District Court New South Wales Medium Neutral Citation: VC v Secretary, Department of Communities and Justice & Ors (No.2) [2024] NSWDC 192 Hearing dates: 7-10, 16 May 2024 Date of orders: 30 May 2024 Decision date: 30 May 2024 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraphs [395]-[396] Catchwords: CHILD WELFARE – care and protection – whether realistic possibility of restoration of care of Child to mother or father – whether all aspects of parental responsibility should be allocated to mother or father – appropriateness of permanency planning -assessment of care plan STATUTORY INTEPRETATION – relevance of human rights of parent or child under international conventions to interpretation and application of Children and Young Persons (Care and Protection) Act 1998 (NSW) COURTS AND JUDGES – complaints by one parent of racial discrimination and structural racism of persons within child protection 'system' alleged to affect decisions adverse to one parent – subsisting complaints to the Australian Human Rights Commission – jurisdiction of this Court to determine such complaints CIVIL PROCEDURE – reasons for orders in interlocutory applications – application during hearing for 'removal' of the legal practitioner acting as the 'Independent Legal Representative' – application for adjournment of closing oral submissions to enable service of additional written submissions – application for 'Mistrial' Legislation Cited: Anti-Discrimination Act 1977 (NSW) Australian Human Rights Commission Act 1986 (Cth) Children and Young Persons (Care and Protection) Act 1998 (NSW), s 8, 9(1), 9(2), 10A, 71(1), 72(1), 72(2), 73(1), 73(7), 78(1), 78(2), 78(2A), 78A(1), 78A(3), 79(1),79(3), 80, 82, 83(1), 83(5), 83(7), 83(7A), 83(8A), 91(1)-(8), 93(3), 93(4) Children and Young Persons (Care and Protection) Amendment (Family is Culture) Act 2022 Civil Procedure Act 2005 (NSW), ss 56-60 Convention on the Rights of the Child [1991] ATS 4 Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 4, 6A, 9, 11 Evidence Act 1995 (NSW), s 79, 128, 140(2) International Convention on the Elimination of All Forms of Racial Discrimination [1975] ATS 40 Interpretation Act 1987 (NSW), s 34 Racial Discrimination Act 1975 (Cth), ss 9-11 Sex Discrimination Act 1984 (Cth) Cases Cited: AJ v R [2022] NSWCCA 136 Aziz (a pseudonym) v R [2022] NSWCCA 76; Barngarla Determination Aboriginal Corporation RNTBC v District Council of Kimbala (No.2) (2020) 275 FCR 669 Cameron v Human Rights and Equal Opportunity Commission & Anor (1993) 46 FCR 509 Director General Department of Communities & Justice v Dessertaine [2003] NSWSC 972 JL v Secretary Department of Family and Community Services [2015] NSWCA 88 Johnson v Page [2007] Fam CA 1235 LPDT v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2024] HCA 12 M v M (1988) 166 CLR 69 Munda v Western Australia (2013) 249 CLR 600 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 Re Alistair [2006] NSWSC 411 Re Campbell [2011] NSWSC Re Henry; JL v Secretary, Department of Family and Communities Services [2015] NSWCA 89 Re Tanya [2016] NSWSC 794 Re Tracey (2011) 80 NSWLR 261 Secretary, Department of Communities and Justice and Fiona Farmer [2019] NSWChC 5 SS v Department of Human Services (NSW) [2010] NSWDC 2010 VC v Secretary of Department of Communities & Justice [2024] NSWDC 166 Waters v Public Transport Corporation (1991) 173 CLR 349 Western Australia v Ward (2002) 213 CLR 1 Texts Cited: Equality Before the Law Bench Book The Honourable Justice Stephen Gageler AC, "Alternative Facts in the Courts" (2019) 93 ALJ 585 Category: Principal judgment Parties: The Father (Plaintiff) The Secretary of the Department of Communities and Justice (First Defendant) The Minister for Families and Communities (Second Defendant) The Mother (Third Defendant) Representation: Counsel: Plaintiff (self-represented) Ms S Mahony (First and Second Defendant) Ms P Jones (Third Defendant) Mr P Ryan (Solicitor Advocate, Independent Legal Representative) Solicitors: NSW Crown Solicitor's Office (First and Second Defendant) Legal Aid NSW (Third Defendant) P Ryan Solicitors (Independent Legal Representative) File Number(s): 2023/00288971 Publication restriction: Non-publication order pursuant to s 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). Parents' and relatives' names are also anonymised. JUDGMENT Index Index Background Relevant legislation and principles The establishment phase The welfare or 'placement' phase Realistic possibility of restoration 'Unacceptable risk' Permanency planning Orders for parental responsibility Appeals Conduct of the hearing Dealing with the volume of evidence Application to 'remove' Mr Ryan as ILR Compliance with directions for service of written submissions The application for supplementary submissions Application to remove Mr Ryan and Ms Pettitt Application for a Mistrial Application for orders The Issues The Facts Particular aspects of the Secretary's evidence in the Children's Court proceedings The contact visit reports (Tab 10A, CB 1101-1351) The Amended Care Plan (Tab 9, CB 1064-1084) The Father's 'letter of apology' (Tab 24) Excerpts from Children's Court Hearing The s 82 Report to the Children's Court. Deborah Taylor's Evidence Mr Chance's evidence Mr Chance's cross-examination Ms Veles' evidence The Mother's evidence The Kid Xpress reports The Father's evidence in this Court The Tune Report Gay McDougall Dominique Allen Andrew Jakubowicz Professor Davis The hearing in the Children's Court The Magistrate's reasons Credit findings Ms Taylor Mr Chance Ms Veles The Mother The Father Addressing the Father's general submissions The limits of my role and functions The DCJ's failure to apply statistical analysis and 'western peer-reviewed academic sources' Rights under discrimination law The Racial Discrimination Act, its interpretation & enforcement The UN Convention on the Rights of the Child Submissions Father's submissions about the CROC The Secretary's submissions Consideration Racial discrimination The influence upon the Care Act of provisions in the CROC The Father's emphasis upon structural racism in Australia Issue 1: Were the children in need of protection? Submissions on First Issue The Father's submissions (MFI 2; oral submissions on the application to exclude evidence: T 231-254 The Secretary's submissions The Mother's submissions The ILR's submissions Consideration of Issue 1 Issue 2(a): Realistic possibility of restoration to the Mother within 2 years The Secretary's submissions (MFI 1 and MFI 16) General submissions The Secretary's submissions directed to the Mother The Mother's submissions (MFI 4 and MFI 14) ILR's submissions concerning the Mother (MFI 15) The Father's submission Consideration of issue 2(a) Issue 2(b): Whether reasonable possibility of restoration to Father within reasonable time The Secretary's submissions directed to the Father The Mother's submissions The ILR's submissions regarding the Father's position (MFI 15) The Father's submissions Consideration of issue 2(b) Issue 3: Parental responsibility Submissions on the Third Issue The Secretary's submissions The Mother's submissions The ILR's submissions The Father's submissions Consideration of Issue 3 Issue 4: Adequacy of permanent planning The Amended Care Plan Submissions on the Fourth Issue The Secretary's submission The submissions of the Mother and ILR The Father's submissions Determination of the Fourth Issue Summary & Orders Background 1. This proceeding concerns an appeal from a decision of the Children's Court of New South Wales. 2. The proceeding centres upon the care and protection of the Child, and to the appropriateness of his restoration to the plaintiff (the Father) or the third defendant (the Mother). The Child was born in March 2017 and is now over 7 years of age. 3. From January 2020 through early June 2022, the Department of Communities & Justice ('DCJ') received a series Risk of Significant Harm ('ROSH') reports with respect to the Child which were primarily associated with the perpetration of domestic violence by the Father against the Mother. 4. In particular, from about April 2020, relations between Father and Mother were so strained that both were reported to have suicidal ideation. The DCJ received reports that each of them were hospitalised for certain periods of time. 5. On 29 April 2021 the Federal Circuit Court of Australia made final consent orders by which (materially): the Mother obtained sole parental responsibility for the Child, the Child was to live with the Mother and the Child was to "spend time" with the Father "as agreed between the Mother and Father". 6. On 8 June 2022, in an interview with police, the Father agreed that the Child was unsafe; although he contended that this was because of the Mother's poor parenting capacity. 7. On 14 June 2022 the Mother reported to the DCJ that the Father had retained the Child without her consent and that, notwithstanding her attempts to have him returned, the Father refused to return the Child to her care. 8. The DCJ decided to intervene. On 15 June 2022, the Child was removed from the Father's care at Eastwood police station and was assumed into the care of the Minister. The stated reasons for the Child's removal were as follow: "[the Child] is subject to Federal Circuit Court of Australia Orders giving his mother … full parental responsibility to the exclusion of the father. [the Child] has witnessed domestic violence by his father to his mother. The Father has substantiated physical, psychological and coercive violence towards the Mother. On 12 June 2022 the Father took [the Child] to his residence during an agreed contact time. He refuses to return [the Child] to the mother's care. He has blocked the Mother's phone and email contact and stated that he will be caring for (the Child) now. (the Child) is in danger of physical and psychological harm by his father. The lethality and danger risk to [the Child] is further increased by the Mother's attempts to enforce the Court Orders." 1. On 20 June 2022, the Secretary filed an application in the Children's Court initiating care proceedings with respect to the Child. The grounds for the application were identified as follows: "1. Section 71(1)(c) the child or young person has been, or is likely to be, physically or sexually abused or ill-treated. 2. Section 71(1)(d) subject to subsection (2), the child's or young person's basic physical, psychological or educational needs are not being met, or are likely not to be met, by his or her parents or primary care-givers. 3. Section 71(1(e) the child or young person is suffering or is likely to suffer serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which he or she is living " 1. On 23 June 2022, an interim care order (pursuant to s 70 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the 'Care Act') was made allocating all aspects of parental responsibility for the Child to the Minister for Families and Communities (the Minister). 2. On 8 July 2022, a summary of proposed plan (SOPP) was provided to the parties. An SOPP essentially serves a purpose of identifying and assisting parents to understand what is required for them to address the matters that led to the assumption of the Child into care. 3. On 28 July 2022, by consent and on a 'without admissions' basis, the Children's Court of New South Wales (Magistrate Crompton) expressed a determination (under s 72(1) and based on grounds identified in ss 71(1)(d) and (e) of the Care Act) that the Child was in need of care and protection. 4. On 22 November 2022, delegates of the Minister determined that the Father's contact with the Child would be suspended. The explanation for this was an opinion that the Father's behaviour during family time was inappropriate. 5. On 1 February 2023, the Secretary filed an Amended Care Plan. Most materially, the Secretary's recommendations were that the Child be restored to the Mother's care and that she should assume parental responsibility for all aspects, after a period of the Minister exercising parental responsibility, until the Child reached 18 years of age. This was subject to the Minister retaining parental responsibility for the Child's contact with the Father. This Care Plan also recommended that prohibition orders be made against the Father with a view to managing the violent dynamics between the parents. 6. A final hearing in the Children's Court occurred before Magistrate Crompton, spread over certain days in February and May 2023. 7. On 4 September 2023, Magistrate Crompton made findings that there was "no reasonable prospect of restoration to the father" in the case of each Child. Those reasons were delivered in an unpublished judgment (Tab 39 of the Court Book ('CB')). 8. On 4 September 2023, final orders were made that: 1. Parental responsibility for the Child was allocated to the Minister for 9 months and thereafter to the Mother, except for aspects of contact, which remained with the Minister until the Child reached 18 years of age; 2. For the Child to be placed under the Secretary's supervision for 12 months, following the conclusion of the 9 month period that the Minister had parental responsibility; and 3. Restraining the Father from approaching or contacting the mother and Child, or attending at their home for the Child's school. 1. On 11 September 2023, the Father commenced this appeal, by Summons, against final orders made on 4 September 2023. The Father sought an order that he be allocated all aspects of parental responsibility for the Child. 2. The Father's stated grounds of appeal ran to 58 paragraphs and comprised multiple assertions of fact and submissions. The grounds were fairly characterised by Counsel for the Secretary and Minister as primarily consisting of complaints about the administration of the child protection system and the Children's Court, and in particular, complaints about: 1. Racism and racial discrimination in Australia and amongst members of the Judiciary; 2. 'Serious' maladministration by government departments and officials, as well as members of the legal profession; 3. Derogations of law; and 4. Various impairments of the Father's and Child's human rights and fundamental freedoms. 1. Additionally the Father complained about racist individuals and, more generally, about process and procedure in the Children's Court proceeding and (eventually also) in this appeal proceeding. 2. By their opening addresses, Counsel for the Secretary and the Minister and Counsel for the Mother commonly identified the questions they regard as requiring the Court's determination. 1. Is there a realistic possibility of restoration to the Father within a reasonable time? 2. Is it in the best interests of the Child for the Mother to continue to retain parental responsibility (save for contact with the Father, whose responsibility should be held by the Minister)? 3. Should the court be satisfied as to the permanency planning that has been proposed? 1. The Father also agreed that those issues arose for this Court's determination (T 35-37). 2. The Secretary and Minister and the Mother's Counsel submit that the answers to these questions are (respectively): 1. No. 2. Yes. 3. Yes. 1. Ultimately, the Independent Legal Representative agreed with these answers. 2. The Father submitted that the answers to those questions were: 1. Yes. 2. No. 3. No. 1. The Father invited me to make other findings, which I refer to below when describing his submissions. The Father, separately, also contended that another issue arose was whether the Child was at the time of the initiating application, 'in need of protection'. The defendants disputed that this was in issue, arguing that the Father had conceded the issue in the Children's Court on 28 July 2022. The Father acknowledged that a concession had, indeed been made by his then lawyer, but said that he was not bound by it. Relevant legislation and principles 1. Section 8 of the Care Act materially provides: "The objects of this Act are to provide-- (a) that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and (a1) recognition that the primary means of providing for the safety, welfare and well-being of children and young persons is by providing them with long-term, safe, nurturing, stable and secure environments through permanent placement in accordance with the permanent placement principles….." 1. Section 9 of the Care Act materially provides: (1) This Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount. (2) Subject to subsection (1), the other principles to be applied in the administration of this Act are as follows— (a) Wherever a child or young person is able to form his or her own views on a matter concerning his or her safety, welfare and well-being, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child or young person and the circumstances. (b) In all actions and decisions made under this Act (whether by legal or administrative process) that significantly affect a child or young person, account must be taken of the culture, disability, language, religion and sexuality of the child or young person and, if relevant, those with parental responsibility for the child or young person. (c) In deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child's or young person's development. (d) If a child or young person is temporarily or permanently deprived of his or her family environment, or cannot be allowed to remain in that environment in his or her own best interests, the child or young person is entitled to special protection and assistance from the State, and his or her name, identity, language, cultural and religious ties should, as far as possible, be preserved. (e) If a child or young person is placed in out-of-home care, arrangements should be made, in a timely manner, to ensure the provision of a safe, nurturing, stable and secure environment, recognising the child's or young person's circumstances and that, the younger the age of the child, the greater the need for early decisions to be made in relation to a permanent placement. (f) If a child or young person is placed in out-of-home care, the child or young person is entitled to a safe, nurturing, stable and secure environment. Unless it is contrary to his or her best interests, and taking into account the wishes of the child or young person, this will include the retention by the child or young person of relationships with people significant to the child or young person, including birth or adoptive parents, siblings, extended family, peers, family friends and community. (g) If a child or young person is placed in out-of-home care, the permanent placement principles are to guide all actions and decisions made under this Act (whether by legal or administrative process) regarding permanent placement of the child or young person. 1. The 'paramountcy principle' in s 9(1) operates to the exclusion of the rights, interests or expectations of parents. Thus, the safety, welfare and well-being of a child removed from parents is the prime indicator of the paramountcy principle. The establishment phase 1. Section 71(1) of the Care Act relevantly provides: (1) The Children's Court may make a care order in relation to a child or young person if it is satisfied that the child or young person is in need of care and protection for any reason including, without limitation, any of the following-- …….. (c) the child or young person has been, or is likely to be, physically or sexually abused or ill-treated, (d) subject to subsection (2), the child's or young person's basic physical, psychological or educational needs are not being met, or are likely not to be met, by his or her parents or primary care-givers, (e) the child or young person is suffering or is likely to suffer serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which he or she is living." 1. Section 71 represents what is well understood to be the 'establishment' precondition, whose rationale has been described as a safeguard against the State's arbitrary intervention into the lives of children and their families [1] . 2. The expression 'care and protection' is not specifically defined – a finding can be made "for any reason." Notwithstanding that the rules of evidence do not apply (s 93(3)), the Court must draw its conclusions from material that is probative, so as to avoid decision-making which might appear capricious, arbitrary or without foundational material [2] . 3. It is not incumbent on the court to determine all the bases proffered for making a care order regardless of the basis on which the order was made being itself sufficient to support the making of the order [3] . 4. Section 72 provides that: "(1) A care order in relation to a child or young person may be made only if the Children's Court is satisfied that the child or young person is in need of care and protection or that even though the child or young person is not then in need of care and protection-- (a) the child or young person was in need of care and protection when the circumstances that gave rise to the care application occurred or existed, and (b) the child or young person would be in need of care and protection but for the existence of arrangements for the care and protection of the child or young person made under section 39A (Care responsibility on death of guardian or carer with full parental responsibility), section 49 (Care of child or young person pending care proceedings), section 69 (Interim care orders) or section 70 (Other interim orders). (2) If the Children's Court is not so satisfied, it may make an order dismissing the application." 1. By a combination of s 71(1) and s 72, it is only if the Court is satisfied that a child is in need of care and protection that the Court might make final care orders. 2. It is sufficient for the Secretary to prove that: (a) the Child was in need of care and protection when the initiating care application was brought and (b) but for the Secretary's effective intervention, by the Child's removal, the Child would (still) be in need of care and protection. If the issue was a live one (which, for the reasons below, I do not consider it is), I accept the Secretary's submission. The welfare or 'placement' phase 1. Section 83 of the Care Act materially provides: (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. …. (5) The Children's Court is to decide whether to accept the Secretary's assessment of whether or not there is a realistic possibility of restoration within a reasonable period-- (a) in the case of a child who is less than 2 years of age on the date the Children's Court makes an interim order allocating parental responsibility for the child to a person other than a parent--within 6 months after the Children's Court makes the interim order, and (b) in the case of a child or young person who is 2 or more years of age on the date the Children's Court makes an interim order allocating parental responsibility for the child or young person to a person other than a parent--within 12 months after the Children's Court makes the interim order. …….. (7) The Children's Court must not make a final care order unless it expressly finds-- (a) that permanency planning for the child or young person has been appropriately and adequately addressed, and (b) that prior to approving a permanency plan involving restoration there is a realistic possibility of restoration within a reasonable period, having regard to-- (i) the circumstances of the child or young person, and (ii) 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. (7A) For the purposes of subsection (7)(a), the permanency plan need not provide details as to the exact placement in the long term of the child or young person to whom the plan relates but must provide the further and better particulars which are sufficiently identified and addressed so the Court, prior to final orders being made, can have a reasonably clear plan as to the child's or young person's needs and how those needs are going to be met. …. (8A) "reasonable period" for the purposes of this section must not exceed 24 months. …. Realistic possibility of restoration 1. The requirements in s 83(1) represents what is commonly regarded as the beginning of the 'welfare' or 'placement' phase during which planning for the child is undertaken. The premise is that the Secretary assesses (and the Court must decide whether to accept the assessment) whether there is a realistic possibility of restoration of the child to the parent(s) within a reasonable period having regard to: (a) the circumstances of the child (s 83(1)(a)) and (b) evidence (if any) that the parent(s) are likely to be able to satisfactorily address the issues that led to the child's removal (s 83(1)(b)). The Court then considers whether to accept the Secretary's assessment (s 83(5)) 2. There is no definition of 'realistic possibility of restoration.' But the Court may take into account what Senior Magistrate Mitchell submitted to the Special Commission of Inquiry into Child Protection Services in New South Wales, which was as follows: "The Children's Court does not confuse realistic possibility of restoration with the mere hope that a parent's situation may improve. The body of decisions established by the court over the years requires that usually a realistic possibility be evidenced at the time of hearing by a coherent program already commenced and with some significant 'runs on the board.' The court needs to be able to see that a parent has already commenced a process of improving his or her parenting, that there has already been significant success and that continuing success can confidently be predicted." 1. In Re Campbell [2011] NSWSC (Slattery J at [55]-[56]) and Re Tanya [2016] NSWSC 794 (Rein J at [50]-[51]), observations were made construing the expression 'realistic possibility of restoration'. The following principles were distilled regarding that expression: * a possibility means less than a probability, but must be something that is not impossible (the test is not the balance of probabilities); * the concept is not to be confused with mere hope that the parent's situation will improve: it must be 'realistic,' that is not something that is fanciful, sentimental, idealistic, or based upon 'unlikely hopes for the future.' It needs to be 'sensible' and 'commonsensical;' * the concept can be established, at the time of the hearing, by a coherent program commenced to improve her parenting, with significant 'runs on the board' so that continuing success can be confidently predicted. * the determination is to proceed in the context of the Care Act, read a whole, including the objects and other principles applied in its administration, including the notion of unacceptable risk of harm. 'Unacceptable risk' 1. Associated with this principle are two matters which were emphasised by Judge Johnstone, when his Honour was the President of the Children's Court, in Secretary, Department of Communities and Justice and Fiona Farmer [2019] NSWChC 5 at [67]-[71]. These were, first, that the proper test to be applied in care proceedings relating to final orders is whether there is "unacceptable risk to the child." 2. In that regard, it was unnecessary to make a positive finding that 'abuse' had occurred but if it was to be made, it should be on the probabilities [4] . Whether there is an 'unacceptable risk' is to be assessed from the accumulation of proven factors [5] . Secondly, the Court must examine what the future might hold for the Child and, if satisfied that the risk exists, the Court must weigh the seriousness of the risk and consider whether the risk might be satisfactorily managed or ameliorated. In short, the Court must examine the likelihood of the feared outcome occurring and the severity of any possible consequences. This is a predictive exercise. 3. The Secretary elaborated further on the matters identified as pertaining to an assessment of the risk of harm and whether it is 'unacceptable'. Counsel submitted, and I accept, that the Court examines the risk of harm to the Child, which is not restricted to any physical risk, but any matter that compromises the safety, welfare and well-being of the Child. The risk assessment is a balancing exercise: weighing the risk of detriment to the Child as against the benefit to the Child of parental access. The parents' insight is relevant when assessing risk. It was said in SS v Department of Human Services (NSW) [2010] NSWDC 2010 that: ".. the refusal, or failure to acknowledge the abuse, leads to comfortable satisfaction that there remains a continuing likelihood of physical abuse or ill-treatment, in respect of [subject children]…" 1. The combined operation of ss 83(1), (5) and (8A) is such that the Secretary must assess (and the Court must decide whether to accept such assessment) whether there is a realistic possibility of the children being restored to their parents within a period of 2 years. Permanency planning 1. The Secretary is required to undertake planning for the Child's future which generally requires the Secretary to prepare a formal Care Plan that addresses the child's needs. 2. By s 78(1) of the Care Act, where the Secretary applies for an order for removal of a child from the care of his or her parents, a care plan must be submitted to the Children's Court before final orders are made. Before the Court makes a final order for removal of a child from a parent's care and protection or for allocation of parental responsibility, the Court is required to "consider" the care plan presented to it by the Secretary (s 80). 3. The content of a care plan is prescribed by s 78(2) of the Care Act, which includes provision for the allocation of parental responsibility, the kind of placement proposed, arrangements for contact and the services that need to be provided. Although a permanency plan does not need to provide details as to the exact placement in the long-term, it must be sufficiently clear and particularised in a way that provides the Court with a reasonably clear picture as to the way in which the Child's needs, welfare and well-being will be met in the foreseeable future (s 78(2A)). 4. A final care order cannot be made unless the Court also finds that permanency planning has been appropriately and adequately addressed (s 83(7)). 5. Permanency planning means the making of a plan that aims to provide a child with stable, preferably permanent, placement that offers long-term security and meets the Child's needs (s 78A(1)). Permanent placement is made in accordance with the permanent placement principles prescribed by s 10A and endeavours to avoid instability and uncertainty arising through a succession of different placements or temporary care arrangements. 6. Section 10A sets out effectively a hierarchy which, to paraphrase, is as follows: 1. If it is practicable and in the best interests of the Child, the first preference for permanent placement is for the Child to be restored to the parent(s). 2. The second preference for permanent placement is guardianship of a relative, kin or other suitable person. 3. The next preference (except in the case of an Aboriginal or Torres Strait Islander child) is for the Child to be adopted. 4. The last preference is for the Child to be placed under the parental responsibility of the Minister. 5. In the case of an Aboriginal or Torres Strait Islander Child (assuming restoration, guardianship or allocation to the Minister is not practicable or in the Child's best interests) the Child is to be adopted. Orders for parental responsibility 1. Once the Court finds that a child is in need of protection, there are a variety of orders that might be made in the allocation of 'parental responsibility' (as that expression is defined in s 3). The Court might, for example, allocate complete responsibility to the Minister, or only partial responsibility shared with one or both of the parents (s 79(1)). 2. Section 79(2) provides the facility for specific aspects of parental responsibility to be allocated. A non-exhaustive list includes: "(a) the residence of the child or young person, (b) contact, (c) the education and training of the child or young person, (d) the religious and cultural upbringing of the child or young person, (e) the medical and dental treatment of the child or young person". 1. By s 79(8), the Children's Court must not make an order allocating parental responsibility jointly between two or more persons unless it is satisfied that the persons can work together co-operatively in the best interests of the Child or young person. 2. The Court must not make an order allocating parental responsibility unless it has given particular consideration to the permanent placement principles and is satisfied that the order is in the best interests of the Child (s 79(3)). In effect, the Court is required to give particular consideration to the principle of the least intrusive intervention and be satisfied that any other order would be insufficient to meet the needs of the Child (Farmer at [122]). Appeals 1. Section 91 of the Care Act provides: "(1) A party to proceedings who is dissatisfied with an order (other than an interim order) of the Children's Court may, in accordance with the rules of the District Court, appeal to the District Court against the order. (2) An appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence on which the order was made, may be given on the appeal. (3) Without limiting subsection (2), the District Court may, instead of taking fresh evidence, decide to admit as evidence the transcript of proceedings before the Children's Court and any exhibit tendered during those proceedings. (4) In addition to any functions and discretions that the District Court has apart from this section, the District Court has, for the purposes of hearing and disposing of an appeal, all the functions and discretions that the Children's Court has under this Chapter or Chapter 6. (5) Without limiting the generality of subsection (4), the District Court may confirm, vary or set aside the decision of the Children's Court. (6) The decision of the District Court in respect of an appeal is taken to be the decision of the Children's Court and has effect accordingly. (7) Subject to any interlocutory order made by the District Court, an appeal does not affect the operation of the order appealed against or prevent the taking of action to implement that order. (8) The provisions of Chapter 6 apply to and in respect of the hearing of an appeal under this section in the same way as they apply to and in respect of the hearing of a care application under that Chapter." 1. On such appeals, a Judge of this Court effectively stands in the shoes of the Children's Court and is required to exercise the functions of that Court afresh. 2. That means, amongst other things, that the onus of proof falls upon the Secretary as to the assessment which is submitted to the Court. This is on the balance of probabilities (s 93(4) of the Care Act). The Briginshaw standard applies. 3. More generally, the test for balance of probabilities is set out in s 140(1) of the Evidence Act 1995 (NSW), which is not incompatible with the common law Briginshaw standard. One of the matters in s 140 concerns the gravity of the matters alleged. One recurring theme from the Father's submissions is his intractable belief that a large number of persons who he has encountered in the child protection system (and the Judiciary) are indelibly 'racist' against him and the Child. On the subject of standard of proof in a not dissimilar context, the High Court observed that (under the common law): "The ordinary standard of proof required of the party who bears the onus in civil litigation in this country proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct" [6] (emphasis supplied). 1. The appeal is substantively conducted as a hearing de novo. It is unnecessary for an appellant to demonstrate actual error by the Magistrate of the Children's Court. But many, perhaps most, of the grounds of appeal do contend that many errors were committed by the Magistrates of the Children's Court. 2. Counsel for the Secretary and Minister acknowledged that although this Court is not bound by findings or reasoning of the Children's Court, the Court is entitled to consider them. That appears to be right, given the special expertise and experience of the Magistrates of that Court. Conduct of the hearing 1. The Court's Practice Note indicates that, ordinarily, the evidence in the appeal will be the evidence that was in the Children's Court, as supplemented by new evidence. This accords with s 91(3) of the Care Act. Dealing with the volume of evidence 1. There was an abundance of new evidence; especially by the Father. 2. At this hearing, the Court was presented with a 7 volume Court Book (containing 5,898 pages) essentially comprising nearly all of the evidence in the Children's Court, virtually all of the transcript of the hearing in the Children's Court, the reasons for the Magistrates' decisions, plus all of the evidence that both the Father and the Secretary had amassed during the proceeding in this Court. Faced with this mountain of material, I indicated to all parties that they should not assume that reference will be made, for the purpose of these reasons, to evidentiary material not brought specifically to the Court's attention (T 46.44). 3. At the conclusion of evidence, and taking into account the parties' views and (for the most part) their consent, directions were made for the parties to prepare sequenced closing written submissions with stipulated page limits: the Secretary and Minister and Mother, and ILR were directed to file and serve submissions first (all with a limit of 15 pages) and the Father was directed to file and serve his closing written submissions 2 days later (with a limit of 35 pages) (T 272-273). The following two days were to be occupied by closing oral submissions by the parties, in the same order, with the Secretary's Counsel given an opportunity to make oral submissions in reply. 4. Prior to the adjournment after close of evidence, I invited the parties to focus their submissions on the factual findings they wanted to me to make, with supporting evidentiary references. I reminded the parties that they could not assume that I would consider evidence that they had not referred me to in their written or oral submissions (T 275). Application to 'remove' Mr Ryan as ILR 1. After the evidence was closed (on 10 May 2024) and directions had been made for the parties to file submissions, my Associate received three emails from the Father and, at my direction, supplied to the Father an email in response (MFIs 10-13 (incl). The emails largely speak for themselves. However, in connection with the Father's application to remove Mr Ryan as the Independent Legal Representative, I indicated in my Associate's email (MFI 13) my intention to state reasons for rejecting that application in this Judgment. I now briefly give those reasons. 2. The Father's email (MFI 12) appeared to proceed from the assumption that because the Office of the Legal Services Commissioner and an earlier lawyer acting for the Mother in earlier proceedings acted in a way that detrimentally affected the Father's interests, then the same logic should apply to Mr Ryan. It appeared on the face of the email that the Father had contemplated seeking Mr Ryan's effective removal back in October 2022. 3. Section 99(1) of the Care Act confers power on the Children's Court to appoint an independent legal representative. The role of that person is addressed in s 99D. There is no express power in the Children's Court to revoke a person's appointment as independent legal representative; although arguably, such power may be implied. But even if it was implied, and in the absence of indicia as to when such power could be exercised, the Court already has the jurisdiction or power to restrain a lawyer from acting for a party, there are established criteria for doing so in general civil proceedings and difficult to conceive that such implied power to restrain a person acting as an ILR would extend beyond such general criteria. The Court has a jurisdiction to restrain lawyers from acting, typically because of conflicts of interest or more generally, because the lawyer's continued representation would be inimical to the administration of justice. 4. It did not appear to me obvious from the Father's email that any argument was made that Mr Ryan's continued brief to appear as ILR infringed either of those precepts. Nothing was shown to suggest any conflict of interest or duty in Mr Ryan acting as ILR (to the contrary, the implication of many of the Father's submissions proceeded on a coincidence of his interests and the interests of the Child, exemplified by his submission that both had certain human rights relating to religion). In particular, nothing was indicated (in MFI 12) to show how Mr Ryan has acted otherwise in accordance with proper professional standards, as distinct from the Father's own (unspecified and subjective) opinions as to how an ILR should act. 5. Further, it appeared that the Father had contemplated moving for Mr Ryan's removal in October 2022 yet only brought the application on the day before Mr Ryan was due to prepare written submissions after a 4-day hearing. To delay the bringing of such application, for so long, and to lodge it as the Father did on the morning that Mr Ryan's submissions were due, would provide discretionary reasons in themselves for rejecting the application in any event. One possible inference, which need not be determined, was that the timing of the application was brought by the Father to maximise occasion vexation and bring to bear other influence upon Mr Ryan [7] . 6. This is why I rejected the Father's application. 7. Curiously, however, the next (working) day (14 May 2024), the Father sent another email to my Associate (MFI 17) in which he denied actually bringing any application to remove the Father but if he had, it was by mistake. 8. The fact is that the Father did make application to the Court for Mr Ryan's removal. The Father's email not only fortified, of course, my decision, but fortifies my view that the application should not have been made at all in the circumstances (including timing) that it was. Compliance with directions for service of written submissions 1. The Secretary and Minister (MFI 16), the Mother (MFI 14) and the ILR (MFI 15) all supplied their closing written submissions by the stipulated date (13 May 2024). All of them were within the 15 page limit stipulated in the Court's directions (and none of the submissions had included any annexures of an evidentiary kind to the written submissions in each case). The content of those respective written submissions, with reference to the font, was clearly legible. 2. On 15 May 2024, the Father emailed his written submissions (MFI 18). The actual submissions ran to 30 pages but were barely legible (having regard to the size of the font). The Father separately relied upon further annexures. One of those documents was Professor Megan Davis' 'Family is Culture Review report' (2019), which accounted for 494 pages, David Tune AO's 'Independent Review of Out of Home Care' (June 2018), which accounted for 122 pages, along with multiple journal reports concerning Australian discrimination law and the need for indigenous guardians in child protection cases; along with miscellaneous news articles. (I have not gone through the oppressive task of ascertaining whether any or all of these annexures duplicated or were additional to the evidence the Father adduced in the appeal proceeding). 3. The body of the written submissions of 15 May 2024 commenced as follows: "The Application a. I apply to nullify the order that [the Father] provide his written submissions by 2 pm on Wednesday, 15 May 2024. b. I applied an order be made for [the Father] to provide his written submissions by 10:00am Wednesday, 23 May 2024 (sic). c. A (sic) apply for the SAME number of additional pages, 15 pages, for Child Care Act matters. This document is about discrimination law and Mr Ryan and the Mistrial application. d. I (sic) apply that Mr Ryan and Ms Pettitt be removed from the case, there (sic) vis a vis Mr Barber was filed into evidence the reasons for that application (which was never acknowledged because Mr Barber lied to Judge Mathew Myers and said "I don't know why I'm here". e. I apply for a mistrial to be declared for the Appeal trial and the Children's Court trial. f. I apply for other orders in the body of the text." 1. Before I address this application, it is also pertinent to note some further procedural events subsequent to the Father bringing his application. 2. At 8:17am on 16 May 2024, the Father emailed to my Associate 4 more pages of written submissions (MFI 20). Attached to this email were annexures which I have been informed amounted to 786 pages. 3. Further, at 8:49am on 16 May 2024, the Father emailed my Associate. This also constituted further written submissions. At the conclusion of this email, I directed my Associate to email the Father, indicating that I would not receive further written documents whilst in Chambers, and if he wanted me to have regard to further written documents (including communications), he would need to present them in Court when the matter resumed for closing oral submissions later that same morning. The reason for this was that the burden of printing out all the email communications and attachments is simply too much for my Associate to bear. Whilst exceptionally I might ask my Associate to print off a document for a party, especially when needed in Court urgently, more generally, it is not the responsibility of Judges' staff to supply a printing service for parties. 4. Shortly after receipt of the Father's submissions sent on 15 May 2024, I arranged for my Associate to email to the Father that the Application was refused, and I would give reasons in this judgement. Those reasons are as follows. The application for supplementary submissions 1. Paragraphs (a) and (c) of the application go together. The effect was to adjourn the hearing for another week to enable the Father to prepare another 15 pages of written submissions (it was not indicated whether the Father meant that this number was exclusive or inclusive of any further 'annexures' he might be inclined to add). 2. As was apparent on the face of the transcript (T 272-274), the Court was concerned about the parties supplying an unlimited number of pages in written submissions. The Court was mindful of the tendency of the Father, in particular, to place excessively voluminous evidence before the Court before important procedural events: in the Children's Court for example, the Father (a) served 5 affidavits in close proximity to the commencement date of that hearing (6 February 2023) featuring many criticisms of lawyers in the proceeding; and (b) served approximately 10 affidavits prior to the second day of the hearing (16 March 2023), some of which contained offensive statements about Crompton CM during the subsistence of a hearing before his Honour. 3. A further tendency of the Father was to supply the Court with a deluge of paperwork, on a wide range of social and political issues which (as I will later explain) had tenuous relevance to the issues I have to determine in his vast number of affidavits in this proceeding. The nature of those papers is referred to later in these reasons. The Father prepared over 80 affidavits in this appeal proceeding alone. Many of those affidavits themselves represented an amalgam of (opinion) evidence and submissions. The Father has an associated tendency to file paperwork in the expectation that it will receive the attention to whom he directs it. This was manifested, most obviously, in the communications to DCJ caseworkers which led the DCJ to institute a communications plan to receive communications; but also in the volume of affidavits he submitted in the Children's Court and in this Court. Such tendencies, left unchecked, is not compatible with a party's obligation (s 56(3)) to assist the Court to discharge its cardinal obligation under s 56(1) of the Civil Procedure Act 2005 (NSW) and especially s 60 of that legislation. 4. Further, the parties had already supplied the Court with opening outlines of submissions setting out their cases at the outset of the hearing. In the case of the Secretary and the Mother their closing written submissions substantially reproduced their (respective) opening outlines of written submissions. At any rate, it was important that all parties be disciplined in their closing written submissions. 5. The other parties complied with their page limits (all 15 pages) and they did so within a lesser period of time (effectively the next working day after evidence had closed on Friday, 10 May) than that which had been given to the Father (two working days after service of the defendants' submissions). Acknowledging that the Father was effectively pitted against a range of opponents adverse to his interests, the existing page limit (35 pages) for the Father was fair and reasonable. 6. There is a certain irony, given his relentless complaints of racial discrimination against many observers or participants in this case (including other lawyers, the sheriff's staff, and indeed myself) by his requests for further accommodation, by this application in which the Father sought an indulgence, even preferential treatment or advantage. 7. The only explanation given for an application to make further submissions for another week (plus) was the Father's stated willingness to make submissions about 'Child Care Act' matters, in the asserted contradistinction to MFI 18 which the Father characterised as being concerned with 'discrimination law and applications he wanted to agitate against Mr Ryan and the 'Mistrial'. I do not accept the distinction that the Father drew in this regard. The Father's submissions in MFI 18 referred to (and often duplicated the content of) many evidentiary items in this appeal proceeding. That evidence was peppered with academic views of anti-discrimination law and sociological or historical views about racism in 'Western' countries, including this country. 8. At any rate, it was up to the Father to determine for himself the content of his written submissions after having been served with the other parties' submissions. If he believed that there was a difference between what he wanted to say about 'discrimination law, and applications he wanted to agitate against Mr Ryan and the 'Mistrial' and 'Childcare Matters', it was a matter for him to properly organise, and discipline himself in a way that allowed him to deal with all subject matters that he sought to address in his oral submissions. 9. Finally, it remained the case that the Father still had the opportunity in closing oral submissions to deal with 'Child Care matters'. After inviting the parties to make submissions upon the allocation of time to complete the hearing by close of business on 15 May 2024 (MFI 19) upon the resumption of the hearing on 16 May, I stipulated time periods for oral submissions in a proportionate way reflecting the page limits given for the parties. The Father had another opportunity to say what he wanted to say in those closing oral submissions. (In the events that occurred, the Father did in fact raise arguments in oral submissions which he had not done in his various closing written submissions; including the significance or weight of what he posited as human rights violations to the application of the Care Act.) 10. There was, further, no recognition in the application that if an increase in the page limit to his written submissions was granted, that would have effectively necessitated the adjournment of the hearing for closing oral submissions on 16 and 17 May; since it would be inefficacious for the other parties to make closing oral submissions without notice of the content of the entirety of the Father's written submissions. It was notable that the Father did not suggest a date for the resumption of the hearing for oral submissions after he had served supplementary closing written submissions. This case was set down with an estimate of a 5 day hearing. That would have meant that, from a commencement date of 7 May 2024 and, allowing for the weekend, it should have concluded by 14 May. Appreciating that estimates in this context are not always reliable, the parties' lawyers conventionally plan their commitments to other cases based on such estimates. 11. Not only that, this hearing commenced in the May 2024 Parramatta Civil sittings of the Court. Such sittings occur four times a year (the next one being in August). This case, befitting its nature as a child care proceeding, was allocated priority. At least one other matter scheduled for hearing had to wait until its conclusion. After the Court made directions for the exchange of closing written submissions, the Court indicated to parties in the other civil matter that the other case would commence on 21 May 2024. If this matter had to be adjourned, and yet determined before the expiry of the May 2024 sittings (24 May 2024), the hearing of that other civil matter would need to be adjourned to the August 2024 sittings. 12. Further, the Court's practice is that hearings run continuously until they are concluded. That includes the making of final submissions. It is an exceptional course for parties to be granted the indulgence to have any substantial break from the time that they close their cases to the time when are expected to make submissions. There is no expectation that they will have the facility that such submissions would be in writing; even though there is no inherent impediment to do so. If acceded to, the Father's application would bring about fragmentation of the hearing (which was a feature of the case in the Children's Court). Whilst that might not be considerable in days (depending on when the hearing resumed after the Father had served supplementary submissions), it would not be fair to the other parties and myself, who had all been intensely focussed on the matter since 7 May, to come back at some indeterminate date when the collective attention and focus of the parties (and myself) had drifted away, or been diverted, from this matter to other matters. 13. For those reasons, noting the provisions in ss 56-60 Civil Procedure Act, I determined that it was not in accordance with the dictates of justice to allow the Father to supplement his written submissions. Application to remove Mr Ryan and Ms Pettitt 1. As to (d), I noted above the sequence of circumstances of the Father: (a) applying (at 6:21pm on 12 May 2024) for Mr Ryan's 'removal' (b) withdrawing (at 7:20am on 14 May 2024) his application for Mr Ryan's removal; and (at 12:52pm) on 15 May 2024, reinstating the application for Mr Ryan's removal. 2. Insofar as the application for 'removal' concerned Mr Ryan, there were references in MFI 18 to the latter's professional connections to Legal Aid lawyers; his asserted lack of independence (p 26) and omission to refer to racial discrimination law. 3. I could not locate any stated reason in his closing final submissions for his application to 'remove' Ms Pettit, the Legal Aid solicitor representing the Mother. Moreover, (in contrast to the position concerning Mr Ryan) I do not recall the Father previously applying for the removal of Ms Pettit. 4. To repeat what I said earlier about Mr Ryan, although the Court may have jurisdiction to restrain a lawyer from acting, that is usually based on exceptional grounds. These were not established. To reiterate another thing I said earlier, the timing for bringing the application (the day before the scheduled resumption of the hearing for closing oral submissions) would, by design or effect, have caused disruption to the preparation of the cases of the Mother and the ILR for those closing oral submissions scheduled to commence the next day. In short, even if there was merit in the applications (which there was not), I would not have exercised such power as I might have to do so. 5. This application is rejected. Application for a Mistrial 1. As to (e), this application was fundamentally misconceived. It sought to transpose the power of the Court of Criminal Appeal (or High Court) to set aside a criminal trial to this Court. There is no power in the Care Act or the Civil Procedure Act for this Court to 'terminate' this appeal proceeding in such a way. Further, I have noted that this is a hearing de novo. Given that I am effectively stepping into the shoes of the Children's Court Magistrate, without any necessity to correct any 'error' in that Court, I am already empowered to set aside, vary or confirm orders of the Children's Court. I would only do so in light of the findings on the issues I am required to make. 2. I have read the submissions on the third and fourth last pages and the last page (they were not numbered) of the Father's closing written submissions as to why there should be a 'Mistrial'. The reasons start with a complaint about the 'violence' said to be perpetrated against the Father, the use of sheriffs in the Court room and my 'joke' with the ILR about his not needing 10 pages for written submissions. Even accepting that I was empowered to order a 'mistrial', there was no 'violence' against the Father (at least as the word was conventionally and, indeed, objectively understood); the use of sheriffs against a man with a record of protracted domestic violence against his former wife and who, it appeared, was slated to attend anger management counselling, was not unreasonable and if the exchange I had with Mr Ryan about page limits to written submissions amounted to an offensive joke to the Father, such a view was also manifestly and objectively unreasonable. 3. This application is rejected as well. Application for orders 1. As to (e), towards the end of his closing written submissions, the Father 'requested the Court make the following orders: "DCJ must take all possible measures to PREVENT acts/omissions/all practices of racial discrimination as outlined in the racial discrimination act and Convention on the elimination of all forms of racial discrimination DCJ must take all possible measures to PREVENT acts/omissions/all practices that have the PURPOSE or EFFECT of denying children their rights ascribed under the Convention on the rights of children DCJ must take all possible measures to PREVENT acts/omissions/all practices that unlawfully discriminate on the basis of protected characteristics. This entails preventing forces of abuse, coercion, gaslighting, microaggressions against parents, carers and children. DCJ to adopt an anti-recent policy and to produce the anti racism to ALL STAFF, All contractors, all parents and carers, DCJ's complaints unit to immediately violate first plaintiff links to children to the CSC director linked to each relevant child DCJ to train CSC directors when complaint should be provided to the casework manager and caseworker DCJ to develop Reliable, Valid, Accurate, NON-DISCRIMINATORY, NON-POLITICAL assessments, including safety assessments and risk assessments The Minister to provide Competent and Timely oversight of secretary, including responding within a 'reasonable' timeframe to complaints and avoiding non-sensical and/or abusive responses The Secretary to provide Competent and Timely oversight of DCJ including responding within a ''reasonable' timeframe to complaints and avoiding non-sensical and/or abusive responses The Minister, Secretary and DCJ to take IMMEDIATE steps to comply under the RDA and CERD The Minister, Secretary and DCJ to consider the Rights of Children under the Convention on the Rights of the Child as part of all aspects and all aspects and all stages of the child protection process" form will 1. There are, at least, three difficulties with this. First, as a matter of procedural fairness, it would require amendment to the Father's summons. That gives rise to the concern of procedural fairness I referred the Father to earlier in the hearing (T37). The other defendants had not hitherto been fairly put on notice of the application for these orders. Conceivably, they may have wished to put on evidence about the orders if they disagreed with them (even if they accepted the factual premises underpinning the application which the Father relied upon). Further, no explanation was given by the Father for why such application was made when it was, given the veritable truckload of evidence filed by the Father in this proceeding, before the hearing (even though the Father continuously placed evidence before the Court in conjunction with written submissions). It was, in my view, simply too late to apply for such orders. Secondly, the orders were overtly broad and uncertain and would lead to difficulties in compliance and enforcement. Thirdly, and more importantly, the Father did not identify the source of the power of the Children's Court (and therefore this Court, on appeal) under the Care Act (especially in Part 2 of Chapter 5) to make any of these orders. For me to accede to the application to make such orders would, in my view, have involved my exercising jurisdictional error. 2. For those reasons, this application was also refused. The Issues 1. As Counsel for the Secretary acknowledged, it remains the position that to sustain the orders made in the Children Court, the Court must be satisfied that: 1. The Child was in need of protection at the time the application was made to the Children's; 2. There is no realistic possibility of restoration of the children to the Father within a reasonable period; 3. It is in the best interests of the Child that the mother hold parental responsibility (subject to the qualification regarding contact, for which the Minister should hold parental responsibility); and 4. The Secretary has appropriately addressed permanency planning for the children. The Facts 1. I have already touched upon the basal events in the proceeding in the background section of these reasons. At the commencement of the hearing, the court was supplied a copy of the Defendants' (joint) chronology (MFI 3) setting out the facts, in more extensive details. I indicated to Counsel for the Secretary and Minister that a word version of this document should be emailed to the Father (in the course of generally advising the parties to communicate by email with each other outside of Court). I also indicated to the Father (who confirmed that he had, as at the date of the commencement of the hearing, seen a physical copy of that document) that he might wish to prepare his own chronology or otherwise indicate (by manifested modifications to MFI 3) his differences with the defendants' version (T 11). In the event, the Father did not take up that opportunity. 2. I have adopted this chronology, updating it also with evidentiary references supplied to the Court by the parties through their submissions and which appeared material to me. 3. Reminding myself of the care that a Court should take with documents of this kind (to guard against the risk of being swayed by what observers might regard as self-servingly partisan commentary), I am content to adopt the document. In particular myself, I consider myself capable of distinguishing objective fact from where evidentiary assertions that may reasonably be disputed. I have however adapted or modified parts of the chronology that manifestly or apparently reflect what I understand to be assertions or allegations by the Mother, rather than, say, incontrovertible factual conclusions (recognising also that sometimes opinions are themselves material facts). The third column is a reference to the paragraph reference of a deponent's affidavit (where an affidavit was the source of the evidence). Where the deponent has prepared more than a single affidavit brought to the Court's attention, it is unnecessary to refer to the date. Where multiple affidavits from the same deponent have been identified, I have indicated the date of the relevant affidavit. Where the entry is based on a document, I have included the Court Book page reference. 4. I note, in addition, and by way of disclaimer, that the Summary does not purport to be an exhaustive catalogue of every fact contested between the parties, but those that, with reference to the parties submissions, appeared to me to assume some material significance. To refer to and determine every single contested fact in dispute over essentially two sets of legal proceedings would be oppressive and inconsistent with my obligation under ss 56 and 60 of the Civil Procedure Act 2005 (NSW). 5. The Key to the chronology is relevantly: M = Mother F = Father C = Child DCJ = Department of Communities and Justice Date Event Reference 14/10/1982 M was born in Napier, New Zealand. She is currently 40 years old. 2393 [2] 18/02/1983 F was born in Toronto, Canada. He is currently 39 years old. 2393 [3] 2010 (approx.) M and F commenced a relationship in the UK. M moved to Adelaide, Australia for work. 1069 2011 M relocates to Australia [8]-[9] (M, 1/2/23) 2013 F joined M in Australia and asserted abuse soon began. F was not working and he did not want to be in Australia. The asserted abuse perpetrated by F escalated to direct verbal abuse and eventually, physical abuse. 1069 2011 (approx.) Parties recommence their relationship in the UK, during which M falls pregnant. [4], [6] 20/02/2016 M gave birth to a still-born son. 1067 16/03/2017 C was born in North Adelaide, SA - he is currently 7 years old. 2417 [1] F was charged by SA Police following allegations by the Mother on three offences (in Adelaide) including: two accounts of aggravated assault and one count of choke, strangle or suffocate a person after he caused injury to M by hitting her multiple times with an open hand and closed fist, pushing her face into the bed and spitting on her – F was alleged to have perpetrated abuse against M for the last 6 years. 1067 12/03/2019 The charges were not proceeded with. The Mother asserts that this followed her requesting police to drop an ADVO. [24] (Taylor) [31] – [35] (M,1/2/23) 2019 M found employment as a researcher at Macquarie University and the family relocated to Sydney. 1067 DCJ receive a 'Risk of Significant Harm' ('ROSH') report for C regarding the following asserted information: a. M was aggressive towards C when she had a mental break down. b. M was standing in the front door area and she had an episode. She had a pot with a glass lid and she dropped the glass lid on C. The caller stated he did not think it was intentional and there was no injury. 20/01/2020 c. M hit C on his arm. [7] (Taylor) d. M yelled and screamed at C with unrealistic expectations of the child and treated the child like an adult. e. M attempted to kill herself three times. The last attempt was alleged to be in 2017. C was not present. f. M did not prepare milk for C. g. M tried to jump out of the moving vehicle while C was sitting beside her. DCJ receive a ROSH report for C regarding the following asserted information: a. Last night C fell down the stairs while M was alleged to be watching C. No ambulance was called. C cried for a bit and acted normally after that 06/03/2020 b. M was alleged to be in bed at the time of the fall. [8] (Taylor) c. Reporter stated M has mental health concerns and that M is getting worse. d. Reporter stated M tried to kill C by having C sitting under the garage door and M got the garage door and slammed it about 2 weeks ago. F moved C out of the way. ' Other asserted information including F still stayed in the home with M and C; F alleged M was noting doing okay while people in authority told M what she was doing was okay; F was told it was all his fault and was not able to get assistance from referral services; F was told by Pennant Hills CSC that they were closing the case and F was asked to leave the house. 26/03/2020 DCJ received ROSH report including the following asserted information: both parents revealed violence in the household and both were told to take C when they leave; M had a current AVO against F; charges made against F when they were living in SA; F had allegedly tried to strangle and smother M; F verbally, emotionally and financially abusive towards M; F never left C alone with M; and both parents alleged the other parent was a perpetrator of DV. [9] (Taylor) 28/03/2020 DCJ received ROSH report including the following asserted information: C being exposed to DV and M's deteriorating emotional state and undiagnosed mental health; M indicated that the violence allegedly perpetrated by the F had escalated from physical abuse to verbal, emotional and financial abuse. [10] (Taylor) 06/04/2020 DCJ received a phone call from Catholic Care that F was seeking housing. [11] (Taylor) 14/04/2020 DCJ caseworker (Ms Ritorto) called M to organise a meeting and emailed M information about DCJ and the assessment process. [12] – [13] (Taylor) 15/04/2020 M told Ms Ritorto that F did not want to speak to DCJ separately, but rather together with M. [14] – [15] (Taylor) Ms Ritorto received a phone call from F that F was unhappy with DCJ contacting M instead of him and F refused to meet with Ms Ritorto. 17/04/2020 DCJ conducted an interview with F over the telephone. [16] (Taylor) DCJ called Eastwood Police Station. An AVO application dated 13 November 2019 was rescheduled for hearing on 12 August 2020. 24/04/2020 DCJ called Port Adelaide Police Station. An AVO was in place in 2019 but it was revoked on 27 June 2019 with no information as to who revoked the AVO. [17] – [19] (Taylor) DCJ safety assessment outcome was that C was safe in parents' care. 27/04/2020 M emailed Ms Ritorto to postpone the meeting as F was swearing when M took calls. [20]-[21] (Taylor) DCJ called Dept of Child Protection in SA. It was reported that at the beginning of 2019, the Dept received 2 reports for M regarding F including DV. It was reported that F hit M multiple times, spat on her, gave her a fat lip and smashed her face against the wall. The report stated that F had been verbally abusive for over 6 years. Case was closed due to no capacity to allocate. DCJ caseworkers completed an unannounced home visit: F repeated his dissatisfaction with the system and continued to speak negatively about M; F accused M of being abusive and showed caseworkers a video of M making noises and poking C; F agreed to leave home for the night; M asked F not call or return to the home overnight; F packed his bag and left the house; the house was observed to be cluttered and messy; caseworkers and M called police to enquire about an AVO and requested police attend the home; caseworkers observed M getting frustrated when C was lying on the floor kicking and screaming. [22] – [23] (Taylor) 28/04/2020 DCJ Manager Casework made a safety plan. [44] (M, 1/2/23) M secures rental premises with C. DCJ received a ROSH report: M was brought into Hornsby Hospital by Police/Ambulance late on 28/04/2020 under s22 of the Mental Health Act with C as M had expressed suicidal ideation and threatened self-harm by slicing her wrists with a knife in the context of a domestic dispute with F; M acknowledged making self-harm threats; M was reviewed by the Mental Health Team with no concerns about acute Mental Health issues and M was not at risk of self-harm; M was deemed not detainable with an impression of a situational crisis in context of DV. 29/04/2020 F attended Royal North Shore Hospital on 28/04/2020 requesting a Mental Health review and expressing suicidal ideation. He was reviewed by the Mental Health Team and deemed not detainable with an impression of narcissistic personality traits; F was noted by the clinician to use the consultation to express concerns about M's parenting and mental health; F was reportedly remanded in custody in Adelaide following one assault, but M ultimately declined to press charges following pressure from F's family; M reported that F's behaviour has escalated recently and M denied F has been violent towards C. [25] – [26] (Taylor) DCJ caseworkers met with F at Macquarie University; F had no insights into his behaviour; caseworker was present when F continued to call M the day before and swore at M; Caseworker stated that she did not believe M was a perpetrator of violence and her mental state was a consequence of violence perpetrated by F; F stated his parents were abusive towards him and he was attacked by his father when he was 14 and F was admitted to the psychiatric ward. Ms Ritorto did a home visit with M and the refuge case manager: M agreed to cancel her original plan to take C to the family home and expressed intention to leave the relationship; M agreed to get a new sim card and disconnected her old phone number; refuge support to M. 30/04/2020 Ms Ritorto completed a safety assessment. [27] – [31] (Taylor) Ms Ritorto called C's day care: the Director saw F bullying M and this was affecting C. DCJ obtained information regarding March 2019 DV incidents from Dept for Child Protection, SA. M called Ms Ritorto: M did not want to go back to F and she did not want C to grow to be a traumatised person. 01/05/2020 Ms Ritorto called F informing M's wishes. F agreed to agree on a short temporary AVO or to sign an agreement and call Ryde community mental hearth to arrange an appointment. F wanted a mediation. [32] – [34] (Taylor) Later F called Ms Ritorto on the same day stated that he would like to change everything he said before and await mediation. 07/05/2020 DCJ received information from Northern Sydney Local Health: on 29/04/2020, F was brought in by Police after disclosing that he had been thinking to gas himself in his garage; F complained about being racially discriminated for years and turned down by different resources; F has no friends and strained relationship with his family; F appeared to have narcissistic personality traits whilst playing a victim role; F was referred to community mental health service but declined to engage; F blamed DCJ; on 04/05/2020, Ryde Community Mental Health did a review on F – cognitively inflexible, concrete and had a clear preference for logical and systematic tasks; longstanding difficulty in managing emotions and relationships; has long wondered if he might have autism; F blamed M and felt M needed his controlling; no evidence of a mental illness and F does not require psychiatric treatment. [35] (Taylor) 08/05/2020 F called Ms Ritorto to ask for mediation: F sent Manager Caseworker a statement regarding the AVO and the matter currently in court. [36] – [37] (Taylor) 12/05/2020 Ms Ritorto called M: C is at day-care for three days a week; C has been challenging; M "snapped a bit", yelled at C and told him off; M was now self-conscious; M did not respond to F's communications; DCJ would close the case soon. [39] (Taylor) Ms Ritorto called the Women's Refuge: M started parenting classes and received a mental health plan; the Refuge said M was doing well. 14/05/2020 Ms Ritorto called F: the risk assessment outcome was "High" but DCJ would close the case due to the parents living in separate houses and accessing services. [40] – [41] (Taylor) The case was closed. 19/10/2020 DCJ received a Federal Circuit Court Notice of Risk filed by F. [42] (Taylor) 03/04/2021 DCJ received a ROSH report: F contacted 1800RESPECT and raised concerns for his mental health; F alleged M not meeting C's needs for hygiene; F said C did not go to childcare or day-care. [43] (Taylor) 28/04/2021 DCJ received a ROSH report: caller rang Lifeline and stated concerns for C being physically abused, neglected and subject to verbal abuse from M; caller stated M had thoughts of crashing the car with C was in the car and hit C, threw things at C, not bath C and verbally abused the caller in front of C; current family proceedings in the Family Court; M has custody of C 5 nights a week. [44] (Taylor) F was scheduled and taken to hospital due to concerns that he had a suicide plan. F was referred to Ryde Community Mental Health. [45] (Taylor) 29/04/2021 Family Law Orders made by Federal Circuit Court of Australia: C live with M and M has SPR; C spend time with F as agreed between the parties. CB 2766 – 2769 M asserts that F constantly breaches Federal Circuit Court Orders by not returning C to M on time. [49] (M, 1/2/23) 19/06/2021 DCJ received a ROSH report: parties separated in April 2020 and M is currently living in a rental place in her sole name; Federal Circuit Court Orders in place; F has been living at M's home without her consent to observe how she parents; F will not accept that the relationship is over; F is verbally and emotionally abusive to M currently with gaslight conduct; F found out where M lives through C and has moved into her home without her consent; F tries to pressure M into having sex with him; F makes suicidal threats to M; C witnesses DV and tells F to "stop". [46] (Taylor) July 2021: F. begins to visit M.'s home without M's consent. F tells M he wanted to be around people otherwise he would be suicidal. [53] (M, 1/2/23) 26/08/2021 August 2021: M and F resume living together at F's home. M asserts that F's old behaviours resurface as he becomes aggressive, angry and rude. [36.53], [36.57] (M, 1/2/23) DCJ received a ROSH report: caller reported C being exposed to DV with symptoms of trauma; C developed a stutter and C has been disclosing to F that M hits him; M has disclosed that the violence is mainly verbal and physical; M disclosed to Triple P program facilitators concerns regarding her relationship with F; M denies hitting C; parties resumed relationship in June or July 2021 after F found out where M and C lived; F's controlling and abusive behaviours are now escalating; F created a "prick jar" and asked M to pay $5 every time she does something wrong; F is making M write in a book the things that she does wrong; the caller suspects that there may be a lot more coercion and controlling behaviours from F. [47] (Taylor) 29/08/2021 DCJ received a ROSH report: caller hears C crying every 2-3 days. Police has been called to the house 2-3 times; C was heard crying this morning; Parents fought a lot previously; M has screamed for help a few times. [48] (Taylor) DCJ caseworker Ms Nitchell called Eastwood Police: an ADVO protecting M from F expired in August 2021; no current ADVO; last ADVO compliance check in July. 02/09/2021 Ms Nitchell called M to arrange an initial interview: M said F made her write a complaint about Ms Ritorto. [49] – [51] (Taylor) Ms Nitchell contacted C's kindergarten: M used to drop off and pick up C, but now it is F who does it. F does not engage with the workers. 08/09/2021 DCJ interviewed M: F came to M's rental place in Campsie and moved in; parties decided to move into one residence; F verbally abused M every day; parties are separated under the same roof; M never used the name to refer to C. [52] (Taylor) M says that DCJ begins working with her to leave F [60] (M, 1/2/23) 10/09/2021 M called Ms Nitchell: M dared not telling F that DCJ contacted her; caseworker discussed concerns regarding the impact M's yelling on C; M declined DCJ's offer to arrange refuge for M and C. [55] (Taylor) 14/09/2021 Ms Nitchell discussed with M about contacting F in a safe way which did not place M and C at risk. [56] (Taylor) 16/09/2021 Ms Nitchell met with C at preschool. C could not name anything he likes to do with F. [61] (Taylor) 17/09/2021 Ms Nitchell completed a home visit with information that F was at home. However, no one answered the door and F did not respond to caseworker's call and text message. Caseworkers left the premises. [62] (Taylor) M told Ms Nitchell that F told M not to come back until caseworkers have gone. F told M not to answer any private calls. DCJ was worried about C's speech delay and advised M to arrange a paediatric assessment. 23/09/2021 Ms Nitchell called Child & Family Counselling Social Worker Ms Binger: M is enrolled in PPP life Skills Course; M is concerned C is telling F that M is hitting him; M disclosed the current and previous DV; C attended speech therapy and OT session. [64] – [65] (Taylor) Safety assessment was completed with an outcome of "safe". 24/09/2021 Ms Nitchell met with M: M said no longer wish to live with F; M denied that F is making suicidal threat; M said they were evicted from the current home in December as F did not pay the rent the whole time she lived separately; DCJ provided support and M agreed to leave F in a planned way. [66] – [67] (Taylor) DCJ caseworkers attempted an unannounced home visit to F. No one answer the door. 28/09/2021 M told Ms Nitchell that F found out about the phone calls between DCJ and M and got angry. [68] (Taylor) 06/10/2021 DCJ referred M to Catholic Care for support for leaving DV relationship and finding new accommodation. [70] (Taylor) 15/10/2021 Catholic Care informed DCJ that M's eviction date is 10 December 2021 but Catholic Care cannot help as M wants to stay in the relationship with F. M requested couples counselling for advice on how to be a family. [73] (Taylor) 19/01/2022 M told Mr Otten that parties were still living together. M would leave F if he was financially independent. F is consistently emotionally abusive calling M names and accusing her sleeping with many men including her lawyer. F forced M to request DCJ to disclose what M had told Ms Nitchell. [75] (Taylor) 21/01/2022 Mr Otten called F: F complaint about DCJ stating that caseworker had lied to court and that caseworkers sending too many text messages to F. F said DCJ caseworkers used violent language towards him. [76] (Taylor) 01/02/2022 Mr Otten called M to organise a home visit: M said she had to be careful about talking to a male as F will call her a "slut" and claims she sleeps with every man she speaks to; DCJ said F's emotional abuse was the primary concern and C may experience psychological harm from being exposed to such abusive behaviour. [77] (Taylor) 03/02/2022 Caseworkers completed a home visit to F and delivered a letter to F. F answered the door and declined o speak with the caseworkers and shut the door. F could be heard swearing at M. [78] (Taylor) 08/02/2022 Mr Otten called Ms Lau from Top Ryde Community Mental Health: Ms Lau did not hold any serious concerns for C as C could be interviewed but may not understand complex questions and may provide irrelevant answers if confused. [79] (Taylor) 15/02/2022 Mr Otten met with M: M likes to call C by nicknames; M's mental health is suffering and impacting her work; M was considering purchasing a property with F; M would like to separate from F but F is so controlling and emotionally abusive. M found it hard "fleeing" because F found out where she lived and just moved in again. M considering how to leave F this time. [81] (Taylor) 01/03/2022 Pennant Hills CSC received a complaint from M. [82] (Taylor) 02/03/2022 M told Mr Otten that F directed the content in the letter and mailed the letter. M had no problem with DCJ. M said F began claiming M perpetrating DV against him. M felt it would be hard to flee again. [83] (Taylor) 04/03/2022 DCJ interviewed C at Epping Heights Public School. C disclosed that F screamed at M and said "shut up" last night. [84] (Taylor) 11/03/2022 M called Mr Otten that she had an argument with F and she was ready to leave him. [85] (Taylor) DCJ received a ROSH report in relation to C: C was witnessed with a red mark on his nose and his nose was seen to be bleeding after lunch. C used his hand to mimic a punch in the nose. C did not know who hit him. [87] (Taylor) 22/03/2022 M told Mr Otten that she had no idea how the injury came about. M preferred to stay away from support services and rely on her lawyer instead. M still wanted to leave F but felt afraid. [88] – [89] (Taylor) Caseworkers interviewed C at Epping Heights Public School. C has a speech delay and was unable to respond to most of the questions. C had no memory of the injury. 24/03/2022 M had a meeting with Mr Otten (of Pennant Hill CSC) to discuss her separation plan to leave F. [90] (Taylor) Mr Otten reports that M "had previously said her attempt to flee was 'rushed' and wanted a plan that will consider all the measures [F] will take to manipulate her" CB 169 30/03/2022 Mr Otten completed a Safety Assessment and Safety Plan with an outcome to be safe with plan. The assessment screened in DV as a danger to C. [91] (Taylor) 04/04/2022 Mr Otten received a call from the Principal of Epping Heights Primary Public School: C had been absent from school for 5 days. F told the principal that he intends on removing C from the school because of Covid concerns and put C at daycare. [92] (Taylor) 26/04/2022 DCJ caseworker Ms Taylor called M: M wanted everything to go via the lawyer and family law court. [93] – [94] (Taylor) M's sister emailed Mr Otten stating that M has asked her to email Mr Otten on her behalf. F is still and further restricting M's phone time and now also restricting C from attending school. M has contacted her lawyer to deal with it. 28/04/2022 Ms Taylor met with M to discuss the separation plan. [96] (Taylor) 29/04/2022 The Principal of Epping Heights Primary Public School told DCJ that C had not returned to school since the end of term 1. F's behaviour had accelerated by making several complaints against the school and Department of Education. The Principal was concerned that F resides in the home with M and C. [97] (Taylor) M asserts that F had unilaterally disenrolled C from school towards end of Term 1. [92] (Taylor) 06/05/2022 Ms Taylor called Ms Lau. Ms Lau said there were disadvantages of pulling C out of school. [98] (Taylor) F commits offence of assaulting M occasioning actual bodily harm 07/05/2022 Provisional ADVO against F for M's protection. CB 2770 – 2774 Conditions 1ABC. 08/05/2022 DCJ received a ROSH report, containing the following asserted information: on 06/05/2022, after an argument, F struck M in the face causing marks near her eye and a small laceration on her lip when C was next to M in the bed. M began to cry loudly, and F covered her mouth with his hand. F removed his hand and the argument continued. F covered M's mouth again firmly and her hair was caught in the way and M was unable to breathe properly. M pushed F away and ran from the house and got assistance from staff at a nearby licenced premises who contacted the police. Police attended and F was arrested and taken to Ryde Police Station. C remained sleeping in the bed in close proximity to the violence. [99] (Taylor) A provisional ADVO is made against F. [63]- [65] (M, 1/2/23) Ms Taylor called NSW Police, Ryde: a current standard provisional AVO was in place. Police confirmed F had punched M in the face, placed his hand over her mouth. [100] – [101] (Taylor) 10/05/2022 F continued to turn up at M's home without the latter's consent and stays despite her objections [66] (M, 1/2/23) DCJ caseworkers make an unannounced home visit. Ms Taylor informed the parties that it was not safe for F to reside there. F agreed to leave the premises. M disclosed that F continued to be verbally abusive and make wild accusations eg. that M brainwashed C and that F is the victim of DV perpetrated by M. M wanted F to leave. M stated C fears F. C said that he can hear F yelling. M said C began to stutter again after F returned. 11/05/2022 M told DCJ that she did not answer F's messages and calls. M confirmed that she would like to continue with the plan of having F move out and she can see the impact of DV on C. C asserted to have disclosed that he does not like it when F yells at M and struggles to sleep at night. M was open to working with DV service. [102] (Taylor) 16/05/2022 M told DCJ that F came around to the unit and still hurled insults at her. F asserted to have told M she was not to call DCJ anymore. F was getting a lawyer to represent M. M stated friends were supportive of her separation. M stated F being very pushy, forceful and controlling with ongoing abuse, mostly verbal not physical. [103] – [104] (Taylor) DCJ received information from the Northern Sydney Local Health District: on 01/06/2020 F presented to Royal North Shore Hospital requesting a mental health review for the third time with low mood and self-harm thoughts. F was admitted overnight. No evidence of mood disorder, psychosis, or other acute psychiatric disturbance. Forensic History reported F was charged in March 2019 and put to in jail for 2 weeks for DV. History of self-harm on one occasion whilst in jail where he attempted to strangle himself but self-ceased. Ms Taylor called Dr Chau-Vo from MQ Health GP: M saw Dr Chau-Vo as GP and F consulted Dr Chau-Vo but was later discharged as a patient. Dr Chau-Vo provided support to F as a friend. Dr Chau-Vo said that she was informed that the parties had abused each other and lacked insight into how they needed to change and blame each other. Dr Chau-Vo believed that F was at risk of suicide. Dr Chau-Vo believed that F stayed with M to protect C. Dr Chau-Vo reportedly believed that F was the better parent with more insights. Caseworkers completed an unannounced home with: F was still in the home. M alleged that F continued to be verbally abusive and put M down and yelled and screamed at her in front of C. F put M down and called her a slut, a prostitute, said she liked white pussy and gets her to repeat to say "I am a slut etc". F told M not to talk with DCJ. M said F tried to get her for sex however M refused. F said he did not force her. M wanted C to go back to school but F was stopping it. M could not ask F to leave and agreed to go to a refuge. Ms Taylor discussed with M regarding adding AVO terms and facilitated DV support for M. Ms Taylor heard arguing and F screaming and swearing at M and C. Ms Taylor could hear C trying to stop the arguing and shouting at F. Ms Taylor called the police. Ms Taylor believed that M minimised the abuse to the Police. F was led out but not arrested. M agreed that F was verbally abusing C. [105] – [106] (Taylor) 23/05/2022 Caseworkers spoke with C and C said he did not want F to live with him, did not like F, F yelled at the time and C said he loved M, he misses school and wants to go back with his friends. Taylor, Annex M (CB 642-644) M left the home to go to the hotel with C. DCJ caseworkers complete DV Safety Assessment ('DVSAT') and (effectively) identified F as presenting as a 'serious threat' to M and C. Ms Taylor called M's sister. M's sister disclosed that M and MGPs witnessed F's abuse of M. 24/05/2022 F was asserted to be extremely manipulative. F's family ignored F's behaviour issue. [108] –[109] (Taylor) DCJ completed a safety assessment with an outcome of "safe with plan". M and C were provided with refuge. 25/05/2022 M returned home with C. F remained out of the home but continued to taking C to and from school. [111] – [112] (Taylor) Ms Taylor discussed child protection concerns with F. F agreed to consider to take part in a men's behaviour change program and he was going to a GP and see a counsellor. 02/06/2022 DCJ received a ROSH report. This featured the following asserted information: F played a recording of M screaming hysterically at C. C was sobbing and distressed and begged F to call the police about his mother. M attempted self-harm in the presence of C. V was left on his own in a play area whilst M went shopping. [114] (Taylor) 05/06/2022 F did not return C to M after contact. [115] (Taylor) 06/06/2022 F dropped C off in the morning. [116] (Taylor) 08/06/2022 Ms Myers and Ms Taylor met with F at the Pennant Hills CSC to address DCJ's concerns of the level of violence F posed in the home to M and C. F agreed that C was not safe but stated this was due to M's abuse and maltreatment of F. F stated that C had been physically and psychologically harmed due to M's mental health, anger and rage issues. F stated M was unable to meet C's basic needs and DCJ had failed in protecting C from M. F said he had support from Dr Chau-Vo. [117] (Taylor) 10/06/2022 Ms Myers and Ms Taylor met with M at Pennant Hills CSC: M agreed for supervised contact between F and C. [118] (Taylor) 13-14/06/2022 Email correspondence between M and F. M demands return of Child. F cites his 'responsibility and duty of care' to the Child and states "Releasing (the Child) into (the Mother's) care exposes him to be 'negatively affected' by (the Mother).." CB 2102-2105 F did not return C since contact on 12/06/2022. F made a unilateral decision that M was unfit to be a mother and C would be cared for by him. 14/06/2022 C was removed by DCJ with the assistance of police, from the care of his father due to the risk of violence and psychological harm in F's care. [119] – [121] (Taylor) C was placed with DCJ authorised carers. DCJ filed Initiating Application in the Surry Hills Children's Court. DCJ sought: Interim order allocating parental responsibility to the Minister. 20/06/2022 Final order allocating parental responsibility to M to the exclusion of F. 444 – 457 Supervision for 12 months after final orders. Prohibition order at final orders. Grounds for removal were Section 71(c), (d) and (e). 23 June 2020: interim parental responsibility for C was allocated to the Minister 24/06/2022 C started to have supervised contact with M three times a week for 1.5 hour per visit. [137] (Taylor) 27/06/2022 C's Semester 1 School Report shows that C was not enrolled between 24/04/2022 and 27/05/2022. [7] (Veles 25/8/22) 28/06/2022 Epping Heights Public School reported to DCJ that C arrived at school the day before with a red mark above his eyebrow and a scab on the left side of his noses. C had an untidy appearance and was not his usual happy self. [128] (Taylor) C's immunisation history showed no vaccinations due. [8] (Veles, 25/8/22) 29/06/2022 Carer told DCJ that C had returned from contact with scratches and that they must be from C's extreme emotions after leaving contact with M. [129] (Taylor) Caseworkers met with C at school. C said he liked being at the carers' home and that he was happy to see M. C would like to go back to live with M and C missed M. C said he did not want to see F but C did not say why. C stated that he worried that F was "mean", "screaming at C and M" and "makes C feel like crying". 30/06/2022 M commenced DV sessions with Psychotherapist Sunny Hong. 669 [37] (Veles 25/8/22) 01/07/2022 Caring with Carer identified that the carer's assessment with F's uncle would not continue as Mr Lee was not competent in several areas. [126] (Taylor) DCJ Casework Specialist Ms Chehab advised that it is not in the best interests of C to force family time with F. 05/07/2022 M requested assistance in handing F's three dogs back to him. [26] – [29] (Veles 25/8/22) Caseworker Mr Veles emailed F regarding dog collection. DCJ surrenders F's dogs to RSPCA as F did not make arrangements for collection from M's home. Kinship Carers were assessed as an approved placement. [127], [131] (Taylor) 06/07/2022 Keeping Connected informed DCJ that C cried and said "why can't I stay with my mum" following contact with M. [29] (Veles, 25/8/22) F emailed DCJ that DCJ's assistance to M in dog collection is getting involved in non-child related matters. DCJ file Summary of Proposed Plan (SOPP) with Children's Court. The DCJ makes the following assessment, inter alia, as follows: "DCJ has assessed that it is not safe for [the Child] to reside in the joint household of [the Mother] and [the Father] due to the violence by [the Father]. 08/07/2022 [The Father] poses a high risk of lethality to both [the Mother] and [the Child] at the time of attempted separation – characterised by [the Father]'s choice to use choking and suffocation towards [the Mother] as well as his choice to use [the Child] as a means to punish and manipulate [the Mother]. On 12 June 2022, [the Father] refused to return [the Child] to [the Mother]'s care and stated he was going to care for [the Child] because [the Mother] is 'unfit to parent'. [The Child] was removed from the care of [the Father] with Police assistance." CB 2977 Amongst other things, DCJ considers there is a reasonable possibility of restoration within reasonable period of C to M's care. SOPP set out tasks and demonstrated changes that M needed to undertake in order for C to be safely restored to her care. DCJ also of the view that there is no realistic possibility of restoration of C to F's care. SOPP set out tasks and demonstrated changes that F needed to undertake in order for C to be safely restored to his care. This includes meaningful participation in assessment of his parenting capacity, cognitive capacity and mental health issues and to meaningfully engage in a mental health assessment. 12/07/2022 C moved from Foster Care placement to Relative/Kinship placement. [9], [50] (Veles, 25/8/22) F signs a "Contact Agreement". A Family Action Plan was also created. 25/07/2022 M commenced Circle of Security Parenting Course and completed on 22 August 2022. [41], [48] (Veles, 25/8/22) DCJ requested F to limit his correspondence to only relevant issues and DCJ would respond to F's queries twice per week. 26/07/2022 The dogs were surrendered to Parramatta Council. [36] (Veles, 25/8/22) 27/07/2022 Solicitor for Father (Mr McLaughlin) email to Jane Smith represents Father's acceptance that the Child had been exposed to inappropriate behaviour between Father and Mother Annex A (F, 27/7/22) 28/07/2022 By consent of the parents and without admissions, it is established that C was in need of care and protection pursuant to the grounds specified in s 71(c)-(e) (incl) of Care Act. 29/07/2022 DCJ caseworkers met with C at his school: C identified that he was happy meeting M and worried when meeting F. [10] (Veles, 25/8/22) C was referred to weekly sessions with the school counsellor Ms Middleton. 08/2022 F moved into a four-bedroom home in Constitution Hill. F understood to have commenced a relationship with Skye Tran. CB 1364 [14], [16] (Approx) 02/08/2022 DCJ Psychologist recommended for Family Time with F to occur supervised at Pennant Hills CSC. 665 [12] (Veles, 25/8/22) 03/08/2022 C gets Covid. [13], [20] – [21] (Veles, 25/8/22) DCJ notified F. F blamed Ms Taylor for C getting Covid in school. 08/08/2022 M moved to a safe and secure property. [42] (Veles, 25/8/22) 09/08/2022 Catholic Care said that the Men's Family and Relationships Program (MFRP) would contact F for a second assessment after F completed the first assessment. [52] (Veles, 25/8/22) 11/08/2022 Out-Of-Home-Care Case Plan Meeting. [14] (Veles, 25/8/22) 17/08/2022 C's first Family Time with F. F noted C had not had afternoon tea and was hungry. [22] (Veles, 25/8/22) C's carers informed DCJ that C returned to placement "starving" and the carer stated they would pack C afternoon tea if F did not. 18/08/2022 Caseworker Mr Veles asked F if he would like to bring C afternoon tea to Family Time visits and indicated that if F did not wish to, C's carers would pack one for C. F did not respond. [23] – [24], [49], [54] (Veles, 25/8/22) DCJ sent F a Formal Communication Plan. F requested DCJ to liaise with Catholic Care and stated MFRP is engaging in violence towards him. 19/08/2022 Ms Terrie-Anne Bolger (of Catholic Care) reports to Ms Veles stating, inter alia, that F had not responded to emails, opined that F needed to demonstrate commitment to participating in the assessment process. [55] – [56] (Veles, 25/8/2022) 4 days later, Ms Veles conveys Ms Bolger's information to F C soiled his pants two times at school. When asked if he would prefer to stay at placement and not see F that afternoon, C agreed and appeared visibly more relaxed. 24/08/2022 F's contact with C cancelled [12] (Veles, 26/9/22), CB 1187 DCJ informed F that contact is cancelled with a makeup visit later. 25/08/2022 C commenced school Speech Program. [15] (Veles 25/8/22) 31/08/2022 F contact visit with Child (observed by family time worker, Ms Short) at Pennant Hills CSC CB 1199 – 1201 Ms Short perceived that after initial greeting with C, F looked very angry. There were no hugs during the period. F observed to have had 'minimal' conversations with the. 01/09/2022 C attended a Private Speech Therapy Assessment. [17] (Veles 25//22) F contact visit with Child (observed by family time worker, L Wu) at Pennant Hills CSC. 07/09/2022 Ms Wu informed by C's carer that C was worried about contact, as well as C having a runny nose. CB 1211 – 1215 Wu indicates that after C had run to greet his father, there was no hug or embrace of C. Wu observed that C appeared happy and comfortable around F. Wu observed F engaged at certain times during contact, although appeared frustrated and often exhaled out loud, and appeared annoyed when C was on his iPad. At the end of the contact F did not hug or embrace C 08/09/2022 C had a runny nose and his contact with M was supervised by the Carer. Carer made good comments and expressed willingness to allow supervised Family Time visits between C and M. [14] (Veles, 26/9/22) 15/09/2022 C attended a Speech Assessment with the recommendation that C will require ongoing Speech Therapy sessions following restoration to M. [7], [31] (Veles, 26/9/22) Catholic Care provided updates regarding F's engagement in MFRP: the service had offered F several opportunities to remain engaged after F had a first assessment in July 2022. No further correspondence from F after his last email on 18/08/2022. 16/09/2022 School meeting to discuss C's progress. C was said to be doing very well at school. [9] (Veles, 26/9/22) 20/09/2022 Sunny Hong provided written feedback to DCJ regarding M's attendance and engagement. Ms Hong identified that M is not a suitable person to supervise any contact between C and F. [19] – [20] (Veles, 26/9/22) Mr Veles did a home visit to M. No issues or hazards. F contact visit with C, supervised by Ms Short at Pennant Hills CSC. 21/09/2022 F did not greet C warmly at outset and just said "Hi" to C. When saying goodbye, F kissed C on the cheek. CB 1243-1246 Ms Short observed that C did not want to participate along periods of time in learning activities (magic words on posters), but F did not listen to the when the latter said he did not want to do something. F contact visit with C, supervised by Ms Short at Pennant Hills SC. 28/09/2022 Ms Short perceived that F did not greet or say goodbye warmly. CB 1253-1257 Ms Short observed that when in the car prior to the visit, and when approaching the office, C started crying and said "I miss Mum" and also said "I don't want to see Dad". Ms Short noted F had brought a lego set and (spider man) colouring book. During family time, F quizzed C about literacy and numeracy questions. (original iteration of) Care Plan was filed [8] . 28/09/2022 This proposes restoration to M and eventual parental responsibility, to the exclusion of F. DCJ believes that M had effectively addressed SOPP matters. CB 1072 Care Plan notes DCJ's assessment that there is no realistic possibility of restoration within reasonable period of C to F due to his failure to understand and demonstrate insight into the child protection concerns leading to C's removal, his demonstrated inability to work with DCJ and other services to address those concerns and failure to engage in any tasks that directly addressed those concerns. F contact visit with C, at Castle Hill Towers, at the movie theatre (supervised by Ms Moss). 09/10/2022 Ms Moss recalled C calling excitedly and running towards F. F said hi, but no hugs of affection from F. F wanted Ms Moss to note C's greeting to F. CB 1293 – 1296 Ms Moss perceives that F is "distant" from C, "not asking him about what he has been up to between visits, non-affectionate, very little verbal connection, very cold and sterile .. I did not see that F affectionately smiled or look at [C] with a father's love. He did not smile the entire visit". 13/10/2022 Catholic Care indicated there had been no further correspondence from F. [41] [Chance, 23/11/22) F family time visit with C, supervised by Ms Kershler at Pennant Hills CSC. 19/10/2022 Supervisor observed that F did not hear any affectionate greeting to C upon arrival. CB 1306 – 1308 F produced a new box of lego. F and C sat on floor together. Supervisor observes that F did not make any effort to engage C in conversation; nor display any affection towards him. The appeared relaxed and comfortable in the company of F despite the lack of verbal communication between them. If was reported as appearing annoyed at the termination of the visit at 5 PM because he believed it would be extended to 5:30 PM. 19/10/2022 F's affidavit indicates his reasons for this positions opposing restoration of child to M. Refers to her poor mental health, her attitude to C and acting in a way detrimental to C. Alternatively, proposes contact visits with C each fortnightly weekend and half school holidays. F sets out his arguments for care, with reference to his current circumstances, understanding of C's needs. [12] – [13] (F, 19/10/22) States that he has pleaded not guilty to offence of assault occasioning actual bodily harm C had supervised Family Time with F (supervised by Ms Kershler). [13] (Chance, 23/11/22) 26/10/2022 Contact report stated that F gave C a large (laminated) counting chart and also produced a new box of lego. When engaging in lego activity with C, F did not make any effort to engage C in conversation. F did not display any affection towards C, nor vice versa. CB 1314 – 1316 Supervisor noted that a group of DCJ workers arrived, including Mr Chance. She noted that after Mr Chance introduced himself, F complained about miscommunication for time of the visit. F tells C that when somebody called him (his nickname, or abbreviated first name) he should tell them they had to call him (his full first name). 02/11/2022 C had supervised Family Time with F (supervised by Ms Harevelt). [13] (Chance, 23/11/22) Contact report records F bringing lego set. Stated positive engagement with minimal conservation between C and F and when it occurred it involved F asking C to do something. CB 1320 – 1322 09/11/2022 C had supervised Family Time with F. Caseworker Mr Chance was late for 30 mins. Mr Chance offered to extend time, which was declined by F. F did not bring food for C. The Supervisor sought assistance from a co-worker to have food purchased for C. [15] [Chance, 23/11/22) C had supervised Family Time with F, supervised by Ms Harevelt. [17] – [18] (Chance, 23/11/22) 16/11/2022 Report that C maintained a positive attitude and prior, during and after the visit. Notes that F and C spent most the time silently engaging in activities. Occasionally F would speak to C but it revolved around asking C to do something. CB 1331 – 1333 Mr Chance coincidentally bumps into F inside the Pennant Hills CSC elevator as Mr Chance was leaving work and F had finished family time with C. F was perceived as argumentative and presenting in a heightened state, asking why family time finished at 5pm instead of 5:30pm. F's hand was shaking. F said it was rude that Mr Chance dismissed him. F followed Mr Chance to another elevator. 17/11/2022 Ms Jane Smith, a solicitor, emails F's solicitor to report that C was progressing well at his primary school. Attaches a contact report, responds to concerns expressed by F about C's need for medical treatment, the incident regarding C's collection after school on 9 November 2022. Stipulates that F is responsible for providing food to C during contact visits Annex A (F, 28/1/23 21/11/2022 The Northern Centre provided an update on M's progress. M's file was closed last week. M was reported as having achieved a lot with active engagement and a better insight. [21] (Chance, 23/11/22) 22/11/2022 Relationship Australia provided an update on M: M has been engaged with insights. No concerns about M's mental health. [22] – [23] (Chance, 23/11/22) Ms Sunny Hong provided an update that M has engaged weekly. Ms Hong has no concerns for possible future risk in relation to her capacity to provide care for C. Ms Hong does not think m should be involved in facilitation of family time with C and F. 22/11/2022 F's contact with C suspended by the Secretary due to F's inappropriate behaviour during Family Time. [13] (Chance, 19/1/23), Annex D (F, 28/1/23) Solicitor notifies F's solicitor of reasons for DCJ's decision to suspend. Between 14/10/2022 and 22/11/2022 F sent various correspondence to DCJ regarding complaints. CB 946 – 498 Between 23/11/2022 and 12/12/2022 DCJ encouraged F to participate in an independent expert assessment by LSC Psychology. [14] (Chance, 19/1/23) Mr Chance visited C at the carer's home. C presented to be happy and close to the carer. 30/11/2022 Caseworker and Manager Casework participated in a multicultural consultation to discuss creating a sense of cultural safety for F. [7],[20] – [21] (Chance, 19/1/23) Caseworker and Manager Casework participated in a psychologist consult with DCJ psychologist about future Family Time between F and C. 01/12/2022 DCJ Manager Client Services sent F a letter outlining the boundaries around communicating with DCJ. [22] (Chance, 19/1/23), [29] (F, 19/10/22) F had his first counselling appointment with psychologist Dr Paul Pusey. 06/12/2022 DCJ called Police re F's communication. Police visited F's home and spoke with F. F was not arrested, charged or sanctioned. [23] (Chance, 19/1/23) NSW Police COPS entry indicates, among other things: 08/12/2022 (a) its request for F to stop sending excessive amounts of texts and emails to DCJ; Annexure 'T' (F, 29/1/23) (b) that if he needed to contact DCJ regarding his son, he should do so 'appropriately'. COPS entry describes F as being "argumentative" towards police; consistently speaking over police and referring to police as "racist thugs" and (being) "white supremacist". Since 8 December 2022 DCJ has received 8 reports to the Child Protection Helpline for C. These reports were interpreted as having been made with malicious intent towards M. [33] (Chance, 19/1/23) 12/12/2022 F was provided with a draft terms of reference for the proposed assessment. F was advised that DCJ would not consider recommencing Family Time until an assessment of this nature was undertaken. [15] Veles, 26/9/22, CB 2420 [24] M completed the Women's Choice and Change Course through Relationship Australia. Laura Towns, Caseworker, prepares referral for F to see Katie Martens, of LSC Psychology, seeking assessment addressing issues of: Dec 2022 F's mental health; CB 2977-2978 F's capacity to change with regard to emotional regulation, engaging in therapy and working with service providers; F's capacity to meet his son's emotional, developmental and safety needs during any future family time (contact) 12/12/2022 LSC Psychology withdrew referral for F. [14] – [16] (Chance, 19/1/23) 16/12/2022 F was listed as an unreasonable complainant by DCJ. The Complaints Unit develop a communication plan with F restricting contact to email only for a 6-month period. [26] (Chance, 19/1/23) From 16 November 2022 to 21 December 2022, F sent 48 emails directly to, or copying, the Complaints Unit. 17/12/2022 M started to have overnight time with C on Wednesdays and Saturdays. [11] (Chance, 19/1/23) 19/12/2022 M said C was happy and wanted to stay at her place. [12] (Chance, 19/1/23) Triple P Program-Tuning into Kids stated that F attended all sessions. The facilitator was concerned by F's behaviour. 20/12/2022 The Positive Parenting Program & Bringing up Great Kids Program said F completed the program while making comments about DCJ and NSW Government. [28] – [30] (Chance, 19/1/23) Uday Desai provided updates regarding F's engagement for anger management. F has attended all 8 scheduled sessions. Desai informs Mr Chance that F: finds it difficult to reflect; expresses a lot of emotions towards institutions he is involved with; has not 'moved on from the perceived oppression against him'; has not yet spoken to how his mood and anger had affected other people around him. Desai opines Mr Chance that F could benefit from transitioning for anger management to counselling, but had the capacity and resilience to manage his anger, but there were other issues he was tackling. 21/12/2022 123 Magic Program said F attended all sessions. [31] (Chance, 19/1/23) 31/12/2022 F's email to solicitor for DCJ, legal aid, Mr Ryan, Ombudsman and others. Annex J (F, 29/1/23) Email features F's accusations of "Systematic corruption" against DCJ (and 'corruption' against Pennant Hills SC, said to harbour 'white supremacist sympathisers). Describes NSW Ombudsman as a 'failed parent of a child that has gone out of control' 11/01/2023 Mr Chance visited C at the carer's home. C was in good health and developing appropriately for his age. [7] (Chance, 19/1/23) 19/01/2023 Mr Chance deposes to his belief that Mother had sufficiently addressed the child protection concerns in relation to the child and actively engaged with services to address her mental health. [7] (Chance, 19/1/23) 23/11/2022 - 13/01/2023 Mr Chance notes that he has received 293 forms of correspondence from F. [19] (Chance, 19/1/23) 22/01/2023 F prepares (281 page) affidavit relating to variety of issues: Professor Davis' 'Families is Culture' report; excerpts of commentary on the FACS Complaints handling system; the NSW Ombudsman's role in handling complaints; the role of media as a societal watchdog; treatment of Aboriginal children; resourcing of DCJ caseworkers; suggested alternatives to child removal; allegations about parental abuse perpetrated by M that was 'concealed and hidden' by the DCJ; instances of alleged false information in Family Contact reports; his experience of abuse in the Men's Change Behaviour course and complaints about a subpoena CB 1371 – 1652 (F, 22/1/23) F prepares (68 page) affidavit in response to Mr Chance's affidavit of 19 January 2023. Affidavit criticises Mr Chance about contact visit on 9 November 2022. Complaint is made about cancellation of contact visit on 30 November 2022. 28/01/2023 Amongst other things, F asserts that he did not agree to an LSC psychology assessment; refers to DCJ concern of harassment by F regarding communications; complaint against NSW police arising from conversations on 7 & 8 November 2022. CB 1653 – 1721 (F, 28/1/23) F also annexes conversation with Police on 8 December 2022 recorded in COPS entry. 31/01/2023 F's affidavit (284 pages) makes wide-ranging assertions on a range of topics, including: Mother's mistreatment or abuse of child; the DCJ's asserted concealment of abuse and neglect by DCJ; DCJ's coercion of the Mother, racist dog whistling against him for fabricating child sexual abuse, the Mother's performing 'sexually charged' actions towards the Child; the Mother's lack of care for pet animals; DCJ's perpetration of coercive control and abuse of children; his application of 'Humanist' theory to the Child CB 1796 – 2079 01/02/2023 Father's current partner expresses support for Father's position CB 2080 01/02/2023 Father prepares (200 page) affidavit, features (among other things) criticisms of Duncombe CM and Crompton CM; argues for admissibility of sound-recorded evidence; expresses concerns for child protection, criticises his lawyer (and annexes letter to lawyer); complaints about M's treatment of his dogs; compiles table summarising DV related deaths in Australia; annexes a letter from Birmingham Jail by Martin Luther King CB 2084 – 2284 01/02/2023 Father prepares further (26 page) affidavit criticising his lawyer (Mr McLaughlin) and Magistrate Crompton CB 2286 – 2314 DCJ filed an amended CP. 01/02/2023 Care Plan recommends restoration to M. Provides that parental responsibility for contact between F and C should remain with the Minister. CB 1064 – 1084 Plan also recommended F's contact to be 4 supervised times per year, after a mental health assessment has been undertaken. Plan also recommends prohibition orders be made against F. Day 1 of hearing in Children's Court. Transcript in Court Book. 06/02/2023 DCJ Caseworker Taylor opines that there is no evidence to support the view that the mother had abused the child (T 25.39). CB Tab 39, 2477 – 2490 Taylor reports the Mother's explanation to her that the mother would attempt to leave the Father and over time he would 'weasel' his way back into the home (T 20.27) 09/02/2023 C saw a paediatrician, no issues identified. CB 2796 [55] 15/02/2023 F's affidavit complains of Magistrate Crompton's and Jane Smith's conduct at hearing on 6 February 2023 for 'callous ignorance on the effects of racial discrimination', requiring him to breach his privacy by disclosing his ill-health. CB 2317 – 2319 22/02/2023 – 27/09/2023 C started staying with M from Wednesday to Saturday each week. CB 2793 [36] 05/03/2023 F prepared an apology letter to M. CB 2365 16/03/2023 Day 2 of hearing. Transcript in Court Book. CB 2478 – 2563 Mother gives evidence that the history of domestic violence perpetrated by the Father against her included controlling behaviour, emotional abuse and physical abuse (T 44.46). Day 3 of hearing. Transcript in Court Book. 20/03/2023 Mother responds to the Father's proposition that episodes of abuse occurred only when the child was in bed, mother says that the child did not want to go to sleep, he woke up and heard (abuse) in the morning when he woke up (T 6.5). CB 2564 – 2639 Mother gives evidence about how the Father would describe her in front of the Child. She states he would usually say words such as "prostitute, whore… bitch, asshole." (T37.50) 22/02/2023 Father's affidavit accuses DCJ and Legal Aid as perpetrating racial hate and asserts Mother perpetrated domestic violence regarding return of F's passport CB 2321-2328 26/02/2023 Father's affidavit records various types of 'information' provided to the Court. CB 2329-2363 11/03/2023 Father's affidavit complains about conduct of Mr Ryan as ILR CB 2366-2370 12/03/2023 Father's affidavit complains of Magistrate Crompton's 'manipulative' language CB 2371 - 2379 19/03/2023 Invoice to F by 'Betterhelp' service covering psychotherapy and other consultations from November 2022 – March 2023 CB 2385-2388 28/03/2023 Final ADVO against F for M's protection. CB 2775 - 2777 03/04/2023 DCJ conducted home visit to M. No major issues identified. CB 2794 [42] 04/04/2023 F sentenced to community corrections order(for 12 months) for assaulting M occasioning actual bodily harm (on 6 May 222). [15] (Chance, 15/1/24) His appeal to the District Court against the severity of the sentence is later withdrawn. 05/04/2023 This is the date on a version of a letter of apology by F to M appearing in the Court Book. Tab 24 (CB 2365) 17/04/2023 DCJ conducted home visit to M. No issues identified. C's behaviour recorded to be improving. CB 2794 [43] 17/05/2023 C had pinprick test, no allergies identified. CB 2796 [57] 23/05/2023 Day 4 of hearing in the Children's Court. Transcript in Court Book. CB 2640 – 2717 25/05/2023 Day 5 of hearing. Transcript in Court Book. CB 2718 – 2765 The Father concedes incidents of domestic violence: (a) putting his hands over the Mother's mouth; (b) calling her names and (c) hitting, punching or slapping (albeit at less frequency than that contended for by the Mother) (T 21.23 and on). 21/06/2023 DCJ conducted home visit to M, no issues identified. C recorded as being more confident/assured and less stressed/anxious. C informed Mr Chance that he wants to "live his with mum every day". CB 2794 [44] September 2023 (approx.) M stopped seeing Ms Hong for psychology sessions. M explains that she reached out to Ms Hong to give evidence for this appeal, but had exhausted subsidised sessions through victims' services. [16]-[17] (M, 23/4/24) Final Orders made in the Children's Court: 1. All aspects of Parental Responsibility to the Minister for 9 months. 2. At the conclusion of Order 1, all aspects of Parental Responsibility to M, to the exclusion of F, until C turns 18, save for the aspect of contact. 04/09/2023 3. At the conclusion of Order 1, Parental responsibility for contact to the Minister until C turns 18. CB 2439 – 2476 4. A supervision order for 12 months. 5/6. The Secretary is to provide the Court with a report at 3, 8 and 10 months after orders. 7. Section 90A prohibition order on F. Reasons for Judgement. 07/09/2023 Mr Chance called Eastwood Police to provide an update about C's circumstances. CB 2794 [45] 09/09/2023 F files appeal of Children's Court decision. CB 2962 – 2976 09/09/2023 – 05/05/2024 Since filing his appeal, F has filed more than 50 affidavits. CB Tab 54 – 120 11/09/2023 Mr Chance completed disclosure of placement information assessment. CB 2794 [46] 25/09/2023 DCJ had case plan meeting about restoration. In attendance was M, Mr Chance, Ms Myers and Ms Beth Hein Seeh Chan, support worker. CB 2794 – 2795 [47] DCJ drafted a transition plan for C to be placed in M's full-time care. 27/09/2023 C restored to M's care. For a period, C stays with former carers one night each fortnight, but since 11 December 2023 C has been in M's full-time care. [36] – [40], [50] (Chance 15/1/24) DCJ conducted home visit to M. Mr Chance recorded that C was feeling anxious that his placement was ending and appeared to be scratching his back but was excited to return to M. M reported scratches and said that C was asking when he could come live with her. October 2023* C attended occupational therapy for 6 weeks. No further treatment required. [61] (Chance,15/1/24) 02/10/2023 C's emails to Mr Chance report AHRC had accepted F's complaint of racial discrimination against him. Mr Chance indicated he had not heard from AHRC and is unaware of any investigation occurring [82] (Chance 16/1/24) 21/11/2023 DCJ conducted home visit to M. Mr Chance recorded that there had been challenges, however M and C were adjusting. CB 2795 [51] 11/12/2023 C started staying with M full-time. CB 2793 [39] M refers to challenges in managing C's behaviour and her (initial struggles with it), the assistance she derived from previous carers and her disclosure to DCJ [21] – [27] (M, 23/4/24) 18/12/2023 Mr Chance writes to F about requirements to recommence family time between himself and C; including recommendations such as sending birthday and Christmas cards first, before progressing to next step of potential video or phone calls. Father responds by saying that another practitioner) had described the DCJ's letter as being 'racist'. [83] (Chance, 15/1/24) 20/12/2023 F responds to Mr Chance's 18/12/23 letter, querying requirement for a psychological assessment [84] (Chance, 15/1/24) 05/01/2024 DCJ conducted home visit to M. Mr Chance recorded that there were notable improvements, in particular M's understanding of C's psychological needs. [53] (Chance, 15/1/24) 10/01/2024 DCJ sent F update regarding C, "Provision of information regarding [the Child]'s progress in care". CB 2958 – 2961 17/01/2024 Section 82 Report filed with the Children's Court. CB 2779 – 2785 The report features the opinion that the restoration to M had occurred without any major concerns. F does not currently have contact. 19/01/2024 Mr Chance deposes to his belief that Mother had sufficiently addressed the child protection concerns in relation to the child and actively engaged with services to address her mental health. [7] (Chance, 19/1/24) 22/01/2024 DCJ sent F a letter regarding his contact with C, confirming that DCJ does not agree to Dr Pusey conducting the mental health assessment for the purposes of contact and wish to use a third party assessor. [49] (Chance, 29/4/24) Letter indicates that F's contact with C would be reviewed if the sending of cards was considered successful. 29/01/2024 (approx.) C started engaging with Kids Xpress for therapy and class room assistance. [65] – [66] (Chance, 15/1/24) Appeal listed in the District Court. The following directions were made: The matter is listed for a Final Hearing on 6, 7, 8, 9 and 10 May 2024 at the Parramatta District Court of Appeal. 12/02/2024 F must serve his trial affidavit material by 15 April 2024. The defendants, M and the Secretary, must serve their trial material by 26 April 2024. F must serve his written submissions, not exceeding 5 pages, by 30 April 2024. M, the Secretary and the ILR must serve their written submissions, not exceeding 5 pages, by 3 May 2024. 20/02/2024 DCJ conducted home visit to M. Mr Chance observed C to be 'bursting with energy'. C did not express any concerns to Mr Chance. [11] (Chance, 29/4/24) 20/03/2024 C saw ear nose and throat specialist. C provided nasal spray and nasal wash to help C with breathing through his nose (C preferred mouth breathing). [14] (Chance, 29/4/24) 23/04/2023 M deposed that she is enrolled in the Black-Box program and referred to its assisting her to develop her parenting strengths. [18], [30] (M, 23/4/24) 23/04/24 M deposes to C's increasing independence, her earlier engagement of a private tutor (March 2023) and improvement in his reading, C's extra-curricular activities (soccer, karate) and Cantonese lessons and typical weekend activities. [31] – [37] (M, 23/4/24) M deposes to speech therapy plan, scheduled appointment with paediatrician, referral to ENT specialist (for breathing) and KidsXpress [40] – [44] (M, 23/4/24) 26/04/2024 DCJ conducted home visit to M. Mr Chance observed C to be cheerful when talking about F. [12] (Chance, 29/4/24) Particular aspects of the Secretary's evidence in the Children's Court proceedings 1. In this section of these reasons, I refer to certain features of the evidence not already apparent from the Chronology above. The contact visit reports (Tab 10A, CB 1101-1351) 1. In the chronology above, entries mostly concerned F's child contact visits (for the period 28 June 2022 to 15 December 2022). Most of the contact visits overall were visits by the Mother. I did not include those entries in the chronology, but I have read them. They generally present a positive picture of the Mother being empathetic and engaging with the Child. The Amended Care Plan (Tab 9, CB 1064-1084) 1. This was filed on 1 February 2023. 2. Pertinent parts, relating to the central issues in this proceeding concerning restoration, appeared at CB 1069-1071, when the DCJ considered the topics of the 'parents' ability to understand and address the child protection concerns affecting their family' and 'describe the relationship between the Child and parents. 3. In relation to the former of those topics, DCJ said of the Mother that she demonstrated a 'deep understanding' of the child protection concerns after initially being in a state of shock after the Child's removal from her care. Despite that initial shock, she had consistently demonstrated her priority in being involved in the Child's welfare, well-being safety and health development. 4. About the Father, DCJ said of him that he had demonstrated no insight or understanding into the child protection concerns, but rather viewed himself as being misunderstood and a 'whistle-blower' to alleged abuse he claimed that the Mother had perpetrated towards the Child. Further, he was said to have demonstrated a history of a combative and argumentative communication style where he appeared fixated on having others agree with his perspective, rather than demonstrating a desire to reach an agreement in favour of a mutually shared goal: the safety and well-being of the Child. The report commented that when he was unable to control the outcome of the situation he becomes defensive and accusatory. When he was became challenged he became degrading and condescending in his language, questioning the intellect of the person he was speaking to and often suggesting that the person was confused and forgetful. He was characterised as expressing 'grandiosity'. He appeared unable and unwilling to consider the impact of the Child by seeking to prevent him from learning alongside his peers and did not accept direction from those persons in position of authority, such as school staff and hospital staff. DCJ acknowledged that whilst he was academically successful, the Father demonstrated "consistent anti-social behaviour and rigid thinking patterns that make him unable/unwilling to acknowledge, understand, accept or address the child protection concerns". 5. In relation to the latter topic, DCJ observed the relationship between the Mother and Child to be 'loving and natural with a healthy attachment'. The Child looked to his mother for 'physical and verbal affection, engaged in play and conversation with her and demonstrated emotional and physical distress when they parted at the conclusion of visits. 6. Concerning the relationship between the Father and Child, this was characterised as being 'very neutral with little emotion and affection shown'. It was pointed out that following removal, the child expressed a fear of the Father and verbalised not wanting to commence 'Family Time' with him; which, it was said, was attributed to the Father "screaming" at him and making him "feel like crying". The Father's 'letter of apology' (Tab 24) 1. This was addressed to the Mother via Magistrate Crompton. The copy in evidence was not signed. Its typed dated was 5 February 2023. Its content was as follows: "Dear [Mother's first name], I accept responsibility for my conduct. I understand the consequences it had on [the Child's] growth and development. I experienced shame from disclosing my behaviour to my family and friends. I will never repeat this kind of behaviour again. I have taken rehabilitative steps to address my role in perpetrating domestic violence including … 1) Taking an anger management course; 2) working with Licensed Mental Health Counsellor Mr Noel James. I attend treatment sessions every week. I have seen Mr James a total of no less than twenty times. I intend to continue the treatment indefinitely. 3) working with Forensic Psychologist, Dr Paul Pusey. I attend treatment sessions every two weeks. I have seen Dr Pusey total of no less than five times. I intended to continue the treatment indefinitely. 4) taking a number of Parenting courses including: Circle of Security, Bringing up Great Kids, Triple P Positive Parenting, 123 Magic and Emotion Coaching and Tuning into Kids." Excerpts from Children's Court Hearing 1. In closing submissions, the Secretary and Minister referred the Court to the following evidence emerging in the hearing in the Children's Court before Crompton CM (February and May 2023): 1. The Father referred to counselling he had received from Noel James and Dr Paul Pusey (23/5/23, T 10-11, in CB 2640-2650). Counsel for the Secretary noted that no reports had been supplied by those practitioners regarding their opinions about the Father; 2. Asked about his 'letter of apology', and what 'responsibility' he accepted, the Father's response was: "Not walking away from [the Mother], putting my hand over, over her mouth… Calling any – calling [the Mother] any names that I would have called her before. Not going to, not going to the hospital and the complaining. Asking [K] to handle, to handle some things rather than doing that myself. Not giving [the Child] baths. Asking [the Mother] to do that. Not immediately – not – not waiting till there's, like, a better time to talk to [the Mother] if that was upset about or if there was any kind of - if there was, like, anything going on while [the Child], was, like, right in front of her" (25/5/23, T 21.23 – 21.39)" 1. Asked by Counsel for the Mother about his conduct towards the Mother on 12 March 2019, the Father gave evidence along these lines: "I must have called [the Mother] names. Put my hand over her mouth. … I got into another argument with [the Mother] and then she started yelling at me and I didn't go away. I started yelling at her back to be quiet. Then she started to scream and then I put my hand over her mouth again .. And then she started to scream even more and then I didn't remove it ..And then I yelled at her some more to be quiet" (25/5/23, T21.30 – 22.25)" The s 82 Report to the Children's Court. 1. This appeared at Tab 48 of the Court Book. It had been prepared by Mr Chance, the DCJ Caseworker, and approved by Ms Veles. It was filed on 17 January 2024 in the Children's Court. 2. The Executive Summary was in the following terms: "Since 27 September 2023, [the Child] has been living with his mother on a full-time basis. Although [the Child] took time to adjust to this arrangement, he has settled in well and is building a strong bond with his mother .. [The Child] is not currently seeing his father. DCJ hold parental responsibility for [the child's] contact with his father until [the Child] turns 18. DCJ intends to keep working alongside [the Child's] father to attend a mental health assessment. The outcome of that assessment, along with other work with the family, will inform the Secretary's decision on implementation of contact between [the Child] and his father." 1. In the section of this report updating on the contact aspect, the report: 1. referred to the DCJ letter of 20 December 2023 to the Father. This letter informed the Father about requirements to recommence spending time, between him and the Child. It included recommendations about certain things for progressing to the step of potential video will phone calls; 2. noted that the care plan required the Father, before recommencing contact with the Child to meaningfully engage in a mental health assessment and any recommendations made within such assessment. At that point the Father had not participated in such assessment. DCJ acknowledged that the Father may not participate in such assessment and was "open to reassessing" its position on family time is between the Child and the Father; and 3. noted that in a home visit on 27 September 2023 the Child expressed that he wished to have supervised contact with the Father. It further noted that it was explained to the Child that supervised contact could (not) occur at that time. It had been explained to the Child that the Father was still angry and when he was angry, he was not a safe person for the Child. It was also noted that a facilitator from 'Kids Xpress' was supporting the Mother to have conversations with the Child about why he was not seen the Father, in an age-appropriate manner and in a way that Child understands. Deborah Taylor's Evidence 1. Ms Taylor is a DCJ caseworker. She said she had 4 years of experience at the DCJ with qualifications of Bachelors' degrees in Social Work and Arts. She was the allocated caseworker for the Child from 20 April 2022 until she ceased working in that capacity in August 2022. 2. Her affidavit, which was read in this proceeding, was affirmed on 7 July 2022. The body of the affidavit was 65 pages in length. With annexures, her affidavit came to virtually 205 pages. Much of what she deposed to is reflected in the above chronology. 3. Under cross-examination by the Father, Ms Taylor was probed as to the extent of training she had received from the DCJ on such things as to assessment of the risk of harm to children (by parents), for caseworkers to guard against the risk of racial bias against parents, her awareness of legislative requirements (including but not limited to the Care Act, and extending to the Racial Discrimination Act 1975 (Cth) ('RDA'), Australian Human Rights Commission Act 1986 (Cth) ('AHRC Act') and Anti-Discrimination Act 1977 (NSW). Ms Taylor was asked her view whether a parent yelling at and striking out at a child would be considered to amount to domestic violence (Ms Taylor indicated that this depended on context). 4. Ms Taylor was taken through certain paragraphs of her affidavit, largely to clarify what her evidence was. A summary of her evidence in this regard was as follows: 1. She was referred to her evidence (paragraphs 7-10, 23, 47(e)) about the content of ROSH reports (covering the period Jan –August 2021) and was asked about her awareness of the outcomes of the reports. She indicated that she did not know (she was not the caseworker on those occasions); 2. She was referred to her evidence of a telephone conversation with the Mother on 26 April 2022 in which, among other things, she deposed (paragraph 93(c)) to the Mother predicting to her that the Father would pull the Child out of school and would not attend the next day. She did not recall the name of the school; 3. She was referred to her evidence (paragraph 96(f)) of what the Mother said to her during a meeting on 28 April 2022 and, specifically, and the Mother's assertion to her that the Father had continued to be verbally, mentally and emotionally abusive. Ms Taylor said she had no better recollection of the words that the Mother had used than this; 4. She was referred to her evidence (paragraph 97) of what Ms Bridekirk, principal of the Child's (primary) public school, told her on 29 April 2022. She was asked, but said she could not recall, what (if anything) she said to Ms Bridkekirk; 5. She was referred to her evidence (paragraph 98(a)) of her conversation with Ms Lau, a speech therapist for the Child, in which the Ms Lau alluded to an 'agreement' that an extra year at pre-school might benefit the Child. Asked for her understanding who she thought such 'agreement' was between, Ms Taylor could not be sure, but thought that it was between the Mother and Ms Lau; 6. She rang Dr Kim Chau-Vo, of the MQ Health General Practice on 23 May 2022. She understood that Dr Chau-Vo acted as a 'friend' to the Father and expressed opinions as to what was best for the Child and the parenting skills of the Father and Mother (paragraph 105). Asked what Ms Taylor had done after this conversation, she said she did not know; although expected that her notes of the conversation would have been put into a database. Asked whether the receipt of this practitioner's (adverse) opinion about the Mother indicated concerns she might have against the Mother, Ms Taylor said she had no concern that the Mother presented a risk of significant harm to the Child other than in respect to act in a protective capacity for the Child because of the circumstances she was then in; 7. She was generally referred to her evidence at what occurred at an unannounced home visit on 23 May 2022 (paragraph 106) and more particularly, the event concerning her calling police after hearing argument and screaming as between the Mother and Father. Ms Taylor had recorded that police had reported to her that police could not change AVO conditions and that the Mother 'had to inform Police of further breaches'. Ms Taylor was pressed on what she meant when she recalled that part of the police report (sub-par 106(m)). She said that she did not recall Police used the expression 'further breaches', but that was only her interpretation; 8. She was referred to her evidence (paragraph 107 and Annexure 'M')) that on 23 May 2022, she, along with others, completed a Domestic Violence Safety Assessment in relation to the Mother. Ms Taylor was questioned whether she was aware of academic criticisms of this tool and she said she was not. She clarified that the assessment was not used to help her ascertain whether the Mother was a perpetrator of domestic violence; 9. She was referred to evidence (paragraph 116(c)) of Ms Taylor's call with the Mother on 6 June 2022 and her recollection that the Mother told her she was devising a parenting plan to provide for consistency and routine. Ms Taylor said she was unaware of further progress of that matter and did not recall the Mother bringing that matter up with her again; 10. She was referred to parts of her dialogue in a meeting she had (with Ms Myers) with the Father on 8 June 2022 (paragraph 117). She was specifically referred to her own description of Dr Chau-Vo as the Father's 'friend' (sub-par (a)). Ms Taylor did not recall why she used that description although recalled that the practitioner was a 'support' to the Father. She was referred (sub-par (j)) to her statement that DCJ would continue to work with the Mother and address 'concerns about her parenting' and subsequent statement that 'to date (the DCJ) had no evidence to believe that [the Child] was unsafe in the (sic) Mother's care.' Ms Taylor indicated that she meant what she stated. She was also asked whether Dr Chau-Vo called her after the meeting. Ms Taylor did not recall but said that if she did, that matter would have been recorded; 11. She was referred to her evidence (paragraph 118) about a meeting with the Mother on 10 June 2022. She was first asked about her evidence about the Mother's telling her about her struggles to 'enforce boundaries' in relation to the Father's 'pick up' times of the Child (sub-paragraph 118(a)). About this, Ms Taylor explained that she understood that the Mother was expressing her discomfort about places where the pick-up would occur (as she had indicated at 118(f)), and a trigger for her recollection was an occasion when the Father picked up the Child from a soccer game. Ms Taylor accepted that this belief had not been referred to in her affidavit. Ms Taylor also referred to the Father's 'threatening manipulative things' (to the Child) (sub-paragraph 118(b)). Asked whether she could recall any examples of such conduct, Ms Taylor said she could not; and 12. She was referred to her evidence (par 113) about sending the Father a text message on 31 May 2022 with the details of a Men's Behaviour Change Program. Ms Taylor said she could not recall details of the provider of that program. 1. Ms Taylor was also asked about certain practices within the DCJ, including 'in person meetings'. She said that a ROSH report was an occasion for that form of meeting. She articulated her belief as to how she could guard against developing too close a relationship with parents of children in respect to whom she acted as caseworker and what she ordinarily did to discourage parents from becoming too close to caseworkers. 2. Ms Taylor was referred to the minutes she took of a meeting on 15 June 2022 (CB 188). She disagreed that the minutes taken had created an impression of the Mother being too dependent upon Ms Taylor. She was also referred to multiple emails she had received from the Mother and her response between 6 and 9 May 2022 (CB 350-353). She could not recall any other email response that she gave. 3. Ms Taylor was asked for her views of the 'Tune report'. She was aware of a 'Family and Culture' report and in relation to the latter, said she thought that some changes had been made when dealing with Indigenous families. 4. She was asked about her own awareness of circumstances in which: (a) a parent had been assessed as being at risk of seriously harming a child but in actuality not being a risk; and (b) a parent not being assessed as presenting such a risk but the actuality that the parent was a risk (and perpetrated harm). Ms Taylor said she was not aware of those scenarios herself. 5. Ms Taylor indicated her awareness that risk assessment tools were supported by statistical research but was not aware of what lay behind such statistics. 6. Ms Taylor said that after the Child was taken into care, she could not recall whether she had visited the Mother's home. Mr Chance's evidence 1. Mr Angus Chance is a DCJ Caseworker. He is the current Caseworker for the Child and has been since October 2022. 2. Mr Chance prepared affidavits in the Childrens' Court proceeding (23 November 2022, 19 January 2023, 1 February 2023 and 9 March 2023) and this proceeding (15 January 2024 and 29 April 2024). These were all read at this hearing and reference to parts of them are incorporated in the Chronology. He also prepared the Amended Care Plan (1 February 2023) which was before the Childrens' Court. Mr Chance's cross-examination 1. Counsel for the Mother cross-examined Mr Chance. Features of that cross-examination were: 1. In his file note prepared 7 September 2023 (CB 2871), after Final Orders were made in the Children's Court, he referred to the Child "..becoming restless". Mr Chance indicated that this observation was made in a context where the Child had usually spent a period of 4 days a week with his 'kinship' carers (and 3 with the Mother); 2. In his review of a case plan meeting on 25 September 2023 (CB 2827), he said he obtained information from the Child's principal. By 27 September 2023, the Child had been restored to the Mother's care. Mr Chance observed that the Child had shown an 'eagerness' and referred to a 'smooth transition' to the increased time spent with the Mother; 3. At paragraph 40 of his affidavit (15 January 2024), Mr Chance noted that by 27 September 2023, the Child had lived with his kinship parents for 12 months and there was an 'adjustment' period; 4. He had been told about the Child exhibiting a tantrum and meltdown on 21 January 2023, but as at 21 November 2023 (after being fully transferred to the Mother on 11 November 2023), he thought that the Child would need time to adjust and observed that with increased frequency of time he spent with the Mother, the Child had experienced love and shown care from the Mother and had shown his adapting to the situation; 5. Asked to explain why full parental responsibility was transferred to her, Mr Chance said that the Mother had sufficiently shown an ability to care for the Child full-time, she had continuously engaged in programs for the Child, she had preserved his cultural heritage and had allowed him consistency in adhering to programs (including speech therapy) and continuing of hobbies and interests; 6. By 5 January 2024, Mr Chance considered (CB 2860) that there were 'notable improvements'. He considered that the Mother's issues had been 'trauma-informed', and that she was keen to understand whether the Child's behaviours had resulted from past trauma or represented a normal stage of development; 7. In a home visit on 26 April 2022 (CB 2947) Mr Chance referred to the Mother as being "very cheerful". Asked to elaborate what he meant by that, Mr Chance believed that the Mother had felt empowered and was positive in accumulated knowledge as to her knees and that of the Child; 8. Mr Chance was referred to a home visit prompt sheet he had prepared on 26 April 2024 (CB 2950). This was the first time that the Child had asked to convey to the Father his "liking" of living with the Mother. Mr Chance emphasised that there had been earlier indications that he had received that the Child had stated this, but this was the first occasion in which he asked for that to be conveyed to the Father; 9. Mr Chance referred to a file note of the conversation with "Kids Xpress" (CB 2867) and in particular to his note that when the Child 'dysregulated'. Mr Chance indicated that this reference did not concern him in the light of the explanation given by the therapist; 10. recently, on 2 May 2024, he had received two emails from an (unidentified) therapist at Kids Xpress (Exhibit 3X1) in which he received statements about the Child being happy living with the Mother. This, Mr Chance indicated, was consistent with his own views; 11. in a note he prepared on 7 September 2023 (CB 2869) reference was made to a safety protocol at the Child's school. Mr Chance said he thought that the protocol was still in place. He was asked, and he affirmed, that he had a concern that the Father may attend the school in the face of extant prohibition orders. He was referred to a statement that he was concerned with this in light of the latter's own experience of emails from the Father which he regarded as often 'accusatory'; ie not linked to the Child's welfare and safety and focused upon other people's wrongdoing; and 12. Mr Chance was referred to his own view of contact as between the Child and the Father. Mr Chance indicated that the Department sought to obtain a mental health assessment of the Father as a predictive tool for how he might behave with the Child. That had not yet been obtained. He understood that the Mother's concerns regarding the Father's contact centred upon her personal fear of the Father (and her wish to keep a distance from him), her difficulties communicating with him regarding contact. 1. Features of the cross-examination by the ILR were Mr Chance's evidence were that: 1. Since acting as the Child's caseworker from 14 October 2022, he attempted to see the Child every six weeks or so; 2. Asked why his opinion was that there was no realistic possibility of restoration to the Father, Mr Chance indicated that the Father had not addressed concerns which led to the Child being brought into care. A measurement of this was the Father's lack of progress to addressing the concerns identified in the family action plans (part of the information was referred to in CB 1067). Moreover there was nothing in the Father's conduct subsequent to this report that altered his opinion; 3. Since the Child had been fully restored to the Mother, Mr Chance observed that he had become cheerful and energetic and engaged in a variety of hobbies (chess, basketball, soccer as well as weekly participation in Chinese school); 4. Although he had concerns about the restoration of the Mother when that initially occurred, Mr Chance assisted her to engage with various services; 5. Those services did not include psychological counselling. Mr Chance was not particularly concerned about this as his opinion was that the Mother was confident and "in a good space" and in particular had demonstrated insight into how past traumas had or may have affected the Child and, at any rate the Mother had access to a former counsellor. To the extent or in the event that the Mother's own financial capacity may affect the opportunity to engage in counselling, Mr Chance thought that the Department may be able to facilitate resources for her; 6. There were no other concerns that he had regarding restoration of the Child to the Mother, in terms of his schooling or his health needs; 7. Mr Chance acknowledged that there had been difficulty in arranging an assessment of the Father. Asked, in effect, what the department had done about this, Mr Chance said that although it had not given the Father a list of potential mental health practitioners, attempts were made to enable his access to LSC psychology. Mr Chance indicated that although further options might be given to the Father, the Department had to consider his willingness to engage: Mr Chance recalled that earlier this year, the Father had been advised that he may wish to send some letters to the Child but understood that he had not done so; and 8. He believed that the Child was open to receiving contact with the Father but considered that further assessment of the Father was required. 1. Features of Mr Chance's cross-examination by the Father were: 1. Between October 2022 and March 2023, it was Wesley Mission who supervised the Mother's contact with the Child; 2. Although he identified several contact reports in his affidavit, he annexed those prepared when he was the caseworker; 3. He was referred to evidence he had given in his affidavit as to the circumstances whereby he was late for a supervised contact visit by the Father on 9 November 2022 and his conversation with the Father on that date. Asked whether Mr Chance was concerned about the Father, Mr Chance said he was: the Father was in an emotional state different to what other parents, in his experience, were likely to be and was so in the Child's presence. Mr Chance said he made several attempts to notify the Father that he would be late; 4. In relation to the proposed plan, this would be prepared by a caseworker and supervised by a manager. Mr Chance indicated that it was not a requirement for caseworkers to be familiar with peer-reviewed academic resources and there was no in-built dispute mechanism for review if a parent was dissatisfied with the plan. About the latter, Mr Chance explained that the plan evolved but if dissatisfied a parent was entitled to bring an interim court proceeding; 5. Mr Chance was referred to his description (paragraph 24 of his affidavit of 23 November 2022) of the Father 'derailing' conversations with him about the Child (CB 945). He explained that he wanted to focus on a topic but the Father wanted to move to other topics and descended into 'negative' commentary; 6. Mr Chance ventured his opinion that the Child was 'Asian'. Asked by the Father whether this amounted to a child protection concern, Mr Chance said that 'we' were interested in upholding cultural values. But, to the extent that the Father ventilated his views on the Child's heritage, Mr Chance effectively indicated that the Father's complaints could not be treated by caseworkers, but rather the DCJ complaints unit (or other agencies); 7. Mr Chance explained his experience and academic qualifications prior to commencing with the DCJ in 2021; 8. Mr Chance disputed the Father expressing concern about the Child re-contracting Covid-19 in 2022; 9. Mr Chance acknowledged that the situation developed whereby he limited communication with the Father to address the FOP and SOPP. This limitation, he explained, was to encourage the Father to address the child protection plans and proposed action plans; 10. Mr Chance was referred to a Wesley Mission note of a meeting on 22 November 2022 (CB 952) in which positive opinions were expressed of the Father's interaction with the Child; 11. Mr Chance was referred to a Family Contact Report he had prepared of a supervised family visit on 9 November 2022 (CB 960) and a point he had made about the Father telling him that he had not brought afternoon tea for the Child (the meeting running from 3:30 – 5:00pm). He accepted that he had not told the Father that he had such responsibility. Mr Chance said that he understood from the Father's interactions with the earlier caseworker that the responsibility fell under unofficial rules; 12. Mr Chance was referred to another reference in the same Family Contact Report (CB 961) when he noted that the Child 'slightly snuffed his nose' (before) wiping it. Mr Chance acknowledged that, as at November 2022, the Child's health was the DCJ's responsibility. Asked what he did, Mr Chance said that he had discussed with the Child's then carers professional support to assist the Child, including the Child seeing a general practitioner; 13. Mr Chance was referred to a statement in the same Family Contact Report (CB 961) in which the Father indicated his awareness of the (first) names of one of the Child's carers. It was suggested that Mr Chance could not have thought that the Father was a safety risk if it had allowed the Father to know of the names of the Child's carers. Mr Chance indicated his understanding that the Father knew the names, but not the addresses, of those carers; 14. Mr Chance was referred to a document (CB 964) that the Father had sent to him on 9 November 2022. Mr Chance recalled that on 9 November he had rung the Father with the intention of speaking about the SOPP and FAP. The document was sent three hours later. In that call, the Father complained about the disrespectful nature of the phone call. Mr Chance could not recall whether he responded to this document or met the Father to speak about; 15. Mr Chance annexed to his affidavit of 23 November 2022 (CB 968) a table he received from the Father, which he indicated (par 40 of the affidavit) was an 'evolving' document. The table was titled 'The lack of openness and transparency in the Department's communication'. Mr Chance could not recall whether he responded to this table or what actions (if any) were taken in response to it; 16. Mr Chance was taken to a statement in his affidavit of 19 January 2023, in which he indicated at paragraph 13) his preference not to go into an elevator lift with the Father. Although he acknowledged that he could not demand what the Father do, Mr Chance explained that he asked the Father not to follow him into the lift because of an earlier instance of close physical proximity to the Father where Mr Chance had felt threatened by him; 17. Mr Chance was referred to a minute of a meeting (CB 1023)) in relation to a multicultural consultation. The Father questioned him as to why the Father was not informed of the outcome. Mr Chance indicated that this consultation was for the DCJ's internal purposes, to assist him to obtain insight into the Child's culture and did not regard the Father as having any entitlement to be consulted about it. Mr Chance indicated that after reviewing the note, he had factored its content in his attempts to communicate with the Father; 18. Mr Chance was referred to this affidavit 9 March 2023. He was asked to assume that the last time the Father saw the Child was in November 2022. That assumed fact did not affect his opinion that although he was satisfied with the progress and support the Child is receiving at his school, there were concerns that his safety may be at risk because of the Father's awareness of the school that the Child attended (CB 1086). Mr Chance was also asked why inquiries were made of a range of people as to whether the Child should move schools and Mr Chance said he relied on the views of trusted adults when considering that matter; 19. he was referred to the information Mr Chance received that was referred to in his affidavit of 9 March 2023 (par 23) about the Child having had tantrums in overnight stays between Mother and Child. Mr Chance was not concerned about that since he expected that the Child would have opportunity to learn strategies. With reference to what he deposed to in his affidavit of 15 January 2024, Mr Chance denied being concerned that the Child was throwing tantrums in April 2023; 20. Mr Chance was referred to paragraph 52 of his affidavit of 15 January 2024 (CB 2795) where he commented upon challenges facing the Child since returning to the Mother's full-time care due to his adapting to a new full-time care environment; 21. Mr Chance was referred to paragraph 43 of the same affidavit, in which he deposed to a home visit on 17 April 2023, and his observation that the Child was improving his behaviour towards carers and the Mother. Mr Chance explained that the negative behaviours that were observed were tantrums when a boundary was implemented. Mr Chance indicated that he was not concerned, at this point, about the Child continuing to have tantrums; 22. Mr Chance said that he was aware of a history of the Child's tantrums when in his Father's care. Asked for his opinion as to whether prior acts of domestic violence by a parent was a predictor of mistreating children in the future, Mr Chance opined that the Father's history of domestic violence remained a concern: there were many negative outcomes for children and predictors as children developed, they would experience poor mental health outcomes, a lack of understanding the boundaries and occasionally repeat learned behaviour in intimate relationships; 23. Mr Chance said he expected that the DCJ would continue to provide services to the Mother as the Child got older, as part of its responsibility for the purposes of family contact. He was not concerned that the Mother may regress upon the cancellation of its services to her. He explained that the Mother had made substantial progress in demonstrating insight into the Child's basic and immediate needs and was likely to continue on that part; 24. Mr Chance was referred to his statement (par 86 of his affidavit of 15 January 2024) that it was necessary for the Father to understand acknowledged and signed a formal contact agreement and that DCJ would provide a formal contact agreement to the Father. However, Mr Chance acknowledged that the Father had not been provided with the formal contact agreement. He said that he thought that the DCJ was willing to consider the Father' contact even without a mental health assessment and was generally open to reassessing the issue of his contact; 25. He was also referred to the statement in paragraph 86 (same affidavit) in which he deposed that the DCJ was aware that the Father may not participate in a mental health assessment and was open to reassessing its position on family time between the Child and his Father. But Mr Chance said that there had been no change of position; 26. Mr Chance was challenged about an explanation he gave to the Child (on 27 September 2023), during a home visit, as to why he could not have access to his Father (paragraph 88 of the same affidavit). Although he had not spoken to the Father since three months before, Mr Chance described the Father as 'still angry'. He explained this description: his previous dealings with the Father suggested the latter was angry, and he had conveyed that description to the Child, and nothing that had happened since caused him to alter that opinion. He also said that he needed to provide an age-specific explanation to the Child. It was put to Mr Chance, and he denied, that he was telling the Child a 'white lie'. Mr Chance said that each time he visits the Child, he seeks to elicit the Child's view as to whether he wanted to see his Father. But he does not ask the Child in identical terms each time; and 27. Mr Chance said he was unaware whether the Mother had taken the Child to a Temple or religious classes or that Mr Chance had even spoken to the Mother about the Child's religious needs (other than in the context of discussing cultural issues). Ms Veles' evidence 1. Ms Jamie-Lee Veles is currently the Child's casework manager but she was also previously a caseworker for the Child. The change of role occurred after Mr Chance had prepared an amended care plan on 1 February 2023 (at that time the casework manager was Laura Townes). The main difference between the two roles was that as manager, she was overseeing Mr Chance's casework and involved in directions as to permanency planning. 2. Ms Veles was initially cross-examined by the ILR. In that cross-examination, Ms Veles materially indicated: 1. That the conclusion in the care plan (which she authored) that there was no realistic possibility restoration to the Father was based on a systematic approach comprising information received from a variety of sources (including other agencies) and an ongoing assessment as to whether the Father had materially changed. Since that original care plan, and pointing out the opportunity for parents to invoke rights under s 90 of the Care Act, the DCJ's position has not changed; 2. The DCJ's view was that the Father's contact with the Child should not occur until after he had undergone a mental health assessment, but such assessment had not yet taken place. Asked what steps the DCJ took to facilitate this for the Father, Ms Veles said that she sent a letter to the Father on or about 22 January 2024. She pointed out that the Father had been presented a different pathway (to proving suitability for contact) by demonstrating other means of communication to the Child (such as letters or cards). Her belief (later not disputed by the Father in his written submissions) that the Father had not written letters or cards to the Child. She said that the Father had not responded to her letter; nor written any cards or letters. Later, in answer to a question from myself whilst she was cross-examined by the Father, Ms Veles told me that she regarded the onus as falling upon the Father to respond to or comply with DCJ recommendations or advice; and not the DCJ's obligation to pursue the Father as to the extent of his compliance; 3. She was aware that the Child had expressed a desire for some form of contact with the Father; 4. She opined that since the Child been restored to the Mother full-time, the Mother had demonstrated insight and co-operation with the DCJ; and 5. With reference to the Mother's recent evidence regarding a financial burden, Ms Veles indicated that the DCJ had new financial provision in the 'supervision' period to assist the Mother. 1. Ms Veles was also cross-examined by the Father. Features of that cross-examination were Ms Veles' evidence that: 1. She indicated to the Father her preference that he would bring afternoon tea in any visit to the Child; 2. There had been some discussion with the Father in which he asked for reasons for a mental health assessment. It was put to her that, up to September 2022, he was not given details of a mental health assessment but she could not recall that; 3. She was asked her opinion about the extent to which DCJ assessments, as to prospective risks were, or should be, influenced by statistical analysis in contrast to the exercise of professional judgement; 4. She was asked about opportunities, outside of the 'court system' (with reference to s 90 of the Care Act) for a parent who, dissatisfied with how he had been treated by the DCJ, to obtain restoration with a child removed. Ms Veles reiterated that parents could make application under that statutory provision and demonstrate before a children's Court Magistrate that they had meeting the changed. But in this case, the Father had not demonstrated meaningful change; 5. She was aware that the Father had made many complaints to the complaints unit of the DCJ. She was unaware of whether the Father had been ignored by this unit: the complaints unit had not been in touch with her; 6. She agreed that in-person meetings could or would be desirable to limit the risk of miscommunication; 7. The Department had considered 'developmental changes' in the Child, with reference to stages of that childhood, when advocating for his restoration of the Child to the Mother and was confident that the Mother could deal with this; 8. The Department did not regard 'cultural issues' as being relevant to the risk to the Child; 9. She had invited the Father to share his views about the Child's religious instruction about Buddhism to the Department, but did not respond; 10. The Department was not aware of any toilet training issues affecting the Child; 11. Ms Velles was referred to her evidence that had noted that on 8 September 2022. She said she recalled that the school had administered a COVID-19 test. She also confirmed receipt (on 29 August 2022) of 6 emails from the Father containing links to secured files. She responded that she was unable to open the files and did not know if she opened the link. She said she did listen to audio files, but the quality of audio was not good. She did, however, recall the Mother and the Child having at least one argument. She characterised this as 'reactive abuse'; 12. Ms Velles was challenged on virtually all of her (uniformly negative) opinions about the Father expressed in the Amended Care Plan (CB 1070). Some of this featured implied propositions that she or DCJ should have followed up his expression of concerns; 13. Ms Velles indicated that she did not respond to the Father's email requesting details of the Complaints unit of the DCJ and his wanting to find out whether she was aware that the complaints unit did not accept his complaints; 14. she said the point of the care plan was to anticipate the Child's needs for 12 months. That plan had regard to religion falling under the section of 'identity and culture; and 15. Ms Velles was also referred to an email that the Father sent her on 19 September 2022 in which it was asserted that DCJ had excluded complaints from its records. The Mother's evidence 1. Material entries of the Mother's affidavit in this proceeding are incorporated in the chronology above. 2. The Mother was cross-examined by Counsel for the Secretary and Minister. Features of that cross-examination included her acknowledgement of SOPP and the requirements she needed to address, including: 1. Her ability to work transparently, co-operatively with the DCJ and others. The Mother did not understand that there was anything she thought would impair this capacity into the future; 2. Acknowledgment of child protection concerns leading to the Child's removal; 3. Her engagement in services to assist the prospects of the Child being restored to her and her involvement with the Northern Centre and North Sydney Child Protection; 4. Having safe and stable accommodation. The Mother said she had been in her current residence for almost 2 years. She stated her continued consent to home visits by the DCJ; 1. The Mother was further cross-examined by the ILR. Features of that cross-examination included: 1. She is funding paediatrician consultations. She agreed to abide by recommendations; 2. She observed that the Child's speech therapy has helped the Child with his stuttering: since he started with this, the Child had not stuttered at all or, if he had, it was very rarely; 3. She pointed out that the ENT specialist advised against any surgical procedure, but the position was being monitored; 4. She was concerned about her financial position; even though she was employed. She said that she was seeking child support; 5. Since her reference to 'teething' problems in her 23 April 2024 affidavit, these had 'decreased' number. So, too, had the number of tantrums by the Child; and 6. She had and continues to have a close relationship with the Child's earlier carers (and those carers' child). 1. The Mother was also cross-examined by the Father (giving her evidence remotely in accordance with an order made, by consent, on day 1 of the hearing). Features of that cross-examination were: 1. When in her affidavit of 25 July 2022, the Mother observed that she had contacted the RSPCA concerning the Father's dogs, the Mother explained that she wanted the Father to collect the dogs. Asked to explain how she got rid of his dogs, the Mother explained that she contacted someone who told her what to do so as to enable the Father had the dogs. This was someone from the pound; 2. When in her affidavit of 24 January 2023, the Mother referred to having read the contact reports of Mr Chance, on the subject of contact arrangements between the Father and Child, and she was asked whether she had read the Father's affidavits filed in the children's Court proceedings, the Mother said she thought that she had and commented that they were lengthy and numerous; and 3. When in that same affidavit she expressed her position that the Minister should continue to retain parental responsibility in respect to contact until the Child was "mature enough" to express his own views about the extent of contact with the Father, the Mother indicated that the Child had not reached that state of maturity. The Mother indicated that the Child had expressed that he wanted to see the Father, but in response to the question whether she wanted the Child to see the Father, the Mother said that this was up to the Child; and more specifically, the Child needed to tell the caseworker (Mr Chance). The Kid Xpress reports 1. On 2 May 2024, a therapist with this agency (whose name was not disclosed) sent two emails to Mr Chance (Exhibit 3X1). In the first of those, the therapist reported to Mr Chance their observations of the Child. At that stage the therapist had seen the Child for 7 sessions in Term 1 this year. The therapist indicated the extent of the contact: the therapist had been getting to know the Child and support him to feel safe in a therapeutic setting. Amongst other things, the therapist said that the Child spoke warmly of his Mother and time with this foster family. The Child had not, at that time, spoken to the therapist about his Father. The therapist indicated that they had no safety worries about the Mother and Child. 2. The second of the two emails occurred after the therapist had met the Child earlier in the afternoon. According to the therapist's email, the Child had 'reiterated that he enjoys living with his mum alone, when dad lived there he use to yell a lot and was angry a lot' and the Child 'did not like this'. The therapist also noted how much the Child had enjoyed Mr Chance's visits with him. The Father's evidence in this Court 1. In this section of these reasons, I will touch upon matters contained in the Father's affidavits prepared for use in the appeal proceeding in this Court. I emphasise the expression 'touched upon' since in this Court, the Father filed approximately 86 affidavits (Tabs 54-120 of the Court Book). That is an exorbitant number of affidavits to be filed in a civil proceeding; even one with the seriousness of subject matter of a children's care appeal. It would be oppressive for the Court to do anything more. Moreover, in my view, the probative value of most of the evidence for the issues that I am obliged to determine is low. That is not just because of the nature of the evidence, but because of its repetitive themes and frequent recitation of complaints about individuals and organisations which had also been a feature of the Father's evidence in the Children's Court proceeding. 2. Nevertheless, whilst recognising that they represent only the tip of the iceberg of materials that the Father supplied the Court, I will refer to four publications which were significantly emphasised by the Father. The Tune Report 1. During the Premiership of Mike Baird MP, David Tune AO PSM was commissioned to conduct an independent review of out of home care in New South Wales for submission to the NSW Cabinet. 2. Mr Tune was very critical of the state of home care in New South Wales. Specific criticisms included: * The system was not client-centred; * The system did not improve outcomes for children and families with complex needs; * The (former equivalent of) DCJ held primary responsibility for very vulnerable families with little influence over the drivers or levers for change * Expenditure was 'crisis oriented' and not directed to early intervention. It is hard to assess the effectiveness of interventions 1. Mr Tune advocated for an 'investment' approach through a 'NSW Family Investment Commission'. The New South Wales Government, in its response to the Tune Report's recommendations, established new governance relationships under the branding 'Their Futures Matter", which were regarded as having diverged from the Tune review. The Auditor-General found that those arrangements had been ineffective [9] . Gay McDougall 1. Gay McDougall is a Senior Fellow and Distinguished Scholar in Residence at the Leitner Centre for International Law and Justice/Centre for Race, Law and Justice at the Fordham University of the School of Law. The Father placed before the Court an article that Professor McDougall wrote on the International Convention on the Elimination of All Forms of Racial Discrimination ('ICERD'). The article presented, amongst other things, a survey on several Articles of the ICERD which subject States to certain obligations. Professor McDougall referred to a decision in 2019 determining the Committee's jurisdiction to consider a complaint of the State of Palestine against Israel, in spite of the latter's non-recognition of the State of Palestine. In this way the ICERD was distinct from other treaties perceived as recognising a State party's right to exclude relations with another State party. Dominique Allen 1. Ms Allen is of the School of Law in Deakin University. She wrote an article [10] on the subject matter of settlements, alternative dispute resolution in Australian discrimination law. As described in the Abstract, this considered the views of another person questioning how resolution of disputes may not facilitate justice and deny Courts the opportunity to develop the law. Andrew Jakubowicz 1. This author, of the University of Technology, in what appeared to be an unpublished article (at least unpublished in any journal) traced political and social trends associated with multiculturalism in Australia; including the greater engagement of Chinese Australians in politics. The author posited deep structural discrimination and spoke of a fraying of multicultural policy over the 15 years prior to the article and a need for a renewed policy. Professor Davis 1. Professor Megan Davis conducted an independent review titled 'Family is Culture: Aboriginal and Torres Strait Islander Children and Young People in Out of Home Care' in NSW. The report was presented to the then Minister for Families and Communities in October 2019. As its title suggests, its focus was predominantly upon the experiences of First Nations children within the child protection system. The review conducted a thorough analysis of the removal of 1,144 Aboriginal children into the system in 2015-16. None of its recommendations were specific to the experience of immigrants generally, or Asian immigrants in particular. There are scattered references to institutional racism, but only in relation to First Nations People. There were no references to racism or racial discrimination against immigrants generally or Asian immigrants in particular. Nevertheless, there were several structural criticisms of the system that were not specifically linked to indigenous persons. Professor Davis criticised a lack of transparency and insufficiency in oversight. There were poor internal complaints handling processes, ill-equipped third-party agencies providing care; and an ineffective approach to regulation. She proposed, amongst other things, establishment of a 'NSW Child Protection Commission', as well as an independent review of the DCJ internal complaints handling system. The report also recommended changes to placement principles; notably to give effect to an 'Aboriginal Child Placement Principle', 2. In the Father's closing written submissions, emphasis was placed upon the evidence he had supplied to the Court which addressed the following topics, including (without limitation): 1. The need for me to choose between 'substantive' equality or 'performative' equality whilst navigating between 'competing priorities' in domestic legislation and international conventions; 2. Systematic racism in Australian courts (and Australian society); 3. Criticisms of the 'Men's Behaviour Change program' (including whether its use was discriminatory on the basis of religion or sex) and the lack of reliability in the domestic violence tools in the DCJ; 4. A denial of human rights to the Child, located within the Convention on the Rights of the Child ('CROC') and ICERD; 5. Peer review analysis of 'white saviour' complex, 'white supremacy' and 'white colonization'; 6. Racism in the Judiciary; 7. Racism associated with 'Attachment' theory; 8. Racism associated with the Father's referral to a clinical psychologist; 9. Racism within the Complaints unit within the DCJ and criticism as to how it responds to complaints; 10. Criticisms of Catholic Care, the DCJ, the NSW Ombudsman, the Department of Education for their common view that the Father's complaint were only tangentially linked to Court cases to be handed by the Court; 11. My conduct in racially discriminating against the Father by expecting the Father to have the capacity to 'resist' or withstand challenge to propositions verbally advanced by him during hearing at the same level (of competency) as "white" Australian lawyers. The Father contended that "non-whites" like him were "abused (by me) even bringing up race"; rejecting his recusal application against me; my assisting DCJ to perpetrate discrimination; and 'endorsement' of racist abuse of Australian police and Australian Government agencies; and having 'violated' rights under the ICERD (and CROC) by rejecting evidence that would show 'racial segregation'; 12. Violation of provisions of the ICERD and CROC; 13. Maladministration and a lack of accountability; 14. The significance of 'whiteness' in those who exercise power in society (including police, the judiciary, the NSW Ombudsman and even clinical psychologists); 15. The pros and cons of the DCJ complaint handling system; 16. Vandalism of a Chinese museum; and 17. Concerns about how the leaders of China might utilise accusations of racism against those involved in child protection system (including lawyers and the Judiciary) may be exploited by China against this country. 1. Within the evidence he filed in this Court, the Father made complaints and serial accusations. Without purporting to be exhaustive, these were made against: 1. DCJ caseworkers Taylor and Chance, and casework manager Veles; 2. his former lawyer (Mr McLaughlin) and Mr Barber; 3. Ms Joanna Chapko for representing that the Father had (in November 2023) consented to orders in the Children's Court; 4. Ms Jane Smith (to the Office of the Legal Services Commissioner (OLSC)); 5. the Government of NSW for perpetrating violence against the Child, impairing his and the Child's human rights and freedoms and breaching the Convention for the Elimination of All Forms of Racial Discrimination; 6. the Local Court; 7. Mr Ryan, the ILR, for failing to respond to the Father's complaints against him; 8. Duncombe CM for statements made in the course of proceedings against the Children's Court, including derogations from a UN Convention; 9. DCJ caseworker Veles for mistreatment of his dogs; 10. DCJ caseworker Ritorto 11. Wesley Mission; 12. NSW and Australian Police; 13. Mary Maher, of the Pennant Hills centre 14. the Complaints' unit of the DCJ; 15. the principal of the primary school attended by the Child; 16. (the 'visibly White Australian') Crompton CM; 17. lawyers within Legal Aid; 18. the (then) NSW Liberal Government for perpetrating hateful and prejudicial stereotypes of Japan and Asia; 19. the Australian Government, Australian thinktanks and Australian police for accusations against Chinese people who do not obey other Australians and engaging in untruthful and misleading conduct; 20. former Australian Prime Minister Howard and Cardinal Pell for 'inciting a person to commit racially linked mass murder'; 21. Registrar Montano; 22. the Judicial Commission of NSW and the Children's Court for failing to acknowledge the existence of racial discrimination; and 23. Abigail Grimes, of the DCJ complaints unit; 1. A common theme expressed in the Father's submissions is the 'contempt' by legal representatives for the Secretary and Minister for 'racial equality' (MFI 2, par 25). 2. Very close to the hearing of this appeal, the Father also foreshadowed making complaints to the OLSC against lawyers representing the "government, the Secretary or Minister" (MFI 2, paragraphs 34) [11] . During the hearing, on the same scheduled day (10 May 2024) that I delivered my reasons for rejecting the admission of a sound recording of a conversation the Father had taken of a private conversation [12] , the Father also indicated his intention to complain against me to the Judicial Commission of New South Wales; as a platform for applying for my recusal (an application that was refused). 3. The Father also included, within the additional evidence in this Court a raft of statements from agencies, reproduction of the content of international conventions, articles of law journals (eg the University of Chicago Law School); a social worker's paper on institutional racism; commentary in the Judicial Commission's 'Handbook for Judicial Officers'; references to newspaper reports of attacks on individuals; papers on 'White supremacy' in child welfare; papers on racial discrimination against children; articles on 'whiteness'; papers on mental colonising; papers on the reliability of risk assessment and reasoning errors in child protective services; papers criticising 'attachment theory'; a paper concerning dishonesty in the 'domestic violence' industry; sections from 'ruleoflaw.org.uk'. The hearing in the Children's Court The Magistrate's reasons 1. Magistrate Crompton determined that there was no realistic possibility of restoration of the Child to his Father within a reasonable time period. His Honour's reasons for this determination appear at Tab 38 of the Court Book (the orders appearing in Tab 37). 2. By way of summary, after setting out the principles to be applied, and summarising the evidence in the Children's Court, Magistrate Crompton set out his Findings and Conclusions from paragraphs 80 to 152. 3. At paragraphs 80 to 93, it was apparent that Magistrate Crompton accepted submissions made by the Secretary. The Magistrate commented favourably upon the Mother's presentation, describing her as an "honest, frank and credible" witness and stating how impressed he was by her "considerable insight and resilience". Magistrate Crompton concluded (at paragraph [95]) that the Mother had "commenced the process of improving her parenting and that there had already been some significant success on her part which enabled a confident assessment that continuing success might be predicted such that [the Child] could safely be restored to her care". 4. The Magistrate noted (paragraph 97) that the Father was not seeking to have primary care for the Child. He was only seeking periodical contact. He did however seek to be allocated parental responsibility for the aspects of education, religion and medical treatment; however as the Magistrate pointed out, the court would need to make a finding that there was a realistic possibility of restoration within a reasonable time. 5. The Magistrate also substantially adopted submissions put by the Secretary. This included the Magistrate's acceptance of the submissions that: (a) the Father's conduct towards the Mother over a period of almost a decade constituted domestic violence as well as coercive control, with such conduct often occurring in the presence of the Child; and (b) that the Father's evidence demonstrated a serious lack of insight into the issues that led to the Child's removal. Among other things, the Magistrate considered and assessed the weight given to a brief letter of apology that the Father had written during the course of the hearing in the Children's Court. It was clear that his Honour regarded the document as inadequate. 6. Magistrate Crompton generally described the Father as presenting as "a difficult and evasive witness. When questioned or challenged about the veracity of his evidence he was very quick to anger. Overall I would describe as hostile and obdurate. His behaviour during the course of the hearing leads me to share Secretary's concerns about (him)" 7. At [125]-[126], Magistrate Crompton determined that having considered the extensive evidence of domestic violence and coercive control perpetrated by the Father against the Mother (including in the Child's presence), his lack of regard and respect for authority, his blatant disregard for orders of a court, his lack of insight into his own behaviour, and the fact that he had not demonstrated any meaningful change to address the issues that led to the Child's removal, the Father posed an unacceptable risk of harm to the Child (as well as to the Mother) and that would be unsafe for the Child to be restored to the Father's care. There was therefore not a realistic possibility of the Child being restored to the Father's care within a reasonable period. Credit findings Ms Taylor 1. I thought Ms Taylor was a good witness. Although prone at times to give unnecessary information in answers to questions, I thought that it represented an attempt by her to be helpful rather than any attempt to embellish. She exhibited no animus against the Father. She appeared 'professional'. I have indicated that most of the questions to her were, in substance, to clarify matters she had deposed to. She was not seriously challenged about the correctness of the evidence itself. She accepted the limits of her evidence and stated recollections; which was partly a function of her recording other caseworkers' notes (such as ROSH reports). She was honest and credible. Mr Chance 1. Mr Chance was a thoughtful witness who listed carefully to questioning and paused to reflect on his answers. I think he did his best to be honest. Nevertheless, there were certain (and, in fairness to him, a minority of) instances in which I considered that he lacked directness in his answers and appeared more content to provide lengthy explanations (such as his lack of responsibility). I acknowledge, as a contextual matter, that Mr Chance had been subjected to a large number of vituperative criticisms by the Father which may have accounted for a degree of defensiveness. This suggested he was concerned about the effects of his answers. That said, there was little in the cross-examination he endured which challenged the content of his affidavit evidence and his evidence did not strike me as inherently implausible or exaggerated. He persuasively rebuffed the challenges to him by the Father. Ms Veles 1. I was impressed by this witness. She listened very carefully to each question and gave a direct and as concise an answer as possible as she could in each instance. She was essentially unshaken and I find that she was an honest and reliable witness. The Mother 1. I was also impressed with this witness. She also listened very carefully to questions raised of and did her best to answer them. Her answers were thoughtful and intrinsically plausible. Her presentation confirmed the impression of honesty manifested by her capacity to reflect on difficulties and, in some cases, her expression of regret of her own past behaviour (a vivid contrast to the Father). Her honesty was also emphasised by fairness in acknowledging that the Child had indicated a desire to see the Father (something she could easily have omitted to do if she was bent upon damaging the Father) and she did not object in principle to the Father having contact with the Child so long as it was superintended by the Department. There was little embellishment or exaggeration. Her evidence was measured. 2. Counsel for the Mother referred me to Magistrate Crompton's assessment of her evidence in the Children's Court as showing 'considerable insight and resilience'. The Father 1. The Father, who read a voluminous number of affidavits, was ultimately not required for cross-examination (for the circumstances as to the Secretary's evolving position, and the ultimate basis for it, on this matter, see T 265). 2. That deprived me of the advantage of seeing for myself the Father tested upon his evidence as a witness; as distinct from my seeing and hearing him as an advocate in his own cause. I note below the submission advanced by Counsel for the Mother as to the demeanour-based adverse credibility findings made by Magistrate Crompton in the Children's Court. I will return below to my findings of the Father's credibility and reliability, in the light of all of the evidence and submissions, below. Addressing the Father's general submissions 1. Before addressing submissions on the real issues identified, I propose first to address more general points raised by the Father. 2. I do so with some trepidation, given the very broad canvas of social and political issues he raised, which are not ordinarily addressed in civil cases before this Court. They are controversial issues upon which reasonable minds may differ and thereby more appropriately dealt with by the legislative and executive arms of government. Some legal issues, on the other hand, are identified and I have less trouble in trying to deal with them. 3. I propose to deal generally with certain key points raised by the Father in order to indicate why I disagree with them, before addressing the issues that had been identified at the outset of this hearing as requiring my adjudication. 4. I emphasise that I am addressing 'key points'. It would not be consistent with s 56 generally and s 59 and s 60, in particular, of the Civil Procedure Act to address each and every point or submission, or each and every item of evidence that the Father relies upon. The limits of my role and functions 1. The most cursory review of the Father's submissions indicates an ingrained sense in him that he (and, derivatively, the Child) are victims of a corrupt racial conspiracy perpetrated by individuals occupying positions within organs of the state concerning what may be described as the 'child protection system'. Serial assertions have been made of racial discrimination; whether that be overt or whether it be indirect; whether that be the product of actual bias or sourced in unconscious bias. A multitude of references are made to concepts of how participants in the child protection system, including judicial officers have, made recommendations or decisions that are, at the bottom of it all, racist in intention or effect (or both). 2. In his primary closing written submissions (MFI 18), the Father effectively threw down the gauntlet to me, to decide this case according to what he defined or described as 'substantive' equality/justice as distinct from 'performative' equality/justice. 3. This misconceives my function and the limits of my powers. I exercise my functions and powers in accordance with my judicial oath to "do right to all manner of people according to law, without fear or favour, affection or ill-will". That amounts to a declaration and promise of impartiality. Within the limits of my training and experience, first as practitioner and professional judge, and my life experience, I strive to do my utmost not to 'favour' one person who identifies as being or one race, ethnic origin, colour or nationality over another person who identifies with a different race, ethnic origin, colour or nationality; but rather exercise my functions and powers according to law. 4. I conceive of my role of applying the law; most conspicuously by identifying relevant facts, identifying the law, which includes relevant statutory provisions and binding statements of superior courts interpreting statutory provisions, and applying the law to the facts of the particular case before me. Sometimes statutory provisions directly apply provisions of international conventions or treaties or are otherwise influenced by such provisions of international conventions. 5. My role is not to redress societal wrongs. I am constrained by the extent to which my reasoning can be influenced by academic writings about societal wrongs or socially disadvantaged groups. I am not permitted to give vent to my personal views about social and political policies enacted by legislators to address social disadvantage. It would be illegitimate for me to 'agitate to push case law in the direction of racial equality', that the Father invited me to undertake. I am not permitted to act as a law reform commissioner, a de facto royal commissioner, or (more significantly perhaps) the National Children's Commissioner. I have no commission to act as a Commissioner of the Independent Commission Against Corruption. Nor do I have any kind of 'supervisory' jurisdiction for reviewing decisions of Ombudsman, the NSW Police, or the Complaints Unit of the DCJ. I do not stand in the shoes of the AHRC that receives communications on the application of provisions in the ICERD. It is not my role to usurp the functions of the Federal Circuit Court about unlawful discrimination. Performing any of those functions would vastly exceed the statutory limits upon my functions and cause me to fundamentally commit jurisdictional error; in the sense of my breaching "an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute." [13] 6. My task, conventionally applicable to all judicial officers, is to strive to apply externalised objective standards of the law within the limits of jurisdiction and my powers. The DCJ's failure to apply statistical analysis and 'western peer-reviewed academic sources' 1. The Father criticised the unscientific rigour or methodology deployed by DCJ caseworkers when making predictions on such concepts as 'serious risk of harm'. 2. There are two difficulties I have with the Father's point in this regard, (aside from the choice of the word 'serious' which derogates from established authorities [14] that emphasise the adjective 'unacceptable' risk of harm). The first is the nature of decision-making when making predictions as to the future and the relevance of probabilistic reasoning by reference, in particular to, statistics when considering past events. 3. A practical example of the latter phenomenon was the following oral submission the Father put to me (T 353.27): "If one in five Chinese are attacked, physically attacked every year, and 50% of residents in Australia are racist in one way or another, objectively from their answers to surveys, that is tested and valid, then that suggests a high level of racism. Even a likely level. That means you have one person, 50% chance. Two people, 25% chance. When you get to ten people, it's basically like a 1% chance of not being racist. 1% is very low. And if you get - how many people do you even know. If you know 50 people, one over two to the power of 50, it's basically impossible not to deal with someone that has discriminatory views.". 1. This is probabilistic reasoning that is inapposite in the Australian legal system. Writing extra-curially in 2019 [15] , the Chief Justice of Australia explained why probabilistic reasoning has not displaced the mode for proof of in curial decision-making and identified the limits of purely objective data to decision-making. His Honour [16] cited a famous example from the American law professor Lawrence Tribe: "The example is of a town in which there are just two bus companies. The Blue Bus Co has 95% of the buses. The Red Bus Co has the other 5%. The evidence shows only that the plaintiff was knocked down by a speeding bus in the dead of the night and nobody saw the colour. The question is whether the plaintiff recovers damages in negligence from the Blue Bus Co on the basis that there is a 95% chance that the blue. The answer our legal system gives is 'no'. …. The reason we do not impose liability in that probabilistic way ..is deeply rooted in our conception of justice according to the rule of law. The rule that a bus shall not be driven at more than 60 miles an hour is a rule that the driver of a bus is expected to obey, and either obeys or does not. Only its breach gives rise to civil or criminal liability. If liability was to be imposed in proportion to the probabilities without need to prove an actual breach of the rule, the Blue Bus Co could stay within the speed limit and still be liable for 95% of the damage sustained by the plaintiff being knocked down by a red bus, and the Red Bus Co could exceed the speed limit and still be liable for 5% of the damage sustained by the plaintiff knocked down by one of its own buses. Neither company would have an incentive to obey the rule. The normative force of the rule itself would be destroyed." 1. The Chief Justice then went on in the same article to explain the nature of fact-finding on the balance of probabilities. His Honour, in particular, referred to the inherent subjectivity of belief in or satisfaction of a fact. His Honour observed (in the context of fact finding of past events): ".. The subjectivity of fact-finding also allows to understand why a statistically objective assessment of what probably occurred based on the evidence cannot be the measure of the veracity of curial fact-finding and should not be its goal. Recognising that the process of forming a state of mind cannot be divorced from the consequences that flow from such a state of mind being formed assists in understanding why we do not aspire to … "Trial by Mathematics". Improbable things, by definition, sometimes happen. Experience teaches that it is the happening or asserted happening of an improbable thing which in the majority of civil cases gives rise to the underlying dispute about liability. The risk of error inherent in finding an improbable thing to have happened on the balance of probabilities, like the risk of error inherent in finding a probable thing to have happened beyond reasonable doubt, has a human cost and a social cost. The necessity for the tribunal of fact to feel actual persuasion of the existence of a fact in issue accommodates those realities by requiring the tribunal of fact, in effect, to factor in the cost of error." [17] 1. The task for the DCJ caseworkers, some (but not all) of whose academic qualifications was identified during the hearing, was to deploy their learning, practical training, experience and common sense to undertake a predictive task. There was no demonstration by the Father, as distinct from bare assertion, that probabilistic reasoning would have affected the result based on this Father's circumstances and conduct. 2. An associated point concerned the criticism of the 'methodology'. I do not agree that the omission in methodology regularly deployed by caseworkers of statistical projections of how persons who had previously perpetrated domestic violence against women or children might act in the future to be useful. To adapt and modify the example cited by the Chief Justice of Australia in his Honour's article, if statistical analysis showed that 70% of perpetrators of domestic violence were recidivists (of that kind of crime) and 30% were not, our legal system does not conclude that there is a 70% likelihood of this Father (a former perpetrator of multiple acts of domestic violence) causing serious harm to this Mother and/or this Child in the future, without reference to the Father's background and circumstances. What is more salient, in terms of statistics, is their deployment when considering the risks of harm presented by an individual. 3. During closing oral submissions, I asked the Father to explain his criticism of the methodology he perceived had been deployed by DCJ caseworkers as to risk prediction. His answer (T 332-333) was that whereas the DCJ relied wholly or substantially upon clinical assessment, its caseworkers and supervisors excluded or eschewed 'actuarial' assessment. He clarified that he was not against clinical judgement per se (so long as it was conducted by people whom he regarded as competent to undertake it) but extolled as more important actuarial analysis. He described the actuarial analysis that he had in mind as choosing and rating a series of variables. 4. That type of analysis is familiar to me as a sentencing judge when sitting in this Court's criminal jurisdiction, by mental health professionals who use an analogous methodology in risk assessment (especially in in sexual offences). But in my experience of that type of assessment, the professional will interview the offender and with the benefit of information and instructions pertaining to the personal circumstances of the offender, assess the offender's characteristics (including their mental health). Without that deployment of judgement to individualised assessment, there was little utility to any such form of methodology. Statistics, where they arise, are used as a tool, but only as an aid to the application of professional judgement. 5. In this case, there was no evidence that any inquiry was undertaken by an independent expert applying an actuarial assessment of that kind with reference to personal circumstances of the Father. Indeed the Father appeared resistant to abide by the DCJ's requirement that the offender even undertake a mental health assessment which would presumably be very relevant to an assessment of the risk he presented of perpetrating upon the Mother. 6. The second difficulty I had with much of the evidence concerned its stereotyping. The Father baulked at the individualised nature of fact finding in disputes in our legal system and tradition which is antithetical to engaging in stereotyping (and preferencing) according to an aspect of individual's identity; be that race, gender or religion. As to this, the Father implicitly invited me to engage in stereotyping of a racial character when submitting that numerous persons involved have been 'racist' before him. That is inappropriate in any civil proceeding. In the context of a sentencing decision in the criminal law, concerning one of (if not the) most serious functions that a Judge of this Court regularly performs, a Judge cannot allow stereotyping to transcend the need for individualised justice. A plurality of High Court of Australia said in Munda v Western Australia (2013) 249 CLR 600, on the aspect of the mitigating consideration of any deprived childhood of an offender (at [53]): "It would be contrary to the principle ….to accept that Aboriginal offending is to be viewed systemically as less serious than offending by persons of other ethnicities. To accept that Aboriginal offenders are in general less responsible for their actions than other persons would be to deny Aboriginal people their full measure of human dignity. It would be quite inconsistent with the statement of principle in Neal to act upon a kind of racial stereotyping which diminishes the dignity of individual offenders by consigning them, by reason of their race and place of residence, to a category of persons who are less capable than others of decent behaviour. Further, it would be wrong to accept that a victim of violence by an Aboriginal offender is somehow less in need, or deserving, of such protection and vindication as the criminal law can provide" 1. Similarly, the task for DCJ caseworkers and other decision-makers, and judicial officers, shaped as those tasks (imperatively) are by reference to statutory requirements under the Care Act (including the evaluation of certainly broadly based principles) is to be applied by the circumstances of particular individuals. Not by stereotyping. To adapt, with respect, what the High Court in Munda said, it would be an affront to the dignity of middle-aged Chinese-born males who have spent most of their lives in 'Western' countries to be any more or less accountable than middle-aged Eurasian (or 'white') born males in terms of their rights and liabilities being governed by the Care Act on account of the specific aspects of their racial identity. I am mindful of, and have striven myself to avoid stereotyping and sought to 'neutralise' subconscious or conscious bias [18] , consistently with my oath upon taking judicial office. 2. As a third general difficulty, the Father vastly overstates the importance of the considerable volume of the academic peer reviewed articles, and a multiplicity of opinions picked up over the world-wide internet (or possibly forms of social media) on the subject matter, he relied upon in his evidence and in particular cited in his submissions; particularly in the construction of statutes. There are well established rules of statutory interpretation that refers to the circumstances in which extrinsic materials can be relied upon to interpret statutory provisions [19] . They do not include academic peer reviewed articles. I am conscious that, exercising the functions and powers of the Children's Court in this appeal, rules of evidence need not technically apply. One of the virtues of having a confined identification of extrinsic material for the interpretation and weight to be given to extrinsic material for the interpretation provisions is, as stated in s 34(3) of the Interpretation Act 1987 (NSW): "a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), and (b) the need to avoid prolonging legal or other proceedings without compensating advantage. 1. Still and all, when applying provisions such as s 10A of the Care Act, academic opinions are rarely of assistance when applying provisions. There is a significant degree of evaluative assessment of a range of factors. 2. One difficulty, among others, is that the authors of such articles are not tested to ascertain, for example, their background that might elucidate any biases that those authors are subjected to. There is often no indication as to their qualifications, their reputations, or exposition of what materials that they relied upon or differentiation between facts they assumed and opinions they have expressed; or indications of extraneous influences that might have been brought to bear upon those opinions which are unexaminable. And as with statistics, a bare survey of academic literature, without clearly delineated linkage to the personal circumstances of the relevant persons in this context – Father, Mother and Child – and information conveyed and interpreted to DCJ caseworkers, is not especially significant for the application of the provisions in the Care Act; as distinct from their weighty significance to public policy more generally and legislative reform in particular. 3. The position might have been different if, either in the Children's Court or in this Court, the Father had obtained expert opinion evidence, which could conceivably have included a survey of academic peer review on any particular topic [20] . 4. The Father described to me his academic qualifications in developmental psychology and child development. That by no means indicated to me any 'specialised knowledge' in the risks to psychological health of children exposed to domestic violence. In any event, an expert would have been expected to comply with an Expert Code of Conduct and been exposed to scrutiny. I doubt very much that the Father would subscribe to any Expert Witness Code of Conduct (even without the necessary acknowledgement of an expert's duty to a court). Therefore, if rules of evidence would have been applicable in the Children's Court or in this Court, the Father's commentary on some of these articles would have been inadmissible lay opinion. 5. Another possibility was for the Father to supply to the Court publications from a Royal Commission or Law Reform Commission before the time when provisions were enacted. Such materials are authoritative in part because they are authored by legally qualified and trained professionals. But that did not occur. It was agreed that there was no publication by the NSW Law Reform Commission that touched upon any problem associated with discriminatory practices or 'unlawful discrimination' (of any kind) within the child protection system in this State. 6. I agree, further, with Counsel for the Secretary's submission that the academic publications were not only disconnected from this Child's personal circumstances and needs, but did not provide much help in the application of permanency principles and the statutory objects of the Care Act. Although the Tune report, for example, looked into the child protection system and its effect on groups, its main slant was the impact upon Indigenous Australians. This, the Secretary argued, was significant in the sense of inspiring or contributing to certain amendments to the Care Act. But the Father sought to extrapolate from this to the broader community (including Asian migrants to the country). The Secretary's Counsel indicated that she was unaware of any more targeted inquiries, into more general sex or gender or racial discrimination within child protection. 7. Finally, I return to the publications that the Father relied upon and to which I specifically referred to above. All of them, with no disrespect to the authors themselves, are of low probative value. 8. Dominique Allen's article about settlement and Australian discrimination law has nothing to say about the issues I need to determine. She did not refer the Court to the nature of the cases surveyed, in terms of subject matter. I am not, in any event deciding a complaint about racial discrimination, so the significance of any 'settlement' of disputes and how that might bear upon the development of discrimination law is not in issue. 9. Mr Tune's report, to my observation, does not deal with substantive concerns of the effects of domestic violence inflicted by one parent upon another on the health and safety of a child. 10. Mr Jakubowicz's article, although it refers to structural racism in Australia, has nothing to say about whether the Father or Child in these proceedings were racially discriminated against or had suffered bias. 11. Although Gay MacDougall analysed provisions of the ICERD, the author did not critique domestic legislation and compare how, if at all, it implemented or appeared to influence the interpretation of Australian legislation. 12. In relation to Professor Davis' report in 2019, I note that the NSW Government released a response of 5 pages. Unsurprisingly, it was focussed upon the concerns of Aboriginal families. In 2022, Parliament legislated to amend the Care Act (the Children and Young Persons (Care and Protection) Amendment (Family is Culture) Act 2022 (NSW)). Particularly relevant were amendments to ss 9 and 10A, 73, 78 and 79. Some of those amendments were concerned with the children of First Nations People. Others were more broadly-based. But as with Professor Davis' report, there was no reference in the Government's response to institutional racism perpetrated against immigrants generally, or Asian immigrants in particular. 13. In my view, whilst acknowledging that these amendments were of broad application, particular care needs to be given before accepting the Father's implied submission that the problems that have bedevilled the child protection system detrimentally impinged upon his rights and of the Child's rights. In my view, this looked suspiciously like the Father seeking to co-opt concerns that were targeted to the children of Indigenous families to his own predicament. 14. More generally, however, in applying the objects of the Care Act and permanency planning principles, I place minimum weight upon statistical analyses without expert interpretation and the opinions of authors of peer reviewed academic journals or opinion writers when those statistics are not tied to or applied to the personal circumstances of the Father, the Child and the Mother. Rights under discrimination law The Racial Discrimination Act, its interpretation & enforcement 1. Section 9(1) of the Racial Discrimination Act 1975 is titled "Racial Discrimination to be Unlawful" makes it unlawful for a person: "do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life". 1. Section 9(2) defines (apparently inclusively) 'human right or fundamental freedom in the political, economic, social, cultural or any other field of public life' by reference to Article 5 of the ICERD. 2. In Barngarla Determination Aboriginal Corporation RNTBC v District Council of Kimbala (No.2) (2020) 275 FCR 669, at [28] the Full Court of the Federal Court of Australia adopted as correct the following principles relating to the construction and application of s 9(1) (citations omitted): "(a) the provision should be interpreted broadly and beneficially in accordance with the fundamental purpose of the Convention to which it gives effect…; (b) at its heart, the expression 'any act involving a distinction, exclusion, restriction or preference' connotes a difference in treatment based on one or more of the stated characteristics …; (c) although s 9(1) involves inherently elements of comparison, it does not require the identification of a particular comparator…; (d) a motive or intention to discriminate is not an element of a contravention although their presence may be evidence that the conduct was engaged in for the proscribed purpose; (e) the operation of s 9 is not confined to acts undertaken pursuant to an obligation to do those acts: (f) it is the act involving the distinction which must be based on race: ; (g) the term 'based on' does not connote a relationship of cause and effect, whether in a 'but for' or in any other sense. It signifies that the discrimination must be 'on' racial grounds …. In Macedonian Teachers' Association at 27, Weinberg J said: [The] expression ['based on'] does not, of itself, suggest a relationship of cause and effect. It suggests rather a relationship of a different and broader kind. The links between the elements connected by this expression must, no doubt, be real and tangible, but not necessarily causal in nature. To ask whether the manner in which the complainant was treated is in any way referable to his race, colour, descent or national or ethnic origin is not necessarily to ask whether these characteristics 'caused' the impugned conduct. This reasoning was endorsed on appeal …. It means that there must be an examination of the actual basis for the conduct, by considering the matters on which the conduct did turn: and (h) there must be a close relationship between the designated characteristic and impugned conduct. 1. Section 10 is titled 'Rights to Equality Before the Law" provides that if, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first - mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin. 2. Section 10(2) also defines "right" with reference to Article 5 of the ICERD. 3. As to s 10(1) of the Racial Discrimination Act, according to the plurality of the High Court in Western Australia v Ward (2002) 213 CLR 1 at [106], an applicant who wishes to invoke the statutory provision must: (a) identify a right enjoyed by persons of another race, colour or national ethnic origin; (b) identify a law of (relevantly) the State; and (c) establish that by reason of a law's term, persons of another race, colour or national or ethnic origin do not enjoy the same right or enjoy it to a limited extent, than do the first group. 4. The plurality emphasised (at [106]) that s 10 not only engages laws that have the purpose of the impugned law, but also its effect of nullifying or impairing the enjoyment of rights. 5. Section 11, to paraphrase, proscribes restrictions on access to facilities by reason of the race, colour or national or ethnic origin of that other person or of any relative or associate of that other person. 6. Article 5 of the ICERD provides: "In compliance with the fundamental obligations laid down in Article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: (a) The right to equal treatment before the tribunals and all other organs administering justice; (b) The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual, group or institution; (c) Political rights, in particular the rights to participate in elections--to vote and to stand for election--on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service; (d) Other civil rights, in particular: (i) The right to freedom of movement and residence within the border of the State; (ii) The right to leave any country, including one's own, and to return to one's country; (iii) The right to nationality; (iv) The right to marriage and choice of spouse; (v) The right to own property alone as well as in association with others; (vi) The right to inherit; (vii) The right to freedom of thought, conscience and religion; (viii) The right to freedom of opinion and expression; (ix) The right to freedom of peaceful assembly and association; (e) Economic, social and cultural rights, in particular: (i) The rights to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favourable remuneration; (ii) The right to form and join trade unions; (iii) The right to housing; (iv) The right to public health, medical care, social security and social services; (v) The right to education and training; (vi) The right to equal participation in cultural activities; (f) The right of access to any place or service intended for use by the general public such as transport, hotels, restaurants, cafes, theatres and parks. 1. Sections 9, 10 and 11 fall within Part II of the RDA. 2. Acts, omissions or practices that are unlawful under Part II of the RDA constitute "unlawful discrimination" within the meaning of the AHRC Act. The provisions concerning 'Redress' for unlawful discrimination are contained in Part IIB of the AHRC Act. Effectively, they require a complaint to be lodged in the AHRC and, in the event that the complaint is terminated without resolution, allow a complainant to commence a proceeding in the Federal Court or Federal Circuit Court and Family Court of Australia (Div 2). By s 46PO(4) of the AHRC Act: "If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect: (a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination; (b) an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant; (c) an order requiring a respondent to employ or re - employ an applicant; (d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent; (e) an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant; (f) an order declaring that it would be inappropriate for any further action to be taken in the matter." 1. Although the Father asserted that a complaint he had brought against Mr Chance to the AHRC had been 'accepted', Mr Chance indicated that he is unaware of what if any action is taken. The Father appeared to indicate that the ARHC had subjected him to a 'quota' of complaints and that none of them had been determined; beyond the point of conciliation, until the conclusion of this appeal. The UN Convention on the Rights of the Child 1. In 1991, the Commonwealth Government entered into the UN Convention of the Rights of the Child. The CROC that the Father invoked was signed in 1980. Australia signed the Optional Protocol in 2009 (relating to discrimination against women), but the provisions of that international convention have not been transported in an omnibus piece of legislation. The technique of legislators in this country has historically been to effectively implement provisions of the CROC by piecemeal legislation, such as the Sex Discrimination Act 1984 (Cth). 2. Article 2 of the CROC provides: "1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. 2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members." 1. Article 3 provides: "1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. 3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision." 1. Article 4 provides that: "States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation." 1. Article 5 provides that: "States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention." 1. Article 6(2) provides: "States Parties shall ensure to the maximum extent possible the survival and development of the child." 1. Article 8 provides: "1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference. 2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity." 1. Article 9 relevantly provides: "1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence. 2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known. 3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests" 1. The CROC was referred to in the Crimes (Domestic and Personal Violence) Act 2007 (NSW) which stated (at s 9(1)(d)) that an object of that legislation was to "enact provisions that are consistent with the United Nations Convention on the Rights of the Child." Although that provision refers to the UN Convention, it falls short of incorporating the provisions of the Convention into the law of New South Wales. The Sex Discrimination Act 1984 (Cth) also had, as one of its stated objects (s 3(a)), the intention to give effect to the same Convention (as included within the expression 'other relevant international instruments' (s 4)). However, the Convention on the Rights of the Child has not been fully incorporated in Australian law. 2. In contrast to the other New South Wales legislation that I have noted, the CROC was not referred to in the objects in the Care Act (identified in ss 8 or 9) and was not referred in the permanent placement principles (in s 10A). 3. In Re Tracey (2011) 80 NSWLR 261 Spigelman CJ (Beazley JA agreeing) appeared to determine that Australia's treaty obligations (by the CROC) could give rise to relevant considerations to the interpretation of domestic legislation, where that was permissible under the statute. (emphasis supplied). In that decision, the Chief Justice determined (at [32]) that jurisdictional error had arisen when the primary judge had positively stated that none of the provisions of that convention were capable of constituting a relevant consideration. 4. In Re Henry; JL v Secretary, Department of Family and Communities Services [2015] NSWCA 89, Basten JA considered (at [264]-[268], Meagher JA agreeing) what was said by Spigelman CJ in Re Tracey and found that the conclusion expressed in Re Tracey should be treated with caution. His Honour emphasised, initially, that provisions of the CROC of the Child "might be permissible in the particular circumstances" but also emphasised the importance of the party wishing to invoke provisions in a convention to specify the provisions of the CROC that were intended to be relied upon. 5. In the same decision, McColl JA held (at [220]) that one reason for distinguishing Re Tracey was that in that case the appellant had not established that there was any realistic possibility of restoration in her that would have enlivened any capacity "to exercise a discretion". Submissions Father's submissions about the CROC 1. In his written submissions (in MFI 18) the Father identified breaches of Articles 1(a)-(e), 2, 3, 4(a), 4(c), 5(a), 5(b), 5(d)(ii) and 5(d)(vii), 5(d)(vii), 5(d)(viii), 5(e), 5(e)(iii)-(iv), 5(f), 6 & 7 of the CROC, but acknowledged that its provisions had not been incorporated in domestic legislation in Australia. 2. The Father argued, by reference to Art 2(2), that a child's rights were linked to a parent's rights. When he asked himself how infringement of the parent's rights impacted upon the Child, the Father said that he (the Father) needed to avoid people who he regarded as negative (presumably encompassing those he thought were racist against him). He did not want the Child to turn out like an "Eshay" person who, in closing oral submissions, he described, in effect, as a boy in his late teens who caused social trouble. He did not have faith in the Education Department of the State. 3. He argued, for the purposes of Art 3, that the DCJ workers were not 'competent'. That was not a personal criticism per se (even though he labelled each of the main ones in this case either as liars or racists). The internal structures within the DCJ did not help them (apparently an echo of Mr Tune's criticisms). 4. He argued with reference to Art 4, that DCJ methodology for predicting and quantifying risk of harm was flawed. 5. He argued that Art 5 provided for parental rights. 6. As to Art 6, if the current orders stand, there was a risk of development to the Child. The Father referred to the impairment of development through political, social, educational influences and health 'influences'. 7. As to Art 8, the Father stressed the importance of the preservation of identity. 8. As to Art 9 (and Art 16), a complaint that the Father had filed with the Complaints unit in 2020 had not been determined. 9. As to Art 10, the lack of responsiveness to complaints was a concern; so too was the prospect of the Mother wanting to leave to go to New Zealand. 10. With reference to Mr Ryan, the Father complained that it was he who was effectively taken on the role of protecting the Child's rights. The Secretary's submissions 1. Generally, the Secretary did not dispute that precepts of anti-discrimination law, and human rights are not incompatible with the objects and principles in the Care Act. No one in this proceeding had denied that the Child's human rights and freedoms were relevant considerations for evaluation and recommendations. 2. The Secretary made two main points about the subject of racial discrimination and bias. 3. First, the provisions in the Care Act were not displaced by provisions in the CROC. Instead, provisions identified in the CROC were substantially (if not in form) consistent with ss 8(a)-(b) and (9(2)(a) and (c) and 9(3) of the Care Act. For example, the views of parents about matters such as health and culture could be accommodated. The matters in s 9(2) provided an effective checklist. Nevertheless, ultimately, the paramount question, involving an evaluative assessment, was the safety and welfare of the Child. 4. Secondly, there was a lack of particularity as to what human rights and freedoms of the Child had been infringed and how by the personnel within the DCJ. Although the Child had indicated a wish for contact with his Father, a matter not opposed by the Mother (in principle) and recognised as desirable by the Department (manifested by the Amended Care plan and even the communication with the Father in January this year), it was the Father's unwillingness to deal with DCJ that precluded that result. The DCJ's fundamental requirement was engagement by the Father with the requirements of the DCJ. 5. Thirdly, Counsel for the Secretary argued that although the Father identified terms of convention provisions and the RDA, and academic articles, he failed to identify how any racial discrimination was occasioned by or had impacted, in the sense of causing detriment to the health, safety and welfare, of the Child. The Father's mindset was, rather shaped, by his profound sense that in many ways, he had been racially discriminated and his human rights allegedly abused. 6. The Father did not articulate, much less satisfy, any of these steps. He did not identify a right under the Care Act enjoyed by persons who did not share his race, colour, or national or ethnic heritage (he identified as being a 'non-white' Chinese adult). Nor did he identify in what respect the Care Act had the effect that he, as a non-white Chinese adult, did not enjoy the rights enjoyed by persons who did not fit within that demographic, or were enjoyed by him to a lesser extent than by persons who did not fit his demographic. His specific complaint about a breach of his, or the Child's rights under that particular legislation is rejected. 7. The Father (and Child) did not have substantial rights under Australian domestic law by reason of the CROC. Consideration Racial discrimination 1. Harkening back to earlier views I expressed about my role, in my view, it is inapposite for me to express opinions or findings on whether the Father or the Child have been victims of unlawful (racial) discrimination or, in the case of the Child, had his ICERD rights violated. 2. In the case of the argument about breaches of the RDA, I assume, for present purpose, that the Father has standing (under s 46P(2) of the AHRC Act) to complain – to the ARHC - about an infringement of the Child's rights under the RDA [21] . However, for me to embark upon consideration of questions of that kind would involve my exceeding the limits of my function. It is clear that where there is a breach of ss 9, 10 or 11 (including derogation of Art 5 of the ICERD) the appropriate forum for complaints of that kind is the ARHC, through the complaints mechanism (initially) and where the processes for complaint have been terminated, through proceedings in the Federal Circuit Court (and thereafter, potentially to the Federal Court of Australia). It appeared to me that the Father was seeking to invite me to say that my powers under s 90 of the Care Act extended to my adjudication of breaches of the RDA. 3. Another concern that I shared was my concern about the absence of particularity of breaches of the RDA. If the matters were before the Federal Circuit Court, as they should be (once the primary dispute resolution for of dealing with complaints made to the ARHC was terminated), then the complainant would be required to plead and particularise breaches of the RDA in a procedurally fair way to the respondent to such complaint. This Court has, instead been presented with general assertions of breaches of the RDA. In effect, this Court is asked to provide something of an advisory opinion, which is antithetical to the exercise of judicial power. Ultimately though, the proposition that this Court can determine complaints of violation of the RDA would, in my view, subvert the procedural provisions in the AHRC Act. 4. As to the ICERD, there is even less reason for inquiry into alleged breaches of the provisions of that convention. Sections 9(2) and 10(2) of the RDA Act effectively pick up Article 5 of that Convention and would be subsumed within a complaint to the AHRC about racial discrimination. 5. A further problem for the Father, however, is the concern raised by Basten JA in Re Henry about the vagueness or lack of specificity as the cited violation of the Articles. Another is the concern raised by McColl JA in the same decision given that, for reasons to be later elaborated, I have found that there is no realistic possibility of restoration within a reasonable period; and the corresponding finding that there was a realistic possibility of restoration to the Mother (and associated finding that she was to be allocated all aspects of parental responsibility. This meant that where, say, the Mother took a view about the Child's religious instruction, and such view conflicted with the Father's view on the same topic, it was the Mother's view which would prevail. The influence upon the Care Act of provisions in the CROC 1. My approach, which is consistent with the Secretary's submission is to consider the application of ss 8 and 9 (and 10A) of the Care Act with an eye to the potential (indirect) engagement of Articles in the CROC. Thus, a child's rights to an adequate standard of living and housing, where they are identified in the CROC, can readily be reconciled with the objects of the Care Act. Promotion of the child's physical and mental health are also compatible with the objects of the Care Act. Further, the parents' views do come into consideration in decision-making. Plainly in this case, the views of the parents have been identified and considered. It is another thing to say that one parent's views must necessarily be accepted. 2. To the extent that the Father's arguments concern his rights as a parent, I accept the Secretary and Minister's argument, that it is the interests of the Child which are the paramount concern for me (s 9(1)). It struck me that many of the arguments of the Father assumed that any infringement of his rights and as a freedom as a parent implied that there were some necessary curtailment of the Child's rights, as it were, 'downstream' of an infringement of his rights. To the extent that the Father was emphasising his own rights, the provisions in ss 8 and 9 in the Care Act do not, according to their terms, provide a charter of rights to parents on the assumption that anything that adversely affects parents in terms of any arguable rights or freedoms they enjoy, must necessarily impair the rights of children. 3. To reason to the contrary would substantially derogate from the operation of the substantial provisions of the Care Act – most obviously the provision which entitles the removal of a child from the care and protection of any parent. Further, on the Father's theory, preference for his human rights could conceivably constitute a derogation of the Mother's rights. 4. There are other obvious tensions between the CROC and the Care Act. The abiding concern under the Care Act is "safety, welfare and well-being" (s 9(1)). That could easily conflict with Art 5 of the CROC. The Child's right to 'development' (under the CROC) (however that word is construed) may conflict with a more immediate imperative of 'safety'. Another provision is s 79(8) of the Care Act; which deals with the difficulty of determining potentially shared aspects of parental responsibility where the parties are in conflict. That squarely raises the conundrum or choice where a preference for one parent's interests may work to the other parent's detriment and that choice is exercisable with prevailing regard (or the paramount consideration) to the child's interests. 5. To the extent that discrimination has been perpetrated against the Child only because of the identity of his father, a difficulty arises because the Mother appears to have the same racial identity. To the extent that the Father has different beliefs to the Mother on aspects concerning education or religious beliefs to be instilled in the Child, which it appears he does, any preference in the DCJ for care and protection to be placed in the Mother is unlikely, for the same reason, to be based on race or any other aspect of identity (Art 2(1)). Suppose, for the sake of argument, that there was a preference in DCJ caseworkers for the parental responsibilities to be restored to the Mother over the Father because of the Father's beliefs on education or religion, although that could be viewed as a breach of Art 2(2), it does not follow that this would be inconsistent with s 9(1) of the Care Act. 6. I agree with the Secretary and Minister's submission that any breach of rights against the Child as identified under the CROC would be subordinated to the paramount concern in s 9(1) for the Child's safety. For reasons explained below, the reasons which give rise to the finding that there is a realistic possibility of restoration to the Father within a reasonable period is fatal to the Father's submissions about infringements of the Child's rights under the CROC. Further, in my view, the Father has not adequately delineated any distinction between his rights (as one of the Child's parents) with the Child's rights. 7. Finally, complaints about infringements of a child's rights under the CROC may be brought to the AHRC which is empowered to investigate complaints. Such complaints feature a conciliation process and if conciliation is unsuccessful, but the AHRC finds that there is a contravention of human rights, it may prepare a report for the Attorney-General (Cth) and the report and its recommendations must be tabled in the Commonwealth Parliament. This is distinct from other enforcement mechanisms of discrimination law. If the AHRC cannot resolve a complaint about breaches of the rights of the child under the CROC successfully, the complaint cannot be heard in court. Again, it would subvert this legislative structure for this Court to stray into determinations of whether the child's rights under the CROC have been infringed. The Father's emphasis upon structural racism in Australia 1. Judges of this Court (and I suspect most other courts in the country) must seldomly have been asked to address arguments about structural racism in Australia. I confess my disquiet in doing so; recognising the potential (which I hereby regret) to upset people with strong, but different views on the subject. However, a not insignificant complaint that the Father has brought against the Magistrates in the Children's Court, and other participants in the child protection system, was about racism in Australian society and that this grievance had not been adequately or even acknowledged or addressed: he complained about concerns about judicial officers being "ignorant" about or "feigning" ignorance about racial discrimination law and being ignorant about racism. Some response should, in my view, be given to the Father as to help explain why I consider that the Father's references in this regard do not help me adjudicate the issues I am required to determine. 2. In the course of a narrow interlocutory dispute, heard during the hearing, about the admissibility of a sound recording of a telephone conversation he had with someone, the Father deployed arguments about racial discrimination and racism. In the context of that interlocutory dispute, I asked him when he addressed me (in a manner which, so he complained, had discomforted him and apparently contributed to his foreshadowing making a complaint against me, leading to his unsuccessful recusal application) whether he contended that individual DCJ caseworkers had acted in a racially discriminatory fashion against him. I raise it since the exchange illuminates the Father's state of mind and the exchange went as follows: "HIS HONOUR: But I ask you again, I think you said a moment ago that child protection workers are racially discriminatory. I take from that that you're asserting that Mr Chance is racially discriminatory. APPELLANT: Not necessarily. I'm citing studies-- HIS HONOUR: Are you asserting that Ms Veles is racially discriminatory against you? APPELLANT: Not necessarily. HIS HONOUR: Right. APPELLANT: I'm studying-- HIS HONOUR: What about the other one? I've forgotten her name now. The first one, first witness for the Secretary. Ms Taylor. Are you asserting that she's racially discriminatory? APPELLANT: I'd like to remind the Court (sic) that I'm not - sorry, your Honour. I'd like to remind your Honour that I keep on bringing up I'm not talking necessarily about individuals, I'm talking about populations. So I'm not necessarily speaking to any specific point of person and I would like to point out that I'm talking about the provision of a law. I'm not talking about individual cases and there is a focus, there is a focus on individuals and I will argue that the, the level of racism that exists in Australia is due to the focus on individuals being racist and not looking at systematic, systematic racism." (emphasis supplied) (T 248) 1. The common answer above "not necessarily" was unsatisfactory, and indeed disingenuous. It had the flavour of the Father wanting to be able to assert that the caseworkers were racially discriminatory against him with a consciousness that he may not be able to prove it. It was conduct that brought to mind the English poet, Alexander Pope's description of some of his critics as being 'willing to wound, but afraid to strike' [22] . In contrast, in his written submissions, the Father did not hold back in casting the DCJ caseworkers as (personally) racist. 2. Later at T252-254, when I asked the Father about his dealings with the Ombudsman, we had another exchange as follows: "HIS HONOUR: But you couldn't have had that many communications with the ombudsman, could you? APPELLANT: What I'm saying is I cannot envision every single possibility and every single objection, and that is also - this is a very good point: Would a white person be in my position and have to do all of these things? Only a Chinese person or a black person would be in my position and have to go and do all of these things just to see their children. I'm - this is no aspersion on you. I'm glad you asked me that question cause you just proved my point. Only a person of colour would be in this-- HIS HONOUR: Proven that I'm racist, is that what you're submitting? APPELLANT: Sorry? HIS HONOUR: Proven that I'm racist, is that what you're contending? APPELLANT: No. No. I, I would humbly request that his Honour stop asking me if individuals are racist because I keep on pointing to, well, that might be a possibility but I'm keeping on saying, talking about a systematic thing. And I gave the point of the Human Rights Tribunal about the Aboriginals, taking away one Aboriginal child from one drug‑addicted parent, that is not necessarily racist, but if you remove all of them, then that, that highlights racism." (emphasis supplied) 1. The main point of these exchanges was to indicate that, at least when the Father was addressing the Court verbally, (unlike more overt accusations he liberally made in his written submissions) he was reticent to make verbal accusations in Court of individual racism by DCJ caseworkers (and many others). His emphasis was very much upon structural racism; without any reference to the personal qualities of the person against whom he levelled the racist charge against. 2. The Father did not call any evidence of other complaints of racial discrimination that had been substantiated (or even made) against the DCJ in any collective sense. Overall, he fell back significantly on sociological views and opinions, many from offshore jurisdictions, including the United States and United Kingdom, referring to concepts about systematic racism and 'white supremacy' without any linkage to the individuals or organisations involved in the child protection system in this state as it applied to him. 3. Little, if anything, was said about any publication issued under the auspices, say, of the Australian Human Rights Commission or Australian or New South Wales Law Reform Commissions, regarding the racially discriminatory removal of children of Chinese (or Asian)-born Australian males; as distinct from concerns about the treatment of indigenous persons (with whom the Father conspicuously aligned himself). 4. I do not find useful, in the determination of the issues I have to determine, the Father's resort to the spate of articles regarding 'white supremacy', entrenched historical racism or systematic racism. That is not to deny systematic racism as arguably one tool for aiding in the understanding how racism perpetrated against indigenous persons, immigrants or, to use an expression repeatedly used by the Father, 'non-visibly white persons' came to arise. The history of this country amply indicates periods of racism against Chinese immigrants in the second half of the nineteenth century, the 'White Australia policy' from federation, the controversial raising of the ethnic composition of the immigration program in the late 1980s; and reported incidents, collectively described by some sections of the media, as a 'backlash', against (some) Chinese-Australians because of recent tensions in the trading and national security relationships, and suggested inquiry into the origins of Covid-19 (to name but a few historical episodes). 5. The history of human experience indicates that attitudes and practices in societies can, over time, build up in a way that may be prejudicial to racial (and other) minorities. Those prejudices can arguably forge biases amongst good people, even sub-consciously. In such way, it can be seen that structures and practices can emerge which are racially discriminatory in practice, even if unintended. It is also trite that discrimination can act in indirect, as well as direct, ways. As McHugh J once explained: "discrimination can arise just as readily from an act which treats as equals those who are different as it can from an act which treats differently persons whose circumstances are not materially different." [23] 1. In this way, sociological analysis of structural racism arguably may have its role to play as a tool of analysis; to educate, contribute to public debate and influence the political process and legislative reform. But to treat this Father's subjective beliefs, and opinions, albeit influenced by the opinions of others who have studied sociology or anthropology, that he and the Child have been mistreated, even victimised, by persons or organisations who have, in one way or another, stood in the Father's way, and have not bent to the Father's will, and to attribute all of that through the prism of systematic racism against him without connection to the personal circumstances of the Father and the Child and the capacity of individuals to assess them does not materially assist me. The Father has plainly received much education – he said in closing oral submissions that he has two Masters degrees (Multiculturalism in the Australian Education System and Child Development and Educational Psychology). He does not lack for energy or diligence in his study of areas that interest him. If there have been other instances where he believes he has been racially discriminated in his life prior to the events giving rise to this proceeding and the Children's Court proceeding, he did not refer to them in much detail, although it did appear that there were certain events in his life, including his time in Canada, when he considered he had been a victim of racial discrimination. He intimated that he had physically been assaulted. 2. But without the necessary linkage between trends affecting others who share his racial, ethnic, national or colour identities, and his personal experience, in my opinion, statistics or events affecting other Chinese persons do not themselves prove he has been racially discriminated against; much less the Child. Correlation does not equate to causation. The existence of structural racism does not necessarily mean that it is more probable than not that the Father's claims of what occurred in the events giving rise to this proceeding are truthful. 3. To reason that it does denies any agency to persons involved, including the Father himself, and the personal moral qualities, educational achievements and life experience of the persons he accuses of racism and ignores the nature of his interactions with people and institutions and, in particular, the effects of his behaviours upon those empowered to decide matters in a way that affected his rights. 4. There is, moreover, little or nothing in the Father's affidavit evidence that manifests any recognition that other forces are at play that may have contributed to adverse assessments of him by others. So much of the Father's submissions are presented through the singular prism of his sense of racial or ethnic identity, that the Father appeared completely oblivious to the Mother's own rights to be free from the infliction or fear of domestic violence that the Father had perpetrated upon her, sometimes in the presence of the Child and the effect of his past conduct upon the Child's safety and welfare. The evidence in this case overwhelmingly indicates that the Father is in fact bereft of any sympathy or empathy for the Mother; notwithstanding the direct effects upon her of the domestic violence he had perpetrated upon her over a substantial period of time and its individual or even accumulative harmful effects on the Child exposed to it. To the contrary, he has shown scant regard for those rights and an invincible lack of insight into the effects of his violent conduct perpetrated directly against the Mother upon the Child (indirectly). 5. In this regard, I do not place any real weight upon the Father's letter of apology to the Mother; other than for the admissions of domestic violence contained within it. It was prepared at a time when the hearing in the Children's Court was already under way. It concerned a matter (Final ADVOs) which was doubtless embarrassing for him and obviously detrimental to his case in the Children's Court. His subsequent conduct of serious and indeed offensive accusations against the Mother, not least his insulting suggestion that she had been 'colonised' in her thinking, is indicative of a man who had no real regrets for his actions. In my view, the letter was an exercise in forensic management and manifested little contrition. 6. It was rather striking during the course of closing verbal submissions how often the Father complained that he was the victim of 'violence' through the course of this proceeding. It was a very broad or elastic definition. It appeared to me that he effectively assimilated physical acts of domestic violence he had perpetrated against the Mother, with what he regarded as acts of violence against him constituted by submissions and acts (including slights) he perceived as opposing his interests. 7. The concept of 'domestic violence' is not explicitly referred to in the Care Act. But the expression "domestic violence offence" is identified in the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (ss 4, 6A and 11), in a way that predominantly features personal violence or 'domestic abuse'. Of course it would exceed this Court's jurisdiction to determine whether any domestic violence offences (other than those for which the Father has been convicted) have been committed by him. I raise it only as a pointer to the fundamental disparity between the nature of the 'violent' conduct of which the Father complains as has been perpetrated against him by legal practitioners, witnesses or even members of the judiciary in this (and the Children's Court) proceeding and the concept underlying statutory definitions of domestic violence. Further, although the Father asserted that a number of his rights, under domestic or international law, were infringed, he did not (and could not) refer to any right of his, per se, not to be 'offended' by others' opinions or submissions about him, much less a right (especially in the course of a legal proceeding) not to receive, or be exposed to, the expression of opinions of those who disagree with him. Contrary to his viewpoint, an adverse expression of opinion against him did not inherently indicate any reasonable apprehension to him of imminent harm to his safety (other than, at its highest, his sense of injured feelings). Within the limits of professional standards, rules of evidence, rules of Court, and statutory exceptions to the contrary, there is no 'safe space' in a courtroom; as indicated by the (absolute) privilege applicable in defamation law to what is said in a hearing of a legal proceeding. 8. Contrary to a point made by the Father, the Mother's recourse, as a woman who was also born with a Chinese heritage, to the DCJ and to police was not the product of her being, in effect, conditioned or mentally 'colonised' by a racist society. In his summons (at paragraph 56) the Father implicitly identified the Mother as someone who was 'racialized' and had 'exchanged' human rights and freedoms in exchange for 'preferential treatment'. The Mother's complaints of domestic violence were vindicated in a criminal court. She exercised her right to complain to DCJ – the only course short of direct complaints to police to protect her human rights to safety and her parental responsibility to keep her Child out of harm's way. The decision by the Secretary to remove the Child was not hers to make. Her own conduct contributed to that decision; as she admitted. She did not complain that it was racially motivated. She has indicated, fairly and reasonably, that she does not object, in principle, to the Father having contact with the Child; so long as the Child consents. She is guided in this by the attitudes of DCJ workers. She has not 'traded' anything way and it is an insult to her to suggest that she has; since it implies an absorption with her own interests rather than the Child's, with the Child treated like a pawn. 9. I place weight upon the description of the mental health assessment of him from April 2020 of his giving the impression of 'narcissistic personality traits' and the assessment of him in the Amended Care plan that the Father is consumed by the injustices he believes have been perpetrated against him, so focussed upon having perceived wrongs to him acknowledged, and a compelling need to vindicate his sense of righteousness, to such extent that he is unable to focus his perspective on the needs and interests of this Child. Most of these features were apparent in this proceeding. I place weight, further, upon the opinion of Mr Desai from December 2022 that the Father was unable to "move on". 10. He has disrespected and made seriously offensive accusations (which if repeated outside of legal proceedings would likely be regarded as defamatory) against DCJ personnel (and many others). He has impugned their motives. He has unnecessarily bombarded DCJ personnel with repeated communications and demanded (without any reasonable entitlement to demand) responses on issues indiscriminately ranging from the trivial (such as calling the Child by his nickname or formal name, and whether caseworker Mr Chance manifested a racially discriminatory conduct simply by indicating that he did not want to be in a lift with the Father) to the more significant (such as 'corruption' and 'maladministration') that satisfy his expectations; thereby effectively depleting the resources of DCJ personnel to attend not only to the case of his Child, but more generally to other children in this State removed into the Department's care. 11. The Father is entitled to his opinions of structural racism within this country and those in positions of power and his views as to how they have affected his rights as a parent. But I find most unpersuasive his primary recourse to that phenomenon as the explanation for his grievances against persons within the child protection system. Issue 1: Were the children in need of protection? Submissions on First Issue The Father's submissions (MFI 2; oral submissions on the application to exclude evidence: T 231-254 1. In the course of his opening address, it appeared that the Father sought to re-agitate issues surrounding the removal of the Child in June 2022. He said he did not refuse to return the Child to the Mother. All that he wanted, when retaining the Child, was an assurance that she would not negatively treat him. Reliance was erroneously placed by the Secretary and Mother upon conduct in 2019 which, although it gave rise to charges by police, were not proceeded with. He had not breached AVO orders. The Father complained about an AVO application that occurred in about 2019 or 2020, which he considered was influenced by DCJ workers. He made a complaint about this, but that complaint was inadequately dealt with. 2. The Father submitted that in accordance with Western peer reviewed academic sources, there was 'no risk' of serious harm. The ROSH reports, and the Department's decision-making processes more generally, was or were, flawed. Indeed, the Father generally submitted that the typical 'Australian' calculation of risk was flawed. He criticised the Independent Legal Representative (Mr Ryan) for mocking him and believes that he did so being aware of such evidence and had acted deliberately to stop him from 'talking about' it. He submitted that there was evidence the State government caseworkers falsified reports of a 'risk of death'. He submitted that his former lawyer (Mr Robert McLaughlin) have been made aware of such falsity nevertheless advised him to ignore the evidence. 3. In his opening address (T 29-30) the Father claimed a form of gender bias in those who responded to the Mother's complaints. He submitted that it was wrong to say he exerted and control over the Mother: the opposite was true. He was financially depended upon her. 4. The Father contended that his lawyer in the Children's Court, Mr McLaughlan, had misrepresented his position when it was thought that he had consented to the determination that the Child was in need of protection. He was under duress as he believed that the DCJ had dismissed his concerns about the Mother. About a week before the Child's removal, (8 June 2022), the Mother was screaming and yelling at the Child for putting on his shoes. 5. He said that he did not present a serious risk of harm. This expression was not statutorily defined and it must be the case that every child taken into care must have been at some risk of harm. Moreover, the notion was linked to his overt focus or fixation (T 35.35) on racial discrimination, so the Court should view the risk of harm through that prism. Related to this argument was that Buddhist religious beliefs should be promoted to the Child. 6. He believed that the DCJ refused to give him any specific information as to why it thought he presented as a serious risk of harm. In reality, the DCJ did not want the Father to stay with the Child under the same roof as the Mother. With that mindset, he could not fulfil the SOPP (which was flawed on several bases). Caseworkers Myers and Chance confused the Care Plan with the SOPP. 7. The Children's Magistrates were biased. They were ignorant of Racial Discrimination legislation, which affected the decisions. That ignorance was 'feigned'. Their decisions showed that Australian courts were not independent. 8. The Secretary and Minister also were biased against him, in the sense of 'attempting to continue Australia's long tradition of "white" supremacy in law'. The Secretary's submissions 1. The Secretary submitted that it was now too late for the Father to contest this issue. His appeal, as identified in the Summons, was confined to Final orders made by the Children's Court. The Mother's submissions 1. The Mother supported the Secretary's position on this issue. The ILR's submissions 1. The ILR also supported the Secretary's position on this issue. Consideration of Issue 1 1. I accept the Secretary and Minister's submission, in response to the indication of the Father, that he consented (without admissions) to a determination that the Child was in need of protection, for the purposes s 72, in the Children's Court on October 2022. In particular I accept that this 'interim' order founded that Court's jurisdiction to proceed to the hearing in February and May 2023. Whatever lay behind the making of those orders, concerning interactions between the Father and his then legal representative, and the Father's motivations, it is now too late to unwind its effects. Once a Court's jurisdiction is invoked, it cannot be unwound. This issue was not raised again in the Children's Court and Magistrate Crompton rightly moved to consider and determine other issues under the Care Act. 2. Even if the issue was open to be agitated again, the proposition that the Child was in need of protection at the time of the initiating application was incontrovertible. As I said in the course of closing oral argument, this was possibly the only agreed position between Father and Mother in the Children's Court proceeding (though for diametrically opposed reasons). The Father's apparent attempt to resile from the concession was inexplicable; particularly in light of the finding that he invites this Court to make that the Child is in need of protection from the Mother, who he submits, presents an unacceptable risk of harm to the Child. 3. I further find, on balance, that but for the Department's intervention, the Child would still be in need of protection. The Mother was (and still is) in fear of the Father, evidenced at least by the ADVOs that she has the benefit of. The conduct that precipitated the Child's removal involved a flagrant contravention of orders of the Federal Circuit Court. The Father still apparently feels that he is a victim of racially discriminatory treatment, on many levels, has not co-operated with DCJ caseworkers (who he regards are corrupt and racist) and has not meaningfully addressed concerns raised about him. In my view, the Father also did not (for the purposes of s 106A(2)) rebut the presumption, arising from the ROSH reports, that the Child was in need of protection. 4. The 'establishment' condition for a care order was satisfied. Issue 2(a): Realistic possibility of restoration to the Mother within 2 years The Secretary's submissions (MFI 1 and MFI 16) General submissions 1. The Secretary submitted that when determining this issue, I must firstly compare the circumstances of the Child at the time of his removal against his current circumstances, with reference to the matters in ss 8 and 9 of the Care Act, and also whether each of the parents have redressed the reasons for the Child's removal in the first place. In relation to s 9, the Secretary emphasised, in particular, the factors in s 9(2)(c), (e) and (f). About s 9(2)(c), this factor involved comparison between the circumstances at the date of removal and the current circumstances. Section 9(2)(e) was addressed to current circumstances. 2. Secondly, I then needed to consider the permanent placement principles (under s 10A of the Act) and be satisfied that the orders made are in the Child's best interests. Here the first matter in the 'hierarchy' of permanent placement principles – restoration of care of the Child to a parent – has been achieved. 3. The Secretary submitted that relevant to the assessment of realistic possibility of restoration is the question of 'unacceptable risk'; a notion which involved: (a) identifying the risk; (b) considering whether the risk was unacceptable. Part of this involved considering the degree or magnitude of the risk and the potential outcomes to the Child if he was exposed to it or them in the future (what might also be called the future probability of risk). Also relevant to the assessment of the magnitude of the risk is whether an affected parent, in this case the Father in particular, demonstrated insight, or a lack of insight, into risks and has taken responsibility; in the sense of taking steps to mitigate the risk. 4. In response to the Father's closing written submissions, the Secretary argued that consideration of 'unacceptable risks' could be undertaken without reference to the Father's points about racial discrimination and bias. This was partly because many of the historical matters, prior to the DCJ's direct action in the middle of 2022, retained currency and they were matters of fact. The Secretary argued that the Father had a record of domestic violence – as evidenced in his conviction, admissions he had made in the Children's Court when he gave evidence and also in his 'letter of apology'. 5. On the subject of racial discrimination and bias within the DCJ, the Secretary did not dispute its relevance, but argued that its relevance was primarily relevant to the issue of Contact; a topic considered further below. 6. The Secretary also submitted that it may be expedient to address the position of the Mother first. If the status quo was maintained, so that I found that there was a realistic possibility of restoration to the Mother within a reasonable time, then that would make it inevitable that a negative finding on the same topic would be made about the Father. In this way, it could be seen that the issue was essentially 'zero sum' or, put another way, presented a binary choice. I agree and I will address the position of the Mother first. The Secretary's submissions directed to the Mother 1. The Secretary submits that the Court would be satisfied that there is a realistic possibility of restoration to the Mother and that this is in the Child's bests interests. 2. Counsel for the Secretary argued that those findings were supported by the following circumstances: 1. the Mother had addressed the issues identified at the time of the Child's removal; including her capacity to act protectively of him; 2. the Mother has demonstrated insight into the need to protect the Child from risk; and 3. the Mother had demonstrated a consistent capacity to meet the Child's needs after restoration during the course of this appeal proceeding. 1. The Secretary submitted that, save for contact, it is consistent with the Child's best interests for the Mother to hold parental responsibility for decisions relating to the Child's education, medical needs and residence. This submission was supported by evidence regarding her recent decisions (since care was restored to her) and the evidence of the Child's progress that has ensued, as assessed by caseworker, Mr Chance, whose evidence was largely unchallenged. The Secretary commended the Mother for her thoughtful and reasoned evidence in this appeal. 2. The Secretary submitted that the requirement in s 78(1), concerning the presentation of care plans, was plainly satisfied. The Mother's submissions (MFI 4 and MFI 14) 1. The Mother's Counsel noted that as at January 2023, the DCJ considered that the Mother had made substantial progress with the SOPP tasks and was satisfied that she had sufficiently addressed child protection concerns. Nothing had occurred since that event that altered the DCJ's assessment; nor would cause this Court to doubt its currency. 2. Counsel emphasised that the Child was restored to her care on 27 September 2023 and that stage 3 of the Care Plan had commenced. This restoration had progressed well. On 26 April 2024, the Child asked Mr Chance to convey to the Father that he liked living with the Mother. Disrupting the current placement with her after 7 months in her care would potentially be damaging to his well-being and their relationship in particular. Restoration to her was (and has been) a realistic possibility since: 1. it was the domestic violence perpetrated by the Father against the Mother and Child (who was exposed to the Father's behaviours) which, it had been found, gave rise to the risk and safety concerns for the Child; 2. the Mother had demonstrated insight into the child protection concerns leading the Child's removal. She acknowledged that the critical reason for removal of the Child was her failure to protect him from being exposed to domestic violence perpetrated by the Father. She acknowledged that she had difficulty leaving her relationship with the Father. She realised that it was not just herself that was a victim but that the Child had been exposed to domestic violence and consequently might suffer from psychological harm. She acknowledged that before the Child's removal she had observed him becoming fearful in front of the Father and that his speech was affected with stuttering; 3. amongst other things, the Mother sought counselling and she had completed all the tasks required by the SOPP; 4. she had been accepted by Ms Veles as having worked collaboratively, transparently and honestly and had accepted all reasonable directions and support. Moreover, Ms Veles had assessed her as having demonstrated insight into child protection concerns and cooperated with DCJ caseworkers as well as emphasising her capacity to engage in supports in the community which indicated that restoration was likely to be stable and successful; 5. contact reports did not identify any issues with the Mother's contact with the Child. Her interactions with the Child had been observed by Mr Chance to be appropriate and loving; 6. the Mother had supported the Child's on-going therapies, (including speech therapy and trauma-informed therapy) as required by the Care Plan. As to KidsXpress, the view of that agency was that the Mother and Child had engaged well and were attentive during sessions; and 7. at the recent DCJ home visit on 26 April 2024, Mr Chance had observed the Mother to be cheerful, and empowered at the improvements in the Child's behaviour. 1. In anticipation of some of the points that the Mother's Counsel apprehended the Father might make, and partly elaborating on the last of the points above, the Child was progressing with his speech therapy and she supported him with cultural issues: the Child attends weekly Cantonese lessons and has regular calls with his maternal family in New Zealand. 2. Counsel submitted that the Court should reject the Father's allegations of the Mother abusing or neglecting the Child prior to the Child's assumption into care. Counsel pointed to the evidence of caseworker Taylor, given in the Children's Court, that there was no evidence to support the view that the Mother had abused the Child. Counsel pointed out that such risk and safety concerns for the Child as were identified in the SOPP were directed to domestic violence perpetrated by the Father against the Mother and the Child (the latter being exposed to the Father's behaviours). ILR's submissions concerning the Mother (MFI 15) 1. The ILR submitted that the Mother had made a great deal of progress in achieving the tasks set for her by the Department in the SOPP. The Court could be satisfied that she had demonstrated a great deal of insight into the child protection concerns that led to the Child's removal and further, that she had made significant progress in addressing those issues. She was, it was submitted, able to provide a safe, nurturing, stable and secure environment for the Child. She had acknowledged difficulties she had faced in the transition of care from former carers to herself. Although it appeared that the transitioning process was somewhat traumatic for the Child, manifesting for example, in tantrums, he appeared now to be thriving with his Mother. 2. The ILR submitted that any disruption now of the recent restoration of the Child to the Mother could not be anything but contrary to the Child's interests. The Father's submission 1. The Father submitted that I should find that the Mother presented an unacceptable risk of harm to the Child. 2. In closing submissions, he said that the Mother was using the DCJ as a 'babysitter'. He raised the spectre of former carers who, he perceived the Mother continued to lean upon to help her, moving away, so that the Mother was left on her own. 3. The Father submitted that the Secretary and Minister each presented an unacceptable risk of harm to the Child. Moreover, he submitted that the Secretary and Minister exacerbated the risk of harm to the Child. Further, the Secretary and Minister's submissions as to what findings should be made was/were influenced by racial bias. Consideration of issue 2(a) 1. Section 83(1) of the Care Act requires the Court to engage in a forward-looking exercise when assessing whether there is a realistic possibility of the children being restored to the parent. The Court is to do this with reference to two (mandatory) considerations: the circumstances of the Child and whether the parent has satisfactorily addressed the issues that led to the removal of the children in the first place. 2. I accept the submissions of the Secretary and Minister, the Mother and the ILR. I have had the benefit of hearing and seeing the Mother give evidence and have made favourable credit findings concerning her. 3. She has displayed, in the difficult circumstances she had put up with over a significant period prior to the Child's removal, a capacity to demonstrate insight, with the aid of services given to her, upon her own conduct (mitigated as that was by her being a victim of domestic violence) as it affected the Child prior to removal. She also had demonstrated the capacity to learn what she could do to improve her relationship with the Child. As with most single mothers, she has endured a level of sacrifice in her dedication to the Child since his return to her care. The most telling indicator of this issue is what has occurred since the Child was in fact restored to her care. There is a consensus of opinion (save for the Father's opinions) about how the Child is thriving under her care. There are positive reports from school, from Kids Xpress and his immersion in useful hobbies and activities. She has financially contributed to the Child's therapies (apparently without the financial support of the Father). The Mother has facilitated cultural immersion through arranging for the Child's weekly Cantonese sessions and access to others in the Mother's family in New Zealand. Contrary to the Father's submission regarding, in effect, about DCJ badgering or brainwashing the Child, I do not doubt the authenticity of Mr Chance's evidence that the Child had asked Mr Chance to convey to the Father his love for his Mother. She has provided nurturing environment for the Child, which is relatively stable (the qualifying adjective reflecting the current stress occasioned to the Mother and its possible side-effects to the Child, because of this litigation). She provides a safe environment for him. I agree, also, with the ILR's submission that the Father's assertions of domestic violence by the Mother, certainly since the restoration to her, are not substantiated by any convincing contemporary and independent evidence. 4. She has co-operated with the Department. She has shown a level of generosity and insight to reach out to others to help her. She has preserved connection with the Child's former carers (and their son) because she plainly thinks that will add to the Child's social network. That also demonstrates insight into care and concern for the child's welfare and development. After all that she had suffered at his hands, she is even willing to facilitate contact between the Child and Father, so long as the Minister was responsible for it. 5. I accept the Secretary's submission that in light of my finding about restoration to the Mother, it would inexorably follow that I would find that restoration to the Father was not a reasonable possibility. However, in case I am wrong about restoration to the Mother, I go on to consider the parties' additional submissions about that topic. Issue 2(b): Whether reasonable possibility of restoration to Father within reasonable time The Secretary's submissions directed to the Father 1. The Secretary submitted that restoration to the Father would pose an 'unacceptable risk' of harm to the Child. Relevant to that view was not only the initial risk identified, but the fact that it had been a substantial period of time since the Child had had contact with the Father. The magnitude of the risk was high, in terms of physical and psychological harm. It should be found that the Father had perpetrated family violence towards the Mother, including an ongoing pattern of the use of assault, threats and emotional abuse and other coercive means to dominate and induce in the Mother her submission to and compliance with his demands; often in the Child's presence. 2. The above finding should be established by reason of a combination of evidentiary matters. The Mother's evidence in Court was unchallenged and the Mother was otherwise a truthful and considered witness. She gave an account replete with a great deal of particularity. Although the Secretary's counsel acknowledged that the Father had prepared a letter of apology, this did not specify what he accepted responsibility for and should be treated as a (general) implied admission of domestic violence. He had been convicted of domestic violence offences and admitted incidents of domestic violence against the Mother in the Children's Court proceeding. 3. It was suggested that the Court would be satisfied that the degree of risk remains so high to the Child as to be unacceptable. That risk increases because of the Father's demonstrated lack of insight into the risk and his refusal to accept responsibility. He did not engage in meaningful conduct to address his violent behaviour. Counsel for the Secretary referred to Mr Chance's evidence about the 'services' offered to the Father. He had largely rebuffed evidence, or at least it had proven ineffective. Reference was made to Udei Desai's evidence (par 30) and the counselling the Father had received from Noel James, which did not assist the Father: he had not allowed himself to 'move on' from his sense of being oppressed. He had not undertaken the mental health assessment stipulated by Mr Chance. He had not even sent Christmas or birthday cards as Mr Chance had recommended to precede other forms of contact. He believed a referral to LSC was inappropriate. 4. The Secretary submitted that the Father had demonstrated a lack of focus on the Child's needs. His 'all consuming' focus was on mistreatment and oppression by various Government bodies and impinged upon his parental capacity. The Father had a 'preoccupation' with fighting the injustices he considered were endemic in the system of child protection; to the effective exclusion, or perhaps diminution, of concern for the health, safety and welfare of the Child. 5. The Secretary's Counsel cited the content of the contact reports of the Child's family time with Father (prior to the Department's suspension of contact visits); and the circumstance that when he cross-examined DCJ caseworkers and the Mother in this appeal proceeding, he failed to ask any significant questions of any witness that focussed on the Child, his history or future. 6. In anticipation of the Father's submissions regarding the significance of protection of human rights, the Secretary acknowledged that any impairment of the Child's human rights would have to be reckoned with. This was recognised (implicitly if not explicitly) in the objects and principles of the Care Act. More generally in answer to the Father's expressed grievances with the Child protection process generally, and what occurred in the Children's Court proceedings in particular, it would be unnecessary to address many of them: the Court's task was to follow the legislative framework of the Care Act. 7. Counsel for the Secretary argued that the Father did not present a case in this Court for restoration of the Child to his care within a reasonable period. This was partly indicated by the limited nature of his submission in which he did not seek full restoration but rather only contact one week out of every three to four weeks. But if her understanding of his case was misapprehended, given that he presented an unacceptable risk, the Secretary's Counsel submitted that such a finding would itself lead to the same conclusion. The Mother's submissions 1. The Mother adopted the Secretary's position. 2. Counsel for the Mother emphasised, and implicitly invited the Court to accept, that the Father had perpetrated domestic violence against the Mother from 2013, after the Father came to live with her in Australia. 3. The argument that the Father had perpetrated domestic violence against the Mother should be accepted. The Father pleaded guilty to the offence of assault occasioning actual bodily harm on 6 May 2022 in the presence of the Child. On 23 May 2022, DCJ staff completed a domestic violence safety assessment tool which rated the threat level of domestic violence against the Mother as being at 'serious threat'. The Court should accept the Mother's evidence about the Father's conduct given the Children's Court proceeding (as identified in the chronology). 4. Counsel pointed out how the Father had made limited concessions about what conduct he accepted responsibility for; which did not traverse the full extent of the violence and coercive control be exercised over the Mother, starting in 2013. Indeed, Counsel submitted that the Father's evidence both in the Children's Court and in this appeal proceeding demonstrated a serious lack of insight into the issues that led to the removal of the Child. Much of that evidence served to deflect responsibility away from himself and to lay the blame upon the Mother for his violence towards her. Moreover his evidence in this appeal not reveal any self-reflection since final orders have been made. His focus instead, was based on 'extraneous' issues. 5. The Mother referred the Court was referred to the assessment of Magistrate Crompton about the Father presenting "as a difficult and evasive witness. When questioned or challenged about the veracity of his evidence he was very quick to anger. Overall I would describe as matter as hostile and obdurate". Although the Father was not cross-examined in this proceeding, his behaviour (as an advocate in his own cause) was consistent with those observations. 6. The combination of the history of domestic violence and coercive control (even in the presence of the Child) and the Father's lack of insight into his behaviour indicated that Father propose an unacceptable risk of harm to the Child (as well as the Mother) and that would be unsafe for the Child to be restored to his Father's care. 7. In his closing address, whilst indicating her reliance upon his own written submissions, the Mother also adopted the Secretary's position on this issue. The ILR's submissions regarding the Father's position (MFI 15) 1. The ILR submitted that there was no evidence (independently of the Father's evidence) substantiating Father's allegations that the Mother had perpetrated abuse and violence against himself and the Child. 2. The ILR submitted that there was substantial evidence to indicate that the Father perpetrated domestic violence against Mother during their relationship. He cited his conviction for an assault occasioning actual bodily harm to the Mother (following a late withdrawal of a not guilty plea). He cited the content of allegations of what he had done against the Mother in Adelaide in March 2019. The ILR appeared to accept the Mother's account of on-going domestic violence since 2013. 3. The ILR further submitted that there was no evidence indicating that the Father had substantially or meaningfully addressed his violent tendencies. 4. These matters indicated that the Father posed an 'unacceptable risk' to the Child. That being so, the Court could accept the Secretary's submission that there is no realistic possibility of restoration of the Child to both parents. 5. The ILR also referred to the Father's conduct in the Children's Court proceeding. He did not seek an order in that Court for allocation of all aspects (or some aspects, such as education, medical treatment and religion) of parental responsibility for the Child to himself, or orders for partial residence of the Child with him. Before the Federal Circuit Court (in which he was the Applicant) he had consented to Final orders that the Child live with his Mother and that she bear sole parental responsibility for him. 6. The Father had not worked co-operatively, transparently and honestly with the DCJ. Communication issues were so fraught that a special plan for communications was put in place between Father and DCJ caseworkers. But that was ineffective. The Father had refused to participate in parenting capacity, cognitive capacity and mental health issues. He had not completed a Mental Health Assessment. He had not meaningfully engaged in a Men's Behaviour Change Program. After having pointed out to him in December 2023 the DCJ's requirements for him to recommence family time, he had still not met those requirements; even in the circumstance of not having had contact with the Child for nearly a year and a half. 7. The ILR noted that by his conduct, the Father had not complied with Federal Circuit Court orders. The ILR submitted that the Court could not be satisfied that the Father would comply with Court orders. 8. In his closing address, whilst indicating his reliance upon his own written submissions, the ILR adopted the Secretary's position on this issue. The Father's submissions 1. The Father submitted that there was a realistic possibility of restoration within 2 years; although scarcely did so in any positive way. He barely touched upon his personal circumstances; other than to decry his sense of victimisation. 2. I have noted positive views about the Father's conduct of Ms Skye Tran; however her evidence is of limited weight. She was not around at the time of the material events giving rise to the dispute Consideration of issue 2(b) 1. I note that in the Children's Court proceeding, the Father did not seek permanent restoration, but only contact, with such contact being limited to a relatively narrow range of areas of parental responsibility. But he declared in this Court that his position had changed in this proceeding. At least in relation to permanent restoration of the Child, it appeared his main interest was to prevent the Mother obtaining the order for permanent restoration. 2. I take into account the Father's breach of the Federal Circuit Court's order in April 2021, which evinced a flagrant disobedience of the law; for which the Father did not appear repentant. I take into account his conviction for assault (occasioning actual bodily harm) against the Mother when he was subject to provisional/interim ADVO. These matters are proof of the Father's disrespect for legal authority if it collided with his personal beliefs. 3. I accept, on the probabilities, that notwithstanding that charges against him for earlier domestic violence in Adelaide were withdrawn, that the factual substratum giving rise to the charges was made out. I have noted already that the Mother was an honest and reliable historian. Her accounts of domestic violence were not (verbally) challenged in this Court. The circumstance that she made contemporaneous reports was an additional basis to accepting her evidence. Even in his 'apology', there were some admissions by the Father of things he was asserted to have done. I earlier indicated the limited weight I gave otherwise to the letter and my view as to his motivation. Generally, I accept the submission and find that the Father had engaged in a sustained course of perpetrating domestic violence against the Mother; sometimes in the immediate presence of the Child. 4. I accept the ILR's submission that for a man of the Father's character, his submissions regarding the Mother perpetrating domestic violence or abuse against him were ludicrous. To the extent that the Mother lost patience with and sometimes mistreated the Child, such physical harm was not substantial (although I think it contributed to his suffering some minor and not enduring harm – noting the manifold glowing contact visit reports of the Mother's engagement with the Child). The combination of his being a man of bad character arising from his history of domestic violence, his raising of implausible assertions of that kind, the adverse view of the Father's credibility formed by Crompton CM, the surreptitious and underhand way in which the Father sought to sound record private conversations, amongst other reasons, lead me to give very little weight to anything the Father said, unless corroborated, or consistent with objectively proven facts or the general probabilities. Certainly, in any conflict between his evidence and that of the Mother, or the DCJ caseworkers, absent any special reason, I would prefer the evidence of the Mother and those DCJ caseworkers. 5. Further, contrary to the Father's submissions against the ILR, I accord weight to the ILR's opinion. To my observation from seeing the ILR in Court, he fulfilled his role. This was demonstrated when, for example, he cross-examined Ms Velles about the DCJ requirements for the Father to have contact with the Child in a way which arguably was beneficial to the Father and did not necessarily align with the case of the Secretary and Minister. That demonstrated the Father's concern, expressed at the outset of the hearing, to act with an open mind. 6. I take into account the Father's lack of meaningful engagement in obtaining treatment for himself. It was significant that in his letter of apology he referred to certain sessions he had attended. The Father did not refer me to any evidence evincing his reflections upon what he had learned from those sessions. He also referred to consultations with Dr Pusey and Noel James (the latter was described as being based in Florida). He did not produce to the Court any report from those individuals in which positive reports were made of progress in treating the underlying condition that gave rise to his domestic violence or that the subject of domestic violence had even been raised with either practitioner. He did not explain why they could not have given evidence. I infer that such evidence as those practitioners could have, but did not give, would not have assisted the Father. He has learnt very little at all about his capacity to control his emotions towards the Mother; who he plainly hates. The risk of his occasioning harm to the Mother and his obliviousness to the effects of that harm upon the Mother, is a significant indicator of his presenting an unacceptable risk of harm. This lack of insight and real regret is a harbinger that he continues to present a serious risk to the Mother's safety and therefore, the serious risk to the Child's mental health (at least) should the Child be exposed to further acts of domestic violence. 7. I take into account further, as another indicator of unacceptable risk, the Father's inability or unwillingness to engage with and co-operate with DCJ caseworkers; which is an essential aspect of the child protection system. This is mainly pertinent to the issue of contact referred to below. But it is also relevant to this issue. The Father, to put it bluntly, appears to perpetually be at war with DCJ caseworkers, taking offence at the slightest matters (such as late arrivals for visits, failing to respond in what he erroneously regards as an entitlement he has to receive responses to voluminous communications which are of an offensive and accusatory nature). He appears to regard such incidents as synonymous with violence towards him and the manifestation of 'micro-aggressions'. In all of this, I accept the universal submission of the defendants that he demonstrates a singular lack of insight. In other actions, such as his decision to dis-enrol his son from school, the Father has evinced belief that he knows what is best for the Child and is prepared to act unilaterally in the exercise of power and control. It was on a par with the coercive control that was a marked feature of his dealings with the Mother in the lead up to the Child's removal. 8. I also take into account the indication, from Kids Xpress, in early May 2024, that the Child recalled that the Father had "yelled a lot" and was "angry". 9. Further, I take into account (although giving less weight to the factor than other considerations) the evidence before the Court as to the quality of the Child's interactions with the Father during contact visits. There is historical and relatively recent evidence to the effect that although the Child may occasionally indicate a desire to see the Father, there were other instances when he was brought to tears when separated from his mother when preparing for contact visits with the Father. I reject the Father's (uncorroborated) evidence that the Child had been badgered by DCJ caseworkers, like Mr Chance, to express such symptoms. His aspersions against Mr Chance are not reconcilable with Mr Chance's own recognition of the Child's wishes expressed to him that he wants to see the Father. Tears are not easily manufactured from a boy as young as this Child. As to those contact visits, having read them, one sees a pattern that although the Father exhibits care of a certain kind (buying or producing new Lego), his engagement was in some respects perfunctory; with little meaningful engagement (such as expressing interest in the Child's current schooling or other activities) and with little or no affection. In recording this last impression, I am conscious that sometimes fathers may be self-contained, awkward and emotionally distant from their children. Not every father is of an affectionate disposition with their children and that characteristic is not of itself an indicator of an absence of love and care. By itself, that could hardly be considered grounds to remove a child away from care. 10. I can accept that the Father has shown his love in other respects, such as expressing concern (bordering upon obsession) for what appeared to be the Child's enduring runny nose throughout 2022. (The recent advice of the ENT specialist appears may help put that concern into its proper context). He is evidently very interested in implementing his strong opinions about the Child's education, especially his literacy and numeracy. By his conduct in this proceeding and in the Children's Court, he is patently a strong advocate for what he perceives as the Child's human rights and freedoms (although, as earlier indicated, how much of that was conflated with his own concerns for violation of his human rights and freedoms was hard to tell). It appears also that he is also vitally concerned in the Child obtaining a certain kind (Buddhist tenets) of religious instruction. Beyond a relatively narrow range of topics relating to the Child's development and growth, it strikes me that, as a father, he is sincerely fearful or at least anxious for the future for his son growing up into adulthood in what he regards as a hostile and racist country and is probably projecting upon the Child his apprehension that, in the light of his own past experiences, the Child will inevitably encounter and suffer racial prejudice or discrimination of one kind or another. In this respect at least, I can make no criticism of the Father. It is the consequence of this mindset, in light of the child's development, which is relevant. To meet that prospect, he appears to want to 'arm' the Child with educational proficiency and religious instruction to enable the Child to cope. This is a dark vision of the Child's future. There is a risk of a self-fulfilling prophecy of the Child facing the prospect of social isolation under the Father's care, which is another factor militating against the Child's growth and welfare. 11. Since the Child's removal, the Father has not accumulated 'runs on the board'. He has shown no authentic repentance for his domestic violence perpetrated against the Mother. Although in his letter of apology he stated that he 'understand(s) the consequences it had on the Child's growth and development, he did not evince what he meant by that undertstanding; which for somebody who proclaimed an interest in Child Development and Educational Psychology struck me as surprising. 12. Further I take into account that with the Child's relatively recent progress with the care of his Mother – after early tantrums in the transitional period from the previous carers – that restoration of the Father would involve a profoundly intrusive impact upon the Child's development. 13. In reaching that conclusion, I have taken into account the objects in s 8, the paramountcy principle and my assessment that restoration of the children, given their needs and the circumstances of the Father that I have referred to, presents an unacceptable risk to the Child. 14. For the purposes of s 83(5) of the Care Act, even if I did not find that there was a realistic possibility of restoration to the Mother meant that, by necessary implication, there was no such realistic possibility of restoration to the Father, I would still have found that there was no realistic possibility of restoration to the Father. 15. In addition, it is in his best interests for the Mother to hold parental responsibility for all aspects of the Child's care; save for contact with the Father. Such placement complied with the first stage of the permanency planning principles and was most likely to meet the Child's best interests. 16. One particular matter of concern to the Father was the Child's immersion in Buddhist instruction. That is one of the statutory objects in the Care Act (s 9(2)(b)). The Care plan touches upon religion under the rubric of culture (CB 1077). The evidence is also that the Child has weekly learning in Cantonese. That foreshadows significant Chinese influence in which, conceivably Buddhist notions may be absorbed. But it is also relevant that the Mother's New Zealand heritage be taken into account. These are matters for balance, but I do not regard the Father's preference for a certain kind of religious preference to hold sway. At any rate, if and when the Father restores proper lines of communication with the DCJ caseworkers (which is a matter now in his court), conceivably more focussed opportunities may arise for the Child to receive Buddhist instruction. 17. In light of the conclusions I have reached on issues 2(a) and (b), and for the same reasons, I find that it in the Child's best interests for the Mother to hold parental responsibility for all aspects of the Child's care, with the exception of contact, which should be held by the Minister in order to protect the Child and the Mother from harm. Issue 3: Parental responsibility 1. In the Amended Care Plan (Tab 9, CB 1082) attention was given to the aspect of contact. Insofar as the Father was concerned, the DCJ indicated that the reason for contact was to "maintain connections and develop sense of identity". It was proposed that the frequency was a minimum of four times a year (this being inclusive of any special occasions). It was proposed that contact occur in a community service centre, supervised by DCJ or a delegated agency and in line with the Child's best interests and wishes. 2. More specifically, the DCJ adverted to the circumstance that the Father had not had meaningful contact with the Child since November 2022. The DCJ's attitude was that prior to contact being able to resume, it was necessary for the Father to meaningfully engage in a mental health assessment to assess his social or emotional functioning and personality features as well as meaningfully engaging in any recommendations made within that assessment. DCJ indicated that it was also necessary for the Father to understand, acknowledge and sign a formal contact agreement regarding the expectations of his behaviour during contact. If and when those requirements were met, the DCJ proposed that contact may commence in the form of supervised video calls to assess and monitor the Child's safety and well-being. 3. In his reasons on 4 September 2023, Magistrate Crompton recounted submissions on this topic (paragraphs 127-140). His Honour determined (at 141) that, in the absence of expert assessment evidence that the Father had sufficiently addressed concerns about his behaviour, the Child would be at an unacceptable risk of harm if he was to spend any unsupervised or supervised time with the Father. 4. The Magistrate determined (paragraphs 145 – 146) that the Father's application to be allocated sole parental responsibility for education, religion and medical treatment should be rejected: he had not demonstrated that he could make decisions in the Child's best interests. The Father had set back the Child's education by his decision to dis-enrol the Child from kindergarten at the beginning of 2022. He had also been fixated on the Child having COVID-19 symptoms or respiratory illnesses and had evinced a distrust of medical professionals (even his own, Dr Singh) if they provided advice inconsistent with his own views. 5. Magistrate Crompton noted (paragraph 147) the prohibition (under s 79(8) of the Care Act) upon the Court allocating parental responsibility jointly between two or more parents unless it could be satisfied that the persons could work together cooperatively, in the best interests of the child. In this case neither parent currently communicated at all; and that was primarily due to the risk of unacceptable harm that the Father opposed to the Child and Mother. It could not be said, therefore, to be in the Child's best interests for his parents to have different aspects of parental responsibility allocated between them. There was a strong possibility that the Father would use his parental responsibility to perpetrate coercive control over the Child and the Mother. I agree with the Secretary and Minister's submission that once it is found that there is a realistic possibility of restoration in the Mother's favour (but not the Father's) it is virtually axiomatic that a finding should be made that permanency planning has been addressed, with reference to s 10A(a). Submissions on the Third Issue The Secretary's submissions 1. Counsel for the Secretary submitted that parental responsibility as to contact between Father and Child, until the Child attained the age of 18, should be held by the Minister because that is the only available protective measure to ensure that neither the Child nor the Mother are exposed to family violence into the future. If the Mother was required to exercise parental responsibility for contact, her evidence about her difficulties communicating with and managing relations with the Father indicated that she would be vulnerable to physical risk but also her own psychological well-being. In short, in the absence of placing responsibility for Contact in the Minister, Mother and Child would be placed at unacceptable risk. 2. In support of this submission, the Secretary cited earlier submissions, but also referred to other matters, including: 1. The Mother's unchallenged evidence that communication with the Father would likely cause her distress and anxiety; 2. The Father's communications with the parties and the Court (MFIs 8, 10, 11 and 12), the DCJ were lengthy, voluminous, accusatory and offensive. Communications of that type to the Mother would likely adversely impact her. 1. I raised with the Secretary's Counsel the circumstances, as it appeared to me, that the Father had evinced strong opinions about religion (adherence to the Buddhist faith) and education for the Child and what could occur on the premise (now materialised) that the Mother was accorded full parental responsibility (save for contact, which was allocated to the Minister). I understood the Secretary to respond by submitting that there could not be any 'carve out' from allocating parental responsibility for a specific aspect, such as religion, As indicated, the Secretary's Counsel acknowledged that the Father's perspective of widespread racism within the DCJ was relevant to this issue. She submitted that the Court should not find that a motivating factor for any of the DCJ caseworkers was racial. Counsel submitted that the preponderance of evidence for the Father featured opinion evidence. 2. The Secretary argued that it was the Father who broke off communication with the DCJ. He did not respond to the DCJ letter of January this year. The breakdown in communications presented practical problems for the Child. There was the prospect that plans and other decisions affecting the Child's relationship with the Father could be delayed because of such things as the Father's preference for the mode of communications (in person meetings or written and the content of those communications). So bad was the state of the relationship between the DCJ and the Father is that in the lead up to this hearing, the Father was not engaging in any communications. The Mother's submissions 1. The Mother supported the Secretary's position. Her Counsel cited the following additional or separate reasons for her position: 1. She is still scared of the Father and said she would find it impossible to organise contact by herself; 2. The parents cannot effectively communicate; indeed, the Father refuses to communicate. This was instanced by the DCJ's intermediation being required to facilitate return of the Father's dogs; 3. Ms Sunny Hong (the Mother's Counsellor) opined that the Mother was not suited to supervising contact between the Father and the Child and indicated that an external agency was more appropriate. She was hyper-vigilant in or about his presence. Further, Ms Hong indicated the Mother's difficulties in enforcing boundaries against the Father which boundaries, it was said, the Father did not recognise or comply with (or, instead, pushed away at them). His failure to recognise and comply with boundaries made it untenable for the Mother to manage contact between him and the Child; 4. The Father had shown a blatant disregard for orders of the Federal Circuit Court and his dealings with police also indicated that he was unlikely to be constrained by authority. Reference was made about his interactions with Police and the Wesley Mission; 5. The nature of the Father's interactions with DCJ caseworkers, including such a level of the supply of excessive documentation as to prompt DCJ to put in place a communications plan, indicated an obsessive personality which would likely overwhelm the Mother (as it had in the past). The Mother supported the Secretary's proposal that the Father undergo a mental health assessment before he was restored to supervise contact. In this respect, she relied upon the collective judgment of the Department and its oversight to ensure contact will be conducted safely for the Child. The ILR's submissions 1. The ILR referred to the views of Ms Hong, a social worker who had aided the Mother, and also the views of the Mother, regarding the undesirability of the Mother being involved in contact arrangements between the Father and Child. 2. The ILR supported the DCJ's provision in the amended Care Plan for contact between the Father and Child to occur four times per year following a mental health statement. The ILR further supported such assessment being carried out prior to the re-instatement of face-to-face contact between the Father and Child. 3. The ILR submitted that it would be unreasonable and not in the Child's best interests for anyone other than the Minister to be allocated parental responsibility for contact between the Father and the Child. The Father's submissions 1. The Father submitted that the Secretary's position that it was in the Child's best interests for the Mother generally to hold parental responsibility for all aspects of the Child's care (save for contact, for which the Minister was responsible) was influenced by racial bias. 2. In his closing verbal submissions, the Father said he had no confidence in 'in person' communications with DCJ. He described the requirements for a mode of communication stipulated by DCJ as an act of 'violence'. (He compared it with his experience as a young person in living in Canadian as a person with Chinese nationality, when forced to speak in English). Consideration of Issue 3 1. Having regard to the evidence pointed out to me, having read the submissions of the parties, I see no reason to differ from the reasons of Magistrate Crompton. 2. Finding, as I do, that the Mother genuinely lives in fear of the Father, his inability to demonstrate a capacity to rehabilitate himself and his inability and unwillingness to act in a way that is dedicate himself to advance the interests of the Child – his inability to see that larger picture whilst immersing himself, in an introspective and self-absorbed way – these matters militate against the Mother's having parental responsibility in contact. A very illuminating feature of the evidence, and what was disclosed in the oral submissions, was that the Father could not even bring himself to send the Child a Christmas card or write him a letter, as had been recommended (T 346-347). It appeared he could not abide the notion of taking a practical step to demonstrate his love for the Child if that step had been the subject of a recommendation by DCJ caseworkers. His mindset, apparent from closing submissions, was that it was preferable to engage in a human rights crusade (much of it apparently concerning his human rights) against the DCJ and many other individuals and state instrumentalities, rather than succumb, by a process of mental 'colonisation', to implement an inherently worthy recommendation by Mr Chance benefitting himself and the Child in restoring connection between father and son. 3. I have referred to and rejected the Father's racism arguments above. In light of the circumstance that it would present an unacceptable risk of harm to the Mother and the Child for the Mother to deal with the Father for contact, and notwithstanding what the Father believes about the beliefs, actions or motivations of DCJ caseworkers, ultimately, a person in his position has no effective choice but to work through the Department. 4. Ultimately, having listened to the evidence of the DCJ caseworkers and their supervised case manager, and despite the vituperation they have experienced from the Father, they continue, acting professionally, to evince a willingness to work with the Father to facilitate contact with the Child; but, understandably, they are not prepared to work with him at any cost, to bear burdens that the Father thinks he is entitled to impose upon them. 5. Whether or not the Father is willing or able to try to adjust his mindset, I am comfortably satisfied that parental responsibility for contact should be held by the Minister in order to protect the Mother and the Child from harm. Issue 4: Adequacy of permanent planning The Amended Care Plan 1. The pertinent part of this plan appeared at Tab 9, CB 1078-1081. Relevantly, the plan: 1. Addressed the Child's individual needs. These were identified as having a stable home environment with an attuned carer who consistently meets his needs; to have any issues followed up in a timely manner; support and advocacy for those needs until he could communicate his physical and emotional needs confidently and independently; and a carer who was able to communicate, co-operate and collaborate with support services; 2. An expression of the DCJ's preference that permanent placement involve restoration to one or both parents. The DCJ explained that the Mother had successfully engaged in a range of issues. The DCJ assessed explained why restoration to the Father was not a realistic possibility within a reasonable time. Although it acknowledged that the Father had engaged in a series of parental courses, he had failed to engage in tasks directly addressing child protection concerns: although he exhibited understanding of the 'academics' behind parenting, his understanding of his son's emotional and social needs was 'limited'. He had not worked co-operatively with DCJ caseworkers; 3. The DCJ proposed that restoration to the Mother take place over a 12 month period, divided over three stages; with the Minister retaining parental responsibility for the Child 6 months after his physical restoration to the Mother. Stages 1 and 2 were noted as having already passed. The DCJ explained further why, after the stage 3 had passed, why parental responsibility be allocated to the Mother (save for contact) until the Child turned 18. 4. On the aspect of contact, DCJ stated the following: "DCJ is of the view that until [the Child] is 18 any contact between him and [the Father] should be supervised by professional. There is no family member or other person that DCJ has assessed as suitable, with sufficient knowledge and insight of the risks posed by [the Father] and the ability to protect [the Child] from such risks during visits. The Secretary is also seeking a prohibition order to prevent the father from approaching the Mother's residence or the Child's school and placing the family at risk of significant harm" 1. The DCJ also set out, respectively, what is called 'minimum outcomes' before restoration could commence as it envisaged, applicable to both mother and father. 2. The DCJ also touched upon transitional arrangements to support restoration. 1. Magistrate Crompton determined (paragraph 151) that he was satisfied that the permanency planning proposed by the secretary aimed to provide the Child with a stable placement that offered long-term security and involve the least intrusive intervention in his life; which was consistent with the paramount concern to protect him from harm and to promote development. 2. In one of his affidavits filed in this Court (15 April 2024), the Father deposed (paragraph 2(b)) to his belief that the Amended Care plan showed "the contempt modern state Australia governments have for non-white culture, human rights and fundamental freedoms" Submissions on the Fourth Issue The Secretary's submission 1. The Secretary submitted that the placement complies with the permanency planning principles (especially s 10A(3)(a))) and was most likely to meet the Child's best interests. The submissions of the Mother and ILR 1. The Mother supports DCJ's permanency planning for the Child as set out in the Amended Care Plan. 2. The ILR also submitted that permanency planning had been appropriately and adequately addressed in the Amended Care Plan. The Father's submissions Determination of the Fourth Issue 1. I have considered the Care Plan for both the Child. I am satisfied that the plan makes provision for the matters set out in s 78(2) of the Care Act. I have considered the permanent placement principles and the alternatives for placement in s 10A. I find that it is in the best interests of the Child that parental responsibility for the Child generally be allocated to the Mother in but in relation to Contact, parental responsibility should be allocated to the Minister for Families, Communities and Disability Services until the Child turns 18 years of age. I agree with the Plan. I also agree with the findings of Magistrate Crompton. 2. I find that the particular requirements in s 83(7) and (7A) of the Care Act are satisfied. Summary & Orders 1. To restate findings made in these reasons, the Court has found that: 1. the establishment condition for a care order under ss 71 and 72(1) of the Care Act was made by the Children's Court (by consent and without admissions) and it is now too late for the Father to contest it, but even if (contrary to what I have found) it remained open for the Father to contest that determination, the condition would have been satisfied; 2. it accepts the Secretary's assessment that there is no realistic possibility of restoration of the Child to the Father within a reasonable period pursuant to s 83(5) of the Care Act; 3. it accepts the Secretary's assessment that there is a realistic possibility of restoration of the Child to the Mother within a reasonable period pursuant to s 83(5) of the Care Act; 4. for the purpose of s 79(3) of the Care Act, it is in the Child's interests that the Mother hold parental responsibility for all aspects of his care, save for contact, in respect to which Minister should hold parental responsibility on the aspect of Contact in order to protect the Child and Mother from harm; 5. the Secretary has presented care plan for the Child, for the purposes of s 78(1) of the Care Act, which have been considered; and 6. for the purposes of s 83(7)(a) of the Care Act, the permanency planning for the Child has been appropriately and adequately addressed. 1. The Court orders that: 1. The Summons is dismissed. 2. The orders made by Magistrate Crompton on 4 September 2023 are confirmed. ********** Endnotes 1. Re Alistair [2006] NSWSC 411 per Kirby J at [64]-[65] 2. JL v Secretary Department of Family and Community Services [2015] NSWCA 88 at [148] 3. Director General Department of Communities & Justice v Dessertaine [2003] NSWSC 972 4. M v M (1988) 166 CLR 69 5. Johnson v Page [2007] Fam CA 1235 6. Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-17 7. I note in this respect that the Father had earlier timed a written application for me to recuse myself to occur very early on the morning (10 May 2024) that I was scheduled to deliver a judgment on an evidentiary dispute about the admissibility of a sound recording that he took of a private conversation. 8. This Care Plan was not in the Court Book. 9. The New South Wales Auditor-General's Report to Parliament "Their Future Matters", Executive Summary (p 2) 24 July 2020 10. Published in the International Journal of Discrimination and the Law (2009) Vol 10 p 191 11. Although it appeared that the Father doubted the utility of his doing so, because of his belief that "there was an arguable case that the OLSC is racially discriminatory" (MFI 2, par 36) 12. Published reasons for that decision appear in VC v Secretary of Department of Communities & Justice [2024] NSWDC 166 13. LPDT v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2024] HCA 12 at [1] 14. M v M (1988) 166 CLR 69 15. The Hon Justice Stephen Gageler AC, "Alternative Facts in the Courts" (2019) 93 ALJ 585 16. Ibid at 589-590 17. Ibid at 592 18. Equality Before the Law Bench Book, Section 1.4 19. Interpretation Act 1987 (NSW), s 34 20. Such evidence is admissible in sexual assault cases affecting child complainants, even where the expert is performing something akin to the role of a librarian: Aziz (a pseudonym) v R [2022] NSWCCA 76; AJ v R [2022] NSWCCA 136 21. Cameron v Human Rights and Equal Opportunity Commission & Anor (1993) 46 FCR 509 per French J at 519 22. Alexander Pope, Epistle to Dr Arbuthnot (1735) 23. Waters v Public Transport Corporation (1991) 173 CLR 349 at 402. Amendments 30 May 2024 - Paragraph 267: Inserted "was" Paragraph 274: Inserted "racism perpetuated against" 30 May 2024 - Paragraph 274: "perpetuated" replaced with "perpetrated" 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: 30 May 2024