Children's Court New South Wales Medium Neutral Citation: DFaCS (NSW) re Oscar [2013] NSWChC 1 Hearing dates: 10, 11, 12, 13, and 14 December 2012 at Parramatta and 21, 22, 23, 24, 25, 29, 30, and 31 January, 1, 4, 6, and 7 February 2013 at Burwood Decision date: 18 February 2013 Jurisdiction: Care and protection Before: Judge Peter Johnstone, President of the Children's Court of New South Wales Decision: There is no realistic possibility of restoration to the father. There is a realistic possibility of restoration to the mother. The permanency planning for the children has been appropriately and adequately addressed. Catchwords: CHILDREN - Care and Protection - parental responsibility - permanency planning - realistic possibility of restoration - contact Legislation Cited: Children and Young Persons (Care and Protection Act) 1998 Cases Cited: DFaCS (NSW) re Amanda & Tony [2012] ChC 13 Briginshaw v Briginshaw [1938] HCA 34 Director-General of Department of Community Services; Re "Sophie" [2008] NSWCA 250 In the matter of Campbell [2011] NSWSC 761 Johnson v Page [2007] Fam CA 1235. M v M [1988] HCA 68 Re Tracey [2011] NSWCA 43 The Department of Community Services v "Rachel Grant", "Tracy Reid", "Sharon Reid and "Frank Reid" [2010] CLN 1 Category: Principal judgment Parties: Department of Family and Community Services (DFaCS) The Mother The Father The Children: Oscar, Paul, Hannah and Irene Representation: Ms Hartstein of counsel (Department) Mr McLachlan, solicitor (Mother) The Father (In person) Mr Samuel, solicitor (Oscar) Ms Leis of counsel (Paul) Ms Rutkowska, solicitor (Hannah and Irene) Ms J Wong, solicitor, CSO, instructing Ms Hartstein Mr M Whelan, solicitor, instructing Ms Leis File Number(s): 2011/67-70 Publication restriction: Pseudonyms have been used in order to anonymise the children and parties. Judgment 1These proceedings concern four children. To preserve their anonymity they have been given pseudonyms. The two boys are Oscar (14), and Paul (12). The two girls are Hannah (10) and Irene (7). 2The children have been removed from the parents and placed into care. Each of their mother and father seeks restoration. The father now presents as a woman. 3In proceedings concerning the welfare of the children in the United Kingdom in 2011, the High Court of England and Wales decided that the best interests of the children were served by them remaining in care, and not in the parental responsibility of either parent. Further, as the children were Australian citizens and had no ties to the United Kingdom, apart from the presence there of their parents, it was also decided that it was in the children's best interests for them to be returned to Australia. 4The children arrived in Australia on 1 December 2011, when the Director-General made an application to the Children's Court pursuant to the Children and Young Persons (Care and Protection) Act 1998 (the Care Act), and interim orders were made placing the children in the parental responsibility of the Minister. 5The parents, who separated in England, also each returned to Australia, but they are now divorced and live apart. 6On 20 January 2012 Magistrate Hogg, sitting in the Children's Court at Bidura, found that the children were in need of care and protection and placed them under the parental responsibility of the Minister until further order. The proceedings are before me for final orders. 7The proceedings are governed by the Care Act. Decisions in the proceedings are to be made consistently with the objects, provisions and principles provided for in that Act and where appropriate, the United Nations Convention on the Rights of the Child 1989 (CROC). 8The Director-General has made an assessment that there is no realistic possibility of the children being restored to the father, but that there is a realistic possibility of their restoration to the mother: s 83(2). 9She, the Director-General, has submitted permanency plans that propose a staged restoration of the children to their mother and, in due course, the allocation of parental responsibility to her, except as to contact: s 79. Further Amended Care Plans are before me for consideration: s 83(7). 10The father opposes the permanency planning proposed and seeks restoration of the children, and the allocation to her, the father, of sole parental responsibility. 11Broadly stated, the principal issues for determination are: 8.1 Whether there is a realistic possibility of restoration to the father. 8.2 Whether there is a realistic possibility of restoration to the mother. 8.3 The allocation of parental responsibility. 12Depending upon the outcome of the principal issues, there may arise secondary issues surrounding the timing and sequence of any restoration to the mother, and the question of appropriate contact between the children and others significant to them. 13I turn first to summarise the applicable legal principles. The applicable legal framework 14The objects of the Care Act, as set out in s 8, are to provide: (a) that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and (b) that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and (c) that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment. 15The provisions of the United Nations Convention on the Rights of the Child 1989 (CROC) are capable of being relevant to the exercise of discretions under the Care Act: Re Tracey [2011] NSWCA 43. Most, if not all, of the provisions in CROC have been incorporated into or are reflected in the Care Act. The circumstances in Re Tracey were unusual and unique. The parties in the present matter made no submissions based on the Convention. There was, therefore, no suggestion that this Court needed to take into account any provision in CROC such that there was some different requirement, some additional principle, or some gloss that required the Court to have particular regard to in determining this case, such that I was required to go beyond the Care Act and the case law interpreting that Act and the relevant provisions, or in the consideration of the permanency planning proposed. 16The Care Act is to be administered under the principle that the safety, welfare, and well-being of the children are paramount (the paramount concern): s 9(1) of the Care Act. 17Subject to that, the Care Act sets out other, particular principles to be applied in the administration of the Act. These are set out in ss 9(2), 10, 11, 12 and 13. 18Principles of potential relevance to the present matter include the following. I paraphrase the provisions concerned: * Wherever a child is able to form their own view, they are to be given an opportunity to express that view freely. Those views are to be given due weight in accordance with the child's developmental capacity, and the circumstances: s 9(2)(a). See also s 10. * Account must be taken of the culture, disability, language, religion and sexuality of the child and, if relevant, those with parental responsibility for the child or young person: s 9(2)(b). * Any action to be taken to protect the children from harm must be the least intrusive intervention in the life of the children and their family that is consistent with the paramount concern to protect them from harm and promote their development: s 9(2)(c). * That any out-of-home care arrangements are to be made in a timely manner, to ensure the provision of a safe, nurturing, stable, and secure environment, recognising the children's circumstances and that, the younger the age of the child, the greater the need for early decisions to be made s 9(2)(e). Unless contrary to the child's best interests, and taking into account the wishes of the child, this will include the retention of relationships with people significant to the children: s 9(2)(f). 19There are set out in the Care Act principles to be applied in connection with the care and protection of Aboriginal and Torres Strait Islander children: ss 11, 12 and 13. Although there was a suggestion in this case that the children may enjoy some Aboriginal heritage, no party suggested that the permanency planning proposed was other than in accordance with those principles insofar as they are relevant. 20Care and protection proceedings are not to be conducted in an adversarial manner, and are to be conducted with as little formality and legal technicality and form as the circumstances permit: s 93. 21The Court is not bound by the rules of evidence, unless it so determines, and in this matter it did not make such a determination. 22The standard of proof is on the balance of probabilities: s 93(4) of the Care Act. The High Court decision in Briginshaw v Briginshaw [1938] HCA 34 is relevant in determining whether the burden of proof, on the balance of probabilities, has been achieved: Director-General of Department of Community Services; Re "Sophie" [2008] NSWCA 250. 23It is now well settled law that in all decisions under the Care Act involving the paramount concern of safety, welfare and well-being of a child, including issues of removal, restoration, contact, custody and placement, the proper test to be applied is that of "unacceptable risk to the child": The Department of Community Services v "Rachel Grant", "Tracy Reid", "Sharon Reid and "Frank Reid" [2010] CLN 1 per Judge Marien at [61]. The appropriate test is whether there is an "unacceptable risk" of harm to the child: see M v M [1988] HCA 68 at [25]. 24Whether there is an "unacceptable risk" of harm to the child is to be assessed from the accumulation of factors proved according to the relevant civil standard, as discussed above: see Johnson v Page [2007] Fam CA 1235. 25The Court must not make an order allocating parental responsibility unless it has given particular consideration to the principle in s 9(2)(c) of the Care Act (see above) and is satisfied that any other order would be insufficient to meet the needs of the children: s 79(3). 26The principle in s 9(2)(c) of the Care Act is: "In deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child's or young person's development." 27Permanency planning means the making of a plan that aims to provide a child or young person with a stable placement that offers long-term security: s 78A. The plan must: (a) have regard, in particular, to the principle that if a child is placed in out-of-home care, arrangements should be made, in a timely manner, to ensure the provision of a safe, nurturing, stable and secure environment, recognising the child's circumstances and that, the younger the age of the child, the greater the need for early decisions to be made in relation to a permanent placement s 9(2)(e), (b) meet the needs of the child: s 78A(1)(b), and (c) avoid the instability and uncertainty arising through a succession of different placements or temporary care arrangements: s 78A(1)(c). 28The plan must also include provision for appropriate and adequate arrangements for contact between children and persons of significance. 29When assessing whether there is a realistic possibility of restoration, the Director-General is required to have 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: s 83(1). 30It follows that when deciding whether to accept the assessment of the Director-General, the Court should also have regard to those considerations: s 83(5). 31I have set out in a number of judgments a summary of the case law surrounding the concept of realistic possibility of restoration. I did so most recently in Department of Family and Human Services (NSW) re Amanda & Tony [2012] ChC 13. Reference might be had to what I said at [29] - [32], which I now summarise as follows: * A possibility is something less than a probability; that is, something that it 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. It must not be fanciful, sentimental or idealistic, or based upon 'unlikely hopes for the future'. It needs to be 'sensible' and 'commonsensical". * It is going too far to read into the expression a requirement that a parent must always at the time of hearing have demonstrated participation in a program with some significant "runs on the board": In the matter of Campbell [2011] NSWSC 761 at [56]. 32"The Care Act, s 83(1) makes clear at what time the "realistic possibility" of restoration should be assessed. When the application for...a care order is before the Court, it is at that time the Court must assess "whether there is a realistic possibility" [Emphasis added]. It must not at the time of the... application be merely a future possibility. It must at that time be a realistic possibility": In the matter of Campbell [2011] NSWSC 761 at [57]. 33As noted above, there are two limbs to the requirements for assessing whether there is a realistic possibility of restoration, whether the assessment is made under s 83(1), 83(5) or s 83(7), to each of which regard must be had. 34The first limb is the "circumstances of the child", and the second limb is "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". The history and conduct of the proceedings in the Children's Court 35It is appropriate that I say some things about the history and conduct of the proceedings, and the final hearing in this Court, with a view to a better understanding of the background and context in which the determinations required are made. 36The father has been self-represented in the proceedings from the outset, which circumstance led to various difficulties in the preparation of the matter for final hearing, and in the conduct of the hearing. 37To the fresh observer it might for example be asked, why did a hearing of this kind take a year to be heard, and why did it occupy some 17 days of hearing, in two tranches, split over the Christmas holiday period. 38Considerable difficulties were experienced in the case management of the proceedings both by the former President of the Children's court, Judge Marien, who assumed conduct of the matter following upon the findings of Children's Court Magistrate Hogg on 20 January 2012 pursuant to which the matter was established, and by me after I assumed conduct of the matter upon my appointment as President. 39The case management difficulties were exacerbated by the refusal of the father to provide an appropriate address for service, or to communicate with the Department and the Court in a conventional way. Thus, considerable anxiety and inconvenience was generated in communicating with her and in the service of documents on her, the father. Intricate arrangements put in place to have documents served upon her proved unworkable, such that ultimately it was necessary to make an order for the service of documents on her at the Chatswood Community Centre. 40She, the father, was as I have said, formerly identified as a man. However, throughout the proceedings she presented and identified as a woman. She asserted that she is an hermaphrodite, however she did not produce any medical evidence to support that proposition. Her physiology has no particular relevance to the ultimate determination of the issues, but it did impact on the conduct of the proceedings. For example, the father insisted upon being addressed and referred to in the feminine gender. Everyone involved in these proceedings did their best to respect this request (except for the mother, the former wife of the father), but unfortunately, on occasions, legal representatives and presiding judicial officers slipped up and used the masculine gender. 41More importantly, the father was garrulous and prone to extreme, often excessive loquacity. Her therapist, Ms Rowena Bianchino, said: "She talks a lot & quickly, as if to loose yourself & herself. It's like a logorhea (sic, for logorrhoea)." 42The father was also frequently discourteous to, and derogatory of, others in the proceedings, including the legal representatives of DFaCS. 43The Children's Court Clinician, Ms Blacker, put it well when she described the father this way at [56] of the Assessment Report: "The father had difficulties cooperating with the assessment and did not really adjust to not being able to command the assessment process. She, the father has an attitude of entitlement and expected to set the assessment agenda, based on her own needs... The father insisted only she had the facts and knew what was correct and what the court might need. Most of the time she, the father was not able to observe the expected social conventions for communication... At times the father was relatively calm and could listen to some questions and it was possible to have a conversation. Mostly, her communications were rapid fire, and shouted in a loud, volatile and aggressive manner, which was difficult to interrupt unless one entered a shouting match with her. Her body posture and non-verbal language matched the oral aggression. She did not seem to realise this was not an appropriate communications style." 44The same can be said of much of the father's presentation and conduct in Court. It is a disturbing feature of modern litigation that self-represented litigants are indulged, due to strictures of procedural fairness, and are able to say and do things in Court with impunity, when such conduct on the part of legal practitioners would draw trenchant criticism, even disciplinary action. 45Other disturbing features of the father's behaviour were her propensity to tweet in relation to the proceedings, and to covertly record events and meetings. Her surreptitious conduct in recording events and conversations with others without their knowledge and consent has manifested itself throughout, as far back as the proceedings in the United Kingdom. 46Thus, Judge Wallwork was moved to record in his judgment of 27 September 2011 in the High Court of Justice: "An additional element of concern in this case relates to the recording and publication of data... The extent to which the parties and the father in particular have used the recording of events both overtly and covertly has been of considerable concern in this case. Equally the extensive use of twitter, chat blogs, E-Mail, and possibly other means of cyber communication both with each other and with the world at large is quite astonishing." 47Judge Marien made a series of orders by way of case-managing the proceedings toward a final hearing, including orders for assessment, under s 53 and s 54 of the Care Act, and appointed the Children's Court Clinic to prepare and submit an Assessment Report. 48A senior and experienced clinician, Ms Susan Blacker, was appointed by the Clinic to undertake the assessment, which involved, amongst other things, interviews with the children individually, in their sibling group, in sibling dyads, and with each of the parents. This involved the father in contact with her children for the first time since the proceedings in England. Unknown to the clinician, and without her permission, she, the father covertly recorded her interview with the clinician. Also unknown to the clinician, at the assessment interview involving the father and the children she, the father, provided a workbook for one of the children that contained invisible writing, and she attempted to smuggle SIM cards to the children in a pencil case, to facilitate future communication with them. 49The Assessment Report was made available to the Court on 25 May 2012. 50Judge Marien made specific orders as to the release of the report to the parties that had the effect of limiting the father's access to it and her capacity to share the contents with others. 51After I assumed responsibility for the matter, I undertook directions hearings on 20 July, 27 July, 21 September and 19 October 2012. Amongst the orders and case management directions I made, was a direction allowing a copy of the Assessment Report to be made available to the father, on her undertaking to disclose the contents only to her therapist, Ms Rowena Bianchino, and a friend, Ms Bronwyn Hancock, and not to any other person, or to the children, either directly or indirectly. 52I tried to bring the matter on for final hearing in November 2012, but the father insisted that time was unsuitable to her as she was to undertake a course to improve her parenting capacity in that month. In the result, the hearing could not be commenced until 10 December 2012, then it continued in January and into February 2013. 53The parties were directed to serve their evidence in accordance with a timetable. Subsequently, I ameliorated the requirement for the father to serve any affidavits by her, when she informed the Court that she was emotionally incapable of writing anything to do with the history of the case. Instead, I directed her to serve a list of topics she proposed to address in her oral evidence-in-chief, in dot point form. The document she produced is now Exhibit 48. I took some care to ensure that the topics listed were covered during the course of the father's evidence. As it transpired, the father gave her evidence-in-chief over 5 hearing days. Nevertheless, it is my impression that in practical terms, not requiring her to serve written evidence had the effect of shortening the hearing, rather than extending it. 54She, the father, insisted on having with her in Court her laptop computer, and to record on an ongoing basis everything that was said or transpired in Court. This did not inconvenience the Court, although some of the lawyers at the Bar table at times found the typing distracting. For the sake of completeness, I note that she had the benefit of the transcript of the evidence. The hearing occupied some 17 hearing days, with 15 days of evidence and 2 days of oral submissions. 55At least 12 of those 17 days were occupied by the father giving her evidence-in-chief, extensively cross-examining witnesses, such as her former wife, the clinician, the forensic expert and caseworkers, and addressing the Court. The father, as a self-represented litigant, was afforded generous latitude in conducting her case. Nevertheless, it frequently became necessary for me to place strict time limits on her, as large tracts of her evidence and cross-examination were directed at irrelevant and peripheral matters having minimal or nil probative value to the important central issues of restoration and the allocation of parental responsibility. 56Finally, it is to be noted that she, the father frequently made statements from the bar table, sometimes by way of interjection, but more usually of a lengthy nature, that were in effect attempts to put factual material, or opinion evidence from her therapists, before the Court. Unless that material was either covered by her sworn evidence, or verified by other witnesses or documents, it was untested and I have accorded it the weight it merited as a result. Much of it was, therefore, of no probative value in determining the issues. A short chronology 57A short recital of some relevant history will suffice to assist in setting the context of the issues in the proceedings. 58The mother was born on 20 January 1966 and is now 47. 59The father is recorded as having been born on 30 December 1969, which would now make her 43. However, she says there is some uncertainty about the date of her birth, and she may have been born in 1965 (T1003.43). The exact date of her birth is not relevant to the determination of any issue in the proceedings. 60The father and mother met over the Internet in 1995, and entered into a relationship. They were married on 15 March 1997. The father worked in the IT industry. The mother was a schoolteacher, but who was not working at the time, and was on stress leave receiving workers compensation. 61The parents first lived in a house owned by the mother, at Oakdale. Oscar was born on 8 April 1998. The family's first interaction with authority occurred there when there was an intervention on 21 September 1998 by the Department as it then was (DoCS), when the baby Oscar was briefly removed from the parents' care. 62The family later moved into a house owned by the paternal grandparents at Baulkham Hills, where in due course Paul, the second son, was born on 5 March 2000. Hannah was born on 1 September 2002 and Irene, her younger sister, was born on 4 April 2005. 63During these first years of marriage the father was engaged in a number of business and work activities involving IT and filmmaking. The mother also appears to have assisted and participated in the filmmaking activity. Her principal occupation was, however, caring for the children and looking after the home. 64The family was, however, beset by conflict with the external world. First, and perhaps foremost was a four-year legal battle in relation to the family's occupation of the house, which was owned by the father's parents. For reasons not fully explained or explored, the father fell out with her parents, and bitter and extensive litigation followed. The parents were evicted from the house with the children. 65Other episodes included an acrimonious dispute with a local council and neighbours over a large shipping container that the father had located in the front garden of the family home, conflict associated with hospital staff during the mother's labour with Oscar, and other occasions. 66In May 2003 the father spent some days in the Cumberland Mental Hospital. The detail of her admission to that institution is not fully explained, however she maintains that she was illegally taken there on the basis of false assertions made about her by her parents, and was not suffering from any psychological condition that justified her detention there. 67In 2008 the family moved to the United Kingdom, arriving in February 2008 and settling initially at Slough. After some 7 months, the family relocated to Milton Keynes, in September 2008, and resided there until the family again relocated to Merton, in July 2009. 68During their time in England the mother worked as a teacher at local high schools, and was in effect the family 'breadwinner'. The father, now presenting and identifying as a woman, did not engage in any full-time remunerative work, her primary role having now become that of carer for the children. There was attendant conflict between the family, schools and other authorities, and interactions with police and social services, which became increasingly frequent. 69Up until September 2009 the children were in schools, but following a referral by the All Saints School to social services because of concerns regarding the three youngest children, the father removed the children from school and commenced to 'home educate' them. 70Thereafter the family situation went into a steady decline. The mother fell into a deep depression and withdrew from the usual daily interaction with her family. Finally things came to a head in May 2010 when the mother left the family home, taking with her the eldest boy, Oscar. 71A period of intense monitoring of the father and the 3 youngest children by social welfare authorities and police culminated in the father's arrest on 2 June 2010. Care proceedings ensued, and the 3 younger children were removed into care, while Oscar continued to reside with the mother. 72Protracted care proceedings followed, culminating in the proceedings before Judge Wallwork brought by the Local Authority in the High Court of England and Wales and his judgment on 27 September 2011. As recorded above, Judge Wallwork decided that the best interests of the children were served by them remaining in care, and not in the parental responsibility of either parent and that it was in the children's best interests for them to be returned to Australia. 73Following the initial separation of the parents, there was a brief period when reconciliation was attempted. This was, however, short-lived and the separation became permanent. The parents are now divorced and live separately and apart, each of them having returned to Australia. 74The findings of Judge Wallwork are accurately and succinctly summarised by Ms Hartstein in the Department's written submissions at [17]: "(a) This was a case "in which the father's overbearing and controlling behaviour towards her family and to her wife in particular amounted to emotional and, at times, physical abuse over a considerable period of time." (b) The mother clearly became depressed and withdrew from family life. "She escaped into her music, sitting with her headphones on and not engaging with the family." (c) The first interview given by Oscar to the authorities on 3 June 2010 is a relatively accurate account of every day life in the household prior to the removal of the children and raises some very concerning issues: (i)the father's manner of disciplining the children using a belt and the mother's failure to protect them particularly during the period in which she disengaged from family life; (ii)the children's days were largely unstructured without any apparent curriculum or plan and their schooling was wholly inadequate; (iii)there were excessive expectations placed on the children in relation to household chores. (d) The father is a profoundly selfish person with an egocentric and inflated view of her own importance, which distorts her interactions with the outside world. She is controlling and seeks to control all aspects of family life to an extent which is abusive and detrimental to the welfare of the children. (e) The children were living in circumstances that were wholly inconsistent with their welfare needs. The family was becoming increasingly isolated and living in a "bubble". (f) The physical care of the children was neglected. (g) The father was abusive and controlling of the mother. (h) For the father to be in a position to care for the children there would need to be a radical shift in her functioning, reasoning and manner of behaving. It is highly unlikely that the father would engage in any assessment process or therapeutic intervention. Even if the father were to do so, it is unlikely she would be able to parent in timescales consistent with the children's welfare. (i) The mother's separation from the father is recent and she is not in a position to demonstrate she could care for the children at present." 75It was against this background that the children were returned to Australia and the present proceedings were commenced. Establishment 76Following the hearing before Children's Magistrate Hogg sitting in the Children's Court at Bidura, the matter was established on 20 January 2012 when his Honour found that the children were in need of care and protection and placed them under the parental responsibility of the Minister until further order. He noted that in the UK proceedings, the Local Authority had successfully established the threshold criteria that the children were in need of care had been made out and should not be returned to either parent. His Honour referred in some detail to the findings in the various judgments in the UK proceedings and made a number of findings. I again adopt Ms Hartstein's summary: "20. His Honour noted that the mother conceded that the children were in need of care and the submissions made on her behalf carried significant weight. 21. His Honour found that s.106A (of the Care Act) applies to the proceedings and that the judgment of Wallwork J was thus a matter to be considered. After listening to the submissions made by all the parties, including by the father for 5 hours, His Honour adopted the reasons of Wallwork J. 22. His Honour noted that the father's attitude towards professional people was often abusive and this exposed the children to unacceptable modes of behaviour. His Honour added that it would appear to him as well that there was a very anti-authority viewpoint taken about the involvement of government departments. 23. His Honour found that nothing before him indicated any change in circumstances save for the fact that the children are in this jurisdiction and nothing placed before him indicated he should hold any other opinion than the one expressed by Wallwork J. 24. His Honour formed a view that the father controlled the family dynamic and the mother's difficulties of a psychological nature largely came about by that family dynamic. 25. His Honour found that there was inappropriate use of physical discipline, and there were issues around education and cleanliness. 26. His Honour referred to the father's submission that she had a large amount of video evidence to show errors in the judgment of Wallwork J. His Honour held that the fact that such evidence exists (phone calls taped, a 12 year old child encouraged to tape conversations with authority) does disclose a reason why Wallwork J considered the children would potentially be at harm should they be exposed to that lifestyle." The clinical evidence 77In its application for final orders, and in seeking express findings that the permanency planning proposed has been appropriately and adequately addressed and that there is a realistic possibility of restoration to the mother, but not the father, the Department relies on the evidence of the Children's Court Clinician, Ms Susan Blacker, as set out in her Assessment Report of 25 May 2012, supplemented by oral evidence, including an extensive cross-examination by the father. 78The credit and the integrity of the clinician were remorselessly attacked by the father. The primary basis for this criticism was an assumed bias, or predisposition, in favour of the Department and its position, and an antagonism towards the father, such that she, the clinician, only heard what she wanted to hear. The father made references to supposed discrepancies and inconsistencies in the clinician's evidence, all of which were, upon close analysis, shown to be superficial and eristic. 79On the contrary, the clinician was at pains to be fair and objective in her Assessment Report and in her evidence. She made concessions where appropriate, and remained calm, considered and objective throughout a forceful, difficult and at times confronting cross-examination. She remained impartial, though she was often direct, and she provided measured responses to sometimes provocative questioning. 80Ms Blacker is a knowledgeable clinician with considerable experience in the area of care and protection of children. 81During the assessment process she, the clinician, spoke at length with the parents and children individually and observed the relationships of the children with each of their parents. When she was cross-examined the clinician was not challenged as to her methodology in relation to her observations of contact with the parents, although the father appeared to challenge the reliance of the clinician upon certain authors, particularly on the subject of non-contact abuse: Ms Hartstein at [34]. 82The clinician was a convincing and compelling witness. I propose to rely significantly on her assessments of the protagonists and the children, and on her expert opinion. 83The Children's Court Clinic (which I will refer to in short form as the Clinic) is established under the Children's Court Act 1987. The rationale for the Clinic is to provide for expert, independent, specialist advice and guidance to the Court. The role of the clinician, in simple terms, is to assist the Court in making findings necessary for the disposition of care and protection proceedings before it. 84The clinical report, or assessment, and any oral evidence the clinician gives, is given to the Court, and is not evidence tendered by any party, and is designed to guide the Court as to the decisions required to best promote the safety, welfare and well-being of children. 85In addition to providing the Court with the benefit of experience and expertise, clinicians provide a hybrid form of factual and expert evidence, which can greatly assist the Court, because they observe the protagonists over a period of time, interview parents, children and others in detail and on different occasions, in neutral or non-threatening environments, away from courts and lawyers, untrammelled by court formalities and processes. 86Thus, clinicians provide the Court with insights and nuances that might not otherwise come to its attention, and give context and detail to issues that the Court, constrained by the procedural requirements and process, and the 'snapshot' nature of a court hearing, might not otherwise receive. 87Receipt of and reliance upon such evidence is consistent with the requirement that there be as little formality and legal technicality and form as the circumstances permit: s 93 of the Care Act. As the Supreme Court said in Re Emily v Children's Court of NSW [2006] NSWSC 1009 at [48]: "The (Children's Court) is both empowered and required to proceed with an informality and a wide-ranging flexibility that might be thought not entirely appropriate in a more formally structured Court setting and statutory context." 88In formulating her reliance on the evidence of the clinician, the written submissions of the Director-General relating to that evidence are comprehensive: see [27] - [47]. 89I will paraphrase some of the aspects that I consider important: * Although the clinician was challenged by the father on many aspects of her report, the clinician's conclusions were not invalidated and, indeed, many of her opinions were given fresh corroboration by the behaviour and demeanour of both the father and the mother during the rest of the hearing [27]. * There was no psychological or psychiatric assessment of the father as she declined to participate in such an assessment [28]. * The children lived in a difficult home environment and were exposed to maltreatment by both parents. They experienced non-physical contact abuse, which is a form of domestic violence, and witnessed their siblings and mother exposed to abuse [29]. She, the clinician, cites examples of a pervasive pattern of dysfunction, conflict with others and a generally combative attitude [30]. The difficulties with functioning effectively were evident much earlier than when they lived in England [30], and continued after the family moved to England [31]. * The father had restricted the children's outreach into the world and limited access to the children by others. She, the father, did this out of a grandiose and entitled attitude, exerting control in every aspect of the children's lives [31]. * The mother's emotional and practical withdrawal from family life and from parenting compounded the situation for the children. The mother's chronic mood difficulties lessened her ability to cope and she gave up her parenting authority and withdrew, depending on the father to parent the children [32]. * Taken together, the parents' parenting failures left the children without a safe and emotionally available protective parent. The combination of the children's exposure to non-physical contact abuse, the reported physical violence and the absence of an empathically responsive parent to mediate their distress ate away at the children's attachment relationships with their parents and left them angry and distressed. This was reflected in Oscar's adverse comments made about his father when first interviewed by police and in the three younger children's reported comments and attitudes that their mother was not a good mother [33]. * The mother was observed to display a good ability to reflect on her children's thoughts and feelings and further reflected that understanding in her management of their behaviour. Although the clinician expressed some concern that at times the mother seemed emotionally distant from the children, she was satisfied that the mother did not lose her connection with the children. The clinician thought that the mother has empathy. Whilst there were some issues with the attachment of the children to the mother, they would be able to be addressed in time [35]. * The mother's counsellor, who had been working with her since November 2011, advised the clinician that the mother presented initially with problems related to generalised anxiety and mental distress due to trauma from a difficult relationship including domestic violence with her estranged partner. The counsellor said the mother will need ongoing therapy and support for about the next 12 to eighteen months [36]. * The clinician reported that the children showed affection for their father, but also insecurity and anxiety with some avoidance. Oscar continued to show 'parentified' behaviour and an inverted parenting relationship with his father. Oscar's highly anxious and quite compulsive and dominatingly attention seeking was very marked, whilst Paul, Hannah and Irene's anxious and insecure and somewhat avoidant attachment difficulties were evident in more subtle ways [37]. * The clinician was satisfied that the mother's work to make the necessary changes in her own personal life as well as build parenting capacity strengths was a genuine commitment as is the separation from the father [38]. The mother was adjudged by the clinician to be well advanced in the process of change [36]. * The clinician noted that the mother has an intellectual understanding of the impact of much of the maltreatment on the children, however she has not yet begun to realise the full harm to the children by both parents [39]. * The clinician gave evidence that the father's method of interpersonal relating wasn't in any way relating: rather, it is an overbearing communication with most people and there is an impulsivity and a difficulty with managing affect which leads to not being able to relate to people in any empathetically attuned way that allows for the other person [40]. The clinician said that it was difficult for the father to see the children as individuals separate from her needs [41]. * The clinician was in no doubt from the way in which the father presented over the period of the assessment and from her behaviour and demeanour during the course of the hearing, that she, the father, was a perpetrator of non-contact abuse [42]. The clinician had noticed not a spark of change in the father's perspective. The father was not even at stage 1 in the process of change [43]. * The clinician is not in favour of restoring all the children at the same time, although she does not have a strong view about whether the boys or girls should be restored first. She gave evidence to this effect on a number of occasions. She, the clinician, stated that she would not like to see all four children returned to the mother at the same time because it's a big job. The mother needs the opportunity to have the children come back in a staged way. They will have some adjustment problems, and an opportunity for an integration of a subgroup of children, that allows them to settle in, adapt, adjust, and get used to those daily issues and not be overwhelmed, is important [44]. * The clinician's primary concern in relation to the children's contact with their father is the risk of her, the father, undermining of their placement with the mother [46]. Contact with the father must be supervised, but supervision as understood in the usual sense is not enough. The clinician does not have a problem with written communications that can be reviewed by others, but not telephone or skype contact with the father unless it can be formally supervised, such as on speakerphone [47]. The father 90Various people have given descriptions of the father, all of which resonate with me. The consistency of some of the themes is telling. 91Justice Hedley spoke in his judgment of 9 September 2010, at [37], of the profound hostility of the father to all authority that was in any way adverse to her views or interest: "The second matter which seems to me profoundly important, and indeed it was illustrated by her, the father in the course of her address, when she effectively apologised for the heat of what she was saying, and I indicated that I was perfectly content to allow her to express herself as she wished, but she needed to understand that I would draw from it a profound hostility to all authority which is involved with this family in any way that is adverse to the views or interests of the parents themselves." 92Dr Fitzpatrick, the Consultant Child and Adolescent Psychiatrist who prepared a report for the UK proceedings dated 21 March 2011 (Exhibit G) said of the father: "What is evident from reading her various statements and exhibits is an egocentric, obsessive, controlling, suspicious attitude with a grandiose sense of self-importance and an unshakeable conviction that she is right. This means she is unable to step back and reflect on her behaviour and find a way of negotiating with others. The extent of her emotional investment in this conflict means the behaviour becomes self-reinforcing and is unlikely to change. The conflict takes priority over any concern for her children though I am aware she would deny this. On the information available it would not be unreasonable to suggest that she has the characteristics of a narcissistic personality disorder and that her habitual mode of relating to others and her over-valued view of herself is unlikely to change." [65] 93Judge Wallwork said in his judgment: "The father is controlling and seeks to control all aspects of family life to an extent which is abusive and detrimental to the welfare of her children." [97] "The picture, which emerges, is of a profoundly selfish person and nothing which I observed from the father's evidence, or demeanour in court, did anything to dispel that impression." [48] "One feature of the father's case, which appeared to me to be significant, is the way in which she sought to suggest that whatever criticism was levelled at her, the converse was in fact the case. Two examples serve to illustrate this; First; regarding the local authority's assertions that despite their best endeavours they were unable to conduct a core assessment, the father maintains that they never really tried and were not interested in her position... Secondly; regarding the wife's assertions that the father lacked emotional empathy she (the father) sought to say that the reverse was true..." [78] 94There were parallel examples before me: First; the father's assertions that the Department failed to engage with her, and secondly, her assertions that it was the mother who was the perpetrator of non-contact abuse against her, the father, and not the reverse situation. 95I have already set out some of what Ms Susan Blacker, the Children's Court clinician, said of the father at [65] of the Assessment Report. Other comments that appear at [66] and [67] include the following: "The father is an articulate person with a wide vocabulary and a broad general knowledge and she is obviously a very intelligent person. She has an incredible memory for detail, although her ability to be a strong historian is affected by her need to go off at tangents, with grandiose reports of her celebrity and her encounters with fame and fortune." 96Ms Hartstein submitted, on behalf of the Department, at [64] of her written submissions: "Although there are a number of obvious examples where it could be argued that the father has not told the truth or the whole truth to the court, has avoided answering questions or has deliberately mislead the court, the Director-General does not submit that it is necessary or even desirable for this Court to make a finding that the father's evidence is untruthful. Rather it is submitted that the father is so egocentric that she is unable to see truth or reality from any objective or neutral viewpoint. All is seen through the filter of what is best for her, the father at any given time. Her evidence is thus quite unreliable." 97Nevertheless, it is impossible to ignore the father's capacity for deceit, which is well-documented, conceded even, in the case of the covert and surreptitious recording of meetings and conversations, and her attempt to convey secret messages derogatory of the mother to the children by means of invisible writing in the workbook prepared for Paul at contact. 98The reality is that the father has an unstoppable capacity to dissemble and exaggerate. She refuses to see events and conversations other than through her own artificial prism of self-delusion, self-obsession and self-absorption. Every account of any conversation or event is portrayed from her own peculiar perspective, through a construct of half-truths, eristic allusions, and feigned misunderstandings. She listens to and identifies in a positive way only with people who support or sympathise with her position and views, such as Ms Rowena Bianchino. She rejects, criticises and at times vilifies those who dare to disagree with her, or attempt to give her advice she does not want to hear or identify with, such as Ms Blacker and Ms Janina Szyndler (Exhibit AA). The father is an egocentric bully who is significantly lacking in any ability to be empathically aware, who lacks respect for others and is incapable of relating to persons she sees as contrary to her interest without generating confrontation and conflict. The submissions on the issue of restoration to the father 99The father seeks restoration to her of all four children forthwith, and the allocation of sole responsibility to her. She submits that only she has the ability to appropriately care for these children (see, for example, T 1334.6 - 18, T 1340.5 - 50, T 1342.47 - 1344.23, 1348.29 - 38, T 1365.49 - 1366.7. The father opposes restoration of the children to her former wife. Only at the very end did she concede she would prefer to see them in the mother's care rather than to have them remain in foster care. 100The Director-General of the Department submits that there is no possibility of restoration of the children, or any of them, to the father. She, the Director-General, was supported in this submission by the mother, and the Independent Legal Representative of the two youngest children. 101The proposal for restoration of the children to the mother was not disputed by either of the Direct Legal Representatives of the two boys. 102The Director-General has provided comprehensive submissions in support of its contention that there is no realistic possibility of restoration to the father: see [60] - [68]. 103I will paraphrase some of the aspects that I consider important. 104The father is incapable of being empathic [60]. She has no capacity to put her own needs aside and respond to the needs of the children, with an understanding that they are children, and her relationship with them was of a 'parentified' nature. The letter written by the father to Oscar (Exhibit 50) is a clear example. Despite a long period of no contact with the children, when the opportunity to see them did arise, the father was intent upon using the opportunity to covertly supply material that denigrated the mother, and providing them with SIM cards to subvert the restrictions on communication with them. 105The father seems incapable, or unwilling, to see the damage to the children that denigration of the mother will perpetrate. Thus, she has set up what she describes as "dead man's handle" so that if something should happen to her, a raft of material will be made available for others, including the children, to read about these proceedings, including the Clinic's Assessment Report. "The fact that Irene will still be only 10 does not concern her." Nor, apparently, does it concern the father that material detailing the intimate secrets of her children's lives will be published for all, including her children, to see. 106The father is unable or unwilling to exercise sufficient self-control to prevent her children seeing when she is in a low mood or is unable to make a decision [61]. She is unwilling to place her needs in a secondary position to those of the children. "As a result she encourages the children to act as the parents trying to make her, the father, feel better, doing the shopping and cooking, teaching the younger children, making decisions for the family." 107Another telling example of the father's incapacity to distinguish between the need to protect the children and her own needs was in the period leading up to 2 June 2010. As the Director-General describes: "According to the father, the children made the decision to leave the house on 2 June 2010, the day before they were taken into care because they felt unsafe in their house. The father had taken umbrage at the visits of the police who came merely to check on the children. All the police were very polite, and not at all threatening, as can be seen on the video tendered by the father. The video shows it was the father who created an atmosphere of mistrust and aggression and, if the children were afraid, they were afraid because the father communicated her fears and her aggression to them. The father did nothing to calm the children nor could she make them feel safe. When asked about this the father was unable to think of how she could have calmed them down." 108Perhaps the most disturbing feature of the evidence was the emerging 'copycat' behaviour on the part of the children, such as Paul making video recordings of the visits of the police and social workers. Not only did the father approve and encourage such conduct, she sees it as an essential self-protection tool for the children to learn to survive in a society where authority is to be mistrusted. The father even refused to accept that the children might in fact prefer contact without having the contact session recorded, than not to see her at all. 109Another startling feature of the father's persona is her belief, or her assertion, that it was in fact she, the father, who was the victim of non-contact abuse, and the mother was the perpetrator. The reality is that it is she, the father, who controlled and manipulated the mother. Even now, she openly denigrates the mother, and accuses her of being an author of much of her, the father's, misfortune. 110The father's incapacity to co-exist in society without antagonism and conflict is well established. Ms Hartstein summarises it well in the Department's written submissions [62]: "The father is unable or unwilling to put aside her fear of and antagonism towards authority and the Department of Family and Community Services in particular. She thus encourages the children in inappropriate behaviour and furthermore deprives them of the opportunity to have contact with her. (a) Paul was making video recordings of the visits of the police and social workers. His father thought that was appropriate. (b) The videos tendered by the father disclose Oscar whispering in contact what the foster parents had said to him. (c) The material which the father attempted to provide to Paul in invisible ink incites Paul to inappropriate behaviour. (d) She was unable to answer when asked whether the children would rather see her without having the contact session recorded than not see her. (e) She cannot work with the department. She seeks guarantees against abuses suffered in the UK, accuses the legal representatives of the department of all sorts of unprofessional, if not criminal acts." 111The father's failure to engage with the Department, or co-operate in any way, has perversely denied the children the opportunity for contact [69]. 112Finally, there is the father's refusal to acknowledge any genuine basis either for removal of the children, or for the finding that the children were in need of care and protection. 113Mr McLachlan, for the mother, supports the Director-General's submissions. In addition, he expands on some of the themes, in particular the father's failure to accept the reasons for removal of the children, or that she was a perpetrator of non-contact abuse upon the mother, or that her conduct in this regard was harmful to the children: "The father's assertion that the mother in fact was the perpetrator of such violence is unsupported by any other professional or factual opinion and is based on her egocentric assessment that she could have done nothing wrong so therefore it was the mother's fault." [35] "In many ways the position taken by the father on contact demonstrated her lack of empathy for the children and inability to identify and act in a protective way. Her abrogation of being their parent and her reliance upon their decision-making keenly demonstrated the matters that the Clinician raised about her extreme deficits as a parent. "[37] 114The submissions made on behalf of the mother are that this Court could comfortably make the following findings in respect of the father [32]: (a) That she is completely egocentric in her view of life and the role of the children in her life. (b) That her appreciation of the children and their needs is based on her needs. (c) That she has a combative conflictual approach to relationships which have included, but are not limited to the mother, her parents and other persons, especially persons of authority that she comes into contact with. (d) That she has and is likely to alienate any resources that may support or deal with her capacity to parent. (e) That she was the perpetrator of significant continuous domestic non-verbal controlling domestic violence as well as, from time to time, verbal domestic violence and physical violence to some of her children. (f) That any therapy or engagement in therapy that she has undertaken since the separation of her and her wife does not evince any demonstrable change in her appreciation and understanding of her past conduct. (g) That she blames the mother, the Department and indeed any other agency that does not support her as being the causation of the children's difficulties. (h) That she is not willing to accept and deal with any role that she may have played in the circumstances surrounding the removal of the children or their continued retention in care. 115I agree, and comfortably make each of these findings. Is there a realistic possibility of restoration to the father? 116There is abundant evidence of the father's incapacity to adequately and appropriately parent the children. The findings I have already made are sufficient to enable me to comfortably conclude that there is no realistic possibility of restoration of the children to the father. 117The circumstances of the children are such that restoration to the father is clearly contra-indicated. The assessment of the clinician as to the children and their individual needs, and the collective risk associated with a restoration to the father support that proposition. As Mr McLachlan submits, the relevant circumstances include the emotional and psychological effects of the past parenting upon the children, their progress in dealing and meeting those effects [6], and, I would add, the risk of recurrence. 118The evidence that the father is unlikely to be able to satisfactorily address the issues that led to the removal of the children is irresistible. 119I agree with Mr McLachlan's submission that the assessment required is not a static one; rather it requires an appreciation of the real issues at the time of hearing as they have emerged and unfolded [8]. In the present case the father refuses to acknowledge or accept any harm to the children, let alone her role in causing that harm. She has no insight into her conduct and the extent to which it reflects inadequate parenting, and has taken no positive or constructive steps to change her behaviour [3]. 120The father has not, as the clinician said, demonstrated even a spark of change in her perspective; is not even at stage 1 in the process of change. 121For all the reasons I have set out, I comfortably accept the assessment of the Director-General that there is no realistic possibility of restoration to the father. Is there a realistic possibility of restoration to the mother? 122The Director-General has assessed that there is a realistic possibility of restoration of all four children to the mother, and has submitted permanency plans involving restoration for the Court's consideration: s 83(2). The role of the Court is to consider whether to accept the assessment of the Director-General: s 83(5). Before the Court can make a final care order involving restoration, it must expressly find that there is a realistic possibility of such a restoration: s 83(7)(b). 123Apart from the father, everyone agreed that restoration of the children to the mother should occur. Even the father ultimately accepted that if restoration to her was not possible, it was preferable that the children be returned to the care of the mother, rather than be left in foster care. 124The clinician's assessment on this issue was supportive. In the Assessment report she said: "The children's restoration to their mother is cautiously supported as long as the mother can demonstrate the following": * Continued separation from the father, including not providing the father with any information about the children's situation and not allowing the father to attend an unsupervised contact with the children. * Continued and effective engagement with counselling and other supports as shown by appropriate counsellor feedback or reports. * Preparation for the children's restoration in a timely manner including suitable accommodation, discussions with the children and with school staff about school needs and transfer and plans for transfer of the children's extra-curricular activities. * Regular attendance at contact visits and maintenance of positive supervised contact reports, pending any transfer to unsupervised contact. * Positive reports of overnight/holiday contact. * The mother to agree she is the primary caregiver for the children and not place them with her parents for any respite, unless Family and Community Services agrees. 125The evidence establishes that the mother has satisfied or will meet each of these pre-requisites. She has also agreed to a series of undertakings. 126There is little more that needs to be said about restoration to the mother. I have read the written submissions on her behalf and those of the Department on the issue and generally agree with and adopt them. The mother has acknowledged her past inadequacies as a parent. She has undergone extensive counselling, which is continuing, and has made considerable progress towards acquiring insight and appropriate empathy for the children, and to deal with her anxiety and depression. She has been able to form a view of the father's behaviour and attitude to herself and other people that confirms that she is unlikely to return to being under the influence of the father. She understands the nature of non-contact abuse, and its effect on children. She has established herself domestically and from an employment perspective. There are appropriate arrangements in hand to accommodate, provide for and care for the children in a safe, secure and nurturing environment. 127I agree with Mr McLachlan that the objective appreciation of the mother's progress by the clinician has been enhanced by the mother's evidence, which was compelling in both its manner of delivery and the substance of its content. She exhibited a warmth of affection and manner when talking about her children, their interests, needs and progress, and demonstrated an awareness of their individual needs [25]. 128It is submitted that the Court would find that this is a case where there is not just a likelihood of her addressing the issues that caused the children to be taken into care but that they have been addressed [27]. I am content to find that the mother has made substantial progress, but she will continue to require substantial ongoing support and assistance. 129I find that there is a possibility of restoration to the mother that is both real and practical. It is sensible and, in my view, it accords with commensense. 130I expressly find that there is a realistic possibility of restoration of all the children to the mother having regard to: (i) the circumstances of the children, and each of them, and (ii) the evidence that the mother is likely to be able to satisfactorily address the issues that led to removal of the children from her care. Sequencing and staging of restoration 131There was disagreement, however, about the sequencing and staging of restoration to the mother. 132The permanency planning as it now stands proposes a two-staged process. First, restoration of Oscar and Paul through a highly supported phase over a period of 3 months. Oscar and Paul will remain in their current placements as they transition into the mother's care at the end of the first school term in 2013. Secondly, Hannah and Irene will be restored through a highly supported phase over a period of 6 months. The girls will remain in their current placement until the end of term one, when Oscar and Paul are to return into their mother's care. Then, Hannah and Irene will be transitioned into the care of the maternal grandfather and his wife who will be located in the same area as the mother. 133These proposals will allow for contact between the girls and their mother and brothers, and for the girls to enrol in a local school during Term 2. It is then intended to transition the girls into the mother's care no later than the end of the second school term of 2013. 134Ms Hartstein, for the Director-General, submitted (T 1298): "It is the Director-General's submission that the mother has shown that she is a person who is capable now of caring for these children and with assistance will eventually, and certainly it is hoped before the expiry of six months, she will be capable of having all four children living with her and have parental responsibility for all four children, save for the issue of contact, I will come back to contact later. One of the main issues in this matter, and certainly the main issue as between the department and the mother, is the proposed restoration plan and the timing of it. The mother has given evidence that she feels she is now ready to accept all four children into her care, and that she is capable of providing a good stable nurturing home environment for them. The Director-General does not wish to be heard to say that she's not capable of doing that, but given the issues of the past when she had some serious psychological problems and was unable to cope with all four children, given that she has not for a long time had a permanent job and has now recently just started that job, given that the children have not been in her care, that she has not had a lot of overnight contact or unsupervised contact with the girls, and that it is the aim of the Director-General to facilitate restoration with the least possible chance of things going wrong. It is the Director-General's view, in accordance with the view expressed by the clinician, that a staged restoration is the safest plan." 135 Mr McLachlan, for the mother, submitted that restoration of all four children might now proceed forthwith and together: "The mother, it is submitted, was right in saying that she feels that the boys are enjoying an unstructured and loosely disciplined environment where they are residing together in a group home without a continuity of parental figures. Her evidence is that she does not believe that that is in their interests and that the sooner they are returned the better... She did agree that as between the two sets, she felt that the boys were in greater need of that certainty given that the girls were placed together in a family environment. She felt, however that all could be returned safely and appropriately to her care with the supports that she has in place both professional and family... The children in May of this year will experience three years of removal from their mother. In their interests their return, as a matter of immediacy, should be the focus of this matter with ongoing significant supports and assistance from the Department and the services the Department has identified are integral to the restoration of the children to the mother's care." 136The Direct Legal Representative for Oscar supported the Department's plan: "In respect to Oscar being restored to the care of his mother I largely rely on the Director General's submissions as well as those of the legal representative for the mother. There is no issue that Oscar clearly wishes to live with his mother and his siblings with whom he is closely attached... On the basis that Oscar and Paul are restored to the care of their mother at the end of term 1, 2013 I do not seek to be heard as to in which order the girls and boys are restored to their mother's care." 137The Direct Legal Representative for Paul, however, advised that her client wishes for his transition to be deferred until the end of the 2013 calendar year, and submitted that meeting Paul's wishes in relation to this issue is in Paul's best interests [37]. 138The submissions in support of Paul's position included the proposition that given he is now 12 years and 11 months old, significant weight should be given to his wishes: s 9(2)(a) [35]. Further: "Given Paul's unsettled history, and clear need for a settled and routine experience, there is a rational basis for Paul remaining in Sydney with Oscar to complete his school year. This will allow Paul to continue to build a pattern of good engagement in education, as well as allowing him a further opportunity to extend peer relationships." 139I agree that Paul is old enough to form his own view, and that weight must be given to his wishes. But s 9(2) also requires that the weight to be given must be in accordance with the child's developmental capacity, and the circumstances. The principle is also subject to the paramount concern, that is, the principle that the safety, welfare, and well-being of the children are paramount. 140Paul's stated wishes must be viewed in the context of the totality of the restoration, as well as his own particular circumstances. They must also be viewed against a background that necessarily involves him not knowing the full picture: that is, he does not have the benefit of the clinician's opinion, or the evidence and submissions placed before the court. Nor does the Court know what may have passed between the child and his legal representative. Thus, the weight to be given to Paul's views, as conveyed to this court by a direct legal representative, must be very limited. The clinician said that each of the children, but specifically Paul and Oscar, require specific discrete intervention which she suggested had not occurred to date and about which she expressed some concerns. Having regard to those concerns, to Paul's own particular needs, and other concerns, including my view of the father and the conjecture that Paul may be a risk for 'self-placement', to delay his restoration and re-unification with his family, and for him to be isolated out from his siblings, is not consistent with his safety, welfare, and well-being. 141I therefore reject the notion that Paul's full restoration be deferred until the end of the 2013 calendar year. 142I am satisfied that the sequencing and staging of the restoration of all four children, as proposed by the Director-General is adequate and appropriate, is in the best interests of the children, designed to best ensure the stability and success of their restoration to and placement with the mother, and is consistent with their safety, welfare and well-being. 143That is not to say, however, that if the circumstances as they unfold permit, the restoration process should not happen more quickly. In this sense, I see the timelines proposed in the permanency planning as maximums, not minimums. Contact 144Future contact between the father and the children is problematic. 145The permanency planning proposes that subject to the father adhering to certain specific undertakings such contact should be for identity purposes and limited to four supervised sessions per year. 146The father's position is that she would like as a minimum to have contact at least 3 times a week and for such contact to not be supervised. 147The situation is exacerbated by the father's evidence that if restoration to her is not possible, she does not wish to have contact with the children 4 times a year, once a month or even once a week. 148Further, the father has consistently made clear that she will not subject herself to undertakings, and also that supervision is something that she resents. 149The direct legal representatives for Oscar and Paul submit 'identity' contact limited to 4 sessions a year is inadequate, and that undertakings by the father should not be a necessary pre-condition for contact. 150Ms Leis submitted on Behalf of Paul: "The overall picture is one where undertakings or supervision will cause there be to be a very low likelihood that contact will occur at all... On a risk benefit analysis it is submitted that there is not an unacceptable risk in Paul having time with his father that is not subject to supervision or undertakings from the father. The following reasoning supports this submission: (a) Paul will have the benefit of support at his Mother's home, both from his Mother and also from the intensive family support structure that is proposed. This will provide Paul with a safe opportunity to work through any problematic matters that may arise from contact. (b) Paul is now of an age where he can use some self-protective behaviours. Evidence of this appears in the manner in which Paul recently dealt with a contact issue, being an event where she, the father surreptitiously sought to communicate with Paul verbally and by concealed writing. Paul's response was to advise his mother, thus allowing the issue to be handed over to an adult: refer evidence of the mother. (c) Any risk is not likely to be a direct physical risk. (d) The risk associated with Paul not having contact with his father (as noted above) outweighs any risk of contact in the circumstances. (e) It is a less intrusive intervention into Paul's life to have a workable contact regime in place than to have none." 151The risk associated with Paul not having contact with his father to which Ms Leis refers includes: * "That Paul, soon to be an adolescent, will take contact into his own hands should he not have the contact he seeks with his father." * "That Paul will idealise his father in a way that is not helpful to Paul's development." 152Mr Samuel submitted on behalf of Oscar: "It would in my respectful submission be tragic were Oscar to lose contact with his father. The father has a lot which she could contribute to Oscar's long term welfare and growth into adulthood. It is acknowledged that any such contact must be in Oscar's best interest and not endanger his safety, health or well-being. Oscar however is nearly 15 years old. He is mature and wise beyond his years." 153On the other hand, it was submitted, on behalf of the Director-General: "It may seem that the regime being proposed by the Director-General is particularly restrictive, unnecessarily restrictive, but it is the aim of the Director-General to support the restoration of these children with their mother. Perhaps after some years, when the children are well established in their placement with her, there can be room for some negotiation in terms of contact, but clearly, at the moment, in terms of the permanency planning for these children the priority must be to achieve a stable placement with the mother. Everything points to that being a success save for the presence of the father in their lives and that is why the department takes the view that it does and I make the submissions that I do and say to this Court there is no possibility of restoration, no possibility at all of restoration to the father and the restoration to the mother requires that there be at this point no contact with the father." (T1301) 154The independent legal representative of the two girls, Ms Rutkowska, supports the position of the Director-General, but submitted that the provision for contact should allow for flexibility as the restoration to the mother stabilises and the children grow older and circumstances develop. 155The mother, for her part, wants the children to have ongoing contact with their father, provided the associated risk factors can be addressed. She does not, therefore, seek parental responsibility for the aspect of contact, at least in the short term, and prefers that any supervision be undertaken by the Department. 156The children's wishes are that they would like to have more contact with their father than that being offered by the Director-General, particularly Oscar and Paul. 157It is trite that the issues surrounding future contact with the children are to be approached from the perspective of the best interests of the children, having regard to their safety, welfare and well-being. From a safety perspective, the risk of further damage to them by this father is apparent, particularly her, the father's, propensity to denigrate the mother, and to infect the children with her paranoid view of authority. On the other hand, they clearly want a meaningful ongoing relationship with their father, and as the mother has readily acknowledged, there would be positives associated with that. 158All of the submissions have validity, and contact is something to be viewed over a protracted period of time, in which circumstances will develop and attitudes will fluctuate. My immediate concern, however, is to ensure that the restoration of the children is successful. Any risk to that is to be minimised, and the prospect of the father attempting to undermine the placement with the mother is not to be underestimated. 159In addition to the question of face-to-face contact, there is the spectre of electronic contact, including telephone, email, twitter, skype and the internet. The evidence in this case clearly indicates that this father has a facility for communicating by such means. 160For these reasons, I have decided to make no specific orders as to contact, but to allocate to the Minister parental responsibility for the aspect of contact, with a view to leaving to her discretion entirely the frequency and nature of future contact, what undertakings might be required from the father, and what supervision might be required for contact. 161I will however, express some views that I hope will be taken into account by the Director-General, caseworkers, and the father, when future contact is being considered. First and foremost, contact should be looked at from the perspective of the children. Second, any contact during the restoration phase, probably till the end of the supervision orders, should only occur if the father provides the undertakings sought by the Director-General, and the contact is strictly supervised. It is difficult to envisage how electronic supervision could be adequately supervised, and I would rule that out entirely in the short term. Once the restoration has been completed and the placement with the mother has stabilised, the Director-General should look at ameliorating restrictions on contact, both face-to-face and electronic. One might hope that once the reality of restoration to the mother, to the exclusion of the father, has become a reality, the father will modify her current harsh, selfish position out of consideration for the children, such that meaningful contact might occur. That will require, however, that the father engage with the Department in a non-confrontational way, and as a minimum, agree not to denigrate the mother, nor record any contact or conversations, either overtly or covertly, nor pass secret communications to the children or discuss the court proceedings with them or in their presence. Allocation of parental responsibility 162The proposal for the allocation of parental responsibility is that sole parental responsibility for all the children will be allocated to the Minister for a period of 6 months. Thereafter, all aspects of parental responsibility, other than contact, will be allocated to the mother, to the exclusion of the father, until the children turn 18, respectively. That aspect of parental responsibility which concerns contact would be allocated to the Minister, until the children turn 16, respectively. 163It is also proposed that there be supervision orders pursuant to s 76 of the Care Act for the first 12 months of the mother's parental responsibility, for the following reasons and purposes: (a) to monitor the restoration of the children into the mother's care; (b) to monitor the compliance with undertakings; (c) to monitor the father's compliance with the s.90A prohibition orders; (d) to provide referrals, supports, and/or services considered appropriate by the Director-General to support the children's restoration to their mother's care. 164I have given particular consideration to the principle that the course to be followed must be the least intrusive intervention in the life of the children and their family that is consistent with the paramount concern to protect them from harm and promote their development: s 9(2)(c). 165I am also comfortably satisfied that the Director-General's proposals for the allocation of parental responsibility satisfy that principle. 166I am not, however, totally satisfied that any other orders than those proposed would be insufficient to meet the needs of the children: s 79(3). Having regard to the circumstances of the mother and the risks posed by the father to the children, as identified in these reasons, in my view the aspect of contact should be allocated to the Minister until the children turn 18. That is not to say, however, that at a practical level, in the future, the Minister could not delegate that responsibility to the mother, in consultation with her, if circumstances then permit, at an earlier time. 167Mr Samuel, the Direct Legal Representative for Oscar, made certain representations, on instructions, concerning immunisation. Oscar has clearly expressed a view that he not be immunised and says he is allergic to such vaccinations. It is appropriate that the Minister and the mother take these matters into account when exercising their parental responsibility in relation to Oscar. 168For all the reasons discussed, I propose to allocate parental responsibility as proposed by the Director-General, subject to the variation I have foreshadowed concerning the contact aspect. Permanency planning 169I now turn to consider the permanency planning proposed by the Director-General, as set out in the Further Amended Care Plan for each child. 170I am satisfied that the permanency planning proposed by the Director-General aims to provide the children with a stable placement that offers long-term security: s 78A, and involves the least intrusive intervention in their lives and their family that is consistent with the paramount concern to protect the children from harm and promote their development. I am also satisfied that the planning meets the needs of each child: s 78A(1)(b), and avoids the instability and uncertainty arising through a succession of different placements or temporary care arrangements: s 78A(1)(c). 171I note that the permanency planning involves the mother giving a series of undertakings to the Court. These are set out below. 172For her part the father refuses to give the undertakings sought, but for the reasons given, this circumstance does not affect the permanency planning proposed. 173For all these reasons I expressly find that the permanency planning for the children has been appropriately and adequately addressed: s 83(7)(a). Prohibition orders 174The Director-General seeks certain prohibition orders against the father: 1. Until each child attains the age of 16 years, the father is prohibited from contacting the children by any means unless such contact has been authorised and/or arranged by the Director-General. 2. The father is prohibited from living at any address where the children may be living. 3. The father is prohibited from: (a) filming and/or photographing the children, their carers and/or professionals working with or providing services to any of the children; (b) posting information, photographs, documents and/or films of or relating to any of the children on social networking sites including but not limited to Facebook and Twitter; (c) publishing by any means whatsoever information, photographs, documents and/or films of or relating to any of the children. 175Section 90A of the Care Act provides to the following effect: "The Children's Court may, at any stage in care proceedings, make an order prohibiting any person, including a parent of a child or young person, in accordance with such terms as are specified in the order, from doing anything that could be done by the parent in carrying out his or her parental responsibility." 176The making of such prohibition orders is opposed by the Direct Legal Representatives for Oscar and Paul. 177Mr Samuel, for Oscar, submitted: "In respect to the issue of s 90A orders sought by the Director-General I would submit that that is completely unnecessary and over the top... it's just unnecessary, it's a restriction, it's basically an attempt in my submission to add unnecessary colour to these orders by painting the father in a bad light. I just think it's not necessary... I'm not saying that the order will make no difference if your Honour makes the contact orders which the Director-General is seeking, because the Director-General is seeking that parental responsibility for contact rest in the Minister until each child attain 18 - attain 16 years, that would mean that any contact decisions would be up to the Director-General in any event, a s 90A prohibition order is unnecessary. That's my submission, your Honour, and that's the view which I have in respect to that point." 178Ms Leis, for Paul, submitted: "It is submitted that a s.90A order prohibiting Paul's contact with the father, in the terms proposed by the Director General, is inconsistent with both Paul's wishes and any opportunity for the development of a meaningful relationship between Paul and his father." 179In response to these submissions I adopt Ms Hartstein's submission: "The Director-General appreciates that those representatives are acting on direct instructions and the Court should view the submissions made by those legal representatives in that light and give them the weight they deserve." 180I can only assume that the direct legal representatives somehow took a different view from everyone else about the father and the harm she has visited upon these children, and the risk she poses of further harming them in the future unless some steps are taken to curb the inappropriate behaviour that I have documented in these reasons. 181In so far as it is suggested that the proposed prohibition orders will inhibit contact with the father, I doubt they will be the determining factor. 182For my part, I am comfortably satisfied that the prohibition orders sought are desirable and appropriate. In the interests of promoting the safety, welfare and well-being of the children, and the success of the restoration to the mother. The proscription of the activities identified and the protection of the persons involved, including caseworkers, are critical to those objectives. Reports to the Court 183The Director-General has agreed to provide reports to the Court pursuant to section 82(1) at 6 months, 12 months and 18 months from the date of these orders in relation to the various matters, including progress of the restoration, the services and therapeutic intervention provided to the children; the services and therapeutic intervention provided to the mother; her compliance with her undertakings; any contact that may have taken place with the father; and the health, welfare and development of the children. I will make the appropriate orders for the provision of such reports. Disposition 184I turn finally to accept the undertakings of the mother, and to make the orders I have foreshadowed. 185I accept the following undertakings given by the mother: Until the expiration of supervision of the Director-General referred to in the Orders below: (a) To use my best endeavours to meet all minimum outcomes as listed in the Care Plans in order to achieve restoration of the children to my care. (b) To fully engage with and accept the supervision of Community Services and follow all reasonable directions. (c) To provide to Community Services a minimum seven (7) days' notice of any change of address and immediately inform Community Services of any change in telephone numbers. (d) To inform Community Services of the names and addresses of any person with whom I form or continue an intimate relationship and with whom the children or any of them spend time. (e) To submit to Community Services the name of any person I propose to care for the children in a respite capacity so that Community Services may assess and approve any such person. (f) That no other adult will reside in the home in which I live with the children unless I have Community Services' prior written approval. (g) To permit the Director-General or her delegate to enter any place of residence in which I and/or the children from time to time live. (h) To immediately notify Community Services in the event that the father makes any contact, or attempts to make contact, with me and/or the children outside that provided for in the Care Plan, arranged by Community Services, or approved in writing. (i) To maintain a clean, safe and hygienic home for the children. (j) To ensure that the children attend school every school day, and provide a medical certificate for any absences of more than 2 consecutive school days. (k) To maintain the children's dental hygiene. (l) To support the children's general health by attending a General Practitioner when necessary. (m) To attend and engage with any counselling and/or family support services as directed by Community Services. (n) To support the attendance of the children or any of them at one on one counselling and/or family therapy and will transport them to these services if necessary. (o) To not expose the children or any of them to any form of domestic or family violence. and Until each child attains the age of 16 years: (p) To not permit the father to have any contact with any of the children, outside that arranged by Community Services, or first approved in writing by Community Services. 186I make the following final care orders: 1. To the extent that any previous order is inconsistent with the following orders, such previous order is rescinded. 2. The Minister for Family and Community Services is allocated sole parental responsibility for Oscar, Paul, Hannah and Irene (collectively "the children") for a period of 6 months from the date of this Order. 3. The Minister is allocated parental responsibility for the aspect of contact for the children from the expiration of Order 2 until each child attains the age of 18 years. 4. The mother is allocated all other aspects of parental responsibility for the children to the exclusion of the father from the expiration of Order 2, until each child attains the age of 18 years. 5. The children are placed under the supervision of the Director-General pursuant to s 76 of the Care Act for a period of 12 months from the expiration of Order 2, the for following reasons and purposes: (a) to monitor the restoration of the children into the mother's care; (b) to monitor the compliance with undertakings; (c) to monitor the father's compliance with the s.90A prohibition orders; (d) to provide referrals, supports, and/or services considered appropriate by the Director-General to support the children's restoration to their mother's care. 6. Until each child attains the age of 16 years, the father is prohibited from contacting the child by any means unless such contact has been authorised and/or arranged by the Director-General. 7. The father is prohibited from: (a) living at any place where the children may be living. (b) (i) filming and/or photographing the children, their carers and/or professionals working with or providing services to any of the children; (b) (ii) posting information, photographs, documents and/or films of or relating to any of the children on social networking sites including but not limited to Facebook and Twitter; (b) (iii) publishing by any means whatsoever information, photographs, documents and/or films of or relating to any of the children. 8. The Director-General is to prepare reports at 6 months, 12 months and 18 months from the date of these orders in relation and the following matters: (a) The health, welfare and development of the children; (b) The progress of their restoration to their mother's care; (c) The services and therapeutic interventions provided to the mother and the children; (d) Compliance with undertakings and the s 90A orders; (e) Contact between the children and the father. 187I decline to make any specific orders as to contact. The Director-General is much better placed than the Court to consider issues of contact in the light of changing circumstances and exigencies, in consultation with the mother, consistent with the Minister's parental responsibility concerning the aspect of future contact of the children with their father. 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: 22 February 2013