Children's Court New South Wales Medium Neutral Citation: Department of Communities and Justice (DCJ) and Ivy [2025] NSWChC 1 Date of orders: 10 January 2025 Decision date: 10 January 2025 Jurisdiction: Care and protection Before: Children's Magistrate Hayes Decision: 1. The Court makes an order of PR solely to the Minister till the child turns 18 years. 2. The Court approves the minute of care order as provided by the ILR, including three s 82 reports. Catchwords: CHILDREN — CARE — nature of the Court's jurisdiction — Section 83(5) does not restrict the Court in matters it may consider — not possible to determine a realistic possibility of restoration on the balance of probabilities — unacceptable risk caters for all considerations — The proper test to be applied is not that of "unacceptable risk to the child". Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW) Cases Cited: Bell-Collins Children v Secretary, Department of Family and Community Services (No. 2) [2016] NSWSC 853. Briginshaw v Briginshaw [1938] HCA 34. BW v Secretary, Department of Communities and Justice & Ors [2024] NSWSC 1354. Carmichael Rail Network Pty Ltd v BBC Chartering Carriers GmbH & Co KG [2024] HCA 4. CDJ v VAJ CDJ v VAJ [1998] HCA 67. Department of Communities and Justice (DCJ) and Bloom [2021] NSWChC 2. Department of Communities and Justice (DCJ) and Evie and Grace [2023] NSWChC 1. D v C; Re B (No 2) [2018] NSWCA 310. Director of Public Prosecutions (NSW) v Van Gestel [2022] NSWCCA 171. Fitzwater v Fitzwater (2019) 60 Fam LR 212. Isles & Nelissen [2022] FedCFamC1A 97. M v M HCA [1988] 68. NU v NSW Secretary of Family and Community Services [2017] NSWCA 221. Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282. Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26. Re Alistair [2006] NSWSC 411. Re B (Children), [2008] UKHL 35. Re Benji and Perry [2018] NSWSC 1750. R v Kearney; Ex parte Jurlama (1984) HCA 14. Re Frances and Benny [2005] NSWSC 1207. Re Paul (No 2) [2024] NSWSC 106. Re Tanya [2016] NSWSC 794. Sue v Hill [1999] HCA 30; (1999) 199 CLR 462. Category: Principal judgment Parties: The Secretary, Department of Communities and Justice The Mother The Father The Child Representation: Solicitors/Counsel: Ms van Niekerk (Secretary) Ms Lam (Mother) Ms Flynn (Father) Mr Leishman/Ms Hale (Independent Legal Representative for the child) File Number(s): 2023/304373 Publication restriction: Pseudonyms have been used to protect the identity of the child, including geographical generalisations. There have been further slight clarifications. JUDGMENT 1. This matter requires the Court to determine what order is in Ivy's (the child's) best interests: see s79(3) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care Act). 2. Determining best interests is arrived at by considering all probative evidence and applying the Care Act and Common Law - to the facts, circumstances, and possibilities, past, present and future. 3. Notably, in this matter the Court is to decide whether to accept the Secretary's assessment that there is no realistic possibility of restoration of the child to the mother within a reasonable period: see s83(5) of the Care Act. 4. Section 83(5) does not restrict the Court in matters it may consider, nor is the Court restricted by findings on the balance of probability. 5. In considering restoration the Court is required to determine whether the restoration of the child would expose the child to an unacceptable risk of harm. THE PARTIES/NON-PARTIES 1. Ivy (child) is aged 11. 2. Celia is the mother (mother). 3. Gordon is the father (father). 4. The Secretary is the applicant for a care order under s 61 of the Care Act. 5. Bradley is the mother's partner and psychological father figure of Ivy. 6. Ivy has 9 siblings. Five siblings reside in the home of the mother and the mother's partner. 7. Baby L is the biological child of Bradley (the mother's partner). Baby L sadly passed away at 20 months. PROCEDURAL BACKGROUND 1. On 25 September 2023 the Secretary filed an application initiating care proceedings pursuant to s 61 of the Care Act seeking a care order for the removal of the child. 2. For applications made on or from 15 November 2023, subject to the "paramountcy principle", functions under the Act must be in accordance with the principle of active efforts. 3. On 26 September 2023 the Court made an interim order allocating parental responsibility (PR) for the child to the Minister until further order. 4. On 10 October 2023 the Secretary filed a summary of proposed plan (SOPP) indicating that the Department of Communities and Justice (DCJ) are presently of the view that restoration to the mother is realistic. 5. On 18 October 2023 the Court made a finding that the child was in need of care and protection pursuant to s 71(1) (a), (d) and (e) of the Care Act. 6. On 4 April 2024 the Secretary filed a Care Plan proposing the child be restored to the mother's care. 7. On 3 September 2024 the Secretary filed an amended Care Plan assessing that there was no realistic possibility of the child being restored to her parents. The Care Plan proposed an order of parental responsibility (PR) solely to the Minister till the child turns 18 years. 8. The matter was set down for hearing on 25 and 26 September 2024. 9. On 22 November 2024 the Secretary filed a further amended Care Plan again assessing that there was no realistic possibility of the child being restored to her parents. 10. The Care Plan now proposes a long-term placement at an Intensive Therapeutic Care Home (ITCH). The child commenced living there on 14 November 2024. The Home is local to the area where the mother, the mother's partner, and siblings reside. 11. The Court accepted the assessment of the Secretary of no realistic possibility of restoration of the child to the father. 12. The Children's Court, with regards to the mother, is to decide whether to accept the assessment of the Secretary: refer s83 (5). 13. If the Children's Court does not accept the Secretary's assessment of the mother, it may direct the Secretary to prepare a different permanency plan: refer s83 (6). NATURE OF CARE PROCEEDINGS The nature of care proceedings - beneficial legislation, not disputes inter partes, not adversarial by Court or parties, Court may adduce evidence, the Evidence Act does not apply. 1. The Care Act is administered under the s 9 principles. In any action or decision, the safety, welfare and well-being of the child/young person (YP) is paramount. 2. The Care jurisdiction is an exemplar of protective proceedings. The Care Act may be described as beneficial legislation. 3. The High Court observed that beneficial legislation is to be interpreted in such a way as to give effect to its purpose. 4. The High Court, in R v Kearney; Ex parte Jurlama (1984) HCA 14, per Gibbs CJ held: If the section is ambiguous it should in my opinion be given a broad construction, so as to effectuate the beneficial purpose which it is intended to serve. 1. In Commissioner of Taxation v Ryan (2000) 42 ATR 694, 715-716 Kirby J said: In this last decade, there have been numerous cases in which members of this court … have insisted that the proper approach to the construction of federal legislation is that which advances and does not frustrate or defeat the ascertained purpose of the legislature … Even to the point of reading words into the legislation in proper cases, to carry into effect an apparent legislative purpose … This court should not return to the dark days of literalism. 1. Care proceedings are not disputes inter partes (of the parties). 2. The nature of the Court's jurisdiction in Care proceedings is very different from ordinary inter partes litigation. 3. The High Court in M. v M. [1988] HCA 68 observed: Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds (12); McKee v McKee (13). In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The 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 child. 1. Irrespective of the position of the parties the Court has its own independent legislative obligations under the Care Act. 2. The Court's obligations include to: 1. have regard to s 9 and the paramount consideration of the safety, well-being, and welfare of the child. See BW v Secretary, Department of Communities and Justice & Ors [2024] NSWSC 1354 at [42] (BW v DCJ). 2. appoint an ILR and/or DLR: refer s 99 of the Care Act. 3. not make a care order unless the Court itself is satisfied that the child/YP is in need of care and protection: refer s 71(1) of the Care Act. 4. be satisfied as to active efforts when relevant: refer s 9A of the Care Act. 5. …inform itself on any matter in whatever way it considers appropriate to ensure that it has before it all the relevant information on which to base its decision: See BW v DCJ at [38]. 6. decide whether to accept the Secretary's assessment of whether there is a realistic possibility of restoration within a reasonable period: refer s 83(5) of the Care Act. 7. not make a final care order unless it expressly finds that permanency planning for the child/YP has been appropriately and adequately addressed: refer s 83 (7) of the Care Act. 8. not make a final care order for an Aboriginal or Torres Strait Islander child/YP unless it expressly finds that the plan complies with the permanent placement principles, the Aboriginal and Torres Strait Islander Children and Young Persons Principle, the placement principles for Aboriginal and Torres Strait Islander children and young persons set out in section 13, and a cultural plan that sets out matters per s 83 A (3)( b) and (c): refer s 83A (3) of the Care Act. 9. if appropriate, make a care order different from, in addition to, or in substitution for, the order for which the application was made, provided all prerequisites to the making of the order are satisfied: refer s 67 of the Care Act. 1. Care proceedings are not accusatorial; and are not adversarial. Proceedings relating to the welfare of children, or any other person in need of protection, are not adversarial in the sense encountered in ordinary civil litigation but, rather, are attended by a strong, special public interest element: Re Paul (No 2) [2024] NSWSC 106 at [13]. 1. Care proceedings are not to be conducted in an adversarial manner: refer s 93(1). s 93(1) is not merely a descriptive provision, but one which imposes obligations. It may be directed to the presiding judicial officer, or to the parties, or to both: D v C; Re B (No 2) 2018 NSWCA 310 at [40]. …the purpose of providing that the proceedings are not to be conducted in an adversarial manner is to give effect to the principle that it is the child's safety, welfare and wellbeing which are of paramount importance, as provided in s 9(1): D v C; Re B (No 2) 2018 NSWCA 310 at [41]. …adversarial proceedings are commonly contrasted with inquisitorial proceedings. As commonly understood, the point of contrast is that an adversarial proceeding is controlled by the parties, with limited input from the court, whilst an inquisitorial proceeding reverses the element of primary control. Whether or not that meaning is to be found in s 93(1), it is reflected in s 107(1). The purpose of permitting a judicial officer to "examine and cross-examine a witness" is to allow the officer to be more involved in the adducing of evidence than is the case in an adversary trial. In the absence of argument to the contrary as to the scope of s 107(1), it may be assumed that this power extends to the judicial officer calling the witness in order to allow questioning: D v C; Re B (No 2) 2018 NSWCA 310 at [42]. Under s 107(1) of the Care Act, a children's magistrate may question a witness. 1. Care proceedings sit, varyingly and flexibly, on the continuum between adversarial and inquisitorial. Usually closer to inquisitorial. Some matters, such as non-accidental injury allegations are more towards adversarial. 2. Sometimes, understandably, it is a practical reality that a parent is combative on the removal of a child. Sometimes caseworkers have a fixed view. This is for the Court to manage so that the focus is on the finish - not the fight. 3. The Court is not bound by the rules of evidence, unless the Court otherwise determines: see s93 (3) of the Care Act. Thus, whilst the evidence needs to be relevant there is generally no prohibition on hearsay or opinion. 4. Sections such as s 93(3) of the Care Act do not release the Children's Court from the obligation to apply 'rules of law' in arriving at its decisions: see Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 (at 29) per Gleeson CJ and Handley JA. 5. Such provisions "are intended to be facultative, not restrictive". They "do not exonerate the court from the application of substantive rules of law and are consistent with, and indeed require the application of, the rules of procedural fairness": Sue v Hill [1999] HCA 30; (1999) 199 CLR 462 (at [42]) per Gleeson CJ, Gummow and Hayne JJ. 6. Nevertheless, the Children's Court is required "to draw its conclusions from material that is satisfactory, in the probative sense, in order that it act lawfully and in order that conclusions reached by it are not seen to be capricious, arbitrary or without foundational material": Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 (at [2]) per Allsop P (as his Honour then was). 7. To clarify the Children Court's character in Care proceedings - the Court may: * call witnesses: D v C; Re B (No 2) 2018 NSWCA 310 at [42]. * cross examine witnesses: see s 107(1) of the Care Act. * adduce evidence to determine facts and circumstances: D v C; Re B (No 2) 2018 NSWCA 310 at [42]. * appoint an ILR or DLR whose role includes ensuring that all relevant evidence is adduced and, where necessary, tested: see s 99 D (b) (vi) of the Care Act. * inform itself on any matter in whatever way it considers appropriate to ensure that it has before it all the relevant information on which to base its decision: BW v DCJ at [38]. * adjourn a matter if the Court does not have sufficient material before it - making it clear what the Court's concerns are: Re Frances and Benny [2005] NSWSC 1207 at [20]. 1. The Court must observe the appropriate rules of natural justice, afford the parties procedural fairness and respect the right of a party to be heard. Non-compliance creates an adversarial court room environment that hinders the co-operation of the parties that the Court relies upon to accomplish its own statutory obligations. 2. However, the Court cannot enter the arena and advocate a case as if the Court has already formed a view: see BW v DCJ. ONUS OF PROOF 1. The paramount consideration in Care proceedings under section 9 is the safety, welfare and well-being of the child/YP. 2. Ordinarily, in civil proceedings there is the concept of an onus of proof - the elements of the cause of action asserted - that rests with those who assert. 3. In Re B (Children), [2008] UKHL 35 Lord Hoffman said: If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. 1. In Isles & Nelissen [2022] FedCFamC1A 97 at [50], per Fitzwater v Fitzwater (2019) 60 Fam LR 212, it was observed that unlike in other civil litigation, no party bears an onus of proving the factual elements of a common law, equitable, or statutory cause of action to justify an entitlement to remedy. Rather, each party adduces evidence and propounds a suite of orders which he or she contends meets the child's best interests - which gives the proceedings a different character. 2. There is a distinction between the legal onus of proof and the evidentiary onus of proof. 3. An evidentiary onus may pass to a party to bring forward evidence to rebut any inferences that may be drawn. If a party does not do so, that party runs the strategic risk that the court may choose to draw the inference argued. STANDARD OF PROOF 1. In M v M HCA [1988] the High Court distinguishes between proof of facts decided on the balance of probabilities; and possibilities. 2. Regarding possibilities the High Court considered both existing possibilities (had taken place) and the prediction of future possibilities (might take place). 3. Consequently, when assessing unacceptable risk, a court is entitled to consider established facts and circumstances - and any other matter (such as possibilities) that the Court finds 'probative' or 'convincing' - even if it is not satisfied on the balance of probabilities. 4. More recently, in Isles & Nelissen at [47] it was said: that the civil standard of proof is not the measure by which an unacceptable risk of harm is to be assessed. The civil standard of proof is reserved for the proof of facts, the positive or negative findings in relation to which could well feed into any alternate finding about the existence of an unacceptable risk of harm. 1. The Full Court accepted the proposition that in assessing whether there is a risk that something may happen, "possibilities" are a legitimate basis for finding that there is such a risk if there is a proper basis for those "possibilities". 2. In Re Alistair [2006] NSWSC 411 the Supreme Court, referring to M v M, correctly observed that the standard of proof was not on the balance of probabilities when determining unacceptable risk: It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw v Briginshaw [1938] HCA 34, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child. 1. Less than three months after Re Alistair, Section 93 (4) and (5) was introduced into the Care Act. 2. The rational identified in the second reading speech was to avoid unnecessary complicated arguments about evidentiary matters. This was despite the Court having power to determine the rules of evidence, including determining the standard of proof in Care proceedings: see s 93 (3) of the Care Act. 3. Section 93 (4) and (5) of the Care Act referenced the standard of proof on the balance of probabilities. 4. Section 93 states: (4) In any proceedings before the Children's Court, the standard of proof is proof on the balance of probabilities. (5) Without limiting subsection (4), any requirement under this Act that the Children's Court be satisfied as to a particular matter is a requirement that the Children's Court be satisfied on the balance of probabilities. 1. What followed was an application of the standard of proof in Care proceedings inconsistent with the High Court decision in M v M. 2. For example, in the often-cited cases of Bell-Collins Children v Secretary, Department of Family and Community Services (No. 2) [2016] NSWSC 853 at [26] and Re Tanya [2016] NSWSC 794 at [22] the Court stated: Whether there is an unacceptable risk of harm to the child may often have to be assessed from an accumulation of factors proved according to the relevant civil standard of proof. 1. In Department of Communities and Justice (DCJ) and Bloom [2021] NSWChC 2 the Court referred to s 93 and the balance of probabilities and, after, stated at [299]: I am satisfied, to the requisite standard, that restoration to the mother would pose an unacceptable risk of harm to the child. 1. Yet the High Court had made it clear that the civil standard of proof is not the measure by which an unacceptable risk of harm is to be assessed. 2. Nor ought it be the standard for determining the best interests of children. 3. In CDJ v VAJ [1998] HCA 67 at [150] the High Court said predictions and assumptions about the future: are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. 1. The High Court further said at [151]: Best interests are values, not facts. They involve a discretionary judgment. 1. In a different context but in a similar vein, the Court of Criminal Appeal in Director of Public Prosecutions (NSW) v Van Gestel [2022] NSWCCA 171 at [17] (a case Magistrate Hopgood referred me to in a different matter) said about a condition that required the Court to form an opinion or reach a state of satisfaction that it is an: evaluative judgment of a future matter and not a fact to be proved, proof on the balance of probabilities is not the relevant standard. 1. For future facts see: the High Court in Carmichael Rail Network Pty Ltd v BBC Chartering Carriers GmbH & Co KG [2024] HCA 4 at [25]. 2. It is difficult to reconcile the s 9 principles, the child's best interest and the application of the unacceptable risk of harm test with s 93 (4) and (5) that dictates determination on the balance of probabilities. 3. If the court cannot give effect to both section 9 and s 93 because of an operational inconsistency, as a remedial Act, if any ambiguity exists it should be construed beneficially: see paragraph 27. 4. The court prefers an interpretation that promotes the underlying purpose of the legislation. Section 9 prevails. 5. In Isles & Nelissen, referring to risks, it was said: all prospective events, are capable of classification in only one of three mutually exclusive categories: possibilities, probabilities, or certainties. Once it is accepted courts should (and do) react to dangers in the form of risks of harm which may merely be possibilities, it is an oxymoron to expect such possibilities to then be forensically proven on the balance of probabilities according to the civil standard of proof. By definition, possibilities are not, and could never be, probabilities. 6. S 83(5) obliges the Children's Court to decide whether to accept the Secretary's assessment of whether or not there is a realistic possibility of restoration within a reasonable period – s 83(8A) refers to 24 months. 7. A realistic possibility is something less than a probability. 8. Unless the Court somehow reaches a level of certainty or probability of a future happening then it is not possible to determine a realistic possibility of restoration on the balance of probabilities. Yet, section 93(5) states any requirement under this Act that the Children's Court be satisfied as to a particular matter is a requirement that the Children's Court be satisfied on the balance of probabilities. 9. The standard the Court will apply is what the Court finds probative or convincing or reaches a state of satisfaction of. 10. The Court will consider, accumulatively, all matters of risk or benefit that the Court finds probative or convincing or reaches a state of satisfaction - both existing and future prediction. WITNESSES/EVIDENCE 1. A Court book was prepared, tabulated, and tendered - containing all filed material. 2. Further documentary evidence was admitted during the proceedings. 3. Consistent with the nature of Care proceedings, during the hearing the Court adduced a copy of the suppression order from the Victorian Coroner's Court when the mother and her partner objected to giving testimony. The Court asked questions of witnesses and requested assistance from the Secretary in obtaining additional material including a transcript of the Coronial Inquest relating to the death of baby L. The Court granted adjournments to obtain evidence. The ILR called for Family Circuit and Family Court of Australia orders ensuring that all relevant evidence was adduced and tested. What emerged was the discovery of an Apprehended Violence order protecting another young person from the mother's partner. Then, NSW Police records relating to child protection issues of the mother's partner were produced. 4. The Court appreciated the significant assistance from the Secretary and the parties in securing relevant evidence to enable the Court to decide what is in the best interests of the child. 5. Three witnesses gave evidence at Court on 25 and/or 26 September 2024, the Manager Casework, the Case worker and the mother. 6. The mother's partner declined to give evidence. 7. The Manager Casework and Case worker impressed as truthful and reliable witnesses. 8. Their background, training, education, knowledge and experience was noticeable, aided by consistent contemporaneous note taking and the retention of forensic evidence, such as text messages that supported their oral evidence. 9. The Manager Casework, to her credit, made several concessions against the interest of DCJ. 10. The Manager Casework acknowledged the lack of communication between night carers and day carers in the child's 'euphemistically titled' Alternate Care Arrangement (ACA) placement. Further, there was an acceptance - and a voluntary admission beyond the confines of a question - that the two staff on a three-shift rotation per 5 days - that was to be limited to six people only - the same six people - and that they be female, was unable to be implemented given an inability to keep a long term, consistent roster of staff. 11. The Manager Casework recognised a report from the mother's counsellor as positive. 12. Nevertheless, the Manager Casework was consistent and unmoved on the failure of the mother to make the necessary changes in her responsiveness to DCJ and embrace necessary services – arguing that the mother requires longer than 2 years therapeutic work and support before consideration for restoration. 13. The Case worker and Manager Casework remained objective in their evaluation of the mother. Demonstrative of that was that the initial Care Plan assessment supported restoration. Based on what information the Secretary had at that stage the Court would have agreed to that assessment. 14. The current amended Care Plan fairly speaks to the child's connection with her mother. Whilst characterised by inconsistent attachment, the Plan does not seek to attribute blame to the mother. 15. The Care Plan acknowledges the child/mother connection to be incredibly important for the child's development and her secure and safe attachment. 16. The Care Plan notes that the child has a strong relationship with her siblings and her wanting to be home with family. 17. The Care Plan documents the mother's partner as an important figure in the child's life. He is considered the child's psychological father. The Care Plan is impartial in expressing the views of the child's love of the mother's partner - like a dad - and her want to be restored to the family home. 18. The Care Plan accurately puts the child's views and wishes - consistent with what the child told the ILR. The child's preferred position is to reside with her mother in the family home; the second preference is a return to her local community. 19. Observations by DCJ of the child's needs to have a primary carer is consistent with attachment theory. 20. This compassionate, professional, and objective approach by DCJ is contrasted by the mother's evidence that frequently seeks to denigrate DCJ. 21. The mother maintains, implausibly, that there are limited child protection concerns in the family home. 22. The mother says that she and her partner do not do drugs, don't drink significant amounts of alcohol, they work and earn good money, and that they provide everything their children could ever want and need. This sits uncomfortably with the number and severity of ROSH reports over a lengthy period. 23. The mother's response to the making of an apprehended violence order against her partner for choking a child was because they could not afford to defend it. This is avoidant and inconsistent with her response in cross examination. 24. In cross examination the mother said regarding the 'choking of a child by her partner' allegation: allegation against Bradley that he choked him or something along those – I wasn't given much about it, and then it just went from there and Bradley just went, "Okay, whatever." 1. The mother's lack of disclosure regarding her partner's obvious child protection issues adversely affects her credibility; and more tellingly brings into question the mother's capacity to understand the child's emotional needs and psychosocial development; and the mother's motivation to work honestly with the Secretary and Support Services. 2. The s 61 application documents and details the immediate issues that led to the removal of the child into care: * The child allegedly caused injury to her mother. * The mother was not able to keep her other children safe from the child's emotional outbursts. * The mother reported she was unable to continue caring for the child. Alternate options proposed by DCJ were refused by the mother. * The mother attended the DCJ Office and relinquished care of the child. 1. The context of the child's removal is referenced by past interaction with child protection authorities, including the child's concerning behaviours. 2. The mother and her partner have a history of child protection involvement in NSW, QLD and Victoria. 3. In NSW, there were open cases for children between 2007 and 2008 regarding neglect, domestic violence, and drug and alcohol use. 4. Between 24 May 2021 and 21 September 2023, the Department of Communities and Justice (DCJ) received 46 reports in relation to concerns for the child; alleging physical abuse, neglect, domestic violence, drug and alcohol use, mental health, and risk of physical and psychological harm. 5. Documented incidents include: 1. on 1 September 2022 the child disclosed that the mother's partner had punched her in the mouth resulting in a lost tooth. This was not substantiated. 2. on 20 September 2022, a safety assessment was marked 'unsafe' because: 1. The mother and her partner spoke about the child in negative ways that resulted in severe psychological and emotional harm. 2. The child behaved aggressively to others and placing herself at risk of harm and the mother was struggling to manage the child's behaviours. 3. During this home visit, the mother did not acknowledge the child. The DCJ caseworker asked the mother if there were anything she would like to say to the child. The mother said "no". The mother did not say goodbye to the child. 4. The mother and her partner demonstrated an inability to protect the child from immediate risk or harm. 5. The child was displaying behaviours at school resulting in teachers evacuating the classroom to keep other students safe or locking the child out of the classroom when she became escalated. 1. On 20 September 2022, the child entered a Temporary Care Arrangement (TCA). On 23 September 2022, the mother ended the TCA. 2. On 26 September 2022, the child claimed the mother threw a water bottle at her causing a large bruise on her chest. DCJ interviewed the mother and child. The mother denied the incident. There was not enough information to substantiate the alleged abuse. 3. On 13 October 2022, DCJ received a ROSH report about the child's mental health after she threatened harm by stabbing. 4. On 29 November 2022, the child locked herself in her classroom and began stabbing walls with scissors. Police and ambulance intervened. 5. On 6 February 2023, the child was heard yelling "Help, please let me inside, help me", while banging on the front door of her home. The mother is heard telling the child to "fuck off'' and that the child was not allowed to live in their house. It is said that the child displayed symptoms of significant psychological harm related to the mother's verbal abuse towards her. 6. On 8 February 2023, DCJ received a ROSH report with concerns of physical abuse and excessive discipline. The report details that the child had a bruise above her right eye and a large bruise on her index finger and hand. The child states that she had an argument with her mother that resulted in the mother throwing a large bottle at her and then proceeding to pin the child to the bed. The child states she felt like she was suffocating. 7. On 18 February 2023, DCJ received a ROSH report that the mother broke the child's finger. 8. On 22 February 2023, DCJ received a ROSH report of psychological harm. The child barricaded herself in her bedroom. 9. The day before, the child received a 50-day school suspension. Concern was expressed that the child was not supported by her family and is possibly scapegoated. The child was taken to hospital and refused to leave to return home. 10. On 24 February 2023, a safety assessment was completed with the outcome 'unsafe'. This assessment concerned physical abuse. 11. On 8 March 2023 DCJ received a ROSH report. An ambulance arrived and admitted the child to Hospital. The mother attended and spoke with a DCJ caseworker and stated, "I am missing out on my job, money, I could be home doing other things". When the DCJ Caseworker explained that the child was unwell and needs her mother, the mother responded stating "Well, it is DCJ's responsibility to care for her, you need to do it". 12. On 28 March 2023 the child threatened to stab herself and threatened to cut the throat of a worker. 13. There were three further ROSH reports in April and other incidents involving police and medical treatment. 1. The family has an extensive child protection history with the Department of Families, Fairness and Housing (DFFH) in Victoria, with one protective intervention between February and June 2017 and a second investigation between 8 December 2017 and 5 April 2018. 2. On 29 June 2021, DFFH received a report of serious prior abuse/neglect. Concerns were noted that the child's 20-month-old step­ sister (baby L) died from swelling to the brain whilst in the care of the mother and the mother's partner. Baby L was unwell for almost 22 hours with no medical attention. 3. The Summary of Proposed Plan (SOPP) sets out the alleged risks and safety concerns for the child: The mother is unable to consistently minimise the risk of harm regarding the child's emotional and psychological health. The child presents with escalated, trauma-based behaviours and the mother is unable to consistently soothe the child and support her to return to baseline emotional status. The mother does not have insight as to how her own traumatic experiences have affected the child and has stated that she "does not agree" that the child has a diagnosis of Post-Traumatic Stress Disorder or (Trauma) despite this diagnosis coming from a medical health professional. The mother has not consistently engaged with support services and family intervention. The child is often receiving the blame for family or household challenges, resulting in risk of significant emotional and psychological harm. 1. DCJ hold reasonable concerns that the mother has not engaged in sufficient education, nor demonstrated skills that she is able to support the child to co-regulate/de-escalate or model these behaviours, within a reasonable time. 2. DCJ offered various supports to the mother which were not accepted: 1. Weekly psychology appointments with alternating face to face and telephone calls. 2. A Tuning into Kids program - targeted at parents experiencing trauma related behaviours with their children. 3. Holiday programs, counselling referrals, intervention programs and youth workers to support the child. The mother refused these supports as they would be disruptive to her, her partner and the other children in her care. 1. The mother did complete the online Triple P program in October 2023. 2. The mother did accept a referral from DCJ into the Child Protection Counselling Service ('CPCS'). The mother did engage in 7 sessions of the Reparative Parenting Program. It is reported the mother was open, honest and reflective during these sessions. 3. However, the allocated Caseworker for the child enquired of the mother on 4 occasions whether she has made an appointment with LikeMinds but the mother did not respond. 4. Contemporary notes from Family Time Contact Reports include: 1. On 13/01/2024 - Mum straight away in a stern tone of voice let Ivy know that to see her for Family Contact they are going to have to sell their car...it is reported that Ivy was sad, overwhelmed and blamed herself and Case worker because of Mum advising she had to sell her car to come see me once a month for family contact; 2. On 16/01/2024 the mother said 'Your [sic] 10 years old your [sic] more than capable of picking up the phone and speaking to me without constant supervision like your [sic] stupid your [sic] not a baby. These people judge you, they don't even know you they sit there and lie in their notes. This is why I'm reluctant to answer your calls...' 3. On 17/01/2024 the child called to speak with her Mum. It was reported that the mother was shouting in the background and telling the child that her carers were liars and not to trust them. The mother was using foul language and telling the child not to listen to carers. 4. On 1/04/2024 the child was on an outing at the time of the telephone contact. The mother was reported to say 'Those workers with you document everything I say and they are trying to keep you away from me and not talk to me. 5. On 22/04/2024 during a call the mother was reported to be yelling about a funded service provider (FSP) not having a routine for the child, saying it appears they can't do their job and look after the child properly. The mother also reportedly referred to the FSP workers as 'stupid'. 6. On 23/04/2024 During a call the mother was reported to be rude to staff and frustrated over internet connectivity issues. The mother is reported to have said to the child 'tell them to fix the fucking wifi you're all pixelated and can only catch onto every second word you're saying'. The mother reportedly also 'screamed' at the phone 'is that black African worker on again'. 7. On 27/04/2024 the mother was observed to be swearing and yelling at staff in front of the child. The child was reportedly dysregulated following this call. 8. Between January 2024-April 2024, the phone calls between the mother and child were to be daily phone calls unless the child is escalated and the calls are not safe to go ahead. Phone contact did not proceed between approximately 14 May 2024, on account of the child become too dysregulated following these calls. Contact did not resume again until 24 July 2024. 9. The FSP were no longer willing to facilitate the contacts on account of the mother's presentation. 1. The relationship between the mother and DCJ is strained - evidenced by meetings where the mother and her partner spoke over the top of DCJ staff, raising their voices and swearing and calling staff liars. 2. When the Casework Manager contacted the mother via phone on 17 October 2024 (after the allocated hearing dates), to advise that she had located the father, the mother became heightened and made a series of derogatory comments to the Casework Manager including 'fuck you, I fucking never want to speak with you again. You're a cunt, I hate you'. The call ultimately was ended given the heightened state of the mother. 3. On 28 October 2024, a meeting was arranged at the DCJ office. The mother's partner was heightened, swearing and slammed the door. 4. On 1 November 2024, without challenge, following the close of oral evidence in these proceedings the mother's partner reportedly said to DCJ staff: "you call yourself an expert, I call you a piece of shit", "I've spoken to my barrister, stop using my fucking daughter. You're going to get a letter very soon and you'll be fucked in the arse…You're a piece of shit. If your house was on fire, I wouldn't piss on it..." Circumstances of the Child 1. Dr Owen Sainsbury, Consultant Paediatrician, in a letter dated 31 October 2023, detailed the following medical issues for the child: Unspecified trauma/Stressor related disorder. Post Traumatic Stress Disorder. Disenfranchised Grief. Separation anxiety. Hyperarousal with externalisation of distress. 1. Dr Sainsbury unchallenged evidence, notes a significant trauma history remarking that 'It is truly challenging to comprehend the level of abandonment, grief and distress - and the long term psychological damage that the child has gone through with her transience of care over the last year, including the consistently harmful abandonment by her 'caregivers' at the signs of inter-family distress, on the background of such significant psychosocial and developmental trauma including the grief, loss and fear related to her transience of care aged 6. 2. Dr Sainsbury goes on to opine, without contest, the best outcome for the child is if she can access the continued presence of an attuned attentive caregiver who is able to ride the ups and downs with her and help teach her the skills of emotional regulation. Simply put, there would need to be an extremely high level of parental capacity building - for which all current signs indicate that her parents are not sufficiently equipped. Placement of Ivy 1. The child has had eight care arrangement placements that exposed the child to a significant number of rotating staff and therapeutical workers and has not provided Ivy any opportunity to form connections, bonding or attachment. 2. Dr Trompf's paediatric report dated 28 June 2024 concludes that the child has significant developmental trauma - worsened by her unstable care arrangements. 3. On 14 November 2024 the child relocated to the Intensive Therapeutic Care House located near the family home. The Intensive Therapeutic Care House is a duplex comprised of two units. The placement is supported by 2 staff over a 3 shift change rotating roster (6 staff per day). There is a dedicated Case Worker who works from the home 3 days per week. There is a House Manager and a Team Leader. This comprises 9 staff members who Ivy will have contact with. There are a total of 12 staff members in the care team. 4. Ivy is enrolled to continue her education with a local school. The school has smaller classes to a maximum of 10 students per class. The curriculum focuses on life skill learning and practical skills which aims to put less pressure on students to compete for specific grades. There are 4-5 therapy dogs, an occupational therapist and a counsellor on site at the school. Passing of baby L. 1. The Court received the transcript of the Coronial investigation and the Coroner's Report. 2. The Coroner found the 'salient facts' of the baby's case at the time of her passing, including: a history of bruising, marks and injuries in a 20-month-old, non-verbal child; an open Child Protection investigation file; a criminal proceeding commenced by Victoria Police for unlawful assault on baby L - allegedly by the mother's partner; an unascertained cause of death. 1. The criminal proceeding relates to the mother's partner allegedly admitting striking baby L - causing bruising. The credible admission was made to a Detective as part of those investigations. The mother's partner was charged with assault, but tragically baby L passed before the criminal proceedings were finalised. 2. On day 2 of the Inquest, relevant to the history of bruising, evidence was given that the mother dropped off baby L at a care Centre and advised that her partner had smacked baby L because she'd woken up another child during the night. 3. Evidence was given that baby L was observed to have a large bruise on her leg that looked like a handprint. Baby L also had a significant bruising around the top of her head, including on her ears. An educator could see bruising around baby L's head. The educator took baby L to the nappy change area, to look at the bruising. Thirteen photographs of the bruising to legs and head were taken. There was also a mark on baby L's cheek that looked like a bite mark. 4. Dr Davis gave evidence about the numerous diagnostic tests and examinations conducted on baby L during an admission. He noted that the whole pattern of bruising was in his opinion, not a result merely of normal toddler activities, and this raised significant concerns about her safety. Dr Davis also gave evidence that the tests performed on Baby L did not demonstrate an inherent susceptibility to bruise easily. However, Dr Davis specifically refrained from drawing a link between these observations and the cause of Baby L's critical illness, and none of these findings narrowed the broad differential as to the cause of Baby L's passing. 5. Dr Isles gave evidence the kind of trauma necessary to cause Baby L's collapse would need to have occurred "quite acutely" and "very proximate" to the time of her collapse in October 2018. 6. Dr Archer gave evidence that possible causes of baby L's passing could include an external delivered head trauma – non-accidental or accidental. 7. The Coroner remarks, applying the balance of probability standard, that: "..the history of Baby L's bruising and injuries sustained, and her interactions with CP (Child Protection) and Victoria Police are not proximate circumstances to her passing. They are invaluable for context, and they form part of the narrative of Baby L's short life, however there is no valid evidentiary basis to characterise those events as sufficiently connected with Baby L's passing." Other reports of physical harm 1. On or about 10 May 2024, a ROSH report was received relating to two children in the care of the mother and the mother's partner. 2. The outcome of the Risk Assessment was classified as 'High'. The risk assessment was tendered as 'Exhibit 5' during the contested hearing. Both children have since returned to the care of their father. 3. Police investigated a disclosure made by a child aged 4 that over the weekend of 21-23 May 2021, mother's partner had 'choked' the child. It was reported that the mother's partner had grabbed him by the neck and would not let go. The child reported pain to his neck and underneath his jaw. The event was alleged witnessed by his brother. 4. Police formed the view that the statements given by the mother and her partner were not truthful, and that the children had been 'coached' and were told what to say to police. The police opinion is agreed as an appropriate conclusion to draw after the Court had read the police interviews and entries. 5. A final ADVO was made by the Local Court for 2 years. The conditions included that the mother's partner was not to live with either child. ISSUES NOT IN DISPUTE 1. That there is no realistic possibility of restoration of the child to the father. ISSUES IN DISPUTE 1. Whether to accept the Secretary's assessment that there is no realistic possibility of restoration within a reasonable period to the mother including whether an order that allows the child to reside with the mother would expose the child to an unacceptable risk of harm. 2. What orders best suit in securing the child's safety, welfare and well-being and is in the best interests of the child. POSITION AND SUBMISSION OF THE PARTIES The Secretary's position and submission 1. The Secretary seeks orders that parental responsibility be allocated to the Minister until the child turns 18 years. The Secretary proposes a long-term placement at an Intensive Therapeutic Care Home. 2. The Secretary identifies the main issues of risk to the child in the mother's care as: * A further relinquishment of care by the mother would cause harm to the child. * The mother's capacity to manage the child's basic care needs. * The mother's capacity to provide a stable and supportive home environment to support the child's emotional and psychosocial development; and * The mother's capacity to work with the Secretary and Support Services. 1. The Secretary argues that the mother has not taken sufficient steps to address the issues that brought the child into care and will be unable to within a reasonable period. 2. The Secretary puts that the child would face an unacceptable risk of harm if restored to the care of the mother; and that permanency planning has been adequately and appropriately addressed considering the suitability of the proposed therapeutic placement. 3. The Secretary continues to hold concerns that the mother has not engaged in sufficient education, nor demonstrated skills that would suggest that she is able to support the child to co-regulate/de-escalate or model these behaviours, within a reasonable time. 4. The Secretary identifies the risks relating to the mother's partner, including the assault on baby L and other physical abuse. The mother's position and submission 1. The mother seeks an order allocating parental responsibility to her, to the exclusion of the father. The mother intends for the child to reside with her, her partner and children. 2. It is argued by the mother that in the first Care Plan restoration was a possibility. The reasons for restoration included the child requiring carers to provide her with the connection that creates safety and stability - now and into the future. 3. The child, the mother says, needs to reside in a home where she is encouraged to attend school and engage in age-appropriate activities. 4. The child needs to be able to build and maintain a connection with one or two adult primary carers for her understanding of secure attachment to develop. It is considered unlikely DCJ will be able to provide the child with a placement that meets her needs. 5. It was the evidence of the Manager Casework, submitted Ms Lam, that at the time of the first Care Plan the child was safe to return to the home with her siblings and mother. 6. The mother notes that the proposed ITCH placement operates on a rotational roster with two staff present. The child would be the only child in the placement. There will be therapeutic supports set up. The child will have access to her psychologist and a care team. However, it is submitted that the child will continue to face difficulties in establishing attachment and bonding where there is no constant primary attachment figure. 7. Dr Trompf's paediatric report dated 28 June 2024 is that the child has significant developmental trauma - worsened by her unstable care arrangement. The Casework Manager was asked whether there was a possibility of risk due to the rotating roster of staff, as opposed to having a single primary carer. The Casework Manager accepted that there could be a risk. 8. Alternatively, Ms Lam argues, if the child was to be restored to the care of her mother, the child would have the benefit of a primary and secondary attachment figure - her mother, and the mother's partner. 9. It is submitted that if the evidence of DCJ is that the mother has not changed her alleged behaviour over the course of the proceedings, and DCJ were supportive of restoring the child to the mother in accordance with the Care Plan filed April 2024, there is an inference that the mother does not pose an unacceptable risk to the child. 10. Should the court find any risk concerns on the basis of the mother not meeting the minimum outcome, it is submitted that these risks should not fall within the parameters of unacceptable risk and such risks can be mitigated and ameliorated through the mother's continued and progressive engagement with services and programs. 11. The mother has given evidence in cross examination and in her affidavits that she is willing to work with DCJ. 12. The mother's evidence, Ms Lam highlights, is that the mother acknowledges that from time to time the communication with DCJ has reflected her frustration toward what she perceives as tardiness and lack of diligence to secure appropriate services and assistance for Ivy in a timely manner. 13. The Coronial report determined that the death of Baby L occurred from unascertained causes. 14. The course to be followed by the Children's Court must be the least intrusive intervention in the life of Ivy and her family that is consistent with the paramount concern to protect Ivy from harm and promote Ivy's development. 15. It is submitted by Ms Lam that there will be a risk no matter which placement Ivy enters, but weight and consideration needs to be given as to the benefits of Ivy being restored in accordance with placement principles of section 10A, to preserve family relationship. The father's position and submission 1. The father supports the Secretary's position. The ILR's position and submission 1. The ILR submits that the Court accept the Secretary's assessment that there is no realistic possibility of restoration of the child to the care of her mother. 2. It is submitted that it would cause the Court significant concern that the admissions made by the mother's partner of physically assaulting baby L prior to her passing. Further, that the mother's partner was facing criminal charges relating to the assault of Baby L which ceased following the unfortunate passing of baby L. 3. During the course of the hearing, the ILR cross-examined the mother about the issue of a restraint on the mother's partner in the Federal Circuit and Family Court of Australia final Parenting Orders. When questioned about the basis for this restraint, the mother identified that an allegation had been made that the mother's partner had choked another child. 4. The mother's partner is also regularly involved in communication with DCJ and is noted to present in a confrontational and abusive manner, raising his voice and speaking over caseworkers. 5. It is submitted that the mother's assertion that she is demonstrating a commitment to change and progress towards the summary of the proposed plan is not reflected in her ongoing engagement with DCJ, as well as her presentation during the course of cross­examination. 6. In addition to the main issues of risk identified by the Secretary the ILR considers risks in relation to the mother's partner. 7. Most concerning is the lack of evidence in these proceedings by the mother's partner, with the mother and the mother's partner relying upon a 'Suppression Order' they assert prevented them from giving evidence about the circumstances of Baby L's death. 8. The ILR acknowledges the child has experienced disruption during her placement in out of home care. However, the child has pleasingly recently returned to her regional centre and is now at her ITCH placement. THE APPLICABLE LAW Determination of whether there is a realistic possibility of restoration 1. Decisions, such as whether there is a realistic possibility of restoration are to be made consistently with the principles, purposes and the provisions provided for in the Care Act, and the Common Law. 2. Section 9(1) of the Act states that the paramount consideration is the safety, welfare and well-being of the child/young person. 3. Section 79(3) of the Act states that the Court must not make an order allocating parental responsibility unless it has considered the permanent placement principles, and the Court is satisfied that the order is in the best interests of the child/young person. 4. In M v M the High Court said in determining what is in the best interests of the child the court must determine whether on the evidence there are risks, including the magnitude and likelihood of the risk occurring and any meaningful mitigation to those risks - balanced against any benefits. 5. The High Court said it would not make an order if the order would expose the child to an unacceptable risk. 6. In NU v NSW Secretary of Family and Community Services [2017] NSWCA 221 at [45] Beazley P said the Court was required to determine whether the restoration of the child "would expose the child to an unacceptable risk…" Care Act - section 83 1. Section 83 deals with the provision of a permanency plan which must be prepared and with which the Children's Court must be satisfied before a final care order is made. 2. Section 83 (1) reads, if the Secretary applies for a care order for the removal of a child/YP, the Secretary must assess whether there is a realistic possibility being restored to parents within a reasonable period, having regard to— 1. the circumstances of the child or young person, and 2. 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/YP from their care. 1. The term 'having regard to' creates an obligation to consider (a) and (b) but not to follow precisely; literally; or obey completely; or to confine considerations, for example, only to issues that have led to the removal whilst disregarding other relevant known risk factors. Such a wider meaning is consistent with a purposive interpretation of the sub-section, and consistent with the objects and principles of the Care Act. 2. Further, if Parliament intends for something to be followed in a strict or binding way it will say so. 3. By contrast, where Parliament states that a Court or the Secretary is to 'have regard to' something, there is a discretion as to whether it is followed and to what extent it should confine other considerations. Such provisions "are intended to be facultative, not restrictive." 4. The circumstances of a chid/young person is not limited to past or current circumstances but may include future or possible circumstances, such as what a child/young person's future may look like if placed in an 'alternate care arrangement'. 5. Section 83(2) directs that 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. 6. Section 83(3), in the alternate, directs that if the Secretary assesses that there is not a realistic possibility of restoration within a reasonable period, the Secretary is to prepare a permanency plan for another suitable long-term placement for the child/young person and submit it to the Children's Court for its consideration. 7. Section 83(5) obliges the Court to decide whether to accept the Secretary's assessment of whether or not there is a realistic possibility of restoration within a reasonable period (within time limits set out in 83(5)(a) and/or (b) subject to time extension in s 83(5A)). 8. Section 83(5) imposes no restrictions on matters for the Court's consideration. 9. The Court, because of the construction of s 83, is in possession of the permanency plan when deciding whether to accept the Secretary's assessment under s 83(5) - irrespective of the Secretary's assessment. 10. It is wrong to suggest that the Court should take a two-step approach and to confine itself only to the assessment and not also to what the permanency plan looks like when determining whether there is a realistic possibility of restoration. 11. To accept that only if there is no realistic possibility of restoration will alternative placements be required to be considered would be inconsistent with the structure of s 83, inconsistent with s 9 principles and inconsistent with s 79(3). 12. The Court is required, under s 79(3) of the Act, to not make an order allocating parental responsibility (PR) unless it is satisfied that the order is in the best interests of the child/YP. 13. The Court cannot be satisfied as to 'best interests' until it considers what the future will look like if there is or is not a restoration. The benefits of keeping a child out of 'out of home care' may be preferable even if the child/young person is restored to a high-risk environment. 14. The High Court in CDJ v VAJ [1998] HCA 67 at [65] said: …the concept of the child's "best interests" necessarily looks to the future, with all the uncertainties that that involves. 1. The Court applies the principles relating to the phrase "a realistic possibility of restoration" as set out in Department of Communities and Justice (DCJ) and Bloom [2021] NSWChC 2, paragraphs 171-173 except for reference to two limbs if interpreted in a narrow sense: …now, the Court may take into account the progress of parents in relation to their rehabilitation, their progress in respect of gaining insight into their parenting deficiencies, and their ability to satisfactorily address the issues that have led to the removal of the child. The Court may also have regard to any plan that prepares, educates or assists parents in moving towards a restoration, which involves for example, supports, scaffolding, treatment, training and education, provided it is viable and practicable. The principles relating to the phrase "a realistic possibility of restoration" may now be summarised therefore, by reference to Re Campbell and Re Tanya, to which may now be added the requirements for the restoration to be realistically possible within a reasonable time, 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', or by the development of and commitment to a cohesive and viable plan that is sensible, practicable and viable within a reasonable time. 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. 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. Common Law 1. In M v M the High Court said in determining what is in the best interests of the child the Court must determine whether on the evidence there are risks, including the magnitude and likelihood of the risk occurring. 2. The High Court also considered any meaningful mitigation to those risks. 3. In Department of Communities and Justice (DCJ) and Evie and Grace [2023] NSWChC 1, Skinner J identified sufficient safeguards to enable the parents to care for the children without exposing the children to an unacceptable risk of physical or psychological harm. 4. In M v M the High Court said that any risk is balanced against the benefits. 5. Benefits are to 'be given a broad construction' and includes the maintenance of filial relationships (consistent with permanent placement principles) and may include keeping a child out of 'out of home care'. 6. In M v M the High Court accepted that the formulation of unacceptable risk caters for all considerations. 7. The Court, therefore, is required to determine whether the restoration of the child "would expose the child to an unacceptable risk". 8. When assessing unacceptable risk, a court is entitled to consider established facts and circumstances - and any other matter (such as possibilities) that the Court finds 'probative' or 'convincing' - even if it is not satisfied on the balance of probabilities. Care Act and Common Law combined 1. The proper test to be applied in care proceedings in respect of final orders is not that of "unacceptable risk to the child". The unacceptable risk test is exclusionary and not determinative of final orders. 2. If restoration exposes the child/young person to an unacceptable risk of harm the Court should not approve a permanency plan involving restoration. 3. If restoration does not expose the child/young person to an unacceptable risk of harm the Court is required to determine what orders best suit in securing the child's safety, welfare, and well-being - largely with reference to the Care Act. 4. This may involve a comparative exercise of available options. 5. In determining what orders best suit, the Court is required to consider matters such as the s 8 objectives including the provision of long-term, safe, nurturing, stable and secure environments, the principles set out in sections 9, including the least intrusive intervention; and s 10 and s 10A including permanent placement principles. 6. The Court may need to weigh the risk of harm posed by a possibility against the probability of harm of an alternate option: see Re Benji and Perry [2018] NSWSC 1750 at [85]. 7. There are also special principles of self-determination and participation to be applied in connection with the care and protection of Aboriginal and Torres Strait Islander children: ss 11, 12, 12A and 13. DECISION: INTEGRATING THE FACTS AND LAW Consideration 1. Section 9(1) of the Act states that the paramount consideration is the safety, welfare and well-being of the child. 2. The Court is required, under s 79(3) of the Act, to not make an order allocating parental responsibility unless it is satisfied that the order is in the best interests of the child. 3. Section 83(1) reads, if the Secretary applies for a care order for the removal of a child, the Secretary must assess whether there is a realistic possibility being restored to parents within a reasonable period, having regard to— 1. the circumstances of the child or young person, and 2. 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/YP from their care. 1. Section 83(5) imposes no restrictions on matters for the Court's consideration in deciding whether to accept the Secretary's assessment of whether or not there is a realistic possibility of restoration within a reasonable period. 2. Whilst the Court considered the issues that led to the child's removal (the child allegedly caused injury to her mother, the mother not able to keep her other children safe from the child's outbursts, the mother unable to continue caring for the child and relinquished care) the focus is upon the circumstances of the child, not limited to past or current circumstances but includes future or possible circumstances, such as what the child's future may look like – particularly in the context of her psychological needs; and newly identified risk factors. 3. The mother's argument that if the evidence of DCJ is that the mother has not changed her alleged behaviour over the course of the proceedings, and DCJ were supportive of restoring the child to the mother in accordance with the initial Care Plan than there is an inference that the mother does not pose an unacceptable risk to the child ignores four very significant changes since the initial care plan. 4. Firstly, the risks posed by the mother's partner to the child were not evident until after the commencement of the hearing. 5. These risks include: 1. The admissions made by the mother's partner of physically assaulting baby L. 2. The commencement of criminal proceeding by Victorian Police against the mother's partner for the probable assault on baby L. 3. The history of bruising, marks and injuries to a 20-month-old, non-verbal child. 4. Baby L's unascertained cause of death leaving the possibility of deliberate harm and the wider circumstances of Baby L's passing whilst in the care of the mother and her partner. 5. The child is older than baby L but particularly vulnerable because of her significant trauma history. 1. These risks also include, on the balance of probability, that the mother's partner had choked a different child evidenced by the making of an Apprehended Violence Order. There is a possible propensity to cause harm to children. 2. There is an indication of past collusion between the mother and her partner. On the evidence, as part of a police investigation of an assault on a child, the Police formed the view that statements given by the mother and her partner were not truthful, and that the children had been 'coached' and told what to say to police. What now further emerges is the mother's lack of disclosure about the risks to the child of her partner, that makes neither the mother nor her partner protective factors. 3. What we also know now is Dr Sainsbury's opinion that the mother is not sufficiently equipped to care for the currently known complexities of this child. The child's need to regulate is worsened by the mother's lack of self-regulation. 4. Secondly, there is now an inevitability after the consideration of the totality of communications between the mother and DCJ that the mother will not be able to work productively with DCJ in a way that will mitigate the risk to the child, within a reasonable time. 5. Thirdly, the unacceptability of the ACA that was in place at the commencement of the hearing - where an 11-year-old traumatised child with significant attachment issues is placed 500 kms from her home and family, with daily rotating staff of mixed gender, with an unlikelihood of the same staff the next day or day after or the day after that – is now no longer in place. 6. Fourthly, the new proposed placement has commenced. The current placement is supportive and appropriately targeted at addressing the child's circumstances albeit without a primary carer attachment but nevertheless physically close to her mother, her partner and siblings. 7. The mother knew the ACA placement was against the child's best interests. The Secretary seemingly also agreed, prepared at one stage to balance the probable risk of restoration with the inevitable risk to the child of an ongoing ACA placement, not too dissimilar to the balancing in Re Benji and Perry [2018] NSWSC 1750. 8. These four changes impact the unacceptable risk test. 9. The identified risks have changed. 10. The magnitude of the risk is significant bearing in mind the vulnerabilities of the child. The risk is further aggravated by the harm from a likely failed restoration for a child already traumatised by attachment issues. 11. The likelihood of those risks occurring, both physical and psychological, are inevitable noting the risks are longstanding, increasing in seriousness and have not been satisfactorily addressed. 12. The most obvious risk mitigation is the involvement of DCJ in the life of the family However, there is no meaningful mitigation to those risks because the mother has not addressed issues such as respectful communication with DCJ, capacity to work with DCJ, her mental health issues, improved parenting capacity or acknowledgement of risks. The relationship between the mother and DCJ is currently unworkable. 13. The failure of the mother's partner to provide an account in these proceedings in relation to identified risks means the Court cannot mitigate those risks in an informed way. 14. The benefit to the child of not being in out of home care has dramatically changed with a now more suitable placement in an Intensive Therapeutic Care Home. 15. In considering restoration the Court is required to determine whether the restoration of the child would expose the child to an unacceptable risk of harm. 16. The Court considers accumulatively all matters of risk or benefit. 17. The Court accepts the Secretary's assessment that there is no realistic possibility of restoration within a reasonable period to the mother or to the father. 18. Restoration of the child would expose the child to an unacceptable risk of harm. 19. The Court has heard the voice of the child and whist her preferred position is to reside with her mother in the family home the second preference is a return to her local community. 20. The Court has considered the permanent placement principles. 21. The Court is satisfied that an order of parental responsibility to the Minister, with a long-term placement at an Intensive Therapeutic Care Home to address the child's medical issues, situated in the child's local region is in the child's best interests, 22. The Court is satisfied that permanency planning for the child that sees the child returned to her local community in an intensive therapeutic care setting has been appropriately and adequately addressed. ORDERS 1. The Court makes an order of parental responsibility solely to the Minister till the child turns 18 years. 2. The Court approves the minute of care order as provided by the ILR, including three s 82 reports. ********** Amendments 13 February 2025 - Amended MNC 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: 13 February 2025