District Court New South Wales Medium Neutral Citation: "A" v The Secretary, Family & Community Services [2015] NSWDC 307 Hearing dates: 26, 27, 28, 29, 30 October & 2 November 2015; Last submissions received on 3 December 2015 Date of orders: 18 December 2015 Decision date: 18 December 2015 Jurisdiction: Civil Before: Levy SC DCJ Decision: 1. Appeal allowed; 2. The Secretary of the Department of Family and Community Services is to prepare a new permanency plan consistent with these reasons; 3. The proceedings are to be listed on 29 January 2016, for the specific purpose of the parties bringing short minutes that set out the required draft orders to reflect these reasons, and which also fulfil any formal requirements of the Children and Young Persons (Care and Protection) Act 1998; 4. If required, liberty is granted to the parties to apply to the Court to relist the matter on such abridged notice as may be necessary, for the purposes of implementing these interim orders, and to identify the required final orders; 5. The exhibits are to be retained in the Court file pending further and final orders. Catchwords: CHILD CARE APPEAL – rejection of proposed permanency care plan providing for the permanent placement of two children into foster care – evaluation of flawed expert evidence that resulted in maternal grandmother being excluded from consideration for the placement of her two granddaughters into her care – orders for new permanency plan to be prepared to include transition provisions for transfer of placement and care Legislation Cited: Children and Young Persons (Care and Protection) Act 1998; s 8, s 9, s 10A, s79, s 83, s 86, s 90A, s 91, s 98, s 105 National Disability Insurance Scheme Act 2013 (Cwth) Cases Cited: BQZ v Challenge Community Services [2015] NSWCATAD 92 Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 Mason v Demasi [2009] NSWCA 227 Re Tracey [2011] NSWCA 43 Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442 Category: Principal judgment Parties: Randall Legal (Appellant) Ms S Nanlohy, Legal Aid NSW (The children) "D" In person (Father of second child) Byron Legal (Solicitor for foster carers) Crown Solicitor (First respondent) Representation: Counsel: Mr B Cochrane (Appellant) Ms C Smith (The children "B" and "C") "D" In person (Father of second child) Mr I McKay (Solicitor for foster carers) Ms M Neville (First respondent) Solicitors: Randall Legal (Appellant) Ms S Nanlohy, Legal Aid NSW (The children) "D" In person (Father of second child) Byron Legal (Solicitor for foster carers) Crown Solicitor (First respondent) File Number(s): 2014/353026 Publication restriction: Orders made pursuant to s 105 of the Children and Young Persons (Care and Protection) Act 1998 Judgment Table of Contents Preface [1] Suppression orders [2] Appeal [3] – [6] Evidence in the appeal [7] – [8] Overview of witness testimony [9] – [18] Issues on appeal [19] – [21] Representation [22] – [23] Positions taken by the parties [24] – [29] Litigation pseudonyms [30] Principles to be applied [31] – [32] Relevant risks of harm [33] – [34] Legislative changes since Children's Court hearing [35] – [37] Questions for consideration and determination [38] Factual background [39] – [121] Time bands for factual analysis [45] – [50] First period – 2008 to 11 March 2013 [51] – [66] Second period – 11 March 2013 – 28 November 2013 [67] – [88] Third period – 28 November 2013 – 21 October 2014 [89] – [111] Fourth period – 21 October 2014 to date [112] – [121] Review and evaluation of the oral evidence [122] – [277] Ms Breitkreutz – FaCS caseworker/manager [123] – [172] Foster carer "F1" [173] – [201] Foster carer "F2" [202] – [208] Appellant "A" [209] – [277] Affidavit evidence [213] – [216] First affidavit [217] Second affidavit [218] – [222] Third affidavit [223] – [224] Fourth affidavit [225] – [239] Fifth affidavit [240] – [243] Sixth affidavit [244] – [251] Oral evidence of the appellant [252] – [277] Expert evidence [278] – [398] Dr Koehler [280] – [302] Ms Lyons [303] – [395] Conclusions on expert evidence [396] – [398] Consideration of questions posed [399] – [442] Insight and responsibility for historical neglect [401] – [406] Appellant's capacity to provide care [407] – [429] Child protection issues [430] – [442] Other practical issues [443] – [460] Financial considerations [444] – [448] Therapies, treatment and education [449] Assistance from agencies [450] – [451] Attachment issues [452] – [457] Possible placement breakdown [458] – [460] Statutory provisions [461] – [477] s 9(1) – paramount principle [462] s 9(2) – other relevant administrative principles [463] – [465] s 10A – permanent placement principles [466] – [477] Consideration of best interests of the children [478] – [495] Flexibility and safeguards [496] – [513] Proposed care plan [514] Transition and support issues [515] – [522] Dispositive conclusions [523] – [527] Interim orders [528] Preface 1. I have concluded that this child care appeal should succeed, with the result that the previous permanent placement orders should be set aside and replaced with other orders that are more appropriate to the circumstances. This is not because of any claim of error on the part of the Children's Court Magistrate. Instead, the appeal succeeds because the more detailed, focussed and educated evidence that was adduced in the fresh hearing on the appeal has exposed flaws and unfounded assumptions that were not readily apparent within the expert evidence which based the decision of the Children's Court. The re-consideration on appeal must also reflect the relevant changes in the legislative provisions regarding permanent placement that post-dated the hearing in the Children's Court. Suppression Orders 1. On 26 October 2015, at the commencement of the hearing of these proceedings, orders were made pursuant to s 105 of the Children and Young Persons (Care and Protection) Act 1998, ("the Act") prohibiting the publication of the names of the two female children the subject of these proceedings, or the publication of any information or details of any other parties, witnesses or persons named in evidence, that would tend to identify those children, who have been in the care of the Department of Family and Community Services ("FaCS") and its delegated foster carers, since 28 November 2013. Appeal 1. This appeal is from the decision of the Children's Court at Lismore on 21 October 2014, which at that time determined there was no reasonable prospect of two young half-sisters, who are from the same mother but from different fathers, being restored to their respective parents. There is no challenge to that aspect of the determination. 2. In that determination, the Children's Court decided that parental responsibility for those children should be allocated to the Minister for Family and Community Services: s 79(1)(b) of the Act. In those events, it was determined that permanency planning for the care of those children had been adequately addressed: s 83(7) of the Act. 3. In anticipation of those orders being made, a care plan had been prepared proposing the permanent placement of the children with the present foster carers. The Children's Court made orders in accordance with that plan. In arriving at those decisions, the Children's Court also made provision for the maternal grandmother of the children to have only limited supervised contact with those children for one hour per month. 4. The maternal grandmother, being dissatisfied with those latter orders of the Children's Court, and being dissatisfied with the proposed plan for the permanent placement of the children, has brought this appeal to the District Court as of right. This appeal therefore proceeded as a fresh hearing, having regard to both the past events that were considered by the Children's Court, and the subsequent and more current circumstances that have evolved since the appealed decision of the Children's Court: s 91(2) of the Act. Evidence in the Appeal 1. The parties sensibly co-operated with the assembly of an array of relevant documents comprising departmental records, procedural documents, orders, medical, allied and care reports and a transcript of the earlier proceedings under appeal. These were helpfully collated by the Crown Solicitor on the Minister's behalf, and made available to all parties: Exhibit "1", Volumes 1 – 3, pp 1 – 1207. The other exhibits, in the series Exhibit "2" to Exhibit "17", will be referred to in the course of these reasons where it becomes relevant to do so. 2. Oral evidence was given by Ms Grace Breitkreutz, the caseworker manager of the Ballina office of FaCS, the present foster carers, the appellant and two clinical psychologists, Ms Roslyn Lyons, the nominated Children's Court clinician, and Dr Terry Koehler, who has assessed and treated the appellant. Overview of witness testimony 1. No adverse credit issues arose from the testimony of any of the witnesses. It was plain from the evidence they each gave, that they had the best interests of the children at the forefront of their thinking, although they approached that question from their very different perspectives. In those circumstances, it became necessary to evaluate the reliability of the respective testimonies. 2. Ms Breitkreutz steadfastly maintained her view that the children were best cared for in their present placement with the foster carers. That view was the subject of significant challenge. 3. Over the course of the last two years, the children have formed a strong attachment to their foster family, and the foster carers have also started to form a strong attachment to the children, whom they had initially accepted into their emergency care as a temporary measure. 4. The foster carers have provided a stable loving environment that has been attentive to the needs of the children, who have been diagnosed with emergent indications of global developmental delays. The children, who were severely neglected before being taken into care, have thrived in the care of the foster parents, who are keen to continue their care of the children in the long-term. The foster carers' efforts in caring for the children have been impressive. 5. The appellant is a loving and doting grandmother whose efforts in pursuing this appeal showed considerable determination and resourcefulness in seeking to have the parental responsibility and care of the children allocated to her in circumstances where the parents of the children were plainly unsuited for that role. The appellant remained calm and dignified in her denials in cross-examination, in the face of repeated assertions that she bore some responsibility for the prior neglect of the children that had resulted in them being taken into care. She gave similar dignified responses in denying the repeated assertions that she lacked insight into those matters. I considered her to be an impressive witness. 6. Both the carers and the appellant expressed genuine emotional reactions when their evidence was tested. No adverse comment arises from those expressions of emotion. 7. The evidence of the expert witnesses was polarised, which therefore requires a close analysis, including as to the factual basis of that evidence. 8. On the one hand, Dr Koehler considered that the appellant had the requisite insight into the prior history of neglect of the children, and in respect of their current needs, and that she is suitable to be allocated parental care and responsibility for her grandchildren. He had arrived at those conclusions in the context of having assessed the appellant after having provided her with counselling in respect of the shock and distress she had experienced as a consequence of the decision of the Children's Court on 21 October 2014. 9. On the other hand, in her reports, Ms Lyons, the appointed Children's Court clinician, considered that the appellant lacked relevant insight into the circumstances of the neglect of the children, and she therefore considered that the appellant was not in a suitable position to receive the children into her care. 10. The evidence of the respective experts must therefore be evaluated according to the validity of the assumptions upon which that evidence was based. Issues on Appeal 1. The appellant argued that the expert evidence upon which the care plan proposed by FaCS was based was factually flawed and was therefore unreliable: Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705. 2. The central factual matters in contest in the proceedings comprised certain foundation assumptions made by FaCS about the appellant, which, it appears, were not the subject of periodic review or appropriate modification over the course of time as more detailed facts and diagnoses emerged concerning the children. 3. The contested assumptions were firstly, that the appellant maternal grandmother had to a material degree been relevantly responsible for the neglect of the children before they were removed from parental care, and secondly, there was a related claim that she lacked relevant insight into those circumstances. Those matters were disputed by the appellant. The resolution of that dispute will be influential in the determination of the outcome of the appeal. Representation 1. In the appeal, the appellant maternal grandmother was represented by Mr B Cochrane of counsel. The two children who were the subject of the appeal were independently represented by Ms C Smith of counsel. Ms M Neville of counsel appeared for FaCS, the respondent to the appeal. The foster carers, represented by their solicitor, Mr IA McKay, took an active and adversarial part in the appeal in seeking to resist the orders sought by the appellant. 2. Neither the father of the oldest child, nor the mother of the children, sought to be represented in the appeal. The mother of the children, and the father of the eldest child, were not present at the hearing. The father of the youngest child was self-represented. The appeal was heard as a priority in a circuit list in Lismore over 6 consecutive hearing days on 26, 27, 28, 29, 30 October and 2 November 2015. Last submissions were received on 4 December 2015. Positions taken by the parties 1. The primary position of the appellant was that she sought to have the orders made by the Children's Court on 21 October 2015 set aside in favour of an order that the care and parental responsibility for both children be permanently allocated to her until the children reach the age of 18 years. 2. In the alternative to that primary position, as provided by s 86 of the Act, the appellant sought a greater degree of contact with the children than the very limited terms in which contact was permitted as ordered by the Children's Court. 3. The first of those positions was resisted by FaCS, and it was also actively resisted by the foster parents. However, in the days leading up to the hearing of the appeal, FaCS ultimately conceded that the appellant's level of contact with the children should properly be significantly expanded over a relatively short period of time: T158.4. In the course of those events, the foster parents abandoned the application they had filed on 18 May 2015, seeking guardianship of the children: T8.44; T12.17; T201.25; Exhibit "1", Tab 10, pp 348 – 350; s 79(1)(f) and s 79A of the Act. Nevertheless, they continued to remain represented in the proceedings and, by their solicitor, cross-examined witnesses, including the appellant: s 98(3) of the Act. 4. At the hearing of the appeal, the father of the youngest child initially opposed all orders sought by the appellant, arguing that the maternal grandmother was an unsuitable person to look after the children in any circumstances. His position in that regard was apparently due to the historically poor relationship between that father and the appellant. Initially, he also opposed any suggested changes to the present contact arrangements in favour of the maternal grandmother, for the same reasons. 5. During the course of the hearing of the appeal, that father's attitude to the appellant underwent significant change. Ultimately, he made no further submissions, and he was instead content to rely on the submissions made by counsel appearing on behalf of FaCS: T430.17 – T430.20. 6. At the conclusion of the evidence, the independent legal representative of the children supported the appellant's position which sought that parental responsibility for the children be allocated to her. Litigation pseudonyms 1. In accordance with the suppression order made at the commencement of the hearing, litigation pseudonyms have been assigned as follows: "A" The appellant, being the maternal grandmother of the children; "B" The youngest child the subject of the proceedings who is presently aged 4 years; "C" The older sibling of "B", who is presently aged 7 years; "D" The father of "B"; "E" The mother of "B" and "C"; "F1" The foster mother of "B" and "C"; "F2" The foster father of "B" and "C". Principles to be applied 1. Any decision required to be made pursuant to the Act concerning the children who are the subject of this appeal must be made according to the paramount principle of the safety, welfare and wellbeing of the children: s 9(1) of the Act. Any such decision must have due regard to the wide ranging objects of the Act: s 8 of the Act, and the applicable permanent placement principles: s 10A of the Act. 2. A primary focus of the legislation is the paramount need to protect at risk children from harm by identifying interventions that are the least intrusive in the lives of the children, whilst also acknowledging the need to promote the development of the children: s 9(2)(c) of the Act. In order to fulfil that requirement, the relevant risk must be identified. Relevant risks of harm 1. On the evidence in this case, the relevant areas of risk of harm to be considered in determining the paramount best interests of the children are, in combination: 1. The potential for neglect to recur in the care of the children; 2. Potential exposure of the children to witnessing domestic violence; 3. Potential exposure of the children to direct physical abuse; 4. Potential exposure of the children to direct or indirect psychological or emotional abuse; 5. Potential exposure of the children to the effects of abuse from drugs and alcohol; 6. Environmental insufficiency in the care, treatment and tuition arrangements for the children, that might hinder the promotion of their physical, emotional, developmental, and educational wellbeing; 7. The potential risk of placement breakdown. 1. Those considerations will be addressed in the course of these reasons. Legislative changes since Children's Court hearing 1. On 29 October 2014, the Act which governs the proceedings was amended by the insertion of a new s 10A, which sets out principles for the consideration of the permanent placement of children who have been removed from parental care. 2. The effect of the insertion of that amendment was to establish a ranked statutory hierarchy or code that must be considered by the court when determining the permanent placement of children who are the subject of care orders. On 18 November 2014, the appellant filed her summons which constituted the appeal. On 24 February 2015, the appellant filed her amended summons. 3. The determination of the appeal must therefore encompass a consideration of the s 10A amendment of the Act which was not previously available to be considered by the Children's Court. As this appeal is by way of a fresh hearing, the required consideration must also have regard to any relevant changed circumstances of the appellant that have arisen since the Children's Court made the appealed orders on 21 October 2014. Questions for consideration and determination 1. On a review of the evidence and arguments, I consider that this appeal requires the consideration and determination of the following questions: 1. Whether the appellant has relevant insight into the cause or causes of the children having been neglected; 2. Whether, in any relevant causative sense, the appellant bears any responsibility for the described neglect of the children; 3. Whether the appellant has the capacity to care for the children having due regard to their developmental, physical, psychological, emotional and educational needs; 4. Whether the appellant has an adequate understanding and ability to deal with child protection and risk of harm issues; 5. Whether the placement and care plan proposed by FaCS should be approved. Factual background 1. In the appeal, the underlying factual and legal justifications for the children being removed and taken into care were not disputed by the appellant, unlike the appellant's position with regard to the placement orders under appeal. The broad outline of the factual circumstances is as follows. 2. The mother of the children, who is now aged 29 years, had a troubled and unstable history, including ongoing mental health issues involving anxiety. Those matters can be traced back to multiple traumas that occurred in her childhood and teenage years, and the lasting consequences of those events, which occurred without fault on her part. In her adult life she had two problematic relationships from which she had borne the two children who are the subject of the proceedings. 3. None of those difficulties of the daughter can be attributed to parenting faults or any other claim of shortcomings on the part of her mother, the appellant. 4. The first child, "C", was born in 2008, and is now aged 7 years. The present level of contact between that child and her father was not fully explored in the evidence. It appears that he is permitted some access contact with that child but his health has not allowed him to fully take up that opportunity. 5. The second child, "B", fathered by "D", was born in 2011, and is now aged 4 years. The relationship between the mother of "B" and the father, "D", was, without dispute, characterised by a history of domestic violence against the mother. In more recent times, it appears that "D" has obtained some professional assistance with regard to his own mental health issues, and as a result of improvements in his situation, previous contact restrictions that had applied to him are now being relaxed, and he is now permitted to have some limited access and contact with "B". 6. Since being taken into care, both of the children have been diagnosed as having global developmental delay and, it appears, other psychological and behavioural problems, including attachment disorders. The diagnoses and the full extent and impact of those problems were not fully apparent at the time the children were removed and taken into care. Those diagnoses have slowly and more accurately emerged as a result of various investigations and tests that have been undertaken over time. Time bands for factual analysis 1. At this point it becomes necessary to review some relevant matters of history, which may be conveniently identified within four broad time bands during which the family has had contact with FaCS. 2. The first period spans the time between 2008 and 11 March 2013. In that time the family continued to have contact with the Wyong office of FaCS until that office closed its case file. That file closure occurred because the care plan in place at that time was considered to have been achieved and maintained, and the mother of the children had successfully engaged with the appropriate assistive services to the satisfaction of FaCS. 3. The second period relates to the time when the family moved to the Lismore area, and spans the time from 6 August 2013, until 28 November 2013, when the Ballina office of FaCS took the step of removing the children and taking them into care. That removal occurred as a result of escalating reports to, and concerns by, FaCS caseworkers, regarding the safety, welfare and wellbeing of the children. 4. The third period spans the time from when the children were taken into care, and continues until 21 October 2014, which was when the orders under present appeal, were made by the Children's Court. 5. The fourth period involves the period from when the Children's Court made its orders on 21 October 2014, and continues until the present time. 6. The summary that follows conveniently draws upon the helpful chronology prepared by Ms Smith: MFI "3". That chronology was source referenced to the voluminous documentary evidence. First period – 2008 to 11 March 2013 1. In 2008, the mother became pregnant with "C" whilst living on the Central Coast of NSW. At that time she had experienced mental health and drug-related issues which led to her situation coming to the notice of FaCS. In late 2008, after a brief period living on the South Coast of NSW following the birth of "C", she separated from the father of "C". She then moved to live with the appellant on the Central Coast. At that time, difficulties arose between the appellant and her daughter relating to the daughter's behaviour. Those difficulties arose from the daughter's mental health issues which were having an impact at the time. 2. In 2009, in the absence of the father of the first child "C", the problems experienced by the mother had receded to a more manageable degree, and as a result, the appellant was able to have regular contact with her daughter, and with her first grandchild. 3. However, those more manageable circumstances changed in 2010, when the appellant became aware that her daughter had commenced a relationship with "D". That relationship led to the birth of "B" in September 2011. The birth was by emergency caesarean section. In those events, FaCS became involved in contact with the appellant's daughter both before and after the birth of the daughter's second child. This occurred following various reports received by FaCS regarding concerns as to her wellbeing. 4. During that period, the appellant had been substantially excluded from access to the family. She therefore had little opportunity to influence the care of the children. This was because of the excluding behaviour of "D", who had at that time displayed considerable antipathy towards the appellant. 5. "D" had left the relationship with the mother between about February 2011 and April 2011. In that time, the appellant was again able to resume more frequent contact with her daughter and the children, and in those circumstances, she was able to provide some support to them. However, that position changed and became significantly reversed whenever "D" re-entered the relationship with the mother for various short periods between April 2011 and September 2011. During those periods, the appellant was again excluded by the dysfunctional and manipulative behaviour of "D". In that time, objective evidence of the evolving developmental delays in the eldest child remained obscured from view, and this was therefore also obscured from the appellant's understanding. 6. In that period, FaCS had received a number of reports about the welfare of the family. One such report had been received from a mandatory reporter at a time when "B" was less than a week old. That mandatory reporter was concerned about that child's weight loss and jaundice, conditions which subsequently required a hospital admission. From the events leading up to those circumstances, co-extensively, it appears that the mother had been assaulted, and had abdominal bruises to the site of her caesarean section surgery. The compelling inference is that the assault was as a result of the violent and damaging behaviour of "D". 7. In addition to a number of other reports from several mandatory reporters to the Wyong office of FaCS regarding the welfare of the children, the appellant herself made numerous reports to the Wyong office of FaCS to express her own concerns over such matters. Between July 2011 and April 2012, the dysfunctional relationship between the mother and "D" continued. 8. This resulted in the continued substantial exclusion of the appellant from any significant opportunity she might otherwise have had to influence the welfare and the situation of her grandchildren. In that time, the FaCS records show that there had been some 15 reports to, or contacts with FaCS, regarding the welfare of the children. The majority of those reports were initiated by the appellant. 9. In late 2011, FaCS became aware of a risk of serious harm to the child "C", who was then aged 3 years. At around that time, the appellant had made a series of contacts with FaCS to express her concerns about the relationship between her daughter, and "D", which raised questions concerning domestic violence issues, as well as questions concerning the wellbeing of her daughter and her grandchildren. 10. The relationship between the father, "D", and the mother of the children, had not been continuous. However, during the times that relationship continued to subsist, the appellant maternal grandmother was again effectively excluded from contact with the mother and the children. It was not disputed that this was as a result of the dysfunctional and threatening actions of the father "D". 11. At one point, the vindictive behaviour of "D" appears to have been due in part to the unfortunate circumstances where FaCS had inadvertently identified the appellant maternal grandmother to the father, "D", as having reported to FaCS her legitimate concerns regarding the safety and the welfare of the subject children. 12. At the time, that disclosure engendered some further animosity on the part of the father "D" towards the appellant, which had the effect of further excluding her from contact with her daughter and her grandchildren for significant periods. Those unfortunate circumstances were not conducive to either the maintenance or the development of the appellant's relationship with FaCS. Thereafter, the appellant maintained an understandable attitude of reserve and reticence towards FaCS, but not at the expense of the welfare of the children. 13. During the periods when the father "D" was absent from the mother's domestic situation, the appellant maternal grandmother sought to assist her daughter with the children. Throughout that period, the appellant maternal grandmother nevertheless made periodic contact with FaCS to register and to continue to express her concerns about the welfare of her daughter and the children, and her concerns over the apparent inability of her daughter to cope with the needs of the children. At times, those communications to FaCS extended to the appellant's expression of her concerns over the untoward influence, behaviour and activities of the father "D". 14. Over the period between 2011 and February 2013, FaCS had supportive and supervisory contact with the mother and her children. During that time there were emerging signs that the two children were both showing indications of developmental and global delays. Those problems required professional assessment and the provision of ongoing assistance and services to both the mother and the children. In that time, the mother was in touch with appropriate services for the children and for herself. Co-extensively, the appellant continued to maintain her interest in, and her concern for the family, including to the extent of having periodic discussions with the assigned FaCS caseworker. 15. In those events, on 13 February 2013, the Wyong office of FaCS had closed its case file in relation to the mother and the children as the mother was at that time considered by FaCS to have been successfully and sufficiently engaging with Northcott, the nominated family assistance service provider. 16. Nevertheless, in that period, the appellant had several contacts with the service provider, Northcott, to discuss issues concerning the mother's ability to cope with her anxiety, and regarding the mother's ability to get the eldest child to and from school. Those expressions of concern by the appellant were lodged on 16 and 17 May 2013. In that period, the FaCS caseworker at Wyong had determined that the care plan that was then current had been achieved. That conclusion was also recorded in the FaCS file on 11 March 2013. The appellant reasonably concluded from those circumstances that FaCS were satisfied with those arrangements, and the appellant's role in assisting the mother of the children whenever she was able to do so. Second period – 11 March 2013 to 28 November 2013 1. In about June 2013, significantly, there was a resumption of the relationship between the mother and "D", the father of the youngest child. Until then, the appellant had been helping her daughter in her efforts at coping with her own needs and those of her children, to the apparent satisfaction of FaCS. The resumption of that relationship resulted in the exclusion of the appellant from influence on the family. 2. By 6 August 2013, what then followed can be fairly described as a material and declining change in the mother's coping abilities. This was characterised by the mother failing to maintain compliant contact with the services with which she had hitherto been satisfactorily engaged. This was associated with her failure to maintain follow-up of the needs of both children, the non-attendance of the eldest child at day care for a significant period, and the unavailability of the mother to be contacted by concerned callers to the premises where she was known to have been residing. A mandatory caller had contacted the Wyong office of FaCS to express the concern that the father "D" had taken the family away to live in an isolated location. That concern proved to be justified. At that time, the family had moved to an isolated property at Armidale. 3. Significantly, in the course of those events, the appellant was not able to intervene in the interests of the children. The exclusion of the appellant from contact with the children in this period, and for that matter earlier periods, turned out to be an important factor of determinative significance to the appeal. 4. On 8 August 2013, the Wyong office of FaCS received a report expressing concern over the mental health of the father "D". That reporter expressed to FaCS the concern that the father "D" appeared to have been physically and emotionally abusing the mother and both children. At that time, concern was also expressed for the welfare of the eldest child, who was at that time in need of intensive intervention for her signs of global developmental delay. 5. On 8 August 2013, the FaCS Helpline also received two calls from the appellant to advise that she had been contacted by the mother to indicate that the family was coming back to the appellant's home in Wyong to pack their belongings and to then move to the Armidale area. 6. In the course of those events, after the mother and the father "D" had moved their belongings out of the appellant's premises a few days later, the appellant remained unable to contact them or the children. 7. On 16 August 2013, the appellant made a distraught telephone call to the service provider Northcott because she had been unable to contact her daughter or the children. Some short time later, the family had moved to an isolated location in the Lismore area. 8. On 20 August 2013, FaCS received a report that the children were living in circumstances where they were being locked in their rooms for 23 hours per day, and that the eldest child was not receiving her required interventions to address her needs due to her global developmental delay. By 30 August 2013, FaCS had located the current address for the family. It later transpired that the father "D" had only been allowing the children out of their room for 1 hour per day to eat and, it appears, to occasionally shower. He was reported to have sought to spuriously justify that course of conduct with a claim that doctors had told him the children needed to be locked away due to their disabilities. 9. By the end of August 2013, the Ballina office of FaCS had become involved in dealing with the escalating concerns over the safety and wellbeing of the children: T106.36. From that time, Ms Breitkreutz, the caseworker manager at the Ballina office of FaCS, had assumed the conduct of the relevant FaCS files, at which time she began pursuing her ongoing consideration of the safety and the welfare of the children: T43.49. 10. On 15 October 2013, FaCS visited the home where the family was located. At that time the oldest child appeared dirty, underweight, pale and with a limited vocabulary. When questioned as to why that child was not attending school, the father advised, unsatisfactorily, that she was having a break from school. 11. On 18 October 2013, FaCS again visited the home and noted the eldest child appeared dirty and was malodorous. FaCS informed the mother that the children needed to be cleaned up and that they needed to be respectively enrolled into school and childcare. At that time it was noted that the family were facing an impending eviction from their home in a further 3 weeks' time. 12. On 25 November 2013, FaCS again visited the family at home, at which time it was noted the home was malodorous. It was also noted that the eldest child, whilst clean, did not have appropriate bedding, was malnourished, and was extremely pale. The eldest child was observed to withdraw or flinch in the near presence of "D". At that time it was also noted that the scheduled medical appointments that had been arranged for the children had not been attended, and it appeared that no enquiries had been made by the parents about child care or support organisations. 13. In view of the aggregated circumstances outlined in the foregoing paragraphs, on 25 November 2013, FaCS determined that the children were in urgent need of care and protection. That view was a compelling one in the circumstances. By that time, the situation of the children had become perilous, and was of the utmost concern. Ms Breitkreutz described the living conditions of the children as having been very troubling: T87.30. Accordingly, a warrant was sought and obtained from the Children's Court to enable the children to be removed from parental care. 14. In making that decision, Ms Breitkreutz also reviewed the FaCS file relating to the family as was kept by the Wyong office of FaCS. On considering the whole history, she appropriately formed the view that the children were in need of protection. Accordingly, she decided that they should be taken into care: T44.20; T46.13. 15. In those events, significantly, Ms Breitkreutz had also formed the foundation or initial view that the appellant maternal grandmother lacked insight into "the severe neglect that had led to the children's delays": T49.5. Thereafter, she has consistently maintained that view, including when challenged on such views during the course of the hearing: T49.5; T49.49; T91.27. She was reluctant to make any concessions in that regard, where if made, such concessions might have shown the appellant in a less critical light than was being portrayed: T58.1 – T58.28; T61.36; T73.1 – T74.15; T96.48 – T97.25; T140.49 – T141.7. 16. Ms Breitkreutz based her initial views on her reading of the FaCS contact reports: T152.3 – T152.11. In June 2014, Ms Breitkreutz appears to have later had those views reinforced to her in a circular manner by what was a crucial conversation she had with the clinical psychologist, Ms Lyons, who had been engaged as the Children's Court clinician to evaluate the situation of the children: T88.25 – T88.45; T84.20 – T84.25; T85.20. That contact with Ms Breitkreutz had been initiated by Ms Lyons: T162.42. This is a matter to which I shall return in the course of a more detailed consideration of the significance of that event. 17. The claimed role, if any, of the appellant, in the neglect of the children and the cause of their developmental delays, was a matter of great contention in this appeal. The basis for Ms Breitkreutz's views as to the appellant's alleged role in the neglect of the children therefore requires close examination in the consideration of the issues raised in this appeal. 18. On behalf of the appellant, it was contended that in respect of the appellant's alleged role in the neglect, Ms Breitkreutz had mis-read the effect of the earlier FaCS records: T71.22. That contention was a cornerstone of the appellant's case. 19. On 25 November 2013, in anticipation of the children being removed and taken into care, the appellant made distraught contact with the Central Coast service provider Northcott, to explore the possibility of that organisation becoming re-involved in assisting the family if the family were to return to live on the Central Coast. At that time the appellant was desperately seeking to have the children placed into her care. That contact by the appellant turned out to be of no avail, as it did not change the course of subsequent events. 20. On 28 November 2013, FaCS removed the children from the care of the parents and placed them into the care of the current foster carers. At that time, that arrangement was of an emergency nature, and it was not intended to be permanent. 21. On 29 November 2013, which was the day after the children were taken into care, the appellant contacted FaCS at Wyong to advise that Wyong FaCS caseworker that the children had been removed by the caseworker at the Ballina office of FaCS and placed in emergency foster care. At that time, the appellant indicated her preparedness to take custody of the children. The Wyong office of FaCS contacted the Northcott organisation at Ballina to review the situation. At that time, the Northcott organisation indicated it would be prepared to support the family in the transition period: Exhibit "9". 22. The telephone contact summary record kept by the Wyong office of FaCS shows that between 4 December 2012 and 29 November 2013, there had been a series of about 32 notations, varying between telephone contacts and home visits, concerning the welfare of the children. Although some of those events comprised internal communications within FaCS, in that period, there were notes of 8 separate contact calls having been made to the Wyong office of FaCS by the appellant: Exhibit "9". Notwithstanding those matters, Ms Breitkreutz maintained her view the appellant lacked relevant insight. Third period – 28 November 2013 to 21 October 2014 1. Once the children were removed from their mother and taken into emergency out-of-home care, events moved relatively quickly, as would have been expected in the context of an organisational response where the welfare of children was at stake against a prior history of neglect. 2. It appears that in the course of those events, in their deliberations, the FaCS caseworkers did not seem to have considered the possibility that the appellant might be an appropriate alternative carer for the children. Although Ms Breitkreutz stated that she had not herself observed the appellant and had relied on the contact reports (T41.10), and telephone conversations which both she and her staff had with the appellant (T70.29), she had not formed a concluded view on that matter until she reviewed the clinician's report from Ms Lyons: T81.5. That report was not obtained from Ms Lyons until some seven months after the children had been taken into care by FaCS. 3. Whilst the children continued to remain in emergency foster care, FaCS built its case for the Children's Court proceedings the subject of the present appeal. That emergency care commenced with the present foster carers, "F1" and "F2", later became extended, pending orders of the Children's Court. It is undisputed that those carers have continued to provide very good care for the children until the present time. 4. On 3 December 2013, FaCS filed an application in the Children's Court at Lismore. The mother participated in that process and initially sought restoration of the children to her. Ultimately, at the hearing, the mother only sought contact with the children. In those proceedings, the father of the eldest child sought that the children be placed with him. Ultimately, he too also only sought contact. 5. The appellant maternal grandmother also sought to be joined to those proceedings. Initially she sought that parental responsibility be allocated to her, if not to the mother. The appellant ultimately acknowledged that in the lead-up to the hearing in the Children's Court, the mother was not in a suitable position to care for the children. In those circumstances, the appellant pressed for the children to be placed into her care. 6. On 5 December 2013, interim orders were made by the Children's Court at Lismore to the effect that parental responsibility for the children would be vested in the Minister for Family and Community Services. 7. By that time, a series of medical and allied assessments of the children had been set in train. Arrangements had also been made for appropriate school and pre-school enrolments for the children. 8. At that time, consideration was being given to the long-term foster care placement of the children with "F1" and "F2". It appears that at that time FaCS continued to hold the view that the appellant was still an unsuitable placement for the children. 9. Beforehand, by way of background, in September 2013, which was two months before the children had been placed into their emergency care, the foster carers had decided on a lifestyle change, and to do so, they had moved to a 160 acre farm some distance out of town. However, after the subject children came into their care, they found they were spending significant amounts of time travelling between Casino, Lismore and Ballina to meet all the necessary and growing number of appointments for the various interventions that were required to meet the evolving needs of the children. In those circumstances, they found they could not maintain that regime due to the emerging high needs of the children. 10. In early 2014, the emergency foster carers made contact with FaCS to express their concerns to FaCS to the effect that they felt they were unable to provide long-term care to the children because of the special needs of those children. It appears that at that time, the appellant was still not considered by FaCS as a viable alternative placement for the children in light of the stated inability of the foster carers at that time to provide long-term care. 11. However, by April 2014, the foster carers had changed their position in that regard. At that time, they advised FaCS that they were then in a position to provide long-term care for the children because they had changed their residential arrangements, and they had moved back into town: T188.20 – T189.6. The foster carers then indicated that they could therefore more easily attend the appointments the children were being increasingly required to attend. 12. Before the subject children were placed into their care, the foster carers had existing arrangements in which they had 3 other foster children on permanent placement in their home: T202.40. Those children also had special needs. With a total of 5 special needs children of varying ages in their care, the foster carers took the view that they did not intend to take any further emergency placements because at that time, they considered that their "cups [were] overflowing": T203.18. I took that expression to mean the resources and coping abilities of the foster carers were being utilised at a level that was close to, if not at, their reasonable limits. 13. On 3 April 2014, following some internal administrative changes, FaCS outsourced or delegated to an accredited agency its day-to-day responsibility for the care of the children, including matters of assessment, case planning, monitoring, financial responsibility for placement costs and supports. That agency was and still remains, as the Youth Care United Protestant Association ["UPA"]: T27.34 – T27.46. Since that time, that organisation had been the contact point between FaCS and the foster carers. 14. The foster carer "F1" is in a relatively unique position. She holds a permanent part-time employment position with FaCS as a senior caseworker, working a flexible 7 day fortnight. She has a long history of professional experience in dealing with the demands of children with special needs: T131.17; T187.30; T203.7. Coincidentally, the foster carer "F1" and Ms Breitkreutz, who made the decision to remove the children and place them into care, have had an 8 – 9 year acquaintanceship as professional colleagues: T131.20. 15. Ms Breitkreutz observed that once the children went into care, there has been a radical improvement in their condition and situation. She therefore believed that the observed improvement demonstrated that there must have been a chronic history of neglect and abuse: T107.18; T114.10 – T114.20. Having regard to later emerging expert evidence, including from Ms Lyons, to the effect that the delays in the children were not entirely due to neglect but environmental factors could also be influential (T356.24 – T356.44), that initial view held by Ms Breitkreutz turned out to be overly simplistic. 16. In June 2014, FaCS appointed the Children's Court clinician and psychologist, Ms R Lyons, to undertake an assessment of the children. On 23 June 2014, in undertaking her professional assessment, Ms Lyons sought out some initial input from Ms Breitkreutz through a telephone call that Ms Lyons had initiated: T84.20 – T84.25; T85.20. Those events, and their significance to the issues in the appeal, will be examined in closer detail in the consideration of those issues. 17. In the lead-up to the final hearing in the Children's Court there were a significant number of other medical and allied appointments directed at ascertaining the condition of health and development of each of the children. It is not necessary to here review all of those matters as they are adequately summarised in the chronology prepared by Ms Smith: MFI "3". 18. The effect of the passage of time during which the children have been in the care of "F1" and "F2", and also as a result of both medical and allied investigations, as well as the good care that has been afforded to the children by the foster carers, an increasing awareness has emerged of the extent of the developmental problems and delays that have affected each child. 19. On 1 August 2014, FaCS prepared a care plan for the children that envisaged that the Minister would have parental responsibility for the children until they reached the age of 18 years. That plan envisaged that the children would remain with the current foster carers. 20. On 25 September 2014, the Children's Court clinician, Ms Lyons, undertook her second assessment and prepared her second report, which was based on the same assumptions upon which her first report was based: T349.14 – T349.20. The appellant was not interviewed by Ms Lyons for the purpose of that second report. 21. On 20 October 2014, in the context of the Children's Court proceedings listed on that date, FaCS prepared and filed an amended care plan in which it was concluded that there was no realistic possibility of restoration of the children to the mother. In that context, a number of contact proposals were identified for the children to have contact with their birth family. 22. At that time, the appellant grandmother was inadequately prepared with evidence to meet the case brought by FaCS which she was seeking to resist. She was naive as to the legal process, and the case prepared on her behalf (by different legal representation to that which the appellant had in this appeal) was unpersuasive. At that time she was therefore unsuccessful in her endeavours to seek parental responsibility for the children. 23. Therefore, on 21 October 2014, the Children's Court made the orders which are the subject of the present appeal, by which parental responsibility for the children was allocated to the Minister until they reached their respective ages of majority. Fourth period – 21 October 2014 to date 1. Following the appellant's distress at the outcome of the Children's Court proceedings, she filed the present appeal by which she sought to have parental responsibility for the children allocated to her in lieu of the orders made by the Children's Court on 21 October 2014. 2. In conformity with the orders and care plan currently in place since 21 October 2014, the appellant's contact with the children has been significantly restricted to a monthly one hour supervised visit. As the appellant lived on the Central Coast until January 2015, she was not able to fully exercise her contact rights due to geographic problems. Some of the contacts therefore had to proceed through limited telephone calls. 3. At the limited number of contact visits that the appellant was able to attend, she had been under the close scrutiny of FaCS or UPA support workers, whose notes were used in these proceedings to seek to disentitle her, and to seek to undermine the viability of her standing as a potential alternative placement for the children. In my view, the criticisms of the appellant based on the content of those notes were themselves aptly summarised by counsel representing the children, as being petty in their nature, and of little probative weight, and not truly indicative of the appellant's parenting capacities. 4. In the lead-up to the present appeal, the appellant sought the professional assistance of her treating clinical psychologist, Dr Koehler, whose first report, dated 16 January 2015, had been preceded by a series of about seven professional consultations he had with the appellant. In the lead-up to the appeal, Dr Koehler provided his second report, dated 28 July 2015. 5. In the meantime, in May 2015, the foster carers filed an application for parental responsibility for the children to be allocated to them along with guardianship of the children: Exhibit "1", Tab 28, p 1101. By that event, the foster parents took an adversarial position to that of the appellant maternal grandmother. They sought guardianship at that time in order to place themselves in a position to better control the arrangements without restraints being imposed by FaCS and UPA: T201.22 – T201.29. 6. Although the guardianship application by the foster parents was later abandoned in the lead-up to the hearing of the appeal, the foster parents nevertheless continued to instruct their solicitor to actively resist the orders sought by the appellant. In that regard, the solicitor for the foster parents took an adversarial role in challenging the suitability of the appellant to assume the care and parental responsibility of the children. 7. It is sufficient to here state my finding that those challenges made on behalf of the foster carers were non-substantive, ineffectual, and drew upon irrelevant matters, including the appellant's remotely distant health issues that had long since passed. 8. Also in the lead-up to the hearing of the appeal, on 31 July 2015, FaCS obtained a third report from Ms Lyons. It is clear that Ms Lyons intended for all of her reports be read together: Exhibit "1", Tab 24, p 1091. Her third report had its factual foundations in her two earlier reports. Her latest assessment was also aided by observations she had made of the appellant with the children at an interview on 20 July 2015, followed by observations that were made at a scrutinised contact visit at a ten pin bowling centre for 1 hour on the same day: Exhibit "1", Ta 24, p 1091. 9. In her third report, which followed her second assessment of the appellant, the recommendation of Ms Lyons was for confirmation of the previous orders for the children to remain under the parental care of the Minister until the age of 18 years, and for the children to remain in the current placement with the present foster carers. 10. Those reports, and the supplementary oral evidence given by those experts, will be analysed shortly. Review and evaluation of the oral evidence 1. In the paragraphs that follow, before considering the questions for determination, I set out my review and commentary upon the oral evidence that was given by the respective witnesses in the order in which they gave their evidence. Where those witnesses had provided affidavit evidence, those affidavits will be identified. The review of the oral evidence conveniently commences with the evidence of Ms Breitkreutz. Evidence of Ms Grace Breitkreutz – FaCS caseworker / manager 1. Ms Grace Breitkreutz was the chief witness called by FaCS. Her evidence was extensive: T27 – T164. She is the manager of the Ballina office of FaCS. Ms Breitkreutz has had personal management of the involvement of FaCS in the care of the children: T44.15. Her involvement commenced in about August 2013: T106.36. 2. Ms Breitkreutz was the FaCS officer who was instrumental in removing the children and in placing them in the emergency care with the present foster carers. At that time, her working hypothesis was that the children had been subjected to chronic neglect going back to their days on the Central Coast: T82.36; T116.44. 3. That working hypothesis assumed that there had been an uninterrupted continuum of neglect. Insofar as Ms Breitkreutz sought to inculpate the appellant as having responsibility for that neglect, that working hypothesis was later shown to be incorrect. 4. In her managerial capacity, Ms Breitkreutz has overseen and supervised the casework in relation to the children "B" and "C" since they were taken into care on 28 November 2013: T27.8 – T27.10. Her interventions drew upon the contents of the earlier files and reports from the Wyong office of FaCS before her own involvement in the case, which had been since August 2013: T43.38. 5. The initial evidence of Ms Breitkreutz was contained in her successive affidavits which were respectively affirmed on 18 December 2013, 30 April 2015 and 30 September 2015: Exhibit "1", Tab 17, pp 531 – 820; Tab 9, pp 143 – 212; and Tab 9, pp 213 – 347. 6. Ms Breitkreutz's affidavits annexed the principal FaCS records, health and development assessments and other documentation relating to the children. Her affidavits also annexed voluminous documentation concerning contact arrangements and supervision notes, including in relation to the appellant. The salient features of that documentation were exposed to scrutiny in the course of the oral evidence. 7. In the course of Ms Breitkreutz's evidence it transpired that she is a longstanding professional colleague of the foster carer "F1", who is also a senior FaCS case worker in permanent part-time employment 7 days per fortnight with the Lismore office of FaCS. 8. Ms Breitkreutz confirmed that the placement of the children with "F1", and "F2", has resulted in the appellant's contact with her maternal grandchildren had been limited to a maximum of 1 hour per month until the present time: T28.46 – T29.1. Those arrangements also resulted in "D", the father of "B", having 4 contact visits per year with his daughter: T31.49. 9. At the outset of the care arrangements, it was Ms Breitkreutz who decided that the care of the children was not to be placed with the appellant: T33.3. Her decision in that regard was informed by her consideration of the historical FaCS records and reports that were then available to her. That decision has to be viewed in light of the appellant's contention that Ms Breitkreutz had misread the records: T71.18 – T71.34; T58.27. 10. It is plain that at a very early stage after the children had been taken into care, Ms Breitkreutz had formed the view that the appellant lacked insight into the consequences of the neglect on the children: T33.7. It appears that view was based on the assumption that the appellant had an historical causative role in the neglect of the children. 11. Ms Breitkreutz explained that initially, and before she obtained a clinician's assessment, she had not formed any firm views about the suitability of the appellant to care for the children: T83.32. However, she said she ultimately formed the view that the appellant was unsuited to that role, and until she formed that view, she had not considered the appellant as an appropriate placement to care for her grandchildren. 12. As has already been observed, during the hearing of the appeal, Ms Breitkreutz adamantly maintained that view throughout: T33.10. In expressing that view, Ms Breitkreutz considered that the children's problems when they were taken into care were due to severe neglect, although she later conceded that other factors also played a part in the aetiology of those problems: T33.26; T83.6. 13. Whilst neglect undoubtedly played a large part, as had become apparent following specialist investigations and testing of the children, those problems seem to have also been due to an admixture of the neglect that was evident when the children had been taken into care, and the effects of the later emergent developmental delays that could not all be attributed to neglect alone. 14. However, Ms Breitkreutz justified her views concerning the claimed role of the appellant on the basis of her opinion that the cause of the deficits in the children were due to chronic neglect rather than being due to organic causes: T47.35 – T48.45. In stating that view, she sought to blame the appellant's claimed lack of insight into the "severe neglect that led to the children's delays": T49.5. 15. In my assessment, that view did not reflect the fact that the relevant periods of neglect took place at times when the appellant did not have access to her daughter and to the children because of the conduct of "D", by which the appellant had been excluded from contact with the children. 16. Therefore, in that context, Ms Breitkreutz's evidence of her concerns that the appellant "doesn't fully appreciate or understand all of the things that led to the children being as delayed as they are" must be tempered with the fact that the appellant had been substantially excluded from contact with the children, and had little opportunity to obtain relevant information in those early days: T49.6; T49.47 – T49.50. The appellant was not in a position to know "all" such things, as was assumed by Ms Breitkreutz. It follows that Ms Breitkreutz's views in that regard, were not adequately informed by the facts. 17. In that context, and as a result of her views, which had become solidified over time, Ms Breitkreutz continued to consider the appellant to be an inappropriate alternative carer to the natural mother: T33.39 – T34.50. That view was based on her stated and consistently held concerns and beliefs as to the appellant's role in the history of neglect of the children. She also based her views on the expert opinion of the clinician, Ms Lyons and the departmental contact reports: T35.4, T41.10 and following. 18. In my view, the position of Ms Breitkreutz in that regard was problematic as Ms Lyons appears to have accepted Ms Breitkreutz's views as a basis for her analysis, and in turn revalidated those views back to Ms Breitkreutz in a circular fashion. 19. When Ms Lyons contacted Ms Breitkreutz at the outset of her assessment, she provided Ms Lyons with examples of her own concerns, such as an incident involving the child "C" having dislocated or pulled an elbow. As became apparent, in cross-examination on exposure of the true circumstances of that matter, Ms Breitkreutz, later recanted her concerns regarding the pulled elbow incident. However, those earlier views continued to influence those of Ms Lyons. 20. The opinions of Ms Lyons will be the subject of a separate analysis. For present purposes, it is sufficient to state that in my analysis, the assessments and opinions of Ms Lyons were, in this case, relevantly flawed due to the assumptions she had made about the appellant's role in the neglect. 21. Ms Breitkreutz's preliminary concerns over the appellant's understanding of the effects of neglect on the children was said to be a tentative view she held pending the receipt of the clinician's report, and she said she only concluded the appellant was in her opinion unsuitable, after she had received the report from Ms Lyons: T86.40; T88.40. However, that process had become circular, and it was therefore problematic. 22. Ms Breitkreutz's opinion to the effect that the appellant lacked relevant insight came from the concerns she held regarding the appellant: T91.27. The justification for those concerns is a question of fact to be determined. 23. A key disputed factual matter in that regard was Ms Breitkreutz's concern, which she expressed to Ms Lyons prior to her assessment, as to the appropriateness of the appellant's decision not to take the eldest child "C" to hospital following the dislocation of her elbow: T84.28; T93.46. When Ms Breitkreutz was cross-examined on that matter, it became plain that her concern in that regard was overstated and ill-founded, as the appellant had in fact sought medical assistance from an ambulance officer, who reduced the pulled elbow without the need for further medical attention. 24. When those matters were pointed out, Ms Breitkreutz ultimately conceded that on a consideration of a more accurate rendition of the factual circumstances, the appellant had acted correctly in that instance, and that the prior criticism she had made of the appellant in connection with the elbow injury should be withdrawn: T93.41 – T97.24. However, the earlier non-withdrawn view had already been exposed to Ms Lyons, and it had an influence on the assumptions made by Ms Lyons when she formed her opinions on that matter. 25. When her evidence was tested, Ms Breitkreutz agreed that the appellant had consistently exhibited concern over not only her daughter, but also her granddaughters, and that this demonstrated a measure of insight on the part of the appellant: T129.41 – T130.6. Ms Breitkreutz also conceded that FaCS did not have concerns that the appellant would herself physically abuse the children: T138.26. Furthermore, Ms Breitkreutz agreed that the appellant was to be regarded as "safe hands" from the viewpoint of ensuring that the children would not be exposed to domestic violence, or to household drug and alcohol abuse: T143.19 – T143.42. 26. Nevertheless, Ms Breitkreutz remained concerned that, without support, the appellant "wouldn't necessarily be able to meet [the children's] needs": T141.2. In my view, that evidence must be recognised as not rising above speculation as Ms Breitkreutz was not able to identify any evidence to suggest that the appellant would neglect the children's needs: T140.49 – T141.7. In that regard, Ms Breitkreutz indicated that if necessary, FaCS would provide the appellant with some support to ensure that there was appropriate access to services, including therapeutic services if required: T141.10 – T141.15; T142.6. 27. The concerns and opinions outlined by Ms Breitkreutz were also said to have been based on her review of the historical case reports within the FaCS files. In my assessment, her views were based on conflated perspectives, and a misreading of the factual matters in the files which has led her to the view the appellant was unable to cope with the needs of the children. 28. In my view, Ms Breitkreutz's views also took into account extraneous matters. It is not necessary to cite all the examples of that position when a few such examples will suffice: T35.1 – T35.14 (repeated unsupported claims of lack of insight); T35.24 – T35.39 (conflation of the mother of the children being stressed with the claim of the appellant being stressed); T37.14 – T37.17 (reliance on concerns exposed as being unsupported in a contact report over the appellant's ability to cope with two children in her care). 29. Significantly, on a number of occasions during her evidence in answer to questions asked in cross-examination, Ms Breitkreutz acknowledged and conceded that her evidence in which she stated the appellant demonstrated a lack of insight into the neglect and abuse that was causing problems to the children, was based on a misreading of the records, and that her earlier stated reading of the records was not open to her on the available documents: T71.18 – T71.34; T58.27. 30. On the issue of the appellant's insight into the plight of the children before they were taken into care, when Ms Breitkreutz's attention was drawn to the pattern of the appellant's reports to FaCS over the welfare of the children, Ms Breitkreutz ultimately conceded that a proper reading of the records shows the appellant had been a consistent reporter to FaCS regarding the concerning circumstances of the children: T57.10 – T57.21. Furthermore, she conceded that the appellant's reports to FaCS concerning her suspicions over the "very bad" circumstances of the children turned out to be "dead right": T57.26. In my view, those matters suggest that Ms Breitkreutz's assessments of the appellant's insight were incorrect. 31. Some of Ms Breitkreutz's cited concessions in that regard were made with some reluctance: T58.14 – T58.28. 32. Given the concessions made by Ms Breitkreutz, and the significance of those to the question of how the appellant should be viewed in terms of her fitness to take on the tasks of parental responsibility for the children, I consider that the position taken by FaCS in the proceedings generally should be viewed with considerable caution before acceptance. 33. I accept the submission of the children's independent representative that when the factual basis of Ms Breitkreutz's concerns over the appellant's present fitness to assume parental responsibility for the children are examined, they should be seen to have been largely based on relatively petty, or minor non-substantive descriptions of concerns raised by contact support workers at contact visits, which were artificial and not fairly illustrative or definitive of the appellant's capacities as a carer. 34. In my view, that analysis is confirmed by Ms Breitkreutz's concession that her concerns in that regard on differences of opinion that were reasonably open as to how the children should be cared for, were of a relatively low and comparatively insignificant order, and were compounded by the circumstances of a lack of adequate communication with the appellant: T51.6 – T51.35. 35. It also became evident that Ms Breitkreutz's assumption to the effect that the appellant struggled and had a lack of insight to the needs of the children was based on an incomplete analysis. In that regard, Ms Breitkreutz relied upon the observation of a contact support worker at a contact visit to the effect that the appellant struggled and became tense when the youngest child experienced distress: T51.50. When that matter was more closely examined in the evidence, it became evident that such observations needed to be tempered by the reality that the appellant knew she was being scrutinised in circumstances that were artificial, and this could have been a contributing factor that did not appear to have been taken into account in the contact report: T52.10. 36. It is also important to recognise that the observations of the contact support worker in that setting took place in the circumstances of a limited one hour session with the children in a fenced play area in a park, in poor weather conditions, where the appellant had picked up on the fact that the youngest child was unwell, and where the appellant had thought that child should not have been there. Those circumstances apparently resulted in an unexpected change to an indoor venue, which undoubtedly caused some disruption to the visit and to the assessment. The contact observer had remarked that when the child had become distressed, the appellant tried to soothe her, which resulted in the child responding by arching her back: T51.45 – T52.41. The appellant provided a different and credible explanatory description of that event. 37. In my view that criticism of the appellant's insights and coping abilities in the setting described were one-sided and lacked an appropriate balance in the sense that only a subjective narrow interpretation was initially proffered, and the comments were unreasonably hypercritical of the appellant, and involved no input or explanation from the appellant. In that sense, the comments were unfair as a basis of judgment of her capacities. 38. Ms Breitkreutz agreed that the appellant was without question, resourceful and committed to her grandchildren: T150.42. However, Ms Breitkreutz still maintained her doubt over the appellant's capacity to care for the children: T151.32. She based that view on the FaCS contact reports as her sole source of information: T152.11. In my view, that position taken by Ms Breitkreutz was based on meagre and unsound evidence insofar as it related to the appellant, to say the least. This raised significant doubts over the reliability of Ms Breitkreutz's evidence insofar as she made criticisms of the appellant. 39. The assumptions made by Ms Breitkreutz made little allowance for the undoubtedly stressful circumstances that applied to the appellant at the times when contact support workers made their judgments on the appellant's coping skills in circumstances of artificiality when she was being scrutinised: T52.8. Furthermore, as already observed, the petty and unreasonable adverse judgments were made of the appellant's coping skills at a time when one of the children was unwell at a supervised contact visit at which the appellant was being judged: T53.31. In the circumstances, I consider that the critical comments relied upon by FaCS were unfair. 40. On the question of the appellant's insight into the earlier plight of the children, I consider that the critical content of Ms Breitkreutz's evidence had the effect of understating the significance, force and the effect, of the appellant's serial historical reports to FaCS regarding her concerns over the safety and wellbeing of the children: T55.35 – T57.21. This was in circumstances where the appellant's concerns as communicated to FaCS turned out to be entirely justified: T57.27. 41. I consider that the general tenor of the evidence of Ms Breitkreutz did not include due acknowledgment of the appellant's motivations behind her communicated concerns to FaCS over the domestic situation of the children: T68.45 – T70.14. In that regard, the concessions Ms Breitkreutz ultimately made were reluctant, were not fully reflective of the historical records, and were based on questionable judgments she had made about the appellant: T70.26. 42. After making due allowance for the fact that the primary duty of Ms Breitkreutz was to assiduously consider the safety and welfare of the children, and to be an advocate in that cause (T81.21) it was nevertheless of concern that she was reluctant to make due concessions on relevant matters: T58.1 – T58.28. In that regard, I considered that the concessions she did make were unreasonably guarded: T61.36; T91.49; T96.48 – T97.24. 43. In one instance, Ms Breitkreutz's evidence appeared to be contradictory. She was of the view that the developmental delay exhibited by the children was due to neglect: T33.26. In contrast, she also acknowledged that the cause of developmental delay is not always known: T72.7. She believed that at the time the children were taken into care, they were not getting the stimulation they needed: T72.19. She also acknowledged that the criticisms being directed at the appellant on such environmental factors, such as the need for the children to have stimulation, could equally apply to FaCS, where the appellant was seeking guidance from the department on such matters, and that the requirements of FaCS had been fulfilled at the time. In the circumstances, where Ms Breitkreutz considered that the children were not getting the stimulation they needed (T72.19) this was hardly the fault of the appellant, where she had been denied contact with the children by "D". For the reasons I have stated, I consider that the appellant has been unfairly criticised in that regard: T72.19 – T72.50. 44. On the subject of neglecting the needs of the children, in this case, FaCS itself is not immune from criticism. Whilst the position of the department was in loco parentis, a medical issue concerning genetic testing of the child "B" emerged when that child was aged 3 years. 45. It remains unexplained as to why it took the department some 4 months to arrange for the appropriate genetic screening to be undertaken: T136.1 – T136.30. In that regard Ms Breitkreutz, the FaCS case manager in charge, said she could not exclude neglect as having occurred on the department's watch: T136.28. A delay of testing for 4 months in the case of a 3 year old child is a long time for unresolved diagnostic questions and doubts to remain outstanding on matters relating to developmental delay where treatment and management plans for early intervention to address such matters hinge on the results of such testing. 46. Significantly, Ms Breitkreutz acknowledged that on the question of the causes of the developmental delay of the children, FaCS had made wrong judgments: T78.48. In those circumstances, she ultimately acknowledged that it was difficult to criticise the appellant on matters of insight: T79.4 – T80.2. In my view this required a fundamental reconsideration of the forensic position adopted by FaCS as one of the essential planks in the position that FaCS was seeking to maintain was destroyed. 47. With some considerable reluctance and hesitation, Ms Breitkreutz ultimately agreed that she could not point to any evidence that the appellant had in any material way been resistant to the requirements of FaCS: T73.1 – T74.15. In fact, at the outset of the concerns that had been expressed by FaCS, the appellant had expressed her desire to care for the children at the time when they were removed from parental care: T77.47. 48. Significantly, at the time the children were removed from their parents, Ms Breitkreutz had not formed a clear view on the question of whether the appellant as a suitable alternative carer. Instead, Ms Breitkreutz ultimately relied upon the circularity of the assessment by the Children's Court clinician as to the issue of the appellant's suitability to care for the children: T81.1 – T81.17. FaCS seems to have based its position on the opinions of that clinician, Ms Lyons, which were given some 7 months after the children were taken into care. That period of 7 months seems to have been an inordinately long time to leave unclarified, the appellant's suitability as a carer for her grandchildren. As already foreshadowed, the validity of the views of Ms Lyons will be considered in a separate analysis. 49. In the overall circumstances of the case, no-one in authority at FaCS seems to have picked up on the circularity of the claimed view that the appellant was unsuitable for the role of carer. In my view, in the context of considering the human rights of those affected, where the placement and care of children are contentiously at stake, in the best interests of children, and in the context of the known delays involved before an appeal can be heard, such matters should not proceed on a set and forget basis of decision-making without appropriate and periodical analytical review by FaCS. 50. This is because inevitable delays occur before an appeal can be heard, and where errors can be identified and corrected. The effect of such delays can be damaging to the children involved. It would seem that the FaCS review policy and related supervisory oversight procedures on such matters could be usefully reviewed. Evidence of foster carer "F1" 1. The foster carer "F1" swore affidavits on 4 May 2015 and 1 October 2015: Exhibit "1", Tab 11, pp 351 – 360 and Tab 13, pp 363 – 383. She also gave oral evidence: T169 – T205. 2. In the first of her affidavits, "F1" emphasised her own suitability as a carer of the children. The structure and the content of that affidavit was plainly adverse to the claim by the appellant, and was directed at the issue of the foster carers seeking to retain the long-term care of the children, and at that time, also seeking guardianship of the children. 3. In the second of her affidavits, "F1" commented critically on the content of the appellant's affidavit evidence. Those comments will be considered in the evaluation of the evidence of the appellant. 4. Although the foster carers "F1" and "F2" initially sought to resist the appeal by seeking to have guardianship of the children, as earlier observed, that position was abandoned before the hearing of the appeal commenced. However, the foster carers remained represented in the proceedings to continue as active contradictors to the appellant's case. The evidence of "F1" was generally impressive on several accounts. 5. First, she is a professionally trained and experienced child care caseworker with many years of experience as a foster parent and carer. Secondly, she had a close acquaintance with the needs and the characteristics of the subject children, having been their assigned carer for the last 2 years. Thirdly, she has had an intensive history of experience and involvement with the special needs of the children, including her history of attendance on the providers of the therapies they have required. Fourthly, it is clear that she has the best interests of the children at heart, evidenced by her dedication to pursuing their individual needs for assessment, stimulation and therapies, as would a properly caring parent. Fifthly, she has a proven history of successful achievement as a foster parent, as well as being a parent of her own children, including caring for children with special needs. Sixthly, she and her husband have shown a commitment to self-sacrifice in attending to the needs of the children in their care, in contrast to her own needs and interests, as was evident from the change in the domiciliary plans of the foster carers. I gained the impression from her evidence that she exhibited commendable commitment and selflessness in her care for the children. 6. It was against that background that the upset reactions of "F1" to being cross-examined should be viewed. She was understandably defensive when her evidence was legitimately challenged, and accordingly, she gave some robust responses: T201.24. She was at times eager to provide justification for her position of comparative advantage over the appellant as the most appropriate carer of the children. The level of tension and apprehensiveness in her evidence was evident when she broke down, felt undermined, and lost her composure whilst being cross-examined by the independent legal representative of the children in what I considered to be a fair manner. 7. Those emotive reactions by "F1" were understandable as she felt under attack when her evidence was being tested. Her reactions were also understandable from the perspective that she has started to form a strong attachment to the subject children (T203.46), and her future involvement in the care of the children was under serious challenge in circumstances where there was a real risk of significant change to the current arrangements, depending upon the outcome of this appeal because the appellant has mounted a strong case for setting aside the challenged orders of the Children's Court. 8. In that regard, "F1" was given some reassurance as follows: "HIS HONOUR: ["F1"], don't be under any misapprehension. I think everyone in this room understand[s] the important and great work that you and your husband have put in to the care of these and other children in challenging circumstances and it's a credit to you, that you and people like you in the community are prepared to put yourself on the line for this activity. It is very important, but you must also understand that all of this occurs in a context where legal rights are involved and this is, in effect, a statutory inquiry [in]to the circumstances that will mediate a result one way or the other, and, therefore, these are legitimate questions that are being asked, as upsetting or challenging or annoying as they might be." 1. In the circumstances, "F1" was advised that her markedly emotional reactions to being challenged by cross-examination were not to be taken as being adverse to her credit as a witness, a matter about which she had expressed some anxious concern when the most pronounced of her emotional reactions had occurred: T202.34. 2. Ultimately, "F1" conceded that the appellant maternal grandmother had a right to be part of the children's lives. However, she considered that some emergent communication difficulties between herself and the appellant had created some obstacles to achieving that goal. 3. Whilst the subject children have been in their present foster care, communication difficulties and tensions had arisen between "F1" and the appellant concerning issues over the children's activities and their care: T191.46 – T196.15. In that context, this has caused "F1" to feel undermined and challenged: T198.35. In my view, this explains some of the guarded and defensive responses that were made by "F1" in answers to questions asked of her in cross-examination: T191.39 – T194.46. 4. In that context, it has been plainly detrimental to the best interests of the children that such tensions have been allowed to continue and to develop. Although "F1" has belatedly agreed that it would be in the best interests of the children if she and the appellant could deal more co-operatively with each other (T200.15), and although "F1" has now stated she would be willing to participate in a mediation in an attempt to achieve a better mutual understanding with the appellant (T200.19), the fact remains that until now, it seems that neither she, nor FaCS, nor UPA, had seen fit to take steps to set an agenda for this to occur, or to make arrangements for this to occur at any time in the past 2 years. This is despite the apparent ready availability of facilities for that purpose. In my view those circumstances have not operated to the benefit of the children, or to their best interests. 5. Those difficulties have unfortunately remained unaddressed, even until now, despite the availability of facilities within FaCS and UPA organisations for the mediation of such issues. Whatever the reasons for the non-resolution of those communication difficulties, that fact has operated to the disadvantage of the children in respect of maintaining their relationship with the appellant. This was because of the very limited opportunity the appellant had to see the children for only one hour a month, an opportunity she had not been able to fully exercise until she moved to the Lismore area. 6. I also infer from the evidence of the very hectic life within the household run by the foster carers (T205.20) that in the past, they, or at least "F1", had become frustrated, and had lost patience with the appellant maternal grandmother's repeated well-meaning suggestions, and her attempts to become more involved with the needs of the children. 7. That loss of patience by "F1" was evident in her evidence in which she sought to characterise the concerns expressed by the appellant, both to her and to UPA, as complaints and criticisms: T192.39 – T197.23. When those matters were explored it became plain that what the appellant had been expressing to UPA and to "F1" was simply her legitimate concerns about the welfare of the children. Those matters ranged from the extent of the children's activities, which she considered to have involved too many activities at the expense of rest, matters of appropriate footwear, diet, and a concern over the appellant's perception that the girls had been allowed to play with boys. The appellant's concern over the children playing with boys was that one of the girls was thought to have been exhibiting inappropriate sexualised behaviour, which naturally concerned the appellant. 8. It was plain that "F1" had taken umbrage at those matters and stated that she felt the appellant "was always advising me on what to do" and she chose to see such matters as the appellant's complaints: T193.45. The response of UPA and "F1" to those circumstances was to reduce the level of communication to the appellant because of alleged "continual complaints": T193.41. That position unfortunately became adversarial. I consider that those circumstances were due to a failure of supervisory and conciliatory intervention that should have been directed to that problem. The communication problems that emerged between the appellant and the foster carers were mismanaged, and they were allowed to fester. 9. In my view, the evidence of "F1" had mischaracterised the natural grandmotherly concerns of the appellant as "complaints". When that view was put to "F1" for her comment, she guardedly conceded the possibility that this was so, but nevertheless sought to justify her views in terms that sought to deflect the question by referring to extraneous and irrelevant comparisons to an apparent difference in personality between the appellant maternal grandmother, with whom she had contact over the course of 2 years, and a single meeting with the paternal grandmother of the youngest child, whom she had met her only 4 days before giving evidence: T195.8. I found that explanation, which plainly involved an attempt to deflect the force of the question, to be unconvincing. 10. Ultimately, "F1" changed the nomenclature from what she described as the appellant's "complaints" to the appellant's expression of "concerns": T195.23. She also acknowledged that the appellant's concerns may have been driven by her sense of disempowerment which arose from the placement of the children into care: T196.32. She also later acknowledged that the appellant's concerns had to be respected: T198.25. That evidence persuaded me that the initial evidence of "F1" which characterised the appellant's concerns as "always a complaint", involved significant overstatement driven by her emotional reactions to the appellant's attempts to seek to have a role in the care of her grandchildren against a background of disempowerment in that regard: T192.46. 11. It is clear on the evidence that "F1" had, until cross-examined, wrongly taken the appellant's expressions of concern as personal challenges directed at her, which caused her to feel undermined: T198.34; T199.47. 12. Ultimately, in cross-examination by Ms Smith, "F1" conceded that attempts by the appellant to have some input and influence into the day-to-day care of the children was not an unreasonable thing for the appellant to seek. In that context, "F1" also conceded that she had taken the appellant's comments to be criticisms of her. She also acknowledged that maybe her attitude to her perception of being criticised involved some hypersensitivity on her part: T197.1 – T197.23. I consider that concession to have been appropriately made by "F1". 13. In my view, it has been an unfortunate failure of the communication process that neither the foster carers nor UPA had taken sufficient steps to deal more co-operatively with the appellant in the past, in order to achieve a better understanding of their different perspectives in the best interests of the children: T200. The decision by UPA to place a communication "buffer" between the carers and the appellant's concerns turned out to be an unhelpful and problematic barrier to the appellant's concerns (T193.40) to what was mischaracterised as "continual complaints". Some form of early mediation would have been more preferable. 14. Instead, it seems that the possibility of a mediation was only raised in the course of the cross-examination of "F1". When the prospect of a mediation was raised with "F1", she acknowledged it would be a good idea, and one in which she would be willing to participate: T200.19. 15. In that regard, "F1" ultimately agreed that such a course, which promoted communication with the appellant and the carers, would serve the best interests of the children: T200.39. In the interests of all concerned, it is unfortunate that this realisation had not occurred at an earlier point in time before the position became entrenched. In the context of these reasons, it is not necessary to delve further into the cause for such an intervention not having occurred earlier. 16. The credentials of "F1" that qualify her to care for the children are undoubted. She has been a foster carer for 18 years: T169.25. She has cared for the subject children for nearly 2 years: T169.29. The children have attachment disorders which place high demands on her as a carer. In that regard, for at least the time being, "F1" has access to her 22 year old daughter as an available respite carer. That daughter is studying to be a special education teacher, and is herself an authorised foster carer: T169.31 – T170.5. 17. Furthermore, "F1" has a proven history of having raised two other special needs foster children in addition to her own three children, one of whom also has special needs due to cerebral palsy. The two other foster children are now adults who live independently but continue their contact with "F1" and "F2". Their child with cerebral palsy is also now an adult who lives out of the family home in a supported living setting. 18. The foster carers presently look after 5 children in permanent placement in their home: T202.40. In addition to the 4 year old and 7 year old special needs children who are the subject of this appeal, there are three other special needs foster children in their care, a female child aged 15, who has a mild intellectual disability involving attention deficit disorder and oppositional defiance disorder, another female child aged 8 who has a genetic disorder of her vision, and a male child aged 17 who is in the process of transition into independent living: T170.39 – T171.44. The combination of the practical and emotional challenges posed by those circumstances would be daunting to most families. 19. Despite the hectic domestic life in the foster care household (T205.21), "F1" has managed to attend all necessary appointments the children have so far required for their therapies. Without apparent difficulty, she appears to be able to work flexible hours or take time off from her work as a senior caseworker on an as needs basis in order to do so: T187.30 – T187.34; T187.49; T189.37. 20. In the course of the cross-examination of "F2", it emerged that in the context of domestic arrangements, where "F1" worked permanently in outside employment 7 days per fortnight as already described, he was the main carer of the children in the home, and for this to occur, he has not pursued other employment outside the home for some years: T208.31 – T208.33. 21. There is no doubt that between them, the foster carers are committed to caring for the needs of the children: T203.47. The children have bonded with other family members, both past and present: T181.43. Whilst in foster care, the children have been beneficially exposed to a variety of sports and other pursuits, including music lessons, and the children have also been assisted in maintaining some limited contact with their fathers: T174 – T175. Evidence of foster carer "F2" 1. The foster carer "F2" swore an affidavit on 4 May 2015: Exhibit 1, Tab 12, pp 361 – 362. He also gave brief oral evidence: T206 – T210. The affidavit by "F2" provided formal evidence that he was an authorised caseworker for UPA, and that he considered the affidavit of his wife, "F1", sworn on 4 May 2015, to be true and correct. 2. I considered that the foster father, "F2", was an impressive witness. In the past, he had been a university lecturer, and later, a teacher. In later years, he has opted to be the main stay-at-home carer for five children with special needs, including the two children who are the subject of this appeal: T208.34. It must be acknowledged that such work is difficult and requires dedicated commitment, which has been applied in this case. 3. "F2" is aged 59 years and he is in good general health. He has not pursued outside employment since taking on a second foster child some years ago: T208.37. His daily routine is that until about 5.45pm on the days that "F1" works outside the home in her role as a FaCS caseworker, he is the sole carer for the subject children, "B" and "C": T209.18. He has been able to manage those challenges: T209.38 – T209.47. He has been diligent in the arrangements for and follow-up of medical testings of the children. Occasionally, "F2" leaves the care of the children to his adult son, but for no more than 45 minutes at a time: T210.7. 4. At appropriate times during his answers to questions asked of him in cross-examination, "F2" made fair concessions that could be seen as having been generally favourable to the appellant's case. In my view, this indicated he was a fair, truthful, non-combative and reliable witness. 5. As to the special challenges that the subject children posed in terms of caring for them, the evidence of "F2" was as follows: "Q. […]. What I want to ask you, though, is, if you were somewhere, say, with your son, for instance, you'd try not to put that pressure on too much, but say you were at the park with your son and there was a difficulty with one of the kids, would it be normal enough for you to say to your son, "Can you keep an eye on this kid for a second, while I sort this out?"? A. Yes. One doesn't have to keep one's eyes on the children all the time. One has a watching brief, in my opinion, with these children. Around ["B"], the younger of the child, you have to watch her constantly. If you haven't laid eyes on ["B"], within ten seconds, she could be in great danger. I extend that time for ["C"] because ["C"] has she knows more. She's more she's not more intelligent, but she certainly has more knowledge and she has more capability around expressing her needs and danger and so my view is that, yes, it might be the case that I ask him to keep an eye on one of the children, but I've many times took the children to the park and my view is that as long as you've got a watching brief on each child, and the watching brief for ["B"] is virtually on top of her and the watching brief for ["C"] is to be able to see her, and she understands that, "I have to be able to see you" Q. Then it's manageable? A. It's manageable, yes." [T210.10 – T210.30] 1. The above concession (at T210.7) made by "F2", to the effect that he regarded it as normal to ask his son to keep an eye on one of the children if there was a need to momentarily attend to the needs of another child, to a degree demonstrates the pettiness of some of the criticisms levelled at the appellant by caseworkers and contact support workers in relation to the appellant's management of contact visits. 2. The context was that during a time pressured one hour contact visit, when the appellant was being scrutinised, she had asked for the contact supervisor to take on the role of temporarily watching the youngest child whilst she directed her own attention to the immediate emergent needs of the other child. The comparison is instructive. This topic will be revisited in the course of evaluating the evidence of the appellant. Evidence of the appellant "A" 1. The appellant is a 57 year old single grandmother who presently lives alone in temporary holiday accommodation in the Lismore area pending the outcome of this appeal. At present, she is an applicant awaiting the allocation of suitable public housing in the Lismore area. That application will remain undetermined until the present appeal is determined: T261 – T262; T335.45 – T335.47. 2. The appellant is in reasonable general health. She has regular contact with her daughter, the mother of the children who are the subject of this appeal. The mother of the children continues to have emotional and mental health issues as already referred to in paragraph [40] above. In the lead-up to the appeal, the appellant has had the benefit of skilled professional psychological counselling concerning issues that have emerged from the aftermath of the removal and the placement of her grandchildren into out-of-home foster care. 3. In the past the appellant has worked as a hospital ward clerk. She left that work about 17 years ago due to a chronic fatigue condition which had affected her for a time. Since then she has become a pensioner. There is no evidence to reasonably suggest that the appellant has any physical or psychological impairments that would prevent her from successfully attending to the practical day-to-day needs of her grandchildren, each of whom have been diagnosed with special needs associated with their developmental delays. 4. The appellant impressed me as an intelligent, calm, determined and resourceful person who was mature in her outlook, and who was careful in attending to the task of giving evidence. She has demonstrated that she has been, and continues to be, prepared to undertake relevant research and learning in order to improve her knowledge on the special needs of the children when required. In my view, this demonstrated a flexibility of outlook on her part that was inconsistent with the opinion of Ms Lyons to the effect that she thought the appellant was rigid in her presentation: T363.36; T401.7. For the reasons that are included in my review of her evidence, I considered the evidence of the appellant on factual matters to be reliable. I found the appellant's evidence to be entirely credible. It was not suggested that her evidence was in any way insincere or disingenuous, although Ms Lyons implied otherwise in her oral evidence on the subject of the appellant's account of the pre-removal state of the children: T358.15. Affidavit evidence of the appellant 1. In the paragraphs that follow, the appellant's affidavit evidence will be reviewed, followed by a review of her oral evidence. 2. The real questions that arose for assessment from her evidence were whether the appellant had relevant insight into the cause of the neglect of the children, and whether the appellant had been responsible for that neglect. 3. The appellant has relied upon six affidavits that she respectively affirmed on: 1. 15 March 2014, Exhibit "1", Tab 21 pp 992 – 994; 2. 15 October, 2014, Exhibit "1", Tab 22 pp 995 – 1000; 3. 16 February 2015, Exhibit "1", Tab 3 pp 12 – 27; 4. 16 April 2015, Exhibit "1", Tab 4 pp 28 – 64; 5. 3 August 2015, Exhibit "1", Tab 6 pp 110 – 135; and 6. 12 October 2015: Exhibit "1", Tab 7 pp 136 – 142. 1. The appellant's oral evidence in chief was relatively brief, and explained some matters within her affidavits (T212 – T215). She was cross-examined extensively on behalf of all other represented parties: T215 – T335. I now turn to a review of the appellant's affidavit evidence. First affidavit of the appellant 1. The appellant's first affidavit, affirmed on 15 March 2014, was formal in nature, and was filed in support of her application to be joined as a party to the Children's Court proceedings. She made that application because she believed at that time, she could provide the children with a safe and secure environment, and that this was the best option for the children as an alternative to parental care which was not a viable option: Exhibit "1", Tab 21, p 995, paragraphs 4 and 5. Second affidavit of the appellant 1. The appellant's second affidavit, affirmed on 15 October 2014, which was prepared in the week before the hearing took place in the Children's Court, set out in greater detail, her application for the children to be placed with her. 2. In her second affidavit, the appellant variously either took issue with, or explained, a number of factual matters that had been set out in the first report of Ms Lyons. In the context of this appeal, it is not necessary to traverse the detail of those matters here as they have been largely overtaken by events and because the issues to be addressed in the appeal have become broader than was the case in the more narrowly focussed hearing in the Children's Court: : Exhibit "1", Tab 22, pp 996 – 999, paragraphs 11 – 42. 3. Instead, it is sufficient to say here of the above matters of comment by the appellant, that they dealt with positions of differing perspectives and emphasis that had been adopted by Ms Lyons in setting out her factual summary and her conclusions. 4. In the appellant's second affidavit, significantly, she pointed to her belief that the neglect of the children, had occurred after they had left the Central Coast, and in circumstances where they were away from any opportunity for the appellant to have influence. This also occurred at a time when the damaging behaviour of the father "D" was having an adverse impact upon the family. The appellant also pointed to her belief that, at the time of the removal of the children, FaCS had not appreciated that the neglect with which it was concerned, was of a relatively short term duration that was capable of being addressed without the need to remove the children: Exhibit "1", Tab 22, pp 995 – 996, paragraphs 5 – 7. Although history has overtaken that position, it was a position that merited closer evaluation at the time. 5. The focus of the appellant's second affidavit was that she was seeking for parental responsibility to be allocated to her. That position was based on the appellant's acceptance of the premise that at that time, and in the immediate future, the mother of the children was not in a good position to care for them due to her own particular issues and due to the impact of her exposure to domestic violence from the father "D": Exhibit "1", Tab 21, pp 995, 996, 999, paragraphs 2 – 10, 43 – 44. Third affidavit of the appellant 1. The appellant's third affidavit, affirmed on 16 April 2015, outlined her history of having obtained psychological counselling from Dr Koehler soon after the lodgement of the present appeal. She also identified her disagreement with the assessment of the Children's Court clinician, Ms Lyons, stating that the assessment by Ms Lyons did not properly reflect her relationship with the children, or her capacity to provide parental care to those children: Exhibit "1", Tab 3, p 13, paragraphs 2 – 5. 2. The relevant changes in the appellant's situation at that time were first, that on 27 January 2015, she had applied for legal aid, which was granted on 9 February 2015, which meant that her appeal proceeded with adequate resources and skilled professional assistance, and secondly, on 31 January 2015, she had moved to the Lismore area in the hope that this would assist to facilitate a successful appeal, or alternatively, improve the scope for her to have expanded terms of contact with the children than has hitherto been the case: Exhibit "1", Tab 3, pp 13 – 14, paragraphs 6 – 9. Fourth affidavit of the appellant 1. The appellant's fourth affidavit, affirmed on 16 April 2015, set out details of her personal history, and that of her family, including some detail of the physical and psychological traumas that the mother of the children had incurred, the early family dynamics, and the steps that had been taken by the appellant to come to terms with those events: Exhibit "1", Tab 4, pp 29 – 31, paragraphs 5 – 13. 2. The appellant's fourth affidavit also dealt with a period shortly after the birth of the first child, "C", when the appellant took about 6 months to recover from major abdominal surgery, and the comings and goings of her daughter and the first child in that period, and the exhausting impact those events had on the appellant due to her surgery and her reduced ability to attend to her usual physical tasks. In that time, the appellant, with the assistance of a local organisation called Brighter Futures, encouraged the mother to obtain temporary accommodation in a refuge as the appellant was not well, and was feeling overwhelmed with the living arrangements. The appellant explained that move was also aimed at bolstering the independence of the mother of the children, whose self-esteem had become depleted by events. 3. As a result, the mother and the first child moved to live in a refuge in Gosford for about 3 months, but with continued regular contact with the appellant. After being in the refuge, the mother obtained accommodation in a two bedroom flat at The Entrance for about a year, and they then moved to a house in the area. The appellant kept in regular contact with them, the house was clean, the required chores were attended to, and the first child appeared to the appellant to be developing normally: Exhibit "1", Tab 4, pp 31 – 34, paragraphs 14 – 26. 4. In about September 2010, the mother commenced what became an on-and-off relationship with "D". This saw the onset of the appellant's concerns that the presence of "D" was having a deleterious effect on her daughter and the daughter's first child. In that time, the appellant was able to provide the mother and the first child with assistance whenever "D" was absent: Exhibit "1", Tab 4, pp 34 – 35, paragraphs 27 – 33. 5. In September 2011, by the time the second child was born as a result of the mother's relationship with "D", the appellant's concerns escalated, and she commenced reporting contact with the Gosford and then the Wyong offices of FaCS. From then on, the appellant's concerns over the progress and development of the children increased, but due to the presence of "D", there was little opportunity for the appellant to intervene. 6. The appellant became increasingly concerned about the welfare of her daughter and her children. When the youngest child was 3 years of age, the appellant contacted FaCS to make a risk of harm report. The appellant's contact with the family in that period was necessarily limited by the behaviour of "D". The appellant's continued contact with FaCS to express her concerns continued periodically until "D" left the family in about April 2012: Exhibit "1", Tab 4, pp 36 – 38, paragraphs 34 – 44. 7. In April 2012, once "D" had left, the appellant went to the home of her daughter and observed the presence of rubbish and other unhygienic conditions, which she reported to FaCS. She worked to clear up that rubbish and she continued to assist the family until about mid-2013, which was when "D" returned, and her influence then ceased due to the behaviour of "D". In the interim, the appellant maintained periodic contact with FaCS, and FaCS also maintained contact with the family. The appellant provided support to her daughter, and encouraged her to seek to access available services, for which there were waiting lists. By September 2013, the oldest child "C", had been assessed by the Child Health Assessment Team, and it was ascertained that the eldest child was exhibiting behavioural problems which had not previously been evident at the time when the appellant was involved in their care: Exhibit "1", Tab 4, pp 38 – 41, paragraphs 45 – 56. This was a matter of some significance. 8. Significantly, the appellant observed that in early to mid-2013, the children had many skills, which she listed, and which they did not appear to have had in November 2013, when they were taken into foster care: Exhibit "1", Tab 4, pp 41 – 42, par 57. The clear inference is that the children had experienced a deterioration in their skills in that period of time. I accept the appellant's evidence in that regard. 9. In mid-2013, the appellant again became excluded from contact with her daughter and grandchildren by the conduct of "D". She then lost physical contact with the children until they were removed and taken into care: Exhibit "1", Tab 4, p 43, paragraphs 59 – 61. 10. Thereafter, the appellant's contact with the children became very limited. She attempted, without success, to obtain financial assistance to enable her to travel to Lismore in order to seek to exercise visiting rights at contact visits. She achieved some small measure of success in engaging the Dispute Resolution Services of FaCS, but she was constrained by her limited resources at that time. A compromise was effected, and telephone contact was agreed upon, but this was not always fulfilled by the foster carers at the appointed times. That telephone contact then ceased after the hearing in the Children's Court on 20 October 2014: Exhibit "1", Tab 4, pp 44 – 45, paragraphs 63 – 66. 11. Thereafter, between 19 December 2014 and the date of the hearing of the appeal, the appellant was only permitted to have 10 supervised contact visits with the children. This was despite the appellant having moved to Lismore in early 2015: Exhibit "1", Tab 4, pp 44 – 45, paragraphs 67 – 68. 12. Despite those limitations on contact, the appellant believes the children know that she is a special person in their lives, and that the previously established strong bond she had with them is in the course of being re-established: Exhibit "1", Tab 4, p 46, par 69. 13. Following the orders of the Children's Court on 21 October 2015, the impact on the appellant was that she experienced feelings of astonishment and hurt, given that she had been "non-stop supporting and fighting for" the children for 3 years. She felt devastated and she felt she had been betrayed by FaCS. She felt she had been stripped of her integrity and her role as a grandmother, and she felt that what had happened was at odds with her Christian beliefs and spiritual principles. As a result, she sought psychological counselling from Dr Koehler: Exhibit "1", Tab 4, p 46, paragraphs 70 – 74. 14. Significantly, following her sessions with Dr Koehler, and as a result of her private library research, the appellant has been much better informed on matters such as attachment disorders; the psychosocial dynamics that had previously prevailed in the family; developmental delay issues, and the impact of domestic violence. Furthermore, in her fourth affidavit, the appellant has set out, at length, and appropriately, her clear understanding of the needs of the children, the need for an emotionally available carer and a raft of related issues that were not challenged or traduced by cross-examination. Based on those matters, she now seeks for the care of the children to be allocated to her: Exhibit "1", Tab 4, pp 47 – 51, paragraphs 75 – 79. 15. Unequivocally, the appellant has stated in her fourth affidavit that the girls are her priority: Exhibit "1", Tab 4, p 51, par 79. That statement of intention by the appellant was also reflected in her oral evidence: T329.31. Her statements and intentions in that regard were not challenged. Fifth affidavit of the appellant 1. The appellant's fifth affidavit, affirmed on 3 August 2015, was responsive to the assertions made in the affidavit of the foster carer "F1" sworn on 4 May 2015. Those responses were in the form of rebuttals of aspects of the interpretation of events that has been put forward in resistance to the appellant's application for the care and the parental responsibility for the children to be allocated to her: Exhibit "1", Tab 6, pp 111 – 113, paragraphs 2 – 9. 2. Essentially, the appellant expressed her disappointment over the extent to which the foster carers had attended to the earlier expressed commitment to facilitate contact calls to enable the children to speak to the appellant whilst she continued to live on the Central Coast. The appellant also recorded her disappointment that the foster carers had restrictively directed those telephone conversations: Exhibit "1", Tab 6, pp 111 – 112, paragraphs 4 – 7. 3. In that fifth affidavit, the appellant also identified communication and logistic difficulties that had arisen in the contact arrangements, both with the children and with the carers: Exhibit "1", Tab 6, pp 113 – 114, paragraphs 9 – 13. 4. In that fifth affidavit, the appellant also outlined the impressive steps that she had undertaken to try to educate herself, through library research and attendance at courses, with regard to such of the children's problems and developmental needs on which she had been informed by FaCS and UPA, albeit that she had been incompletely informed on those matters: Exhibit "1", Tab 6, pp 114 – 117, paragraphs 14 – 23. There is no doubt she is committed, determined and resourceful in that regard. Sixth affidavit of the appellant 1. The appellant's sixth affidavit, affirmed on 12 October 2015, responded to the report dated 5 August 2015 from the Children's Court clinician, Ms Lyons. In that regard, the appellant identified the fact that the foster carers had been delaying passing on to the children cards and gifts the appellant had been sending to the children in advance of scheduled contact visits: Exhibit "1", Tab 7, p 138, paragraphs 3 – 5. 2. In that sixth affidavit, the appellant provided a counter-interpretation of the events that had been described in the report of Ms Lyons regarding her observations of the appellant, as was described in the third report of Ms Lyons, which was dated 5 August 2015 Exhibit "1", Tab 7, pp 138 – 140, paragraphs 6 – 16. 3. Without seeking to here reconcile each and every item that was outlined by the appellant with regard to the commentary of Ms Lyons, the differences between the account by Ms Lyons and the account provided by the appellant simply demonstrate how the distorted perspective of the critical gaze of scrutiny, as was applied by Ms Lyons and the contact support workers, can focus on ordinary matters that are relatively innocuous, and have the effect of amplifying them out of proportion. 4. In that regard, I accept the submission made by Ms Smith that the matters of criticism relied upon by the contact support worker and Ms Lyons were petty. I consider the critical comments in question were made in circumstances of artificiality and pressure that had little to do with a natural parenting situation and more to do with hypervigilance in a scrutinised contact visit that was not truly indicative of the appellant's supervisory and interactive parenting skills with regard to the children. 5. Should an illustrative example of this be required, it is sufficient to simply observe that the supervised contact under observation by Ms Lyons took place in circumstances where the youngest child, "B", was unwell, in adverse weather conditions that required a change of venue to a more weather appropriate indoors location. Those pressured circumstances did not provide a true indication of the appellant's parenting skills. It is relevant to here observe that Ms Lyons considered the assessment circumstances in a park to be artificial: T366.24. Ms Lyons also acknowledged that the contact circumstances were not natural and it was understandable that the appellant would have been nervous and apprehensive: T397.34 – T397.38. Ms Lyons agreed that contact in the home would have been preferable: T408. 6. A further illustration of the artificiality of the circumstances is evident from the difference in the perspectives of the contact support worker and the appellant on how the appellant managed to calm the youngest child when she was having a tantrum as mentioned at paragraph [158] above. The appellant's description, which I accept, was entirely unremarkable. I consider the appellant's factual description to be more reliable than that of the summarised account by the contact support worker as was relied upon by Ms Lyons. As the appellant had acted in a spontaneous "hands on" manner and achieved a state of calm in the child by holding her, cuddling her and singing to her, I consider that her perspective, as was explained by her, was a more reliable account than that provided through the more critical gaze of Ms Lyons and the contact worker. 7. Those responsive measures described by the appellant also included descriptions of her subjective intentions at the time. As such, they are in my view more reliable than the interpretative observations of Ms Lyons, who did not include that dimension of the event in her commentary. It was a simple factual situation, not one requiring special interpretative expertise or qualifications. 8. I now turn to a consideration of the appellant's oral evidence. Oral evidence of the appellant 1. At the time the children were removed and taken into care they were not living with the appellant: T214.9. 2. In her evidence in the appeal, the appellant accepts that at the time the children were removed and taken into care by FaCS, that removal was a justifiable response to the situation in which they had been found: T253.14. However, at the time of the removal, the appellant's reaction was one of shock that this had occurred: T253.17. 3. On 21 October 2014, following the orders by the Children's Court under present appeal, the appellant had difficulty coming to terms with the attack which she felt had been made upon her to the effect that she had been accused of child neglect, and that she was a child abuser: T277.23. 4. The appellant said that she had felt betrayed by that hearing in the Children's Court: T277.45. Those feelings followed on from the initial shock of the removal of the children (T305.21) and her distress and difficulty in coming to terms with the fact that the children had not been placed in her care, and instead, had been placed into the care of strangers: T319.26. That feeling of betrayal stemmed from the fact that beforehand, and over time, she had been responsibly and repeatedly reporting her concerns to FaCS over the welfare of the children, yet in the outcome of the hearing, she felt she was being unjustly accused of neglecting the children. 5. The appellant's shocked reaction should also be viewed in the relevant context. In the immediate period leading up to the removal, and from the appellant's contact with FaCS caseworkers, she was given to believe that there were "more important cases … where children needed to be removed from their families" and she had therefore concluded that in the assessment by FaCS the situation of the children was not sufficiently serious to warrant their removal: T305.35 – T305.43. Beforehand, she was under the impression from FaCS that steps were being taken to assist the children to stay with their mother: T305.20 – T305.24. She did not know of the poor condition of the children. She was therefore shocked that matters had got to the point where the children were removed: T305.49. 6. Those reactions also have to be understood in the factual context that due to the exclusionary behaviour of the father "D", the appellant had no physical contact with the children and their mother for some six months before the removal of the children. 7. In these proceedings, on behalf of FaCS and the foster carers, attacks were made on the appellant's evidence on the subject of her insight concerning those events. It was suggested that she had lacked insight into the circumstances in which the children had been neglected, and that somehow, she was in part responsible for such neglect and abuse having occurred, and as a result, she felt accused T277.23 – T277.24; T322.45. 8. Those matters also require consideration from the appellant's perspective. She had limited contact with the children for significant periods because of the exclusionary behaviour of "D". In the previous six months before the children were removed, she had no such contact. I accept that this period of exclusion of the appellant coincided with the children's health and wellbeing declining to the perilous state in which they were found at the time of their removal. Her opportunity to intervene was limited because this had been thwarted by "D", who had removed the children and their mother to a distant place away from any opportunity for the appellant to intervene. 9. In those circumstances, although the appellant was concerned over the welfare of her daughter and her grandchildren, not only could she not assert a physical presence to promote their wellbeing, but she did not have a full picture of the extent of the problem: T264.9; T306.13; T324.32; T326.7. 10. In my view, the appellant's overall pattern of her historical reporting to FaCS indicates not only that she had a relevant insight and concern, but she was doing what she could to enlist help to ensure the welfare of the children. The fact that the appellant did not have the full picture of the situation was not due to any fault or a lack of effort on her part. 11. It was not until the appeal process was underway, and through the appellant's exposure to information gained through medical assessments, that the appellant was eventually able to piece together and to achieve a greater understanding of the significance of the neglect the girls had experienced, and that their mother had not been in a proper position to care for the girls: T307.16 – T307.24. 12. In that process, the appellant has become better informed of the extent of the problems. Before the appeal process was initiated, the appellant had understood and accepted in the immediate circumstances of the removal of the children, that step had been justified. However, she had not known the full circumstances, and had struggled to comprehend the whole picture of events which had led to that point: T306.8 – T306.14. That lack of information was not due to any fault or shortcomings on the part of the appellant. 13. The appellant had understood that the initial claim by FaCS, as articulated in the Children's Court proceedings, was that the girls had been the subject of severe chronic neglect from birth. Because the appellant knew that allegation was not true whilst she was in contact with them, she struggled with that concept: T306.41 – T306.46. 14. The notion of the appellant's involvement in the neglect of the children, as advanced by FaCS, was contrary to the appellant's understanding as she had spent significant periods of time assisting her daughter and her granddaughters during the periods when she was not being excluded and thwarted by "D". In those circumstances, the appellant's rejection of the notion of severe chronic neglect of the children from birth was entirely understandable. In that regard, she was in a better position than Ms Breitkreutz to make that judgment, and in that regard, I accept the appellant's evidence in preference to that of Ms Breitkreutz. 15. It is unfortunate that difference in perspectives was not explored with the appellant at the time critical decisions were being made concerning the placement of the children once they had been removed from parental care. 16. Before the children had been taken away from the Central Coast, the appellant had been well aware of the involvement of FaCS, as she had been a significant reporter of her concerns about the welfare of the children. She also knew that by 11 March 2013, the Wyong office of FaCS had closed its file on the family with the knowledge that the appropriate services and responses were in place, as summarised at paragraphs [65] – [66] above. Those circumstances tend to confirm the appellant's evidence, and they suggest that the severe chronic neglect that required the removal of the children occurred after FaCS had closed its file, and after the children were taken away from the Central Coast, and away from the possibility of the appellant having contact with them. An analysis of those matters does not appear to have featured in the evaluation undertaken by FaCS. 17. In those circumstances, in my view, the appellant's perspective that the damage to the children from severe neglect had occurred in the period of about 6 months leading up to their removal was a correct one: T301.24 – T301.26. Those perspectives were in the context that she had not seen the children as regularly as might otherwise have been the case because of the damaging and exclusionary behaviour of the father "D". Her perspective is also consistent with the children having been locked in a room for 23 hours per day, as a result of the actions of "D", with limited exercise, food and poor hygiene. In my view, the appellant has been wrongly accused on the issue of neglect. 18. I consider that in the appellant's circumstances of limited contact with the children prior to their removal, as she had described, and the fact that the effects on the children of global developmental delays the impacts of which were not fully recognised at that time, her perspective was a reasonable one to hold in her circumstances at those times. 19. Analysis with the convenient benefit of hindsight, aided by the availability of the various results of subsequent examinations, investigation and tests, of course permits other perspectives, such as the one adopted by Ms Breitkreutz. 20. However, I consider that the true question to be addressed here is whether, on a prospective analysis of the kind conventionally contemplated in common law litigation, the appellant relevantly lacked insight into those events at the time when they were occurring, or whether she was unaware due to her lack of contact and the limited information that was made available to her: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442, at [124]. I consider that approach to represent a useful guide to the analysis required in this case. 21. Also of relevance to the required analysis is the appellant's observations of the children after they had been taken into care where the appellant observed that the child "C" was no longer talking or toileting properly, which was a dramatic change. The issue of the appellant's observations in that regard is of some significance. She had not experienced any behavioural problems with "C" when the family lived in the Central Coast: T308.43 – T309. I accept her evidence in that regard. 22. The appellant accepts that the eldest child, "C", has been diagnosed as having an attachment disorder: T308.29. She also accepts that this gives rise to special needs that must be addressed. 23. The appellant accepts that both of the children are in a stable placement and that this has been the case for two years: T309.30. In that regard, the appellant understands that there is a risk associated with moving the children from their presently secure placement and becoming unsettled: T309.32 – T309.46; T315.35. However, her perspective was that as the grandmother of the children who has had a past relationship with the children, she could offer them family support and security. In that regard, she felt she could provide the children with a stable, nurturing environment. 24. The appellant referred to her earlier past feelings in which she had safety concerns for herself and the children when the father "D" was around, including fear of intimidation and harm: T314.7 – T314.18; T314.48. Having addressed and overcome those issues through counselling, the appellant has now moved on from those apprehensions, and given that the father "D" has also had psychological treatment, she believes she could now have an amicable working relationship with him in the best interests of the children, in the context of any approved family contact visit arrangements: T318.12 – T318.46. 25. In that regard, the appellant has family support services in place ready for that responsibility. She has attended, and continues to attend, courses and seminars on parenting children with special needs, and she believes the children will be safe, fed and nurtured: T317.49 – T318.4. 26. It is common ground between the parties that although whatever benefits may become available under the National Disability Insurance Scheme Act 2013 (Cwth), those benefits will not become available in the Northern Rivers area until July 2017, and they would apply irrespective of the legal arrangements for the care of the children: MFI "5", comprising joint submissions received on 4 December 2015. Expert evidence 1. The evidence of the expert clinical psychologists, Dr Koehler and Ms Lyons, in the form of their reports and their oral evidence, is reviewed in the paragraphs that follow. 2. The experts were sworn to give their evidence together, along the lines contemplated by UCPR r 31.35. They initially gave their evidence in a concurrent session in which they were examined, cross-examined, and they were permitted to ask clarifying questions of each other where they considered this to be necessary: T341 – T390. This was followed by a separate segment of evidence from Ms Lyons alone, in which the independent legal representative of the children asked Ms Lyons questions on matters arising from her assessments and her reports: T390 – T419. Dr Koehler 1. Dr Koehler is an eminently qualified clinical psychologist with extensive experience in dealing with psychological issues affecting children. There was no challenge to his qualifications, which I accept. He prepared two reports which were respectively dated 16 January 2015 and 28 July 2015. 2. In addition to providing initial counselling to the appellant over her distress at the outcome of the final hearing in the Children's Court, in his reports Dr Koehler focussed his attention on providing an expert opinion on the appellant's capacity to take care of her grandchildren who were the subject of the appeal: Exhibit "1", p 93. 3. Whilst Dr Koehler's assessment of the appellant was undertaken without him having had the opportunity of assessing either of the children, and without having observed the appellant's interaction with the children (Exhibit "1", Tab 5, p 93, T358.31; T385.34 – T385.37; T386.2), on the cited evidence, I did not consider those factors particularly disadvantaged his opinions. Nor did I consider his opinions to be limited by the fact that he had provided the appellant with treatment. In my view, Dr Koehler's reports and oral evidence bore the hallmarks of independent and objective expert evidence notwithstanding that he had treated the appellant over time. I am fortified in that view because Dr Koehler readily identified the limits of his evidence where it was appropriate for him to do so. 4. I considered the relative disadvantage of Dr Koehler not having assessed the children, or not having assessed the appellant's interaction with the children, to be less important in this case where general matters of principle were explored in the oral evidence of the experts, and where the experts were able to comment upon, and ask questions of each other, on relevant aspects of their respective testimonies. 5. Dr Koehler confirmed that his opinions and his evidence had been based upon his reading of the materials, his knowledge of the facts as recounted to him by the appellant, which I considered to have been adequately reflected in her evidence, and from what he had heard in the course of the proceedings: T385.39 – T385.44. In my view, those matters indicated that Dr Koehler was sufficiently well placed to offer relevant expert opinions on the issues to be determined. 6. Dr Koehler identified and recorded the express wishes of the appellant as wanting to be the one who was to provide the love and nurturing of her grandchildren, and that the welfare of the children was the appellant's first priority: Exhibit "1", Tab 5, p 94. 7. The context of Dr Koehler's evidence was that he had seen the appellant in clinical consultation on approximately 7 occasions for both treatment and to assess her concerning the issues in this appeal: T342.10 – T342.13; T342.39. Properly, he did not purport to offer a formal parenting capacity opinion of the appellant as he had not assessed her in conjunction with the children. 8. In summarising his review of the history provided to him by the appellant, Dr Koehler said he was not able to identify any issues or concerns regarding the role of the appellant in the neglect or inadequate supervision of the children: Exhibit "1", Tab 5, p 94. 9. In his assessment, after considering the history provided, and after administering psychological testing to the appellant, Dr Koehler concluded that he was unable to identify any clinical mental health condition, factor of temperament, intellectual incapacity or emotional detachment factor that would raise concerns about the appellant's capacity to care for the children in a loving and nurturing way. Furthermore, he concluded that he was not able to identify any substantial impediment that, given the appropriate support and education, would prevent the appellant from being anything but a loving and nurturing carer: Exhibit "1", Tab 5, pp 96 – 97. 10. Dr Koehler also observed that the appellant did not demonstrate any aversion to learning and co-operating in training and engaging in courses that would help her to be more effective as a carer, having also observed the appellant was already attending such courses: Exhibit "1", Tab 5, p 97. 11. In Dr Koehler's first report, after considering issues such as the appellant's willingness to facilitate appropriately supervised contact between the children and their parents; the need to provide appropriate physical, emotional and protective care to the children; the depth and strength of her relationship and concern for the children; her understanding of why the children were taken into care; her plans to move to the Lismore area; her understanding of the impact of the abuse and trauma the children had previously endured, and her willingness to follow the directions of FaCS, his opinion was that a placement of the children with their maternal grandmother would provide them with an environment that was loving and nurturing, such that in general terms, it would be better for the children in comparison to them being placed with a family in an external care placement: Exhibit "1", Tab 5, pp 97 – 99. 12. In Dr Koehler's second report dated 28 July 2015, he reiterated his earlier opinions: Exhibit "1", pp 101 – 109. He did so having considered the extensive documentation that he listed in his second report: Exhibit "1", Tab 5, pp 101 – 102. 13. In that second report, at Exhibit "1", p 103, Dr Koehler specifically identified the relevant questions to be, first, the appellant's capacity to care for the children, secondly, her understanding of the developmental, physical, psychological, emotional and educational needs of the children, and thirdly, the appellant's current potential to address those needs. He also addressed the question of the appellant's understanding of child protection issues, and the concerns which led to the current proceedings, and her motives and abilities to address such concerns. 14. In his updated opinion dated 28 July 2015, Dr Koehler stated that there was no material change to the views that he had expressed in his earlier report: Exhibit "1", Tab 5, pp 106 – 109. He therefore supported the concept of the children being placed with the appellant. 15. There was nothing inherent arising from the reports of Dr Koehler that gave rise to questions over the validity or the reliability of his opinions, which stand to be evaluated against the contrary expert testimony of Ms Lyons. 16. On the general issues, Dr Koehler explained that on his interpretation of the history, he had concluded the evidence revealed that the children showed greater gains in development at times of increased stability in their lives, and that assessment of fluctuations or deteriorations and improvements in progress was a complex rather than a simple matter. However, in general terms, he agreed that there had been rapid improvement in the children when they were in a stable and caring environment: T358.30 – T358.42. 17. Dr Koehler observed that according to his impression, the appellant was a doting grandmother with high levels of emotional concern and strong attachment to the children, who in the context of having had only limited information about them, had in the past experienced some difficulties in coming to terms with the concepts and the diagnoses concerning developmental delay in her grandchildren. 18. Dr Koehler characterised the appellant's statements, to the effect of doubting such diagnoses, to be more along the lines of anxious inquiry by a grandmother, rather than the presence of the psychological dynamic of denial: T362.7 – T362.27. 19. Dr Koehler also pointed to the appellant's active approach to researching problems, of which she was previously unaware, as being inconsistent with a process of denial at play, and more in keeping with an anxious apprehension about what was going on with the children, and a desire to acquire a better understanding of such matters: T362.29 – T362.37. 20. Given that those impressions were gained by Dr Koehler in the clinical setting over the course of a number of consultations, I considered that he was very well placed to reliably make those conclusions, which I accept, particularly since they were not convincingly challenged either by Ms Lyons or the other parties. 21. I also accept the validity of Dr Koehler's comment to the effect that the appellant's anxiety and distress over those matters has been compounded by the fact that she has not been able to have direct contact with the children, these being factors that would, over time, create difficulties for the appellant in understanding what was happening with the children: T363.1 – T363.9. 22. I consider that Dr Koehler's commentary in that regard was rational, acceptably cogent, and appropriate to the appellant's circumstances. I consider that the described process of the appellant focussing on information demonstrated that the appellant had most probably been "grasping at straws" when she received only limited new diagnostic information about the children, and when seeking to process those matters and her concerns about such matters. This should not be seen as a criticism or deficiency on her part given the limited information she had at the relevant times: T363.15 – T363.29. 23. As I have found Dr Koehler's evidence to be cogent, reliable and not materially challenged or contradicted, the other matters arising from his oral evidence that address the issues for determination are more conveniently addressed in conjunction with the consideration of the issues that emerge from the evidence given by Ms Lyons. Ms Lyons 1. Ms Lyons is also an eminently qualified psychologist and Children's Court clinician with considerable experience in cases such as the one under present consideration. There was no challenge to her qualifications, which I accept. 2. The three reports of Ms Lyons were respectively dated 23 June 2014 (Exhibit "1", Tab 26, pp 1037 – 1057), 24 September 2014 (Exhibit "1", Tab 27, pp 1064 – 1084), and 3 August 2015 (Exhibit "1", Tab 28, pp 1086 – 1105). 3. For the reasons that will become plain, it is convenient to set out the analysis of the expert evidence of Ms Lyons in separate primary and secondary phases in the reasons that follow. Primary analysis of the opinions of Ms Lyons 1. Having considered the evidence of Ms Lyons as a whole, I have concluded that there was an inherent difficulty in the way in which Ms Lyons' initial opinion on the central matters at issue was formed and expressed. 2. On 19 June 2014, which was before she prepared her first report, but after she had first assessed the appellant in the previous week, Ms Lyons made telephone contact with Ms Breitkreutz. Her purpose in doing so was "to determine the Department's position in relation to restoration of the girls to either their mother or grandmother": Exhibit "1", Tab 25, p 1052, par 86; T393.7. 3. In the context of an independent expert review, the question that immediately arises is: why did Ms Lyons consider it necessary to make that call to seek to determine the departmental position when her independent assessment was being sought by FaCS in circumstances where it must have been plain to her that the department would be guided by her opinions when making pivotal decisions about the future care of the children. 4. Be that as it may, at paragraphs 86 to 88 of her first report, Ms Lyons set out the effect of that telephone call as follows: "86. A phone conversation was had with Ms Grace Breikweitz [sic], Manager Casework on 19/6/14 to determine the Department's position in relation to restoration of the girls to either their mother or grandmother. Ms Breikweitz [sic] reported that the information in the file reveals a number or concerns in relation to ["E"]. ["E"] has been the victim of domestic violence in both her relationships and each time they separated, it was ["D"] who left, not ["E"]. This has led to concerns that she could enter another similar relationship. 87. Ms Breikweitz [sic] is also concerned that although ["A"] may have gained some insight into violent relationships in the last few months, she has shown no insight into the neglect that the children have suffered despite having had several lengthy interventions in the past from Community Services and Brighter Futures. ["A"] was reasonably compliant with appointments, but she did not appear to follow through at home. There were also long periods of time when ["D"] was absent from the home and there was no improvement in the girl's presentation during these times. 88. Concerns are also held for ["A"]'s capacity to parent the children and her understanding of their developmental needs. ["A"] has shown no insight into her or ["E"]'s role in the neglect of the children. There were times when she too did not support follow through for the children's needs, such as when ["C"]'s arm was dislocated and she did not want to take her to hospital and has blamed the lack of responsiveness of services as well as the men in ["E"]'s life. The relationship between the two women is also of concern." [Emphasis added] 1. It is evident from the content of those cited paragraphs 86 to 88 of Ms Lyons' first report, that those statements laid the foundation for her opinion that the appellant was not suitable to take on the role of parental responsibility and care for the children: Exhibit "1", Tab 27, p 1057, par 115. In cross-examination during the evidence she gave at the hearing of the appeal, initially, Ms Lyons confirmed that she still adhered to those stated views: T344.44; T358.50. 2. Later, in cross-examination on the topic of the content of paragraph 87 of her first report, Ms Lyons resiled somewhat from the above cited text by stating that perhaps her formulation of that paragraph "was a little harsh": T359.29. 3. Significantly, when Ms Lyons was pressed to identify the appellant's role in the neglect of the children, she retreated to the concept of "more a secondary neglect", using the example of the eldest child not going to school even though she had been diagnosed with global developmental delay: T345.3 – T345.30. The difficulty with reliance on that evidence to base a criticism of the appellant was that the appellant was not able to control those circumstances. It is therefore unfair that she should be criticised in that regard, even on the lesser or modified formulation of "secondary neglect", which, it should be noted, was not the case FaCS had initially presented. I found that shifting of the analytical goal posts troubling. 4. The problem with that change of view or emphasis by Ms Lyons, whether it be read as wholly or partially modifying her opinions in paragraph 88 of her first report, is that the acknowledged harshness of her earlier stated opinion related to an inextricably mixed assumption that referred to both the mother of the children and to the appellant in respect of their assumed involvement in the neglect of the children, as is plain from the emphasised text in the preceding citation at paragraph [309] above: T359.29 – T359.44. 5. That interpretation is plain both from the cited content of paragraph 88 of the first report of Ms Lyons, and from her acknowledgment in answer to questions asked of her in cross-examination, in which she stated that her first report was in part based on her understanding of the history of what happened to the children on the Central Coast: T359.1 – T359.30. 6. Therefore, the problem inherent in the formation opinion of Ms Lyons is that it is not possible to dissect out and disregard, the now acknowledged unduly harsh components of her previous understanding of the appellant's alleged "role" in the history of neglect, which Ms Lyons later ameliorated: T359.5. 7. That position is plain from a reading of paragraph 86 of the first report of Ms Lyons. There, she was concerned with the issue of the "restoration of the girls to either their mother or grandmother". The implication of Ms Lyons' summary of the conversation she had with Ms Breitkreutz involves the appellant maternal grandmother being lumped in together with the mother of the children, in terms of relationships the mother has had and that involved domestic violence. On the evidence, the framework of that analysis was the entirely speculative possibility that somehow, the appellant would be a participant in, or somehow be complicit in, the mother entering into a similar relationship. In my view, that was an entirely irrelevant consideration as the appellant had never been complicit or participated in the mother entering into such relationships. Instead, she had a recorded history of expressing to FaCS her concerns over such relationships. It is not clear from paragraph 86 of that report as to whether Ms Lyons was expressing her own concerns, or whether she was simply reiterating what she had been told. Either way, that lumping together was factually incorrect, and this has misdirected the expert analysis at that point. At the very least, it has confused or clouded the analysis. 8. Whilst the concession identified in the evidence of Ms Lyons as referred to in paragraph [311] above, to the effect her formulation of paragraph 87 of her first report may have been "a little harsh", was fairly made, it must nevertheless be said that such a lack of initial clarity on such an important matter upon which so much depends is of concern, and raises significant doubts over the reliability and the acceptability of the subsequent opinions based on such an analysis. Once the concession is applied, it is not reasonably possible to achieve clarity in the remnants of that component of the opinion of Ms Lyons, and I consider that problem serves to cloud the remainder of her opinion by obscuring the foundations from forensic analysis. 9. That is a matter of some critical importance, as it is also plain that important aspects of the foundation assumptions cited by Ms Lyons at paragraphs 86 to 88 of her first report, have not been made out on the evidence. 10. The successive assumptions set out in paragraph 87 of Ms Lyons' report, namely, that the appellant showed no insight into the neglect of the children; that the several lengthy interventions by FaCS were aimed at assessing the appellant, that the appellant did not appear to follow through with those interventions at home; and that there was no improvement in the presentation of the children during the times that the father "D" was absent from the home were incorrect. None of those assumptions were reflected in the evidence. 11. In that regard, the "no insight" criticism of the appellant with regard to the neglect the children had suffered was softened somewhat when that statement (appearing at paragraph 105 of Tab 26 of Exhibit "1" at p 1055) was explored. Ms Lyons resiled from her view that severe neglect was the only causative factor in the presentation of the children when they were taken into care. Her softened view became a revised theory that birth, congenital or genetic factors had a potential role in the presentation: T356.34. The variability of her opinion cast doubt upon its reliability, and it highlighted an apparent absence of rigour in the initial opinion where the appellant's insight was said to have been lacking. On that issue, the true facts were that the appellant had been excluded from contact with the children by the actions of the father "D". It is therefore difficult to see how the appellant could have had a fair opportunity to acquire an insight of the kind she was being criticised for not having in that period. 12. The suggestion by Ms Lyons at paragraph 87 of her first report to the effect that the appellant did not follow through with interventions for the children at home was just factually incorrect as the children were not living with the appellant at that time when "D" came back onto the scene. 13. It is difficult to see how Ms Lyons arrived at the assumption or conclusion in paragraph 87 of her first report to the effect that the children had not improved in their presentation when the father "D" was absent for long periods. That statement was not based upon empirical evidence. It did not fully accord with the appellant's evidence, which I accept, and furthermore, it failed to take into account the damaging effect of the behaviour of "D" on the children. The circumstances do not equate to the static circumstance switching a light on or off. The last sentence of paragraph 87 of the first report of Ms Lyons was therefore overly simplistic and did not convey the true and lasting nature of the psychological damage that "D" had inflicted on the children. 14. On the evidence, I am satisfied that the foundation assumptions adopted by Ms Lyons to the effect that the appellant has shown no insight into the neglect of the children, had their origins in the opinions expressed by Ms Breitkreutz. That opinion was without adequate foundation in the evidence. I am also satisfied that assumption, which was adopted by Ms Lyons, had contaminated the analytical process of what should have been an independently formed assessment by the clinician, soundly based on identified evidence. As a result, the oracular repetition of such a view, without the support of a reasoned basis from within the evidence, carries little persuasive weight: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, at [59], [87]. 15. If Ms Breitkreutz had legitimately held concluded concerns, or even tentative concerns, about the appellant to the effect cited, it may have been better to have posed a specific question to Ms Lyons on that subject, in transparent form, so that Ms Lyons could form her own independent views on that question, by addressing the question in the form of a reasoned response, after fairly putting that matter to the appellant, or assessing the appellant in light of the question, rather than to simply receive the assumption in such a telephone call, and to then treat the communicated assumption as accepted fact, and to then repeat it in her report as an accepted premise forming part of her judgments and opinions. 16. Instead, in paragraph 88 of her first report, Ms Lyons stated, as an unreasoned and unsupported assumption, that the appellant showed no insight into her role and her daughter's role in the neglect of the children. Her opinion in that regard was inadequately reasoned, and was not compliant with UCPR Sch 7 cl 5(1)(c) of the Expert Witness Code. I therefore consider that little weight should be placed on that statement of opinion. 17. To the extent that paragraph 88 of the report of Ms Lyons drew upon the assumed example of the appellant's claimed refusal to take the child "C" to hospital because of a dislocated "arm" (sic for elbow) as a supporting reason for her opinion, that underlying assumption has been shown to be wrong. At the time Ms Breitkreutz was cross-examined on that topic, she made appropriate concessions in that regard, as explained at paragraph [141] above, and in the respective testimonies of Ms Breitkreutz and the appellant: T93.4 – T93.24. 18. In my opinion, the foundation flaws identified in the opinions expressed in the first report of Ms Lyons, as outlined and analysed in the immediately preceding paragraphs, serve to irremediably undermine the utility and the reliability of her opinions in this case. I therefore conclude that in this case, her evidence should be seen as being unreliable on key matters in contention, and it should not be accepted. Secondary analysis of opinions of Ms Lyons 1. Notwithstanding that conclusion, in the context of a fresh hearing such as this, for completeness, and in accordance with conventions that apply to a first instance hearing, I am required to engage with the remaining elements of the expert evidence. I will therefore proceed to analyse the remainder of the reports of Ms Lyons, before evaluating her oral evidence on key issues, also in conjunction with the evidence of Dr Koehler. 2. For her initial assessment, Ms Lyons proceeded to interview the appellant for 2 hours, and she then summed up that interview at paragraphs 51 to 69 of her first report. 3. That summary dealt with the appellant's history, the history of the mother of the children, including some of the unfortunate traumas to which she had been exposed, and the history of the mother's problematic relationships with the fathers of her children, which, it would seem, had something to do with those earlier traumas. 4. At paragraphs 66 to 68 of her first report, Ms Lyons correctly recorded the history of the appellant having no contact with her granddaughters in the months leading up to their removal. That detail of history appears to have been given very little weight in her report. Ms Lyons also recorded the appellant's belief that both girls had been badly traumatised by neglect, and that the eldest child had been traumatised by verbal violence from the father "D", which does not necessarily equate to the appellant being complicit in either the primary or secondary neglect of the children. 5. At paragraph 108 of her first report, Ms Lyons reflected the concerns of Ms Breitkreutz by stating that the appellant "did not appear to appreciate the extent of the delays both girls were displaying". In my view, that statement requires significant amelioration. This is so because, first, the appellant's contact with the children was severely curtailed in the events leading up to the removal of the children, and secondly, the true extent of the delays only clearly emerged later, on expert analysis following testing. 6. It is therefore a significant overstatement to assume the appellant was aware both girls were "displaying" delays. Significantly, Ms Lyons modified her views somewhat as to what was going on with the girls in terms of their delay as she had more exposure to them over time. In that context, she modified her earlier stated views that the delays were due to severe neglect. When her evidence was explored, it became clear that she no longer adhered to her previous view that severe neglect was the sole causative mechanism of the delays: T356.15 – T356.40. This meant that her earlier expressed opinion must be seen as being diluted somewhat. 7. In that context Ms Lyons, as a trained psychologist, was in a far better position than the appellant to discern evolving views over time. Ms Lyons did not have a clear picture of what was happening with the girls in the early days: T354.13. Her view in that regard was based on her non-acceptance of the appellant's account in which the appellant thought the girls were functioning "pretty normally" compared to when they came into care some months later. Whilst it is true, as was observed by Ms Lyons (at T356.17) that the girls made rapid improvements when they came into care, on the evidence, it was incorrect to ascribe the poor environment from which the girls were taken, to fault on the part of the appellant, who had no contact with the girls in the events leading up to their removal. Based on the appellant's prior history of reporting her concerns about the children to FaCS, I am comfortably satisfied that if she had known the children were being kept in a room for 23 hours per day, or being treated poorly in other ways, she would have raised a red flag to FaCS on that, and any related concerns. 8. At paragraphs 70 to 81, Ms Lyons outlined her observations of the appellant as she related to the children at a supervised contact visit where both she and the mother of the children had concurrent contact, and where the appellant was being formally observed and scrutinised by both Ms Lyons and the caseworker who was also present. On that occasion, the appellant had not seen the girls for some 6 months, although she had approximately, fortnightly telephone contact. The circumstances were somewhat pressured and artificial due to the level of scrutiny, to say the least. 9. Notwithstanding the pressured circumstances, Ms Lyons confirmed that the appellant was appropriately attentive to the children, that the girls appeared happy throughout the assessment, that they related well to both the mother and grandmother to differing extents, which was not surprising given the age differences of the children and their differences in development. In that context, Ms Lyons commented that the appellant was attentive to the needs of both children throughout the entire contact, which lasted for an hour. 10. The only criticism Ms Lyons made of the appellant in those circumstances was as set out in paragraph 78 of her first report, which was as follows: "78. ["A"] had brought a bubble blower as she said that ["C"] as always loved bubbles. ["C"] did enjoy the bubbles but ["A"] did not attempt to let her do the blowing, instead blowing them all herself. After a time ["C"] insisted on having the wand herself which ["A"] reluctantly gave to ["C"] but quickly took it back and used the rest of the mix herself. While the bubbles were swirling about, ["B"] had to be really encouraged to notice and focus on the bubbles which she then enjoyed for a short period before wandering off again." 1. In respect of that criticism, I accept the submission made by Ms Smith that the criticism should be characterised as being petty, and not in any material way indicative of any shortcoming or lack of insight or parenting capacity on the part of the appellant. 2. It is plain that at that time, the appellant was trying to engage with two children under difficult circumstances where greater efforts were required to engage the attention of the younger child who had known problems. In the circumstances, where there was only one bubble blowing wand, the appellant's actions were capable of being seen as reasonable. Whilst it might have been better for the appellant to have arranged to bring two bubble blowing wands, I consider the criticisms made in the circumstances cited to be based on an unreasonably high standard of perfection that was disproportionate to the circumstances, and therefore unfair to the appellant, who seemed to have been doing her best in artificially constrained circumstances, where she was not in total control of the situation, and whilst she was under close scrutiny. 3. What did not appear to have been considered by Ms Lyons in her criticisms over the bubble blowing episode is whether the eldest child was at all proficient in using the device in question. It may have been the case that the appellant was simply making the best of a difficult situation, for which she should not be criticised. However, no concluded view on that factual matter of the proficiency or otherwise of "C" is possible, as it was not explored in the evidence. 4. It is necessary to return to a consideration of paragraph 88 of the first report of Ms Lyons in order to further deal with what I consider has been shown to be false issues that have emerged in that paragraph. 5. In that regard, the first matter that needs stating is that the expressed concerns of Ms Lyons over the appellant's parenting capacity and developmental needs in respect of her grandchildren must be seen to be in large part due to the appellant lacking day-to-day familiarity with the needs and circumstances of those children because she has been deprived of all but very limited contact and information. 6. In my view, that is not a fair criticism of the appellant, where the previous order of the Children's Court, and the decisions made by FaCS, UPA and the foster carers to create a communication "buffer", as described at paragraph [193] above and at T193.40, have given rise to those concerns. The appellant has had severely restricted contact and information for the last 2 years. That is not as a result of shortcomings on her part, and no adverse judgments against the appellant could be reasonably made from the described circumstances. 7. The second matter that arises from paragraph 88 of the first report of Ms Lyons is the mixed question of insight of both the mother and the appellant. That matter has already been addressed at paragraphs [313] – [317] above. 8. The third such matter, namely that Ms Lyons was misinformed about the detail and significance of the dislocated elbow incurred by the eldest child "C", has already been addressed at paragraphs [141], [145], [146] and [326] above. 9. Ms Lyons concluded her first report with the assessment that neither the mother or the grandmother are well placed to provide the necessary care and developmental support needed by the girls to address the severe neglect they have suffered: Exhibit "1", Tab 26, p 1057, par 115. 10. Whilst that assessment seems to primarily apply without question to the mother of the children, I consider that it has been misapplied to the grandmother on an inadequately reasoned basis in the formulation set out by Ms Lyons at paragraphs 101 to 114 of her first report. Those inadequacies of reasoning are identified as follows: 1. The appellant has been wrongly lumped in together with the mother and the father "D" as being responsible for the neglect suffered by the children; 2. The appellant has been incorrectly described as not appreciating the delays both girls were displaying when they were taken into care. In my assessment of the evidence, Ms Lyon's comment to that effect at paragraph 108 of her first report was inconsistent with the objective pattern of recorded concerns the appellant had lodged with FaCS over time, and which Ms Lyons had herself cited. In that regard, I consider that Ms Lyons has given the FaCS records an unduly narrow construction, in which she chose to emphasise the appellant's reports to FaCS as having the focus of the appellant's concerns over the way "D" was treating the mother of the children, rather than considering the appellant's concerns over the developmental impact on the girls. In answers to questions asked in cross-examination, Ms Lyons conceded that the appellant was doing her best to support her daughter: T360.8. That was a reasonable thing for her to do as the daughter had parental control of the children at that time. The fact remains that the appellant was also concurrently communicating her concerns over the welfare of the family to FaCS: T375.7 – T375.23. In my view, a fair reading of the FaCS records, especially given that they are only summaries of conversations and not transcripts, and they are not the appellant's documents, does not reasonably permit the critical force of the cited conclusion stated by Ms Lyons to the effect that the appellant lacked relevant insight: Mason v Demasi [2009] NSWCA 227; 3. Following on from sub-paragraph (2) of paragraph [347] above, it is difficult to see how the appellant, who lacked formal skills and training on matters concerning the recognition of developmental delays, and who had, in the context under consideration, only limited contact with her grandchildren, could have achieved the level of focus on developmental issues that were the subject of the refined hindsight criticisms levelled at her by Ms Lyons at paragraph 108 of her first report; 4. Similar comments to sub-paragraph (3) of paragraph [347] above apply in relation to paragraph 114 of the first report of Ms Lyons, where she asserted that the appellant had sought to downplay her own daughter's role in the treatment of the children, asserting that the appellant did not have a good grasp of what was required to address the children's needs, and arguing that little time had been spent with the children, and that the appellant appeared to be more focussed on the elder child at a contact visit. The opinion of Ms Lyons in that regard has been overtaken by events. Not only has the appellant taken active steps to inform herself of the special needs of the children, it must be remembered that her initial lack of knowledge on such matters was as a result of having been excluded by "D" from contact with the children before they were taken into care, and also as a result of the significantly limited contact restrictions that the appellant has had with the children since they have been in care. In addition, once the children were removed from the parents, there was little in the way of shared information about the children that was being passed on to the appellant. This was as a result of the decision of others to filter that information. The appellant cannot be fairly criticised in respect of adequate information on those matters. 1. When the above matters are weighed and taken into proper account, for the reasons I have outlined, and given that there was no affidavit from the appellant at the time Ms Lyons prepared her first report (T347.14), I consider that the criticisms of the appellant within the first assessment and report of Ms Lyons should be seen as being unfair, and based on unsound foundations. 2. In the second report that Ms Lyons prepared, dated 24 September 2014, she used the same materials and assumptions which she had used when preparing her first report: Exhibit "1", Tab 27, p 1065, par 2. It appears that the appellant was not interviewed again for the purpose of preparing that second report: Exhibit "1", Tab 27, p 1067, par 8 – par 12. Therefore the unsound basis for the earlier opinions in the first report of Ms Lyons continued to apply to the circumstances of the second report. 3. At paragraph 33 of her second report Ms Lyons reiterated her previous comment to the effect that the appellant did not appear to appreciate the extent of delays in both girls, and that the appellant's complaints to FaCS had been more focussed on the way the mother had been treated by the father "D". Unreasoned repetition of those opinions did not provide validation of a basis for them in fact, particularly as Ms Lyons had not seen the appellant again before issuing her second report. 4. At the time Ms Lyons prepared her second report, the possibility of a placement of the children with the appellant maternal grandmother did not at all feature in her recommendations: Exhibit "1", p 1085, p 1085, par 122. Ms Lyons seems to have continued to proceed upon her earlier assumption that the appellant maternal grandmother continued to be an unsuitable potential placement for the children on account of the earlier assumptions that somehow she bore some responsibility for the earlier neglect of the children, and that she lacked insight into the causes of that neglect. 5. Whether the apparent non-consideration of the possibility of a placement with the appellant at the time of the second report of Ms Lyons was because of the position adopted by FaCS, or perhaps because of the assumptions made by Ms Lyons, is immaterial. The fact remains that it appears no consideration at all was given to interviewing the appellant at that time in order to determine her suitability or otherwise as a potential placement for the children. It appears that the earlier assumptions had not been the subject of critical review. This had the compounding effect of limiting the contact permitted between the appellant and her grandchildren. 6. Unfortunately for the appellant, and the children, those matters were not exposed for analysis at the hearing in the Children's Court on 20 October 2014, as they have been in the course of the fresh hearing in this appeal. 7. In anticipation of the present appeal, FaCS arranged for Ms Lyons to prepare a third report. For that purpose, Ms Lyons separately assessed the children, the appellant, and the present foster carers. Amongst the matters she focussed upon in that assessment was the parenting capacities of both the appellant and the foster carers: Exhibit "1", Tab 28, p 1089, par 1 – par 2. 8. A comparison of the parenting capacities of the appellant maternal grandmother, who, by force of circumstances beyond her control, has had minimal contact with the children since they were taken into care, and the parenting capacities of the present foster parents, who have had the children in their intensive daily care and contact for two years, was necessarily going to be an unequal comparison from which only limited comparative conclusions could be drawn. 9. For the preparation of her third report, Ms Lyons had the benefit of: 1. The 11 documents listed at paragraph 4 of her third report, comprising the court orders requiring the further assessment, her earlier assessment dated 23 June 2014, affidavits from both the caseworkers and from the casework manager Ms Breitkreutz, affidavits from the appellant, and affidavits from the present foster carers, as well as relevant court documents; 2. A 2.5 hour interview of the foster carers that was undertaken in their home on 17 July 2015 between 2.00pm and 4.30pm, during which time "F2" left to collect the subject children and three other children in their care from school; 3. A 2 hour clinical interview with the appellant between 1.00pm and 3.00pm on 20 July 2015; 4. Observations Ms Lyons made of the appellant during a 1 hour contact visit at a Lismore ten pin bowling centre between 3.30pm and 4.30pm also on 20 July 2015. 1. Ms Lyons referred to her earlier reports dated 23 June 2014 and 24 September 2014, and indicated that all three reports should be read together as the information in the previous reports was not repeated: Exhibit "1", p 1091, par 7. The clear inference from that statement was that Ms Lyons continued to rely upon the statements and assumptions which had based those earlier reports. This must necessarily mean that the flaws exposed in those earlier reports continued to affect the third report of Ms Lyons. 2. Significantly, and tellingly in favour of the appellant, at the time of Ms Lyons' second assessment of the appellant for the purposes of preparing her third report, in the context that the developmental issues affecting the children had been the subject of recent specialist investigations and diagnosis, the appellant still did not have "the whole picture" of where the youngest child was at developmentally: T324.32. 3. This was because her allocated 1 hour per month contact visits did not provide enough time for her to get to know the youngest child: Exhibit "1", p 1094, par 33. This point merely serves to demonstrate the inequality of the comparison that has been sought to be made between the appellant, who has been kept at a significant distance as a result of court orders, and the decisions made by the foster carers and UPA, who have had day-to-day and incremental familiarity with the children. In that regard, the stated role of UPA in creating a communication "buffer" to keep the appellant at a distance, must be questioned. 4. It was those circumstances which led to the appellant using some of her contact visit time to try and quickly go through school records at a contact visit, for which she was later criticised: T256.24 – T256.36. I consider that criticism was unfair given the appellant's limited access to information, without fault on her part. 5. At paragraphs 42 to 44 of her third report, Ms Lyons set out the following summary: "42. ["A"] was asked how she is settling in after moving from the Central Coast to Lismore. She says she misses her friends but she also misses her family and her granddaughters. She wants them to grow up with family and she would take them to the beach, go shopping together, visit animal parks and that she is planning a range of outings. ["A"] says "the girls are my priority" and that is why she moved up here. She says she even had to borrow money from her friends to make the move and "I'm not going back, I live here now". 43. ["A"] says "the girls are my focus" and "I know I will be doing occupational therapy with the girls at home". She also mentioned the meltdowns and tantrums that have been reported with the girls and says she doesn't know what is causing them. She says that ["B"] "never used to head bang before" and that she screams to communicate although not often at contact. She added that perhaps the meltdowns are due to over stimulation and she would need to reduce the triggers. 44. ["A"] was asked how she would manage contact with the fathers of these girls. She reports that she has "no problems with ["D"] now" and that she just feels sorry for him. With regard to [the father of the first child], ["A"] described him as a "common garden variety alcoholic". ["A"] says that she believes that she has dealt with her own emotional issues and is now emotionally available for the girls." 1. It is apparent from the above summary that the appellant has taken significant steps to relocate herself to the Lismore area, to make herself available to the children, to obtain psychological assistance, and to apply herself to find a way of dealing with the fathers of the children. In doing so, she has demonstrated a determined and mature outlook on what is required of her in the circumstances described. These are matters that weigh heavily in her favour in the consideration of the merits of the case she seeks to make. 2. In this analysis I have considered, but do not propose to here set out the detail of the list of "concerns" that have been expressed about the interactions between the appellant and the children. It is sufficient to say that I accept the force of the submission by Ms Smith to the effect that having regard to the limited contact that the appellant had with the children, under the pressure of scrutiny in an unnatural and artificial setting, that such "concerns" should be seen as being petty. Ms Lyons herself conceded the circumstances of such assessments were artificial (T366.24) and such contacts were unnatural, and that it was reasonable in the described circumstances for the appellant to feel nervous and apprehensive when under scrutiny: T397.34 – T397.38. 3. I consider that at the time Ms Lyons expressed the above concerns about those interactions, such concerns were proffered in the course of a perceived adversarial contest, where the respective parenting capacities of the foster carers, who had been interviewed first, and the appellant later, were being compared in circumstances that were unevenly balanced. It should be remembered that at that time, the foster carers were seeking guardianship of the children, which if successful, would have further limited the rights of the appellant, as was evident from the "buffer" put in place by UPA: Exhibit "1", Tab 28, p 1098, par 59. 4. In that context, it is not to the point that the children were seen to have "slotted into their role" in the home of the foster carers that is "busy with … children": Exhibit "1", Tab 28, p 1098, par 61. There was no counter-balancing consideration of the children being placed in a less "hectic" and less "busy" household which was not "overflowing": T203.18. 5. In any event, the described adjustment outcome of the children having "slotted" into the home accords with the ordinary expectation of a placement of that kind into proper and stable foster care. However, that analysis does not address the question of whether such a placement was factually justified, legally sound, and should continue. 6. At paragraphs 66 to 77 of her third report, Ms Lyons set out her observations of the appellant's interactions with the children at the contact visit, which had been rearranged to take place indoors rather than in a park because of the weather, and because it appeared that the youngest child was unwell: Exhibit "1", Tab 28, pp 1099 – 1100. 7. At paragraphs 71 and 73 of her third report, Ms Lyons made some criticisms of the appellant to the effect that she was observed to be struggling to manage the children, in the opinion of the contact supervisor, who was not called to give evidence that could be tested as to its underlying assumptions. With regard to those matters, in the described context, I accept the submission of Ms Smith to the effect that the examples relied upon by Ms Lyons were petty. 8. In that regard, it is also relevant to record that in her evidence, Ms Lyons conceded that her comments with regard to the appellant "struggling" could have been better expressed: T380; T381; T402. In my view, that concession serves to significantly ameliorate the criticism of the appellant on this point, which also serves to further dilute the effect of the report by Ms Lyons where those criticisms were made. 9. Furthermore, with regard to those circumstances I accept the force of Dr Koehler's comment on the described situation, where he wondered, rhetorically, whether any other adult would also have struggled with the children's behaviour in those circumstances: T367.40 – T367.44. 10. The notion of the appellant struggling in the circumstances involves a subjective judgment. This was made plain when Ms Lyons was asked whether there was any evidence to suggest the interests of the children would be jeopardised. At that time, Ms Lyons invoked the notion of the appellant "struggling" with the children: T380.47. She explained that she thought the appellant was not going to be able to manage the needs of both children simultaneously, and there was a danger of placement breakdown: T381.5. That explanation involved a very loose extrapolation based upon sparse and unpersuasive evidence. 11. When Ms Lyons was asked to identify the evidence for the proposition she had advanced, she stated that she drew upon her clinical opinion for that view: T381.14. When she was then asked whether that opinion was based on facts, Ms Lyons indicated she had nothing to add: T381.15 – T381.22. I found that explanation unpersuasive because it was oracular in its nature, and was not supported or explained by cogent reasons: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, at [87]. Where clinical judgments are invoked to justify the opinion of an expert, they ought to be capable of rationally articulated explanation as a pre-condition for acceptance. 12. In contrast to the last cited views of Ms Lyons, I accept Dr Koehler's view that although he thought the appellant would find the care of the children difficult, he was unable to establish any evidence that their safety, welfare or wellbeing would be compromised, and he provided sound reasons for the opposite view (T381.28 – T382.1) which I accept in preference to the unreasoned views of Ms Lyons in that regard. Predictions or anticipated difficulty of the kind under present contemplation, do not necessarily, without more, justify maintaining the present situation of the children on account of a perceived difficulty. 13. When Ms Lyons set out her formulation of the quality of the relationship between the children and their maternal grandmother, at paragraph 84 of her third report, she stated that the interactions between the appellant and the children suggested that the attachment to the appellant was not strong, in contrast to the relationship with the carers which was developing. That observation is hardly surprising, given the history of significantly limited contact that has hitherto been permitted to the appellant over the past 2 years. That factor of itself, is not a matter that should necessarily serve to disentitle the appellant to the orders that she seeks where they might otherwise be justified. 14. In commenting on the parenting capacity of the appellant, whilst Ms Lyons pointed to a number of positive factors in favour of the appellant, she nevertheless concluded that the appellant "does not impress as having the parenting capacity to have the full-time care of the two girls": Exhibit "1", Tab 28, pp 1103 – 1104, par 97. 15. That impression, the meaning of which was confirmed by Ms Lyons to be taken as being a concluded opinion (T400.33), was said to have been arrived at by weighing the appellant's knowledge and understanding of the special needs of the children, the quality of the current relationships she has with them, and the "risks" associated with placing the girls in her care. 16. In my assessment the factors identified by Ms Lyons as summarised in the immediately preceding paragraph, are not static and are subject to change over time. The appellant's knowledge of the special needs of the children had been increasing over time, and will increase further as relevant contact and access to information increases. The same may be said of the appellant's relationship with her grandchildren. That relationship is about to intensify, even on the limited case maintained by FaCS, where it has been conceded that increased contact, including unsupervised contact in the appellant's home, is expected to take place soon: T19.48 – T20.25. The above factors do not necessarily militate against the appellant's case. 17. This then leaves for consideration the notion of risk. The specific matters concerning the risks of harm as set out at paragraph [33] above will be addressed in the consideration of those relevant questions later in these reasons. Meanwhile, in the present context, it is sufficient to say that risk must be recognised as being ever-present in any human activity or endeavour, and can never be entirely guarded against or eradicated. 18. The true question is whether exposure to risk is undertaken unreasonably. On the evidence of Dr Koehler, which I have accepted, the risks adverted to by Ms Lyons are inevitable in day-to-day life, and there is no evidence that allocation of parental responsibility and placement of the children with the appellant involves the exposure of the children to unreasonable risks. 19. I reach that conclusion having regard to the mature outlook and determination shown by the appellant, in conjunction with the reassurance that the appellant will be given professional support, both in a transition, and in the longer term in connection with the special needs of the children: T141.11 – T141.15; s 8(c) of the Act. Those matters indicate that there will be a good deal of protection available against unreasonable risk, particularly with the omnipresence of FaCS in the background, should the arrangements show signs of going awry. 20. At paragraphs 88 to 94 of her third report, Ms Lyons commented on the positive aspects of the appellant's parenting capacity, and her consideration of the appellant's ability to meet the day-to-day special needs of the children, as follows: 1. She considered the appellant was to be congratulated for her commitment to her granddaughters, and her persistence in establishing a connection with them, including by moving to Lismore from the Central Coast: Exhibit "1", Tab 28, p 1102, par 88; 2. She also acknowledged that the appellant had made considerable efforts to gain an understanding of the special needs of the children, including by research and by attending a parenting program: Exhibit "1", Tab 28, p 1102, par 89. 1. To the extent that Ms Lyons was critical that the appellant's research had only focussed on the things that she considered relevant, I regard that criticism as being effectively counter-balanced and neutralised by the fact that the appellant's exposure to knowledge of the medical investigations and diagnostic conclusions has been acquired in a slow and piecemeal manner, which has not been due to any shortcomings on her part, but rather, this has necessarily been a function of the limited contact she has had with the children, and the limited information she has been given about them. 2. The argued shortcomings of the appellant's capacities as identified by Ms Lyons at paragraphs 90 to 92 of her third report were as follows: 1. She critically considered that the appellant had focussed entirely on the suggestion of the existence of an unconfirmed view that autism spectrum disorder was a factor affecting the children: Exhibit "1", Tab 28, p 1103, par 91; 2. She considered that whilst the appellant had done her best to manage and to meet the needs of both girls at the contact meeting, she observed that the appellant became quite flustered when the youngest child became non-compliant: Exhibit "1", Tab 28, p 1103, par 92; 3. She considered that when the above considerations are taken together, notwithstanding her view that the appellant had the best interests of the children at heart, she nevertheless considered that there were significant gaps in the appellant's parenting skills. She expressed that matter in the following terms: "93. Together this information suggests that while ['"A"] has the best of intentions there are significant gaps in her parenting skills in relation to caring for these children with special needs and while she may be able to learn some of this over time, there is not the strength of relationship between them at this point that would over-ride the deficits in her knowledge and these girls, given that they are already well behind their age peers, do not have time to wait for her to catch up." 1. She considered that it would be better if the appellant were to exercise contact time with each of the girls separately so she could concentrate on their individual needs: Exhibit "1", Tab 28, p 1103, par 94; T409.33 – T409.46; T410.12 – T410.24. That was not a view shared by Dr Koehler: T372.49 – T373.8. In any event, that comment by Ms Lyons only applies in the event that the current placement is to be maintained; 2. Ms Lyons said that there are some "remaining concerns about [the appellant]'s contact with the girls that need to be addressed". She went on to identify that the carers felt criticised and undermined, and this has led to a cessation of direct contact with the appellant. Ms Lyons then went on to record that "F1" now felt she could not see a respectful relationship developing with the appellant: Exhibit "1", Tab 28, p 1103, par 95; 3. A concern was expressed to the effect that the appellant had a tendency "to only take on information that she agrees with": Exhibit "1", Tab 28, p 1103, par 96. 1. As to sub-paragraph (1) of paragraph [383] above, the concern by Ms Lyons to the effect that she felt the appellant had focussed on autism spectrum disorder, was of little consequence. In my view, in the circumstances where the appellant having been given only limited information about investigations and diagnosis, and in a piecemeal fashion, that reaction by the appellant should be seen as simply being a function of having been given only limited explanations, and wanting to acquire a better understanding. That does not mean the appellant is not amenable to dealing with correct information once it is made available to her in a proper context, as explained by Dr Koehler, and as summarised at paragraph [301] above. 2. As to sub-paragraph (2) of paragraph [383] above, the observation by Ms Lyons that the appellant was observed to have become flustered during what has been accepted as being an unnatural and artificial supervised contact visit (T366.24) when dealing with the needs of the two girls, is of marginal relevance to a consideration of the appellant's parenting capacity. This was in effect acknowledged by Ms Lyons, who considered that an assessment of the appellant's interactions with the children would have been better undertaken in the home: T408. 3. As to sub-paragraph (3) of paragraph [383] above, the argued gaps in the appellant's parenting skills should not be seen as being all that unusual given that the appellant has been substantially deprived of frequent contact with the children in the past two years. In my view, as has been observed by Dr Koehler, and by the appellant, she has been addressing such gaps by taking skills courses. All that really arises from this point made by Ms Lyons is that the appellant may well be in need of up-skilling herself, with some initial support and assistance. 4. In my view, either alone or in combination with the matters referred to in sub-paragraphs (1) and (2) of paragraph [383] above, these should not be seen as disentitling factors. Furthermore, the appellant has continued in such courses. Ms Lyons has anchored her assessment in the events of July 2015, a little over 4 months ago. In any event, the comment made by Ms Lyons with respect to the gaps in the appellant's skills must be read subject to s 8(c) of the Act, which provides that in the event parental responsibility were to be allocated to the appellant appropriate assistance is to be rendered to the appellant in the performance of child rearing responsibilities to promote a safe and nurturing environment. 5. As to sub-paragraph (4) of paragraph [383] above, I consider that the argument for separate contact time between the appellant and each girl does not realistically arise. The girls have grown up together, and they obtain a feeling of security and stability from the presence of each other, as was observed by Dr Koehler: T373.8. In those circumstances, their best interests and wellbeing would be better served if they stayed together, and the contacts were undertaken in a more conducive and less artificial setting. 6. As to sub-paragraph (5) of paragraph [383] above, it is most troubling that the foster carers have reached the point where they have stated they feel there is a difficulty in developing a respectful relationship with the appellant. If that position were to remain unresolved, this would certainly not be in the paramount best interests of the children. Ms Breitkreutz thought this problem might dissipate once these proceedings have concluded: T159.19 – T159.25. The evidence did not compellingly support that expectation. In my view, to the extent that this problem presently exists, it would seem to be as a result of a failure of supervisory management by either FaCS, UPA, or both, to recognise and appropriately deal with the fact that the tensions between the foster carers and the appellant have arisen because of the appellant feeling somewhat disempowered by the circumstances of the placement, and the fact that she has had such little contact with, and information about, the children. 7. To the extent that there were other "remaining concerns", referred to by Ms Lyons, reasoned consideration of such amorphous criticisms is not possible until such concerns are put forward and specifically identified on a fair and rational basis that permits a reasoned analysis. Also to the extent that such remaining concerns related to the perception of "F1" that the appellant had criticised and undermined her, I consider that problem was overstated by Ms Lyons because it had been overstated by "F1" due to hypersensitivity on her part: T197.1 – T197.29. 8. As to sub-paragraph (6) of paragraph [383] above, I do not accept the criticism that the appellant has a tendency to only take on information with which she agrees. That statement is contrary to the appellant's actions in seeking to undertake research to educate herself on issues of concern. To the extent that the appellant has in the past perhaps focussed such research on particular topics, this should be seen to have been in the sense of anxious inquiry by a doting grandmother wanting to acquire a better understanding, where her access to more complete information was limited, as was convincingly explained by Dr Koehler: T362.7 – T362.37. 9. At paragraphs 78 to 103, Ms Lyons set out the history of her second round assessment, the history of the proceedings in the Children's Court, and her formulation of the birth family dynamics of the children, referring to their parents, and other half-siblings. She then recommended that the children remain in the care of the Minister in their current foster care placement until they reach the respective ages of 18 years. 10. At paragraphs 100 to 101 of her third report, Ms Lyons emphasised the fact that the present foster carers were experienced and were able to attend to the needs of the children. She then concluded her third report by stating: "Recommendations 104. This assessment is the third conducted by the writer in relation to these children within the last twelve months. The progress that both ["C"] and ["B"] have made in this time is truly remarkable and has to reflect the quality of the care they have received in this time. Therefore the recommendations made in relation to their care still stand. 105. The grandmother has been able to demonstrate her commitment to the girls and ["C"]'s relationship with her has improved markedly as the impact of the neglect she suffered has reduced. However, ["A"] still does not present as having the necessary parenting capacity to meet the ongoing special needs of these girls. Therefore the following recommendations are made in relation to the best interests of ["C"]and ["B"]: i. That both girls remain in the care of the Minister until age 18, preferably in their current placement where they are happy, where ["C"] and ["B"] have formed an emotional attachment, and where they are both making rapid developmental gains. ii. That the children have reasonable contact with their mother and grandmother for the purposes of identity and connection with birth family iii. In ["A"]'s case, ["C"] and ["B"] should attend contact individually to allow each child the opportunity to have a special relationship with her grandmother. This contact could become less formal with the girls having supervised contact with her in her home. iv. That all necessary therapeutic interventions are provided to the girls to address their delays and regular paediatric reviews to monitor their progress." 1. It is plain from paragraph 104 of the third report of Ms Lyons, that she based her recommendation for the continued placement of the children with the present foster carers, on the "truly remarkable" progress the children had made whilst in their quality care. 2. Whilst that is a relevant consideration, and an important one, the paramount consideration of the best interests of the children requires that a much wider inquiry be undertaken. That exercise also involves evaluating the range of risk of harm factors listed at paragraph [33] above, along with the other statutory requirements that are mandated by the terms of the Act. Conclusion on the expert evidence 1. For the reasons already identified, I consider that the opinion evidence of Ms Lyons was materially flawed. I therefore conclude that her opinions represent an unreliable source of expert guidance on the issues and questions that stand to be determined in this appeal. 2. That conclusion arises because of the identified assumptions that were either shown or conceded to be factually incorrect, for example, the misreading of the historical FaCS records as acknowledged by Ms Breitkreutz, the wrong descriptions made about child protection issues concerning the pulled elbow incident as described at paragraphs [141], [145] to [146] above, and because the reasoning in support of the opinions in contention was not compliant with the requirements for expert evidence: UCPR Sch 7, cl 5(1)(c). 3. In contrast, the opinions and evidence of Dr Koehler were not burdened with such difficulties. His assumptions were adequately grounded in the evidence of the appellant which I have accepted. His reasons in support of his opinions were cogent and clearly expressed in terms that did not require amelioration when tested. In those circumstances, I find Dr Koehler's evidence to be a reliable source of expert guidance. I therefore accept his evidence and opinions in preference to those of Ms Lyons on key matters in dispute. Consideration of questions posed 1. As foreshadowed at paragraph [38] above, it is necessary to address the following questions in this appeal: 1. Whether the appellant has relevant insight into the cause or causes of the children having been neglected; 2. Whether, in any relevant causative sense, the appellant bears any responsibility for the described neglect of the children; 3. Whether the appellant has the capacity to care for the children having due regard to their developmental, physical, psychological, emotional and educational needs; 4. Whether the appellant has an adequate understanding and ability to deal with child protection and risk of harm issues; 5. Whether the placement and care plan proposed by FaCS should be approved. 1. The consideration of questions (1) to (4) now follows. The consideration of question (5) must be deferred until after other practical and statutory provisions are evaluated and applied. Insight and responsibility for historical neglect 1. I am satisfied that whilst the appellant was living on the Central Coast, she had consistently expressed her concerns to FaCS as to the welfare and wellbeing of the children, as well as expressing her concerns about their mother, whilst the children and their mother needed intervention and assistance whilst at Wyong. In my view that shows the appellant had relevant insight into the needs and the welfare of the children at that time. 2. I am also satisfied that in March 2013, when the Wyong office of FaCS indicated it was satisfied with the arrangements regarding the children, they were not at risk of severe neglect of the kind that was revealed when the children were subsequently removed from parental care eight months later on 28 November 2013. 3. I am also satisfied that shortly after the Wyong office of FaCS closed its file in relation to the children, in mid-2013, after the father "D" recommenced his relationship with the mother, the appellant became excluded from involvement with the children for about 6 months. In that time, the children became progressively and severely neglected such that their removal and subsequent placement into emergency care became entirely justified. 4. However, in those events, and for the reasons already described at paragraphs [232], [256], [259], [265], [268], [271], [272], [323] and sub-paragraph (2) of paragraph [347], and in other places above, I find that the appellant was not aware of the detail or the extent of the neglect to which the children had been subjected. In those circumstances, the appellant had no opportunity for obtaining insight in the relevant sense that was argued by FaCS. 5. The subsequent insight obtained by the appellant accrued over time after the children were removed and taken into protective care. I therefore reject the propositions that the appellant lacked relevant insight into the neglect of the children, or that she has in some way been responsible for that neglect, either primarily, or in a secondary sense, as was claimed by FaCS and by Ms Lyons. 6. It follows from those findings that the appellant should not, as claimed by FaCS, be held or seen to have had responsibility for the neglect to which the children had been subjected before they were removed from parental care. FaCS has misread the factual circumstances in that regard: T58.27; T71.18 – T71.34. Appellant's capacity to provide care 1. For reasons beyond her control, the appellant's capacity to provide the children with parental care has not been reliably tested in the period following their removal from parental care. Ms Lyons and Dr Koehler are in general agreement on that matter. Assessment of that issue at a contact visit was artificial and unnatural (T52.1; T366.24), it caused the appellant to be nervous and apprehensive (T397.34 – T397.38), and the circumstances provided no true indication of the appellant's parenting capacity. 2. Ms Lyons correctly stated that an in home assessment of parenting capacity would be a more appropriate method of assessment than at the contact visits that have been thus far utilised for that purpose T408. 3. The fact that an in home assessment of the appellant's parenting capacities has yet to be arranged does not necessarily mean that the appellant does not have the capacity to provide appropriate parental care. 4. In the circumstances, where the appellant has not been formally assessed in that regard, it becomes necessary to arrive at a conclusion on that issue on the balance of the probabilities on the available evidence relevant to that issue. 5. The starting point of this component of the analysis is to recognise that the appellant was herself a loving parent who had made financial sacrifices to send her own daughter to a private school. In my view, that says something very positive about her historical attitude to the general responsibility of parenting. 6. Another factor of some importance to the consideration of this question is that the family lived on the Central Coast, the appellant recognised that her own daughter needed help with the children, and the appellant provided care and assistance to them during the times when she was not being thwarted and intimidated by "D" from doing so. That history of recognition of a need, and that history of the appellant stepping in to provide assistance, including cleaning up rubbish and unhygienic conditions in the house where the children lived, provides a positive and good insight to the appellant's attitude to assuming responsibility for the proper care of the children. 7. Whilst perhaps the above considerations are of background relevance only, there are several other features from within the evidence that suggest the appellant is very likely to be up to the task of successfully taking on parental responsibility for the children. 8. Foremost amongst those factors is her impressive determination to resolutely pursue this appeal in a calm and principled way, against the great odds and resources stacked against her, as is evident from the case mounted by FaCS, and by the foster carers. This speaks loudly of her positive and resolute concern for her grandchildren. 9. Secondly, having progressively gained an incremental understanding of the developmental problems affecting the children, and recognising the deleterious effects the mother's previous domestic arrangements and problems have had on the children, the appellant has realised that the girls are now her first priority, and in her evidence, she has demonstrated that she has a strategy for ensuring this remains so, even if it turns out to be the case that her own daughter finds herself in urgent need of help. I am satisfied that the appellant has adequately thought that issue through, and would, if and when required, implement that strategy so as to ensure that her grandchildren continued to remain her first priority if another conflicting emotional obligation towards the mother of the children were to arise: T330.3 – T330.37; T331.34 – T332.13. 10. Thirdly, the appellant has reached that point in her thinking, not only through her own efforts, but she has successfully achieved an enlightened view of what is required of her, through the psychological therapy she has successfully pursued with Dr Koehler. This suggests that if she needs such assistance in the future, she would know how to access it, either in the Lismore area, or by telephone with Dr Koehler, or his nominee, or someone of similar qualifications and experience. I am satisfied from her past efforts in that regard, that should the need arise, she would seek out such assistance and apply it in a practical way. 11. Fourthly, the appellant has taken an intelligent approach to facing the challenge she is now seeking to undertake by successfully pursuing and completing parenting-oriented courses that have progressively added to her insight and understanding of the magnitude of the task involved in taking on the care of the children. I am satisfied from the evidence that she is very likely to continue to pursue such courses as and when required, and to consolidate such gains. 12. Fifthly, and of great significance, are the positive indications from within the views expressed by Dr Koehler, as summarised at paragraphs [287] to [289] and [294] above, in which he found no evidence to suggest that the appellant was not-up to the task of assuming parental responsibility. The absence of any such contradictions is a very reassuring factor in this case. I am satisfied that Dr Koehler has considered that position carefully. 13. Sixthly, Ms Breitkreutz was unable to point to any evidence that suggests the appellant had in any material way been resistant to the requirements of FaCS: T73.1 – T74.15. This comfortably leads me to draw the inference that the appellant will work co-operatively with any further such requirements that would serve the best interests of the children. 14. Seventhly, as already observed at paragraphs [238] and [243] above, the effect of the appellant's unchallenged evidence of the steps she has taken to educate herself on the children's problems and needs, strongly suggests she will be well placed to take over their care following a carefully considered and structured transition process. 15. In those circumstances, the question at this point of the consideration really becomes not so much whether the appellant has proven her capacity to undertake parental responsibility in a practical way, because proof of that is in her case historically unavailable, but rather, in the absence of relevant contraindicating factors, including risk factors, and with adequate safeguards in place, why should she not be given the opportunity to exercise her capacity and demonstrate that she has the capacity. As Dr Koehler so aptly put it, ultimately, "the proof of the pudding is in the eating": T387.11. 16. The appellant has never been given the opportunity to provide such proof. She has never been permitted to have the children in her care in unsupervised circumstances, including for an overnight stay. Extraordinarily, on the evidence in this case, this has not occurred over the last two years, even though Ms Breitkreutz acknowledged that the children would not be at risk of harm whilst in the care of the appellant: T142.16 – T142.39. In fact she could not identify any reasons for her concerns with regard to the appellant: T142.26 – T142.32. Significantly, in the lead-up to the hearing of the appeal, the position of FaCS appears to have softened on the previous contact restrictions, accepting this should be expanded into a more liberal contact regime: T17.39; T421.2. It is not clear as to why this was not indicated to the appellant at an earlier point in time. 17. In coming to the above views, I have not overlooked the matter raised by "D", the father of "B", in which the appellant was criticised in relation to the problems experienced by her own son, who had been adopted out from birth when the appellant was aged only 17 years. It transpired that her son had psychological issues to do with his adoptive family. The appellant had only met him when he was already an adult with psychological problems. Two things need to be said of those circumstances. First, the problems experienced by the appellant's son have not been shown to have been due to any parental shortcomings on the part of the appellant. Secondly, there is no evidence that the son either lives with the appellant, or that he might pose a relevant risk to the subject children: T311.18 – T311.33. In my view, those matters are not relevant to the required consideration in this case. 18. I have concluded that for all the above reasons, and because of the appellant's presently constrained contact allocation of 1 hour per month under supervision, which was not as a result of any fault or shortcoming on the part of the appellant, she should be provided with the reasonable opportunity to demonstrate her parenting capacity, subject to adequate assessment and considerations of risk factors in a new permanency care plan. In my view, this is the very matter to which s 8(c) of the Act is directed, and which should become engaged. 19. At the very least, the appellant is entitled to that opportunity on account of the concessions made on behalf of FaCS at the commencement of the appeal and in final submissions, which signalled the plan to provide the appellant with more expanded and liberal terms of contact with the children in the event the placement allocation component of the appeal was dismissed: T17.39; T421.2. 20. I consider that plan should represent the beginning of the process, as part of a transition to give effect to my overall findings. I shall return to that matter in the course of further consideration, after further evaluating the issue of risk of harm and the other matters that must be taken into account. 21. Having regard to all of the above considerations, I am satisfied on the balance of probabilities, that the appellant more probably than not, does have sufficient insight and parenting capacity for her to be allocated the parental responsibility of the children. 22. On reviewing the appellant's evidence as a whole, I consider that the reservations expressed by Ms Lyons as to the appellant's parenting capacity due to the identified lack of day-to-day familiarity with the children's needs, as summarised at paragraph [342] above, are matters that the appellant has satisfactorily addressed as far as she is able to do so, to this point, given her limited historical opportunities for regular contact with the children. That said, a fresh assessment and modified permanent placement plan is necessarily required before final orders can be made: s 83(7) of the Act. 23. I am fortified in that view of the appellant's capacity by the opinions of Dr Koehler which I have cited, and the absence of any evidence that would realistically suggest the appellant either lacked the requisite skills for parenting capacity, or that the claimed gaps in her skills indicate she does not yet have such capacity. In my view, the true position is to the opposite of those propositions, as was stated by Dr Koehler: T381.31. Child protection issues 1. At this point it is necessary to undertake a consideration of the child protection issues that arise along the lines of the risk of harm issues identified at paragraph [33] above. 2. Those child protection issues require evaluation alongside the objects of the Act, which require that children receive such care and protection as is necessary for their safety, welfare and wellbeing, having regard to the capacity of, in this case, persons other than parents responsible for them, to provide such care, this being the appellant: s 8(a) of the Act. 3. The objects of the Act are wide-ranging, and envisage placement of children in long-term, safe and secure environments: s 8(b) of the Act. The objects of the Act also envisage that appropriate assistance is rendered, in this case, to persons who are non-parents who have child rearing responsibilities, in order to promote a safe and nurturing environment: s 8(c) of the Act. 4. It is against those background factors that the child protection and risk of harm factors outlined at paragraph [33] above, stand to be assessed in accordance with the paramount best interests of the children: s 9(1) of the Act. 5. In addressing the matters identified at paragraph [33] above, on the evidence, I am comfortably satisfied that if the appellant were to assume parental responsibility for the children, it would be most unlikely that any harmful influences from either of their parents, particularly the father "D", would recur to again cause the children to suffer neglect. 6. In that regard, the general tenor of the evidence of the appellant in connection with her own daughter's situation, satisfies me that the appellant would not hesitate to invoke the resources and the assistance of outside agencies such as the police, FaCS, and the appropriate mental health team, if such a risk due to the behaviour of the appellant's daughter were to arise: T330.3 – T330.4; T331.37 – T331.40. I am persuaded that the appellant would consider the children to be her first priority in such an event. 7. In that regard, it should be borne in mind that any arrangements involving contact between the children and their natural parents would be governed by enforceable contact conditions, and the appellant has demonstrated her awareness of that fact by her evidence indicating her understanding that if the parents, or more accurately, the mother of the children, wanted greater access, she would need to go through a formal process of application to achieve such a result: T334.7; s 86 and s 90A of the Act. 8. In those circumstances, I am also comfortably satisfied by the evidence of the appellant, Ms Breitkreutz, Dr Koehler and Ms Lyons, that if the appellant were to be allocated parental responsibility for the children, it would be very unlikely that the children would be at risk of exposure to, or experience, domestic violence, or to suffer physical, psychological or emotional abuse. 9. As observed at paragraph [373] above, I have accepted Dr Koehler's view that although the appellant might find aspects of the burden of responsibility for the care of the children difficult, he was unable to establish any evidence that the safety, welfare or wellbeing of the children would be compromised by such possible difficulty. I have accepted Dr Koehler's evidence: T381.31. 10. I am similarly satisfied that in the care of the appellant, the children would be in an environment that would protect them from the effects of abuse from drugs and alcohol. In respect of the potential for risk of harm from such sources, as already observed at paragraph [435] above, the appellant is sufficiently aware of the need for such protection, and of the availability of healthcare and other agencies to assist her if she feels the occasion would arise, to call on such assistance. 11. Furthermore, as observed at paragraph [380] above, there would be a good deal of protection available to be afforded to the children against unreasonable risk, and with regard to their special needs. 12. I am comfortably satisfied that the appellant has a sufficient awareness of the needs of the children to, without hinder, attend appropriate tuition for their education, and to attend the therapies that would from time to time be the subject of recommendations to promote their physical, emotional, developmental and educational wellbeing. Additionally, I accept that the appellant has taken the appropriate steps to relocate herself into the Lismore area so that continuity of the existing education and health care arrangements for the children can be maintained in order to promote their best interests: T327.24 – T328.6. 13. In that latter regard, the appellant is awaiting the allocation of suitable public housing in a safe area. The result of that application is dependent upon the outcome of this appeal: T263.24 – T263.26; T335.27 – T335.47. With the orders I have in mind, I expect that issue will soon be resolved satisfactorily, although it is not known precisely how long that will take. Hopefully, it will be in the very short term. Other practical issues 1. Before final orders can be contemplated regarding the transfer of the permanent placement of the children, other practical issues need to be considered and evaluated. These comprise matters of a financial nature, therapies and treatment, education, assistance from agencies, attachment issues, and the risk of a possible placement breakdown, either in the short or longer term. Financial considerations 1. Whilst this assessment process should not involve competition between the appellant and the foster carers, the financial considerations of a placement with the appellant have some relevance, although they are not determinative in terms of choosing between the appellant and preserving the current placement with the foster carers. 2. If the children were to be placed with the appellant, she would continue to receive her pension and any other child care benefits or allowances to which she would be entitled by law. Those amounts were not quantified on the evidence in her case. 3. In contrast, the foster carers received a fortnightly allowance for each child, and "F2" derives an additional income from her work outside the home as a case worker with FaCS. She stated that she spends the government allowances on the children: T189.34 – T189.44. 4. There is little doubt that the foster carers have greater financial resources at their disposal than does the appellant. Nevertheless, the appellant has always managed her modest finances without difficulty: T337.30 – T337.32. On the other hand, the financial resources available to the foster carers must be divided between the needs of 5 foster children. Presumably, they also have entitlements to other benefits for those children. 5. In balancing those matters, as the parties have made no specific submissions on financial matters as determinative factors that need to be weighed, I have concluded that financial matters should not be seen as being decisive in this case. The appellant's comparative modest financial means does not necessarily mean she will not be able to establish a workable budget and provide the children with what they need in terms of care, education, support and attention if they were to be placed in her care. Therapies, treatments and education 1. There is no evidence to reasonably suggest that the children's needs for therapies, treatment, education and early interventions to address developmental delays, would suffer any hindrance if parental responsibility for the children were to be placed with the appellant. The appellant has moved to the Lismore area in order to seek to promote stability in respect of these arrangements for the benefit of the children: T327.24 – T328.6. These matters are therefore of neutral significance in the evaluation process. There are public resources that would be available in either placement option. Ms Breitkreutz confirmed that if needed, FaCS would provide support to ensure access to appropriate therapeutic services: T141.11 – T141.15; T142.6. The availability of that assistance is seen as providing a considerable margin of safety for the children in this case. Assistance from agencies 1. The objects of the Act are framed to ensure that persons other than parents who carry out child rearing responsibilities are rendered appropriate assistance in order to promote a safe and nurturing environment for the children: s 8(c) of the Act. That provision is non-discriminatory in its terms. The objects of the legislation specifically address the capacity of the responsible person to provide necessary care and protection. 2. As observed in paragraph [277] above, any assistance that might be expected to come from the National Disability Insurance Scheme will not accrue in the North Coast region until at least July 2017. Whatever assistance might be forthcoming from that scheme should be seen as being a neutral factor in this evaluation as such benefits would be available irrespective of the legal status of the case arrangements as decided by those proceedings: MFI "3". Attachment issues 1. Given the entrenched position of foster care over the past 2 years, the existing attachments, and the presence of attachment disorder, for the appellant to be allocated parental responsibility for the children, she would need to effect changes in her residential situation. This involves setting herself up with appropriate accommodation, and ancillary matters. In that regard a transition and transfer of the placement of the children would have to be managed with great care by all concerned, and this would have to be arranged as soon as is reasonably practicable, and with the assistance of FaCS, given what has occurred to date. 2. The issue of attachment is an important consideration in this case. There is no doubt that it is important to ensure that the children continue to develop stable attachments in their lives, including to persons providing them with care. 3. At present this is occurring with the foster carers. To the extent that the attachment of the children to the appellant is not as strong as the attachment that has developed with the foster carers over the past two years, this is not the fault of the appellant. This has arisen by force of the circumstances in which the appellant has had only very limited access to the children. Ms Lyons conceded this made it difficult for the appellant "to get to know the children well": T361.50. I infer that with greater and appropriately structured contact in the very short term, properly managed, the attachment of the children to the appellant will appropriately increase. 4. Ms Lyons contended that in respect of the youngest child, the attachment to the appellant was not yet strong enough for the appellant to take over as the primary carer from the attachment to the current carer: T364.37. Both Dr Koehler and Ms Lyons agreed that reduced contact with the appellant has disrupted the earlier attachment that existed. However, they both agreed that in the event of a change of placement, although a degree of rupture to existing attachments might be expected, if positive support is given by all concerned, a strengthened positive contact with the appellant would increase an attachment to the appellant: T364.5 – T364.42. 5. Ms Lyons confirmed that a stable or secure attachment to a primary carer can be transferred to someone else relatively easily: T377.37 – T378.45. In their joint discussion in the evidence on that subject, Dr Koehler cautioned against the use of the term "broken attachment" as was raised by Ms Lyons at T377.38. Instead, Dr Koehler agreed that attachments could be ruptured or damaged, but only become broken in very rare and extreme cases. Ms Lyons offered no disagreement to that formulation: T378.45. 6. I infer from that discussion in the evidence, that the situation of the children would not preclude the development of a stable attachment between the children and the appellant, if the appellant were to be allocated parental responsibility for the children. I interpret Ms Lyon's discussion about the possibility of the eldest child's attachment disorder posing a vulnerability to breaking the present attachment to be only a theoretical discussion in light of Dr Koehler's remarks, to which Ms Lyons ultimately offered no disagreement: T377.37 – T378.16; T378.45. Possible placement breakdown 1. It is indisputable that if parental responsibility for the children were to be allocated to the appellant, and for whatever reason, that placement were to break down, such an event would unfortunately be damaging to the wellbeing of the children. 2. Whilst that factor must be recognised as a possibility in every case, here, the evidence tends to suggest this factor should be seen to be a theoretical one, which may therefore be characterised as one of the potential imponderables or vicissitudes of life. There is nothing in the evidence to suggest that such an occurrence is likely to arise in this case. 3. To the extent that the theoretical possibility arises for consideration, it must also be seen in the context of the objects of s 8 of the Act, and in light of the evidence that there are FaCS services that would be brought to bear, as described by Ms Breitkreutz, if such a prospect seemed likely or imminent: T141.11 – T141.15; T142.6. I therefore do not consider that the possibility of placement breakdown to be a substantive consideration in this case. Statutory provisions 1. All of the foregoing considerations must be evaluated in light of the statutory provisions that apply to the issue of placement allocation in this case. The relevant sections of the Act that require consideration before final orders can be made are s 9, s10A and s 79. Section 9(1) – paramount principle 1. In any decision concerning the children, consideration of the safety, welfare and wellbeing of the children is paramount: s 9(1) of the Act. Section 9(2) – other relevant administrative principles 1. Although s 9(2)(c) of the Act provides that any decisions made pursuant to the Act that involve protective interventions must be the least intrusive, that provision has been interpreted as being limited in its application to decisions made at the time the children are removed and taken into care, and not to the time when later decisions are to be made following the removal of the children, where the issue is whether or not the existing care arrangements should be displaced: Re Tracey [2011] NSWCA 43, at [79]. 2. Where children are to be deprived of their family environment, in their own best interests, the children are entitled to any special protection and assistance from the State: s 9(2)(d) of the Act. The aim of orders for permanent placement in out-of-home care is to ensure the provision of a safe, nurturing, stable and secure environment: s 9(2)(e) of the Act. Unless contraindicated, the interests of the children are considered to be best served by the retention of significant relationships, including in this case, extended family: s 9(2)(f) of the Act. 3. According to s 9(2)(g) of the Act, all decisions on such matters must also be guided by the statutory permanent placement principles embodied in s 10A of the Act. Section 10A – permanent placement principles 1. In argument on behalf of the appellant, supported by the independent legal representative of the children, it was contended that since this appeal was filed after 29 October 2014, it is necessary to consider the permanent placement principles embodied in s 10A of the Act, as that section is engaged by the circumstances of this appeal. The section provides as follows: 10A Permanent placement principles (1) In this Act: "permanent placement" means a long-term placement following the removal of a child or young person from the care of a parent or parents pursuant to this Act that provides a safe, nurturing, stable and secure environment for the child or young person. (2) Subject to the objects in section 8 and the principles in section 9, a child or young person who needs permanent placement is to be placed in accordance with the permanent placement principles. (3) The "permanent placement principles" are as follows: (a) if it is practicable and in the best interests of a child or young person, the first preference for permanent placement of the child or young person is for the child or young person to be restored to the care of his or her parent (within the meaning of section 83) or parents so as to preserve the family relationship, (b) if it is not practicable or in the best interests of the child or young person to be placed in accordance with paragraph (a), the second preference for permanent placement of the child or young person is guardianship of a relative, kin or other suitable person, (c) if it is not practicable or in the best interests of the child or young person to be placed in accordance with paragraph (a) or (b), the next preference is (except in the case of an Aboriginal or Torres Strait Islander child or young person) for the child or young person to be adopted, (d) if it is not practicable or in the best interests of the child or young person to be placed in accordance with paragraph (a), (b) or (c), the last preference is for the child or young person to be placed under the parental responsibility of the Minister under this Act or any other law, (e) if it is not practicable or in the best interests of an Aboriginal or Torres Strait Islander child or young person to be placed in accordance with paragraph (a), (b) or (d), the last preference is for the child or young person to be adopted. 1. The appellant further contends that section becomes engaged in this case because the children have been removed from parental care: s 10A(1) of the Act. As a consequence, the objects of the Act embodied in s 8 of the Act, are also engaged, as are the paramount and placement principles respectively embodied in s 9(1) and s 10A(2) of the Act. The appellant further contended that those circumstances give rise to the need to apply the statutory hierarchy of permanent placement principles embodied in s 10A(3) of the Act. 2. The counter argument made on behalf of FaCS was that the provisions of s 10A of the Act are subservient to the paramount principle embodied in s 9(1) of the Act, and relate not to physical placement, but rather, to the allocation of parental responsibility, and only placement through that allocation. On behalf of FaCS it was further argued that s 10A of the Act is an irrelevant consideration in the present case because of the reference to guardianship in s 10A(b) of the Act, which engages s 79A of the Act concerning guardianship orders, whereas the present application concerns s 79, which relates to orders other than guardianship orders where parental responsibility is allocated. 3. The researches of the parties have not revealed any previous decisions which construe s 10A of the Act. There is one decision which makes only passing reference to s 10A without construing that provision: BQZ v Challenge Community Services [2015] NSWCATAD 92, at [82]. 4. It is common ground that in this case, it is not practicable or in the best interests of the children for them to be placed with a parent or the parents. Therefore, on behalf of the appellant, it was argued that the second preference is for permanent placement of the children with a relative, namely the appellant maternal grandmother in accordance with the statutory hierarchy: s 10A(3)(b) of the Act. 5. The decision on where the children should be placed does not involve a competition between the foster carers and the appellant, but rather, involves the interpretation of the statutory provisions for permanent placement and a consideration of the best interests of the children. 6. The appellant's argument construing the effect of s 10A of the Act invoked the Minister's Second Reading Speech introduced into the NSW Legislative Assembly on 1 November 2013 to interpret that section: Exhibit "17". The relevant portion of that speech as relied upon by the appellant to indicate the intention of the legislature, is as follows: "The principles of this bill reflect this Government's belief that ideally, a child will live safely at home with his or her parents and community services will work alongside the families to help them change. If children cannot live at safely home then the next best place for them is with family or kin – or in some circumstances with a non-relative carer – in a long-term, safe, nurturing, stable and secure placement. Where family or kin are unwilling and/or unable to assist then open adoption of the child should be considered and pursued. Open adoption offers a permanent home for life, with all the benefits this bestows on a child, including lifelong security and that precious sense of belonging." [Emphasis added] 1. Consequently, on behalf of the appellant, and supported by the independent legal representative of the children, it was argued that the intention of the legislation was to establish a statutory hierarchy to prioritise the placement of the children with family, without linking such a placement to circumstances involving guardianship. 2. There is no controversy that the maternal grandmother, is both a relative and the kin of the children within the meaning of sub-section (b) of s 10A(3) of the Act. The appellant contends that on a proper construction of the legislative intention of the statute, the permanent placement of the children should therefore be allocated to the appellant if the other required considerations, including the paramount considerations, are satisfied, namely whether the appellant is otherwise considered to be a suitable carer for the children, and that such a placement is in the best interests of the children. 3. The view that s 10A of the Act sets out a hierarchy for the placement of children in the defined circumstances is a compelling one. That view is supported by the extract of the Minister's Second Reading Speech as emphasised in paragraph [472] above. 4. Guided by the Minister's Second Reading Speech, I find that the clear intention of the legislation as found in s 10A of the Act is that the first preference is for children to be returned to their parents, and where that is not possible, as is the case here, the next preference is for the children to be placed with family or kin, in accordance with the stated hierarchy, in this case being the appellant maternal grandmother, as provided by s 10A(3)(b) of the Act. 5. As there was no challenge to the order of the Children's Court to the effect that there is no reasonable prospect of restoration of the children to their parents, and as I am satisfied that an order to that effect was properly made on the evidence, the application of s 10A(3)(b) of the Act mandates that the children be placed with the appellant, subject of course to a consideration of the best interests of the children. The proposed final orders will therefore reflect that finding. I now turn to the consideration of those best interests. Consideration of best interests of the children 1. Ultimately, the focus for analysis of the factors that determine which orders should be made in the appeal is the paramount consideration of the safety, welfare and wellbeing of the children: s 9(1) of the Act. That process embodies the concepts of necessity for the purposes of protection of the children, and the best interests of the children. 2. Whilst the children remain in the care of the present foster carers, they remain in a stable, caring and loving environment that has promoted the evolution of mutual attachments, not only between the children and the foster carers, but also the other children in the foster household. In that environment, they have access to all necessary health and educational interventions, and they are nurtured, both physically and emotionally. 3. One of the least disruptive of the placement options available to the Court in these proceedings is to make an order having the effect of simply leaving the present placement unaltered in the long-term, but to provide for expanded contact with the appellant maternal grandmother. In that way, the children would continue to thrive and grow up in a familiar household in which their needs, including their emotional and developmental needs, would continue to be met, they would continue to receive good care, and they would retain contact with and awareness of family. 4. Whilst that proposition appears on the surface to be a compelling argument, other counter-veiling considerations must also be accommodated, foremost amongst them being the mandatory requirements of s 10A(3)(b) of the Act. 5. The appellant maternal grandmother is the person of focus for the family identity of the children. Preservation of family is recognised as being an important consideration: T164.5. The appellant is a stable person, and subject to other factors already considered being adequately accommodated, she would be a stabilising influence in the lives of the children. The appellant has the appropriate attitude towards placing herself in a position to providing the children with appropriate care, attention and assistance. It seems highly likely this will most probably be achieved once her accommodation situation has been resolved following this appeal. 6. Obviously, the appellant is not as experienced or as established as the foster carers in meeting the needs of children with special needs because of the very limited contact she has had with the children since they were taken into care. However, the required evaluative exercise should not necessarily be seen as a competition between the foster carers and the appellant. The matter must be determined justly, and with the statutory considerations firmly in mind. The foster carers are not the children's biological family within the meaning of s 10A(3)(b) of the Act. 7. Furthermore, it is plain that in their hectic household, the foster carers must divide their time, attention and resources, to the three other children in their house, including the demands of the special needs of those children. Whilst the efforts of the foster carers in meeting those needs have to date been exceptional and commendable, it must also be recognised that such needs are likely to continue to expand as the children grow older. 8. In contrast, the appellant is a family member who shows genuine concern for the children. This gives her some considerable grounding and traction in the analysis. Furthermore, it is unlikely that the appellant will have a household that is "hectic" (T205.20), "busy" (Exhibit "1", Tab 28, p 1098, par 61) and where her "cups are overflowing" (T203.18), with the care needs of 5 (although soon to become 4) children, as is the case with the foster carers. In those circumstances, the appellant is likely to have more available time to attend to the needs of the children, as would be expected from a loving grandmother providing parental care and responsibility in loco parentis. 9. In my view, those considerations, including s 10A(3)(b) of the Act, serve to tip the scales heavily in favour of placement of the children with the maternal grandmother. However, before reaching a concluded view on the matter of placement, as appears in the paragraphs that follow, another important consideration has arisen in the evidence given in the appeal. 10. If the present placement position were to remain, it would appear that a significant disadvantage to the children arises from the difficulty the foster carers have identified and expressed concerning the poor prospects of them maintaining a respectful relationship with the maternal grandmother. 11. That position has become entrenched due to communication difficulties, and, it appears, some hypersensitivity on the part of "F1" to concerns or suggestions made by the appellant. The agency UPA, and by inference, FaCS, has allowed this difficulty to worsen by facilitating the erection of buffers and communication barriers against the maternal grandmother to limit her attempts to be involved with the children. This has had the effect of stemming the flow of ordinarily expected information to the appellant about the children, including about their special needs and required therapies. 12. That position is unacceptable, and should not have been allowed to continue, and to worsen to the point that has been reached, as described in the evidence. 13. In that regard, the failure to consider mediation of that problem until now tellingly indicates that there is little likelihood the problem will resolve in the short term. Ms Breitkreutz's optimistic expectation for the communication difficulties that have arisen between the foster carers and the appellant to recede (T159.19 – T159.25) should be seen as just that, namely optimistic expectation, without realistic foundations. 14. The evidence does not suggest confidence that there will be a material change because of the nature of the opposing interests in that regard. I gained that impression from the general tenor and outburst of emotion expressed in the evidence of "F1", for example, at T201.24, when she referred to her earlier motivation for seeking guardianship of the children. It is plain that the communication problem between the foster carers and the appellant is laden with emotion on the part of the foster carers. 15. In my assessment, an ongoing lack of respectful relations as described seems to be a one way problem, namely, from the foster carers towards the appellant. I am satisfied that is based on hypersensitivity on the part of "F1" (T197.22 – T197.23), and because of miscommunication or misunderstanding over the appellant's motivation concerning her need, and indeed her right, to have input and feedback concerning her grandchildren: T275.8 – T275.10. The result has been a mischaracterisation of the appellant's expressed concerns, labelling them as complaints, as observed at paragraphs [191] and [192] above, and which has resulted in the erection of barriers to communication aimed at limiting the involvement of the appellant in the lives of the children. 16. That attitude should not be allowed to permeate into the placement and care arrangements of the children. It has the unfortunate effect of tending to undermine the relationship of the children with their grandmother, either directly or indirectly. This is so particularly where "F1" has ultimately conceded that the appellant had a right to the information and involvement she was seeking, and that right had to be respected: T198.13 – T198.25. 17. In my view, in the best interests of the children, the most appropriate way of managing that communication problem seems to be to neutralise it by placing the children with the appellant pursuant to s 10A(3)(b) of the Act, subject to other factors being satisfied. That approach would remove the present layers of difficulty comprising the entrenched positions adopted by FaCS, UPA, and the foster carers, on the communication and respect issues affecting the foster carers' relations with the appellant. 18. I therefore consider that the best interests of the children would be most appropriately served by preserving the family relationship with the appellant maternal grandmother and allocating parental responsibility to her, subject to some necessary safeguards in the best interests of the children: s 10A(3)(b) and s 79 of the Act. Flexibility and safeguards 1. The legislative provisions that enable the allocation of parental responsibility permit a wide range of options aimed at providing for the best interests of the children: s 79(1) of the Act. The legislation also permits flexibility in the allocation of different aspects of parental responsibility: s 79(2) of the Act. 2. In my view, in this case, given what has transpired during the placement of the children with the foster carers in the previous two years, where the appellant has been significantly limited in terms of her involvement with the children as they have grown and developed, there should be some short term flexibility and safeguards incorporated into the arrangements for the care of the children. 3. In arriving at that view I do not intend any criticism of the excellent care the foster carers have otherwise provided to the children. Nor do I intend to express doubts over the motivations or the capacity of the appellant. 4. I consider that the provision of flexibility and safeguards in the arrangements is best achieved by an arrangement whereby the Minister continues to have sole parental responsibility for a relatively short period of transition, and then for the appellant maternal grandmother and the Minister to have different aspects of parental responsibility for the children allocated to them for a reasonable period, followed by sole allocation of parental responsibility to the appellant as is permitted by s 79(1)(e) of the Act. 5. I consider that an arrangement of that kind, would be fair, just and in the paramount best interests of the children, and would be best achieved by the appellant being allocated all aspects of parental responsibility for the children until they reach the respective ages of 18 years, except that the medical, dental and allied treatment needs of the children should be allocated to the Minister for a limited period of 3 years. 6. In my view, that course is justified on the facts of this case because: 1. The children have been diagnosed with global developmental delays which, to differing degrees, will continue to need structured medical and allied therapies, and interventions, especially in the short term, and the appellant will need assistance with the gradual and effective hand-over of responsibility for those matters; 2. Those therapies and interventions will require co-ordinated and skilled monitoring over time, including with regard to interactions with therapy providers and educational institutions; 3. As the appellant has to date been erroneously excluded from involvement in such matters, due to absence of fault on her part, it will be important to ensure appropriate continuity of care for the children, especially as the appellant will need time to catch-up on such matters. This will be best achieved with a limited degree of departmental involvement and oversight on matters involving medical, dental and allied therapies. I consider a period of 3 years to be reasonable in that regard; 4. The above requirements will involve the allocation and co-ordination of resources that are, in the short-term, likely to be beyond the immediate organisational abilities of the appellant. She will need to establish suitable accommodation and to consolidate a stable domestic regime. This may be difficult for her without the provision of outside assistance from the resources available to the Minister. In the circumstances of this case, where a misreading of the FaCS files has caused the appellant to be marginalised in the extent of her contact with the children, in the interests of the children, in order to counteract the effects of those circumstances, it is appropriate that such assistance be given to the appellant; 5. If left only to her own means, the appellant will most likely take some time to become fully adept at ensuring the therapy needs of the children are adequately met. That period of time is difficult to predict. In those circumstances, the present needs of the children should not be held back by delays due to the consequences of the appellant having to pursue a learning curve to catch-up on such matters; 6. It will be necessary to maintain periodic skilled independent medical and allied therapeutic contact between the children and the already appointed practitioners. Maintaining ready access for all concerned to FaCS, if needed for a time, will in the circumstances serve to provide a significant measure to safeguard the best interests of the children, especially given that the effects and impact of global developmental delays are likely to change whilst the new regime is implemented; 7. Monitored maintenance of the health of the children will be a key factor in ensuring their paramount interests will continue to be best served. 1. The course proposed in these reasons, as set out in paragraph [500] above, is one that is anticipated and permitted by the legislation: s 79(1)(e) and s 79(2)(e) of the Act. 2. In proposing that course, I consider that it is consistent with the permanent placement principles embodied in s 10A of the Act. This course would be far more preferable than making a guardianship order in respect of the children pursuant to s 79A of the Act: s 79(3) and (4) of the Act. 3. I consider that the contemplated regime ought to be co-operatively workable in the best interests of the children: s 79(8) of the Act. I take that view because I accept the appellant's evidence that her priority is the best interests of the children. That reassurance, taken together with the coincidental statutory obligation on the delegate of the Minister to observe the same interests, is a significant safeguard. There ought to be no conflict on that matter. 4. Furthermore, I consider that the proposal I have identified, has within it an inherent safeguard mechanism for the children because, in the event of a relevant disagreement between the appellant and the Minister on any matter of treatment over the course of the next 3 years, in the absence of agreement, any such dispute may be resolved by invoking the supervisory jurisdiction of the Children's Court, if that is required: s 79(7) of the Act. 5. As the specific notion of a 3 year period of allocation of joint parental responsibility in the divided aspects, as outlined in paragraph [500] above has not been directly canvassed in the submissions of the appellant, the department or on behalf of the children, before final orders are made, those parties should have the opportunity of considering that proposal, and responding with such submissions as they may wish to make on that topic, before final orders are made. 6. There appears to be an array of other options. 7. One such option would seem to be for the duration of the envisaged joint arrangement to be restricted to a relatively short settling-in or transition period, but to also allow for a sufficient additional period to provide confidence that stability of hand-over and continuity of assessment, therapies, interventions, and for adequate oversight on those matters, until a stable regime has been satisfactorily established. 8. Another option would be to allocate to the Minister the responsibility for the medical and allied issues until the children reach the respective ages of 18 years, but for the appellant to be allocated all other aspects of parental responsibility. 9. These are matters the parties need to consider, consult upon and to possibly seek expert guidance, before making submissions in respect of final orders. 10. The arrangement I have proposed should not disadvantage the appellant or the children in the meantime. This is because in the anticipated transition arrangements, until final orders are made, the present responsibility vesting in the Minister will continue in the best interests of the children, although it is expected that in the coming days the appellant will be given significantly increased contact and care opportunities in preparation for her to ultimately assume the day-to-day charge of the children. 11. In the meantime, during the transition of the children to the appellant's care, in the background, the identified issue involving the duration of the Minister's involvement should be capable of being resolved by consent. If there is a dispute, the matter may be relisted on short notice for further evidence and argument on that limited matter, should that course become necessary. 12. In the meantime, transition planning and a new permanency plan should now proceed forthwith, consistent with these reasons, and subject to the further submissions of the parties. Proposed care plan 1. As foreshadowed at sub-paragraph (5) of paragraph [38] above, the central question is whether the proposed placement and care plan proposed by FaCS should be approved. It is plain from the foregoing reasons, that plan is not approved. A fresh permanency plan is therefore required. Transition and support issues 1. The expert evidence in this case, and the lay evidence which identifies the communication difficulties that have arisen between the foster carers and the appellant maternal grandmother in the context of their respective competing interests, indicates that in the best interests of the children, careful expert attention and assistance needs to be applied to the transition arrangements that have become necessary as a result of my findings and the proposed consequential orders. The expectation is that the parties will fully co-operate on those matters so that effective final orders may be made as soon as practicable. 2. The starting point is for the appellant to have more liberal contact with the children as soon as can be practically arranged whilst she seeks to secure suitable accommodation. If it is at all possible, to speed the process of the appellant securing suitable accommodation, it would be helpful if, at a high level of inter-departmental co-operation, FaCS could liaise with the Department of Housing to assist the appellant to promptly secure suitable housing in the interests of facilitating an early transition and transfer of care of the children, especially before the new school year. 3. Whilst it is well understood these remarks cannot bind the public officials whose function it is to deal with the high demand in the community for priority allocation of public housing, it is plain that there is a high moral imperative and burden on FaCS to assist with whatever can reasonably be done in that regard, given that the initial misreading of the FaCS file has compounded the problem of the appellant's present situation, and which has led to this appeal. If FaCS were able to secure such an intervention in the best interests of the children, this may go some way towards redressing the consequential difficulties that have arisen from those initial mis-readings and assessment errors. 4. It would also be in the best interests of the children if the transition to placement with the appellant were to occur as quickly as reasonably possible. Whilst appreciating some of the administrative difficulties that may arise at this time of the year, it would be helpful if, at a high level, FaCS could promptly arrange whatever is required to achieve a fresh permanency plan, or if needed, an interim care plan, that reflects these reasons, to submit to the court for approval. 5. In that regard, in the paramount best interests of the children, all the parties, including the foster carers, should use their best endeavours to co-operate, either with, or without outside professional assistance, to achieve the above objectives without avoidable difficulty, including inter-personal difficulties of the kind that have been ventilated in the course of the evidence in these proceedings. 6. Should there be a need for the court to intervene in order to resolve any such issue, I propose to grant liberty for any affected party to apply for directions on short notice as and when required. 7. With regard to the set-up practicalities which face the appellant, it appears that there may be some areas with which the appellant may require material or practical assistance. As already indicated on the housing issue, given the pathway of error that has led to the present position, without fault on the part of the appellant or the children, there is a high moral call for FaCS to provide the appellant with more than just minimal practical and advisory assistance in that regard. 8. Finally, in the best interests of the children, if and when FaCS seeks advice from a Children's Court clinician concerning transition and related hand-over issues, it hardly needs saying, but nevertheless, it is recorded here for more abundant caution, that assessment should be by fresh eyes, without reliance on the flawed positions and opinions that have in the past caused difficulty in this case. Similarly, given what has occurred with the early misreading of the historical FaCS file, it would also be in the best interests of the children, and for all concerned, if FaCS were to assign a new caseworker to oversee the necessary arrangements. Dispositive conclusions 1. The appellant has succeeded in showing that the decision of the Children's Court should be set aside regarding the allocation of parental responsibility solely to the Minister which had resulted in the placement of the two children "C" and "B" with the foster carers. As a consequence, the proposed permanency plan is not approved. 2. This is because the original decision under appeal has been shown to have been made on the basis of erroneous evidence that was not exposed as being wrong when the Children's Court decision was made. 3. Furthermore, the evidence generally, and the requirements of s 10A of the Act in particular, in my view mandates that the aspects of parental responsibility for the subject children relating to their medical, dental and allied care needs, should be allocated to the Minister in accordance with s 79(2)(e) of the Act. Subject to hearing from the parties on this point I consider this should be for the next 3 years, but jointly with the appellant maternal grandmother for all other aspects of parental responsibility until the children reach the respective ages of 18 years. 4. In the circumstances, final orders must be delayed pending a consideration of those proposals by the affected parties, and pending the preparation of a fresh permanency plan providing for transition and transfer of long-term placement and care arrangements for the children to the appellant consistent with these reasons. 5. In the paramount best interests of the children, it is important that finalisation of that plan proceed to completion with due care, and as soon as is practicable. Interim Orders 1. Pending the making of final orders I make the following interim orders subject to the further order of the Court: 1. Appeal allowed; 2. The Secretary of the Department of Family and Community Services is to prepare a new permanency plan consistent with these reasons; 3. The proceedings are to be listed on 29 January 2016, for the specific purpose of the parties bringing short minutes that set out the required draft orders to reflect these reasons, and which also fulfil any formal requirements of the Children and Young Persons (Care and Protection) Act 1998; 4. If required, liberty is granted to the parties to apply to the Court to relist the matter on such abridged notice as may be necessary, for the purposes of implementing these interim orders, and to identify the required final orders; 5. The exhibits are to be retained in the Court file pending further and final orders. ********** 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: 18 December 2015