District Court New South Wales Medium Neutral Citation: J&T v Department of Communities and Justice [2023] NSWDC 78 Hearing dates: 13, 14, 15, 16, 17, 21 & 24 March 2023 Date of orders: 31 March 2023 Decision date: 31 March 2023 Jurisdiction: Civil Before: Judge Levy SC Decision: See paragraph [532] for orders. Catchwords: CHILD CARE APPEAL – trauma-informed approach to child care appeal brought as of right by parents from decision of the Children's Court pursuant to s 91 of the Children and Young Persons (Care and Protection) Act 1998 – hearing de novo – findings made in lieu of prior orders – finding pursuant to s 83(5) of the Act that a realistic possibility exists for restoration of the children the subject of the appeal to their parents within a reasonable period – non-acceptance of key aspects of evidence from an expert forensic psychologist relied upon by the Secretary, Department of Communities and Justice – application of the requirements of the Expert Witness Code to the reasoning of expert: UCPR Sch 7, cl 5(c) – new care plan required Legislation Cited: Anti-Discrimination Act 1977 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW), s 8, s 9, s 10, s 71, s 78, s 78A, s 83, s 84, s 90(1), s 91, s 93, s 94, s 105, s 107(1), Pt 1 & Pt 2 Disability Discrimination Act 1992 (Cwth) Uniform Civil Procedure Rules 2005 (NSW), r 23.2, Sch 7, cl 5(c) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Catlin v Draper [2023] NSWCA 49 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Department of Family and Community Services and Nathan [2018] NSWChC 1 Hackett (a pseudonym) v The Secretary, Department of Communities and Justice [2020] NSWCA 83 Harrison v Nominal Defendant (1975) 50 ALJR 330 Love v Commonwealth of Australia; Thoms v Commonwealth of Australia (2020) 270 CLR 152; [2020] HCA 3 Mabo & Ors v Queensland (No 2) [1992] HCA 23; 185 CLR 1 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Mason v Demasi [2009] NSWCA 227 Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58 S v Department of Community Services [2002] NSWCA 151 The Secretary, Department of Communities and Justice and Fiona Farmer [2019] NSWChC 5 Category: Principal judgment Parties: J (First plaintiff - mother) T (Second plaintiff - father) The Secretary, Department of Communities & Justice (Defendant) Ms V Taylor (Independent Legal Representative for the children the subject of the appeal) Representation: Counsel: Plaintiffs in person Ms J Wong (Defendant, The Secretary) Ms V Taylor (Independent Legal Representative for the children the subject of the appeal) Solicitors: Plaintiffs – no solicitors - self-represented The Crown Solicitor (Defendant) Ms V Taylor (Independent Legal Representative for the children the subject of the appeal) File Number(s): 2022/149623 Publication restriction: Non-publication order made pursuant to s 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) Judgment Table of Contents Nature of case – child care appeal [1] Urgency [2] Structure of these reasons [3] Overview [4] Central issues [5] Summary of outcome [6] – [17] Trauma-informed approach [18] – [21] Non-publication order [22] Parties, litigation pseudonyms and representation [23] – [25] Procedural history [26] – [38] Facts concerning the traumatic background of mother "J" [39] – [70] Facts concerning the background of father "T" [71] – [83] Issues in the appeal [84] – [85] The appealed decision of the Children's Court [86] – [97] Identification of the documentary evidence in the appeal [98] – [101] Review of the oral evidence [102] – [103] Applicable legal principles [104] – [106] Submissions of the parties [107] – [112] Issue 1 – Evidentiary weight & value of documentary evidence [113] – [121] Issue 2 – Credibility and reliability of testimony [122] – [400] Preamble to credit assessments [123] – [132] The mother "J" [133] – [168] The father "T" [169] – [185] Ms Allyson Stone, departmental caseworker [186] – [272] Mr Michel Nijland, departmental manager, casework [273] – [331] Ms Helen Appleyard, case manager - Barnardos [332] – [335] Ms Margaret Murray, social worker case manager - Barnardos [336] – [339] Ms Katie Martens, Children's Court clinician [340] – [398] Summary of conclusions on reliability of oral evidence [399] – [400] Issue 3 – Claimed unacceptable risk of harm [401] – [460] (1) The mother "J"'s insight into her mental health [407] – [416] (2) Argued lack of parental insight into child protection concerns [417] – [421] (3) The mother "J"'s understanding and acceptance of medical advice [422] – [430] (4) The mother "J"'s physical disability [431] – [434] (5) Ongoing parental discordance and reactivity to service providers [435] – [445] (6) The availability of safe and secure housing [446] – [449] (7) Risks associated with Borderline Personality Disorder [450] – [458] Conclusion [459] – [460] Issue 4 – Whether restoration is a realistic possibility [461] – [511] Issue 5 – Whether permanency planning has been addressed [512] Issue 6 – Aboriginality of the children "D" and "K" [513] – [530] Disposition [531] Orders [532] Nature of case – Child care appeal 1. This is an appeal brought by the parents of two children presently in Ministerial care. The Secretary, Department of Communities and Justice, is the delegate of the Minister. The appeal is brought as of right pursuant to s 91 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) ("Care Act"). Urgency 1. The determination of this appeal has assumed significant urgency because, notwithstanding the pending hearing of the appeal, on 10 December 2022, the placement of the children with carers materially changed. On that date, despite the approach of this hearing, the Secretary transitioned the children to live with new carers who are the proposed adoptive parents. It became apparent that this was done to secure the continuing interest of those adopting parents. This was not necessarily in the best interests of the children the subject of this appeal: s 9(1) of the Care Act. That change in the arrangements has distressed the biological parents. The permanency of that arrangement is subject to the outcome of the appeal. Structure of these reasons 1. The urgency of these reasons, and the breadth, detail and complexity of over 5000 pages of evidentiary materials requiring review and analysis, has not been conducive to brevity. The headings incorporated into the structure of the reasons as identified in the preceding index may assist to guide the reader as to the way issues have been determined by findings: Catlin v Draper [2023] NSWCA 49, at [154]. For the benefit of the time poor reader, my reasons for decision on the identified issues commence at paragraph [113], following my review of the relevant background, the evidence and factual matters. Overview 1. The plaintiffs are the biological parents of the two female infant children who are presently aged 2 years 8 months and 18 months. Due to identified departmental concerns, the children were removed from parental care at the age of 4 days, in the case of the first child, and immediately following birth, in the case of the second child. The parents are anxious to have their children restored into their care as the circumstances which were thought to have warranted the removal of the children have materially changed. Central issues 1. The central issues to be determined in this appeal are first, whether, having regard to the circumstances of the case and the best interests of the children who are the subject of the appeal, a realistic possibility exists for restoration of the children into the care of their parents within a reasonable period (s 83(5), s 83(5A), and s 9(1) of the Care Act), and secondly, the related issue of the credibility and reliability of crucial parts of the evidence, especially untested hearsay within the documentary evidence. That consideration must proceed with due regard to the statutory procedural requirement of minimising the need for formality and technicality, subject to what is permissible in the circumstances. Those, and some secondary related issues, are identified with greater particularity at paragraph [84] of these reasons. Summary of outcome 1. After due deliberation and consideration of the extensive evidence that I will refer to and will in due course summarise, my decision in this case is that the identified central issues should be determined in the affirmative, in favour of the parents. My reasons for deciding those issues, and the related issues identified at paragraph [84] below, commence at paragraph [113] below. 2. Those decisions emerged following a critical review of the evidence, not all of which was before the Children's Court at the prior hearing. That review identified the fact that in the lead-up to the hearing in that Court, and continuing into the de novo hearing in this Court, the Secretary's position was, in a material respect, based on a materially flawed premise which was then systemically perpetuated in a continuum, in a manner akin to a Kafkaesque operation of artificial intelligence in the departmental records system. 3. This occurred in circumstances where departmental caseworkers and managers were unable to reconsider and effectively override matters of systemically assumed child protection risks that, on the evidence that was readily available to them, ought to have been materially downgraded as to significance and likelihood of occurrence. 4. In this case, that process had the effect of blocking departmental reassessment of certain matters of assumption that ought to have been dispelled as relevant risk factors regarding child protection concerns. Unfortunately for all concerned, as a result, problematically overstated, if not wrong assumptions, were perpetuated in the Department's consideration of the case. 5. In my view, those circumstances have served to contaminate the expert opinions and assessment formed by the Children's Court clinician. This led to the circular problem of the Secretary continuing to resist the parental request for restoration on the basis of that assessment. 6. The detail of those matters will be outlined and analysed in my reasons which review and consider the reliability of the evidence given in these proceedings by the departmental manager of casework, the caseworker, and the Children's Court clinician. 7. In that regard, the standout false assumption that became embedded within the departmental risk assessment was a need asserted by the Department for the parents to obtain treatment for unmanaged mental health issues that were assumed to exist. 8. That erroneous view was consistently maintained within the Department's records system, notwithstanding that the appellant parents had, in each instance, provided the Department with uncontradicted and unchallenged contemporaneous psychiatric opinion that did not support the Department's recorded contrary assessment. 9. This occurred in circumstances where the Department took no steps thereafter to obtain alternative opinions from a similarly qualified expert. 10. In those circumstances the Department's manager of casework was not able to commensurately adjust the problematic risk assessment record within its records system. In this case, the continuation of that unadjusted process has had the effect of unreasonably oppressing the human rights of the parents and their children who are the subject of these proceedings. 11. As a result, in summary, I have concluded that, in lieu of the orders made by the Children's Court, the primary relief claimed in the summons initiating the appeal should be upheld. That conclusion arises because, in this de novo hearing I have had the benefit of seeing, hearing and assessing material evidence that was not before the Children's Court when the orders under present appeal were made. 12. In those events, I have found that there is a realistic possibility for each child the subject of the proceedings to be restored to their parents within a reasonable period. Consequential orders are therefore required for an amended care plan to be prepared by the Secretary, Department of Communities and Justice. Trauma-informed approach 1. The removal of the children and their assumption into Ministerial care occurred in contentious and traumatic circumstances. 2. The removal of the first child was justifiable at the time. However, the removal of the second child was questionable, but that issue is not the subject of reconsideration in this appeal. Significantly, the removal of the second child at birth was insensitive to the circumstances of the parents, particularly to the mother. Her background included significant childhood trauma involving a history of an horrendous series of incestuous rapes that occurred over a number of years, resulting in pregnancies and the birth of six children before she had reached the age of 16 years. 3. Whilst the precise details concerning the birth of those six children do not form part of these proceedings, nevertheless, since that identified context serves as a reference point forming part of the relevant background to these proceedings, it becomes necessary to follow a trauma-informed approach to the consideration required in this case. 4. The central focus of that approach is the paramount best interests of the children who are the subject of the proceedings, with due regard being given to their safety, welfare and well-being: s 9(1) of the Care Act. Non-publication order 1. At the commencement of the hearing an order was made pursuant to s 105 of the Care Act , prohibiting the publication of the names of the children the subject of these proceedings, or the publication of any information or details of any other parties, witnesses or persons named in evidence, that would tend to identify those children. Parties, litigation pseudonyms and representation 1. To reflect the requirements of the non-publication order made at the outset of the hearing, in these reasons, the parties have been allocated litigation pseudonyms as follows: 1. The plaintiff mother, "J" is self-represented; 2. The plaintiff father, "T" is self-represented; 3. The two female infant children the subject of the proceedings are referred to as "D" (now 2 years 8 months) and "K" (now 18 months). The children are represented by their allocated Independent Legal Representative, Ms Virginia Taylor, solicitor; 4. The Secretary of the Department of Communities and Justice ("DC & J"), is represented by Ms Jennifer Wong, as solicitor advocate employed by the Crown Solicitor for the State of New South Wales. 1. In order to maintain the anonymity of relevant persons, as is required by the non-publication order, it is necessary to also allocate litigation pseudonyms to other persons featured in the evidence, as follows. 2. The mother of "J" will be referred to in that way. The son of the father "T" from a previous relationship will be referred to as "BT", and his daughter from his previous relationship will be referred to as "S". A former neighbour and family friend of the mother "J" will be referred to as "AB". Procedural history 1. The plaintiffs are appealing a decision of his Honour Magistrate Devine delivered in the Children's Court on 29 April 2022. The hearing in the Children's Court took place over 3 days on 13 and 15 December 2021, and on 30 March 2022. That hearing involved a consideration of voluminous materials which were also tendered as part of the evidence in the appeal proceedings. 2. In essence, following his Honour's consideration of the evidence, he concluded that, on the evidence before him, he did not accept the claim by the mother "J" that the two children who are the subject of the appeal were Aboriginal; he found that he was satisfied there was no realistic possibility of restoration of the children to their parents; and he found he was satisfied as to the arrangements made by the Secretary, for permanency planning for a long-term stable and secure placement of the children with the least intrusive intervention in their lives, noting that this was the paramount concern. 3. As a result of those findings, the Children's Court allocated parental responsibility for both children to the Minister until they attain the age of 18 years. 4. The plaintiff parents filed their appeal on 24 May 2022. The appeal was initially fixed for hearing in the Civil sittings of the Court in Newcastle to commence on 1 August 2022. Unfortunately, for reasons not fully explained at the hearing of these proceedings, the case was not reached on that occasion. Whilst that period of delay was significant, the children's Independent Legal Representative has correctly submitted that period of additional delay has assisted the position of the parents in their appeal. 5. Pending the hearing of the appeal, where much was at stake for all concerned, on 10 December 2022, unusually, the children were placed in the open adoption stream by the care agency Barnardos, with the allocation of the prospective adoptive parents as the new carers. This was with a view to a formal adoption taking place, subject to the outcome of these proceedings. 6. Understandably, that step, which was of major import to the parents, has caused them considerable distress, upset, consternation and anger. Key witnesses whose evidence is relied upon by the Secretary in these proceedings have conceded that such reactive parental emotions were not unexpected in those circumstances. 7. That said, paradoxically, the cited angry reaction of the parents has been criticised by persons acting under the delegated authority of the Secretary, asserting that this was a relevant factor which should serve to contraindicate restoration to the parents. 8. This appeal involves a hearing de novo in which, inexplicably, it became apparent that some of the evidence tendered in the appeal as being relevant, was not placed before the Children's Court Magistrate for his consideration. 9. The appeal was heard over the course of 6 days on circuit in Newcastle. Whilst the parents were legally represented at the prior hearing in the Children's Court, unfortunately, they were self-represented in this Court. 10. An opaque undercurrent in the background to these proceedings is the fact that the mother "J" is separately pursuing a claim for damages against the Department of Communities and Justice in respect of her claim that it, and its predecessors in title, had materially failed to discharge a child protection duty of care that was owed to her when she was a minor, resulting in her suffering serious harm, which I infer from the evidence, involved physical and psychological damage. 11. The basis of that claim appears to be that aspects of the adverse circumstances of risk to the mother "J", as a child, became known to the Secretary when she was aged 11 years, following a relevant notification received by the Department on 8 November 1990: Exhibit "A", Tab 28, p 2222. 12. That notification preceded the birth of her first six children before she had reached the age of majority, or legal sexual consent. The mother "J" claims that this resulted in the Department neglecting its child protection duties. 13. At this point it is appropriate to identify and to say something of the traumatic background of the mother "J". Her evidence on those matters has not been the subject of reliable contradiction. This is despite some sceptical remarks made by a Children's Court clinician which reflected departmental scepticism. The challenges put to the mother "J" in cross-examination on behalf of the Secretary did not traduce or negate her evidence. Facts concerning the traumatic background of the mother "J" 1. The mother "J" is presently aged 44 years. As a consequence of the events described below she has never been in employment. She is on a disability support pension due to her physical disabilities and she lives in public housing with the father "T" and his adult son, "BT". 2. There are two points of focus to the mother's traumatic background history, the first and most appalling aspect being her account of the repeated childhood and teenage rapes that were perpetrated against her by two male relatives over a period of years resulting in a series of pregnancies, and the second aspect being injuries she described as having been sustained to her back when she was hit by a truck whilst interstate as a runaway teenager, following those pregnancies. She has been left with physical disabilities following that truck accident. 3. In addition to the mother "J" giving birth to the two children who are the subject of this appeal, she has previously given birth to six children, where in each instance, she stated that her own mother had taken those six children and "gave them away" to other families. She also described a subsequent series of miscarriages which were added elements of her earlier trauma. 4. The first two of those six children, twins, were born when the mother was aged almost eleven years. She said this occurred as a result of being repeatedly sexually abused and raped by her maternal grandfather. 5. The second two of those six children, also twins, were born when she was aged about 13 years. She said this also occurred as a result of her being repeatedly sexually abused and raped again, by her maternal grandfather. 6. Following those traumatic events, arrangements were made for the mother "J" to leave the family home and go to live with her married elder sister, where she was also abused. She stated that her attempts to bring those concerning matters to the attention of the authorities fell on deaf ears. 7. Whilst in that situation, the mother "J" stated that the husband of her elder sister, her brother-in-law, had treated her as his servant and sexual slave. She stated that he had repeatedly abused and raped her. In those circumstances she became pregnant to him, twice, and as a result she gave birth to two more children. As a result, she had given birth to six children before she had reached the age of sexual consent, namely 16 years. 8. The mother "J" said that, as before, on each occasion, her own mother also took those children and placed them to live with other families. 9. It appears that none of those six births were registered and the mother "J" never saw those children again. With mixed feelings, the mother "J" regards those six children as being lost to her. Although she has never seen them again, they remain in her conscious thoughts. At various times she thought she had encountered some of them but she came to accept that she was mistaken in each instance. 10. None of those described circumstances, which involved serious criminal sexual offences perpetrated against the mother "J", were the subject of contemporaneous reports to police. She said the subsequent covering-up of those events was aided and abetted by the actions of her own mother. The circumstances were not reported to the police until the mother "J" became an adult and had gained the focus, courage, and insight to do so. 11. It is against the above background, that the mother "J" ultimately left her family and became known as a teenage "runaway". Her schooling did not continue beyond Year 9. 12. In those events the mother "J" had hitchhiked interstate, where as a pedestrian, she said she had sustained a serious back injury when she was hit by a truck. She stated that those injuries resulted in back surgery and as a result, she has been left with chronic pain. 13. The mother "J" subsequently drifted into sex work, used illicit substances, became involved in a number of unsatisfactory relationships, and had accumulated a criminal record for various relatively minor offences. She also developed a dependence on prescribed opioids for relief of her chronic pain. When questioned about those events in the Children's Court and in this Court, insightfully, she said she did those things because she was "young, dumb and very stupid": T88.7. 14. Given the description of the mother "J"'s earlier background, it is unsurprising that her maladaptive early development has led to a diagnosis of her having a Borderline Personality Disorder. 15. In more recent times, in 2020, the mother "J" formed a relationship with the father "T" who is also a plaintiff in these proceedings. That relationship started on a casual level whilst the father "T" was engaged as her carer to provide her with some domestic assistance in light of her disabilities. 16. Although it was at some stage suggested that there was a concern that, in those events, the father "T" had abused his role as carer and had taken advantage of the mother "J" whilst he was providing her with domestic assistance, that suggestion has been shown to be unfounded, as was ultimately conceded by the Secretary. The relationship between "J" and "T", which initially involved friendship, has been without doubt, adult and entirely consensual without exploitation, and as such, it is accepted as being beyond criticism. 17. In the course of that evolved relationship the child "D" was born. The mother "J", who had a number of health issues, including polycystic ovary syndrome, did not realise she was pregnant with the child "D" until she was at about 27 weeks gestation. The delay in recognising she was pregnant was apparently due to the effects of that syndrome, and other symptoms that in hindsight, appear to have been misunderstood as to their significance in the early stage of pregnancy. 18. When the pregnancy was eventually recognised a number of medical complexities became apparent. The mother was using cannabis to manage her anxiety and she was taking prescribed opioids for pain relief. The use of those drugs was not good for foetal wellbeing. After the pregnancy was recognised, the mother "J" was also diagnosed as having developed maternal gestational diabetes which required particular medical management, including planning for a premature delivery once prescribed steroids had been administered and taken effect in order to mature the foetal lungs in preparation for premature delivery. 19. A side-effect of the administered steroids was that the mother's blood sugar levels became increasingly raised and this problem proved difficult to control. The potential for blood sugar issues and steroids to influence behaviour at that time, including forthrightness or aggression were not explored in the evidence. 20. The uncontradicted evidence of the mother "J" on that subject was that although she had observed dietary and medical management as best she understood it at the time, those blood sugar levels proved to have been poorly controlled. She explained that she did not gain a sufficient understanding of the medical issues from health care professionals at the time, which may have contributed to a limited understanding of those problems at the time. 21. In those events, a healthcare professional made a mandatory report to the Department. 22. The child safety implications or concerns arising out of those historical events, which I consider to have later become conflated within the analytical position maintained by the Secretary over the course of time and in these proceedings, will be taken up at a later point in these reasons. 23. Consequent upon those antenatal events, on 31 July 2020 the infant child "D" was removed from parental care by departmental officers some four days after her birth. This led to considerable upset, anxiety and depression on the part of her parents, particularly the mother "J". 24. In the following year, on 15 September 2021, the parents had a second child, "K". That child was also removed from parental care immediately following birth. This was in traumatic and insensitive circumstances for the parents. Those circumstances again caused considerable emotional upset and distress to the parents, particularly to the mother "J". Subsequent to the birth of the child "K", the mother "J" went on to develop Type II diabetes. 25. Consequent upon those events, and due to the differing perspectives which surrounded those events, the relationship between the parents and departmental caseworkers and case managers became fraught, if not hostile, to say the least. 26. On one hand, the perspective of the parents was that the removal of the children was unjustified, and this has led to considerable loss and emotional upheaval, which has in turn led to their frustration in their dealings with departmental staff. 27. On the other hand, the perspective of departmental staff has been more clinical in nature, and involved departmental adherence to hierarchical, systemic, administrative, and apparently pre-determined considerations. This concerned recorded data on child safety concerns. 28. Specifically, as will appear from my review of the evidence of Mr Michel Nijland, the departmental manager of casework assigned to this case, and from the review of the evidence of the caseworker Ms Allyson Stone, the departmental management of data on matters of child risk had a rigidity which could not be overridden by caseworkers and managers who came into possession of contrary information that ought to have served to dispel some crucial recorded departmental notions of risk. 29. That rigidity has in this case, unfortunately and disturbingly for the persons affected, perpetuated a risk assessment that was contrary to uncontroverted medical evidence. The basis for that conclusion was not exposed at the hearing in the Children's Court. 30. The rigidity of that process appears to have led to a number of avoidable detrimental consequences. There was no middle ground on those matters. At this point it is sufficient to note that those events have added to the distress of the mother "J" and to that of the father "T". This has resulted in them developing a sense that they were being persecuted by the Department. That development complicated the already poor parental relationship with the assigned caseworker, and this has also led to parental mistrust of the Department. 31. Unfortunately, in these proceedings, an added feature of the distress experienced by the mother "J" is that, although she has worked hard to protectively insulate or distance herself from the distressing events of her past life, her need to interact with departmental staff, her need to recurrently deal with the challenges posed by the present proceedings, and the need for ongoing reference to be made to her earlier unfortunate circumstances of abuse, has given rise to repeated instances of recrudescence of her symptoms of post-traumatic stress disorder. The origins of those symptoms was the earlier cumulative childhood traumas she had experienced as a victim of the sexual crimes that had been committed against her. 32. In that regard, when such events were brought up in the course of cross-examination of the mother "J", at times, and understandably, she lost her composure and could not speak, and she needed time to recompose herself. Her emotional suffering was obvious and on plain view: T70.35 – T70.46; T109.47 – T110.12; T145.39 – T145.43. Facts concerning the background of the father "T" 1. The father "T" is presently aged 45 years. He has had a very limited education. This is because he grew up in the outback where he worked as a drover. He is a man of few words. Despite the fact that he has dyslexia, and cannot read or write, he spoke articulately and with convincing passion on matters that gave him concern. He refers to the mother "J" as his brain when it comes to interpreting the written word. 2. Although he appears to have dissolutely spent his early years abusing alcohol and drugs, and acquired some minor criminal convictions relating to driving offences, his use of cannabis, and assault, he managed to partner and have a family. That partnership, which lasted 14 years, ended in acrimony. There were three children of that relationship. The oldest, a son, "BT", presently lives with him and the mother "J". There is a disabled daughter of that former relationship, "S". After that relationship had broken down, "S" made disturbing historical allegations of a sexual nature against the father "T", which he vehemently denies. 3. When those allegations were brought to the official notice of the Secretary, the Department initiated an investigation which resulted in the allegations being marked or recorded in the departmental system as "substantiated" according to prevailing departmental protocols. 4. In my view, on the evidence available to the Department, on a legal analysis, it is difficult to justify such substantiation, even on the lowest standard of proof, namely, on the balance of probabilities: s 93(4) of the Care Act. 5. Nevertheless, the Department continued to mark him as being a risk and a potential source of child sexual abuse. That position was ultimately abandoned by the Secretary at this hearing. 6. No police or any other type of action was taken against the father "T" based on that earlier risk assessment. That said, the Children's Court clinician, Ms Katie Martens, made repeated reference to those "substantiated" allegations as part of her assessment for this case: Exhibit "A", Tab 42, p 3503, paragraphs 38 and 190. 7. Having regard to those allegations, Ms Martens undertook a child protection risk assessment of the father "T" using an actuarial statistical tool to conclude that the suggestion of a risk of the father "T" sexually offending is "relatively weak": Exhibit "A", Tab 42, p 3543, paragraph 190. 8. This was in circumstances where she said that she did not elicit any information from the father "T" that would indicate he had beliefs or attitudes that would serve to justify or condone sexual harm. 9. In my opinion, having regard to the gravity of those allegations of sexual misconduct, and the gravity of their consequences, based on the convincing denials by the father "T" and the corroborative evidence of his son "BT", that theoretical assessment, even though stated to be "relatively weak", represents an unreliable basis upon which to impugn the character of the father "T" with regard to his past conduct towards his daughter "S", or with regard to his parenting capacity generally: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, at pages 358 – 363. 10. It is significant to note that the child "S" has been described as a fantasist. In my opinion, on the evidence presented, the father "T" is justifiably outraged at what he described as the fantasy-based suggestion that the allegations made against him of sexual misconduct were "substantiated". 11. In my opinion, given that there is credible evidence of historical animosity on the part of the ex-partner of the father "T", namely the mother of "S", towards him, and given the suggestion that the disabled child "S", who is prone to fantasy was most likely coached by her mother in respect of that allegation, I find that the father "T" is most probably correct in his explanation that the allegations against him were made maliciously. 12. Notwithstanding the Children's Court clinician's "relatively weak" conclusions on this topic, which were cited at the Children's Court hearing, counsel appearing for the Secretary in that Court relied heavily on the Clinician's evidence, although conceding that "the Secretary's case that the parents presented a risk of sexual abuse was weak": Exhibit "A", Tab 18, p 1170.30. 13. In my assessment, that cited part of the Children's Court clinician's report lacks determinative weight. Issues in the appeal 1. Following my review of the evidence and the submissions of the parties, I consider that the issues calling for decision in this appeal may be conveniently identified as follows: 1. The assessment of the evidentiary value and persuasive weight of the documentary material; 2. The credibility and reliability of the evidence of the witnesses who gave oral evidence; 3. Whether there is an unacceptable risk of harm to the child "D" and the child "K" if they were to be restored into parental care, and if so, can such risks be ameliorated; 4. Whether there is a realistic possibility of restoration of the child "D" and the child "K" into the joint care of their parents within a reasonable time; 5. Whether the Secretary has appropriately and adequately addressed permanency planning; 6. Whether the children "D" and "K" are Aboriginal. 1. My reasons for decision on those issues commence at paragraph [122] below. The appealed decision of the Children's Court 1. It is relevant that I say something of the detail of the decision of the Children's Court. 2. The decision of the Children's Court Magistrate was carefully structured. The preface to his decision (substituting the names with the litigation pseudonyms that I have assigned), was in the following terms: "This case concerns "D" and "K". "D" was born on 27 July 2020 and is now 22 months old. "K" was born on 15 September 2021 and is now eight months old. They are the children of "J" and "T". "D" was taken into care by the Department of Communities and Justice four days after she was born on 31 July 2020. The initiating application filed for her details the child protection concerns that led to her removal. The concerns included the parents' substance abuse and health concerns for Ms "J", the parents' failure to accept medical advice and potential sexual abuse." [Exhibit "A", pp 1162.35 – 1162.45] 1. The decision commenced by outlining a number of concerns that arose from a series of 9 historical reports of concern that commenced in June 2020. Those reports ranged from the noting of a series of the mother "J"'s previous pregnancies, a history of her having been sexually abused, concerns over maternal health, antenatal concerns, concerns over a maternal refusal to accept medical advice, and her drug usage. 2. The decision went on to outline and summarise a series of 10 departmental concerns largely based on reports received between 21 April 2021 and 16 September 2021, which, as reported, raised a concerning level of a lack of parental co-operation with departmental requirements, including on matters relating to maternal drug use, maternal and child health issues, and also a concerning lack of parental co-operation with health care and caseworkers. 3. Those reports raised background concerns as to a relevant risk of harm to children. In the present proceedings, in my view, some of those historical matters appear to have been over-emphasised by the Department, as will become clear in my reasons. 4. The decision identified the procedural history of the proceedings in the Children's Court which culminated in the following recorded findings: "1. Findings that both children were in need of care and protection were made by consent without admissions pursuant to s 71(1)(d) and (e) of the Care Act on 6 August 2020 for "D" and 15 October 2021 for "K". 2. Parental responsibility for each child has previously been allocated to the Minister on an interim basis until further order. 3. The proceedings concerning "K" were formally joined to "D"'s because the issues and the parties in both cases are the same." [Exhibit "A", pp 1165.40 – 1165.48] 1. The decision noted that the parents had sought a finding that there was a realistic possibility of restoration within a reasonable period, with a request for staged orders providing for the continuation of parental responsibility during that claimed period prior to proposed restoration. 2. The decision cited the Secretary's position, which argued that there was no realistic possibility of either of the children being restored to their parents, or to either parent, thus justifying the Secretary's application for parental responsibility for each child to be allocated to the Minister until they attain the age of 18 years. 3. After correctly identifying the fundamental principles that applied to the proceedings, the Children's Court Magistrate reviewed the conduct of the hearing and relevant statutory framework of the Care Act: s 8, s 9(2), s 10 and s 10A. After identifying the material in the evidence bundles that were tendered, and after reviewing the submissions of the parties, he appropriately grappled with the issues after considering the evidence before him. 4. The Children's Court Magistrate then turned to the decisions he was required to make in light of the identified and accepted applicable legal principles: Exhibit "A", Tab 18, p 1198. 5. In respect of those issues, on the evidence before him, the Children's Court Magistrate found that he had difficulty in forming the view that there was Aboriginality in the mother's background. He was satisfied as to permanency planning, pursuant to s 78A and s 78 of the Care Act, and he then proceeded to make final orders. 6. The parents were dissatisfied with that decision. As a result, they promptly filed the present appeal as of right in order to pursue the present re-hearing, which has taken place almost a year later. Identification of the documentary evidence in the appeal 1. The Secretary prepared a comprehensive Court Book for this appeal. It comprised 4351 pages arranged behind 51 tabbed sections: Exhibit "A". The materials were arranged in an unwieldy sequence that was neither chronological nor convenient for analysis. 2. Those materials required a detailed and comprehensive summary of the evidence analysed against the issues and findings reached by the Children's Court: Exhibit "A", Tab 18, pp 1161 – 1201. Those materials are identified and briefly summarised in Appendix I to these reasons. 3. During the hearing, those materials were augmented with additional voluminous documentary exhibits. These are identified and summarised in Appendix II to these reasons: Exhibits "B" to "P". 4. Reference will be made to aspects of that documentation where it becomes relevant to do so in these reasons, including concerning the interrelationship between the issues of credibility of testimony and the reliability of the process of attacking the credit of witnesses using the hearsay content of untested documents. Review of the oral evidence 1. Oral evidence was given by the following witnesses: 1. The mother "J"; 2. The father "T"; 3. Ms Katie Martens, Children's Court clinician; 4. Ms Helen Appleyard, Barnardos, case manager; 5. Ms Margaret Murray, Barnardos, case manager; 6. Mr Michel Nijland, a DC & J, the managing caseworker; 7. Ms Allyson Stone, caseworker. 1. The relevant detail of that evidence, and the related credibility and reliability conclusions that should be drawn from it, will be the subject of the consideration of Issue 1 and Issue 2. Applicable legal principles 1. It is pertinent to identify some uncontroversial legal principles which apply to these proceedings, as follows: 1. The safety, welfare and wellbeing of children 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 children must necessarily be linked to the fundamental procedural requirement that a parent at risk of having children 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 this is considered necessary on the grounds of fairness: s 93(3) of the Care Act. Reference has already been made to the application of the previously cited Briginshaw principles; 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 children and their families, 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. The Aboriginality of children 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 children to a parent is not in the best interests of the children, the second preference is for permanent placement with a relative: s 10A(3)(b) of the Care Act; 8. 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; 9. Where the Secretary has made an assessment of the issue of whether there is a realistic possibility of restoration of children 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; 10. In determining what is a reasonable period for restoration of children into parental care that period must not exceed 24 months: s 83(8A) of the Care Act. 1. Although the rules of evidence are not bound to be applied in the Children's Court or in this Court on appeal from that Court, as is provided by s 93(3) of the Care Act, in my view, in this case, that provision should not be construed to mean that forensic short-cuts to the evaluation of evidence are justified in considering factual matters requiring satisfactory proof. This is so especially where procedural fairness is required to be applied to the consideration of important questions such as the credibility and reliability of oral testimony, or the reliability of hearsay within documentary evidence. 2. Having identified those principles, before considering the issues identified at paragraph [84] above, it is appropriate at this point to summarise the submissions of the parties. Submissions of the parties 1. At the conclusion of the evidence, the self-represented parents made brief joint oral submissions which were succinctly articulated by the mother "J". In substance, those submissions argued for orders to be made as asked for in their summons as being in the best interests of their children. 2. The Secretary's outline written submissions have been marked MFI "2": pp 1 – 19, paragraphs [1] – [90]. In short, those submissions succinctly argued for a dismissal of the summons of appeal on the basis of an argued absence of satisfactory evidence that restoration would not constitute an unacceptable risk of harm. Accordingly, it was argued that there should be an acceptance of the proposed permanency plan. 3. The Independent Legal Representative for the children also provided written submissions which were marked MFI "3", pp 1 – 10, paragraphs [1] – [79]. In short, those submissions succinctly argued that the effluxion of time has ultimately assisted the parents in their quest for restoration with the result that the matrix of risk factors which existed at the first hearing in the Children's Court have in material part receded, so as to no longer represent rational risk, and in respect of any residual issues, these could nevertheless be satisfactorily ameliorated by the formulation of a careful restoration and transition plan. 4. The substance of the respective submissions, including the significant aspects that were developed in supplementary oral submissions, will be addressed in the consideration of the issues calling for decision. 5. Before addressing the issues calling for decision I observe that, having heard and read the evidence and considered that array of submissions, it is apparent that much of the required analysis of risk in this case depends upon the acceptability or otherwise of significant aspects of the assessments made by the Children's Court Clinician, Ms Martens. In that regard, her report and her evidence given in the Children's Court and in this Court, requires a detailed examination. 6. I now turn to consider the issues calling for decision. Issue 1 – Evidentiary weight and value of the documentary evidence 1. The volume of documentary Exhibits "A" to "P" in these proceedings exceeded 5000 pages. 2. When examined, the general array of those documents was revealed to include some uncontroversial background descriptions of family history, formal documentation of the process of assumption into care, the progress of the children whilst in care, medical and hospital records and related correspondence, the details of family contact visits, departmental processes, file notes, including notes of conversations with relevant persons, risk assessments, the Children's Court clinician's report, and transcripts of the appealed Children's Court proceedings. 3. The bulk of those materials comprised annexures to affidavits. Those materials will be reviewed in the consideration of Issue 2 concerning credit and the reliability of testimony. 4. In care proceedings of this kind, where the general approach permitted by s 93(3) of the Care Act does not necessarily require adherence to the binding constraints of the rules of evidence, the bulk of that material was received in order to provide relevant background and context to the case. 5. However, as explained [at paragraphs [103] and [105] above], where the resolution of disputed matters of fact, including expert opinion, requires findings that depend upon assessments of the credibility and reliability of testimony, including matters of credit arising from documentary evidence, the application of the rigour of the rules and principles of evidence serve a relevant purpose where procedural fairness is a fundamental requirement. 6. In my opinion, those rules and principles must be applied to the evaluation of the evidence in this case where the truthfulness of relevant factual accounts require findings that are dependent on assessments of credit and the reliability of documentary evidence, including departmental and expert opinions. 7. In this case, the Secretary's position on the evidentiary utility of assembled documents was that they were relevant business records that could be used to resolve disputed matters of fact. It was conceded that an approach along those lines should be subject to the evaluation of the evidentiary and persuasive weight to be assigned to the documents in question: T44.30; T64.35; T67.42; T82.25; T104.20; T180.38; T180.44; T181.14; T243.48. 8. Where credit issues require determination on the balance of probability (s 93(4) and (5) of the Care Act) by reference to matters concerning the probity and truthfulness of accounts given by witnesses, the demands of fairness, the gravity of the allegations against credit require a commensurately careful approach: Briginshaw v Briginshaw (ibid). 9. I will follow that approach to the consideration of Issue 3 after making findings on the credibility and reliability of testimony in relation to Issue 2. Issue 2 – Credibility and reliability of testimony 1. It is necessary that I make some preliminary remarks before identifying my findings and conclusions on matters of credibility and reliability of testimony. Preamble to credit assessments 1. As stated at paragraph [105] above, whilst the rules of evidence need not necessarily apply to these proceedings, in my opinion, in fairness, they should be applied where serious rights-limiting credit criticisms are made as to the character and honesty of litigants with regard to their factual accounts within the evidence where those accounts are seriously contested: s 93(3) of the Care Act. 2. Since the Secretary has taken a credit-based and sceptically critical stance over the variations in the historical accounts of the mother's childhood, teenage and early years as provided by her and as is found in different records made on different dates, I consider the foregoing approach has become necessary in this case. This is particularly so where the Secretary asserts, without reliable supporting diagnostic medical evidence, that the mother "J" holds delusional beliefs. 3. In my view, in this case, the credit implications that might arise from differences found in the disparate records tendered in this case should not of themselves form the simplistic basis for adverse credit findings against the parents. 4. This is because first, it is not unusual for differing accounts to be recorded by different people making notes in different documents over the course of time, and secondly, because the disparate entries in the various historical documents created over time for varying purposes have not been the subject of critical examination of the kind required to justify an adverse credit finding, as was explained in Mason v Demasi [2009] NSWCA 227, at [2]-[3] following Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320, at [8], as follows: "2 First, the trial judge was invited to discount the appellant's oral testimony on the basis of accounts given to various health professionals, which appeared inconsistent either with each other, or with her oral testimony, or both. The difficulties attending this kind of exercise should be well-understood; as explained in the Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8], such apparent inconsistencies may, and often should, be approached with caution for the following reasons, amongst others: (a) the health professional who took the history has not been cross-examined about: (i) the circumstances of the consultation; (ii) the manner in which the history was obtained; (iii) the period of time devoted to that exercise, and (iv) the accuracy of the recording; (b) the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings; (c) the record did not identify any questions which may have elucidated replies; (d) the record is likely to be a summary prepared by the health professional, rather than a verbatim recording, and (e) a range of factors, including fluency in English, the professional's knowledge of the background circumstances of the incident and the patient's understanding of the purpose of the questioning, which will each affect the content of the history. 3 The fact that, in the present case, none of the health professionals was called to give oral evidence as to the matters in issue may not itself be a point of significance. It is unlikely that cross-examination would have advanced any issue in dispute; the witness being likely to have no relevant recollection of taking the history, the oral testimony would be largely limited to an assertion of usual practice." 1. In my opinion, those statements of principle aptly apply to the analytical approach that is required to be taken in this case, especially where the Secretary seeks to impugn the veracity of the mother "J" by reference to a pastiche of extracts from disparately created records, conflatedly assembled, in some parts poorly copied, and at times, difficult to interpret. 2. In this case, I make the observation that the oral evidence of the mother "J" and the father "T" was not inherently improbable on key matters in contention. In those circumstances, I have given diminished persuasive weight to untested hearsay commentaries and summaries found in parts of various records that have been selectively included in the vast array of the documentary evidence that was tendered by the Secretary: Exhibit "A", comprising 4351 pages. In my view, that selection has led to a conflated analysis that was critical of the parents. 3. In particular, it should be noted that credibility criticisms based on the documentary summaries and opinions of others is fraught with difficulty where the reliability and context of such comments must be seen to be questionable due to selectivity of the inclusions or the incompleteness of the assembled documents such as selected parts of hospital records. 4. This raises questions of the persuasive weight of those materials. This is especially so where the affected persons, the parents of the subject children, have given credible and unchallenged contrary explanations. 5. In such circumstances, the basic purpose of the rules of evidence is to seek to ensure that unfairly prejudicial consequences are avoided. In my opinion, in this case, an approach to evidentiary analysis based on the rules of evidence is even more especially applicable on key matters of dispute where the important human rights of children and their parents could be subjected to life-changing limitations in the form of the re-allocation of parental responsibility in Child Care proceedings: s 93(3) of the Act. 6. I now turn to the assessment of the credibility and the reliability of the respective witnesses who gave oral evidence. The mother "J" 1. The mother "J" affirmed a series of five affidavits. These were in the following sequence: 1. 9 October 2020: Exhibit "A", Tab 33, pp 2733 – 2740; 2. 9 November 2020: Exhibit "A", Tab 34, pp 2741 – 2757; 3. 25 November 2021: Exhibit "A", Tab 49, pp 3973 – 3999; 4. 10 July 2022: Exhibit "A", Tab 3, pp 68 – 69; 5. 28 January 2023: Exhibit "A", Tab 7, pp 96 – 108. 1. The mother "J" also gave oral evidence in the Children's Court and in this Court. Mother "J"'s affidavit evidence 1. Those affidavits are also more briefly summarised, in the above order, at paragraphs 35, 34, 49, 3 and 7 of Appendix I to these reasons. The counter-intuitive oddity of that order was determined by the unhelpful and confusing non-chronological assembly of the documents behind the Tabs comprising the multiple volumes of Exhibit "A". Ultimately, not all of the contents of those documents proved to be relevant to the issues calling for decision in this appeal. 2. In the paragraphs that now follow, the salient contents of those affidavits and the oral evidence are summarised and considered for relevance and factual content in order to assist the process of assessing the credibility and the reliability of testimony from the identified sources. Mother "J"'s first affidavit 1. The mother "J"'s first affidavit affirmed on 9 October 2020 recited the history of the child "D"'s assumption into care. She disputed the need for that assumption into care. She cited the fact that her Borderline Personality Disorder has never required ongoing medical treatment. She cited Dr Manooj Baruah's uncontradicted psychiatric opinion to the effect that she had insight into her condition. She gave cogent explanations for the management of her material gestational diabetes under medical supervision since it came under notice when her pregnancy with the child "D" was recognised. In my view, this affidavit demonstrated appropriate insight into her health and welfare needs: Exhibit "A", Tab 33, pp 2733 – 2740. Mother "J"'s second affidavit 1. The mother "J"'s second affidavit affirmed on 9 November 2020 was mainly concerned with the mother "J"'s urine drug testing results, confirming her cannabis abstinence since 20 July 2020. This affidavit evidenced the mother "J"'s pursuit of ongoing counselling, including her engagement with Victims Services on issues stemming from her history of sexual assault: Exhibit "A", Tab 34, pp 2741 – 2757. Mother "J"'s third affidavit 1. The mother "J"'s third affidavit affirmed on 25 November 2021 identified the mother's claim of Aboriginality on her mother's side. She annexed relevant documentation showing her attempts to obtain assistance from the Ungooroo organisation in documenting that claim: Exhibit "A", Tab 49, p 3894. 2. The mother "J" also recounted her pursuit of counselling with the Samaritans and with Mr Graeme Smith, an assigned Victims Support counsellor for her PTSD from childhood, and she described the benefits she gained from that counselling. These matters were known to the departmental caseworker, Ms Stone. 3. The mother "J" confirmed that she had ceased misusing prescription drugs for the management of her pain. She recounted the history of her incestuous sexual assaults by her mother's father, and the pregnancies that ensued. 4. The mother "J" provided a medical report that showed she was in co-operative contact with her family doctor. In this affidavit she eloquently refuted the key allegations against her as raised in Ms Martens' report and she identified relevant misinformation that had been supplied to the Children's Court clinician as sourced by the Department from her own mother. 5. Specifically, at paragraph 19 of this affidavit the mother "J" convincingly rebutted allegations made against her concerning the management of her gestational diabetes, her diet, and her monitoring of her blood sugar levels. She also debunked the suggestion by a hospital employee to the effect she had been drinking Coca Cola when she should not have done so on account of her blood sugar levels. She stated she had consumed sugarless Coke instead: Exhibit "A", Tab 49, p 3977, paragraph 19(e). Mother "J"'s fourth affidavit 1. The mother "J"s fourth affidavit affirmed on 10 July 2022 documented her difficulties in obtaining documentary certification of her Aboriginal heritage: Exhibit "A", Tab 3, pp 68 – 69. She annexed copies of text messages from the departmental caseworker Ms Stone regarding communications both with her and with the Aboriginal organisation she was enlisting to seek to confirm her Aboriginal heritage. 2. The mother "J" claimed that such contact, which she described as interference by Ms Stone, who identified herself as Aboriginal, unhelpfully resulted in the termination of those attempts. The mother "J" articulated the argument that the Department could not protect her daughters and that they should therefore be returned to her. She based that argument in part on her claim that the Department had neglected her own need for protection as a child, and as a teenager, and stated that her children would be safe at home with her. Mother "J"'s fifth affidavit 1. The mother "J"'s fifth affidavit affirmed on 28 January 2023 sets out cogent reasons for the institution of the present appeal (at paragraphs 4 – 18): Exhibit "A", Tab 7, pp 96 – 108. In that narrative, in essence, she submitted that the clinical opinions of her psychiatrist, which she supplied to the Department, should prevail over the analysis by the Children's Court clinician. That submission seemingly had no effect. 2. The mother "J" also set out how the trauma resulting from the removal of her children has had the effect of perpetuating her childhood trauma. At paragraphs 19 to 26 of this affidavit she advanced cogent reasons why her appeal should be allowed. Between paragraphs 27 to 33 she set out 28 sequential paragraphs of reasoning as to claimed factual errors she had identified in the reasoning of the Children's Court Magistrate. That said, it is not necessary to traverse those latter points in these reasons as this appeal is a hearing de novo. Mother "J"'s oral evidence in the Children's Court 1. The mother "J" gave oral evidence in the Children's Court proceedings: Exhibit "A", Tab 16, pp 1096 – 1137; Tab 17, pp 1139 – 1157. 2. In those proceedings she was briefly examined in chief: Exhibit "A", pp 1096 – 1098. She was cross-examined at length by counsel for the Secretary: Exhibit "A", pp 1098 – 1133. She was also cross-examined by the children's Independent Legal Representative: Exhibit "A", pp 1141 – 1158. 3. A stand-out feature of that evidence was that her evidence was cogent, it was spontaneously responsive to challenges put to her, and none of her answers seemed glaringly or inherently improbable. 4. Another stand-out feature of that evidence was that in cross-examination by counsel for the Secretary, she denied the proposition that her account of being pregnant (and giving birth to six children) before the birth of the child "D" was not true, but "made-up": Exhibit "A", Tab 16, pp 1117.15 – 1117.20. That line of cross-examination was not repeated in this hearing. 5. A question that therefore lingers at this point is on what basis was that question put in the first place, as no reliable contradictory evidence was ever introduced to support the proposition that was put to her as a challenge to her veracity. 6. Another stand-out feature was that it was incorrectly put to her by counsel for the Secretary that, with reference to the John Hunter Hospital records on 16 September 2021 (Exhibit "A", Tab 16, p 1128.14), that before that date she had not previously identified as Aboriginal, a proposition she in effect denied by her subsequent answers: Exhibit "A", Tab 16, p 1129.5. – 1129.26. 7. Be that as it may, the factual basis for that question was objectively and palpably incorrect. This is because, as the departmental officers of the Secretary well knew, the mother "J" was previously noted as having identified as Aboriginal in a hospital record on 29 May 2020, which was before the first child was assumed into care. This was evident from hospital records that Ms Stone had subpoenaed: Exhibit "A", Tab 40, p 3215. 8. I infer from the process by which the assembled materials were obtained, from their bulk, from the purpose of the proceedings, and from the assiduous way in which the documents were prepared for the hearing, that this document was available to be given to counsel, and that those instructing him had failed or neglected to correct the erroneous premise of the question when in fairness, that should have occurred. The erroneous proposition so put in cross-examination had the potential to infect the forensic process in the Children's Court. 9. Another stand-out feature includes the mother "J"'s repeated denials of having consumed Coca Cola drinks when she should not have on account of her blood sugar levels. On each occasion that proposition was put to her, she corrected it by repeating that she had been drinking sugarless Coca Cola: Exhibit "A", Tab 16, p 1117.36; p 1122.30; p 1145.1. The source for the contrary proposition was an untested assumption made by a hospital midwife, which in this case is an unsatisfactory basis for a credit attack. 10. A further stand-out feature was that the mother "J" was challenged as to her childhood history. This proceeded by means of mis-information briefed to counsel for the Secretary as was obtained from her own mother. The mother "J"'s denials of the contrary propositions were on their face credible, and no contradictory oral evidence from the cited source was called to support the claims made by the Secretary. 11. Yet another stand-out feature of the cross-examination by counsel for the Secretary was the assertion that the mother "J" had "made-up" that she had back surgery following her motor vehicle accident when she was a teenager. She cogently answered that challenge by referring to the fact that she had scars on her back. No attempt has been made, either then or more recently, to have those scars viewed or examined by an appropriate request to do so, if this was truly a matter in issue. In that regard, it is noteworthy that there had been no request made at any stage of the appeal proceedings to utilise the power within UCPR r 23.2 to have a medical examination to have that question resolved. In those circumstances, I consider that the evidence of the mother "J" should be accepted as it was an explanation that was not inherently improbable on its face. That explanation was also corroborated in a medical record dated 29 May 2020: Exhibit "A", Tab 40, p 3215. 12. Another interesting feature of the cross-examination in the Children's Court was the denial by the mother "J" of an assertion put to her by counsel for the Secretary, based on her own mother's claim that she had a history "of making up outrageous stories for attention": Exhibit "A", Tab 16, p 1110.33. Again, it is telling that the mother of mother "J" was not called to substantiate the basis for the question. I see no reasonable basis for rejecting the mother "J"'s denial. 13. When the mother "J" was asked questions about her early history of criminal convictions she answered to the effect that it "was a long time ago when I was very young and very dumb": Exhibit "A", Tab 16, pp 1125 – 1145, T1126.3. The answer was candid, credible and insightful, without seeking to avoid the sting of the criticism implicit in the question. 14. A question was put to the mother "J" suggesting that she was aggressive in her engagement with people. She answered: "People take the fact that I am blunt and very straightforward sometimes as aggression": Exhibit "A", Tab 16, p 1127.47. That answer had the ring of truth about it and I found it to be convincing. 15. In my assessment, nothing in the way of discredit as a witness emerged from the evidence that the mother "J" gave in the Children's Court proceedings. The mother "J"'s oral evidence in this appeal 1. In the appeal, the mother "J" was cross-examined extensively by the solicitor advocate for the Secretary: T16 – T139. She was also cross-examined by the children's Independent Legal Representative: T139 – T163. 2. Essentially, the topics raised by the Secretary in that cross-examination were as follows: 1. her history of convictions in 2009 (for possession of a prohibited drug), and in 2015 and 2020 (for an illicit substance in her blood): T16; 2. it has been two years and six months since she used illicit substances, as is confirmed by her pathology tests results: T17.25; 3. her understanding of the Department's concerns over alleged "unmanaged mental health" and because of alleged delusions she is said to have, where she contested those propositions: T18.36 – T18.42; T21.17; T103.33; T105.13; 4. the correctness or otherwise of a history of having multiple personalities, where this was once suggested to her, but about which she queried how this could have been measured or determined: T20.37. The report of Dr Baruah suggests that this proposition was not correct as a diagnosis; 5. her impaired relationship with her own mother, where she has been unable to ascertain details of her family history: T23.8; 6. her history of the birth of six children before the age of 16 years: T24.2 – T30.15; T33; T34; 7. her conversations with departmental social workers and caseworkers Ms Stone and Ms Coffey: T31; T42; 8. her history of consulting doctors and whether she had caesarean sections: T36 – T39; 9. the history of her interstate truck accident and the injuries from that accident: T45 – T48; T50; 10. whether she has had CT scans of her spine and whether she has rods in her spine as a result of the truck accident: T51 – T52; T55; T56 – T57; 11. her need for and use of opioids for pain relief as a result of her back injury: T53 – T54; 12. her food and other allergies: T57 – T58; T70; 13. her dislike of hospitals, and some tensions that arose as a result: T61; 14. her history of maternal gestational diabetes, and later, her Type II diabetes, and how these conditions were managed: T62; T104 – T108; 15. her attitude to having injections of Clexane, an anti-coagulant blood thinner: T64; T67; 16. her dietary intake: T64 – T65; 17. her allegedly aggressive behaviour: T66; 18. her receipt of a disability support pension since the age of 19 years on account of her physical disabilities: T68; 19. her conversation with nursing staff about the neonatal care of the child "D": T70 – T71; 20. her rejection of the proposition that she believes that the Department, through Ms Stone, is pursuing a vendetta against both her and the father "T": T71.27; 21. her cessation of the use of cannabis and her attendance at the Samaritans drug rehabilitation courses over 2 years, to assist with monitoring abstinence from drug use: T73.50 – T77; 22. her concession that she vehemently disagreed with the casework decision made by Ms Stone and her consequential antipathy towards Ms Stone: T78.43 – T79; 23. her denial as to making threats to anybody when venting about Ms Stone's decisions, and in other circumstances: T78 – T79; T120; T129 – T130; 24. her hospital admission in 2020 following a suicide attempt in the context of what was initially thought to be an ovarian cancer, but which was since excluded as a diagnosis, and ovarian cysts were diagnosed: T83; 25. her rejection of the proposition that her impulsiveness in her earlier life has continued into her adult life: T83; 26. her complaint that the Department had ignored her childhood contemporaneous early disclosures of the sexual abuse where she said that the Department officers refused to believe her, which led her to run away from her sister's home where she had been placed, to seek refuge in a youth refuge centre, when in that mix of events, she attempted to slit her wrists because she was not believed: T84; 27. her physical mobility issues, including how this might impact on her ability to provide childcare: T90 – T91; T110 – T112; T114 – T115; 28. her attempts at pursuing documentary confirmation of her Aboriginality and her belief that Ms Stone had interfered with that attempt, thus causing delay: T95 – T100; 29. her change in sleep patterns and her anticipation of the return of her children: T109: 30. the serial recrudescence of her PTSD symptoms because of the need to "replay this [being her past experience of sexual abuse] again and again in my head": T109; T136; T138; 31. details of her companion animal dogs in connection with their presence at contact visits: T122 – T124; 32. her requirement that there be no smoking of cigarettes in the house when her children are restored to her: T125; 33. her expression of anger that was provoked when the carers cut the hair of the child "D" contrary to her own communicated wishes: T127 – T128; 34. her preparedness to pursue counselling and any related consultations: T133.12; 35. her motivation for having her daughters taught self-defence so they could not be hurt. This motivation arose because of her experience of abuse as a child: T135.10. 1. Essentially, the topics canvassed by the Independent Legal Representative in cross-examination of the mother "J" were as follows: 1. the mother "J's demonstrable state of upset at a contact visit when, unexpectedly, during the currency of these proceedings, the new carers, who are the proposed adoptive parents, were present, where this caused confusion as to who the children called their "mum", and the resultant angst this caused the parents: T144 – T146; 2. her abstinence from the use of illicit substances since July 2020, and her ability to manage her anxiety and remain calm without the use of those substances: T148 – T149; 3. her use of opioids for pain relief only when medically prescribed: T149 – T150; 4. her preparedness to pursue any required parenting courses and to co-operate with any supervision that might be required as part of a care plan: T150 – T151; 5. her preparedness to accept medical advice as to any medical needs the children might have and to seek a full understanding of that advice if in doubt about it: T151 – T152; 6. she explained, with greater rational clarity why she was reluctant to take higher doses of Clexane when this was prescribed to her in the hospital setting. This was because she has haemochromatosis, and she was concerned about bruising occurring when handled in hospital (in 2020): T153; T162; 7. in the context of a restoration, her preparedness to co-operate with agencies and workers, and other professionals, and to "tick the boxes" to get her children back: T155 – T156; 8. her strategies for avoiding aggressiveness and confrontation: T157; 9. her preparedness to co-operate with regard to supervision and transition arrangements, and to abide by any required undertakings: T158 – T161. Cross-examination by the Court pursuant to s 107(1) of the Care Act 1. Pursuant to the power provided by s 107(1) of the Care Act, I took the opportunity to cross-examine the mother "J" on a number of relevant questions. A particular issue of concern involved questions that explored her attitude to circumstances that might arise regarding differences of opinion on matters pertaining to child welfare. The discussion on that subject was as follows: "Q. From my reading thus far, it seems at times you've been quite forcefully assertive in challenging the opposing view. That's a yes or no answer. A. Yes, it is, your Honour. Q. I'm not being critical of you and I'm sure you had your reasons. But, now that you're reflecting on this subject and recognising the importance of the issue, how would you change that oppositional stance in order to get to achieve a resolution of it? A. I would ask them to discuss as many options as possible with me now. Q. But, if it came to the crunch where you remained in disagreement with the opposing view as to what was best for your children, how would you then approach it? A. I'm not sure, your Honour. Q. I suppose it depends A. I would have to ask them Q. on what the issue is. A. them to talk about it as much as I could. Q. Well, you heard from previous cross examination that you were accused of being aggressive in some of your responses to people. A. Yes, your Honour, and – Q. Is that the way to go? A. No, your Honour, it's not. Q. When did you come to realise that? A. I have to explain something here. Q. Yes, yes. A. You just heard me get that little bit upset just then when I was talking to Ms Taylor. Q. Yes. A. I get accused of being aggressive when I get upset like that. Even though you can see it's a physical reaction of being upset, I am being accused of being aggressive. Q. So, I'm getting from you that what you're really saying is you're wrongly accused. A. At the moment, yes. Q. Yes. A. I admit I can get aggressive about certain things, especially about my little girls. But, when I'm sitting there, I've got tears rolling down my face and I'm still being accused of being aggressive and I'm not." [T156.26 – T157.23] 1. I consider that the mother "J"'s answers to those questions were genuine. I am persuaded that the mother "J" has a changed attitude to managing differences of opinion that might arise in her interactions with officialdom and service providers compared to past instances which had led to confrontation. Credit conclusion concerning the evidence of the mother "J" 1. In short, on my review of the entirety of her evidence when viewed against the evidence assembled by the Secretary, I found the mother "J" to be a credible witness whose evidence should be accepted on crucial matters in contention in these proceedings. The father "T" 1. The father "T" has filed two affidavits affirmed as follows: 1. 6 November 2020: Exhibit "A", Tab 38, pp 2779 – 2798; 2. 24 November 2021: Exhibit "A", Tab 50, pp 4000 – 4008. 1. The father "T" also gave oral evidence in the Children's Court and in this Court. Father "T"'s first affidavit 1. The father "T"'s first affidavit recounted the family history and the relationship between himself and the mother "J". In this affidavit he refuted the allegations of drug abuse, alcohol abuse, his own alleged mental health issues, and the alleged sexual abuse of his own daughter. The annexures included a photograph of the child "D", a series of negative drug tests, and a confirmatory report dated 15 October 2020 from Ms Anna Kasper a drug and alcohol counselling psychologist: Exhibit "A", Tab 38, pp 2779 – 2798. Father "T"'s second affidavit 1. The father "T"'s second affidavit provided an updated family history, confirmed his abstinence from cannabis, and provided details of the birth and assumption into care of "K", and some details of subsequent contact visits. In this affidavit the father "T" also described his distressed state of upset over what he described as the untrue allegations of abuse against his daughter "S". His oral evidence emphatically reiterated that distress. The affidavit also referred to details of his completion of courses relating to wellbeing and anger management, as was requested of him: Exhibit "A", Tab 50, pp 4000 – 4008. Father "T"'s oral evidence in the Children's Court 1. The father "T" gave evidence in the Children's Court proceedings: Exhibit "A", Tab 15, pp 1055 – 1095. In those proceedings, he was extensively cross-examined by counsel for the Secretary on a variety of topics including the mother "J"'s health, her medications, and the difficulties both the mother "J" and he had experienced whilst in hospital at the time of the birth of their first child "D". 2. In those proceedings, the father "T" refuted a series of propositions put to him to the effect that the mother "J" had neglected her health by not following medical advice for the management of her maternal gestational diabetes, and he identified a reasoned historical basis for tensions that existed between himself and the mother "J" on one hand, and the Secretary's caseworker, Ms Stone, on the other hand. He perceived her to have acted vindictively against him and the mother "J". In my view, his aggressive comments about departmental staff should be seen as an unfortunately expressed emotional reaction to that dynamic rather than representing actual threats. 3. The oral evidence given by the father "T" was remarkably focussed and articulate, especially given that he had limited education, and he could not read or write because of his early outback history and lifestyle. 4. The father "T" resolutely and convincingly refuted the allegations made by his developmentally delayed daughter "S", concerning a claim of earlier sexual abuse she alleged he had perpetrated against her. 5. The father "T" confirmed that at the behest of the Department, he had completed an anger management course and a Circle of Safety childcare course because he had been asked to do so. He also explained, reasonably in my view, how his anger had become manifest on account of how he perceived the manner in which both he and the mother "J" had been disrespectfully treated by departmental staff. He refuted the notion that he had a problem with emotional regulation. He also confirmed his earlier role as a carer for the mother "J" on account of her physical restrictions. 6. The father "T" confirmed he has maintained abstinence with regard to his prior use of cannabis. He has not used alcohol for many years. He also confirmed his belief that the mother "J" has been compliant with medical advice in managing her blood sugar levels. He recounted his understanding of the health conditions of the mother "J". 7. The father "T" also confirmed that he had sought assistance from a psychiatrist to assess his mental health and he recounted how that psychiatrist, Dr Baruah, had determined that he does not need to be seen for treatment as there was no relevant condition to be treated. Dr Baruah's report did not support the notion of the father "T" having a mental illness: Exhibit "A", Tab 50, pp 4006 – 4008. 8. Notwithstanding that evidence from an appropriately qualified expert, without explanation, the Department has maintained its insistence that he be required to have mental health management. That anomalous matter will be taken up in my assessment of the evidence of the departmental manager, Mr Nijland, and in my assessment of the evidence of the departmental caseworker, Ms Stone. 9. The father "T" explained with articularity his understanding as to why there had been a difficulty managing the mother "J"'s prescribed blood thinners and her blood glucose levels over time, including the effect that her antenatal need for steroids to be administered to mature the foetal lungs prior to an imminent premature delivery, and the adverse effect this was having on maternal blood sugar levels. He also spoke about attempts by the mother "J" to seek to confirm her Aboriginality. Father "T"'s oral evidence in the appeal 1. When the father "T" gave his evidence in these proceedings he was cross-examined at length by the solicitor advocate for the Secretary. The following topics emerged: 1. his actions in August 2020, when he threatened to go to the press because he was upset over how he and the mother had been treated by the Department: T164.44. Given that he had a right to take that course, it is difficult to see how this could be regarded as an issue adverse to his credit, particularly given the frustration he was experiencing because he was not being heard adequately; 2. his complaint that the mother "J"'s condition of PTSD was being adversely affected by reason of her past being brought up "over and over again. Enough is enough": T165.14; T176.47 – T177.8; 3. his dissatisfaction with the diagnosis and opinions of the Children's Court clinician, which he perspicaciously described as being "weighted": T165.19; 4. his disgust at the allegation of child abuse "filth" that was being drawn to his attention by the clinician for comment: T165.35 – T165.50; 5. his history of domestic arguments with his former partner of 14 years, where he described her as being a "very manipulative … cunning piece of work": T169.1 – T169.20; 6. his dissatisfaction with the accuracy of the notes made by the departmental caseworker Ms Stone: T171.27. This issue was not fully explored in these proceedings in the context of a hearing de novo; 7. his disappointment over the delay incurred in waiting for the present hearing: T172.45 – T173.19. It appears from the Court file that the appeal had been marked "not reached" at an earlier circuit sittings of the Court in Newcastle on 1 August 2022 despite such cases having absolute priority over other cases; 8. his confirmation at having given up cannabis and alcohol: T174.41 – T175.16; 9. his positive dealings with Ms Appleyard the caseworker from Barnardos: T175.40; 10. his rejection of the assertion that the mother "J" is delusional: T177.20; 11. his rejection of an improper relationship with the mother "J": T177.45 – T179.7. 1. The father "T" was then questioned by the children's Independent Legal Representative. In that questioning, the following matters emerged: 1. his vehement commitment to have his children restored: T182.30 – T183.17; 2. his account of innocuous playtime at family visits (as confirmed by others) that might have been regarded with suspicion by some persons: T184.40 – T185.3; 3. his completion of an anger management course: T185.3; 4. his availability to take the children to school in the mornings because of his night shift work: T185.40; 5. his ability to interact with people without becoming aggressive: T185.48; 6. his preparedness to work with Barnardos: T186.39; 7. his ability to respectfully deal with people who would be coming into his house following a decision for restoration provided they treated him with respect: T187.9; 8. his preparedness to take further parenting courses if he was required to do so, despite having had three previous children: T187.40; 9. his frustration at having to engage in processes or activities amounting to "box ticking for DCJ": T188.16; 10. his preference of avoiding crowds: T189.14; 11. his eagerness to introduce the children to grandparents: T189.24; 12. his preparedness to co-operate and compromise with a gradual transition of the children in their best interests: T189.50 – T190.15; 13. his preparedness to avoid conflict in circumstances where opinions might differ: T190.35 – T191.12. Credit conclusions concerning the evidence of the father "T" 1. Having considered the evidence of the father "T" as a whole and compared it to the evidence the Secretary has assembled, I was impressed with the straightforward and unhesitating candour of the evidence of the father "T". I have accepted him as a truthful witness who gave his evidence honestly, without embellishment, in accordance with his perceptions of the events of which he spoke. 2. In my opinion there were no adverse credit concerns that arose from the evidence of the father "T". He gave his evidence in a forthright and down-to-earth manner without seeking to avoid or deflect critical questions. I have accepted his evidence in its entirety. Ms Allyson Stone, the departmental caseworker 1. Ms Stone is currently a departmental manager caseworker. Between July 2020 and 19 April 2022 she was the departmental caseworker assigned to the case of the children who are the subject of this appeal. In that capacity she worked under the supervision of Mr Michel Nijland, her manager. Affidavits by Ms Stone 1. Ms Stone affirmed a cumulative series of eight affidavits for the Children's Court proceedings and for these proceedings. Her affidavits were affirmed in the following sequence: 1. 21 September 2020: Exhibit "A", Tab 25, pp 1819 – 2031; 2. 12 November 2020: Exhibit "A", Tab 26, pp 2032 – 2189; 3. 17 December 2020: Exhibit "A", Tab 21, pp 2190 – 2208; 4. 15 January 2021: Exhibit "A", Tab 28, pp 2209 – 2242; 5. 7 May 2021: Exhibit "A", Tab 29, pp 2243 – 2254; 6. 20 July 2021: Exhibit "A", Tab 32, pp 2603 – 2733; 7. 5 November 2021: Exhibit "A", Tab 48, pp 3821 – 3972; 8. 17 February 2023: Exhibit "A", Tab 11, pp 145 – 408. 1. I have examined the voluminous and vast array of the content of those affidavits for relevance to the issues calling for decision. That review now follows. Ms Stone's first affidavit 1. Ms Stone's first affidavit, affirmed on 21 September 2020, comprised 131 paragraphs which summarised historical matters largely overtaken by events. It was prepared in anticipation of the earlier hearing in the Children's Court: Exhibit "A", Tab 25, pp 1819 – 2031. 2. The annexures to that affidavit (between pp 1842 – 2031) comprised an array of historical medical records and test results relating to the mother "J" and departmental file notes which contained hearsay information relating to both parents. Much of that historical information has been overtaken by events. 3. The historical context of Ms Stone's first affidavit was that on 3 July 2020, she was allocated to be the departmental caseworker for the child "D". The Secretary's application for care for the child "D" was filed one month after that allocation, on 5 August 2020. This affidavit annexed extensive materials covering the period of two and-a-half months up to the time when her affidavit was affirmed on 21 September 2020. 4. This affidavit covered a wide range of enquiries and assessment processes. This ranged from charting the family composition and history; the progress of the child "D" starting from the diagnosis of Neonatal Abstinence Syndrome and related neonatal withdrawal symptoms; casework with the father "T" and the mother "J"; a series of positive urinalysis test results for the mother "J" which indicated the use of opiates, benzodiazepines and cannabis; hearsay reports of hostile parental threats in relation to departmental staff which the Department took seriously, including a reportedly angry outburst which included a reported threat to kill the caseworker, which has since receded in its significance. It appears that threat could have been an infelicitous expression in a vernacular sense. 5. This affidavit went on to describe and annexe reports of serious harm ("ROSH"), (which have since been the subject of factual clarification through evidence from the parents), and reports of medical concerns over the health status of the mother "J" (maternal gestational diabetes and the implications of this and the mother's need for pain relieving medication with regard to the effects of those matters on the child "D"), and reports of the father "T"'s alleged but disputed sexual abuse of his disabled teenage daughter from a previous longstanding relationship, a matter which the Department investigated and considered to have been "substantiated". 6. In addition to those matters, there was a description of a 17 August 2020 telephone communication between Ms Stone and the mother of the mother "J" in which that person reportedly told Ms Stone: "Don't ever give that baby back", also recounting the mother "J"'s childhood history in a most negative light, alleging that she was a runaway teenager who allegedly suffered poor mental health, and also asserting a childhood and birthing history that was contrary to that which was described by the mother "J". 7. The obvious significance of Ms Stone's first affidavit is that on the face of those matters, the Department was justified in taking early steps to ensure that the child "D" was assumed into care on the grounds of concerns as to child safety. 8. Of those matters, five items of potential significance emerge as to child safety concerns. First, the mother "J""s amenability to accept medical advice, secondly, the mother "J"'s drug use, thirdly, the mother "J"'s veracity when compared to the account proffered by her own mother, fourthly, the mother "J"'s own physical disabilities, and fifthly, the potential for the father "T" to be engaged in serious child sex abuse in relation to children in his care. 9. Whilst the Department initially and properly regarded those matters amounted to reasonable concerns in relation to the safety, welfare and wellbeing of children, the effluxion of time and a more comprehensive factual analysis has shown that those initial assessments did not retain a status of full currency. Despite this, the Department took no steps to downgrade its concerns as recorded in its system, and it maintained them into the hearing of this appeal. 10. As to the first concern raised as to the mother "J"'s amenability to receiving and following medical advice, it is quite clear that she has been materially compliant once she was given a clear explanation and understanding on such matters. In my view, the evidence suggests that concern has dissipated into the historical background. 11. As to the second concern raised over the history of parental drug use, that too has been relegated to historical background relevance. Both parents have proven themselves to have been drug free for 2 years and 8 months. This persuades me that they each have a strong and effective desire to remain so in order to ensure the restoration of their children. In the case of the mother "J", this achievement has been at the expense of her suffering considerable physical pain and discomfort from her accident-related symptoms from a truck accident in her teenage years, where now, she even limits her use of prescription drugs. 12. As to the third concern raised over the divergent factual narratives of the mother "J"'s early years and the contrasting narrative provided by her own mother: Exhibit "A", Tab 25, pp 1863 – 1864. That the latter narrative must be seen to lack persuasive weight because the concerning contrary content remains untestable with regard to significant matters of dispute. This was in circumstances where the mother "J" has provided cogent and not inherently improbable reasons for discounting and rejecting the critical factual assertions made by her own mother. Given that person's self-described current status as a qualified child-carer, it is surprising and telling that a duly attested evidentiary statement has not been forthcoming from her. 13. Also telling is the reported but incorrect assertion that the mother "J" is on a disability support pension due to "mental health, not a physical disability": Exhibit "A", Tab 25, p 1864. Two pertinent comments arise in relation to that statement, First, in view of the history of limited mother-daughter contact, it is questionable as to how that person could have acquired reliable knowledge of that matter. Secondly, and objectively, the cited proffered statement by the mother of the mother "J" must be seen to be factually incorrect when it is compared to a contrary objective medical certificate dated 4 September 2020: Exhibit "F". 14. As to the fourth concern over the mother "J"'s physical disabilities, for the reasons I will identify in more detail in my consideration of that issue, the departmental expressed concerns must be seen to be inappropriately discriminatory of the mother "J"'s disability. That consideration must be discounted accordingly. 15. Finally, as to the fifth concern over the claim of a risk for the father "T" being a potential sex abuser of children in his care, the "substantiation" of that claim is highly questionable on several fronts, including that the "substantiation" of it is considered to be "relatively weak". 16. In the Department's documentation of its consideration of that matter, the underlying allegations of the father "T" having sexually abused his own disabled teenage daughter, and the materials evidencing Ms Stone's extensive contextual investigation of that matter (Exhibit "A", Tab 25, pp 1922 – 2031), it was noted that the child in question "did not" agree to tell the truth when interviewed for the purpose of ascertaining the facts that related to her disclosure against her father: Exhibit "A", Tab 25, p 1965. 17. It was further noted the child "S" was prone to "integrate fiction (horror movies) into her disclosures and experience" and due to her "mental incapacity and illness" JCPR police officers declined to lay charges against the father "T": Exhibit "A", Tab 25, p 2002. It appears the Department nevertheless internally "substantiated" the allegations as a precaution, and on a most flimsy basis. 18. Having considered and compared the evidence of the father "T" on those matters, I am persuaded that the allegations are most improbable as to their truth, and more likely to have been advanced due to coaching, including by the hostile attitude of the father "T"'s ex-partner, the child's mother, as was claimed by the father "T". 19. The notes taken by investigators when interviewing the child involve interviewer interpolations which cast doubt upon the reliability of those notes, without explanatory evidence on such important and serious allegations: see Mason v Demasi, [ibid]. In the context of these proceedings, those allegations, and the claimed departmental "substantiation" of them, lack persuasive weight. I have accepted the rebuttal evidence of the father "T" in that regard. Ms Stone's second affidavit 1. Ms Stone's second affidavit, affirmed on 12 November 2020 (paragraphs 1 – 143), updated her first affidavit on the family connections and the progress of the child "D", who was by this time aged 4 months old. 2. Ms Stone's described casework at this time focussed upon seeking to clarify the previous history of the mother "J", particularly her history concerning the birth of her previous six children, her account of her maternal grandfather having sexually abused her, and her account of the injuries she sustained as a teenager in the earlier described truck accident. 3. The effect of that casework was that an unresolved divergence of accounts remained between the direct first person accounts provided by the mother "J" and the indirect hearsay accounts provided by her own mother, including the assertion that the maternal grandfather could not have impregnated her as he had allegedly passed away before she was born. 4. That latter question has not been objectively determined and the mother of the mother "J" continued her stance of not providing an evidentiary statement to substantiate her reported statements which contradicted the direct accounts provided by the mother "J". A death certificate, if it existed, would have resolved that issue. I could not see one in the materials tendered. These circumstances led Ms Stone to embark on other investigations aimed at seeking to test or verify the factual accounts given by the mother "J". 5. In my view, the fact that no objective evidence has been obtained in relation to the birth of the previous six children is not determinative because of the mother "J"'s not inherently improbable account of her mother having taken those children away from her. Furthermore, the inability to confirm the fact and the consequences of the mother "J"'s truck accident whilst a teenager is not all that remarkable given her age at the time, and the time that has passed since the occurrence of those events. It is not surprising that diligent searches of a trail gone cold have been unproductive: Harrison v Nominal Defendant (1975) 50 ALJR 330, at page 332. 6. This affidavit of Ms Stone, amongst other things, went on to canvas departmental concerns over parental "mental health", substance abuse (which was the subject of negative test results) and the father "T"'s denials of prior sexual abuse. 7. Notably, by this time, Ms Stone was in possession of a contemporaneous clinical letter from Dr Baruah, a consultant psychiatrist, who negatived the suggestion that the mother "J" had a relevant mental illness: Exhibit "A", Tab 26, pp 2135 – 2137. Notwithstanding that letter, and absent contradictory opinion, the Department appears to have had little regard if any to that opinion and it did not seek to obtain a contrary opinion from an expert of equivalent qualifications. 8. In those circumstances, nevertheless, Ms Stone continued to maintain her sceptical attitude towards the earlier history provided by the mother "J". That attitude is evidenced by Ms Stone's undated point-form handwritten notes that she made of her conversation with the mother of the mother "J", which according to Ms Stone's affidavit at paragraph 103, was said to have taken place on 17 August 2020: Exhibit "A", Tab 26, p 2056. In my assessment, that note should have no determinative value in these proceedings as it has not been backed up with reliable factual testimony on such an important matter. 9. Paragraph 143(a) of Ms Stone's second affidavit recorded that on 29 July 2020 the mother "J" had agreed to participate in a psychiatric assessment and a mental health assessment as part of a child safety plan: Exhibit "A", Tab 26, p 2049. The evidence is silent on whether that assessment took place, and if so, with what result. The onus is on the Secretary in that regard and it remains undischarged. Ms Stone's third affidavit 1. Ms Stone's third affidavit, affirmed on 17 December 2020 (paragraphs 1 – 20) evidenced her unsuccessful attempts through the issue of subpoenas to verify the mother "J"'s interstate truck accident and the child "D"'s cultural identity as Aboriginal. The affidavit records that in the face of the financial cost of seeking possible confirmatory genealogical testing for Aboriginality, the mother "J" said that she would rather spend her funds on the child "D". Ms Stone's fourth affidavit 1. Ms Stone's fourth affidavit, affirmed on 15 January 2021 (paragraphs 1 – 75: Exhibit "A", Tab 28, pp 2209 – 2242), provided an update of historical information that the Department held in relation to the mother "J". It set out the Department's understanding of the mother "J"'s family connections and it set out hearsay accounts from mother "J"'s sister that in effect refuted the mother "J"'s account of having been impregnated by that sister's husband, the mother "J"'s brother-in-law. This affidavit had very limited evidentiary value as it was principally concerned with matters of hearsay. Ms Stone's fifth affidavit 1. Ms Stone's fifth affidavit, affirmed on 7 May 2021 (paragraphs 1 – 58, Exhibit "A", Tab 29, pp 2243 – 2254), primarily dealt with carer arrangements for the two children who are the subject of the present proceedings. It also annexed some contact reports that do not require further analysis. 2. Significantly, this affidavit revealed that the Secretary had engaged a Child Welfare clinician, Ms Cindy van der Velder, who raised doubts about the placement of the child "D" with the allocated carers: Exhibit "A", Tab 32, p 2254. That process, as described in Ms van der Velder's email to Ms Stone dated 6 April 2021, as cited above, does not indicate the ultimate conclusion reached as to the care of the child "D". In my view, in leaving that line of consideration incomplete, this was contrary to the spirit and the requirements of s 9(1) of the Care Act. Ms Stone's sixth affidavit 1. Ms Stone's sixth affidavit, affirmed on 20 July 2021 (Exhibit "A", Tab 32, pp 2603 – 2733), comprised 60 paragraphs in which she described the circumstances in which the Department became aware of the mother "J"'s subsequent pregnancy with the child "K". Accordingly, in view of the content of the Children's Court clinician's report from Ms Martens, in view of concerns over foetal wellbeing and delays encountered in arranging a baseline urine test in the pregnancy to check for maternal gestational diabetes, and having regard to the raised possibility of pre-eclampsia occurring in this pregnancy, a "Safety Assessment" was completed by Ms Stone: Exhibit "A", Tab 32, p 2606. 2. That assessment contained the following statement: "[the mother "J"] and [the father "T"] are unable to accept DCJ concerns [which were based on Ms Martens' comments] for [the mother "J"]'s poor mental health, therefore, are unable to recognise the signs of decline and the impact this will have on their unborn baby upon birth". 3. That assessment was based on the content of a note made as a result of a call from a mandatory reporter made on 26 June 2020. 4. It is plain that at that stage, the parental non-acceptance of Ms Stone's concerns was reasonably based on the uncontradicted opinion of Dr Baruah, the consultant psychiatrist who negatived such concerns. 5. At Exhibit "A", Tab 32, pp 2606 – 2607, Ms Stone's narrative was that despite the mother "J"'s claim that there were no barriers to her caring for a baby at night when the father "T" would be at work at his night shift job, this was apparently considered to be an unsafe arrangement, including a safety concern over the possibility that the father "T"'s 20 year old son "BT", who is intellectually delayed, might be called upon to place the newborn baby into a bassinet, thus "essentially relying on a child to care for her baby when [the father "T"] is not in the home". 6. That assessment, on the face of it, appeared to be discriminatory of the mother "J"'s disability. It is surprising that an occupational therapy consultation was not sought out to consider what if any assistive devices might be relevant to the amelioration of that perceived risk. That course was within the capacity and remit of the Department: Exhibit "A", Tab 13, p 474, paragraph 38. 7. This sixth affidavit went on to document the continuous chain of negative urinalysis test results for both parents between 27 August 2020 and 19 March 2021, which negated the caller's concerns as relayed to the Department. 8. Ms Stone described the arrangements that were made to assume the newborn child "D" at birth four days after she was born: Exhibit "A", Tab 32, p 2628. 9. That decision was taken even though the person making the report to the Department on 8 June 2021, apparently a mandatory reporter with healthcare qualifications who "has not met [the mother "J"] as yet" when calling to report "concerns", was reported to have said "[the mother "J"] has no formal mental health diagnoses however previous health notes indicate she has borderline personality disorder and was medicated": Exhibit "A", Tab 32, pp 2619 – 2620. 10. From the departmental record of that call, it appears that it was apparently made as a mandatory report call on 26 June 2020, at a time when the caller had not yet seen or professionally assessed the mother "J". The departmental record stated that the mother "declines" (sic for denies) substance abuse yet the note raised the comment noted (at p 2617), that this was "suspected". At that time it was acknowledged that there were no mental health issues known. Also at the time, the Department had in its possession negative drug test results and it had no psychiatric evidence of the existence of a relevant mental health issue. 11. Notwithstanding that circumstance, the Department nevertheless erroneously continued to maintain its stance that both parents had unmanaged mental health issues that needed a treatment plan. The anomalous nature of those circumstances is starkly apparent. Ms Stone's seventh affidavit 1. Ms Stones' seventh affidavit (comprising paragraphs 1 – 76), was affirmed on 5 November 2021: Exhibit "A", Tab 48, pp 3821 – 3972. This affidavit updated the details of the child protection history of both children. 2. The affidavit (at paragraphs 13 – 15) recorded that on 2 August 2021, Ms Stone had arranged for the mother "J" to be assessed for her mental health by Mr Ward, a Mental Health clinician located at Singleton Mental Health. 3. The affidavit records that on 4 August 2021, Mr Ward carried out the assessment requested by the Department and provided his opinion, which was recorded as : "the mother presented with no evidence of persuasive [perhaps sic for pervasive] mood disorder, but did present with an obvious complex trauma history", for which she was referred to Victims Services for psychological counselling (Exhibit "A", Tab 48, p 3823), which has at present been put on hold because of PTSD recrudescence caused by raking over these matters in this case: T165.14; T176.47 – T177.8. 4. Notwithstanding that mental health clearance assessment, on 5 August 2021, Ms Stone continued to maintain that the mother's mental health was an issue of concern (Exhibit "A", Tab 48, p 3823, paragraph 16), and her formal Risk Assessment perpetuated that misconception at a time which post-dated Ms Martens' Clinician's Report dated 30 March 2021. 5. Notwithstanding that chronology of opinions, Ms Stone adhered to and appeared to have preferred Ms Martens' concerns that the mother "J" had untreated mental health issues and suffered from a Delusional Belief System. Her resultant Risk Assessment stated: "DCJ still holds concerns about ["the mother "J"]'s ability to care for a child due to her mental health": Exhibit "A", Tab 48, p 3838. The basis for that concern remained opaque to analysis in view of the expert medical evidence to the contrary. 6. The factual basis for that view was not apparent, apart from what I shall refer to as a Kafkaesque anomaly. This is because the Department had Dr Baruah's contrary view, and Mr Ward's contrary view, both of which post-dated Ms Martens' cited views, yet it maintained its stance on the mother "J"'s "mental health" issues notwithstanding. Ms Stone's eighth affidavit 1. Ms Stones' eighth affidavit (comprising paragraphs 1 – 137), was affirmed on 17 February 2023: Exhibit "A", Tab 7, pp 145 – 408. This affidavit chartered the ongoing history of the placement of the children in care. 2. Ms Stone stated (at paragraphs 3 – 4, Exhibit "A", Tab 7, p 147), that on 18 August 2020 the case management of the child "D" was transferred to Barnardos, and the same occurred in relation to the child "K" on 16 September 2021. On 10 December 2022 the children were transitioned into the Barnardos Adoption Stream. 3. In the foregoing circumstances the parental distrust of the Department is unsurprising. 4. In Ms Stone's eighth affidavit (between paragraphs 20 – 32, Exhibit "A", Tab 7, pp 150 – 152) she recited the history set out in her previous affidavits and at paragraph 37, perpetuated the unsubstantiated notion that the mother "J" had "unmanaged medical concerns" and she added: the mother's "failure to consider medical advice". The evidence for the suggested failure to consider medical advice was absent. I could not see any evidence in the papers that was contemporaneous to Ms Stone's 17 February 2023 affidavit which documented a relevant and current "failure to consider medical advice". In my view those statements represented material factual mis-statements. 5. The balance of this eighth affidavit (and its compendious annexures between pp 168 – 408) concerned attempts at establishing the children's Aboriginality and cultural identity, and their health and welfare. The affidavit also described recent contact visits which were called Family Time. 6. Ms Stone's eighth affidavit concluded with the following paragraphs: "DCJ Concerns Regarding the Mother and the Father 135. DCJ continues to hold concerns about the parents insight into the child protection concerns which include the mother's mental health, the parents' past history of chronic substance abuse/dependence, physical mobility issues, and difficulty accepting and adhering to advice from medical professionals. The parents continue to distrust DCJ and were not willing to participate in the children's review in November 2022. 136. DCJ also shares the concerns raised by the Court Clinician in her report dated 3 February 2021. it is DCJ's view that the parents evidence several serious barriers to parenting these young and vulnerable children. Both parents are dismissive of the child protection concerns and believe that the children have been unjustly assumed into care. 137. DCJ has not seen any evidence from the parents that would allay the child protection concerns. DCJ is of the view that the best interests of these children are for them to remain in their current long term placement, with a view to a future adoption application. This will provide the children with consistent, stable and high quality care and allow them to maintain connections with their family." [Exhibit "A", Tab 7, pp 166 – 167] 1. In those paragraphs, in which past events were included as a conflated summary, the Kafkaesque perpetuation of misstatements and misinterpretations of the evidence continued into the hearing of this appeal. A possible explanation for this emerges in the consideration of the evidence of Mr Nijland with regard to the inability of departmental caseworkers and managers to update and override previous assessments recorded in the system. Ms Stone's oral evidence 1. Ms Stone was called to give oral evidence. 2. Ms Stone was questioned about the origins of what appeared to me to be a departmental attitude of scepticism towards the history provided by the mother "J" as to her traumatic childhood: T275.1 – T276.40. In that regard, the Department had undertaken investigatory steps, including an array of subpoenas, to seek evidence as to whether the six children the mother "J" disclosed having as a minor were in fact born: T276.1 – T276.12. 3. Whilst no direct confirmatory records were found as a result of that undertaking, Ms Stone agreed that this result was consistent with an account given by the mother "J" that she had given birth to those previous children at home and that her own mother had taken those children: T276.25. Be that as it may, Ms Stone confirmed that ultimately, the Department accepted that the mother "J" had suffered a traumatic childhood: T276.40. 4. The Department also had evidence that the mother "J" was receiving appropriate counselling services and support from Mr Smith, from Victims Services. 5. It seems from Ms Stone's evidence that the Department took something of a statistical approach to assessing the mother "J" as to risk by ascribing a "score" that was "minimised" to the information she had about her traumatic childhood, as appears from the following extract of her evidence: "Q. So what were you being sceptical about? Was it, for example, a scepticism over whether she had the children she said she had during her childhood? A. No. It was about the changing stories about the child that she's saying that she gave birth to, and I guess assessing her in that space of her parenting capacity and what looks like, given that she'd given so many different versions of raising the children. Q. This was in the context of her having given birth to six children whilst a minor as a result of criminal sexual assault; you were taking those matters into account in assessing her parenting capacity? Am I understanding this correctly? A. It was more about her ability to recall, like, how she can parent a child. We spoke at great length during the assessments and things like that about what that would look like and, I guess, the information about her traumatic childhood does actually score in our risk assessment. So whilst it was minimised, it still scored in our risk assessments. Q. This was in the context where she was not mothering those children; they were taken from her, and this was at a time when the effect of the trauma would have ordinarily be expected to have some effect on her recollections? A. Correct." [T275.14 – T275.34] 1. In my view, the "changing stories" and the "so many different versions" referred to by Ms Stone must be considered in context as her analysis was drawn from many sources. Whilst that forensic approach is understandable, it has had the effect of conflation, which requires the exercise of the cautions of the kind identified in Mason v Demasi, as cited at paragraph [125] above. 2. Ms Stone also described her fruitless attempts to seek confirmatory evidence of the claim by the mother "J" of having Aboriginal heritage: T277.10 – T277.22. 3. Ms Stone's attention was drawn to what, in my view, is a crucial document comprising a hospital record dated 29 May 2020, which she had arranged to have produced on subpoena. That document (incorrectly recorded in the transcript at T278.5 as being dated May 2021), pre-dated the birth of the first child "D". That document recorded that the mother "J" was identifying as Aboriginal at that time. Ms Stone acknowledged the existence of that document: T277.46 – T278.20; Exhibit "A", Tab 40, p 3215. 4. This document served to negate the Secretary's stance of attacking the credit of the mother "J" by suggesting that she only claimed Aboriginality after the birth of the first child. This evidence, which was not highlighted in the Children's Court hearing, tends to undermine the suggestion made in the Children's Court proceedings that the mother "J" only claimed Aboriginality late in the peace to seek an advantage in her dispute with the Department. 5. Ms Stone confirmed that at different times the mother "J" had vacillated in her claim of Aboriginality: T277.34 – T277.44. However, she accepted the proposition that, because of the unfortunate events of history, at times, persons claiming Aboriginality became confused and discouraged from proceeding down the path of identifying as Aboriginal because of limited knowledge of their family connections: T278.29 – T278.46. 6. In that regard, Ms Stone had asked the mother of mother "J" about whether the family was Aboriginal. The response she obtained was that the family did not identify themselves as Aboriginal and she said the mother of the mother "J" did not see herself as being Aboriginal: T279.1 – T279.25. 7. Significantly, Ms Stone was aware of the "not good" relationship between the mother "J" and her own mother. She was also aware that the relationship was characterised by animosity and antipathy: T279.42 – T280.6. 8. Ms Stone was asked why, in view of the existence of so many areas of doubt or dispute within the opinions of departmental officials on some historical matters of relevance, it was not thought appropriate to obtain a formal evidentiary version of events from the mother of the mother "J" . Her answer to that question was: "A. I think for me that was outside of my delegation at that time in decision making. Also the proceedings for the Children's Court is guided by a legal representative and that was not requested at any time." [T280.15 – T280.17] 1. In my view, that dynamic is significant because the Department has maintained forensic contact with the mother of the mother "J" in circumstances where notes were made of those contacts, and where information was obtained and sought to be used to discredit the mother "J" in the course of the evidence that she was expected to give. The mother of the mother "J" was not called to give evidence, instead reliance was placed on matters of hearsay. 2. Whilst recognising that s 93(3) of the Care Act enables a non-application of the rules of evidence in cases such as this, in fairness to the litigants, on this question of credit, I consider that non-observance of those rules is likely to result in prejudicial unfairness. 3. In my view, important issues of credit must be decided on an evaluation of testable evidence: See Mason v Demasi (ibid). Since the mother of the mother "J" was not called to give evidence, I conclude that the hearsay facts attributed to her, and which are relied upon by the Secretary to seek adverse credit and fact findings against the mother "J", lack decisive weight. 4. In that regard, I note that in these appeal proceedings, the solicitor advocate for the Secretary conceded, on multiple occasions, that the assembled documents relied upon by the Secretary, are to be considered according to their evidentiary weight: T44.30; T64.35; T67.42; T82.25; T104.20; T180.38; T180.44; T181.14; T243.48. 5. On the topic of the Department's apparent scepticism of the childhood trauma and mental health history of the mother "J", it is curious that this approach was maintained where, at an early stage, Ms Stone would have without doubt seen the Hunter New England Local Health record dated 25 May 2020 that was produced on subpoena (Exhibit "A", Tab 40, p 3215), which was the subject of attention during the hearing of these proceedings. 6. That record was filled out by a health practitioner. Amongst other things, it recorded the history that, following a motor vehicle accident in about 1995, the mother "J" had back surgery with the insertion of rods in her spine after sustaining multiple injuries in a motor vehicle accident. That record also identified the name and location of her family doctor who, if approached, ought to have been able to confirm such findings in a physical examination in the event that such matters were truly in dispute, as they appear to have been in the Secretary's approach to the question of the veracity of the mother "J" in these proceedings. 7. Putting to one side the notation in that record which identified the mother "J" as Aboriginal, there are other items of confirmatory interest. One such item is the recorded fact that the mother "J" was not diabetic before the birth of the child "D", consistent with her claim which was disputed on behalf of the Secretary in these proceedings. 8. Another such item is the carefully recorded history of the years of the births of the six children the mother "J" described having as a result of sexual abuse: pages 1990, 1992, 1994, 1996, 1998 and 1999. In these proceedings, where the rules of evidence do not necessarily apply, those records which were created before the birth of the child "D", would ordinarily have been regarded as sufficient consistent evidence of proof of the facts on that peripheral background issue. 9. Interestingly, and contrary to the matters raised by the Secretary to attack the veracity of the mother "J", that record made by a health care professional noted that the mother "J" had rods in her spine: Exhibit "A", Tab 40, p 3215. 10. In those circumstances, the Department's reasons for digging deeper to seek confirmatory evidence of such historical events remains obscure and inadequately explained in the context of an attack on credit. 11. An overview of the affidavit evidence of Ms Stone and the array of evidence comprising the affidavit and oral evidence of the appellants, reveals there is considerable polarised tension in their interactions. In my view, it is not necessary to map those matters out in detail to seek a reconciliation as to cause, as the issues calling for decision in this hearing de novo are clear enough. 12. In the described circumstances, the subjective perception of the parents that the Department was persecuting them was understandable, albeit incorrect. Credit conclusions concerning the evidence of Ms Stone 1. It is clear from the evidence in this case that the relationship between the parents and Ms Stone has been tense. Whilst it appears that this was because of parental mistrust of the Department and because of her role as a caseworker in the removal of the two children, I do not accept the suggestion by the parents to the effect that the Department, through her, was persecuting them, or pursuing a vendetta against them. 2. In my view, no adverse credit conclusions arise concerning Ms Stone's involvement in this case. She was obviously carrying out a difficult departmental child protection role within the parameters that, on Mr Nijland's evidence, indicated she had little scope for modifying the systemic markers and pre-sets within the departmental protocols. This was in circumstances where neither Mr Nijland nor Ms Stone were able to reset, change, or otherwise modify the need for adherence to those parameters. 3. I accept Ms Stone was a truthful witness. The fact that she has attracted the ire of the parents whilst discharging her duties does not mean that her evidence was not truthful. Mr Michel Nijland, the departmental Manager, Casework 1. Mr Michel Nijland filed two affirmed affidavits in the appeal proceedings. These were as follows: 1. 27 July 2022: Exhibit "A", Tab 10, pp 136 – 144; 2. 28 February 2023: Exhibit "A", Tab 13, pp 464 – 632. Mr Nijland's first affidavit 1. Mr Nijland's first affidavit comprised a series of 57 paragraphs: Exhibit "A", Tab 10, pp 136 – 144; Exhibit "B". He described his role as the Manager Caseworker for the child "D" since July 2020, and for the child "K" since September 2021, that is, since they were each assumed into the care of the Minister. 2. Mr Nijland stated (at Exhibit "A", Tab 10, p 137, paragraph 5), that he had accessed departmental files and databases when preparing his affidavit. He said that his affidavit was in part based on his personal knowledge of those files and in part based on his file review in order to source relevant information. 3. Mr Nijland confirmed that on 29 April 2022, the Children's Court at Parramatta made the final orders under present appeal which placed the children under the parental control of the Minister until the age of 18 years. 4. Mr Nijland's first affidavit reviewed the children's documented family history and the involvement of the Department in their care. He also reviewed and summarised Ms Stone's involvement as caseworker for the children. In that general update and review he summarised the pattern of family contact with the children. He also described their therapies: Exhibit "A", Tab 10, pp 138 – 141, paragraphs 8 – 31. 5. Mr Nijland noted that the placement of the children with the initial carers on 29 April 2022 was considered to be a temporary arrangement pending their transition into the care of their proposed adoptive parents: Exhibit "A", Tab 10, p 142, paragraph 32. 6. Mr Nijland noted that, at an unstated date prior to the date of his affidavit, the maternal grandmother, that is, the mother of the mother "J", had sent presents to the care agency Barnardos so that those presents would be given to the children: Exhibit "A", Tab 10, p 142, paragraph 34. In those circumstances of contact, and given the apparent ease of facility of that contact, it is surprising that direct evidence on historical matters in issue has not been obtained from the mother of the mother "J". 7. A standout feature of Mr Nijland's first affidavit is the fact that on 15 September 2021, the Department's reasoning for assuming the child "K" into care was Ms Stone's review and Safety Assessment of that date, in which she assessed "the mother's unmanaged mental health and the risk of sexual harm in the care of the parents could not be managed by safety planning" against a background of concerns over "the parents previous … chronic substance abuse, failure to adhere to medical advice, the mother's physical impairment and the parents' rejection of DCJ's concerns": Exhibit "A", Tab 10, p 139, paragraph 20. 8. My review of Ms Stone's affidavit evidence reveals that the summary cited above represented a conflation of historical events, some of which were no longer current, and where others were based on the false premises of the mother's "unmanaged mental health" and a tenuous over-emphasis of a risk of sexual harm when the assessment of that factor was, at best, "weak". 9. Those matters will be reviewed in the consideration of Issue 3. Mr Nijland's second affidavit 1. Mr Nijland's second affidavit affirmed on 27 February 2023, was filed 2 weeks prior to the hearing of the appeal. That affidavit contentiously asserted that the parents have not addressed the child protection concerns which had led to the children being taken into care: Exhibit "A", Tab 13, pp 464 – 632. 2. In the analysis of Mr Nijland's second affidavit I have not overlooked the hundreds of pages of material within Exhibit "MN-2" which was annexed to that affidavit: Exhibit "A", Tab 13, pp 474 – 632. Essentially, that material consists of updated repetitive summaries and contact visit reports, carer profiles and draft care plans and attachments which do not require more detailed analysis. 3. In his second affidavit, Mr Nijland repeated the earlier history and concerns he had outlined in his first affidavit up until 29 April 2022 without material change: Exhibit "A", Tab 13, pp 466 – 468, paragraphs 1 – 23. 4. Mr Nijland's second affidavit went on to summarise the contact visits and the children's situation between 29 April 2022 and the decision to place the children in the Barnardos adoption stream on 10 December 2022: Exhibit "A", Tab 13, pp 469 – 472, paragraphs 24 – 41. 5. Significantly, for the purposes of the present analysis, Mr Nijland identified the Department's present position and the orders sought, as follows: "DCJ's position and orders sought 42. On 28 February 2023, I reviewed and approved Care Plans for [the child "D"] and [the child "K"]. DCJ's view is that the parents have not addressed the child protection concerns that led to [the child "D"] and [the child "K"] being assumed into care..." [Exhibit "A", Tab 13, p 472, paragraph 42] 1. The content of that paragraph clearly identifies the fact that the Department has not revised its earlier assessments and it has perpetuated the previously identified and significantly false premises that have inflexibly underpinned its expressed position on child protection concerns in this case. 2. The Department's expressed concerns over alleged mental health issues have been rebutted by uncontradicted expert medical evidence from Dr Baruah which confirmed that there are no relevant parental mental health issues that have been left unmanaged. In addition, the other issue of the previously assessed sexual abuse risk ascribed to the father "T" has been recognised as being "relatively weak" in the opinion of the Children's Court clinician. 3. Notwithstanding those facts, the Department's attitude to risk remained fixed and unamenable to change to reflect altered circumstances. 4. That position continued into this hearing, for the reasons that were exposed during Mr Nijland's oral evidence, the salient features of which appear in the following summary. Mr Nijland's oral evidence 1. Mr Nijland, who has social work qualifications, did not give evidence in the Children's Court. He gave oral evidence in the appeal: T238 – T270. He described his role as the departmental manager caseworker for the children: T238.16. 2. On the subject of the anger the parents had expressed after their children had been assumed into care, he acknowledged that he "can't imagine what it must be like. It must be terrible": T239.3. In referring to the Department's records where that parental anger was noted, he acknowledged, in hindsight, that instead of simply noting that the affected persons were angry, upset, or always aggressive, it would perhaps have been better, for context, to instead record that the parents were "understandably upset or angry": T239.41. 3. In my view, that acknowledgment calls for a different complexion to be placed on some of the critical notes made and views held by departmental officers in relation to the parents. 4. In Mr Nijland's answers to questions in cross-examination by the mother "J", he acknowledged that he had called and spoken to the mother of the mother "J" to obtain information: T240.28; T241.81. He said with regard to the information obtained in that way, that it was not necessary for him to believe what he had been told by the mother of the mother "J". He said that he had made that call "to get an understanding of the circumstances": T241.22. 5. Notwithstanding that qualifying rider, by which I considered he was being defensive, it appears that the record concerning the information obtained from the mother of the mother "J" have formed part of the material relied upon by the Department and the Children's Court clinician to sceptically discount, doubt, and to attack the credit and the veracity of the mother "J", and her accounts of her past life. In my view, this was a telling revelation. 6. That revelation is particularly telling as it seems the Department had discounted the mother "J"'s own account of having been abused as a child whilst in her own mother's care, and when the Department ultimately received that information, it did not act on investigating what Mr Nijland had acknowledged to have been a reportable event. 7. In that context, Mr Nijland could not provide a cogent reason as to why, in this case, when seized of the disclosed facts, the Department had not contacted the police once it was made known to it that the mother "J" had said she had been sexually abused as a child: T241.46. 8. On that point, when Mr Nijland was challenged for an explanation, he gave the following evidence: "Q. Really? As a public official who's charged with responsibility of welfare of children and their families, when you become aware of the commission of serious crimes, involving sexual assault against a minor, irrespective of whether the minor is still a minor or now an adult, surely, that's a matter that deserves a duty bound public response. A. As I said yesterday, in hindsight, yes. I should of. Yeah." [T261.43 – T261.48] 1. In the context of the Department's record keeping, Mr Nijland provided an interesting revelation as to how, within the departmental records system, it considers the "substantiation" of issues such as risk of harm from sexual abuse, where persons are "marked" on the system as a source of risk to children, as explained below in relation to the Department's assessment of the father "J". 2. The departmental system has historically "marked" the father "T" as a person causing harm to a child and that marking has been a recurrent reference point for assessments: T251.1 – T251.3. 3. The Department has recorded that marking in relation to the father "T" because it considered there had been "substantiation" of the allegations upon which the record is based, namely his alleged abuse of his own disabled daughter from a previous relationship, a matter he vigorously disputed. 4. To justify a "substantiation" marking, Mr Nijland gave the following explanation: "Q. This is a low level assessment in the sense that there's a low bar for being satisfied as to substantiation as distinct from legal proof. Is that so? A. Sorry. Q. What do you regard as substantiation? A. Yes. Q. Is the question I'm asking you. A. Right. So that was done by JCPR. So, my understanding is that based on the evidence that they had at the time, that they would have believed that it's more likely than not that ["S"] was harmed and so therefore they would have TAYLOR Q. Can you override a substantiation on the system? A. No, I cannot. HIS HONOUR Q. So, this is a systems question rather than a consideration. A. Yes. Q. So, if you consider that the evidence in support of substantiation is weak, you can't make a subjective determination that overrides the substantiation. A. No, I cannot. Q. So that's the system in place. A. Correct. Yes. Q. So, who has the authority to override it? A. I don't know the answer to that, to be honest. Q. Is there anyone in the department who has that authority or is it only the decision of a Court? A. I don't know, to be honest. If I was in that situation, I would request a legal consult to ask the question, but I don't know. I think it has to go back to the Court to Q. So, if the question arises as to the reliability of the, so called, substantiation, it's out of your hands. A. Yes. Q. And you're committed to continue on the path that's been decided by the department. A. Yes, the So, in [father "T"]'s case, yes. He's marked as person causing harm on the system." [T251.8 – T252.3] [Names redacted] 1. In my view, in this case, that rigid process of inflexible data management, which could not be overridden or formally noted as being qualified at the casework level or at the manager's level, has unfortunately tainted the Department's consideration of the circumstances and risk assessment of the father "T". 2. The same recording system has been applied in relation to the way in which the mental health of the father "T" is regarded by the Department, with reference to his expressions of anger at certain contentious departmental actions or attitudes involving him or his family, as is made clear from what follows. 3. The father "T" is partly deaf and speaks loudly. His communication style has been interpreted by the Department as exhibiting anger and not accepting advice: T253.22. The reference point for that conclusion was his exhibited expression of distress at the time the child "D" was removed, where the Department had recorded the opinion that he needed to work on issues of drug misuse and his mental health: T253.1 – T253.9. 4. That issue was anchored to the events of the year 2020, when he was acting in a distressed way in hospital when his child was removed and taken into care, where, in Mr Nijland's acknowledged view, such a reaction on the part of a parent was understandable: T239.3 – T239.41. Much water has flowed under the bridge since then in terms of risk considerations. 5. Mr Nijland, as manager caseworker, acknowledged that to the best of his knowledge, the father "T"'s mental health "has not been a feature in these proceedings as it's evolved" (T253.12 – T253.18), whereas the Department regarded the mother "J"'s mental health issue, as having "been consistently raised in these proceedings [and which] really related to the mother and [her] traumatic childhood": T253.24 – T253.27. The expression "as it's evolved" is curious because of the underlying provocative origins of those evolved concerns. 6. In those circumstances, when the father "T"'s mental health was not an ongoing issue for some considerable time, it appears odd that when departmental documents were being prepared for the case, notwithstanding that the Department had a medical report from Dr Baruah which dispelled the notion held by the Department that the father "T" had a mental health issue, the Department's systemic record to the contrary could not be overridden: T253.45 – T254.36. 7. The result of those circumstances was that the Department's erroneous view over the father's mental health concerns was carried forward into the consideration of the Children's Court clinician, Ms Martens, who picked up and ran with that metaphorical ball. Her opinions were plainly and obviously influenced by the views conveyed to her by the Department. 8. When Mr Nijland was cross-examined on that matter his answer to the effect that medical evidence in question, which dispelled departmental notions of the existence of a mental health issue would be "taken into consideration before developing a care plan". 9. In my view, that answer was glib, obfuscatory to the question, and uninformative: T254.26. 10. In the same context, Mr Nijland again confirmed that an expression of parental anger at the time of a child's removal from parental care was not unexpected and would not necessarily be regarded as a mental health issue: T254.38 – T255.2. 11. Mr Nijland was not able to provide a satisfactory answer on this subject, as appears from the following extract of his evidence on the question of parental anger expressed at the time of removal: "Q. So how is that a mental health issue? A. Yeah. I'm not a mental health psychiatrist, but yeah. Q. So when the department gets a report from a psychiatrist that dispels the notion of a mental health issue being present, what regard is had to that evidence? A. Yeah, I would take that into regard, yes. Q. But then having regarded it, what action is taken to delete the issue from the list of concerns? A. I guess we have to take into consideration and monitor that good mental health is maintained. Q. We've been speaking generally thus far. Now let's be specific. Once you acquired Dr Baruah's report concerning Mr [father "T"]'s mental health, which clearly stated in a suitably qualified professional manner, that there were no mental health issues, what action did you take to delete the issue of mental health from the list of concerns that was in the path of restoring these children to the parents? A. I do not recall what action we specifically took. Q. You're the case manager. You must know. A. Yeah. Q. This is not a mechanical process. This is a human process assessing the rights of others and how they should be either enforced or blocked. A. Yep." [T255.4 – T255.30] 1. The lack of responsive detail in that evidence was troubling, to say the least. 2. When this subject was pursued further, Mr Nijland could not provide any explanation, cogent or otherwise, as to why the issue of the mental health of the father "T" had remained as a live issue at the Children's Court hearing when the Department had evidence that the issue had been "killed": T256.30 – T256.34. 3. That point was further explored, as follows: "Q. To save you the burden of reading this document, I'll just point out to you what Dr Baruah has said, bearing in mind that he's a consultant psychiatrist at the Mental Health Wellbeing Clinic in Singleton, under the heading Impression and Opinion, "There is no evidence of any mental illness or disorder identified in this assessment. However, [the father "T"] presents with some depressive and anxiety symptoms, mainly in the context of not having custody of his infant daughter, which is an appropriate emotion given the state of uncertainty and loss he has to undergo every day." Is that not a sentinel moment upon which to reflect when you receive that information? A. Yes. Q. So what did the department do about it once this was in the hands of the appropriate caseworkers? A. That [the father "T"] should be addressed in the restoration assessment. Q. Yes, but I'm asking what did the department do, not what they should have done. A. Yep. Q. What did they do? A. Okay. From memory, they would take that into we will take that into consideration and acknowledge and make so that [father "T"] has done what was asked for here, and seen a mental health professional. Q. That's just a misdirected answer. He hasn't done what was asked of him. He has shown that he does not have a mental health disorder. That's not doing what was asked of him. That's demonstrating that the assumption upon which the department was acting was false, and I'm asking what did the department do about it when it was seized of this information? A. (No verbal reply) Q. You're the case manager with the working knowledge of the file. A. Yeah. Q. If you don't know, who else should I be asking these questions? A. No. I don't know how else to say it. When that information becomes available we take it into consideration because that was done after I presume after the summary of proposed plan, so we take that information into consideration moving forward and acknowledging what Dr Baruah has said in relation to [father "T"]'s mental health. Q. Yes, but the issue of Mr [father "T"]'s mental health went forward even at the Children's Court hearing, as if it was still a live issue, when this killed it. How did that happen? A. I don't know, your Honour." [Names redacted] [T255.39 – T256.33] 1. Plainly those circumstances operated unreasonably and oppressively against the interests of the father "T" and his children, all of whom were entitled to procedural fairness at the time departmental decisions were being made as to the best interests of the children. 2. Another issue that was explored in the evidence of Mr Nijland was the circumstances in which the agency Barnardos had placed the children in an adoption stream with the new carers being the proposed adoptive parents whilst the hearing of this appeal was pending, much to the distress of the parents. 3. On that issue, Mr Nijland provided the following explanations which clearly showed that the interest of the carers as prospective adoptive parents were being preferred over the interests of the parents, and by extension, their children. In that regard, it would appear arguable that the statutory requirements of s 9(1) of the Act were not being appropriately observed. 4. A regime had been adopted by Barnardos that was bound to create conflict. The evidence on this point was as follows: "Q. ... A. At the beginning of June, or around June, when we had the meeting. Initially I came into the meeting thinking, believing, that we should continue what was written in the care plan. Whilst in the meeting we then came to a mutual agreement that the children would not be moved, given the proceedings. Q. And that's because the case had been reopened by the mother filing a summons. A. Yep, and the Barnardos manager was worried, also, that with the prospective long term careers, that she did not want to put them in a position of uncertainty. That was June. Then in August HIS HONOUR Q. How does that conform with s 9(1) of the Care Act where the primary paramount interest is that of the children. A. Yes. Q. Do I get from what you're just saying that the carer's are being preferred as to their interests rather than the interests of the child? Because they're not exactly coinciding at that point. So, there's a conflict that's emerged. A. Yes, so at that point in time, as well, the discussion was around, okay, if the Court decides that the children do go home then it would be an extra placement interruption for the children. Does that answer? Q. Can you tell me in precise terms, why it is that, pending this appeal, the department decided to put these children in the adoption stream when the outcome of the proceedings remained uncertain. A. I cannot talk for Barnardos why they have moved the children because in August we had another meeting with the Barnardos manager, myself and a different permanency consultant from the Hunter. At that point in time the move was not discussed because we had agreed in June that we were not going to move the children. I was on long service leave September, October, when I came back early November, roughly, from memory, it would've probably been the first week, give or take, of November. I was then informed the transition had started and the children would transition. Q. This coincided with the commencement of an extra layer of distress on the parents. Am I correct in assuming that? A. Yes. Q. That was evident from the way in which the parents were behaving anxiously at contact meetings. You have to answer verbally. A. Yes. Yes. Q. For which, they're not [transcript correction "now"] being criticised. A. Yeah, I Yeah, there's The complexity is now, what I've heard, is that the carers are, indeed, in the family time visits. Q. That's a recipe to guarantee conflict, isn't it? A. I wouldn't say a recipe for guarantee, but I certainly agree it would definitely make things a lot more difficult, yes. Q. My poor choice of words, recipe. It's a regime that is bound to create conflict, isn't it? A. I agree. It would create conflict, yes. TAYLOR Q. Well certainly in circumstances where we've got parents who've started a court case seeking restoration and they're having to get to know a prospective adoptive parent. That would suggest that no one's listening to what they're saying even when they in the Court proceedings. Would you accept that? A. Yes. Q. And that for people who feel that government organisations are against them from time to time, that would not be unreasonable to feel that way in those circumstances, would it? A. I agree. Yes." [Emphasis added] [T258.4 – T259.23] 1. In the circumstances described above it is unsurprising that the biological parents had subjectively felt they were being persecuted by the system they were fighting against. 2. Mr Nijland accepted that the documents in the departmental file reveal that no mental illness or disorder was identified in the case of the father "T", and that the symptoms of depression and anxiety were in the context of him being deprived of the custody of his children: T264.12 – T264.27. 3. Notwithstanding that evidence, when the Department proceeded to file its care plan in the Children's Court proceedings, as at 19 May 2021, despite its awareness that the father "T" did not have mental health issues (T267.35), and where the Department held no concerns in that regard, yet the Department was nevertheless, without a reasonable foundation, maintaining its insistence that the father "T" had to supply or comply with a mental health plan: T264.25 – T265.27. 4. When questioned closely about that glaringly apparent anomaly, Mr Nijland's evidence revealed the unsatisfactory dynamic of that situation, as follows: "HIS HONOUR Q. How is that consistent with what appears on page 20 under the heading Mental Health where the very first sentence reads, "Ms [mother "J"] and Mr [father "T"] were asked to attend EGP to gain a mental health plan, which has not been supplied." So as at the time of this document you're still demanding a mental health care plan for a man who doesn't need it. How is that consistent? A. That's inconsistent, your Honour." [T265.29 – T265.36] 1. The acknowledged inconsistency in the Department's plan on this issue was plainly unreasonable. It was also oppressive to the biological parents. 2. Troublingly, Mr Nijland's further evidence on that point was as follows: "Q. It would suggest that the person who prepared this plan paid no regard to the evidence submitted by Dr Baruah to the effect that there was no evidence that Mr [father "T"] had any mental health illness or disorder. A. Yes, it states that yes, it's not in here." [T268.16 – T268.19] 1. In the course of Mr Nijland giving that troubling evidence, and in the course of what turned out to be a most timely and appropriate interjection, the mother "J" raised a similar point with Mr Nijland regarding the Department's attitude to mental health issues as this applied to her. She drew attention to the following entry in the care plan: "FIRST APPELLANT: I'd just like to state, your Honour, if you read down the bottom of p 20 of 35 there on the Mental Health, "Ms [mother "J"] attended her GP and obtained a referral for a psychologist," which he's actually a psychiatrist, "who completed an assessment and provided a report stating that Ms [mother "J"] did not present with any mental health concerns."" [T268.32 – T268.37] 1. By drawing attention to that matter, the mother "J" had made the telling point that the Department had also disregarded Dr Baruah's evidence to the effect that she too did not have a relevant mental health issue. When this issue was taken up with Mr Nijland, his evidence, also troublingly, was as follows: "Q. Mr Nijland, having heard the issue that Ms [mother "J"] has just pointed out, do you have an explanation for how this has occurred? A. No, I do not have an explanation for that, and I guess, further on, it explains the outcome of the Court Clinic Assessment on the next page, but no, not in relation to page 20." [T268.45 – T268.49] 1. That evidence revealed a significant false premise upon which the Department had maintained its justification for not varying or modifying its earlier decisions despite the material change in circumstances. Conclusion on the reliability of Mr Nijland's evidence 1. In my view, no questions arose as to Mr Nijland's probity as a witness. He was doing his best to field and respond to the questions that were put to him. He was simply carrying out his functions within the bounds set by a pre-determined administrative framework and a flawed Risk Assessment. That said, in short, I found him to be an unsatisfactory and incompletely informed witness on key matters in dispute in these proceedings. I conclude that his evidence did not form a reliable basis for determining the issues calling for decision in this case. Ms Helen Appleyard, case manager – Barnardos 1. Ms Helen Appleyard is a case manager employed by Barnardos in relation to the care of the children "D" and "K". On 19 July 2021, Ms Appleyard prepared an affidavit for the Children's Court proceedings: Exhibit "A", pp 2600 – 2602. 2. In these proceedings, when questioned by the mother "J", Ms Appleyard confirmed that the parents had been co-operative, and had taken advice when she had supervised them during "family time". She confirmed that the mother "J" had made appropriate meals for "D" when the carer had requested that she do so. She acknowledged that although the father "T" sometimes spoke loudly due to his deafness, she never felt intimidated by him in such circumstances. 3. In response to a concern raised by the Secretary, Ms Appleyard confirmed that at no stage did she hold any concerns about the safety of play activity undertaken by the father "T" with the child "D". She confirmed that the parents had made appropriate adjustments in accordance with recommendations concerning playtime and they had made an appropriate adjustment to the quantity of the food that they brought to contact visits. She confirmed that she had no problem with the parents. 4. In my assessment, no adverse credit issues emerged from the evidence of Ms Appleyard. Ms Margaret Murray, social worker and case manager – Barnardos 1. Ms Margaret Murray is a social worker and case manager employed by the Barnardos agency. On 22 February 2023 Ms Murray prepared an affidavit for these proceedings: Exhibit "A", Tab 12, p 409. 2. Ms Murray has been involved in the management of the children's cases at Barnardos since 10 December 2022 as a member of the adoptions team in the open adoptions plan at Barnardos. She explained the concept of open adoption as follows: "A. It means, basically, birth parents are involved with the kids forever, and they have contact. The carers will eventually take over managing and running contacts then with Barnardos, take a step back and just check in with everyone after the contact. From the olden days when an adoption happened, you know, nobody had any contact with birth parents, it's just changed it now birth parents are involved. Q. In your experience with this program, the rationale for the carers to come to contact is to get to know the parents? A. It is. It's to, I guess, we could, say, iron out any issues because it is an emotional subject when children get part of the adoption program and it's to work with building a relationship between the carers and the birth parents, so eventually we take a step back and carers take over managing and that's including email, phone calls or whatever it may be to move forward. Q. Do you liaise not only with the children but with the carers as well, to get to know them as part of your case management with the kids? A. Yeah. Q. What's their understanding with regards to these kids? Is that they understand they're in the adoption program? A. They're in long term permanent care program with a view to adoption. They're well aware that adoption isn't a given and also that the children could be restored after this week. [T236.2 – T236.25] 1. There was no suggestion that Ms Murray was responsible for placing the children in the Barnardos adoption stream pending the hearing of the appeal. 2. In my assessment, no adverse credit issues emerge from the evidence of Ms Murray. Ms Katie Martens, Children's Court clinician 1. On 18 January 2021, the Children's Court Clinic assessment was carried out for the purpose of the proceedings that were scheduled to be heard in that Court. The assessment was carried out by Ms Katie Martens, a forensic psychologist with high level post-graduate qualifications. She was briefed with copies of the extensive materials listed in Appendix III to these reasons. 2. On 18 January 2021, by remote means due to COVID times, in less than ideal conditions, Ms Martens undertook separate interviews of both the mother "J" and the father "T". That observation should not be read as a criticism of Ms Martens or her clinical acumen. 3. Each interview occupied 1.75 hours. The first 20 minutes of each interview was by Zoom, and the remainder of each interview was completed by telephone. Ms Martens later requested and was provided with contact reports up to 19 January 2021. She then prepared and issued her report dated 30 January 2021: Exhibit "A", pp 3494 – 3555. That report was never updated by a request for a further report. That was not due to any fault on the part of Ms Martens. 4. At the conclusion of the evidence, and in the course of reviewing the submissions of the respective parties, it became plain that the fulcrum upon which the Secretary's case seeking to dismiss the parents summons turns, was the reliance upon the opinions of Ms Martens' clinician's report where the foundations for those opinions were dated. 5. For that reason it is appropriate that the combined effect of her evidence in the form of her report, her oral evidence in the Children's Court, and also her evidence in the appeal, be closely analysed for reliability in view of the factual disputes that have been highlighted in this case. Ms Martens' report 1. In her report, Ms Martens set out a summary of some background child protection information that had been provided to her by the Department (Exhibit "A", pp 3502 – 3505), she noted that there were some limitations to her assessment (Exhibit "A", p 3505), and she then set out her clinical findings relating to the mother "J", including her presentation, her family and developmental history, her educational and vocational history, her financial management, her housing stability, her psychosocial history, her physical health, her psychological health, her history concerning substance use and gambling, her criminal history, her parenting experiences, and matters of concern relating to child protection: Exhibit "A", pp 3505 – 3526. 2. Ms Martens also undertook a similar approach in relation to her assessment of the father "T": Exhibit "A", pp 3526 – 3539. 3. It is apparent from Ms Martens' report that her analysis reflected the Department's concerns that had been conveyed to her in the documentation provided to her for her consideration. 4. It should be noted that Ms Martens' single report related only to events concerning the child "D" because, at the time of her assessment, the child "K" had not yet been born. 5. Ms Martens proceeded to set out her formulation and her assessment: Exhibit "A", pp 3539 – 3547. She then identified the issues that she had been asked to address, as follows: 1. a comprehensive mental health assessment of both parents: Exhibit "A", pp 3541 – 3543; 2. assessment of the documentary material provided in contrast to the history provided by the mother "J": Exhibit "A", p 3543; 3. assessment of the impact of the mother "J"'s use of prescribed medication on her ability to safely parent the child "D": Exhibit "A", p 3543; 4. a risk assessment in relation to allegations of sexual assault made by "S" the daughter of the father "T": Exhibit "A", pp 3543 – 3544; 5. the extent to which any identified issues of concern have an impact on parenting capacity, parental understanding of the child's developmental, physical, psychological, emotional and educational needs, current and potential concern, which have led to the current court proceedings, and their capacity and motivation to address those concerns: Exhibit "A", pp 3544 – 3545; 6. recommendations as to whether in her opinion there would be an unacceptable risk of harm if the child "D" was restored to the parents jointly or individually: Exhibit "A", pp 3545 – 3546; 7. if restoration is not recommended, then recommendations with regard to a contact regime: Exhibit "A", pp 3546 – 3547. 1. In summary, Ms Martens expressed the following opinions: 1. The family "evidences" several serious barriers to parenting capacity, including the mother "J"'s mental health concerns, recent chronic history of substance abuse/dependence for both parents, physical mobility issues, and difficulty accepting and adhering to advice from medical professionals relating to the management of her diabetes: Exhibit "A", Tab 42, p 3544, paragraph 191; 2. Both parents have shown volatility and aggression in their interpersonal connection with professional services, and have disclosed a sense of having been persecuted by the Department: Exhibit "A", Tab 42, p 3544, paragraph 191; 3. Both parents were dismissive of child protection concerns and have a discordant and distrusting relationship with the departmental caseworker, Ms Stone, which raised a question as to their capacity to change: Exhibit "A", Tab 42, p 3545, paragraph 192; 4. To the extent that the parents have ostensibly been working towards meeting conditions that might enable restoration, such change is relatively new and not yet reflective of a capacity to maintain abstinence: Exhibit "A", Tab 42, p 3545, paragraph 193; 5. She found it difficult to foresee that the family would engage with intervention services in a meaningful way: Exhibit "A", Tab 42, p 3545, paragraph 193; 6. The child "D" appears to have formed a relationship with her parents: Exhibit "A", Tab 42, p 3545, paragraph 194; 7. She recognised that both parents demonstrate love and affection for the child "D" but she said that on the information available to her, "there are numerous risks associated with restoration": Exhibit "A", Tab 42, p 3545, paragraph 195; 8. Due to child "D"'s young age (6 months at that time), her exposure as a foetus to substances in utero, restoration was not recommended because of "primary concerns" as to the mental health of the mother "J", the parental history of chronic substance abuse, failure to adhere to medical advice, a pattern of volatility and aggression with DC & J, the potential impact of the mother's physical ailments, and "longstanding concerns relating to the veracity of information provided": Exhibit "A", Tab 42, pp 3545 – 3546, paragraph 196. 1. Ms Martens' report expressed the ultimate opinion that the identified risk factors would impact upon the parents' capacity to provide stable services and long-term monitoring from persons acting on behalf of the Secretary. She said she was not confident the parents would engage transparently with services and she referred to her assessment that the mother "J" had a delusional belief system, suggesting to her that it was possible her mental health concerns may be too deeply entrenched for treatment to be effective. 2. At this point it is apparent that the main basis for those opinions was the content of the documents supplied to her, which she has accepted and reviewed forensically. 3. At this point it is also salient to note that much of Ms Martens' opinions depended upon the correctness or otherwise of the proposition that the mother "J" "evidenced" mental health concerns. That proposition was in vigorous contention in this case. 4. It is clear from those events that the Secretary's resistance to the summons filed by the parents was based on the analysis provided by Ms Martens. Ms Martens' evidence in the Children's Court 1. Ms Martens gave oral evidence in the Children's Court: Exhibit "A", pp 976 – 1010. In that evidence, she stated that, having read extensive further material provided to her since she prepared her report some 12 months earlier, she has not changed the opinions she had expressed in her report: Exhibit "A", p 983.3. 2. The second child "K" had already been born and assumed into care by the time Ms Martens gave her evidence in the Children's Court. Unfortunately, Ms Martens was not given the opportunity of formally updating her earlier assessment in preparation for the hearing in the Children's Court. 3. Nevertheless, she gave evidence on the updated family situation without preparing an updated report. The forensic "short-cut" evident in that process was in my view, breathtaking to say the least. The fault for this was not hers. She was simply complying with the procedure that had been determined by others. 4. In my view, this point marked the unfolding of a flawed forensic process that either went unnoticed in a material respect, or was disregarded, with disastrous implications for the parents and their children. 5. In the Children's Court, Ms Martens expressed her ongoing worries about the potential restoration of the children the subject of the appeal: Exhibit "A", p 983.43. Specifically, she stated that view was based on the following considerations: "... I hold concerns about - well, the documents appear to indicate that at that time she did not act in the interests the medical advice gave her and that at times she struggled to manage her emotions in response to the treatment team. I believe there was something along the lines of threatening a social worker or something such as that documented. So, I hold concerns around that. So, that sort of contributed to my ongoing worries around potential restoration." [Exhibit "A", Tab 15, p 983.37 – 983.43] 1. The evidence for that view, which was documentary, was scant, and the current reliability of that evidence was questionable, to say the least. Those matters will be the subject of a more detailed consideration in respect of Issue 2 and Issue 3. 2. In her evidence in the Children's Court, Ms Martens said that she considered that the mother "J" had delusional beliefs: Exhibit "A", p 984.37. She considered this to be a relevant factor that contributes to risk in this case: Exhibit "A", p 985.19. 3. It became clear from Ms Martens' evidence in chief given in the Children's Court that her theory as to the mother having delusional beliefs was based on scepticism because there was no medical or other evidence to corroborate the earlier pregnancies of the mother "J": Exhibit "A", pp 985.35; 986.7. 4. In that regard, she seems to have based that approach on disputed information said to be sourced from the mother of mother "J" "to the effect that [the mother "J"] had falsified" her account of her earlier pregnancies: Exhibit "A", pp 986.31 – 986.38. At this point I should identify my finding to the effect that this is not the conclusion I have come to on my evaluation of the evidence. 5. In forming that view, Ms Martens relied upon an untested summary of a factual account from the mother of mother "J", who plainly held an adverse, antagonistic, or hostile attitude towards her estranged daughter, the mother "J". 6. In her report, and in her evidence, I consider that Ms Martens had adopted a recurrent tone of scepticism about the mother "J", which assumed the existence of a delusional belief system. That approach is difficult to understand in circumstances where Ms Martens also conceded in her evidence in chief in the Children's Court that "it is quite difficult to diagnose a personality disorder from meeting someone on one occasion": Exhibit "A", p 987.32. That concession was significant given the limitations on the prevailing circumstances of the "meeting" she had with the mother "J". 7. Ms Martens said that if the mother "J" in fact had a delusional belief system "that often it can be difficult for individuals to engage with services and interventions, as they typically believe that their account to be true and don't consider that there is a problem": Exhibit "A", p 992.12 – 992.19. None of those critical statements can be related or linked with confidence to the specific facts which became evident in this case. 8. The speculative and tenuous nature of that evidence, as was sought to be applied to the mother "J", is self-evident, especially where Ms Martens identified an important qualifier, namely, that personality difficulties are on a spectrum and this is a symptom dependent issue: Exhibit "A", p 988.24 – 988.31. The generality of that evidence, absent specific illustrative reasons connected to the facts of this case, is also self-evident: Exhibit "A", p 988.38. 9. In my view, it is noteworthy that Ms Martens' delusional belief system theory is not mirrored or supported by any of the mental health specialists whose reports are in evidence in these proceedings. 10. Ms Martens focussed upon the mother "J"'s diagnosis of a Borderline Personality Disorder. She was asked if "people with borderline personality disorder often struggle to manage high stress and emotions". The answer to that question was in the following terms: "Yes, so they may have difficulty with interpersonal relationships, aggression management, impulsivity and these factors can contribute to difficulties raising children and, you know, periods of mental health deterioration where parenting stress becomes overwhelming." [Emphasis added] [Exhibit "A", Tab 15, p 988.13 – 988.16] 1. Those comments, which raise uncertain considerations of tendency and possibility only, do not relate specifically to the mother "J". Without more, the cited comments involve speculation as to how a person might behave under certain conditions. That generalised evidence is of little guidance value in this case. 2. Significantly, Ms Martens conceded that the mere existence of a borderline personality disorder does not necessarily equate to bad parenting: Exhibit "A", pp 987.46; 993.12. Similar concessions were made in her evidence in these proceedings: T215.32 – T215.35. 3. The generality of Ms Martens' evidence in the Children's Court continued with the statement that an individual's dependence on painkilling opiate-based medications "can impact on parenting": Exhibit "A", p 989.10. 4. On a more positive note, on the question of stress management, Ms Martens conceded that the longer the existence of a period of clean urinalysis the more confident one could be about the change could be viewed as a positive feature: Exhibit "A", p 994.1 – 994.8. 5. Ms Martens' evidence in the Children's Court proceedings included a concession on the issue of parental distress experienced at the time of a child's removal. She conceded that "most parents become quite distressed when the[ir] children are assumed into care": Exhibit "A", p 996.10. 6. On the subject of the father's ability to manage anger, it is important to identify the starting point of what had provoked his anger as a relevant point of analysis. 7. That evidence emerged alfresco, without an antecedent report. This is aptly represented in some questioning of Ms Martens in the Children's Court proceedings in relation to the contextual circumstances of the assumption into care of the second child "K", as follows: "Q. She had a Caesarean section on 15 September. Do you remember reading that? A. Yes. Q. And at 11.15, after that Caesarean section, an Ali Stone, that's the current caseworker and I think now the manager of casework in this matter, had a communication with the hospital to the effect that they were going to assume care. They were told that it would take - need to wait at least four hours 40 because the mother was still under the effects of the anaesthetic. They phoned back, saying, "We're not waiting four hours, we've had legal advice." They were going to attend with some police, but they came to the hospital. The mother is still in Recovery, page 97? A. Yes. Q. At some point during this she's on the bed, she's naked. Circumstances of vulnerability and embarrassment, would you agree with that? A. Yes." [Exhibit "A", Tab 15, p 994.32 – 994.48] 1. It is not difficult to understand the evolution of parental anger in such circumstances. 2. As to the details of the assumption process of the child "K", Ms Martens gave the following descriptive evidence: "Q. The assumption of care process is going on, then became heightened and pacing the room. Security were present. The social worker was present. DCJ tried to explain to [the father "T"] but he was swearing in frustration. And [the mother "J"] was yelling to him, "Stop". She's in the state I described, she has enough presence of mind to see that this is not good. The father doesn't know this is going to happen. His partner is there as described. The assumption of care is going on as described and he's swearing in frustration and yelling. Not terribly surprising, is it? A. No, I believe most parents become quite distressed when the children are assumed into care. Q. [The father "T"] is frustrated. He continues swearing about what's going on. They try to provide reassurance and he says it's all on one side. Now, my note is that in these circumstances the father manages to say to the midwife, "I don't have a problem with you" but he has a problem with what's going on. And later in the notes, he apologises for being angry about it. It's a pretty persuasive bit of evidence, isn't it, about the father's ability to manage his anger in those circumstances? A. Well, I think he certainly did demonstrate a capacity to manage anger and not direct it towards the nursing staff, yes." [Exhibit "A", Tab 15, p 996.1 – 996.20] 1. Ms Martens' evidence on that unfortunate scenario suggests that the father "T" did have the capacity to appropriately manage his anger under stress in September 2021. 2. In the Children's Court proceedings, Ms Martens' alfresco comment on seeing reports about contact visits with the children was that the mother "J"'s contact reports seem "very good", and that the mother "J" was responsive to the child: Exhibit "A", Tab 15, p 1000.15 – 1000.34. 3. Ms Martens had been provided with Dr Baruah's psychiatric opinion in which he had not identified any mental illness in the mother "J" that would impair her behaviour, cognition or perception required to maintain a normal life. Ms Martens commented upon that opinion as follows: "Q. You see there that there's no evidence of any acute mental illness identified during this review? A. Yes. Q. There's been no police involvement while these proceedings have been on foot since August, has there? A. I'm not aware of any. Q. No hospital admissions to a mental health ward or similar? A. That's correct. Q. I'll cut to the chase. There are signs of normality in the mother's mental health? A. Yes, I believe mum is quite functional in many ways, yes. Q. Particularly because, on any view of the matter, the mother's had an awful childhood, hasn't she? A. Yes, it does appear that she's had some complex trauma throughout childhood. Q. And you have some confidence in her ability for the future that she shows resilience, wouldn't you? A. In some aspects, yes, I believe there are indications of resilience. Q. Determination; you'd agree with that, wouldn't you? A. Yes. Q. The opinion says, "I have not identified any mental illness of such severity that can impair [the mother "J"]'s behaviour, cognition and perception required to maintain an optimal functional life". You did not put to us any specific incidents that - I withdraw that. That appears to be accurate, doesn't it? A. It appears, yes, in many ways she's quite functional and there's not indicative of an acute mental illness which could significantly impair function at this current time." [Exhibit "A", Tab 15, pp 1002.19 – 1003.5] 1. In my view, the qualifying rider "at this current time" was gratuitous to the question that was asked, as is apparent from the antecedent time frame within Dr Baruah's report. Perhaps Ms Martens meant to say "at that time". 2. In my view, the evidence Ms Martens gave in the Children's Court proceedings on the assertion the mother "J" had a delusional belief system was entirely speculative: Exhibit "A", Tab 15, pp 1008 – 1009. It was peppered with non-specific qualifying terms such as "possible", "if", "not necessarily", "potentially", "might". None of those descriptors were anchored in reliable evidence of historical facts. 3. On the subject of the assumed mental health problems of the mother "J", Ms Martens also said, tentatively: "... I guess I held and continue to hold concerns around the potential for more chronic mental health concerns for [the mother "J"] and my hope for longterm intervention was to provide more monitoring and understanding around how that might impact upon parenting and to assist mum to manage any symptoms that occur." [Exhibit "A", p 1010.7 – 1010.11] 1. The alfresco reasoning process for that view which was updated in the witness box was minimalist, and not based on a current or detailed exposition of updated underlying facts. 2. The mother "J"'s mental health problems, which Ms Martens has assumed to currently exist, have not been corroborated or confirmed to be present in the duly qualified psychiatric assessment that was undertaken by Dr Baruah when he saw the mother "J" on 19 March 2021: Exhibit "A", Tab 3, pp 19 – 21. Those two disparate forensic positions stand to be reconciled. 3. In circumstances where discordant expert opinions require reasoned reconciliation, the reconciliation process must be based on the rigour and the factual accuracy of the underlying reasons or assumptions: Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58, at [9]. In contrast, statements invoking ipse dixit reasoning do not provide an acceptable basis for the resolution of such questions: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, at [59], [87]. 4. The fact that Dr Baruah's opinion post-dated Ms Martens' assessment is a significant focal feature when seeking a reconciliation of views especially where Dr Baruah's opinion was expressed clinically and Ms Martens' earlier forensic view had not been updated. Ms Martens' evidence in the appeal proceedings 1. For the above reasons, and those that now follow, on my analysis of Ms Martens' evidence in these appeal proceedings, I consider that she was at somewhat of a multifactorial disadvantage in expressing reliable opinions on the suitability of the parents for the restoration of their children into their care. 2. First, the foundations for her assessment of the parents comprised interviews that took place some 26 months ago, where much has happened in the meantime to concededly improve the situation of the parents who have impressively and objectively proven their sustained commitment to refrain from substance abuse, including illicit drugs. 3. Those circumstances must be seen as going a long way towards ameliorating a great deal of Ms Martens' concerns that she had initially expressed in 2021, and which she maintained in 2022 in circumstances where she did not have the benefit of an updated assessment. 4. Secondly, Ms Martens' initial assessments on 18 January 2021 took place in difficult circumstances, where each parent was interviewed on Zoom for an initial 20 minutes, followed by about 85 minutes of telephone interviewing where at times the line was dropping out. Whilst this may have been the best option available in the difficult times of the COVID lockdown, it was nevertheless disadvantageous compared to an in person face-to-face clinical meeting where a more reliable professional assessment could be made on matters of affect and demeanour. Ms Martens acknowledged that factor when questioned: T211.21 – T211.35. 5. Thirdly, Ms Martens has not had the opportunity to either directly question and explore with the parents the impact on them of the birth of the second child "K", nor has she assessed the effect that the insensitive and traumatic removal of that child has had on the subsequent parental attitudes, beliefs and behaviour, ameliorative or otherwise. 6. In that latter regard, no opportunity was sought for an updated assessment to be undertaken either with Ms Martens, or any other expert. As a result, her opinions were essentially anchored to her assessment which took place on 18 January 2021, whereas the circumstances of the parents had materially changed. Any opinions Ms Martens sought to express on events that post-dated her interviews on that date were effectively hampered by the disadvantage thereby occasioned. 7. Fourthly, whilst Ms Martens said that her expressed concerns, when taken in isolation would not preclude restoration of the children to the parents, however, she said that when those concerns were considered in combination, she maintained her concerns: T225.27 – T225.30. I found that position to be unpersuasive, as will be explained in my consideration of Issue 3. 8. In my opinion the alloyage or combination of factors which comprised Ms Martens' cited concerns as she expressed them should not be taken as representing a reasonable basis for concluding that those concerns should operate to preclude restoration as a realistic possibility in this case. 9. My conclusion in that regard arises because in order to form an assessment of the risk, due regard must be had to the relative weightings to be applied to the individual elements of concern that operate to create the argued combined effect of risk. In my view, on that approach, the Secretary's position, reliant as it is on Ms Martens' evidence which is necessarily dated in time, remains flawed, as will be made clear in my consideration of Issue 3. Conclusions following the consideration of the evidence of Ms Martens 1. In this case there is no question as to the probity or the credibility of Ms Martens as an expert witness. However, the reliability of her opinions and concerns must be assessed according to the foundations these might have in the available evidence when read as a whole. Summary of conclusions on reliability of oral evidence 1. In summary, on the question of the credibility and reliability of the oral evidence, for the above reasons, I have concluded that: 1. The mother "J" and the father "T" have given truthful and reliable evidence that may be drawn upon for the purpose of determining the remaining issues in the appeal; 2. The evidence of Ms Appleyard and Ms Murray, albeit to a necessarily limited degree, serves to reliably reinforce relevant aspects of the evidence of the mother "J" and the father "T" on the issue of parenting capacity; 3. The evidence of the Department's caseworker, Ms Stone and her manager, Mr Nijland, in this case does not form a reliable basis for contradicting and refusing the parents' claim for the relief they seek in this appeal; 4. The opinion evidence of Ms Martens does not provide a reliable basis for refusing the parents' claim for restoration. 1. Those conclusions will inform my approach to determining findings to be appropriately made in the consideration of Issue 3 and Issue 4 below. Issue 3 – Claimed unacceptable risk of harm 1. Before any consideration can be given to the question of a possible restoration of the children into the care of their parents, the allegations raised by the Secretary as to the existence of unacceptable risks of harm must be examined and determined in terms of their aptness. 2. At the outset of that examination, it is important that reference be made to some important and appropriate concessions made by the Secretary in the course of the hearing and in final submissions. 3. In that regard, the Secretary abandoned any questions or concerns that have previously been raised over the parental use of illicit substances or any possible questions of potential sexual abuse by the father "T", as current sources of unacceptable harm. Those concessions were properly made on the evidence which has emerged in this appeal. In my view, those issues should have been abandoned at a much earlier stage of the proceedings. 4. Since the ultimate submitted positions of the parents and the Independent Legal Representative are in essential agreement on the issue of restoration, it is appropriate that I identify the elements of the submissions made on behalf of the Secretary which argue that an unacceptable risk of harm exists such that this should preclude the making of the restoration orders sought by the parents. 5. Those combined elements, which in essence parse and reflect Ms Martens' opinions and concerns, are extracted from paragraphs 77 and 86 of the written submissions presented on behalf of the Secretary, which I have rearranged for the purpose of analysis and consideration into the following convenient order: 1. The mother "J"'s insight into her mental health; 2. A lack of parental insight into the child protection concerns for the children; 3. The mother "J"'s understanding and acceptance of medical advice; 4. The mother "J"'s physical disability; 5. Ongoing parental discordance and reactivity to service providers; 6. The availability of safe and suitable housing; 7. The risks associated with the mother "J"'s borderline personality disorder which Ms Martens has identified and summarised in her oral evidence (at T211.20 – T211.31), as follows: 1. Emotionally impulsive behaviour such as reactivity to others; 2. History of poor distress tolerance; 3. The potential impact on a parent's ability to be consistently available to their child; 4. The potential impact of a parent's ability to prioritise and understand a child's needs from their perspective and what emotions they might be experiencing; 5. The impact of the mother "J"'s history of reactivity and aggression and difficulty managing her emotions at times of contact and in front of the children. 1. In the paragraphs that now follow, I turn to the consideration of those individual elements of concern as a prelude to considering their combined effort, as proposed by Ms Martens. (1) The mother "J"'s insight into her mental health 1. In my view, the Secretary's concerns over the mother's mental health and her insights into such concerns are based on what I find to be the false premise that there is a significant mental health issue thereby requiring an inquiry into her insight. 2. As explained at paragraphs [137] and [214] above, in my view, the Secretary has not given due regard and effect to Dr Baruah's considered medical opinions which rebut as false, the suggested premise that the mother "J" has an underlying mental illness that requires management. 3. The mother "J" justifiably maintains that Dr Baruah's opinions dispel the notion that she lacks insight into her mental health. 4. In my view, the mother "J" has a reasonable insight into her mental health. She has been obtaining Victims Support counselling for her PTSD which relates to her childhood traumas. The Secretary has conceded she has childhood traumas. 5. The mother "J" has in my view adequately and pertinently revealed her insight into her mental health by referring to the fact that the need for her to repeatedly recount and keep in mind the painful details of her childhood traumas had led to recrudescence of those traumas, which undermines her emotional wellbeing. In my view, the mother "J" amply demonstrated an adequate insight into her mental health by reciting the opinion of her counsellor, Mr Smith, to the effect that her PTSD counselling has to be placed on hold pending the resolution of these proceedings before that counselling can properly resume. 6. In my opinion, the mother "J"'s evidence is that she is most insightful about her mental health and what might serve to disturb her mental wellbeing. 7. The fact that Ms Martens has suggested the mother "J"'s mental health needs to be understood more thoroughly is not a relevant consideration as it is based on speculative considerations that have not been made out on the evidence. 8. If mental health issues and related "interventions and treatment" were a true and non-speculative concern in this case, the ordinary expectation would be that such concerns, if they were to be advanced to the stage of a hearing, would be supported by a current and factually justified expert opinion that complies with UCPR, Sch 7 cl 5(c). 9. In that regard, Ms Martens' analysis, which is necessarily based on an outdated and incomplete assessment, no longer has adequate or decisive weight and currency. In that regard her opinion is speculative, and in my view, it is unacceptable in this context. 10. I conclude that this argued concern of maternal insight into her mental health has not been established as a reality-based concern. (2) Argued lack of parental insight into child protection concerns 1. On my review of the evidence, it has not been established that a reliably sound factual basis exists for concluding that the parents, either individually or together (as if a folie a deux was operative), lack appropriate insight into child protection concerns. 2. In my view, as is apparent from the content of the evidence of the parents, the contrary view applies. 3. In that regard, my impression from their evidence is that they have found the departmental intervention in their lives extremely scarifying and unsettling. This has led to them displaying reactively emotional responses that are conceded by Ms Martens and Mr Nijland to be understandable. As such they do not truly represent mental health concerns that impact on child protection issues. 4. In my view, on the question of parental insight into child protection issues, the past traumatic intervention history of parental involvement with departmental staff, and all that has been involved in these child care proceedings has acutely focussed their thinking on the possible consequences of not observing child protection requirements. 5. I find that there is no convincing evidence to reliably suggest that the parents now lack insight into such matters. (3) The mother "J"'s understanding and acceptance of medical advice 1. In my view, the Secretary's expressed concern over the mother "J"'s understanding and acceptance of medical advice should not be accepted. 2. That concern appears to be based on the historical occasion when the mother "J" described how she was not given an adequate medical explanation for the management of her maternal gestational diabetes. It was also based on an incomplete understanding or a misunderstanding of the mother's legitimately expressed concerns at the time over the administration of the blood thinning drug Clexane, a drug that carries the risk of harmful bleeding. 3. In my view, those circumstances relied upon by the Secretary have receded and such concerns are no longer relevant. The mother "J"'s general practitioner's records show that she attends appropriately to ensure her medical needs are properly met. 4. The broad general suggestion made on behalf of the Secretary that the mother "J" may not accept medical advice, the implication being that this might have an adverse impact on child safety, is problematic. 5. In addressing this issue it is important to bear in mind that the Secretary's conception of an argued lack of insight into child protection concerns is based on a conflation of historical factors that have been shown to be no longer applicable. For example, Ms Martens now accepts that the father "T" had the capacity to manage his anger: Exhibit "A", Tab 15, p 996.20. 6. On the question of concerns as to maternal consideration of medical advice, the Secretary cannot reasonably require abrogation of the mother "J's common law right to question future medical advice, and if so minded after being duly informed, not accept such advice insofar as it might relate to her own needs. This is an ordinary incident of patient autonomy and management of personal risk in the context of proposed medical treatment, which is commonly accompanied by risk of various kinds. 7. That said, there is no reliable evidence to suggest that the mother "J" would, as presently advised, refuse necessary medical advice and treatment for her children should she be advised that it was necessary. Her evidence on this topic is that she would question advice where she thought it was necessary in order to satisfy herself as to the need. That is plainly the approach a good enough parent would adopt. 8. I find there is no sound evidentiary basis for concluding that the mother "J", or the parents together would not consider and follow medical advice directed to the needs of their children. The evidence of the mother "J" is that her approach to medical advice would be to question it if she felt the need to do so, as is her right: Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58. 9. I also find that there is no reasonable basis for making a finding that the parents lack insight into child protection issues. Their scarifying experience in that regard suggests the contrary is true. (4) The mother "J"'s physical disability 1. The Secretary argues that the mother "J"'s disability, which affects certain of her movements, poses an unacceptable risk of harm to her children if in her care. 2. The inherent odiousness of that discriminatory contention is self-evident. Amongst other things, it is against the spirit, if not the letter, of the provisions of the Anti-Discrimination Act 1977 (NSW), and the Disability Discrimination Act 1992 (Cwth). 3. On the evidence of the mother "J"'s physical restrictions in this case, the fact that she has a disability should not act as an automatic disqualifier for parental restoration. 4. If the expressed issue of concern is the safety of placing a child into a bassinet, the solution should involve consideration of assistive devices, not a denial of parental rights. A consultation with an occupational therapist, which was within the Department's capacity to arrange, ought to have readily allayed and dispelled this expressed concern. (5) Ongoing parental discordance and reactivity to service providers 1. The Secretary submits that parental discordance and reactivity to service providers represents an unacceptable risk of harm to the children. A consideration of the context for that submission is required. 2. In my view, that suggestion might have had some scope for traction if the parents continue to be provoked by any unreasonable requirements of the Department and its agents, for example, insisting on compliance with a requirement to address mental health issues where their assessing psychiatrist does not support such a course because neither of them have been assessed by him as having a relevant mental illness. 3. In my view, when the instances relied upon by the Secretary are examined, this concern should be materially downgraded in terms of significance. 4. For example, the mother "J" became very upset and had an outburst of emotion over a decision by the carer to cut the hair of the child "D" in a way she had specifically requested not be done. Another example is that the parents became angered by the confusion created at a contact visit when the proposed adoptive parents were unexpectedly present – a most provocative scenario. 5. In my opinion, there is no evidence to reliably suggest that a relevant risk of harm arose from the verbal expressions of parental anger on such provocative occasions, where resort was perhaps had to base or vernacular expressions rather than the calmly expressed conventional prose of the King's English. 6. In my view, on a restoration pathway, the root cause of any adverse parental reactions of the kind adverted to on behalf of the Secretary, will most likely be eliminated once the Department ceases its spurious insistence that parental mental health issues exist so as to require treatment intervention. Similarly, contact visits are unlikely to become complicated or clouded by unfortunate events such as the untoward presence of strangers, namely prospective adoptive parents, as has occurred most recently on the adoption pathway. 7. I infer from the evidence of Ms Appleyard and Ms Murray as summarised at paragraphs [332] to [339] above, and from the evidence of the parents in these proceedings, that, absent provocation, they would behave respectfully and safely, with child safety, welfare and wellbeing foremost in mind. 8. I accept as genuine and convincing, the parental evidence to the effect that they will engage appropriately and co-operatively with the Department and its officers and agents in the transition process. 9. In my view, this is more likely to be more smoothly achieved with an appropriate change of caseworkers and supervising personnel, a factor that was acknowledged by the Department's expert witness Ms Martens: T228.10 – T228.17. 10. In such circumstances, provocations would be unlikely to emerge, and if they did, I am satisfied that the parents now understand how to appropriately manage anger issues that might emerge: They are aware of strategies for this: T157.40 – T157.43. 11. Accordingly, I find that the Secretary's concern over the child safety implications based on past parental instances of discordance and reactivity to service providers should not be regarded as a current concern of significance. (6) The availability of safe and secure housing 1. At present, the public housing occupied by the parents is not optimum, and it is perhaps less than ideal to accommodate the addition of two infant children. 2. However, on a restoration pathway, the expectation is that the responsible departmental officers would use their best endeavours and influence with the appropriate public housing officials for the purpose of securing accommodation more suitable for children. 3. Understandably, given the shortage of public housing, this may take some time to achieve before the parents have suitable premises in which to bring the children. However, I note that the parties confidently believe that this might be more readily securable in the non-metropolitan setting. 4. In my view, the element of concern over suitable, safe and secure housing should not be seen as a relevant factor denying the restoration pathway where other concerns have been satisfied. (7) Risks associated with Borderline Personality Disorder 1. The mother "J"'s diagnosis of Borderline Personality Disorder has been raised as an element of risk that should be considered as being a relevant factor that contraindicates restoration. 2. I do not read the context of that submission to be advanced as being discriminatory of a disability, but rather, an element to be considered when assessing the risk of harm in terms of child protection. 3. In my view, the five elements of risk identified at sub-paragraphs (7)(a) to (e) of paragraph [405] above, can be analysed in combination as they all seem to arise for consideration in relation to the overall label of Borderline Personality Disorder. 4. In that regard, in my view, the complete answer to the Secretary's concern on this issue is Ms Martens' recurrent concession that a Borderline Personality Disorder does not necessarily indicate an inability to be an appropriate parent: Exhibit "A", pp 987.46; 993.12; T228.10 – T228.17. 5. A further answer to this concern expressed on behalf of the Secretary is that it is not just the mother "J" who is seeking restoration, but also the father "T", who is not affected by Borderline Personality Disorder. It must be recognised that the parents are seeking restoration jointly as a co-supportive couple, which should serve to allay any such concern. 6. To proceed on any contrary assumption would be unlawfully discriminatory of mental illness. In my view, each of the 5 considerations cited above are adequately addressed by the fact that the father "T" will more probably than not be an insightful and supportive actor within the arrangements for childcare, where the mother "J" will not be the sole carer. 7. Furthermore, the argued potential for the mother "J" to be impulsive and reactive, aggressive, and to exhibit poor distress tolerance, and therefore be, possibly, at times unavailable for the emotional and other needs of the child as a priority, would obviously be dependent upon the presence or absence of confrontational stressors, such as having to deal with, or negotiate with triggering circumstances, such as conflict with caseworkers who persist in raising the unsupported proposition that mental health issues remain unaddressed or unmanaged. 8. In that regard, I am persuaded by the evidence of the mother "J" that she has an appropriate strategy to deal with such triggers. 9. In my view, the potential for such problems to arise and have an adverse impact, would be expected to substantially and materially lessen in the short to medium term along a properly supported and supervised restoration pathway. Those circumstances would most likely serve to ameliorate concerns over the child protection concerns that might be held in relation to the mother's Borderline Personality Diagnosis. Conclusion 1. For the above reasons, I do not accept the Secretary's submissions to the effect that the parents pose an unacceptable risk of harm to their children that cannot be ameliorated. 2. I now turn to the question of whether there is a realistic possibility for the children, who are the subject of these proceedings, to be restored into the care of their parents. Issue 4 – Whether restoration is a realistic possibility 1. The accepted test for assessing whether there is a realistic possibility of restoration involves two cumulative component limbs, as is found in s 83(1) of the Care Act, which provides as follows: 83 Preparation of permanency plan (1) If the Secretary applies to the Children's Court for a care order (not being an emergency care and protection order) for the removal of a child or young person, the Secretary must assess whether there is a realistic possibility of the child or young person being restored to his or her parents within a reasonable period, having regard to— (a) the circumstances of the child or young person, and (b) 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. 1. As to the first limb of that test, the relevant past and present circumstances of the children, now aged 2 years 8 months and 18 months respectively, require consideration. 2. In that regard, the children have been together in the same placements since they were respectively assumed into care, including whenever those placements have changed. The evidence confirms that they have had frequent positive contact with the appellant parents. Ms Martens accepts that the parents exhibit love and affection for the children: Exhibit "A", Tab 42, p 3545, paragraph 195. The evidence of the Barnardos contact supervisors, Ms Appleyard and Ms Murray, is that they have had no concerns over those parental contacts. 3. In those circumstances, I consider that there is realistic scope for the ongoing development of a positive attachment between the children and their parents, although this must be by way of a structured transition given that the parents have never had domiciliary care of these children. 4. Accordingly, I find that the first limb of the test for restoration provided by s 83(1)(a) of the Care Act is satisfied by those factual circumstances. 5. As to the second limb of that test, in addition to satisfying the requirements of the first limb, the parents must discharge the evidentiary onus of showing that, on the balance of probabilities, they are likely to be able to satisfactorily address the underlying issues that have led to the removal of the children from their care: The Secretary, Department of Communities and Justice and Fiona Farmer [2019] NSWChC 5, at [108]. 6. That inquiry, as it relates to this case, involves a two-staged consideration to determine whether, on the balance of probabilities, the parents have met the threshold for a restoration to be achieved as a realistic possibility within a reasonable period, where the maximum period permitted is 2 years. 7. This requires that the parents show, first, that there has been a meaningful commencement of a process of improving their parenting, and secondly, that there has been some significant success along that pathway which enables a confident assessment that continuing success might be expected: Department of Family and Community Services and Nathan [2018] NSWChC 1. 8. The consideration must commence with the requirements of s 83(1) of the Care Act, which involves a determination of whether the parents have addressed the circumstances which led to the removal of each child, bearing in mind they were assumed into care as neonates before they were discharged from hospital. 9. In that regard, it is pertinent to note that each of the two circumstances of assumption or removal of the children were significantly different. The second removal, when properly understood, did not represent a continuum of the child safety concerns that led to the first child being removed. 10. The only common feature of the two removals that I could discern from the materials in evidence was that in each instance, the Department had made anticipatory preparations for assumption into care before the birth of each child, that is, in anticipation of a risk of serious harm to each child, once born. 11. In the case of the child "D", by 9 July 2020, which was just 14 days before her birth by caesarean delivery on 27 July 2020, Ms Stone had carried out a Risk Assessment, the outcome of which was that the child would be "Unsafe" in parental care: Exhibit "A", Tab 40, p 3169. 12. At the time, that assessment was plainly reasonable having regard to child protection issues because the mother "J" was a user of cannabis, albeit to address her anxiety issues that related to the PTSD from her childhood trauma, she had poorly controlled maternal gestational diabetes with elevated blood sugar levels, which carried the risk of foetal macrosomia that had the potential to lead to other problems at delivery, and thereafter. Consequent upon that latter considerations, the mother "J"'s pregnancy was medically classified as being one of high risk. 13. The surrounding circumstances were that the Department held incompletely investigated and unresolved concerns over the mother "J"'s mental health, including with regard to her adherence to advice on medical management of the pregnancy and the potential adverse impact non-adherence could have on the foetus. The Department also had concerns arising out of her disclosed background of childhood trauma. 14. With one qualification, at that point, in my view, it is quite clear that the Department was justified in taking the steps that it took to assume the child "D" into care four days after her birth by caesarean section. 15. The qualification is that it does not appear from my review of the assembled materials that there was any documented consideration of a less intrusive intervention such as the provision of skilled support to the parents rather than taking the more intrusive step of removal: s 9(c) of the Care Act. 16. However, on the evidence, it is plain that the child "D", as a foetus, when born, was at risk of significant harm. She was therefore assumed into care. That historical fact cannot be changed or viewed differently. However, the surrounding circumstances merit further attention. 17. The surrounding circumstances were that the mother "J" and the father "T", for that matter, were unaware of the pregnancy until the stage of 27 weeks gestation. In those events, they only had the very limited period of seven weeks to adjust to the fact of and the implications of the pregnancy before the urgently planned caesarean section would occur. 18. I infer from those circumstances, and from the well-understood accompanying parental emotions surrounding an imminent birth, that whatever insight the parents were in the process of gaining and adjusting to in the lead-up to the birth of the child "D" (where they had only limited opportunity for withdrawing from opioids and cannabis, and acquiring a sufficiently informed state to take on the responsibilities of parenthood), the Department was justified in taking the child "D" into care. This justification was reinforced by the child "D"'s neonatal diagnosis of Neonatal Abstinence Syndrome. 19. Those circumstances, and the parents' understandable anger over the removal of the child "D", where they were unsupported, led to ongoing tensions with departmental staff, particularly the caseworker Ms Stone. This meant that there was little hope of the parents becoming good enough parents in the short-term following the removal of the child "D". 20. However, more positively, from that time, the lives of the parents had started to successfully and materially change course, by the time of the second pregnancy that led to the birth of the child "K", on 15 September 2021. By that stage they had been drug free for over a year. The implication of those circumstances is that the Department's justification for the assumption of the second child "K" into care should be viewed differently to the circumstances of the assumption into care of the child "D". 21. The changed circumstances were first, and objectively, the parents had been successfully drug free from 20 July 2020, a remarkable feat in the circumstances, and secondly, despite flawed departmental opinion to the contrary, they did not have unmanaged mental health issues, as was confirmed in each instance by Dr Baruah in his letters dated 19 March 2021. 22. In those circumstances, the parents were experiencing ongoing anger at the Department's attitude towards them. However, that anger and its associated tensions has since been successfully addressed by the parents, although provocative circumstances have at times given rise to expressions of understandable parental anger. That said, Ms Martens acknowledged that the father "T" had demonstrated a capacity to manage his anger: Exhibit "A", Tab 15, p 996.20. 23. Notwithstanding the improvements in the position of the parents, as has already been observed, in the lead-up to the birth of the child "K" on 15 September 2021, during the second pregnancy, the Department maintained the attitude that the child "K", who was still en ventre sa mere, was at risk of serious harm when born. Therefore, it was determined that the child should be assumed into care immediately following her birth. This was a most distressing event for the parents and it produced a level of understandable anger. 24. In my opinion, it is clear from the evidence reviewed and analysed earlier in these reasons, that the assumption into care of the child "K" was based on an inadequate and materially inaccurate consideration of the circumstances. This was so because the parents were on a pathway of successful self-improvement, and they were objectively proven to be drug free on urinalysis. 25. Notwithstanding those changed circumstances, which were successfully continuing in a positive direction, as earlier explained in my review of the evidence, the Department continued to maintain what I find to have been the untenable view that the parents continued to have unmanaged mental health issues requiring treatment: See paragraphs [323] to [330] above. 26. The Department held that view notwithstanding that it was in possession of credible and suitably qualified specialist medical evidence from Dr Baruah, which was to the contrary of the Department's view, where Dr Baruah's evidence remained uncontradicted. Instead, the Department continued to follow what I consider to be the flawed analysis of Ms Martens, which predated Dr Baruah's opinions, and as a result, was problematic in terms of its application. 27. Unfortunately, in addition to these circumstances, despite parental protestations, the Department persisted in viewing the father "T" as a "substantiated" child sexual abuse risk when the evidence for that was only "weak", at best. 28. On a proper analysis, which I have set out in my review of the evidence of Ms Stone and Mr Nijland, those two negative views held by the Department on child protection risks have been shown to have been effectively dispelled, as explained at paragraphs [300] to [304] and [323] to [330] above. 29. I am comfortably satisfied on the balance of probabilities that the Department had been acting inflexibly on two false premises at that time to the detriment of the parents and the two children who should have been considered for restoration at that time. 30. The Department's views continued to remain so up until and during the hearing of this appeal. 31. This leads to the question of whether the parents are on a significantly successful trajectory for improvement in their understanding of safety in terms of child protection concerns. 32. Putting aside as I do the concerns expressed by Ms Martens for the reasons I have already identified in the analysis of her evidence, and having regard to my review and findings in relation to Issue 3 above, the following positive matters of relevance emerge for consideration on the question of whether there is a realistic possibility of restoration. 33. First, repeated urinalysis testing has consistently shown that the parents have each remained clean of cannabis and opioids, with the exception of the occasions on which the mother "J" had a legitimate need for medically prescribed pain relieving medication. I am also satisfied that the parents no longer use alcohol. 34. In my view, on the balance of probabilities, that state of abstinence is very likely to continue, which significantly downscales the previously assessed risk due to drug use. In my view, given the battle the parents have had to this point, it is most unlikely they will relapse from such abstinence, legitimate medical prescriptions aside. 35. Secondly, the parental depression identified by Dr Baruah relates to the parents having been deprived of their children. On a pathway to restoration, on the balance of probabilities, I consider that depression will not be pervasive, disabling, or recalcitrant to ameliorative treatment. On the contrary, restoration would more likely lift their reactive depression. In my view, this element of potential risk to the children should be seen to be at a very low or theoretical level that does not properly sustain any ongoing concern. 36. Thirdly, it is clear that the mother "J" will again take up counselling for her PTSD relating to her childhood traumas. That counselling has been temporarily placed on hold, on proper advice, for the reasons already identified pending the resolution of these proceedings. In my view, on the balance of probabilities, this factor is unlikely to pose a child protection risk. If anything, the parents have a vigilant and protective attitude, as explained by the mother "J", this being her motivation for having the children taught self-defence so that they would not come to harm as occurred to her: T135.10. 37. Fourthly, the parents, despite all the odds that have been stacked against them, including the burden of self-representation in these proceedings, have shown a consistent earnestness to get the children back. I am comfortably satisfied that this desire is out of love for the children, as was recognised by Ms Martens, and is not for reasons of personal pride or vanity to remedy a sense of loss. 38. Fifthly, the father "T" has shown he has been a good enough father to his previous children. This augers well for the children "D" and "K" whilst in his care. The Department's investigations have not found reliable evidence to satisfactorily sustain a contrary view. Mr Nijland accepts that the father "T"'s depression and anxiety related to him being deprived of his children: T264.12 – T264.27. I am satisfied that the father "T" has the correct and committed attitude to the raising of these two children. 39. Sixthly, I accept the evidence of the parents to the effect they will appropriately engage with service providers of all relevant varieties in the best interests of their children. I am persuaded that there has been a significant change in parental attitude to dealing with differences of opinion should they arise with service providers: T156.26 – T157.23. I am also persuaded that once the stress of this case is behind them, and the Department acts responsively to implement the analysis and findings identified in these reasons, perhaps with different caseworkers and managers of casework, that argument will be even more positive and product of benefit than it has been to date. In that regard, Ms Martens saw the sense of a change in caseworkers: T228.10 – T228.17. 40. Eighthly, the child "D", who is aged 2 years 8 months, appears to have formed a good relationship with the parents which augers well for a deeper relationship to develop: Exhibit "A", Tab 42, p 3545, paragraph 194. 41. Seventhly, in arriving at those conclusions, I have not overlooked the concerns raised by Ms Martens as reviewed and summarised at paragraphs [340] to [398] above. For completeness and the avoidance of doubt as to whether Ms Martens' expressed concerns have been considered, I set out my further analysis of them as follows: 1. As to Ms Martens' concern over the mother "J"'s diagnosis of borderline personality disorder, which of itself does not mean she cannot be an effective parent (T227.9), she stated that she was not able to confirm that any emotionally or impulse driven behaviours or poor distress tolerance symptoms the mother "J" may exhibit from that condition that would have an adverse impact upon parenting ability. The expressed concern therefore remains speculative. In my assessment, taking a broad view, I consider that such stressors that would lead to such behaviours would more probably than not recede in their impact in the context of a restoration process as distinct from the prevailing circumstances of tension perpetuated by continued deprivation of her children; 2. As to Ms Martens' expressed concern that historically, from what he has been shown, that the mother "J" had a history of interpersonal reactivity and aggression and difficulty managing her emotions at times during contact and in front of the children, such concerns must be viewed in the appropriate time context to understand exactly what had provoked such reactions, for example, when she was confronted with the confusing presence of the proposed adoptive parents at a relevant contact visit; 3. In this case, the standout stressor which has caused the behaviour of concern to Ms Martens and the Secretary, was what I find to have been the effect of the extreme provocation of the parents learning that the children had been placed in the adoption stream despite the fact that the hearing of this appeal was pending. This occurred in the context of the unfortunate presence of the carers at a contact visit. This was a course that I consider was destined to provoke extreme parental protective emotional reaction and upset, as well as causing needless complicating confusion for the children, particularly regarding confusion over loyalties, as was so poignantly described in the evidence without challenge: T144.1 – T146.3. Accordingly, I consider this identified concern should be given diminished weight as it is based on provocative circumstances that were out of the control of the parents and the reaction was not unexpected; 4. As to Ms Martens' concern over parental emotional control at contact visits, I consider that the evidence of Ms Appleyard and Ms Murray, effectively dispels that concern as being either non-factual, or not a realistic or current concern if conventional non-provocative arrangements were to prevail; 5. As to Ms Martens' concerns over the mental health of the mother "J", those concerns were expressed (at T225.36) in terms of "I am not fully sure then how that's going to impact upon parenting". That concern should therefore be seen to be self-evidently speculative because of the inherent element of doubt within that evidence, which, in my view, does not permit a reasoned finding on the balance of probabilities, that the mental health of the mother "J" (or the father "T" for that matter) will relevantly impede parenting capacity. In my view, any such concern is effectively dispelled by the letter dated 19 March 2021 from Dr Baruah, which was based on his consultation with the mother "J" on 19 March 2021: Exhibit "A". Tab 3, pp 19 – 21. In that letter, Dr Baruah stated that he did not find any evidence of an acute mental illness. Dr Baruah went further and stated that there was no evidence of any psychotic disorder, mood disorder, or current substance use disorder. He went even further by stating that he could not identify any mental illness of such severity that could impair the mother "J"'s behaviour, cognition and perception and perception required to maintain an optimum functional life; 6. The only mental illness of the mother "J" as identified by Dr Baruah was her display of "some depressive symptoms in the context of not having access to her daughter". In that context, he noted that the removal of a child would undoubtedly perpetuate her trauma. In expressing that opinion, he also identified ameliorative effects that child access would have on that trauma. It is significantly noteworthy that Dr Baruah's opinion formed on 19 March 2021. The timing of his cited opinions was two months after the mother "J" was assessed by Ms Martens in the less than optimal and limited circumstances that prevailed when she interviewed her; 7. It is also significant that Dr Baruah's opinion, which was formed in the clinical setting by a consultant psychiatrist, is not only more recent than Ms Martens' forensic evaluation, but I consider that as it is a medical opinion, it should be considered to be more authoritative and given greater determinative weight when compared with the opinion of a forensic psychologist. In making that finding, I intend no disrespect to the professional standing or acumen of Ms Martens who made her assessment in a less advantageous setting; 8. As to Ms Martens' expressed concern over the physical mobility of the mother "J", she acknowledged that factor as being "not a complete barrier to restoration": T225.43. In my view, that factor should be given no decisive weight in this consideration. It would be unfair and unlawfully discriminatory to give that factor determinative weight in this case; 9. As to Ms Martens' concern (at T225.42), over the mother "J"'s at times unfortunate aggressive interactions with workers, I consider this factor should have limited weight because of the way in which those particular tensions arose in the context of reactive grievances. It is unlikely they will recur in the context of a path to restoration; 10. As to Ms Martens' statement that although the parents have taken steps to address some risk factors, such as "dad said he was engaged with anger management, mum's had counselling", and Ms Martens' uncertainty as to the responsivity of the parents to this intervention, and to what extent this has resulted in change, I do not see this as a substantive or determinative concern because it was vaguely expressed by Ms Martens and it was heavily qualified by her following additional comment: "So it's hard for me to say to what extent those risk factors remain but they are still a concern for me": T226.1 – T226.5. In my opinion, Ms Martens' concern in that regard is insufficiently explained by adequate cogent reasons as is required by UCPR, Sch 7, cl 5(c). A mere ipse dixit should not carry persuasive weight in this analysis: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, at [59], [87]; 11. As to Ms Martens' specific concern (at T226.,23), that the mother "J" has not had a long period of mental health intervention by a psychologist or psychiatrist to provide greater "clarity" around how her mental health may impact upon parenting, this must be seen to be a misdirected comment that should not be given any determinative weight or traction in light of Dr Baruah's more recent and unchallenged opinion that the mother "J" does not have a relevant mental illness which would require such an intervention. Furthermore, in this context, it should be noted that Ms Martens stated that mental health concerns, in themselves, do not necessarily mean that an individual cannot parent safely: T226.3; 12. As to Ms Martens' expressed concern (at T226.37) that, as I read it, raises the spectre of the mother "J" having a mental health issue that "may impact on parenting" and that could be a "sort of impasse" that is "difficult to overcome", that comment must be seen to be necessarily vague and it should carry no determinative weight. In my view, that expressed concern has been raised without an adequately reasoned basis, especially in circumstances where a duly qualified consultant psychiatrist has determined that the mother "J" does not need any psychiatric management: Exhibit "A", Tab 3, pp 18 – 21; 13. Ultimately, Ms Martens did acknowledge some positive features in the circumstances of the mother "J". These were first, that she and the father "T" had engaged well with at least one worker from Barnardos, namely, Ms Appleyard (T228.2), and secondly, she felt there is some potential for the parents to engage with a care providing service: T228.10. In my opinion those acknowledgments serve as a relevant amelioration of her comments of concern. 1. That said, Ms Martens dampened those positive features by reference to a non-specific concern as to how the parents might respond when challenged. In my view, that comment by Ms Martens may be discounted as to its determinative weight in light of the unusual provocative circumstances in which the reaction in question occurred where, at a scheduled supervised contact visit, the new carers, the prospective adoptive parents, were present unexpectedly, where this caused considerable upset and confusion. 2. I do not consider Ms Martens' cited concerns to be relevant to the present circumstances. Nor do I consider them to be of decisive guidance in this case. 3. It is significant that Dr Baruah's opinions, which were formed in the clinical setting by a consultant psychiatrist, is not only more recent than Ms Martens' forensic evaluation, but I consider that as it is a specialist medical opinion, it should be considered to be more authoritative and given greater determinative weight when compared with the opinion of a forensic psychologist. In making that finding, I intend no disrespect to the professional standing or acumen of Ms Martens who made her assessment in a less advantageous setting. 4. In my assessment, that conclusion must necessarily negate the concern by the Secretary to the effect that restoration would be contraindicated in this case on account of risk as that concern is based on the opinions of Ms Martens that I have not accepted. 5. It follows that once the Secretary's concerns as to risk are addressed by the amelioration suggested by Dr Baruah, such concerns will most probably recede into the background as just mere possibilities, these should no longer be seen as being real risks. 6. Once that position is recognised, as I do in my findings embedded within these reasons, the effect is to dispell the notion that there is no realistic possibility of the existence of a realistic possibility of a restoration of the children to their parents. 7. In this analysis, I should also refer to the view I expressed to the parties during exchanges, namely, that if the Secretary regarded the mental health of the mother "J" as a true concern of substance, then an arrangement could have been made for her to be medically examined by a psychologist or a psychiatrist pursuant to the power that resides in UCPR, r 23.2. In this Court, any party could have availed themselves of that avenue of investigation. 8. Accordingly, based on Dr Baruah's evidence, and absent contradictory evidence, I consider that Ms Martens' concerns over the mother "J"'s mental health issue to be unreasonably magnified in terms of an assumed basis. Therefore, such concerns should not be given determinative weight in these proceedings. 9. On the foregoing analysis I find that the parents have satisfied the elemental requirements of s 83(1) of the Care Act. Accordingly, pursuant to that provision, I find that there is a realistic possibility of restoration of the children to their parents within a reasonable time. Therefore, pursuant to s 83(7) of the Care Act, the Secretary is directed to prepare a new and different permanency plan in conformity with these reasons. Issue 5 – Whether permanency planning has been adequately addressed 1. In light of my findings that there is a realistic possibility of restoration of the children "D" and "K" into parental care because the risks of harm associated with that process should not be considered to be unacceptable, and where the identifiable risks are considered to be reasonably capable of amelioration, it follows that I find that the Secretary has not appropriately addressed permanency planning in the case of both the child "D" and the child "K". Issue 6 – Aboriginality of the children "D" and "K" 1. The suggestion has been made that the mother "J"'s claim of Aboriginality was made late in the peace. 2. In my opinion, in this case that view is not reasonably supportable on the evidence in light of an important aspect of the material that formed part of the documentary exhibits that I have reviewed in this case. 3. The documentary evidence shows that a record of the mother "J"'s claim of Aboriginality well before the Department became involved in her life: Exhibit "A", Tab 40, p 3215. At that time there was no issue to be litigated which required her to identify a claim of Aboriginality. In my view, this was a sentinel pre-litigation record that suggests a genuine belief of Aboriginal identity on the part of the mother "J". 4. In contrast, the Secretary maintains that the children who are the subject of the appeal are not Aboriginal. 5. In support of that submission, the Secretary placed reliance on a series of propositions that emerged from within the evidence, as follows: 1. On 19 September 2022, Link-up (NSW) stated that evidence of the mother "J"'s Aboriginality was inconclusive, noting that Ancestry has been successfully traced to Ireland, possibly Scotland, England and Germany: Exhibit "A", Tab 11, p 324; 2. In an affidavit by Mr Tim Dauth, affirmed on 14 February 2023, a family history genealogical report was annexed. This was prepared by Mr Dauth, and his colleague, Mr Maxwell Turner, researchers in the employ of the Crown Solicitor's Office: Exhibit "B". Following research, the authors of that report were not able to independently confirm the mother "J"s Aboriginal descent or particularly identify an Aboriginal Ancestor: Exhibit "B". That evidence must be seen to be neutral on the issue. 1. In my view, an important qualifier to that genealogical report was the embedded statement of acknowledgment that there are multiple reasons that may prevent an Aboriginal ancestor from being identified in genealogical research, and that therefore, the results of such research cannot completely rule out the possibility of Aboriginal ancestry: Exhibit "B", p 4, paragraph 16. 2. The question of a person's status as an Aboriginal has been the subject of a range of authoritative judicial considerations: Love v Commonwealth of Australia; Thoms v Commonwealth of Australia (2020) 270 CLR 152; [2020] HCA 3. 3. The issue of the Aboriginality of the mother "J" stands to be decided for the purpose of these proceedings as a question of fact to be determined according to a level of comfortable satisfaction on the balance of probabilities including the drawing of inferences from material that may not be unequivocal: s 93(3) of the Care Act: Hackett (a pseudonym) v The Secretary, Department of Communities and Justice [2020] NSWCA 83, at [32] and [73]. In that case, at [74], it was determined that: "… the Court is expressly empowered to consider a broad range of material, including matters which would not be admissible under the Evidence Act The making of a declaration does not involve one party having a burden of proof, nor is the standard for the Courts state of satisfaction identified. The degree of satisfaction should take into account the purposes of the proposed determination." 1. In submissions made by the Independent Legal Representative of the children, the process referred to in Hackett, as cited above, in juxtaposition to the following submission: "69. To that end, to some extent the handwritten documents and the mother's ongoing self-determination that she is of Aboriginal descent needs to be given significant weight. There is evidence that prior to the proceedings commencing and before [the child "D"] was born the mother identified as Aboriginal (see page 3215) where she has nominated to a health professional that she was Aboriginal. That is not to say she has not also moved away from that position at different times. There may be multiple explanations for that." 1. It must be recognised that due to the unfortunate events of colonial and subsequent history, in these times not all persons of Aboriginal descent are able to prove recognition by the group in question: Love [ibid], at [24]. Different considerations apply to differing cases where a person identifies as being Aboriginal: Love [ibid], at [262]. In that regard, there are social concepts of Aboriginality which are broader than legal concepts: Love [ibid], at [367]. 2. It has been recognised that the differing concepts exist of Aboriginality involving biological descent, self-identification and community recognition, and that contests on such matters may have to be settled in differing forums, whether by Community consensus, custom, or by a Court acting on evidence that may lack inherent specificity: Love [ibid], at [367]-[368], citing Mabo & Ors v Queensland (No 2) [1992] HCA 23; 185 CLR 1, at [604]. 3. Since in this case I have found that there is a realistic possibility of restoration, the issue of the Aboriginality of the mother "J", and therefore her children, is no longer one of prominence in terms of the consideration required by Pt 1 and Pt 2 of the Care Act, but rather, one which is to be resolved within the family and in the community. 4. Here, the Court has limited evidence of Aboriginality. This is because the attempts by the mother "J" to obtain that evidence have proceeded slowly with very limited success. That said, there are several stand out features in the consideration of this case which support a finding of Aboriginality. 5. The first feature is that objectively, before her conflicts with the Secretary under present consideration, the mother "J" identified as Aboriginal: Exhibit "A", Tab 40, p 3215. Accordingly, it cannot be reasonably maintained that she self-identified as Aboriginal late in the peace in order to gain a convenient advantage for the purpose of this case. 6. The second feature is that the mother "J" has made persistent efforts over time to seek confirmation of her Aboriginality. The fact that the organisations she has approached have not yet been able to assist her to reach a point of community acceptance of that status is not a deciding factor. 7. The third feature in the evidence is that the witness "AB", an Aboriginal woman who is an elder, has provided persuasive and unchallenged statements that tend to confirm the mother "J"'s Aboriginal ancestry. Those statements have not been reliably contradicted. 8. In my view, Ms Stone's notes, which record that the mother of the mother "J" does not identify herself as Aboriginal, and whereby she denies her own daughter's Aboriginality (T279.1 – 279.25), are not reliably persuasive. That is so because the statements attributed to her have been made in circumstances of animosity towards her daughter. 9. In circumstances where the genealogical research is inconclusive, where the mother of the mother "J" has not provided reliable contrary evidence, and where "AB" has provided a satisfactory level of proof, for the purpose of this case, I am comfortably satisfied and therefore find on the balance of probabilities, that the mother "J", and therefore by descent, the children "D" and "K", are Aboriginal: s 93(2) of the Care Act. Disposition 1. The appeal filed by the plaintiff parents on 24 May 2022 must therefore be upheld and facilitative orders for a new care plan are 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 children the subject of the appeal into the parental care and responsibility of their appellant parents, within a reasonable period; 2. By 21 April 2023, the Secretary, Department of Communities and Justice, in consultation with the appellants, is to prepare an Amended Care Plan that reflects these reasons for decision; 3. The proceedings are listed for further hearing at 10.00am on 26 April 2023 for consideration of the approval of a suitably staged Amended Care Plan, a copy of which is to be provided to the Associate as soon as it becomes available; 4. The Exhibits are to remain with the Court file pending the further order of the Court; 5. Liberty to the parties to apply on reasonable notice if any further or other orders are required. ********** APPENDIX (43082, docx) APPENDIX II (25714, docx) APPENDIX III (15706, docx) Amendments 03 April 2023 - Coversheet - Legislation Cited: removal of superfluous reference to a statutory provision; Paragraph [229]: typographical error "2020" correction to "2021"; Paragraph [492]: typographical error "fee" correction to "free"; Paragraph [502](9): typographical error "as" correction to "As"; Paragraph [532](2): typographical error "appellant" correction to "appellants" 03 April 2023 - Further corrections to paragraph [229] - previous correction reversed, "2020" is to remain, and "Tab 29" is replaced with "Tab 32" 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: 03 April 2023