Children's Court New South Wales Medium Neutral Citation: Department of Communities and Justice (DCJ) and Alice [2024] NSWChC 12 Hearing dates: 13, 14, 18, 19, 21, 24, 25 June 2024 Date of orders: 7 August 2024 Decision date: 07 August 2024 Jurisdiction: Care and protection Before: Judge Skinner, President of the Children's Court of NSW Decision: There is no realistic possibility of the restoration of Alice to her mother or father within a reasonable period. All aspects of parental responsibility for Alice are allocated by a guardianship order to the paternal grandparents until Alice reaches the age of 18 years. Catchwords: CHILDREN – Care and protection – best interests – safety, welfare and wellbeing – paramountcy principle – permanent placement principles – unacceptable risk Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW) Cases Cited: DCJ and Bloom [2021] NSWChc 2 Category: Principal judgment Parties: Secretary (Department of Communities and Justice) The Father The Mother The Paternal Grandparents Alice (Young person) Representation: Counsel: Mr Anderson (Secretary) Ms Stolier (Mother) Solicitors: Ms Smith (Secretary) Ms Giblin (Mother) Ms Peters (The Independent Legal Representative for Alice) File Number(s): 2022/00164714 Publication restriction: Pseudonyms have been used for the children and family members. JUDGMENT 1. The Court must decide whether Alice should be restored to her mother or placed under the guardianship of her paternal grandparents. 2. The mother seeks the restoration of Alice to her care. 3. The paternal grandparents support the Secretary's application for a guardianship order. 4. The Court determined there was no realistic possibility of the restoration of Alice to her father in his absence. He could not attend Court due to work commitments. When he was contacted by the Court, he indicated he supports Alice staying with his parents. 5. Alice's independent legal representative supports the restoration of Alice to her mother through a slow transition with orders for supervision and undertakings. Background 1. Alice was born in 2022 and is now two years old. She was assumed into care in 2022 from a Sydney hospital following a period in the neonatal intensive care unit. Alice was placed with her paternal grandparents and has remained in their care. 2. The Department became involved in Alice's life due to concerns about her older maternal sister, May (born 2018), sustaining a non-accidental injury in the care of her mother in 2020. May was removed from her mother after presenting to hospital with extensive facial bruising, apparently due to blunt force trauma. The mother and her then boyfriend, The Ex-Boyfriend, were listed as persons of interest with respect to May's injuries. 3. Children's Court proceedings followed. There were concerns about the mother's mental health, her relationships, her transparency with services, and the frequency with which she presented May to health professionals for assessment. 4. Dr Chris Lennings undertook a parenting capacity assessment and recommended May be restored to her mother. The Court made an order allocating shared parental responsibility for May to her parents, with residence and education allocated solely to the mother. A supervision order was made and the Court accepted undertakings from both parents. 5. The mother gave undertakings that she would notify the Department if she commenced a new relationship with anyone who had contact with May and she would notify DCJ within 24 hours of anyone staying overnight in the home with May and herself. 6. The mother breached these undertakings. She resumed her relationship with The Ex-Boyfriend, separated from The Ex-Boyfriend, then started a relationship with Alice's father. During the restoration period, the mother used cocaine while May was with the maternal grandparents, she drove while intoxicated, threatened self-harm, and spent a fortnight in a private hospital due to mental health concerns. The service provider tasked with supporting the restoration advised the Department of their concerns about the mother's conduct and her dishonesty. 7. May was removed from the mother within three months of final orders. She and Alice's father were in a relationship when May was removed. The mother had not advised the Department of the name of Alice's father prior to introducing May to him, breaching an agreement that the Department would conduct a criminal record check before any new partners were introduced to May. 8. The mother became pregnant with Alice during May's second care proceedings. Professor Louise Newman and Children's Court Clinician Bronwen Elliott undertook assessments. Ms Elliott did not support May being restored to the mother and recommended she be restored to her father. At the conclusion of May's second care proceedings, she was placed with her father, where she remains. 9. Caseworkers remained in contact with the mother during her pregnancy with Alice, concerned that the risk factors had not been satisfactorily resolved. Those concerns led to Alice being assumed into care prior to discharge from the hospital. 10. The parties objected to the Secretary's application for an interim order allocating parental responsibility to the Minister. The Court heard submissions then determined that Alice could reside with her paternal grandparents who gave undertakings to supervise Alice in the care of her parents while they lived in the paternal grandparents' home. In 2022, Alice was discharged from the hospital into the care of her paternal grandparents. 11. In the last week of July there was conflict between the mother, father and paternal grandparents. Alice moved between the maternal and paternal grandparents' home then remained at the paternal grandparents' home in the absence of the mother and father. The mother 1. The mother is now 40 years old. She lives in her own home and works in administration. She is supported by her mother and father. 2. The mother has contact with Alice from 9am – 2pm once per week. Contact is now unsupervised but had previously been supervised by the maternal grandfather. Alice has a good relationship with her mother. Contact is positive and involves different activities. 3. The mother has experienced significant physical and mental trauma in her life. She has a long history of engagement with psychological and psychiatric services and has received many different diagnoses. 4. The mother's history has been extracted from reports made by the mother or medical notes containing reports made by the mother. Dr Mason reviewed extensive notes containing the mother's prior attendance on medical professionals and noted there are discrepancies in reported symptoms and treatment, with contradictions in the reports of different doctors. Dr Mason stated that the mother's lying or manipulation of the truth to mental health professionals may have contributed to having various diagnoses, which then, in turn, impacts the most appropriate treatment for her to receive. 5. The mother told Dr Mason she'd had a 'happy' family life. She suffered bullying in high school and engaged in self-harming behaviours. At 15, she moved to a performing arts college in Melbourne to pursue dance professionally. She was physically assaulted on a tram and returned to Sydney before moving to Brisbane to pursue dance. She sustained serious injuries in a car accident in Brisbane. When she returned to Sydney she was admitted to a private Clinic to treat an eating disorder and was readmitted within weeks of her discharge. The mother has disclosed that when she was a teenager she was a victim of multiple sexual assaults. 6. At the age of 30 the mother returned from a family trip to Europe with severe headaches that were diagnosed as an aneurysm. Following surgery, she was admitted to a rehabilitation hospital for an excess build-up of spinal fluid. A medical device was installed to reduce the headaches. 7. The mother first used methamphetamine with a boyfriend when she was 21. She described the relationship as violent and abusive. After the mother left the relationship, she was admitted to a clinic in 2004 for treatment of anorexia and withdrawal from methamphetamine. At the clinic, she was diagnosed with borderline personality disorder. In 2006, she was diagnosed with depression. 8. The mother was admitted to hospital in 2006 for drug rehabilitation and another hospital in 2006 for self-harm. In 2008, the mother was diagnosed with Adjustment Disorder, history of eating disorder, Cluster B personality, and a history of Raynaud's syndrome. In 2012, the mother presented to hospital due to an overdose of Panadeine forte, with a note that she presented three times in one week. In 2015, the mother presented to hospital with a polypharmacy overdose and was referred with a relapse of anxiety and depression. 9. The mother was married to her ex-husband from 2016 to 2019. The Ex-Husband was described as a recovering heroin addict who abused alcohol during their marriage. They had a daughter, May, who was said to be 'a difficult baby'. The mother ended their marriage after The Ex-Husband returned from a rehabilitation facility and consumed alcohol. 10. The mother started a relationship with her ex-partner The Ex-Boyfriend in January 2020. The mother described the relationship as physically and verbally abusive, intimidating and controlling. May's non-accidental injuries occurred during this relationship, and the mother gave evidence that The Ex-Boyfriend was the only person who could have caused the injury. 11. The mother admitted herself to a private Clinic in 2021, due to the stress of May being removed and escalating abuse from The Ex-Boyfriend. The discharge summary for that admission noted a diagnosis of adjustment disorder with mixed emotional features of anxiety and depression. She was to engage in Dialectical Behaviour Therapy (DBT) and medication. 12. The mother was referred to Dr Peter Hoey, psychiatrist. She was engaged with Dr Hoey before transferring her care to Dr Karen Williams, psychiatrist, at a Domestic Violence Trauma Clinic, where she remains an active patient. 13. The mother underwent spinal surgery in March 2024 in relation to pain management for her 2016 aneurysm. She was later hospitalised in May 2024 due to an infected abscess and made a full recovery after emergency surgery. 14. Clinical records indicate the mother was diagnosed with ADHD in approximately 1993. In 2004 she was diagnosed with a borderline personality disorder. Her presentations to health services between 2004 and 2019 reveal reports of drug addiction, self-mutilation, depression, eating disorder, anxiety, overdose, polycystic ovarian syndrome, endometriosis, inflammatory lung disease, and bipolar disorder. 15. In 2019, a hospital discharge summary prepared by Professor Marie-Paul Austin, Consultant Psychiatrist, stated 'diagnosis was deferred on basis of a very brief presentation, inconsistent history provided and the lack of any corroborative history. The multiplicity of contacts with the health care system since her teens, many surgeries, highly complex medical history, periods of treatment with opiates, lack of ability to form stable relationships and lack of ability to work over past few years, suggest a longstanding condition with associated significant somatisation and maladaptive personality style'. Risk factors 1. The behaviour that presents as a risk to Alice includes: 1. the mother's dishonesty; 2. her relationships; 3. the unexplained injury to May; and 4. the mother's help-seeking behaviours. (a) Dishonesty 1. The mother acknowledges she does not always tell the truth. She asks the Court to find that she omits information through 'impression management', which is an attempt to improve what people think of her. The mother's psychotherapist, Dr Deb Stirrat, stated that her lying is an adaptive, rather than maladaptive response. Dr Stirrat believes the trauma in the mother's past relationships has taught her to lie to 'keep the peace' and keep herself safe. 2. The evidence from Departmental caseworkers indicates the mother also lies to avoid adverse consequences. Contrary to her undertakings, she resumed a relationship with The Ex-Boyfriend, despite the risk to May. She originally failed to tell caseworkers she was in a relationship with the father and has lied to caseworkers throughout the proceedings about whether she and the father were together or in contact. When caseworkers received information that the mother was pregnant with Alice they asked her to confirm her pregnancy and she falsely denied it. 3. During the three care proceedings the mother has filed affidavits containing incorrect information about contact between her and The Ex-Boyfriend, contact between the father and May, threats by the father, her relationship with the father, attempts the caseworker made to observe contact between the mother and Alice, what she knew about a complaint her mother made to the local Member of Parliament about Alice's care arrangements and the circumstances in which she authorised her mother to make that complaint. These may not be the only instances of false statements. 4. The evidence contains instances of the mother habitually lying to people outside court proceedings. The father initially believed May had been removed from the mother, after restoration, because he got an ice cream with May and the mother. He has complained that the mother lied to DCJ about him being a perpetrator of domestic violence. He said the mother was not honest with her therapists as she knew her disclosures would get back to DCJ. He said that he only found out they were not together when he read it in an affidavit. He made allegations that the mother had told him to lie about risks in the paternal grandparent's home, presumably to increase the probability of Alice returning to her care. Evidence of two incidents that involved the mother and father in December 2022 suggest both the mother and father can be dishonest. 5. The paternal grandparents filed evidence and made statements during the proceedings that the mother lies. The paternal grandmother indicated there would be an improvement in their relationship if the mother stopped lying. There are tensions between the maternal grandmother and the paternal grandparents with the paternal grandmother expressing concern that the maternal grandmother may influence the mother's dishonesty. 6. The mother's psychologist believed the mother had 'paused' proceedings involving May at a time when the mother had recently conceded there was no realistic possibly of May's restoration to her care. 7. Dr Milch observed that the mother had omitted concerns about factitious disorder being raised in earlier proceedings and omitted key issues in her own history such that Dr Milch found her account to be superficial. He observed that Dr Hoey had recorded multiple inconsistencies in her account of her personal, relationship and psychiatric history, including her history of self-harm and previous psychiatric admissions. In evidence he learnt she had been pregnant when he conducted his assessment for Court. 8. Dr Milch referred the mother for a neuropsychology assessment based on gaps in her history, lies and her extensive neurological trauma history. 9. In evidence Dr Milch was asked about records that revealed the paternal grandmother suffered depression, the paternal great grandfather was institutionalised, that there is a strong history of bipolar disorder on the mother's side, and the maternal grandfather has a history of anxiety and PTSD. Dr Milch was concerned this history would increase Alice's vulnerability in the future. He also noted that none of this history had been provided to him during his assessment of the mother. 10. Dr Mason stated 'this 'theme of lies' impacts upon the mother's potential to be engaged in an open and transparent manner with her treating therapists and prevents any real psychological change to a degree which would reduce the risk in her parenting capacity'. (b) Relationships 1. The mother gave evidence that most of her relationships have involved domestic violence. Her history reveals a pattern of unstable, short-term relationships marred by conflict. 2. The mother has accessed education and support programs to gain better insight into indicators of risk in interpersonal relationships. In April 2021 she completed Building Blocks, which she said helped her understand red flags and the risk she posed to herself and others by being in unhealthy relationships. She maintained her 'on and off again' relationship with The Ex-Boyfriend during this time. 3. In April 2021 the mother met the father, and in May 2021 she advised DCJ about her relationship with the father. At the time she described it as a 'healthy relationship' and 'the first healthy relationship' she had been in. In February 2022, she advised DCJ that she had ended the relationship with the father due to his infidelity. She said the father had not been physically violent but she identified domestic violence red flags. She had also become aware that the father was the defendant in an AVO by his ex-partner. 4. In March 2022, Dr Stirrat advised DCJ that the mother ends up with men that choose to use violence and she had recognised red flags with the father, including abuse, yelling, swearing and controlling behaviour. The mother provided the Court with a report from one of her psychologists, Jeremy Paterson, who stated that the mother's stress and complex PTSD emanates from her relationships with men, with the mother outlining an 'extensive history of abuse, intimidation… surveillance, degradation, isolation and coercive control'. 5. The mother and father resided with the paternal grandparents in July 2022, as authorised by the Court. Both paternal grandparents described it as a 'toxic' situation, with the mother and father constantly fighting. 6. The father stated that on 7 December the mother contacted him asking if they could sort things out and keep it a secret. He refused. On 10 December 2022, there was an incident where the mother contacted the father stating she had been sexually assaulted. He said he found her in a bathroom, heavily intoxicated and with her underpants on the floor. He took her home and said they tried to have sex, but could not, and later she accused him of raping her. Afterwards she was unable to find her phone or keys. On 31 December 2022, the father was highly intoxicated and the mother accompanied him to hospital in an ambulance. The mother says that when they were leaving the hospital he yelled at her, pushed her over and grabbed her, causing a bruise. Although not in a relationship at this time, the mother told the paramedic that the father was her husband. During January 2023, the parents maintained they were not in a relationship but their contact phone call records and social media posts indicate they remained in contact until at least August 2023. 7. The mother admitted herself to the Domestic Violence Trauma Clinic in early 2023. The clinic is an allied-health program providing a wraparound service to women who have been exposed to domestic and family violence. The program consists of a three-week inpatient stage, an outpatient stage, another three weeks of inpatient treatment followed by 12 weeks of a day program. The mother completed the program and Dr Williams found her engagement to be thorough and enthusiastic. The mother continues to attend each Tuesday after contact with Alice. 8. The mother saw Dr Stirrat for domestic violence counselling between October 2020 and May 2024. The sessions concluded due to Dr Stirrat's personal circumstances. 9. In October 2023, the mother contacted her general practitioner about contraception advice. She filed an affidavit in November indicating she was not looking for a serious relationship. Notes from her general practitioner indicate she attended in late November following a miscarriage. The mother gave oral evidence that 'it wasn't a miscarriage, it was a termination'. In February, the mother filed an affidavit stating that 'dating and a romantic relationship' was not a priority. 10. In an affidavit filed in June and in her oral evidence the mother confirmed she was in a non-serious relationship with The New Partner, who she had met approximately 8 weeks before (in March 2024) on a dating platform. In evidence the mother said it was the first healthy relationship she had ever been in. Social media posts from both the mother and The New Partner show a public declaration of their relationship with a couple photo as a profile picture and a locked heart emoji. DCJ has now completed Police checks and confirmed that The New Partner does not have a criminal record. 11. In Bronwen Elliott's report prepared during May's proceedings, Ms Elliott stated that the mother would benefit from choosing to avoid intimate relationships for the moment to better understand how her past trauma has influenced her current patterns. Ms Elliott said she could not emphasise strongly enough the importance of having a break from relationships. 12. In Dr Lynne Mason's report, she noted The Mother's relationships with The Ex-Boyfriend and the father, both of which the mother had not disclosed to DCJ or Dr Stirrat. Dr Mason and Dr Hoey spoke to each other about the mother's relationships and Dr Hoey apparently said the mother needed to be more mature and not get into a relationship with it not meeting her needs. In evidence, Dr Mason expressed concern about the mother commencing a new relationship, due to 'the still ongoing, unresolved issues of… Alice's care'. 13. In a letter dated 23 August 2022, Dr Hoey noted that the mother seems unable to resist her on-and-off again relationship patterns. He said 'if (The Mother) can undertake to not re-involve herself in a relationship whilst at the same time maintaining her current level of therapeutic input, I think that favourable consideration should be given to progressively increasing her engagement in her daughter May's life'. 14. Dr Milch was cross-examined about the mother's new relationship. Dr Milch was asked if the new relationship caused him any concern. He responded: "Yes, it did. … When I interviewed (The Mother) in December, when I read her affidavit in January, it was very much… 'I recognised the… dangers of rushing into relationships, the dangers of love bombing. My focus is now', 'I'm not going to be, you know, dating or forming a relationship any time soon', and, then I read in the most recent affidavit that she has indeed formed a new relationship." He said it adds uncertainty given her past patterns of behaviour. 15. The mother told Dr Williams about her new relationship when she last saw her in April. Dr Milch saw the relationship with Dr Williams as being protective in that Dr Williams could report any of the mother's relationship changes to DCJ. (c) The non-accidental injury to May 1. The Secretary reminds the Court that there has not been an explanation for the blunt force trauma to May in January 2020, but it was caused by either the mother or The Ex-Boyfriend. 2. If the mother caused the injury there is a risk that she will be unable to safely parent a child when that child is in her full-time care. If The Ex-Boyfriend caused the injury the mother failed to prioritise the safety of her child over the relationship. The fact that she resumed her relationship with The Ex-Boyfriend, in breach of undertakings, indicates she may not prioritise her child over future relationships. (d) Help-seeking behaviours 1. Professor Newman reviewed medical records in May's proceedings, which included 35 hospital admissions between August 2018 and May 2021. Professor Newman commented that the mother had a history of somatic preoccupations with presentations of multiple conditions. She considered the possibility that the mother had a somatic symptom disorder, factitious disorder imposed on another or a personality disorder. 2. Professor Newman stated that mothers with borderline or complex trauma disorders are more likely to find parenting challenging and to have psychological difficulties in maintaining a secure attachment with their child. They also have specific difficulties in understanding the emotional needs of children and limitations in their capacity to prioritise the needs of children. She said the risk of psychological damage to an infant or child is exacerbated and increased if the parent also suffers from other psychological disturbances such as a somatisation condition or engages in abnormal illness behaviour focused on the child. 3. The mother has not had a child in her care since May was removed, but in February this year she observed bruising on May during a contact visit. The mother took photographs of the bruising. She attended a dispute resolution conference at the court with DCJ staff and Alice's independent legal representative, who had been May's independent legal representative, and she said nothing about the bruising. The next day she visited her GP and said her daughter reported being smacked by her father on the torso. The consequence was that May had to be interviewed. She then made no disclosures about being smacked. 4. This behaviour adversely impacts children due to the stress and disruption of investigations, hospital attendances and interviews. It is particularly problematic given the mother's propensity to lie, as a child is exposed to multiple interventions without cause and becomes a witness when allegations are investigated. Expert evidence 1. A clinical diagnosis could explain the mother's history and assist the Court in assessing whether treatment might change the mother's behaviour and reduce the likelihood of risk to Alice if restored to her mother. 2. The mother's medical records indicate she has received multiple diagnoses from different clinicians. Those records have been reviewed by experts who gave evidence in these proceedings. The Court heard from Dr Lynne Mason, Dr Peter Hoey, Dr Anthony Milch and Dr Karen Williams. The Court also relied on earlier Children's Clinic reports from Dr Louise Newman and Bronwen Elliott and a neuropsychology assessment by Dr Alex Knopman. Dr Peter Hoey 1. Dr Hooey is a consultant psychiatrist and member of the Royal Australian and New Zealand College of Psychiatrists. He provided reports to the Court dated 30 June 2022, 26 July 2022, 23 August 2022 and 29 May 2023 and gave evidence in the hearing. 2. Dr Hoey diagnosed the mother with Personality Disorder Trait Specified, with likely Somatic Symptom Disorder. He recommended DBT, schema therapy or psychoanalytic psychotherapy. Dr Hoey acknowledged previous diagnoses of Borderline Personality Disorder symptoms. 3. In evidence, Dr Hoey considered the mother's recent engagement with the Domestic Violence Trauma Clinic and concluded that the mother was demonstrating a degree of psychological maturing. He was surprised she had not disclosed being 10-weeks pregnant at the time of his assessment. Dr Hoey acknowledged the mother has displayed few symptoms of somatic symptom disorder recently and commented that it fluctuates over time. In his letter dated May 2023, Dr Hoey withdrew the diagnosis of somatic symptom disorder but in his oral evidence he appeared to confirm his prior diagnosis. 4. Dr Hoey said that if Alice was restored to her mother her somatic symptom disorder would manifest over days, weeks or months, not hours. He said the disorder is consistent with someone not telling the whole truth or lying, or seeking attention and care. Dr Lynne Mason 1. Dr Mason is a clinical psychologist and Children's Court Clinician. She provided a report to the court dated 16 December 2022 and gave evidence in the hearing. She noted the mother has a good understanding of Alice's practical needs and how to manage them appropriately but lacked insight into the impact of her complex relationships on Alice. 2. Dr Mason raised two primary concerns: the mother's lack of transparency with DCJ and her ongoing relationship issues. She acknowledged the mother's long-term engagement with the Domestic Violence Trauma Clinic was positive, stating it would reduce, but not eliminate risk. 3. Dr Mason was of the opinion the mother suffers from some form of personality disorder but indicated the psychiatrists might be better placed to make a diagnosis. She noted such a diagnosis does not necessarily preclude good parenting, but that an individual would require more support in their capacity as a parent. Dr Mason did not recommend restoration of Alice to the mother. Dr Anthony Milch 1. Dr Milch is a consultant child, family and adult psychiatrist. Dr Milch was engaged by the mother for the purposes of the proceedings. He provided a report to the Court dated 16 January 2024 and gave evidence in the hearing. 2. Dr Milch did not find that the mother was suffering from a personality disorder. Rather, Dr Milch considered the mother to be suffering from post-traumatic stress disorder or complex post-traumatic stress disorder. The mother reported to Dr Milch her patterns of dishonesty were an adaptive response to her past and relationship trauma, which were to 'keep herself safe' and 'keep the peace'. Dr Milch reported that the mother was capable of parenting Alice and was well supported to do so. He reported she understood the child protection concerns raised by DCJ and had the capacity to act to protect Alice. He recommended she maintain her current treatment plan and therapeutic team. The lack of a familial history of mental health issues or developmental problems was a consideration in his assessment. This was later proved false. Dr Karen Williams 1. Dr Williams is an adult consultant psychiatrist at a Domestic Violence Trauma Clinic, a hospital dedicated to treating survivors of domestic violence. She provided a letter to the court dated 24 May 2024 and gave evidence in the hearing. 2. Dr Williams stated that the mother fits the criteria of a PTSD diagnosis related to domestic violence. Dr Williams found no evidence of psychosis, personality disorder, affect/mood disorder or substance misuse. The mother was placed in the care of Dr Williams on 19 January 2023 and has since been treated by Dr Williams and clinic staff for her for post-traumatic stress disorder. Clinic discharge notes from February 2023 stated 'Principal diagnosis psychiatric reaction to severe stress and adjustment disorders and post-traumatic stress disorder'. After discharge from the inpatient program, the mother attended the clinic as an outpatient and was then re-admitted for three weeks over Christmas 2023. Dr Williams notes the mother's full and meaningful engagement in all aspects of the program. In her letter she stated there were no 'red flags' indicating the mother is a risk to herself or anyone else, and Dr Williams asserted she would have no hesitation in the mother having full-time care of Alice. Dr Williams confirmed their therapeutic relationship will continue into the future. Professor Louise Newman 1. Professor Newman is a University of Melbourne consultant psychiatrist and Children's Court Clinician. She provided the Court with a report dated 24 September 2021 relating to Alice's maternal sister, May. During May's proceedings, Professor Newman reviewed the mother's history of mental health presentations noting comments by prior treating professionals that the mother potentially had a 'maladaptive personality style' and possible somatisation, a previous diagnosis of Borderline Personality Disorder, and bipolar disorder. She did not assess the mother. Professor Newman recommended a comprehensive psychiatric examination to clarify diagnosis and the impact on the mother's parenting capacity. Dr Alex Knopman 1. The mother attended Dr Knopman on 23 May 2024 for a neuropsychological psychometric assessment, investigating Dr Milch's concerns of an acquired brain injury. The assessment revealed the mother has a low to average intelligence with no evidence of an acquired brain injury. Treatment and likely success 1. Dr Hoey and Dr Milch have diagnosed the mother with different conditions that both respond to DBT. Dr Hoey stated that personality disorders 'tend to be chronic, and, with optimal treatment, tend to show slow and partial amelioration over time'. Dr Hoey and Dr Milch agreed that personality disorders are not wholly responsive to medication but can be managed through therapies such as DBT. 2. Dr Milch noted that the treatments for borderline personality disorder and complex post-traumatic stress disorder had significant overlap, including schema therapy, CBT and DBT. When asked how long it would take for treatments to be effective, Dr Milch said at 147: 'It's very variable, and certainly, you can see changes very early on in individuals who are receptive to utilising DBT strategies. Sometimes it can take quite a long time. For a full DBT intervention, I would be typically talking about 12 to 18 months of sustained intervention to actually enable the individual to integrate the dialectical behaviour therapy strategies in order to assist them'. 1. Dr Milch explained that the idea of DBT: 'is to reduce reactive behaviour such as overdoses or substance use or maladaptive strategies and instead to develop a wise mind to enable the individual to think first, to regulate their emotions and then to effect in a more effective manner. The other aspect of the sustained therapy is more non-specific and that is, you know, the development of a safe base within a therapeutic alliance with a therapist, and that had not just occurred with Dr Williams and the team… but also based on my discussion with her therapist Deborah Sterrick which had also assisted greatly in that process.' 1. The mother first engaged in DBT in 2015. On the day of her fourth treatment the mother was admitted to hospital following an overdose. Upon her release she resumed DBT but was then admitted to hospital with an aneurysm. Dr Hoey recommend she undertake DBT in 2021. Psychologist Jeremy Paterson worked with the mother from October 2021 until December 2022 and provided a report indicating he had discussed cognitive behaviour therapy and DBT techniques to help the mother better manage her anxiety, stress and low mood. 2. There is no dispute that a sustained therapeutic relationship will increase the efficacy of the mother's treatment. Dr Williams confirmed that the mother continues to attend regular sessions and showed improvement via psychometric testing. 3. Dr Mason's concern lay with the mother's judgment and her inability to understand the potential risks of men upon herself and her children. Dr Mason said that whilst the current treatment undertaken by the mother provided 'real room for optimism' she was concerned about the efficacy over time given the mother's long history of engagement and then disengagement with services. Alice will be impacted if the mother repeats the pattern of disengagement. Dr Mason noted the mother's ongoing maladaptive issues and raised concerns her current therapy does not address these issues directly, so the child risk concerns remain. Weight to be given to views of experts 1. Dr Hoey, Dr Milch, Dr Williams and Dr Mason acknowledge the mother has an underlying condition but do not agree on the most likely diagnosis. It appears the treatment is similar, regardless of diagnosis. I note the circumstances in which each Doctor reviewed the mother. Dr Hoey first met the mother on 27 April 2021 when he was the duty admitting psychiatrist at Gordon Hospital. She attended several sessions with Dr Hoey before and after discharge then he provided monthly treatment until her transfer to a Domestic Violence Trauma Clinic in early 2023. Dr Milch met the mother on 18 December 2023 and assessed her for the purpose of preparing a report. Dr Mason is a psychologist who undertook a clinic assessment. Dr Williams is working in a specialist clinic for women who have experienced violence. 2. Dr Williams is the mother's treating psychiatrist and was provided with some of the material that has been tendered in the proceedings. She serves a population of female survivors of violence and has assessed and treated the mother in that context. The mother's propensity to lie is revealed through secondary sources of information, some of which were not available to Dr Williams. The mother's experiences with violence have informed her behaviour but may not be the sole cause of her behaviour. Improvement in her behaviour may require personalised treatment that addresses underlying personality traits. 3. After reviewing the independent legal representative's chronology and the Secretary's summary of health presentations by the mother, I accept Dr Hoey's diagnosis of personality disorder trait specified and likely somatic symptom disorder. Dr Williams has been engaged to treat the mother in her presentation as a survivor of violence, where the mother's admission relied on her identifying as a suitable patient for the program. Dr Milch's opinion relied on an assessment and partially relied on false information. Dr Mason reviewed all the evidence and supported Dr Hoey's opinion. 4. Dr Hoey recommended that therapy is more effective if one practitioner treats a patient while another independently reviews the progress of the therapy to assess the progress of that therapy. Independent oversight of her current treatment could be beneficial. 5. Dr Milch was asked about the mother's family history of mental illness (as previously outlined) and noted it confirmed there were vulnerability factors for Alice. The mother and the maternal grandfather gave evidence about the maternal history of mental health concerns and could not confirm or deny what was recorded in the mother's medical records. 6. Alice has been described by her mother and grandparents as a little girl with 'big emotions'. Both of Alice's parents have been diagnosed with ADHD/ADD and dyslexia. Dr Milch noted that ADHD has a strong genetic predisposition. This background increases the likelihood of Alice experiencing similar issues or some form of neurodiversity. 7. Dr Milch described the attachment process and the importance of a 'secure early base' for children. Dr Milch and the paternal grandfather both described Alice's strong bond to the paternal grandmother which provides her with stability and security. 8. Dr Mason identified that Alice's primary attachment is to the paternal grandmother, with Alice's parents as secondary attachments. Whilst the secondary attachments have value, any changes in primary attachment can cause a dramatic grief reaction and long-term consequences. Dr Milch identified that the first three years of a child's life were significant, and it was important to avoid major transitions in this time. 9. A stable base supports Alice to manage her emotions. Dr Milch identified that the mother's pattern of lying and omissions could impact Alice because it creates instability. Habitual lying from a parent creates further insecurity and instability for the child as their primary carer models poor behaviour. DCJ support during a transition 1. The Manager Casework expressed concern about the mother's ability to work openly and honestly with DCJ but indicated the Department would work with the mother to support a restoration if ordered by the Court. An internal psychologist would develop a transition plan which would be supported by a funded restoration service. 2. The Manager Casework identified a concern that the mother had not done specific therapies to address her underlying condition but recognised that the mother has not breached interim undertakings during these proceedings. The positions of the parties The Secretary 1. The Secretary provided submissions to the Court dated 8 July 2024, asking the Court find there was no realistic possibility of Alice being restored to her mother's care. The Secretary detailed the history of May's proceedings and the background to Alice's assumption into care. 2. The Secretary argued that the restoration of Alice to the mother would present an 'unacceptable risk' to her safety, welfare and wellbeing. They submitted that despite the mother's recent engagement with Dr Williams, the mother's issues relating to the removal of May and now Alice are 'extensive' and 'longstanding'. The mother has had a lengthy history of mental health issues but did not remain engaged with a single psychiatrist until engaging with a Domestic Violence Trauma Clinic. 3. The Secretary is concerned that the mother's relationships with abusive men place her children at risk. The Secretary reminds the Court that there has been no finding as to the cause of May's injury such that further injury is an 'unaddressed risk'. The Secretary submits this pattern of abusive relationships is longstanding and there is a heightened risk because the mother is not honest about these relationships. 4. The Secretary asked the Court to consider the impact of the mother's lies on the veracity of the evidence that is before the Court and her ability to work with the Department in a transition plan to facilitate restoration. 5. The Secretary raised concerns over the mother's extensive history of mental health diagnoses, admissions to hospital and revolving-door-engagement with services. DBT has been recommended as appropriate for the mother, which she has engaged with on and off since 2015 with limited change in behaviour. The Secretary reiterated Dr Milch's evidence that a successful DBT intervention takes 12-18 months of sustained therapy. 6. The Secretary's submissions expressed concern over the number of times the mother presented May for health assessments, which is characterised as a pattern of persistent help-seeking behaviour and somatic preoccupations. 7. The Secretary asks the Court to accept the assessment that there is no realistic possibility of the restoration of Alice to her mother within a reasonable period due to these concerns, the stability of Alice in her current placement, and the ability of her paternal grandparents to provide for her and facilitate contact. 8. The Secretary seeks a guardianship order to the paternal grandparents, who will also facilitate contact arrangements. The Secretary submits that the Court should be confident in the paternal grandparents' ability to support Alice's relationship with both parents. The Secretary does not support Contact orders, as an order may inhibit flexibility in future arrangements and increase the risk of future litigation to resolve contact disputes. The mother 1. The mother gave evidence that her engagement a Domestic Violence Trauma Clinic has given her insights that have already changed the way she manages her relationships. She presents as engaging, responsive and likeable. She expressed her remorse for breaching undertakings, leading to the removal of May. She did not take responsibility for the choices she has made in relationships or address the way she has behaved in those relationships. She did not acknowledge her compulsive dishonesty but accepted she lied on occasion. 2. In submissions, the mother said May was a small and premature baby who had specific needs which alarmed the mother due to her own trauma history. She asks the Court to find there was no evidence that May's symptoms had been fabricated. She endorsed Professor Newman's statement that the medical system may have let down the mother by not giving her a more consistent and contained management plan for a vulnerable infant. She referred to Dr Williams' evidence that 'it is not uncommon for victims of abuse to present more frequently, particularly mothers, to their doctors, because they are worried that something bad will happen to their child.' 3. The mother submitted that her consistent and ongoing engagement with therapy is a protective factor. 4. In her submissions the mother addressed her lying as omissions or deliberate non-disclosures, such as the very early nature of her pregnancy with Alice. The mother expressed remorse and shame about not disclosing her new relationships to DCJ. The mother agreed with Dr Milch that she lies on occasion and is under treatment for other maladaptive strategies. 5. The mother endorsed Dr Milch's evidence regarding attachment, stating that Alice has a strong secondary attachment to her mother and their consistent weekly contact sets a 'base' for a 'smooth transition'. The ILR 1. The Independent Legal Representative cautiously recommends Alice be restored to the mother, through the allocation of parental responsibility to the Minister for 12 months of all but contact and residence which is allocated to the paternal grandparents. Thereafter, shared parental responsibility for 6 months between the mother and paternal grandparents with supervision for 12 months. After 6 months all aspects of parental responsibility would be allocated to the mother, to the exclusion of the father. These orders would be supported by undertakings and a contact order. 2. The ILR acknowledges the risks being: 1. psychological impact on Alice not remaining in the care of the paternal grandparents, noting that the paternal grandmother is Alice's primary attachment figure; 2. the impact on Alice of any negative behaviours such as excessive help seeking behaviour and exposure to unhealthy and harmful relationships with men by the mother if her historical pattern of behaviour emerges; 3. the management of contact between Alice and the father, and Alice and the paternal grandparents; 4. the management of any conflict between the mother and the maternal family. 1. The ILR submits that those risks can be mitigated through: 1. the mother's continued engagement with Dr Williams and a Domestic Violence Trauma Clinic; 2. engagement with a new psychologist if recommended by Dr Williams; 3. a careful and slow transition with psychological input; 4. oversight and support by DCJ, the mother, the father, and the paternal grandparents; 5. appropriate orders for the allocation of parental responsibility; and 6. undertakings regarding therapy, use of substances, not engaging in inappropriate relationships, time limits on introduction to partners, not exposing Alice to domestic violence, working with a restoration service, identifying one GP to oversee Alice's care, working openly and honestly with DCJ and the paternal grandparents, not denigrating the paternal family and complying with contact arrangements. 1. The ILR identified the mother's significant trauma history, her engagement with therapeutic work and parenting courses, abstinence from drugs, positive contact with Alice, and the end of her relationship with the father. 2. The ILR alternatively submitted that if the Court did not find in favour of the mother, guardianship to the paternal grandparents with weekly contact between the mother and Alice is supported. The Paternal Grandparents 1. The paternal grandparents represented themselves during the proceedings. They gave oral evidence and provided submissions to the Court dated 9 July 2024. They support the Secretary's proposal that they become Alice's guardians. If the Court ordered restoration, they would work with the mother to support Alice but seek strict orders to protect Alice and her welfare. 2. The paternal grandparents have loved and supported Alice since she was born. They have had to manage relationships with both of Alice's parents as they want Alice to have significant quality time with her parents. 3. The paternal grandparents remain concerned that Alice may be adversely impacted by the mother's behaviour, which they have previously observed. They have seen the mother's behaviour with their son, where they observed her to be verbally and psychologically abusive. They believe the mother has lied under oath and draw attention to other instances of lying. They do not trust the mother to keep Alice safe. They offer Alice a stable home with carers who have proven they can manage her big feelings and future needs. 4. They are not opposed to the parents having quality time with Alice with potential future sleepovers and holiday time. They will ensure Alice has contact with her mother and father and will facilitate contact between Alice, May and Lily when contact is supported by May and Lily's respective parents. Contact 1. At the conclusion of the hearing the Court removed the supervision requirement for contact between Alice and her mother and father. 2. The paternal grandparents are committed to facilitating and supporting contact between Alice and her parents. Earlier in these proceedings they expressed concern about Alice's heightened behaviour after contact with her mother and noted the mother's negative attitude at changeover. In recent months that behaviour has improved. 3. The father has a vexed relationship with his parents as he does not appreciate their boundaries and they will not countenance his disrespect. At the time of the hearing there had been a breakdown in physical contact with Alice, although the father and Alice frequently spoke over Facetime. 4. Alice should have contact with May, her maternal half-sister, and Lily, her paternal half-sister. The mother and maternal grandmother have actively undermined the relationship between the children. The mother made allegations of bruising to Lily in a communications book shared between the father and Lily's mother, and the maternal grandmother shared court documents from these proceedings with Lily's maternal grandmother. 5. The mother has promised to facilitate contact between the father and the paternal grandparents if Alice is restored to her care. She has provided the court with a transition plan that endorses the paternal grandmother's suggestion of staying overnight with the mother to help Alice settle during the early days of the transition. 6. Dr Mason warned the Court of a concern that contact would not occur if Alice were restored to her mother, and said she was not sure if the mother could hold back from 'expressing or giving evidence of the negative view that the family hold towards the paternal grandparents'. Determination 1. The preamble of the Children and Young Persons (Care and Protection) Act 1998 is 'An Act to provide for the care and protection of, and the provision of services to, children young persons; and for other purposes.' The Act regulates the circumstances in which the government is to intervene in the life of a child and provides the Children's Court with the authority to determine applications to vary legal orders relating to the care of a child. 2. The paramountcy principle applies to administrative and legal actions and decisions. Section 9(1) provides that 'this Act is to be administered under the principle that, in any action or decisions concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount'. All other principles are subordinate. 3. The permanent placement principles are set out in s.10A which provides: (1) In this Act – permanent placement means a long-term placement following the removal of a child or young person from the care of a parent or parents pursuant to this Act that provides a safe, nurturing, stable and secure environment for the child or young person. Subject to the objects in section 8 and the principles in section 9, a child or young person who needs permanent placement is to be placed in accordance with the permanent placement principles. The permanent placement principles are as follows – (a) if it is practicable and in the best interests of a child or young person, the first preference for permanent placement of the child or young person is for the child of young person to be restored to the care of his or her parent or parents so as to preserve the family relationship. (b) if it is not practicable or in the best interests of the child or young person to be placed in accordance with paragraph (a), the second preference for permanent placement of the child or young person is with a relative, kin or other suitable person in accordance with a guardianship order. 1. Section 83 ensures the Secretary provides the Court with evidence that assists the Court in applying the permanent placement principles. At subsection (1), the Secretary is tasked with assessing whether there is a realistic possibility of the child or young person being restored to their parents having regard to the same criteria as must be applied by the court at subsection (7). 2. Subsection (5) provides for a timetable within which the Children's Court is to decide whether to accept the Secretary's assessment. Section 83(7) provides that the Children's Court must not make a final care order unless it expressly finds – (a) that permanency planning for the child or young person has been appropriately and adequately addressed, and (b) that prior to approving a permanency plan involving restoration there is a realistic possibility of restoration within a reasonable period, having regard to – (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. In assessing whether there is a realistic possibility of the restoration of a child to their parent, the test of 'unacceptable risk to the child' applies. In Bloom at paragraph 134 and 135 then President of the Children's Court, Johnstone DCJ stated at 134: 'The Court must examine what the future might hold for the child, and if a risk exists, assess the seriousness of the risk and consider whether that risk might be satisfactorily managed or otherwise ameliorated, for example, the nature and extent of parental contact, including any need for supervision: from a paper by Justice Stewart Austin delivered at the 2015 Hunter Valley Family Law Conference.' At 135: 'Thus, one needs to examine the likelihood of the feared outcome occurring, and secondly, the severity of any possible consequences. The risk of detriment must be balanced against the possibility of benefit to the child.' At 159: 'Only if there is no realistic possibility of restoration will alternative placements be required to be considered as part of the permanency planning, in the welfare or placement of proceedings, in a Care Plan that the Secretary is required to prepare pursuant to s 78 of the Care Act.' He then provides a useful summary of how a Court is to determine whether there is a realistic possibility of restoration. 1. When making final care orders the Court considers the circumstances of the child or young person and the evidence the parents are likely to be able to satisfactorily address the issues that have led to the removal of the child. Assessing whether there is a realistic possibility of restoration within a reasonable period requires the court to review the progress the parent has made towards addressing those issues, then assess whether the child would be exposed to an unacceptable risk of harm if restored to the care of their parent. If the risk is not unacceptable, or if the risk can be mitigated with appropriate orders, the child is likely to be restored. 2. These proceedings require greater consideration of the weight to be accorded different principles in the Act, and the tensions between them. 3. Definitions of 'safety', 'welfare' and 'well-being' from the Oxford Dictionary follow. 1. Safety is defined as the state of being protected from or guarded against hurt or injury; the freedom from danger. 2. Welfare is defined as the state or condition or being or doing well, encompassing the prosperity, success, health, happiness and fortunes of a person. 3. Well-being is defined as the state of being comfortable, healthy, happy or prosperous, with note to physical, psychological and moral welfare. 1. In any decision the Court must give primacy to those objectives. The permanent placement principles provide for a child to be restored to the care of their parents only if it is practicable and in the best interests of the child or young person. Legislation requires the Court to determine whether there is a realistic possibility of a child being restored to a parent within a reasonable period and prevents the Court from approving a restoration plan unless the Court has had regard to the circumstances of the child and the evidence, if any, that the child'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. Case law dictates that a child will not be restored to their parents if the restoration places the child at an unacceptable risk of harm. The Court is to consider the likelihood of harm and the severity of any consequences when assessing the gravity of the risk. This framework is particularly useful when applied to allegations of physical, sexual or psychological abuse when forecasting future risk. 3. It is unlikely that Alice would be placed at an unacceptable risk of harm if restored to her mother. Although there are risks, she may not experience physical, sexual, or psychological harm to unacceptable levels either with her mother or through a staged transition to her mother, but she will be harmed. 4. This matter requires an application of the permanent placement principles and consideration of whether restoration to the mother is in the best interests of Alice. 5. Assessing the best interests of a child requires the evaluation of the specific needs and circumstances of a child and consideration of which options provide for the best care for the child, in the short-term and the long-term. A decision that supports the safety, welfare and well-being of a child should usually be in the best interests of a child, but that safety, welfare and well-being are defined as current states. 'Best interests' may relate to the current circumstances of a child but also incorporates the future circumstances of a child. A child may experience risks to their safety, welfare, and well-being in the short term in order to achieve their best interests in the long term. The legislation prioritises the former. 6. It may be in Alice's best long-term interests to be raised by her mother, if those risks can be mitigated through a staged and personalised transition, supported by undertakings and supervision. However, Alice's safety, welfare and well-being would be compromised by a decision that she be restored to her mother such that a restoration would not be in Alice's best interest in the short-term. 7. The mother loves Alice and has attended a Domestic Violence Trauma Clinic to address a key aspect of the behaviour that is a risk to her daughters. Her current therapeutic relationships provide stability and structure that reduce the mother's likelihood of repeating maladaptive patterns. 8. However, the mother has a personality condition that influences how she engages with the world. Treatment can increase her insight into the condition, and it can mitigate risks posed by the behaviours that have characterised her adult life, but it cannot eliminate the condition. 9. The past two years show the mother has made substantial gains in making better choices, but the patterns remain. The following comments are not criticisms or judgments on a life she is free to lead so much as a recognition of the risks that life poses to her daughter. The mother has been welcomed into a community of female victim survivors and receives attention and sympathy as a survivor. She perceives her failings to be her choices of men but has failed to acknowledge her contribution to conflict in relationships through lying and arguing. She has been on dating sites during these proceedings, despite a stated intention to avoid relationships, and fell pregnant during a brief liaison last year. In March she met The New Partner, and despite giving evidence that it was not serious, their social media profiles indicate an early public expression of commitment and affection. She has lied to the experts, to caseworkers, in affidavits and in Court. 10. Aspects of her personality disorder became apparent throughout evidence and discussions during the proceedings. The mother was asked about future contact with Alice and became indignant when learning that the father had daily Facetime calls, concerned it was unfair. She was reminded she had chosen not to contact Alice by Facetime during a period Alice was away from Sydney. 11. She is understandably hurt and upset by these proceedings but takes no responsibility for her choices, maintaining that Alice comes first. The mother and father had the option to remain living with the paternal grandparents, either separately or together, to maintain their connection with Alice, but the mother left after a short period. It was undoubtedly a difficult time, with few good options, but Alice needed her parents to have the maturity, insight and emotional regulation skills to put her needs before their own. 12. Submissions are directed towards risks that her patterns of behaviour may return, when in fact the mother is doing exactly what she has always done in help-seeking, lying, and entering intense short-term relationships that are not what they first appear. A brief appearance of an articulate, warm, caring mother in the witness box does not compensate for a lengthy history of dysfunction and current circumstances that mimic aspects of her previous behaviours. 13. The suggestions by the independent legal representative sensibly outline what would be required to mitigate the risk. The mother's history of lying indicates that the Court can impose orders for contact, supervision and undertakings to give an illusion of oversight, but the Court cannot control her conduct. The mother will do what she wants, and she will lie to conceal it. 14. Despite the mother's commitment to therapy, the nature of her condition means she may not be able to satisfactorily address the issues that led to Alice's removal. She must display accountability and transparency with caseworkers, clinicians, family and friends to show that treatment has effectively reduced maladaptive patterns of behaviour that cause risk to children. It will take time and during that time there will need to be evidence of changes in patterns of relationships. 15. The Secretary filed a care plan on 8 June 2023 proposing that parental responsibility be allocated to the paternal grandparents, asking the Court to accept there is no realistic possibility of Alice being restored to her mother or father. 16. There is no realistic possibility of the restoration of Alice to her mother or father within a reasonable period. It is not practicable or in Alice's best interests to be restored to her mother. Restoration would not support Alice's safety, welfare and well-being. 17. The paternal grandparents will provide a safe, nurturing, stable and secure environment for Alice and will continue to do so into the future. They consent to guardianship and have been assessed as suitable guardians. Pursuant to s.79A(2) of the Children and Young Persons (Care and Protection) Act 1998, all aspects of parental responsibility for Alice are allocated by a guardianship order to the paternal grandparents, The Paternal Grandmother and the Paternal Grandfather, until the child reaches the age of 18 years. 18. A contact order is not required to support a relationship between Alice and the mother or father. The least intrusive intervention is for contact to be maintained by the guardians. Amendments 26 August 2024 - Amended for formatting. 11 September 2024 - Amended typological 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: 11 September 2024