Children's Court New South Wales Medium Neutral Citation: Re Malakhai [2022] NSWChC 6 Hearing dates: 29, 30, 31 August and 06 October 2022 Date of orders: 03 November 2022 Decision date: 03 November 2022 Jurisdiction: Care and protection Before: Children's Magistrate Ford Decision: (1) There is no realistic possibility of restoration of Malakhai to Ms Morris (2) Permanency Planning has not been appropriately and adequately addressed Catchwords: CARE AND PROTECTION – Parents in the parental responsibility of the Minister, early intervention. Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW) Children's Court Act 1987 (NSW) Cases Cited: The Secretary of the Department of Communities and Justice and Fiona Farmer [2019] NSWChC 5 Department of Communities and Justice (DCJ) and Jamzie [2022] NSWChC 1 Department of Communities and Justice (DCJ) and Bloom [2021] NSWChC 2 Texts Cited: Family is Culture Review Report 2019 Category: Principal judgment Parties: The Secretary, Department of Communities and Justice Ms Maiya Morris (Mother) Malakhai Morris (Child) Ms M Cooper (Maternal Great Grandmother) Representation: Mr Lehmann for the Secretary Ms Marshall for the Mother Mr Bolt, the Independent Legal Representative for Malakhai Morris Mr Fawaz for the Maternal Great Grandmother File Number(s): 2021/00078043-001 Publication restriction: Pseudonyms have been used for the children, family members and carers. Judgment Background 1. These proceedings concern Malakhai Morris ("Malakhai") who is 20 months old and were commenced on 19 March 2021. 2. Malakhai is an Aboriginal child from the Kamilaroi and Bundjalung nations. 3. Malakhai's mother is Maiya Morris ("Ms Morris"). She was seventeen years of age when he was born. Ms Morris is an Aboriginal woman from the Kamilaroi community by birth, but she lives on Bundjalung country. 4. Malakhai's father is not confirmed. Ms Morris has said Malakhai's father is Mr F. Others have asserted it is possible Mr R is Malakhai's father. There has been no DNA testing of Mr F or Mr R. They have not participated or been represented in these proceedings. 5. It is important to record that since the proceedings have been on foot, the state of New South Wales has been living through the COVID-19 pandemic which at various times has seen the state subject to strict lockdown laws. Its impact on every facet of people's lives cannot be underestimated, including on the work of the Children's Court ("the Court"), the Secretary, Department of Communities and Justice and especially on the children, young people and families in this jurisdiction. 6. In addition, the communities of the Northern Rivers which include Malakhai, Ms Morris and the services working with them, have been impacted by the catastrophic flood events of early 2022. 7. Ms Morris was born 2004. At the time of hearing she was eighteen. She came into the care and protection system 2009 at the age of five. All aspects of parental responsibility for Ms Morris were allocated to the Minister in 2010. Ms Morris was six years of age at that time. 8. By the time she was twelve Ms Morris had had thirty-eight placement changes and was living in residential care. She remained in residential care until she attained the age of eighteen years of age. 9. Malakhai is Ms Morris' second son; she was previously pregnant with Paul however very sadly her pregnancy ended in the stillbirth of Paul. 10. Ms Morris is currently pregnant and is expecting a son in early 2023. 11. At the time Malakhai was born and subsequently removed, Ms Morris was being parented by the funded service provider ('FSP') who were in a commercial contractual relationship with the Secretary to provide primary case responsibility for Ms Morris. The Secretary's evidence is unclear about when the FSP began primary case responsibility for Ms Morris, her evidence was it was when she was nine. The Secretary of course retained statutory responsibility for Ms Morris. 12. Ms Morris has not had the experience of living in a home with love, affection and appropriate role modelling of parenting behaviour. 13. At the time Ms Morris fell pregnant she was in the parental responsibility of the Minister. 14. At the time Ms Morris gave birth to Malakhai she was in the parental responsibility of the Minister. At that time, she was not provided with meaningful and practical support to parent a newborn baby. The support given to her was not tailored to her needs. 15. There is no evidence she was provided with a practical opportunity to learn appropriate parenting skills. 16. Malakhai was removed on 16 March 2021. At that time Ms Morris was in the parental responsibility of the Minister. 17. The funded service provider Ngunya Jarjum has had primary case responsibility for Malakhai since 17 March 2021. 18. The evidence was Ms Morris and Malakhai were case managed by different funded service providers so as to avoid a conflict of interest. It is unclear to me the nature of the potential conflict. 19. Malakhai is living with an Aboriginal authorised foster carer case managed by Ngunya Jarjum. It is Malakhai's third placement. It is proposed that be a permanent placement subject to any further family finding that may arise if and when paternity is confirmed Relevant Procedural History 1. The Secretary filed an initiating application for care orders for Malakhai on 19 March 2021. 2. On 22 March 2021 the Children's Court at Lismore made an interim order allocating parental responsibility to the Minister until further order for Malakhai. 3. On 10 June 2021 after hearing, Malakhai was found to be a child in need of care and protection pursuant to s 71 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) ("the Act"). 4. The Secretary filed an Assessment Application on 9 September 2021 and the assessment order was made on the same date. 5. The Children's Court clinician who prepared the report was Dr Q and her report was released on 3 November 2021. 6. On 7 April 2022 the maternal great grandmother Ms M Cooper was joined to the proceedings as a party. 7. On 27 June 2022 the matter was before me for the first time and Ms Morris raised that the funded service providers had not assisted her with parenting. She foreshadowed that on the next occasion she would be asking the Court to make a request pursuant to s 85 of the Act in accordance with Practice Note 15 for the provision of services to facilitate restoration in care proceedings. 8. On 7 July 2022 Ms Morris made that application to the Court asking the Court to make a request for the provision of restoration services, in particular that she and Malakhai attend the residential service San Miguel in North Richmond near Sydney. That program is delivered by Yourtown and is a program that provides intensive and individualised support to vulnerable young parents and their children. 9. Practice Note 15 was developed as a result of Recommendation 115 of the Family is Culture Review Report 2019 ("The Family is Culture Report"). 10. The Secretary opposed that request on the basis that such a request could only be made once the Court had made a finding that there was a realistic possibility of restoration of Malakhai to Ms Morris. 11. I refused Ms Morris' request on the basis that it was not in Malakhai's interest for me to grant the application and occasion further delay noting the history of the matter. In doing so I gave ex tempore reasons and rejected the submission of the Secretary that the Practice Note was only applicable once a finding of restoration has been made. 12. At that time I listed the matter for hearing. 13. It became apparent during the course of the hearing that the funded service provider for Malakhai, Ngunya Jarjum, did not have all material filed in these proceedings. The Secretary and Ngunya Jarjum had never approached the Court to seek leave to provide all relevant documents to Ngunya Jarjum. 14. On 30 August 2022, the second day of the hearing I made an order pursuant to s 15 of the Children's Court Act 1987 (NSW) that the Secretary has leave and is directed to provide the funded service provider with all material filed in these proceedings. 15. Remarkably Ngunya Jarjum had never been provided with a relevant comprehensive detailed history of the mother, rather only limited information. Issues to be determined Is there a realistic possibility of restoration of Malakhai to Ms Morris? 1. If there is found to be a realistic possibility of restoration, then what final orders should be made? 2. If there is found not to be a realistic possibility of restoration, then has permanency planning been appropriately and adequately addressed? Parties' Position 1. The Secretary's assessment is there is no realistic possibility of restoration of Malakhai to Ms Morris' care. The basis of that is set out in the Amended Care Plan filed on 27 May 2022 and relevant affidavit material and can summarised as the Secretary having concerns about Ms Morris as follows: * her limited understanding of the child protection concerns that lead to Malakhai's removal * her limited capacity to provide physical care given his medical history and needs * her ability to accept advice * her history of being the victim of domestic violence and priority given to intimate relationships involving violence * her cannabis use and other substance misuse 1. Malakhai's Independent Legal Representative ("the ILR") agrees with the Secretary that restoration to Ms Morris is not realistic. 2. Ms Morris says I should reject that assessment and make a finding that restoration of Malakhai to her care is realistic, direct that a Care Plan be prepared and make Orders as proposed in her Minute of Care Order that seeks inter alia. 1. Parental Responsibility to the Minister for 12 months; 2. Parental Responsibility to Ms Morris solely thereafter, together with a supervision order for a further 12 months; 3. Section 82 reports at 6 and 12 months; 4. A s 73 Order accepting undertakings as detailed. 1. Ms M Cooper's position since being joined as a party changed and at hearing she was no longer seeking joint parental responsibility with the mother for Malakhai but rather supports the mother in her position. Circumstances Leading up to the Removal of Malakhai 1. On 25 June 2020 the Secretary received a report stating Ms Morris was pregnant and on 20 August 2020 Ms Morris was allocated a prenatal caseworker. 2. There were various meeting and referrals about and for Ms Morris prior to Malakhai's birth. 3. Between being advised of her pregnancy and Malakhai's birth the Secretary received Risk of Serious Harm ("ROSH") reports involving Ms Morris being both the victim and perpetrator of domestic violence, involving her then partner Mr Z. 4. When Malakhai was born on 8 January 2022 his neonatal score was 6, he was jittery and there is a suggestion this could have arisen from cannabis or caffeine but there are no medical records to confirm the cause of that score. 5. Upon discharge from hospital Ms Morris and Malakhai returned to live in her FSP residential home and she was told that she was expected to do all tasks caring for Malakhai and that the FSP's staff would not assist her parenting. 6. At that time Ms Morris was in a relationship with Mr Z. Their relationship was characterised by domestic violence, as evidenced by the ROSH reports received prior to and after Malakhai's birth. 7. On 17 February 2021 Malakhai was admitted to Lismore Base Hospital with a respiratory virus and a complication of a secondary infection. Malakhai turned blue and was limp. Ms Morris raised the alarm. Malakhai was then transferred to the Gold Coast University Hospital for treatment. He was a very unwell baby. 8. On 1 March 2021 there was a discharge meeting. It noted Malakhai has high needs and was a vulnerable baby, he had suffered a lack of oxygen to the brain and was at risk of choking, he required very specific care and feeding. He was described as fragile and needed to remain at home with no exposure to any sort of smoke. 9. As a result of this the Secretary arranged in-home support three days a week from 9am to 1pm to provide respite noting the FSP were not providing care for Malakhai or providing support to Ms Morris in her care of Malakhai. This allowed Ms Morris to leave Malakhai in the care of someone else so she could leave the home. It was not a service that provided support or taught parenting skills. 10. On 8 March 2021 Malakhai was discharged from hospital with strict advice from New South Wales Health about the care that was required upon his discharge. This included not being exposed to smoke, sleeping in his cot, being fed in accordance with a safe eating plan and that if not followed his health could decline. 11. The care application reflects that since 25 June 2020 the Secretary has received forty-four reports in relation to Malakhai. 12. The reports raised concerns about; a risk of neglect, significant neglect, dangerous behaviour involving young person, domestic violence, neglect, inadequate supervision, risk of significant physical harm and risk of significant psychological harm. 13. Between 8 and 16 March 2021 the Secretary had received eleven ROSH reports including the mother leaving Malakhai alone, not attending to his needs for periods of time, being substance affected, co-sleeping whilst being substance affected, not feeding Malakhai in accordance with the safe feeding plan and asking and expecting the FSP's workers to care for Malakhai. 14. On 15 March 2021 staff from the FSP made a phone call to the Secretary's manager casework regarding their immediate concerns that Ms Morris was not following the advice of health professionals regarding his health needs, her substance use and expecting FSP workers to care for him. 15. On 15 March 2021 the police also called the Secretary regarding their concerns of domestic violence. 16. On 16 March 2021 the Secretary decided with director approval, to remove Malakhai from Ms Morris 17. At the time of removal Ms Morris was significantly substance affected. 18. The Secretary filed an initiating application on 19 March 2021 and subsequently filed an amended initiating application on 1 April 2021. The amendments are of no consequence to the task at hand. Early intervention 1. Malakhai is the child that I am making decisions about in these proceedings – his safety welfare and well-being are my paramount concern. However his mother's circumstances are relevant to the decisions and findings I need to make. In particular in order to consider if Ms Morris had addressed the issues that led to removal, I need to understand those circumstances of removal. 2. As such it is appropriate that there is a thorough examination of the circumstances leading to his birth and removal and support to his mother pre and post removal. 3. Ms Morris in her submissions refers to the Family is Culture Report and asks me to take judicial notice of the known risks of harm to an Aboriginal child being removed from the child's parents or care in child protection matters involving Aboriginal children. 4. The Family is Culture Report is the leading review in relation to the over representation of Aboriginal Children and Young People in the care and protection system. It is a comprehensive report with 125 recommendations and is essential reading for anyone working in the care and protection jurisdiction. I am of the view that I can take judicial notice of that fact and other matters from the Family is Culture Report referred to below. 5. Relevantly to Malakhai and Ms Morris the Family is Culture Report at page 198 notes: that FACS (as they are described) policy recognises that a prenatal report should result in the provision of support to the expectant parent in order to reduce the risks to the safety of the unborn baby, help parents build their skills and prepare them to keep the baby safely in their care once it is born…… ….legislative and policy framework is coupled with a service system and practice that lack sufficient capacity for action…. 1. Section 25 of the Act says: Pre-natal reports A person who has reasonable grounds to suspect, before the birth of a child, that the child may be at risk of significant harm after his or her birth may make a report to the Secretary. Note— The intentions of this section are— (a) to allow assistance and support to be provided to an expectant parent to reduce the likelihood that the parent's child, when born, will need to be placed in out-of-home care, and (b) to provide early information that a child who is not yet born may be at risk of significant harm subsequent to his or her birth, and (c) in conjunction with section 23(f) and section 27, to provide for mandatory reporting if there are reasonable grounds to believe that the child is at risk of significant harm subsequent to his or her birth. 1. Chapter 10 of the Family is Culture Report discusses pre-natal reporting and newborn removals and has eight recommendations. They include recommendation 45: The Department of Communities and Justice should significantly expand the number of specialised prenatal caseworkers to ensure that expectant Aboriginal parents have access to early, targeted and coordinated intervention services and support. 1. The objects and principles of the Act apply and they are as follows: What are the objects of this Act The objects of this Act are to provide— (a) that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and (a1) recognition that the primary means of providing for the safety, welfare and wellbeing of children and young persons is by providing them with long-term, safe, nurturing, stable and secure environments through permanent placement in accordance with the permanent placement principles, and (b) that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and (c) that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment. Principles for administration of Act (1) This Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount. (2) Subject to subsection (1), the other principles to be applied in the administration of this Act are as follows— (a) Wherever a child or young person is able to form his or her own views on a matter concerning his or her safety, welfare and well-being, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child or young person and the circumstances. (b) In all actions and decisions made under this Act (whether by legal or administrative process) that significantly affect a child or young person, account must be taken of the culture, disability, language, religion and sexuality of the child or young person and, if relevant, those with parental responsibility for the child or young person. (c) In deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child's or young person's development. (d) If a child or young person is temporarily or permanently deprived of his or her family environment or cannot be allowed to remain in that environment in his or her own best interests, the child or young person is entitled to special protection and assistance from the State, and his or her name, identity, language, cultural and religious ties should, as far as possible, be preserved. (e) If a child or young person is placed in out-of-home care, arrangements should be made, in a timely manner, to ensure the provision of a safe, nurturing, stable and secure environment, recognising the child's or young person's circumstances and that, the younger the age of the child, the greater the need for early decisions to be made in relation to a permanent placement. (f) If a child or young person is placed in out-of-home care, the child or young person is entitled to a safe, nurturing, stable and secure environment. Unless it is contrary to his or her best interests and taking into account the wishes of the child or young person, this will include the retention by the child or young person of relationships with people significant to the child or young person, including birth or adoptive parents, siblings, extended family, peers, family friends and community. (g) If a child or young person is placed in out-of-home care, the permanent placement principles are to guide all actions and decisions made under this Act (whether by legal or administrative process) regarding permanent placement of the child or young person. 1. The objects and principles of the Act are applicable to both Malakhai and Ms Morris as Ms Morris was a child in the parental responsibility of the Minister until she attained the age of 18 years on 15 January 2022. 2. I note particularly that s 9(d) means that both Malakhai and his mother Ms Morris are entitled to special protection. 3. Section 15 of the Act sets out the role of the Minister: General role of the Minister The Minister is to promote a partnership approach between the government, non-government agencies, families, corporations, business agencies and the community in taking responsibility for and dealing with children and young persons who are in need of care and protection under this Act. 1. Section 16 of the Act sets out the role of the Secretary, relevantly: General role of the Secretary (1) Principal role The Secretary is to provide services and promote the development, adoption and evaluation of policies and procedures that accord with the objects and principles of this Act. Note— This role may include— Providing assistance to children and young persons Involving children and young persons and their families in processes that affect them and making services and information available to them Consistent with the care and protection of children and young persons, promoting the raising of children and young persons within families Supporting communities involved in the care and protection of children and young persons Regularly reviewing action Implementing procedures to assess the suitability of people having contact with children and young persons Undertaking or encouraging research, education or training 1. Malakhai is an Aboriginal child and as such the s 13 Aboriginal and Torres Strait Islander Child and Young Person Placement Principles apply. Aboriginal and Torres Strait Islander Child and Young Person Placement Principles (1) The general order for placement Subject to the objects in section 8 and the principles in section 9, an Aboriginal or Torres Strait Islander child or young person who needs to be placed in statutory out-of-home care is to be placed with— (a) a member of the child's or young person's extended family or kinship group, as recognised by the Aboriginal or Torres Strait Islander community to which the child or young person belongs, or (b) if it is not practicable for the child or young person to be placed in accordance with paragraph (a) or it would not be in the best interests of the child or young person to be so placed—a member of the Aboriginal or Torres Strait Islander community to which the child or young person belongs, or (c) if it is not practicable for the child or young person to be placed in accordance with paragraph (a) or (b) or it would not be in the best interests of the child or young person to be so placed—a member of some other Aboriginal or Torres Strait Islander family residing in the vicinity of the child's or young person's usual place of residence, or (d) if it is not practicable for the child or young person to be placed in accordance with paragraph (a), (b) or (c) or it would be detrimental to the safety, welfare and well-being of the child or young person to be so placed—a suitable person approved by the Secretary after consultation with— (i) members of the child's or young person's extended family or kinship group, as recognised by the Aboriginal or Torres Strait Islander community to which the child or young person belongs, and (ii) such Aboriginal or Torres Strait Islander organisations as are appropriate to the child or young person. 1. The objects and principles of the Act place an obligation on the Secretary to consider alternative action to a removal and evidence of the prior alternative action is required by s 63 which states: Evidence of prior alternative action (1) When making a care application, the Secretary must furnish details to the Children's Court of— (a) the support and assistance provided for the safety, welfare and well-being of the child or young person, and (b) the alternatives to a care order that were considered before the application was made and the reasons why those alternatives were rejected. (2) The Children's Court must not— (a) dismiss a care application in relation to a child or young person, or (b) discharge a child or young person who is in the care responsibility of the Secretary from that care responsibility, by reason only that the Children's Court is of the opinion that an appropriate alternative action that could have been taken in relation to the child or young person was not considered or taken. (3) Subsection (2) does not prevent the Children's Court from adjourning proceedings. 1. The Secretary's initiating application sets out the prior alternative action for Ms Morris and Malakhai that the Secretary states occurred. That can be summarised as: * A family group conference where no family were present * A document called a family action plan being created – on three occasions * A referral being made to Youth and Family Mental Health * The creation of a safety plan * A referral to Tresillian * Support from a Justice officer Psychologist * Financial support for in home support for respite for three days week commencing 8 March for 3 weeks from 9am until 1pm * Ongoing intensive support from the FSP. DCJ and the FSP have been in constant communication 1. What is described in the application is referrals, meetings, plans and a family group conference without family. 2. The evidence from various parties is clear that the FSP was not providing Ms Morris with intensive support as asserted in the initiating application. 3. When I consider the objects and principles of the Act and ss 15, 16, 25 and 63, the requirement for meaningful and purposeful early intervention is clear. 4. When the Minister is your parent, a young person should be offered and afforded the same opportunity that any young person in the community has. That is to be given the opportunity to be supported to parent and learn parenting skills. 5. Indeed the casework guide from the Secretary for casework, regarding expectant parents in the parental responsibility of the Minister advises: "…DCJ has an ethical duty to give them every opportunity possible to build the skills, capacity, knowledge and connections necessary to safely parent their baby….…make sure that planning has been made for support people during and post birth" 1. In circumstances where the Minister has parental responsibility for a young person and the young person has had no stable or functional family, no role model of good parenting and has identified and known vulnerabilities then there is even more reason that the community and the Court would expect that the young person is offered appropriate available support in anticipation of parenthood. 2. The impetus for that only increases in circumstances where that parent is Aboriginal. 3. The evidence is clear. The FSP would not assist and ultimately were directed not to assist Malakhai's mother with parenting of him. What is not clear is why a vulnerable young Aboriginal mother found herself in such a circumstance. 4. In any most homes a seventeen-year-old girl pregnant with a cannabis problem and giving birth to her second baby after a stillborn child, would be supported and assisted by extended family. That baby would be given love, care and attention by extended family and the mother would be encouraged to deal with her substance issues and provided targeted specific support. 5. As a child in care since she was five Ms Morris does not have that extended family. 6. The expectation that Ms Morris with her traumatic care history would be able to parent without the assistance of an intensive parenting education program is unrealistic and unfair to both Ms Morris and Malakhai. Indeed it placed Malakhai at great risk. 7. Arrangements were not made for Ms Morris to receive intensive support in a residential program or for individualised live-in support so she could learn appropriate parenting skills. 8. This is not a situation where no efforts were made to assist Ms Morris during her pregnancy. Ms Morris had a pre-natal caseworker. There were meetings and referrals to a residential intensive parenting education program that wasn't available. 9. Work was done but the support Ms Morris required did note eventuate. 10. Professor Megan Davis in her Chairperson's foreword to the Family is Culture Report highlights "ritualism" in government departments in particular in relation to compliance with s 13 principles: Ritualism takes the form of compliance manifest in endlessly changing policies espousing departmental commitment to ACPP, meetings (where minutes are more important than substance), glossy brochures, tick-a-box forms etc. Despite this, the outward appearance of compliance—formal participation in a system of regulation—shields a culture of non-compliance, as this Review has found. 1. The work undertaken for Malakhai and Ms Morris is an example of ritualism, the meetings between the Secretary, the FSP and Ngunya Jarjum, the records of consultations and meetings. On many occasions there are references to a need for mothercraft skills and support, talk of a referral to Tresillian, Premier's Youth Initiative but, in the end Malakhai and Ms Morris were left living in an FSP residential home with no support. 2. None of this commentary is a criticism of the decision to remove Malakhai, it was an entirely appropriate decision. Malakhai was highly vulnerable and the evidence confirms the Secretary's concerns about risk were entirely appropriate. Is Restoration to Ms Morris a Realistic Possibility? The Secretary's Evidence 1. The Secretary relies on the affidavit material identified as exhibits throughout the hearing, together with a tender bundle and the evidence at hearing. 2. The Secretary indicated at the outset of the hearing that an Amended Care Plan would need to be filed to address that paternity for Malakhai has not been confirmed and that the Secretary will incorporate the mother's view in relation to culture. The Secretary did not yet have a birth certificate for Malakhai. 3. As the 3rd and 4th days of hearing were separated by some weeks, the Secretary filed the further Amended Care Plan on 5 October 2022 and submits that I should accept the assessment regarding restoration and that the Care Plan would allow me to make a finding permanency planning is appropriately and adequately addressed. Evidence of Ms D – DCJ Manager Caseworker 1. Ms D is the Manager Caseworker for Malakhai. She had been employed with the Secretary since September 2018. She was the caseworker for Malakhai since 16 March 2021 and became the Manager Caseworker for Malakhai on 21 September 2021. 2. She was objective, balanced and reliable in her evidence. 3. She made appropriate concessions about her knowledge and experience and about the strengths of the mother and the circumstances of the mother's childhood. 4. Her affidavit material provides details of the following: * the Secretary's concerns about Ms Morris, her history in care (including abuse in care), the prenatal work with the mother, the many meetings, referrals, discussions, consultations had between agencies and services * the very real and appropriate concerns about Ms Morris' parenting including being the victim and perpetrator of domestic violence, cannabis use, inappropriate co sleeping, inability to meet the health and day to day needs of Malakhai and that Malakhai was an incredibly vulnerable child, as evidenced by his respiratory illness and admission to Gold Coast University Hospital ICU unit prior to removal * There is a file note of 4 March 2021, by the prenatal caseworker after she spoke with an investigator from the FSP, Mr K. That note is striking in that it makes it clear the FSP's approach to parenting Ms Morris. They would not provide any support or assistance to Ms Morris in parenting Malakhai 1. The FSP's focus was on legal liability. The Secretary's caseworker had suggested house staff could support Ms Morris and provide Ms Morris with a break. Mr K was clear that was not something house staff were employed to do. Given the approach by the FSP, its staff were directed not to assist and advised that a ROSH report would have to be made if Ms Morris left Malakhai in the FSP's care. As a result of this, in house support was arranged. This was all confirmed in an email between the caseworker and the FSP on 4 March 2021. 2. Ms Morris' leaving care plan, dated 10 January 2022 made no mention of support for parenting skills. 3. Her evidence at hearing can be summarised as: * She received an email from Ms Morris' lawyer sent 20 June 2022 regarding a proposal for Ms Morris to attend Yourtown Northern Rivers Richmond. There was then a permanency coordination consultation in relation to that proposal as such a placement would require Executive District Director approval because of the cost * There would need to be a rationale for decision making to see if there was a similar service and they would need to advocate as to why the program would suit Ms Morris * On the Friday prior to the hearing, she spoke with Yourtown Northern Rivers Richmond about eligibility and notes that if attending, you could not be substance affected * She acknowledged that it would be fair to say Ms Morris did not receive probably the best of care whilst in care * She agreed early intervention should happen if there is capacity for allocation and that Ms Morris was allocated a pre-natal caseworker for her pregnancy with Malakhai * There has been a referral to Tresillian but there were no vacancies at the time of referral. There was another service considered but Malakhai's age did not meet that services eligibility and she could not say if there were any more enquires of these types of services * Confirmed the FSP's arrangements not to care for Malakhai and that there has been a discussion about the legalities of the arrangement * This was the first time she had casework responsibility for a child where the parent was also a child in the parental responsibility of the Minister and she could not speak on behalf of the Secretary about any relevant policies or whether the position the FSP took was one that all funded service providers took. She also could not say if the Secretary was satisfied with the FSP * She acknowledged that the Family Action Plan spoke of the FSP providing support to the mother and this was not consistent with the FSP's position * There was a meeting where there was a discussion of a referral to the - Ellen Barron Family Centre another intensive parenting education service but nothing further occurred * Confirmed what was in the filed evidence that the Secretary advised the FSP not to assist the mother with night feeds – unless she was very unwell, or an incident prevented her from doing so and agreed a most families would provide this type of assistance * Where Malakhai lives and who parents him may change if family were found, noting paternity is not yet established * Currently the mother is pregnant and there is no pre-natal caseworker for Ms Morris. Ms Morris lives in Ballina and as such the Community Service Centre ("CSC) Ms D works for in Lismore is not the relevant CSC * Ms D has been advocating for some support for Ms Morris * Acknowledged there are observations of Ms Morris with Malakhai that are positive 1. It is appropriate to include this exchange between Ms D and I when she was giving evidence: HH. So if Maiya was asleep and Malakhai was awake, who would care for Malakhai? Ms D. I'm unsure at that time, yeah. From my memory, there was discussions held with [the FSP], and [the FSP] well, with X, then with the house staff, about what that would look like. I do know that they were providing support such as, you know, at meal times, if Maiya was eating, they would play with Malakhai, that sort of stuff, but not the actual parenting. HH. So she's a young woman in care, who's had an inappropriate number of placements? Ms D. Correct. HH. She's got a number of vulnerabilities. Ms D. Correct. HH. She's had a very sad experience of giving birth to a stillborn baby. She goes home with her new baby and the people that the Minister pays to parent her won't assist her with the care of her baby. Is that the picture I've got? Ms D. Correct. 1. The impression Ms D left on me was that she understood the Court's concerns about the support Ms Morris was given as a young mum and the approach taken by the FSP. 2. It was a remarkable thing for the Court to hear that at the time of hearing there was no formal support from the Secretary for Ms Morris in relation to her current pregnancy. 3. Any comments made in this decision about the approach taken by the Secretary are not directed individually to Ms D. Evidence of Mr U - DCJ Caseworker 1. Mr U is the caseworker for Malakhai and has been since 30 September 2021. He has been employed by the Secretary for 18 months. He was objective, reliable and fair minded in his evidence. 2. His evidence can be summarised as: * He had reviewed Ms Morris' Facebook pages which the Secretary submits is evidence that she is still in a relationship with Mr R and that she continues to use cannabis * There were recent drug urinalysis results for Ms Morris and he had sought advice about the interpretation of those results. The mother had a test result that was positive for THC with a reading of 257 on 5 August 2022. The advice was there were two possible explanations of cannabis use; either heavy smoking 3-5 days ago or small use in the last 24 hours. No further conclusions can be drawn without further information and testing * Mr R as at August 2022 was bailed to a rehabilitation facility and is next before a court on November 2022 * There has been no follow up drug testing of Ms Morris; the Secretary had formed the view Ms Morris continues to use cannabis Evidence of Mr I - Ngunya Jarjum Out of Homecare Manager 1. Mr I is the Out of Homecare Manager for Ngunya Jarjum. He was a reliable, objective witness. He acknowledged appropriately the positive aspects of the mother at contact. His affidavit evidence can be summarised as: * Details of Malakhai's medical history and needs, his placement history. This is his third placement, and he has been living with his carer since February 2022. Malakhai has been diagnosed with cerebral palsy and there was a time during the floods that some of his medical appointments were missed by his carer * Mr Z hasn't participated in DNA testing despite efforts to arrange this * Detailed information about contact; that there are times when Ms Morris has not attended due to illness * The Family Action Plan involved Dr R doing assessments of Ms Morris 1. At hearing his evidence can be summarised: * He described the placement changes for Malakhai * He described how Malakhai came into care after a respiratory virus * He acknowledged the contact reports demonstrate contact is generally positive, Ms Morris is loving, engaged and has a bond with Malakhai * He accepted there were errors in the family tree for Malakhai * Housing can be a barrier for family becoming authorised carers. Ngunya Jarjum is limited in the assistance it can provide to potential carers usually limited advocacy with housing both private and public * He hadn't seen the mother's concerns about Malakhai's care contained in her most recent affidavit * There was a dispute about whether Ms M Cooper has spoken to Ngunya Jarjum and told them certain things about her ability to provide care Evidence of Ms J – Ngunya Jarjum Manager Casework 1. Ms J is the current manager casework for Malakhai. I found her evidence to be fair, reliable and credible. 2. Ms J evidence assisted the court with the following information: * Ms J is the manager casework and there has been a number of caseworkers * Contact was positive and it was positive that Ms Morris wanted to know about physio for Malakhai * Contact has been cancelled for various reasons including; worker unavailability, the mother being unwell, the flooding and contact locations being closed. Most recently there has been a large number of contacts cancelled by Ms Morris * The Circle of Security in-person course had been impacted by covid and flooding and Ms Morris only went to two sessions * There had been no direct contact with the mother's mental health worker * She hadn't read Dr R's report of Ms Morris and believed Dr R said you needed Maiya's consent to do so but didn't ask for that consent * Malakhai's current and proposed long term carer was impacted by the floods and had to live in temporary accommodation. There are two other children living with Malakhai in authorised foster care and guardianship is being explored with the carer for those children. There is an adult son of the carer that is a fly in fly out worker who stays in the home from time to time. He occupies a bedroom and Malakhai sleeps in the carer's room * Malakhai's carer has lived on Bunjalung country for a very long time and is aware of cross-cultural connection. There was no information in the contact reports about the carer that caused concern * There were details about family finding undertaken. Uncle L who is an elder in Inverell didn't answer Ngunya Jarjum's phone calls but she accepted he was able to be contacted by Ms Morris' lawyer * She couldn't explain the basis of comments attributed to Ms M Cooper that she couldn't care for Malakhai * The most recent Paediatric report is positive but notes follow up with Cerebral Palsy Alliance is necessary. She had now re-engaged with the Cerebral Palsy Alliance and is awaiting a date for an appointment * The Link up referral didn't occur until 22 July 2022 * Once the FSP raised concerns about Ms Morris receiving information regular information sharing from Ngunya Jarjum to the FSP occurred but there was no explanation why that hadn't initially occurred * There was not a lot of information about Ms Morris shared with Ngunya Jarjum. It was mainly about the restoration and how they could help Maiya achieve her goals in the family action plan * It was clear the genogram for Malakhai is incomplete * The parenting coaching service arranged with Ms G was discontinued due to a lack of engagement by Ms Morris 1. Ms J filed a further affidavit on 5 October in response to the issues raised at hearing regarding Ms Morris' concerns about Malakhai's care. It details the following: * An update on the numerous medical appointments Malakhai has attended * Malakhai's carer is from the Kamilaroi Nation with maternal and paternal connections to Biripi Nation * A recent home visit occurred with no concerns noted * Malakhai's day-care was spoken to and advised they had no concerns about his presentation * DNA testing has been proactively pursued but has not occurred * Contact has continued and is positive with some visits cancelled by Ms Morris * Further family finding has occurred * Ngunya Jarjum have made appropriate and thorough enquires after receiving Ms Morris' concerns about Malakhai's care and Ngunya Jarjum were satisfied with his care Evidence of Dr Q – Children's Court Clinician 1. Dr Q is an experienced Children's Court Clinician. She is a clinical psychologist who has 15 years' experience working with children and families. No challenge was made to her expertise. 2. She prepared a report that was released on 3 November 2021. At the time of her report Malakhai was not in a long-term placement. Ms Morris was still a young person in the parental responsibility of the Minister. Her report made a number of recommendations including: * Malakhai not be restored to the care of his mother Ms Morris * A long-term placement with Aboriginal carers needed to be found * A transition to these carers should be carefully planned * Suggestions for contact with Ms Morris so that the transition to the new placement is well supported and contact is child focused * Ms Morris consider trauma informed therapy with a suitable qualified psychologist/social worker * Ms Morris consider a Foetal Alcohol Spectrum-Disorder ("FAS D") assessment 1. By way of summary the relevant pieces of evidence from her report about Ms Morris are: * She demonstrated some understanding of unacceptable risk of exposure of Malakhai to domestic violence * There was no insight into her own actions, associated with mental health and emotion regulation * She can be dismissive and defensive about recommendations for Malakhai's safety * Her mental health and possible FAS D impact on her capacity to recognise and respond to Malakhai's needs. She is unable to reflect on her past parenting behaviours 1. Her report recounts Malakhai's and the mother's history including that no intensive parenting education and support was provided to Ms Morris. 2. She noted that his carers in his second placement were not given any information about Malakhai's medical history. This, in my view, is wholly unsatisfactory. 3. The information that Dr Q considered in her report included two reports from Dr R. Only one of those reports was in evidence up until the hearing of the matter. Those reports are discussed separately below. 4. Before giving evidence, Dr Q was provided with material filed in these proceedings after her report had been prepared. 5. Her evidence given in the hearing was over two days and had the unintended benefit that the mother's evidence could be put to Dr Q. 6. After considering the updated material her recommendations remain the same. 7. Her evidence at hearing included: * Insight is important and she didn't observe insight by the mother. Whether the mother has a capacity to develop insight is unknown * FAS-D would impact capacity but so too does the trauma history that has shaped her personality * Circle of Security course - completing it is important, but more important is to take on board information and reflect and implement learning * Circle of Security only covers attachment and cues – the mother needs a lot more scaffolding * What the mother has done to date is not enough, she needs two years of specific and targeted counselling that is trauma informed and counsellor-led and the counsellor would need lot of detail about what the issues are * She saw a traumatised young mother, who was a child in care, with trauma and attachment issues that need addressing and impact her capacity to reflect and parent Malakhai * The therapy provided to the mother needs to be good therapy that explores and addresses the mother's trauma and attachment behaviours. Therapy will be confronting and challenging * She had heard of the San Miguel program. Her concerns were that engagement with that program would mean moving Malakhai away from stability that has been achieved. She also questioned whether Ms Morris would respond to people giving advice and direction * There were examples at contact where the mother's engagement with Malakhai is positive and age appropriate * Acknowledged her report was close to twelve months old and the needs of Malakhai as a twenty-month-old are different to when he was eight months old * There is risk in any restoration – and scaffolding can assist restoration – restoration is dependent on the level of risk and number of risks balanced against protective factors and availability of supports * Agrees the mother has some ability in some areas to identify risk such as at contact in the park or when a Ngunya Jarjum contact worker inappropriately took photos of Malakhai * She would need a lot more information about the mother's reflective capacity to be able to assess the meaningfulness of them * In terms of placement and family finding – she was concerned about another placement change. The ideal is there is a long-term attachment by eighteen months * Agreed the long-term outcome for children in out of home care ("OOHC") is not always positive * Flooding instability was not ideal for most families in the community. At this age his own room is not essential but as he grows Malakhai will need his own space. The impact of another adult coming and going from the home would depend on what it does to the dynamics of the home * The ideal time to for the mother to attend San Miguel would have been at the birth of Malakhai 1. Nothing that was put to her in cross examination changed her recommendations. 2. I found Dr Q to be a most impressive witness. She was thorough, logical and in my view, objective. She made concessions where appropriate, she was in my assessment objective and fair when describing the strengths and weaknesses of the mother. She was child focused at all times yet still fair and considerate when discussing the mother. 3. Her opinions were tested, but unshaken in cross-examination. 4. Her evidence is central in this matter but ultimately the decision about restoration lies with the Court. It is not the only evidence the Court takes into account in reaching its decision but it is evidence that is compelling. Dr R's Reports 1. Dr R is an experienced psychologist with over 33 years' experience and expertise in the diagnosis of FAS D. She prepared two reports in relation to the mother, one dated 18 June 2021 and one dated 20 October 2021. 2. Both reports were provided to Dr Q for her report and were relied upon in that report. 3. The first report from June 2021 was attached to an affidavit from Ms J of Ngunya Jarjum. The body of the affidavit summarises the diagnoses and recommendations contained in that report and Dr R gave her consent to provide the report to the Court. 4. Nowhere in that affidavit did it indicate that Dr R had said Ngunya Jarjum would need consent from Ms Morris to read the report. If it had, that issue could have been remedied and Ngunya Jarjum would have all relevant information to assist them in providing casework for Malakhai and Ms Morris. 5. It is remarkable that a summary of the report is provided by Ms J but her evidence was she had not read it. 6. Although the second report was referred to by Dr Q it was not in evidence until tendered at the hearing. 7. The relevance of those reports is that together they provide evidence of Ms Morris' capacity and functioning, her diagnoses and recommendations for her ongoing care and support. 8. It raises the possibility of a FAS D diagnosis and the need for that to be explored. 9. Ms Morris suffers from severe, chronic post-traumatic stress disorder. The report states the recommendations will need to be carefully explained to Ms Morris. These include that she sees a psychiatrist or psychologist, with weekly sessions and have an active therapeutic connection. 10. The October 2021 report confirms Ms Morris meets the criteria for ADHD and autism and that she has severe difficulties with executive functioning. 11. It discusses the possibility that Ms Morris is "at risk" of FAS D. Her functioning being suggestive of it but prenatal alcohol exposure had not been confirmed. 12. It states Ms Morris is in need of therapy to address her trauma and notes the effects of pre-natal toxins and postnatal trauma on a child's functioning are difficult to disentangle. 13. Ms J indicated she had not read the report and therefore taken no action in relation to the recommendations. This exchanged occurred between Ms J and I: HH. Do you know that were any additional services put in place following that report? Ms J. Dr R's report, no. I do know that she was with [the FSP] at the time of that, so it would have been [the FSP]'s responsibility to put those supports in place. 1. Ms Morris said she could not recall anyone speaking to her about the report. 2. Those reports contain valuable information about Ms Morris, her functioning and what she needs to assist her in improving her functioning. That they were not central when decisions were being made for Ms Morris and Malakhai is most unfortunate. The Evidence of Maiya Morris – the Mother 1. Ms Morris has filed a number of affidavits and given evidence. Understandably she found giving evidence difficult at times. 2. My observations of Ms Morris are that her presentation during the witness box are consistent with the observations made by Dr Q and other professional services that have engaged with her. 3. She was in my view a witness telling the Court what she believed was the truth. The reliability of that evidence however is of concern and this conclusion is consistent with Dr Q's observations. 4. It is clear to me that the mother has limitations on her capacity for self-reflection and reasoning. 5. Her affidavit material provides evidence of: * Her experience as a child in care and falling pregnant with Paul and his stillbirth * Her desire that Malakhai doesn't grow up as a child in care like she did * That co-sleeping is culturally appropriate * Having no support as a new mum and that she was afraid to ask for help * Her cannabis use * That she says Mr Z is not the father of Malakhai, it is Mr F * That she wishes to go to Yourtown * She is concerned culture is not properly covered in the care plans filed * She had been attempting to stop using cannabis but has relapsed on occasion * That she has had electronic contact with Mr R since he entered rehab –he is the father of unborn baby – she wanted to support him in rehab to get off drugs * She is staying with her cousin in Ballina and looking for her own housing * The FSP was not supporting her * She has her own leaving care funds and the FSP unsuccessfully applied to have control of her finances through the NSW Civil and Administrative Tribunal * She is concerned about Malakhai's care in including the state of his clothes, the food he is provided, and the state of his skin 1. At hearing her evidence was: * Mr F would not be a good father * When Malakhai was removed, she was going through a rough spot * She agrees the events of 4 May 2022 when she was choked by Mr R were really dangerous but denies she was with Mr R on 5 May 2022 * She is against drugs and doesn't see cannabis as harmful as it is natural. She uses cannabis to assist with sleep and has done so since she was about 14 but is not addicted. She recently relapsed when she was no longer able to live with her Nan * She is diagnosed with amnesia * She doesn't remember Dr Q or Dr R recommending 20 psychological sessions * Described the relationship with the FSP as nasty and failing her, including when she was younger and they called the police on her * Explained that COVID-19 and the floods interfered with her completing tasks in the Family Action Plan and the Summary of Proposed Plan and that she wasn't able to do courses online * Described domestic violence as wrong * Said she was not in a relationship with Mr R and the Facebook posts only show her supporting him in rehabilitation * Says there is no reason Malakhai can't be restored today * Currently she doesn't have permanent housing, is living with her cousin but is applying for her own housing * Denied saying she was sick as an excuse not to go to contact * Confident she is a good parent with a lot of experience with her nieces and nephews * That she has grown up and no longer has anger issues and that Malakhai as a toddler won't present any challenges * She listens to advice but ultimately makes up her own mind up about what is best for Malakhai 1. Her answers to these questions are consistent with Dr Q saying she has no appreciation or insight into toddlers' behaviour. 2. In my assessment Ms Morris is overconfident in her parenting skills and has little insight into the impact of having a baby in her care if Malakhai is restored. 3. I have no confidence in her evidence with respect to the end of her relationship with Mr R or her evidence with respect to, as she says anger issues but is best described as emotional dysregulation. 4. Ms Morris evidence demonstrated no insight into the impact of her cannabis use on her day-to-day functioning and ability to parent safely. 5. She demonstrated a limited understanding of the child protection issues that concerned Malakhai. 6. Her evidence in relation to missing contact in the context of COVID-19 and concerns about attending if unwell is understandable but does not explain missing contact since May of this year. Those missed contacts are consistent with observations that she is often asleep and misses appointments. 7. In my view it is clear from all the evidence the relationship with the FSP is difficult and she understandably felt unsupported and set up to fail. Evidence of Ms M Cooper 1. Ms Cooper is an important person in the lives of Ms Morris and Malakhai, she is family and part of their connection to culture. She joined the proceedings to say to the Secretary and the Court she is an alternative family placement for Malakhai. She was unable to provide that option at the time of hearing due to her health needs but still supports Ms Morris in seeking Malakhai remain with family. 2. There was nothing controversial about her evidence which can be summarised as follows: * A discussion of family members that could care for Malakhai including Uncle L * Raises issue of Ngunya Jarjum saying Malakhai is Dunghutti mob when that is not correct * Due to her health, she can longer put herself forward as a potential carer of Malakhai with Ms Morris * She loves and supports her granddaughter and wants Malakhai to be with her * Concerned about Ms Morris' relationship with Mr R and Mr F * Maiya can stay for a few nights at a time with her or maybe a bit longer depending on how they get on as she lives in one bedroom accommodation * She thinks Maiya is more mature Other Evidence 1. At end of evidence on day three I asked the Secretary for any information, detail or policy that assists when young people in the parental responsibility of the Minister learn they will be a parent. 2. I received that material after the close of evidence. It was described as casework practice intranet information. 3. There were three documents 1. Critical Events 2. Critical Event Notification Form 3. Health needs of children in OOHC 1. Pregnancy or a request for a termination of a pregnancy are listed as critical events along with death or serious injury of a child or matters that might be contentious. 2. Those first two documents provide guidance for the administrative steps and notification to be taken in response to a young person who is pregnant. 3. The health needs document contains more information about providing casework when a young person is pregnant. It includes the following advice as referred to in paragraph 78 which bears repeating: "…..DCJ has an ethical duty to give them every opportunity possible to build the skills, capacity, knowledge and connections necessary to safely parent their baby….…make sure that planning has been made for support people during and post birth" 1. It is not clear if the FSP were aware of this advice contained in the Secretary's documents or how the Secretary expects to give effect to this advice when parent and child each have different funded service providers providing case management. National Disability Insurance Scheme ("NDIS") Letters 1. The mother tendered references from her current NDIS workers. They confirm contact between Malakhai and Ms Morris is positive and that those workers have a positive relationship with Ms Morris. The Tender Bundle 1. Information from San Miguel Family Care run by Yourtown about that service and the associated costs, including that the mother's solicitor had approached the Secretary in June 2022 about this program. It appears to be an appropriate program for young parents generally and I am unclear why the Secretary didn't consider it much earlier when Tresillian wasn't available before Malakhai had been in three placements. 2. The Secretary rejected that proposal understandably on June 2022 for reasons very similar to these reasons I gave for not granting the Practice Note 15 request. Ngunya Jarjum Records 1. It is clear that Ngunya Jarjum and Ms Morris at one point in time disagreed about her cultural heritage. It is not clear upon what basis both Ngunya Jarjum and the Secretary disagreed with the mother's statements about her cultural heritage. 2. The tendered material was the source material for much of the evidence received from Ngunya Jarjum and the Secretary and references Ms Morris' siblings having FAS D. 3. Documents confirmed Ms C from the FSP advocated for Ms Morris with Ngunya Jarjum and the Secretary for them to share information and also advising of Ms Morris' positive progress. 4. There were a number of occasions where in cross examination Ms J was asked if there should be record of an event she said occurred and she said yes. She then agreed if there was such a document it should be in the subpoena material and Ms Marshall informed her and I that there was no such document which she accepted. 5. The answers by Ms J are a timely reminder of the importance of accurate and contemporaneous record keeping. Even more so if there is a regular change in caseworkers. 6. It is understandable the mother raises concerns about record keeping and the care of Malakhai in these circumstances. The FSP's Records 1. Ms Morris submits there are credibility issues with regards to the records kept by the FSP. There are matters of concern about the cross referencing of the FPS's records with call records from the correctional centre Mr R was incarcerated in that cannot be reconciled. These differences occur on no less than three occasions. I make no findings about if and when the mother spoke to Mr R based on the FSP's material. 2. Those records otherwise are the source material for much of the evidence before the Court. Corrective Service Records 1. Records regarding Mr R from corrective service were tendered. 2. They indicate that on 13 May 2022 he was recorded as his presentation deteriorating when he was advised he could not call his partner Maiya because there was a current AVO in place. Submissions 1. Each of the parties provided helpful comprehensive written submission – both as to the relevant law and the application of the law to the facts. The Legal Framework – Restoration 1. The former President of the Children's Court, Judge Peter Johnstone, published a decision which sets out a comprehensive summary of the legal principles to be applied in care proceedings. In that case, The Secretary of the Department of Communities and Justice and Fiona Farmer [2019] NSWChC 5, the President was deciding whether restoration was a realistic possibility. This is set out a para [58]- [109] and those principles are incorporated into this decision. 2. The law regarding the concept of realistic possibility of restoration has also been the subject of a recent decision of Children's Magistrate Hayes a single court decision, Department of Communities and Justice and Jamzie [2022] NSWChC1. 3. His Honour notes that in Department of Communities and Justice (DCJ) and Bloom [2021] NSWCHC2 the President of the Children's Court's examines the phrase of a realistic possibility of restoration and says: A realistic possibility may be evidenced at the time of hearing by a coherent program already commenced and with some significant 'runs on the board', or by the development of and commitment to a cohesive and viable plan that is sensible, practicable and viable within a reasonable time 1. My understanding of that decision is that His Honour Children's Magistrate Hayes expresses the opinion that Re Bloom provides two different circumstances where a realistic possibility or restoration may be evidenced: by a coherent program already commenced and with some significant 'runs on the board' or by the development of and commitment to a cohesive and viable plan that is sensible, practicable and viable within a reasonable time 1. I am of course always guided by the concept of unacceptable risk in all decision making. 2. The mother says the evidence supports me being satisfied that restoration is realistic because of the development of and commitment to a cohesive and viable plan that is sensible, practicable and viable within a reasonable time. 3. My task is to determine if I accept the Secretary's assessment or the mother's position that I can make a finding that restoration is realistic. I need to examine the mother's plan. 4. The Secretary says if I were to accept restoration to mother, I could not order the Secretary to pay San Miguel for that restoration to occur. 5. I can of course order a care plan for restoration. Quite how the Secretary would provide restoration without resources being expended I do not know. I did not understand the Secretary's position in relation to San Miguel to be about resources. The submissions regarding this confuse the issue. 6. The Secretary submits if paternity is determined and a suitable family placement is identified, a robust and strong consideration and discussion would be undertaken which would consider bonding and attachment when making a decision about what is in Malakhai's best interest. That is what the evidence supports – but it is not in the Care Plan and should be. 7. The Secretary says a Link Up referral has only just commenced. The mother has been in care since she was five. Why the Secretary doesn't already have information about the mother's cultural heritage is inexplicable. Applying the Facts to the Law 1. The evidence is clear: 1. Ms Morris loves and adores Malakhai and there are many instances of contact being positive for both of them. 2. Ms Morris rightly has fears and concerns for Malakhai entering the OOHC system and the care he is receiving and the cultural planning for him. 3. Ms Morris' plan is to go to San Miguel and receive the intensive parenting education and support she should have received at the time of Malakhai's birth. 4. At the same time, she says there is nothing stopping Malakhai coming to live with her. Ms Morris is currently living temporarily with her cousin. 5. Such a plan would disrupt the stability and attachment recently achieved for Malakhai with real concerns whether Ms Morris would follow advice from agencies and professionals. 6. Ms Morris needs targeted and therapist lead counselling to assist her. She needs to be provided with an opportunity to learn appropriate parenting skills in a purposeful and practical way. 7. Ms Morris' insight into the child protections concerns at the time or removal has developed since removal but remains limited. 8. Ms Morris' use of cannabis is ongoing and remains problematic for her parenting, as is her lack of insight into the impact on parenting. 9. I cannot be confident that her relationship with Mr R is over and that if and when he is released from custody, she will not recommence that relationship or expose herself and Malakhai to the risks Mr R presents 10. There was little evidence of the mother contemplating the restoration of Malakhai at the same time as expecting the arrival of her baby boy due in January 2023 1. I do not propose to singularly name and assess each of the risks Ms Morris may or may not present to Malakhai. To do so would be to not follow the well-worn pathway – my task is to assess if there is an unacceptable risk if he were to be restored to her care. 2. Do I accept the Secretary assessment that there is no realistic possibility of restoration to the parents? 3. Regard must be had to two matters: 1. the circumstances of the child or young person, Malakhai is a young vulnerable child whose medical and health needs are ongoing and warrant the Secretary paying close attention to ensure those needs are met and his carers are provided with all support necessary to meet those needs. He is an Aboriginal child removed at two months of age and is placed on country with an Aboriginal carer but not with family or kin. He is in his third placement and now has stability. 1. the evidence, if any, that the child or young person's parents are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care. Ms Morris' plan is to attend San Miguel and have support provided by her NDIS plan and her family. She would continue counselling with her current counsellor. 1. When I consider all of the evidence that plan is not in my assessment a cohesive and viable plan that is sensible, practicable and viable within a reasonable period of time. 2. In my assessment of all the evidence as detailed there is on the balance of probabilities an unacceptable risk of restoring Malakhai to Ms Morris. Harm which cannot be mitigated by any other order, intervention, undertaking or proposal. 3. For all of these reasons, I accept the assessment of the Secretary, as set out in the Care Plan, that there is no realistic possibility of restoration of Malakhai to Ms Morris. 4. Notwithstanding the principle set out in s 9(2)(c) of the Act to the effect that the course to be followed must be the least intrusive intervention in the life of a child and his or her family, in the present case the paramount concern to protect a child from harm and promote that child's development dictates that parental responsibility for Malakhai should be allocated to the Minister until he reaches the age of 18. 5. Pursuant to s 79(3) I am satisfied that any other order would be insufficient to meet the needs of Malakhai. 6. In saying that, I want to acknowledge the mother's circumstances and the support she was provided to date to learn about parenthood. I have provided commentary about that above. 7. The ILR submits that it is regrettable that Ms Morris did not receive assistance and that if she had gone to an intensive residential parenting program, she may have improved her parenting. I do not know what would have happened if she had received appropriate support. I do know the law says she should have received that support. 8. My finding that restoration is not realistic and observations of the mother in no way justify the lack of support offered to Ms Morris. Permanency Planning 1. Having made that finding I now turn to a consideration of the proposed long-term placement and whether that placement addresses the issues of permanency planning. 2. The Secretary of the Department of Communities and Justice and Fiona Farmer [2019] NSWChC 5 is a decision where the former President of the Children's Court, in considering whether permanency planning is appropriately and adequately addressed, set out the relevant legal principles at paragraphs [110]-[137]. Those principles are incorporated into this decision. 3. Malakhai is placed with an Aboriginal carer on country but not with family or kin. 4. There were concerns about Malakhai's care which the mother raised, and the Secretary replied to. The mother was right to raise those concerns and expect a considered explanation for them after making all proper enquires. Those concerns also warrant the Secretary retaining close supervision of the placement. 5. I am satisfied with the arrangements for Malakhai's placement. 6. Malakhai's paternity is not confirmed. 7. The Cultural Plan contains references to many significant people to remain connected to but with no contact details for them. 8. There are many typographical errors contained in the Care Plan as a result of amendments being made. 9. The Care Plan doesn't contain the details contained in the Secretary's submission about the careful assessments and decisions that would need to be made if a family placement was identified in the future. 10. I have read and considered the Care Plan and Cultural Plan and given all of the matters I have addressed I am not satisfied that the permanency planning proposed for Malakhai has been appropriately and adequately addressed. I direct a new Care Plan be prepared. Findings and Orders 1. I make a finding that I accept the Secretary's Assessment that there is no realistic possibility of restoration of Malakhai to his mother. 2. I make a finding that permanency planning is not adequately and appropriate addressed. 3. I direct the Secretary to file and serve and amended Care Plan consistent with this judgment that provides: 1. Correct age of Malakhai at the time of care plan. 2. Correctly identifies paternity is not confirmed and who the putative fathers are and what ongoing steps will occur to identify paternity. 3. Details of Ms W Cooper birth, and Ms M Cooper birth are to be included. 4. An updated genogram with all available information. 5. Refers to Ms Morris unborn child and the plan for sibling contact. 6. Include in Ms Morris history that she was parented by way of residential care since the age of 9 with no consistent parental figure. 7. Includes the correct the date of a finding that Malakhai was a child in need of care and protection was made as 10/06/2021. 8. Ensures the Cultural Support Plan has details about the proposed way contact with extend family will occur and how contact details for significant named family members will be sought until located. 9. Amend the Cultural Support Plan to reflect paternity is not confirmed. 10. A provision that Ms Morris will be advised of any intended change of placement for Malakhai prior to such change or as soon as practicable after such if the change is in circumstances of urgency. 1. I direct the Secretary to file and serve a Minute of Care Order that provides for: 1. Parental Responsibility to the Minister until Malakhai attains 18 years. 2. 3 x s 82 Reports at 4, 11 and 20 months to include: 1. The progress of confirming paternity 2. Implementation of care plan 3. Progress of Malakhai in his placement, including his medical needs and appointments being met 4. Progress of cultural plan and contact with Ms Morris, sibling contact and extended family contact 5. Progress of developing genogram 1. I publish my reasons for this decision. ********** Amendments 07 February 2023 - 07 February 2023 - Anonymisation of funded service provider 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: 07 February 2023