of this Court, pending consideration and approval of the Amended Care Plan the subject of Order (2) above; 5. Pending the making of final orders, the third respondent maternal grandmother is required to exercise her parental responsibilities in respect of the child the subject of the appeal in conformity with these reasons; 6. The appellant is to make appropriate arrangements for Exhibit "8" to be returned to her; 7. The proceedings are listed for further hearing at 10.00am on Friday 5 November 2021 for consideration of approval of an Amended Care Plan, a copy of which is to be provided to the Associate on or before Monday 31 October 2021; 8. Liberty to the parties to apply on reasonable notice if any further or other orders are required. ********** 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: 22 September 2021