District Court New South Wales Medium Neutral Citation: R.C. and P.K. v The Secretary, Department of Communities and Justice [2024] NSWDC 196 Hearing dates: 4-5 April 2022, 3 June 2022, 19 September 2022, 6 April 2023, 5 July 2023, 5-6 September 2023, 8 September 2023, 4-14 March 2024, 22 March 2024, 30 April 2024 Date of orders: 3 June 2024 Decision date: 03 June 2024 Jurisdiction: Civil Before: Strathdee DCJ Decision: (1) Orders made by Children's Court on 12 July 2021 as regards ALK are confirmed. (2) Orders made by Children's Court on 26 May 2023 as regards JK and AYK are confirmed. (3) The parents' appeals are dismissed. Catchwords: CHILD CARE APPEAL – care and protection of children – care and protection orders – appeal from Children's Court to District Court – whether the need for care and protection of the child has been established – general principles applicable – alleged sexual assault of children by mother – alleged mental health issues – lack of insight Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 M v M [1988] HCA 68 NU v NSW Secretary of Family and Community Services [2017] NSWCA 221 R.C. and P.K. v The Secretary, Department of Communities and Justice [2024] NSWDC 85 Secretary, Department of Communities and Justice and Farmer [2019] NSWChC 5 Category: Principal judgment Parties: R.C. and P.K. (Appellants/Plaintiffs) The Secretary, Department of Communities and Justice (Respondent/Defendant) Representation: Counsel: Mr P Braine (Appellants/Plaintiffs) Mr B Dean (Respondent/Defendant) Solicitors: Speirs and Associates (Appellants/Plaintiffs) NSW Crown Solicitor's Office (Respondent/Defendant) Ms D Neligan (Independent Legal Representative for the children) File Number(s): 2021/235620 and 2023/198916 JUDGMENT 1. The first plaintiff R.C. ('the mother') and the second plaintiff P.K. ('the father') (together, 'the parents') are appealing orders made by the Children's Court on 12 July 2021 and 26 May 2023. The parents seek the restoration of the children to their joint care. 2. This matter concerns children ('the children') who are the children of the parents: * ALK, born 2020; * JK, born 2021; and * AYK, born 2022. 1. The children were each assumed into care shortly after they were born pursuant to decisions made by a delegate of the Secretary, Department of Communities and Justice ('the Secretary'), i.e., pursuant to decisions made by the delegate in accordance with the relevant provisions of the Children and Young Persons (Care and Protection) Act 1998 (NSW) ('Care Act'). 2. On 12 July 2021, on the application of the Secretary, the Children's Court of New South Wales ('the Children's Court') made final orders allocating parental responsibility for ALK to the Minister for Families and Communities ('the Minister') until ALK attains 18 years of age. 3. On 26 May 2023, the Children's Court made final orders allocating parental responsibility for JK and AYK to the Minister until each attains 18 years of age. 4. Pursuant to section 91 of the Care Act, the parents have commenced appeals in this Court from the decisions made by the Children's Court on 12 July 2021 and 26 May 2023. 5. The substantive hearing of the parents' appeals commenced on 4 March 2024. 6. On 14 March 2024, after several days of oral evidence, the parents applied to adjourn the proceeding to allow them time to obtain further evidence – namely, an assessment of the father's capacity to care solely for the children, i.e., to the exclusion of the mother. I refused the application: R.C. and P.K. v The Secretary, Department of Communities and Justice [2024] NSWDC 85. 7. The documentary evidence was contained in thirteen folders. The Court Book ('CB') which became exhibit A and the Supplementary Court Book ('SCB') which became exhibit B. 8. The complete list of exhibits is extracted below. 1. 1. EXHIBIT NO APPELLANT'S EXHIBITS 1 Affidavit of the father filed 14 February 2024 2 Short Minutes of Care Orders proposed 3 Affidavit of the mother sworn 12 February 2024 4 8 pages of colour photographs of the children 5 Email from the mother to instructing solicitor dated 11 March 2024 DEFENDANT'S EXHIBITS A Department of Communities and Justice Tender Bundle (2021/235620) [5 volumes] B Department of Communities and Justice Supplementary Tender Bundle (2023/198916) [8 volumes] C Affidavit of Rebecca MILBURN sworn 13 February 2024 D Bundle of Notes of Michelle CARRERA E Transcript of Parramatta District Court Criminal Trial of 6 October 2016 F Transcript of Parramatta District Court Criminal Trial of 19 October 2016 PROCEDURAL BACKGROUND 1. On 24 April 2020, the Secretary filed an initiating application in the Children's Court seeking care orders with respect to the child ALK. 2. On 13 November 2020, following interviews with the parents, the forensic psychologist Katie Martens ('Ms Martens'), retained by the parties as a joint expert, authored her first report, in which she recommended against the restoration of ALK to the care of her parents. 3. On 12 July 2021, the Children's Court made final orders allocating parental responsibility for ALK to the Minister until she attains 18 years of age. 4. On 13 August 2021, the parents filed a Summons in the District Court of New South Wales ('the District Court') commencing an appeal from the decision made by the Children's Court on 12 July 2021. 5. On 4 April 2022, the hearing of the appeal initiated by the parents on 13 August 2021 commenced; however, the matter was adjourned part-heard on 5 April 2022, to allow time for the Children's Court proceeding concerning JK to conclude and to allow time for a further assessment to be undertaken and report obtained from Ms Martens. 6. On 2 June 2022, the Secretary filed an initiating application in the Children's Court seeking care orders with respect to the child AYK. 7. On 17 September 2022, following further interviews with the parents and observations of the children with their parents, Ms Martens authored her second report. 8. On 20 October 2022, the Court vacated dates in November 2022 that had been set aside for the resumption of the parents' appeal initiated on 13 August 2021. 9. On 26 May 2023, the Children's Court made final orders allocating parental responsibility for JK and AYK to the Minister until each attains 18 years of age. 10. On 21 June 2023, the parents filed a Summons in the District Court commencing an appeal from the decision made by the Children's Court on 26 May 2023. 11. In summary, when the first appeal came before me, it related solely to orders with regard to ALK. The proceedings were adjourned on a number of occasions due to the birth of JK and AYK, who were taken into care very shortly after their respective births. The adjournments were to allow the appeals in relation to all three children to be consolidated. 12. The substantive hearing of the parents' appeals commenced on 4 March 2024. 13. On 14 March 2024, the last day of the hearing, the father sought an adjournment so that he could make an application for the restoration of the children to his care solely. I gave judgment on 22 March 2024 refusing the application under section 94 of the Care Act. FACTUAL BACKGROUND 1. P.K. was born in 1982 and R.C. was born in 1982. 2. As well as the children subject of this application, the mother has nine other children. I do not propose to identify them except for their initials and age to protect their identities. They are as follows: * BB, male aged 22 years; * NH, male aged 20 years; * LS, female aged 18 years; * SB, female aged 17 years; * IB, male aged 15 years; * OD, male aged 14 years; * CC, male ages 12 years; * IC, male aged 11 years; and * AC, male aged 9 years. 1. The following details about the family are contained in the affidavit of Angeline Tompsett ('Ms Tompsett') filed 1 July 2021 which is contained in the SCB. Ms Tompsett also gave evidence before me. She was a most impressive witness and I have no doubt whatsoever in accepting her as a witness of truth, and accept her considered opinions. As the relevant caseworker for the children, her insights and opinions were critical. She gave her evidence in a very forthright manner, and I am grateful for the assistance she has provided to the Court. 2. The family first came to the attention of the Department of Community and Justice (as it is now known) ('DCJ') in June when BB was a few weeks old and the DCJ received the first Risk of Serious Harm ('ROSH'), which raised concerns into the mother's capacity to parent. 3. Between this first report in June 2001 and 16 April 2011 when BB, NH, LS and IB were assumed into care, a further 37 ROSH reports were received raising numerous concerns, including the mother's capacity to care for the children and meet their needs, as well as allegations of physical and emotional abuse, exposure to family violence, lack of supervision and neglect. 4. On 16 April 2011, BB, NH, LS and IB were assumed into care after the mother informed DCJ that she was no longer able to care for her children, and that she would harm them if they were not removed. Case workers also observed bruising on SB, which the mother admitted to having caused. 5. The first report of allegations of sexual abuse by the mother in relation to BB, NH and IB to the DCJ was on 15 August 2011, following disclosures made by IB. 6. On 7 March 2021, CC was assumed into care at 4 days old. 7. On 30 March 2012, Final Orders were made in relation to BB, NH, LS, SB, IB and OD. Parental Responsibility for each of them was allocated to the Minister until they attain 18 years of age. 8. On 20 August 2012, the mother assaulted a DCJ caseworker during an Establishment hearing for CC. The mother was arrested and charged in relation to the incident. 9. On 26 February 2013, Final Orders were made in relation to CC, and the Minister was allocated parental responsibility for him until he attains the age of 18 years. 10. On or around 21 March 2013, DCJ made a decision to assume IC into care. The mother absconded from the hospital with IC, who was seven weeks premature. Police attended an address known to the mother, and IC was removed from her care. Final Orders were ultimately made on 28 August 2013, allocating parental responsibility for IC to the Minister until he attains the age of 18 years. 11. During 2014, a number of ROSH reports were made, after BB, NH and LS each made allegations of sexual abuse in the mother's home. Each of those children were interviewed by the Joint Child Protection Response Team ('JCPR'), known at the time as Joint Investigation Response Team ('JIRT'). 12. On 16 July 2014, JCPR completed an assessment of the allegations of sexual abuse in relation to NH and substantiated the allegations. As a consequence, the mother was recorded as a person causing harm. 13. On 6 November 2014, three-week-old AC was removed from the mother's care in Victoria. 14. On 3 December 2014, the mother was arrested and charged with 17 offences, the majority of which were sexual in nature, in relation to BB, NH and LS. 15. On 4 November 2016, following a 19-day jury trial in the District Court, the mother was found not guilty on all counts in the indictment. 16. There have been numerus other proceedings in relation to the children over the years as the mother unsuccessfully litigated for their restoration to her care. This included an application under section 90 of the Care Act filed by the mother on 9 June 2015 for the restoration of NH, LS, IB and OD, at a time when the criminal proceedings were still on foot. 17. On 12 September 2017, an order was made pursuant to section 90A of the Care Act in the Children's Court at Parramatta, prohibiting the mother from having any contact with BB, NH, SB, IB, OD, CC and IC until each attains the age of 18 years. 18. On 21 April 2020, ALK was assumed into care following her birth. 19. On 8 June 2021, JK was assumed into care following her birth. 20. On 12 July 2021, Final Orders were made in relation to ALK in the Children's Court at Parramatta following a contested hearing. Pursuant to those orders, parental responsibility for ALK was allocated to the Minister until she attains the age of 18 years. 21. On 13 August 2021, the parents filed a Summons in the District Court in relation to ALK, seeking to appeal the orders made in the Children's Court. 22. On 30 May 2022, AYK was assumed into care following her birth. 23. On 26 May 2023, Final Orders were made in the Children's Court in Parramatta in relation to JK and AYK following a contested hearing. Pursuant to those orders, parental responsibility for AYK and JK was allocated to the Minister until each attain the age of 18 years. 24. On 21 June 2023, a Summons was filed in the District Court in relation to JK and AYK. RELEVANT LEGAL PRINCIPLES 1. The Court must have regard to the Objects set out in section 8 of the Care Act when making any decision under the Care Act in relation to children and young people. 2. Section 9(1) of the Care Act provides that 'in any action or decision concerning a particular child or young person, the safety, welfare and wellbeing of the child or young person are paramount'. This principle mandates that the best interests of children are to be preferred, even if an action or decision is contrary to the rights, interests or entitlements of parents or other people under the Care Act. 3. Section 79(1) of the Care Act provides for the Children's Court to make an order allocating some or all aspects of parental responsibility for a child or young person in need of care and protection for a period specified in the order to one or more persons, including a parent or the Minister. Pursuant to section 79(1)(f) of the Care Act, parental responsibility may also be allocated by the Court 'to a suitable person or persons jointly'. 4. Section 79(3) of the Care Act provides that, '[t]he Children's 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 or young person.' 5. Section 10A of the Care Act sets out the permanent placement principles to which the Court must have regard. 6. Section 83 of the Care Act relevantly provides that: '(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. (2) If the Secretary assesses that there is a realistic possibility of restoration within a reasonable period, the Secretary is to prepare a permanency plan involving restoration and submit it to the Children's Court for its consideration. (3) If the Secretary assesses that there is not a realistic possibility within a reasonable period, the Secretary is to prepare a permanency plan for another suitable long-term placement for the child or young person and submit it to the Children's Court for its consideration.' 1. A 'reasonable period' for the purpose of section 83 of the Care Act is a period which must not exceed 24 months (save for exceptional circumstances not relevant to this matter): section 83(8A). 2. In determining whether there is a realistic possibility of restoration of a child to the care of a parent, I accept that it is well established that the Court must also have regard to whether there is an unacceptable risk to the child: M v M [1988] HCA 68 at [25] ('M v M'); NU v NSW Secretary of Family and Community Services [2017] NSWCA 221 at [45]. Establishment 1. The orders sought by the Secretary are 'care orders' as defined in section 60 of the Care Act to mean 'an order under [Chapter 5 of the Care Act] for or with respect to the care and protection of a child or young person…'. In this instance, that the children be placed in the parental responsibility of the Minister until each attains 18 years of age. 2. The Care Act relevantly provides as follows: '71 Grounds for care orders (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— (a) there is no parent available to care for the child or young person as a result of death or incapacity or for any other reason, (b) the parents acknowledge that they have serious difficulties in caring for the child or young person and, as a consequence, the child or young person is in need of care and protection, (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, (f) in the case of a child who is under the age of 14 years, the child has exhibited sexually abusive behaviours and an order of the Children's Court is necessary to ensure his or her access to, or attendance at, an appropriate therapeutic service, (g) the child or young person is subject to a care and protection order of another State or Territory that is not being complied with, (h) section 171(1) applies in respect of the child or young person. (i) (Repealed) (1A) If the Children's Court makes a care order in relation to a reason not listed in subsection (1), the Court may only do so if the Secretary pleads the reason in the care application. (2) The Children's Court cannot conclude that the basic needs of a child or young person are likely not to be met only because of— (a) a parent's or primary care-giver's disability, or (b) poverty. (3) This section does not apply to or in respect of a contact order made under section 86(1A)(b). Note — The Children's Court cannot make a care order in circumstances to which section 75(2) applies. … 72 Determination as to care and protection (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. As section 72 of the Care Act makes clear, a finding that the children are in need of care and protection, or that they were so in need at the time the Secretary intervened in their lives and would still be in need of care and protection but for that intervention, is a pre-requisite to the making of a care order. This finding is often referred to in care proceedings as the 'establishment' finding. 2. The Children's Court made 'establishment' findings: 1. with respect to ALK on 5 June 2020, 2. with respect to JK on 20 August 2021, and 3. with respect to AYK on 27 July 2022. 1. Each of the findings were made with the consent of the parents and on a 'without admissions' basis; however, as the care jurisdiction is not a 'consent jurisdiction', it can be assumed that in making the findings, the Children's Court had regard to the relevant evidence. 2. Section 91(2) of the Care Act provides that an appeal to the District Court from a decision of the Children's Court 'is to be by way of a new hearing', i.e., a de novo appeal. 3. As noted, each of the children relevant to this appeal were assumed into care shortly after they were born pursuant to decisions made by a delegate of the Secretary, against a background that included the prior removal of the mother's other nine children from her care, following the allegations of sexual abuse and other misconduct made against the mother by some of her older children. 4. The Independent Legal Representative for the children ('the ILR') shares the Secretary's views that the Court would be satisfied that ALK, JK and AYK were each children in need of care and protection at the time that they were assumed into care, and would still be in need of care and protection, but for that intervention. 5. The submissions made by Counsel for the parents at first instance indicates that these three children are at a critical moment in their lives, with which I agree, and argues that it is also a watershed moment in the lives of the parents, with which I also agree. He further submits that the Secretary and their funded service provider, here Barnardos, have made it clear that they intend to proceed down the road to adoption and the children are currently placed with the adoption branch of Barnardos. 6. The parents assert that if an adoption order is made by the Supreme Court, all avenues available to the parents to seek the restoration of these children to their care will be closed. Indeed, even if this Court approved a care plan as currently recommended by the Secretary which currently provides for a minimum contact regime of 12 times per year for the children to see their parents, there is no guarantee that such a recommendation will be carried forward by Barnardos in the Supreme Court and the contact with their birth parents, may be substantially reduced. The allegations against the mother 1. I accept that evidence with regard to the removal of the mother's other children is crucial in understanding the context in which ALK, JK and AYK were removed from their parents' care. 2. The written submissions on behalf of the parents states at [6]: 'The sexual abuse allegations against the mother loom large in these proceedings. They are the 'elephant in the room' when it comes to assessing risk that the mother poses to the children.' 1. Shortly after their removal from their mother's care, the Secretary became concerned that the six older children had been exposed to sexual and physical harms whilst in their mother's care after various observations and disclosures were apparently made. These are referred to in CB, at pages 3429-3441, and include: 1. on 20 April 2011, LS and SB were observed to have bruises and finger marks on their bodies, and LS stated: 'Mummy belted me and then kicked me and hurt me'. 2. on 2 May 2011, IB apparently disclosed that his mother would bite him and SB, and that the mother would pull IB's hair out. 3. in May 2011, NH disclosed that the mother would belt him and his siblings on their bodies and that the mother had kicked and bitten SB. 4. in June and July 2011, IB apparently disclosed that the mother bit and licked him on 'his wee', that a doctor laid him on his stomach and hurt his bottom, and that the mother had hit him with a vacuum on the chest and back. 1. After a passage of some time, further disclosures were then made by BB and NH concerning sexual and physical harms said to have been perpetrated or orchestrated by the mother against at least some of the six older children. In addition, some of the children were said to have demonstrated inappropriate sexualised behaviours. For example: 1. on 24 January 2014, a report was made that LS, then aged 8 years, picked up a dead turtle and said to her brother: 'The turtle's head looks like a dick'. 2. in March 2014, SB is reported to have said to his carer, when she noticed him tensing up whilst assisting with toileting him: 'Because you are going to stick your fingers in my bottom and it will hurt' (CB 3462). 3. in April 2014, NH claimed to his carer that his mother would allow men to touch him on his bottom in exchange for money. NH repeated his claims during an interview with a police officer and child protection caseworker later that month (CB 3463). 4. on 1 May 2014, DCJ received a report that LS was observed masturbating and engaged dolls in sexualised play and stated, 'Now they are married the female doll can lick and suck the male doll's dick' and 'My brother has done that to me and I have done that to my brother'. It was further reported LS had disclosed watching her mother have sex with different men and watching pornography with her mother. 5. on 11 June 2014 and 12 August 2014, in interviews with a police officer, BB claimed (among other things) that, in exchange for money, the mother would allow men to come to their home and interfere sexually with LS. BB further claimed the mother had grabbed his head and smashed it against the bathroom wall, and then told BB to lie to ambulance officers about what had happened (CB 3465). 6. on 21 June 2014, DCJ received a report concerning a series of detailed disclosures said to have been made by LS, which were suggestive of her having been exposed to sexual harm by adult males with the involvement of her mother. 7. on 14 July 2014, DCJ received a report that NH had disclosed that the mother would allow men to come to their home and interfere sexually with LS. 1. The mother was arrested on 3 December 2014 and criminally charged with assault occasioning actual harm, and multiple counts of child sexual assault and child prostitution. There followed a criminal trial in which the mother entered a plea of not guilty. After several days of evidence, on 4 November 2016 a jury returned verdicts of not guilty to each of the charges. 2. At the suggestion of all the parties, I have read the entirety of the transcript of the criminal trial. 3. Apart from the incident that gave rise to the bruises observed on SB's back on 16 April 2011, the mother has consistently denied the allegations made against her. The mother was cross-examined extensively about the allegations in these appeals. Her position, which she repeated in the witness box before me, is that BB and NH have lied about her having exposed them and their siblings to sexual and physical harm. 4. The Secretary submits that the mother's denials should not be wholly accepted by the Court. 5. The Secretary accepts that, on the basis of the available evidence, it may not be open to the Court to make positive findings that, according to the standard established in Briginshaw v Briginshaw (1938) 60 CLR 336 ('the Briginshaw standard'), the mother has engaged in the sexual and physical harms that are alleged against her. However, the Secretary nevertheless submits the allegations are sufficiently cogent as to warrant a high degree of caution with respect to the mother and her capacity to care safely for her children. 6. The Secretary submits that the allegations of sexual harm that are made against the mother by BB and NH are disturbing and vivid and find at least some support in the sexualised remarks and behaviours said to have been made and demonstrated by LS and SB. In my view, the evidence strongly suggests the children have been exposed to inappropriate sexual conduct by adults, and that the mother was a participant in some way in that exposure. 7. The Secretary accepts there are inconsistencies in the claims that are made against the mother by BB and NH – however, those inconsistencies were explored in detail with BB and NH when they attended for cross-examination in the mother's criminal trial, and, despite the rigorous challenge to their evidence, both of them maintained throughout the cross-examination the allegations of misconduct made against their mother. 8. Moreover, at no time since the children made the allegations, has any one of them come forward to retract their allegation or admit to having lied about what happened. 9. Further, the mother has offered no satisfactory explanation as to why her children would be motivated to lie about her having engaged in such heinous conduct, and she has offered no satisfactory explanation for why some of the children have made and exhibited sexualised remarks and behaviours if it is truly the case that she did not engage in the alleged conduct. 10. The Secretary submits that these are significant factors that ought to weigh in favour of a finding that the allegations made against the mother are, for the most part, credible. The most plausible explanation for the children having made these claims is that they are true. 11. The parents submit that the sexual abuse allegations are astonishing and bizarre in nature. In essence, it is alleged that the mother prostituted her own children and enabled men, in particular LM and ZB to come into the home and sexually abuse her children for money. Whilst the timing of the alleged events occurred whilst the six older children were in the care of the mother, who was single and living with six of her children in an apartment, the allegations did not come to light until sometime after the six older children had been removed. 12. It is not contentious that the mother had been a victim of domestic violence, and that the mother and children were threatened with homelessness. 13. I note that there was evidence given in the trial by persons identified as male abusers who deposed to not being in the home and not having abused the children. The mother also gave evidence in the trial, and I have had close regard to her evidence. 14. The mother gave evidence before me, and none of the cross-examination in the criminal trial was put to the mother whilst giving evidence before me. In fact, in these proceedings, the mother describes the allegations that she sexually abused her children or allowed others to do so as having 'destroyed my life' [T349.20]. 15. The allegations that the mother has inflicted physical harm against the children find at least some support in the available evidence, which persuasively indicates that the mother is a person with a violent history and a propensity to lash out violently from time to time. For example: 1. the records held by DCJ suggest that the mother first became known to DCJ in June 1997, when her own mother (the children's maternal grandmother) indicated that she had difficulties managing the mother's violent behaviour – which the mother denies. 2. in January 2007, the mother was charged and convicted for her role in a violent altercation with a friend. The mother was heavily pregnant at the time. 3. In April 2009, the mother was arrested and charged in relation to an incident involving Mr S. The mother was issued with an Apprehended Domestic Violence Order and sentenced to a good behaviour bond for her role in the incident. 4. In August 2012, the mother assaulted a caseworker, whilst she was giving evidence against the mother in a Children's Court proceeding concerning the child CC. The mother was charged and convicted for assault occasioning actual bodily harm. The mother was sentenced to a further good behaviour bond. 1. The Secretary submits that these events, along with the mother having caused bruising to SB in April 2011, add weight to the proposition that she has, contrary to her denials, more likely than not inflicted physical harm against her children in the manner that they have alleged. If it is accepted that it is more likely than not that the mother inflicted on the children the physical harms that she is alleged to have inflicted, then it must follow that she has been dishonest in denying the allegations. Further, if that is the case, then her denials regarding the allegations that she exposed her children to sexual harm must also be approached with caution. 2. The Secretary submits that the possibility that the mother has engaged in the alleged harms – the 'lingering doubts' that must exist, notwithstanding her denials – and the fact that the mother refuses to accept her role in the perpetration of those harms – are sufficient to support a finding that the children were in need of care and protection at the time the Secretary removed them from their parents' care and that the children would still be in need of care and protection from their mother but for the Secretary's intervention in their lives. Other child protection concerns 1. When each of ALK, JK and AYK were removed from their parents' care, there were concerns that: 1. the mother was a flight risk, given the prior experience with CC and IC; 2. that the parents may not be honest or transparent with officers of DCJ regarding the children's welfare; and 3. that the mother may not engage in supports and pre-natal care recommended by DCJ. 1. On 6 September 2011, a Children's Court Clinic Assessment Report was prepared by Clinical Psychologist Aneeta Kogekar ('Ms Kogekar'), as part of the Children's Court proceedings for BB, NH, LS, SB, IB and OD. That assessment included an interview with the mother, interviews with LS, BB and NH, and also an observation of the mother with the children. Each of the three children disclosed that the mother would get angry and shout, and also disclosed either being hit themselves, or observing siblings being hit. 2. I accept that for these reasons, it was necessary and appropriate for the Secretary to take action to intervene in order to ensure the safety, welfare and wellbeing of each of the children. 3. The ILR submits that although the allegations of sexual harm are extremely concerning, disclosures by four of the children in relation to sexual harm were not made until after the oldest children had been removed from the mother's care. I accept that this is an important consideration that those children were not removed as a result of sexual harm, but because of other child protection concerns, including physical abuse, exposure to domestic violence, neglect and an overall concern about the mother's capacity to parent the children. 4. The parents submit that even though the mother was found not guilty in 2016, the Secretary has purportedly substantiated the mother as a person who has caused harm to her older children prior to 16 April 2011. 5. ALK was assumed into care when she was born and on 21 May 2021 the Children's Court was not satisfied at the time that the mother had 'demonstrated more meaningful insight into the significant impact of her past abusive parenting, the experience of her children and acceptance of the harm that she has caused'. (Martens report 13.11.2020 at [129]) 6. Ms Martens provided in her two reports commentary with regard to the risk of further sexual abuse by women based on risks assessments on women have previously sexually offended. Ms Martens, at [77] of her report of 17 September 2022, stated as follows: 'I choose to instead, consider (the mother's) risk of sexual harm to children in my broader assessment of parenting in which sexual harm was one form of abusive parenting.' 1. A Summary of Proposed Plan ('SOPP') indicates that for the mother to have ALK and JK restored to the parents' care, she must, as provided at [4]: '[The mother] is to demonstrate appropriate insight and reflection into her past child abusive parenting practices, including but not limited to physical abuse sexual abuse and psychological abuse…' 1. The parents submit that the words 'sexual offending' and 'sexual abuse' should be excluded from the SOPP task description as their inclusion implies that in addition to addressing past abusive parenting practices, the mother is also required to confess to sexual offending, which they submit she has not committed, in order to demonstrate insight. 2. This is, to my mind, a significant conundrum. In order to satisfy the case workers, psychologists, and ultimately me that the mother is not a danger to her children, she has to demonstrate insight with regard to the alleged offences and that they were evil and would have had an enormous, ongoing and severe effect on her older children. Demonstrating this insight, and further yet, remorse, is impossible whilst the mother maintains, in accordance with the jury's verdict, that she is not guilty of the offences of which she was charged. 3. In her affidavit affirmed 13 July 2022 at [27], the mother deposes as follows: 'I was told by the DCJ caseworker when [ALK] was assumed into care that it is the lack of insight by me for not agreeing to my alleged criminality which was the sole reason why DCJ assumed care."… [29] The risk that I represent is described as not having any insight about me past behaviours and need to develop insight accept responsibility into my past aggressive and harmful behaviours and parenting practices. In the DCJ application it is stated that [the mother] stated that the physical abuse happened but the sexual abuse did not. I cannot admit that didn't happen although I have accepted the physical abuse and neglect allegations.' 1. The mother gave evidence before me, and presented in a relatively calm fashion, but devoid of any emotion. It is hard to accept all of her evidence in the face of so much other evidence that contradicts much of what she says. I was somewhat amazed that throughout her evidence before me, she did not shed a tear, nor seem to be even slightly perturbed at the questions she was asked, particularly in cross-examination. 2. One matter that was put to the mother was the decision of the parents to delay an upcoming contact visit with the children in question, as one child was sick. When asked why the visit did not go ahead with the other two children who were well, suggesting that the children might be disappointed for a planned visit to be cancelled, the mother stated that the decision was made as she and the father like to keep the family together [T315.25]. 3. The relationship of the children with their current carers was also a matter that the mother was questioned about. She asserted that the children in question have developed a strong attachment through visitations, and vice versa [T358.10]. She stated that she does not believe the children necessarily have strong attachments to their current carers and that a gradual transition to her and the father's care would lead to minimal psychological harm [T358.10], and that she does not believe these children to be happy in their current placements [T359.10]. 4. The mother's history with DCJ was also examined, and it was put to her that she has withheld information from them in the past [T360.45]. The mother denies these allegations. It was also suggested to her that there was some tension between her and the children's carers in relation to who assisted the children during contact visits [T361.45], and that the tense dealings with Barnardos do not bode well for future productive interactions with Barnardos [T362.45]. 5. In her evidence before me, the mother acknowledged that a transition period between the children living with their current carers to living under the parents' care would be required [T390.45], and she acknowledged that the children in question currently spend time with their older half siblings, her elder children, with whom she has no contact. However, upon questioning, she suggested that the father would facilitate further ongoing contact between her children [T392.20]. 6. The mother accepted that the children in question have never been to the home that the parents share [T397.50], and that at best on two occasions one of the children stated that they wanted to live at home with the parents [T398.30]. I have difficulty in accepting this evidence as the children have never been to the parents' home, and I think it is unlikely that any one of the children would make that statement, particularly JK and AYK, given their tender ages. 7. The mother was also questioned about the way in which the situation would work if both parents were working, and the children were returned to their care. The mother expressed her support for the use of childcare [T400.25]. I note that childcare has been suggested by the Secretary as it would provide some sort of additional observation of the children, presumably to detect if they were being cared for appropriately. Her completion of a number of parenting courses, as well as anger management and domestic violence courses online, was also addressed [T400.35]. 8. I have some reservations in accepting the mother as a witness of truth. The role of the father 1. The father gave evidence before me. It was heartbreaking, and the father sobbed on many occasions whilst in the witness box. There is no doubt in my mind that he loves his children, and he has never had them in his care, which he understandably finds incredibly distressing. 2. The father confirmed that his primary position was that the children be returned to the joint care of the mother and himself. He also confirmed that if the Court was not satisfied that joint care of the children by R.C. and P.K. was a safe arrangement, P.K.'s alternative position was that he sought to assume sole parental responsibility of the children. 3. His evidence was that in the event that he was to be awarded sole parental responsibility of the children, he would give an undertaking to only permit contact between the children and the mother under supervision by DCJ for the period of the undertaking [T219 [4]-[10]]. 4. The father confirmed that he was aware that the mother had been released from a correctional facility shortly before he met her, and that he was also aware of the criminal trial held in 2016 in which the mother faced charges of sexual harm and other harm against her older children. His evidence was that he did not attend court for R.C.'s criminal trial based on legal advice [T229.15]. 5. The father deposed that he and the mother had purchased a western Sydney home together in January 2019, and gave some mixed evidence as to whether the house is solely under his name, or whether it is jointly owned by the parents [T229.30]. 6. Whilst giving evidence before me, the father expressed shock at the removal of his first child, ALK, from the parents' care at the hospital after her birth, and her subsequent placement into foster care. He told the Court that he was not told that ALK would be removed from the joint care of the parents prior to going to the hospital for the mother to give birth [T232.10]. He did, however, express that he understood that the reason for ALK's removal was the allegations of harm allegedly inflicted by the mother on her older children. I note that he believes the mother's denials of those allegations [T232.40]. 7. The father was asked about evidence given by Ms Thomsett regarding previous considerations of the possibility that ALK could be restored to his sole care. It was put to him that he had previously expressed his unwillingness to separate from the mother to be appointed as sole carer for ALK. The father did not reject this suggestion and testified that he considered family togetherness to be of paramount importance [T233.35]. 8. He confirmed that he could recall a meeting with Ms Thomsett on 3 June 2021 in which he expressed his awareness of the different nature of interactions he would be likely to have with DCJ if he had a partner who was not the mother [T234.5]. He stated that Ms Thomsett advised him of the high likelihood that DCJ would not be involved in his life if he was with another partner who did not have a child protection history similar to that of the mother [T234.25]. 9. The father's evidence was that his understanding of being child-focused constituted keeping children safe and engaging with them. He admitted that he was aware at the time of JK's birth that he had a choice between keeping his children in his care and continuing his relationship with the mother [T235.25]. He admits his choice to stay in the relationship was not child focused [T236.5] and told the court he found it difficult to express his emotions and wanted his children returned, but admitted his choice to remain with the mother made this difficult for DCJ [T237.50]. 10. The father was questioned on some of the allegations made against the mother, including her smacking one of her elder children [T238.25]. He stated this allegation concerned him and that it was a concern that she could do the same to their children [T239.25]. However, he said in the time they had been together he had not seen her do anything similar [T239.35]. However, he acknowledged that she had not had children to care for in that time [T239.40]. I note that the mother has not had children in her care for the last 13 years. 11. The father had heard and discussed with the mother on many instances the alleged violent and sexual harms that she was accused of visiting upon some of her children [T241.40]. He maintained that he was not able to comment on these allegations as he was not present at the time [T245.20]. 12. Further in his evidence, the father said that he would reduce his work hours so that the children would not be home alone with ALK, JK and AYK after the suggested restoration period [T246.40]. However, he stated that he could not comment on whether the mother would engage in alleged past violent behaviours again, as things may have changed [T247.30]. He acknowledged that the allegations of sexual harm were serious and concerned him [T249.15], but despite this, he would like to keep his family together [T250.30]. 13. Appropriately, the father was also questioned about his parenting capabilities [T261.50], and why he withheld the name of his second child from DCJ [T263.15]. He could not remember that happening. He also gave evidence that the person he has represented as his sister to the court previously, is not his actual blood relative [T263.40]. He further agreed that transparency with DCJ had been an issue in the past but that he would work closely with DCJ in the future [T264.45]. 14. It was put to the father in cross-examination that the girls are happy and well settled in their current placements [T268.45]. His response was that ALK seemed sad and expressed her desire to go home, despite such comments not appearing in the records of the supervisors of the contact visits [T269.30]. He also agreed that after hearing the evidence in court, there was no issue with G's health. He eventually agreed that with the cultural plans in place the children's cultural needs will be satisfactorily met [T272.15]. 15. With regard to the proposition that he become the sole carer of his children, he agreed that he has never been the carer of a child before [T273.45], and stated that the idea that he raise the children on his own had just 'come up' with his lawyers, however he was unable to provide the date of this [T274.20]. This care plan was first presented to the court in his affidavit in February 2024. The father agreed that he has not provided any detail as to the logistics of how he plans to care for the children on a day-to-day basis [T274.35]. He also acknowledged that he had raised this proposal particularly late in the proceedings [T276.30]. 16. During his evidence, the father suggested that he could rely on friends to assist when needed with the logistics of daily parenting [T279.20]. He indicated that these people are his neighbours [T279.35]. However, he also accepted that he has not provided any evidence to the demonstrate that these people will assist him in parenting [T280.5]. He also suggested that the children would only have supervised monthly contact with their mother [T281.25], and that would be the pattern of contact with the children's mother even after the initial three-year supervised period [T282.10]. 17. The father gave evidence that that weekly or monthly contact with the children's carers would, in his view, be beneficial to the children [T282.25]. He further suggested that he would work reduced hours if his children were restored to his care [T284.10], and that he had made inquiries into childcare services in the area [T285.10]. He accepted that he would be responsible for the children's medical needs and would take them on a holiday to India, only once things had settled down [T286.5], as he accepted it would be unsettling for them to travel in the near future [T286.25]. 18. Under cross-examination by the ILR, the father stated that ALK had told him she wanted to go home with him in July 2023. His evidence was that he believed ALK to be having issues with her carer. However, it seems that ALK did not say this, and the father accepted that he had interpreted this from her crying [T288.20]. He further stated that he had only ever been half an hour late to contact visits [T289.40], but his attention was directed to seven instances recorded by Barnardos Case Manager Angelique Saleeb where the father was only able to attend contact visits for the last hour, or was very late [T290.5]. The father's response was that this was because of traffic and not due to leaving work late, and I accept that evidence. He openly stated, to his credit, that there are some aspects of parenting that he may find challenging, including managing daily and bedtime routines [T293.10], but also confirmed that he would not ask R.C. for support with these aspects if he found them stressful [T293.40]. 19. To the extent that it is suggested that the children were not in need of care and protection because of the presence of their father, the Secretary submits that, although the father may be said to be something of a protective ally to the children, he has also shown himself to be devoted to the mother and largely sceptical of the allegations made against her. 20. Further, the evidence indicates that, in the event that there is a restoration, both parents will remain in full-time work and share the day-to-day responsibilities of raising the children. That is to say, the mother will likely spend significant time with the children without the father present. 21. The submissions on behalf of the parents raise the possibility of the father alone being a viable option for the Court's consideration, notwithstanding that Ms Martens has not undertaken an updated assessment. This is referred to in my earlier judgment for an adjournment sought by the parents: R.C. and P.K. v The Secretary, Department of Communities and Justice [2024] NSWDC 85. 22. The father gave evidence before me and I accept him as a witness of truth. He is clearly devastated to find himself kept away from parenting his daughters in a meaningful fashion, and consistent with his culture. He was tearful, understandably, throughout most of his evidence, and I am in no doubt that he dearly wishes that his children are returned to their parents. The process of giving evidence was a very difficult one for the father, and I accept that he would put his children first. 23. However, there was no actual plan in place as to where he might live with the children, how they would be cared for a day-to-day basis, and unfortunately the father does not have a large contingent of supporters in Australia who could assist him with the very onerous task of parenting three young children on his own, whilst holding down employment. There is no suggestion that the father has a history of illicit drug use, nor domestic violence. I have no doubt that the father would be a protective ally to his children, but I wonder if that is enough? I note that this issue was also addressed by Ms Martens in her second report. There has not been sufficient examination of any plan for me to evaluate that it is a viable option. 24. Nonetheless, the father has never spent any time with the children unsupervised and has not spent time with them in the absence of the mother. He also has no prior parenting experience, which necessarily raises at least some doubts that, despite his best efforts, the father has the capacity to safely parent three young children. 25. Given the circumstances, I cannot find that the father has or would have wholly mitigated the significant risks likely to have been posed by the mother to the children, such that the degree of risk that she posed to the children would reduce to an acceptable level. Realistic prospects of restoration 1. Section 83(1) of the Care Act relevantly provides as follows: '(1) If the Secretary applies to the Children's Court for a care order … for the removal of a child or young person, the Secretary must assess whether there is a realistic possibility of the child or young person being restored to his or her parents within a reasonable period, having regard to – (a) the circumstances of the child or young person, and (b) the evidence, if any, that the child or young person's parents are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care.' 1. After the Secretary has undertaken the assessment, it is then incumbent upon the Court to decide whether to accept that assessment: see section 83(5) and (5A) of the Care Act. 2. The phrase 'realistic possibility of restoration' is not defined in the Care Act; however, it was said by the then-President of the Children's Court in Secretary, Department of Communities and Justice and Farmer [2019] NSWChC 5 (at [108]) that: 'The principles relating to the phrase 'a realistic possibility of restoration' may now be summarised … as follows: A possibility is something less than a probability; that is, something that is likely to happen. A possibility is something that may or may not happen. That said, it must be something that is not impossible. The concept of realistic possibility of restoration is not to be confused with the mere hope that a parent's situation may improve. The possibility must be 'realistic', that is, it must be real or practical. The possibility must not be fanciful, sentimental or idealistic, or based upon 'unlikely hopes for the future'. It needs to be 'sensible' and 'commonsensical'. A realistic possibility may be evidenced at the time of hearing by a coherent program already commenced and with some significant 'runs on the board'. 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. There are two limbs to the requirements for assessing whether there is a realistic possibility of restoration. The first requires a consideration of the circumstances of the child or young person. The second requires a consideration of the evidence, if any, that the parent(s) 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. The determination must be undertaken in the context of the totality of the Care Act, in particular the objects set out in s 8 and other principles to be applied in its administration, including the notion of unacceptable risk of harm.' 1. In the present case, the Secretary has assessed that there is not a realistic possibility of the restoration of the children to the care of their parents within a reasonable period. The Secretary's assessment has been made at least partly on the basis of historical record and on the basis of the opinion expressed by forensic psychologist Ms Martens. The Secretary submits that, for the reasons that follow, the Court can accept the assessment. 2. Ms Martens has assessed the parents on two occasions and prepared two reports. The first report is dated 13 November 2020. The second dated 17 September 2022. I note Ms Martens has never met or observed the children. 3. In her first report, Ms Martens stated that 'female sexual offending is a considerably rare behaviour' and '[t]here is limited research on the recidivism rates of female sexual offending due to the low frequency of this occurring'; however, research suggests that the base rate for recidivism is as low as 1%, except in relation to the facilitation of child prostitution, in relation to which the base rate for recidivism is around 12%. That is to say, the risk that a woman who as engaged in sexual offences in the past may reoffend cannot be entirely excluded. 4. In any case, Ms Martens went on in her first report to state: 'As the alleged sexual harm and child prostitution occurred in the context of child maltreatment, it is best understood as a form of child abuse and risk assessed as child protection risk. To that regard, I have assessed the family to be of high risk of physical / sexual abuse and moderate risk for emotional abuse/neglect. The risk factors primarily relate to [the mother]. I note that many of the risk factors that were apparent when [the mother] cared for her six older children do not appear to be currently evidence. The primary issues remain [the mother's] past parenting deficits, lack of empathic responding to her children, and history of interpersonal lability and aggression' (report dated 13.11.2020 at [126]). 1. When asked to comment on whether there is a realistic possibility of the restoration of the children to the care of either parent, Ms Martens acknowledged the absence of '[m]any of the risk factors that were evident in 2011', but said she was 'hesitant … to conclude that restoration is feasible, considering the disclosures of her children with regard to chronic physical and sexual abuse… and [the mother's] difficulty demonstrating insight into her abusive parenting and the long-term impact of this.' Ms Martens observed '[the father] does not appear to grasp the significance of [the mother's] past parenting difficulties' and remarked that 'this could impact upon his capacity to act as a protective factor'. Ms Martens stated, 'restoration should only proceed if [the mother] is able to demonstrate more meaningful insight into the significant impact of her past abusive parenting, the experience of her children and acceptance of the harm she has caused' (report dated 13.11.2020 [128]-[129]). 2. As at the date of Ms Martens' first report, the mother had given birth to ALK and she had been removed from her parents' care. By the time of the second report, the mother had given birth to JK and AYK, and they had also been removed from the parents' care. 3. In her second report, Ms Martens confirmed that her 'overall determination of risk rating remains as it was in [her first] report, with … the child protection risk relating to physical/sexual abuse as High, and the risk relating to psychological abuse as Moderate.' However, Ms Martens acknowledged that, '[i]n this case, risk assessment is extremely difficult as the issues are solely in the past, and … there is much uncertainty about how applicable these issues are for [the mother's] current situation. Based on the information provided, it is reasonable to conclude that [the mother's] life is quite different to the life she lived in 2011, and she is now well supported, with no recent criminality or known substance abuse. She appears to also have made gains with respect to her management of emotions' (report dated 27.09.2022 at [87]). 4. However, Ms Martens went on in her second report to state that, '[w]hat remains unknown is whether [the mother's] parenting practices have truly changed', and that 'it is very unlikely that [the mother] will be ever in a position to provide greater insight and reflection into the allegations of sexual harm. … She has made some gains in reflecting on her children's experiences, and on her past behaviour, but continues to deny some of their disclosures' (report dated 27.09.2020 at [87]-[88]). 5. In addition, Ms Martens expressed concern that '[the mother] has not engaged in any meaningful intervention to support her to reflect openly, and to challenge herself to discuss her cognitions, and parenting beliefs that resulted in abusive parenting' (report 27.09.2022 at [89]). 6. Ms Martens concluded her second report as follows: 'In summary, considering the above information, it is clear that risk does remain for the children, should they be restored to the parents. In order for services to feel more confident about the safety of the children, it will remain important for the parents … to engage in intensive intervention, to examine her parenting choices in the past, and to challenge herself to consider those internal factors associated with her past parenting choices, how her own though processes, personality, beliefs, and models of parenting contributed to her choices, how this proceeded over time and what she could have done differently at each point. Further accepting the significant impact this has had on her children, and recognising then why [DCJ] hold enduring concerns. It remains important for [the mother] to demonstrate how she has changed, how she will navigate things differently in the future and participate in meaningful safety planning alongside [the father]. The concerns relating to sexual risk may never be truly ameliorated, as [the mother] is unlikely to ever be in a position where she can acknowledge guilt … Truly, this is a case where there may always be a level of uncertainty' (report 27.09.2022 at [91]). 1. Ms Martens attended to give oral evidence in the present appeals. Her oral evidence regarding the risks posed by the parents to the children did not differ markedly from the views she had earlier expressed in writing in her reports. 2. Ms Martens gave evidence before me, over 2 days, via AVL which was not ideal. Her evidence was at times drawn out and rambling. Nonetheless I accept her opinions as she is the joint expert, she has interviewed the parents and had regard to much of the relevant documentation in the proceedings. 3. Ms Martens commented on the mother's parenting courses. In her first interview with her, the mother was able to describe some of the elements of her parenting courses and how she might utilise these [T434.40], to some extent demonstrating some reflection on her parenting of her elder children [T435.15]. However, Ms Martens noted that as the mother has not engaged in parenting full-time since her earlier children were removed from her care, , it was difficult to assess any changes [T436.5]. 4. Ms Martens gave evidence that, between the assessment she undertook of the mother in 2020 and 2022, the mother has demonstrated improved openness and willingness to discuss her past harmful parenting behaviours. However, Ms Martens noted that it was difficult to assess to what extent she has reflected on her own choices, rather than external influencing factors [T436.40]. 5. On the proposal for the children in question to be restored to the father's sole care, Ms Martens gave evidence that he would need to practice parenting three children on his own and prepare logistically for how he would do this [T437.35]. She noted the need to consider how he would have contact with the mother and how he would cope being separated from her if the children were restored to him [T437.45]. Her evidence was that it would be beneficial for him to consider childcare assistance options [T438.20], which I accept he has done. In addition, Ms Martens stated that she was uncertain as to whether the father was in a position to provide supervision to the mother engaging with the children [T438.40]. 6. In cross-examination, Ms Martens indicated the importance of openness from the parents with regard to any struggles with parenting, if the children were to be returned to their joint care [T445.50]. She also suggested that a good relationship between the parents, DCJ and Barnardos would be necessary for a successful restoration of the children [T446.10]. She stated that the risk of a failed restoration was significant for the children in question, given their current successful placements, and that this is particularly an issue if children have had multiple previous placements [T446.45]. This is of significant concern to me. It is evident that the children are settled and developing well in the care of G and T, and K and J. To disturb that situation weighs heavily on my mind, particularly so if the variation of the arrangements fails. One can imagine that if that were to occur, the consequences for the children could be devastating. 7. Ms Martens stated that it was not uncommon for children who have been in care to have emotional regulation or behavioural problems, potentially posing an extra challenge to the father if he was to care for the children alone [T447.10], and that she would have concerns about the mother re-entering the children's life after the three-year period, if the children were initially restored to the father's sole care [T447.50]. 8. Ms Martens also was asked to comment on the therapeutic interventions undertaken by the mother – including the mother's recent engagement with her counsellor, Michelle Carrera ('Ms Carrera'). In relation to these matters, Ms Martens stated (among other things): (1) '[F]or [the mother] what I see is the most significant [in] terms of treatment needs is her really reflecting on the allegations of harm to her … older children and developing a lot more insight and reflection into her … choices as a parent and what attributes about her belief systems and personality contributed to her behaviour' [T187]. (2) 'I think it's positive that she's remained with the same counsellor currently. It is concerning in the past she was unable to and I'm not sure if there was a reason or what the reason was … It does suggest that in the past she had a lot of difficulty, but currently, it seems to be working for her in terms of the therapeutic relationship and that is positive' [T188]. 1. Further, Ms Martens accepted that the records of the mother's consultations with her counsellor might assist to come to some conclusion about whether the mother had had a 'meaningful intervention' of the kind to which she had referred in her second report. Ms Martens was then asked to review the records of the mother's consultations with her counsellor, and, having done that, remarked that they did not appear to demonstrate that the mother had engaged in a meaningful intervention of the kind she had referred to in her report [T198-40 and T441-30]. 2. The Secretary submits that significant weight ought to attach to the opinions expressed by Ms Martens. Her opinions were formulated on the basis of a comprehensive review of the available evidence, interviews with the parents and observations of them with the children. The views expressed by Ms Martens were cogent, well-considered and persuasive. 3. In particular, it was a concern to Ms Martens [T199] – and the Secretary submits it ought to be of some concern to the Court – that the mother has not engaged in the therapeutic intervention of a kind canvassed by Ms Martens in her reports. It is a concern that the mother has not engaged in that intervention, despite having had the benefit of Ms Martens' opinion for some time. 4. The Secretary submits that Ms Martens' evidence – and the absence of any evidence that the mother has engaged in a meaningful therapeutic intervention of the kind canvassed by Ms Martens in her reports – weigh in favour of a finding that there is not a realistic possibility of the restoration of the children to the care of their mother within a reasonable period. 5. The parents submit that there has already been significant change in the mothers circumstances since her eldest nine children were removed, especially since 2016 when she was acquitted of the criminal charges. The mother has demonstrated positive changes to her lifestyle, relationship and financial and personal circumstances, and now has the positive support of the father. 6. It is submitted that the father is a protective factor and able to provide good care for the children. In his affidavit of 13 July 2022 at [18] he states: 'I understand fully the nature of all of the allegations levelled against (the mother) and because I have an awareness of the nature of the allegations allows me to act protectively if the need should occur which my belief is unlikely. The parents' lack of insight 1. The Secretary submits the mother lacks a degree of insight sufficient to meet the needs of her children, with the result that the children would be placed in a situation of unacceptable risk if restored to her care, even with the support of the father. Absent that insight there can be no confidence that the mother would not repeat the errors she has made in the past. 2. The lack of insight demonstrated by the mother was said to have been observed by a Ms Kogekar. In her report dated 6 September 2011, Ms Kogekar stated (among other things) that the mother presented 'as a rather defensive woman who tends to deny or to minimise things rather than showing a willingness to accept responsibility for her actions', and that '[s]he does not show much capacity for reflection in relation to the removal of the children other than saying that the children tell lies and cannot be believed' (CB 2631). Ms Kogekar further stated: '[The mother] wants the children to be restored to her care but shows limited insight into the issues resulting in the removal of the children. [She] has not made any changes to her lifestyles and it is highly likely that the pattern of neglect and physical abuse will be repeated if the children are restored to her care. … Both [the mother] and [Mr S] show limited insight into the effects of domestic violence, criminal activities and parental drug use on the children. They minimise these issues or blame the other for their difficulties. Neither of them appeared to have the capability of placing the needs of the children above their own. Neither has made any significant changes which would indicate that they are now more capable of meeting the physical, emotional [and/or] psychological needs of the children' (CB 2634). 1. The Secretary does not contend that issues of neglect, domestic violence, drug use and/or criminal activities are issues that pose any present risk of harm to ALK, JK or AYK. It appears the mother has, for the most part, addressed those aspects of her history, at least partly due to the positive influence of the father. The Secretary submits, however, there can be seen in the remarks made by Ms Martens in her evidence echoes of the remarks made by Ms Kogekar with respect to the mother's insight into the needs of her children, which suggest that the mother's lack of insight is a longstanding and continuing concern. 2. For instance, in her oral evidence, Ms Martens at T191 stated (among other things): '[M]y observations of [the mother] is that she has definitely presented with a tendency to focus on the external factors … [S]he finds it easier to discuss things such as having the domestic violence and the difficulty with housing and finances rather than reflect in on herself and her internal choices and those sorts of things'. 1. In addition, when asked in her oral evidence to comment on the mother having expressed some uncertainty as to why she could not see her older children, Ms Martens at T194-5 stated: 'That remark was concerning to me, particularly as it had been quite drawn out in terms of going through legal matters and discussed quite a lot with [the mother]. It was concerning that she didn't recognise that this might be something her children might not want. … She had been given information that they had expressed that. So, it suggested to me there was some ways to go in relation to developing reflection and insight specific to her older children's experiences'. 1. Further, when asked in her oral evidence to comment on remarks the mother had apparently made to her counsellor about the need for her older children to 'learn a lesson' for 'telling all the lies' [T190.15], including the possibility of gaol time, Ms Martens said she would want to explore with the mother her reasons for saying those things, but also stated: '[I]t's concerning that she would consider, potentially, putting her children through a criminal process and the impact that that could have on them' [T190.35]. Moreover, there can be no doubt about the mother's attitude with respect to this, given she repeated in her oral evidence that she would willingly put her older children through a criminal process if that was necessary for her to clear her name [see T351]. 2. The Secretary submits the records of the mother's consultations with Ms Carrera (see exhibit D) – assuming they are an accurate reflection of the matters that the mother has discussed with her counsellor – are significant for what they reveal about the mother's insight. For example: 1. during a consultation on 3 September 2022, the mother apparently stated that she 'feels targeted' by DCJ and 'believes they are purposely trying to sabotage her situation so that she permanently loses custody of her children'. 2. during a consultation on 17 September 2022, the mother said she found it 'strange' that NH was attending child sexual abuse counselling because 'he does not need it'. 3. during a consultation on 1 October 2022, the mother referred to DCJ changing the times of her visits with one of the children because it coincides with nap time. The mother apparently stated that '[s]he was annoyed by this because she feels as though they are playing games and trying to purposely aggravate her'. 4. during a consultation on 3 December 2022, the mother referred to the children's carers being in the Barnardos Adoptions Program, and stated that she 'believes they are trying to get a reaction from her and 'piss me off''. 5. during a consultation on 21 January 2023, the mother referred to her and the father being prevented from changing JK's nappy at a recent contact visit, and apparently stated that she 'believes … part of the reason for the change with the nappy [is] to cause distance and make them upset'. She further stated that she 'contemplated stopping all visitation even though she knows it is not good for the girls'. 6. during the same consultation, the mother referred to one of the children having had their hair cut, and stated that she '[f]eels like the carer and agency are just 'shit stirring' trying to provoke a reaction'. 1. The Secretary submits that these records are illustrative of a parent who has placed herself, rather than her children, at the centre of the narrative. For instance, there appears to be no acknowledgement by the mother that the needs and interests of the children are what informed the decisions made and actions taken by the casework team and the carers, rather than some attempt by them to 'sabotage', 'upset', 'piss off' or 'aggravate' her or the father. 2. There is a consistency in the mother's attitude revealed by other events, for example, the parents' initial refusal to attend visits with AYK at a location closer to the home of her then-carer so as to minimise the travel time for AYK, then just a few months old, filming AYK whilst she was distressed during a contact visit in September 2022 [T354], and the mother's attempt to visit NH at his home unannounced in or around December 2022. When cross-examined about the visit to NH, the mother seemed to have little appreciation for the possibility that her attendance at his home might be traumatic for NH. She did not accept that, by attending NH's home unannounced, she put her own needs ahead of his [T349-350]. 3. Similarly, the father's lack of insight into his children's needs is revealed by his long-held refusal to separate from the mother to assume sole care of his children. As early as November 2020 (and likely earlier), officers of DCJ have raised with the father whether he would be willing to care for the children on his own, but he has declined [T31]. The choice he made to prioritise his relationship with the mother is at least partly why his children remain in out of home care, and reveals that he is not consistently child-focused in his decision-making. 4. The parents submit that there is an acceptable risk, and not an unacceptable risk, in the restoration to the parents, and that risk can be adequately mitigated with appropriate scaffolding as provided for by Ms Martens. It would involve a three-year order, a gradual transition over six months, the children attending preschool/day care three days per week, and intensive family support service in the home during the process of transition. Therefore, they assert that there is a realistic possibility of restoration to both parents. 5. It has for some time been, and remains, the position of the Secretary – informed by the views of the casework team – that the parents lack insight into the needs of their children. The Secretary submits the lack of insight demonstrated by the parents should weigh in favour of a finding that there is not a realistic possibility of the restoration of the children to their care. The mother's mental health 1. It seems apparent from the evidence that the mother has from time-to-time experienced deteriorations in her mental health, including as early as in her adolescence. 2. For example, a record of Cumberland Hospital dated 16 June 1998 indicates that the mother, then 15 years of age, was discharged from hospital on that date after having been admitted on 12 June 1998. The record indicates: 'She was brought in by police … after they went to her home … and found her depressed, distressed, and suicidal'. The record indicates that '[the mother] was admitted involuntarily as a mentally disordered person', but was discharged after an improvement was observed in her moods and she 'was no longer suicidal'. Whilst in hospital, the mother appears to have been assessed by a psychiatric registrar, who recorded in their notes (among other things) their impression that the mother was experiencing an '[a]djustment disorder, on B/G of ? evolving personality disorder' (see Hospital record CB 2892). 3. Further, during an assessment with the Depression Clinic at Cumberland Hospital in June 2013, the mother appears to have disclosed that '[s]he was assessed by Courts and reported to be intellectually disabled and possibly Borderline PD and recommended to commence 2 years of CBT/DBT [i.e. cognitive behaviour therapy / dialectical behaviour therapy].' Further, according to the assessment documentation, the mother '[r]eported that she sometimes hears a female voice calling her name, but she can never see anyone she knows. She reported it occurs twice a week and that her sister … has also heard this'. 4. Ms Martens was questioned about the mother's mental health when she gave evidence at the hearing of the present appeals. Ms Martens stated that, when she assessed the mother, '[s]he didn't present with obvious symptoms that would suggest a personality disorder' [T182]. Ms Martens seemed unwilling to accept that the mother would meet the diagnostic criteria for a personality disorder, but accepted that, if it were the case that a person had a personality disorder, and/or if a person had a history of hearing voices, those matters may be relevant to an assessment of that person's parenting capacity [T183-4]. In addition, Ms Martens accepted that it was important for there to be an accurate picture of the mother's mental health so that she (the mother) could receive reliable guidance as to how her mental health might be managed in the future [T185]. 5. Although Ms Martens conceded that 'it does appear on the outside that [the mother] [is] … functioning reasonably well', Ms Martens also accepted that there was 'limited information' available to her in respect of the mother's mental health, and that she did not presently have available to her 'a current picture of [the mother's] mental health specifically' [T185]. 6. The Secretary submits that a reliable and accurate picture of the state of the mother's mental health presently is crucial to the assessment of the risk she may pose to her children. Until there is a reliable and accurate picture of the state of the mother's mental health presently, the absence of such should weigh in favour of a finding that there is not a realistic possibility of the restoration of the children to the care of their mother within a reasonable period. Other risks associated with restoration 1. The Secretary submits that, in addition to what is set out above, there are a number of other reasons why it would not be in the children's best interests to restore them to the care of their parents, and why it follows that there is not a realistic possibility of the restoration of the children to the care of their parents within a reasonable period. 2. The Secretary also submits that the parents, and primarily the mother, have a suspicion of DCJ and the funded service provider Barnardos such that the Court could not be confident that they will work with those agencies in a transparent and cooperative manner into the future. 3. In support of these submissions, the Secretary states that it is apparent from the fact that the parents have: 1. withheld information from DCJ and Barnardos that was plainly relevant to the safety, welfare and wellbeing of the children, for example, the mother's pregnancy, and the registration of the childrens' names with Births, Deaths & Marriages [T262-263 and T359-361]. 2. reacted poorly to reasonable requests made and directions given to them by DCJ and Barnardos, for example, declining to attend visits with AYK at a location that would minimise her travel time, and engaging in heated disagreements with contact supervisors regarding nappy changes [T265-266 and T361]. There was also an occasion on 5 December 2023, when, in an email exchange concerning the guidelines for changing nappies at contact visits, the mother wrote to Barnardos Program Manager Rebecca Milburn: 'I don't know why people that work for private NGOs are so mentally sick' (exhibit C). 1. In addition, there are concerns about the parents' honesty. If the mother did perpetrate harms against her older children but denies doing so, then plainly she is not an honest person. As far for the father, his oral evidence regarding events in August 2011 – i.e., the events that saw him charged in connection with an alleged sexual or indecent assault of a woman – was sufficiently inconsistent and was contradicted (at least in part) by the contemporaneous records of police, such that it would not be inappropriate to have some scepticism in relation to his honesty [T251-261 and Police record at CB 2848-9]. 2. The Secretary submits that a restoration should not proceed unless and until the parents can demonstrate their capacity to work in an honest, transparent, and cooperative manner with DCJ and Barnardos. To permit otherwise would place the children at an unacceptable risk of harm, because there could no confidence that the parents would bring important information about the children to the attention of DCJ and/or Barnardos, or that the parents would ask for help in the event they required assistance in parenting the children. 3. Secondly, there is a risk that the restoration of the children to the care of their parents would involve a risk of psychological harm to the children because it would necessarily involve their separation from the people they most likely identify presently as their primary attachment figures. 4. In her oral evidence, Ms Martens referred to attachment systems and their significance for children and young people, and, in particular, for young children. Ms Martens accepted that the children subject of these proceedings probably identify their current carers as their primary attachment figures [T201-2] and then remarked [at T202] on the risks of breaking those attachments: '[T]he more placement changes [children] have, the more damage that could cause for attachment systems, and the more likely that will result in harm to the children. So, if they're removed from individuals that they have formed quite a strong attachment with, and placed with others, albeit with their biological parents, that can cause harm to the children, or can result in harm to children which would need to be considered and mitigated if [it] occurred. … [I]t's quite possible that the children would result in having emotional difficulties, behavioural problems, psychological distress, and it could, if not managed correctly, result in problems with their attachment systems long term.' 1. In addition, Ms Martens gave evidence about the potential risks that might exist for the children if they transition to the care of one or both of their parents, but the restoration failed for some reason. Ms Martens described the harm that could arise as 'quite significant' [T446]. 2. Ms Martens further accepted that the potential that these harms might come to the children could be entirely avoided by maintaining the status quo, i.e., by leaving the children in their current placements and not restoring them to the care of their parents [T203]. The parents' alternative proposal 1. Although the primary position of the parents is that the children should be restored to their joint care, the parents advance an alternative proposal – namely, that the children be restored to the sole care of their father, to the exclusion of their mother. 2. A major difficulty with the parents' alternative proposal is that there is not a degree of detail regarding their plans for the father's sole care of the children sufficient to enable the Court to assess the risks of that proposal and whether it would be in the children's best interests. 3. In addition, the evidence of the parents is contradictory both as to the nature of the relationship that the mother and the father might have, and with respect to the mother's future living arrangements, if the children are restored to the father's sole care [T385-6, T246 and 276-8]. 4. The Secretary also asserts that the nature of the evidence with respect to these matters allows for suspicion that the parents' alternative proposal could involve the 'backdoor restoration' of the children to the care of their mother, which it is submitted by the Secretary would not be in the children's best interests. 5. In any case, there is not available to the Court any persuasive expert assessment with respect to how the father may cope parenting three young children on his own, and whether he in fact has the parenting capacity to do so. Whilst an application for an adjournment was made for the father to collate such evidence, I refused the adjournment: see R.C. and P.K. v The Secretary, Department of Communities and Justice [2024] NSWDC 85. 6. As it happens, in her second report, forensic psychologist Ms Martens stated that, when she asked the father to consider what aspects of parenting might be more difficult or result in increased stress, he was unable to identify any potential scenarios. This led Ms Martens to remark: 'It is relatively common for parents who have been referred for care and protection matters to respond in such a manner, however it provides little basis for which to assess how realistically [the father] has considered the demands of parenting three young children' [T293]. 7. When she attended for cross-examination, Ms Martens was asked whether she felt she was in a position to be able to provide the Court some assessment of the merits and risks that might exist for the children if they were to be restored to the sole care of their father. Ms Martens responded: 'No, I don't believe so. I think that would need more thorough exploration' [T204-5 and T437-9]. Asked what she would want to see or read in order to be able to do the assessment, she stated: 'I would want to see some plan as to how [the father] would cope with caring for the children. … [I]n terms of understanding that currently - well, at least when I saw him last - his focus was on … quite a lot on work and financial provision for the home, whereas [the mother] was likely to be completing most of the parenting. So in that case, how he would cope with parenting children on his own, how he would manage finances and the children, I'd be interested in what that would look like for the family in terms of should he live separate to [the mother], what contact would the children have with [the mother], would their relationship maintain, but how would the family go in terms of complying with any undertakings or directions from the Court around supervision of contact with the children … [I would] also be interested in having some information around how [the father] parented independently of [the mother]. So currently they attend the contact together, so … I would d be interested in contact separate and how that looks and whether he's able to manage all three children, or how receptive he has been then to support and advise to develop his skills further.' 1. Plainly there are unanswered questions as to whether the father is equipped to be the sole carer of three young children. Further, despite his protestations [T233], the father's priority has been his relationship with the mother, rather than the care of his three children. That much is apparent from the fact that, until very recently, the father has dismissed any suggestion that he should separate from the mother and make some attempt at caring for his children on his own [T233-7]. Had the father taken a different position – had he prioritised the interests of his children over his relationship with the mother – the Court might have been in a better position to assess the merits of the placement of the children with their father. 2. On the basis of the evidence presently available, I find that it would not be in the best interests of the children for them to be restored to the sole care of their father. It could not be said that there is a realistic possibility of their restoration to him within a reasonable period. Options for mitigating risk 1. The parents argued that there is a realistic possibility of the restoration of the children to the care of their parents, provided there is a staged and gradual restoration process, supported by 'scaffolding', including a supervision order pursuant to section 76 of the Care Act and order accepting undertakings from the parents, pursuant to section 73 of the Care Act. 2. In response, the Secretary submits that, if it is accepted that the parents – and in particular, the mother – pose an unacceptable risk of harm to the children because of the allegations made against the mother by her older children, then no form of slow restoration or scaffolding will be sufficient to address that risk. As stated in M v M, '[t]he court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the children' (emphasis added). In the present case, the outcome that will best promote and protect the interests of the children is to maintain the status quo. 3. It seems to me that the scaffolding in the nature of supervision and undertakings will only be effective if the parents are capable of having an honest, transparent and cooperative relationship with DCJ and Barnardos. For previously considered reasons, I cannot have confidence that such a relationship exists or will exist in the present case. 4. Further, the Secretary submits it is a concern that the parents – and in particular, the father – appear to have limited support networks, which might assist them to care for the children and in so doing serve to mitigate the risks. The Secretary submits it is significant that not a single person – no friend or family member – has attended to give evidence in support of the parents' case. This should also weigh in favour of a finding that there is not a realistic possibility of the restoration of the children to the care of their parents within a reasonable period. Permanency Planning 1. Section 78(1) of the Care Act provides that, '[i]f the Secretary applies to the Children's Court for an order … for the removal of a child or young person from the care of his or her parents, the Secretary must present a care plan to the Children's Court before final orders are made.' 2. Section 78(2) of the Care Act sets out the matters which must be addressed in the Care Plan, including, relevantly, 'the kind of placement proposed to be sought for the child or young person' and 'how it relates in general terms to permanency planning for the child or young person'. 3. The concept of 'permanency planning' is defined in section 78A(1) of the Care Act, which provides: '(1) For the purposes of this Act, permanency planning means the making of a plan that aims to provide a child or young person with a stable placement that offers long-term security and that – (a) has regard, in particular, to the principles set out in section 9(2)(e) and (g), and (b) meets the needs of the child or young person, and (c) avoids the instability and uncertainty arising through a succession of different placements or temporary care arrangements.' 1. In addition, section 83(3) of the Care Act provides that, '[i]f the Secretary assesses that there is not a realistic possibility of restoration within a reasonable period" – as is the case in the present matters – 'the Secretary is to prepare a permanency plan for another suitable long-term placement for the child or young person and submit it to the Children's Court for its consideration.' 2. Section 83(7)(a) of the Care Act relevantly provides that '[t]he Children's Court must not make a final care order unless it expressly finds … that permanency planning for the child or young person has been appropriately and adequately addressed.' However, section 83(7A) of the Care Act provides: '(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.' 1. The Secretary has prepared Care Plans for each of the children. The amended plan for ALK was filed on 11 June 2021 (CB117), for JK was filed on 27 October 2022 (SCB 260), and for AYK was filed on 27 October 2022 (SCB 327). 2. As is set out in the Care Plans, the Secretary's proposal is that each of the children will remain in out-of-home care. In the case of ALK and JK, the proposed plan is that they remain in the long-term care of their current carers, G and T. In the case of AYK, the proposed plan is that she will remain in the long-term care of her current carers, K and J. 3. The Secretary submits the Care Plans meet the requirements set out in section 78(2) of the Care Act, in that they address (among other things) how parental responsibility for them is to be allocated, the kind of placement proposed to be sought in relation to the children, how their cultural needs are to be met, and the arrangements for contact between the children and the significant people in their lives, including their parents and older siblings. 4. To the extent that it may be said there are deficiencies in the cultural aspects of the children's placements, the carers have shown a willingness and an enthusiasm to engage with the children in cultural activities and to promote the children's cultural heritage (for example see T113-6). The carers are to be commended for this, and their continued engagement with Barnardos and the children. 5. To the extent that it is suggested that the proposed placements are not suitable because they involve the separation of the children – i.e., AYK is in a separate placement to her sisters – the Secretary submits the Court can take some comfort from the fact that the respective carers appear to have a good relationship, and have successfully arranged contact between the siblings without the involvement of DCJ or Barnardos (see T78). I find that there is no basis at all to conclude that the carers are not committed to sibling contact continuing in the future. What orders are in the Children's best interests? 1. As noted, on 12 July 2021, the Children's Court made final orders allocating parental responsibility for ALK to the Minister until she attains 18 years of age. On 26 May 2023, the Children's Court made final orders allocating parental responsibility for JK and AYK to the Minister until each attains 18 years of age. 2. The proposals advanced on behalf of the parents will expose the children to an unacceptable risk of physical and/or psychological harm. It would not be in the best interests of the children for them to be restored to the care of their parents. By contrast, the proposals advanced by the Secretary – which found endorsement in the orders made by the Children's Court – will best promote and safeguard the children's long-term safety, welfare, and wellbeing. 3. For reasons previously discussed, I am not satisfied that the parents are likely to be able to satisfactorily address the relevant child protection issues within a reasonable time. When I consider this in tandem with the current circumstances of the children, and the possible future implications for the children if they are removed from their current placements, I find that cannot be in the best interests of these three children to be restored to the care of their parents. 4. For these reasons, the orders made by the Children's Court are confirmed, pursuant to section 91(5) of the Care Act, and the parent's appeals are dismissed. 5. I make the following orders: 1. Orders made by Children's Court on 12 July 2021 as regards ALK are confirmed. 2. Orders made by Children's Court on 26 May 2023 as regards JK and AYK are confirmed. 3. The parents' appeals are dismissed. Amendments 04 June 2024 - Amending typographical error. 05 June 2024 - Amending typographical error. 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: 05 June 2024