Children's Court New South Wales Medium Neutral Citation: DFaCS re Eggleton [2016] NSWChC 4 Hearing dates: 9 June 2016 Date of orders: 06 July 2016 Decision date: 06 July 2016 Jurisdiction: Care and protection Before: Judge Peter Johnstone, President of the Children's Court of New South Wales, at Kempsey Decision: There is a realistic possibility of restoration to the parents; Secretary's assessment not accepted; Secretary directed to prepare a different permanency plan involving restoration Catchwords: CHILDREN – Care and protection – realistic possibility of restoration – permanency planning Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 Cases Cited: Blinko v Blinko [2015] FamCAFC 146 Briginshaw v Briginshaw [1938] HCA 34 DFaCS re Day [2012] NSWChC 14 DFaCS re Oscar [2013] ChC 1 Director-General of Department of Community Services; Re "Sophie" [2008] NSWCA 250 In the matter of Campbell [2011] NSWSC 761 JL v Secretary, Department of family and Community Services [2015] NSWCA 88 Johnson v Page [2007] FamCA 1235 Lukeson v Page [2007] Fam CA 1235 M v M [1988] HCA 68 Napier v Hepburn [2006] FCA 1316 Re Georgia and Luke (No 2) [2008] NSWSC 1387 Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89 Re Tanya [2016] NSWSC 794 Sudath v Health Care Complaints Commission [2012] NSWCA 171 Category: Principal judgment Parties: The Secretary, Department of Family and Community Services NSW (DFaCS) The Mother and Father The Child Representation: Mr T Fox, solicitor, for the Secretary Mr R Hetherington, solicitor, for the parents Ms F Healey, solicitor, for the child File Number(s): 2016/11 Publication restriction: Pseudonyms have been used in order to anonymise the children and parties Judgment 1. These Care proceedings concern Walter Eggleton, who will shortly turn five, who was removed from the care of his parents on 11 June 2015 by the Secretary of the Department of Family and Community Services, New South Wales (DFaCS) pursuant to the Children and Young Persons (Care and Protection) Act 1998 (the Care Act). 2. The immediate precipitating event for that removal was the unfortunate death of a younger sibling, Joshua, on 7 June 2016, aged three weeks, due to cardiac arrest. There were also reports of the parents having been engaged in heavy drinking, drug taking and domestic violence. 3. The child, Walter, was found by the Children's Court to be in need of care and protection on 24 June 2015 and the Secretary prepared a Care Plan for his future, proposing a cautious restoration to the parents. This involved the allocation of parental responsibility to the Minister for a year, followed by a supervision order for a further six months and undertakings to be given by the parents. The restoration was to be staged over a timeframe no greater than six months. 4. Final Care orders were made by the Children's Court on 9 September 2015 pursuant to which Walter was physically restored to the care of his parents on 7 October 2015. 5. But just six weeks later Walter was again removed by the Secretary, on 26 November 2015, when the Secretary received a Risk of Serious Harm Report (ROSH) surrounding the mother's drinking. As at that date the mother had become pregnant again and was some 13 weeks pregnant. The second removal was made against an historical background of the parents' excessive drinking, the death of the baby Joshua and concerns as to the new baby being born with foetal alcohol syndrome. 6. Although the autopsy report in relation to the baby did not conclude that the death occurred in any particular way, amongst the viable scenarios was the possibility that the death occurred due to him having been smothered when a drunken mother, co-sleeping with the baby, rolled over onto the baby causing his death. 7. This was a risk factor appropriately considered and taken into account by the Secretary, consistent with the High Court decision in M v M, to which I will come. 8. Walter was placed with his paternal aunt and has remained in her care. 9. The Secretary filed an application under s 90 of the Care Act on 14 March 2016 seeking rescission of the final Care orders made on 9 September 2015 (which proposed restoration). On 6 April 2016 the Children's Court granted leave to the Secretary under s 90(2) of the Care Act to bring the application for rescission. 10. A fresh Care Plan for Walter was prepared and filed on 15 April 2016. In that plan the Secretary assessed that there was no longer any realistic possibility of restoration to the parents and proposed long term placement of the child with the paternal aunt by way of a guardianship order. 11. The parents oppose this permanency planning and seek restoration of Walter to their care again, either immediately or pursuant to another staged plan with interim protective measures. 12. The matter proceeded to hearing at Kempsey on 9 June 2016. Mr Fox, solicitor, appeared for the Secretary. Mr Hetherington, solicitor, appeared for the parents and Ms Healey, solicitor, appeared for the child as the Independent Legal Representative (ILR). 13. The Secretary relied in particular upon affidavits by the caseworker, Mr Daniel Shorter, and Miss Donna Newman, the caseworker from the agency Burrun Dalai, who were cross-examined, and on oral evidence from the paternal aunt. The parents also filed affidavits and they were cross‑examined at the hearing. 14. At the conclusion of the evidence I stood the matter over for the receipt of written submissions. Written submissions have been provided: firstly, by the Secretary, dated 23 June 2016; the parents' solicitor also provided written submissions, dated 1 July 2016; and I have also received written submissions from the ILR for the child, Ms Healey, dated 4 July of 2016. 15. Before turning to consider and determine the issues that arise in the proceedings, it is appropriate that I should put the decision-making process into context with a brief summary of the relevant legislation and principles. The relevant legal framework 1. The relevant legislation and principles are conveniently summarised in the decision of Justice Rein of the Supreme Court in Re Tanya [2016] NSWSC 794 at [70] and I incorporate that summary into these reasons: "Principles The learned President of the Children's Court in his judgment set out the legislation and principles relevant to a case of this kind at [18]-[39]. Counsel before me were in agreement that his Honour has correctly summarised the relevant legislation and principles and I therefore set out what his Honour there said: "The Applicable Legal Framework [18] These are child protection proceedings governed by the Care Act. Decisions in the proceedings are to be made consistently with the objects, provisions and principles provided for in that Act and, if relevant, with the provisions of the United Nations Convention on the Rights of the Child 1989 (CROC) see Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89 at 264] - [268]. [19] There was no suggestion that this Court needed to take into account any provision in CROC in the present case such that there was some different requirement, some additional principle, or some gloss that required the Court to have particular regard to in determining this case, such that I was required to go beyond the Care Act and the case law interpreting that Act and the relevant provisions, or in the consideration of the permanency planning proposed. [20] The objects of the Care Act, as set out in s 8, are: (a) that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and (b) that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and (c) that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment. [21] The Care Act is to be administered under the principle that the safety, welfare, and well-being of the children are paramount (the paramount concern): s 9(1) of the Care Act. This is often referred to as the paramountcy principle, and it prevails over all other considerations, even where it conflicts with the rights or interests of the parents. [22] It is now well settled law that in all decisions under the Care Act 1998 involving the paramount concern for the safety, welfare and well-being of a child, including issues of removal, restoration, contact, custody and placement, the proper test to be applied is that of "unacceptable risk of harm to the child": M v M [1988] HCA 68 at [25]. Whether there is an unacceptable risk of harm to the child is to be assessed from the accumulation of factors proved according to the relevant civil standard: see Lukeson v Page [2007] Fam CA 1235. [23] The High Court has held that in applying the unacceptable risk of harm test it is necessary to determine firstly whether a risk of harm exists and, secondly, the magnitude of that risk, as it may be determinative of the issues involved in the particular proceedings. [24] The onus of proof is upon the Secretary. The standard of proof is on the balance of probabilities: s 93(4) of the Care Act. The High Court decision in Briginshaw v Briginshaw [1938] HCA 34 is relevant in determining whether the burden of proof, on the balance of probabilities, has been achieved: Director-General of Department of Community Services; Re "Sophie" [2008] NSWCA 250. [25] The Court is not bound by the rules of evidence, unless it so determines: s 93(3). [26] Nevertheless, the Court must draw its conclusions from material that is satisfactory, in the probative sense, so as to avoid decision-making that might appear capricious, arbitrary or without foundational material: JL v Secretary, Department of family and Community Services [2015] NSWCA 88 at [148]; see also Sudath v Health Care Complaints Commission [2012] NSWCA 171 at [79]. [27] Secondary to the paramountcy principle, the Care Act sets out other, particular principles to be applied in the administration of the Act. These principally are set out in s 9(2) and s 10. [28] Where relevant, there are further specific principles that are applicable in the case of Aboriginal and Torres Strait Islander children, principally set out in ss 11, 12 & 13. [29] Some of these "secondary" principles that are of potential relevance to the present matter include the following. I paraphrase the provisions concerned: * Wherever a child is able to form their own view, they are to be given an opportunity to express that view freely. Those views are to be given due weight in accordance with the child's developmental capacity, and the circumstances: s 9(2)(a). See also s 10. * Account must be taken of the culture, disability, language, religion and sexuality of the child and, if relevant, those with parental responsibility for the child or young person: s 9(2)(b). * Any action to be taken to protect the children from harm must be the least intrusive intervention in the life of the children and their family that is consistent with the paramount concern to protect them from harm and promote their development: s 9(2)(c). * That any out-of-home care arrangements are to be made in a timely manner, to ensure the provision of a safe, nurturing, stable, and secure environment, recognising the children's circumstances and that, the younger the age of the child, the greater the need for early decisions to be made s 9(2)(e). [30] Once a child or young person has been found to be in need of care and protection, it becomes the responsibility of the Secretary to prepare a Care Plan: s 78. The Care Plan addresses issues such as the interim arrangements for the child; whether there is a realistic possibility of restoration; the allocation of parental responsibility: s 80(b); and permanency planning, including contact and the provision of services for the child. [31] The assessment as to whether or not there is a "realistic possibility of restoration" to a parent involves an important threshold construct which informs the planning that is to be undertaken in respect of any child, and determines whether some other course of action is appropriate, such as placement with a family member or with someone else, in foster care. [32] It is for the Secretary to make the assessment in the first instance: s 83(1). It is then for the Court to decide whether to accept that assessment: s 83(5). [33] Regard must be had to two matters: a) the circumstances of the child or young person, and b) the evidence, if any, that the child or young person's parents are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care. [34] There is no definition of the phrase "realistic possibility of restoration" in the Care Act. However, the principles concerning the interpretation and application of the phrase were comprehensively considered in the Supreme Court by Justice Slattery in 2011: In the matter of Campbell [2011] NSWSC 761. This decision has recently been cited with approval by the Court of Appeal: Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89 at [44]. [35] I have discussed the principles in a number of judgments including DFaCS re Oscar [2013] ChC 1 at [29] - [34]. The principles may be summarised as follows: * A possibility is something less than a probability; that is, something that it is likely to happen. A possibility is something that may or may not happen. That said, it must be something that is not impossible. * The concept of realistic possibility of restoration is not to be confused with the mere hope that a parent's situation may improve. * The possibility must be 'realistic', that is, it must be real or practical. The possibility must not be fanciful, sentimental or idealistic, or based upon 'unlikely hopes for the future'. It needs to be 'sensible' and 'commonsensical'. * It is at the time of the determination that the Court must make the assessment. It must be a realistic possibility at that time, not merely a future possibility. * It is going too far to read into the expression a requirement that a parent must always at the time of hearing have demonstrated participation in a program with some significant "runs on the board": In the matter of Campbell [2011] NSWSC 761 at [56]. * There are two limbs to the requirements for assessing whether there is a realistic possibility of restoration. The first requires a consideration of the circumstances of the child or young person. The second requires a consideration of whether the parent(s) are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care. * The determination must be undertaken in the context of the totality of the Care Act, in particular the objects set out in s 8 and other principles to be applied in its administration, including the notion of unacceptable risk of harm. [36] If the Court does not accept the assessment of the Secretary as to restoration, it may direct the Secretary to prepare a different permanency plan: s 83(6). [37] The Secretary is then required to address the permanency planning for the child in accordance with the decision as to restoration or otherwise: s 78. [38] Permanency planning means the making of a plan that aims to provide a child with a stable, preferably permanent, placement that offers long-term security and meets their needs. [39] The Secretary, having prepared the permanency plan, places it before the Children's Court for its consideration: s 83(2) and s 83(3). The Court may approve the permanency planning by an express finding that it has been appropriately and adequately addressed: s 83(7). Or, it may reject the permanency planning. Or it may decline to make such a finding, in which event final Care orders cannot be made."" 1. Central to the decision in the present case is the application of the unacceptable risk of harm test formulated in the High Court decision in M v M [1998] HCA 68. Importantly in the present case the Court is required not only to consider whether there exists an unacceptable risk of harm but to evaluate the seriousness of that risk and the prospect of the identified harm actually occurring. In Napier v Hepburn [2006] FCA 1316, the Full Court of the Family Court discussed the balancing act to be undertaken in the following extract from a judgment given by Fogarty J (the author of the paper entitled, "Unacceptable Risk: a Return to Basics", referred to with approval in Johnson v Page [2007] FamCA 1235 at [68] and [71]): "In assessing the unacceptable risk question the Court must undertake a qualitative analysis. For instance, that determination cannot appropriately be made through a process which counts the number of considerations which favour access and those which militate against access, and then asks on which side the balance falls. Rather the essential weight must be attached to the magnitude of the harm to which the risk relates. The notion of unacceptable risk must be assessed in the light of the grave consequences...to a child's development and safety as well as the effects of future contact with the party." 1. It seems to me, therefore, in the present case, that the unacceptable risk of harm that is said to be presented to the child by his parents needs to be evaluated against the prospect of it actually occurring, and against the protective measures that might be put in place to ameliorate or minimise that risk to an acceptable level: see Blinko v Blinko [2015] FamCAFC 146. The Secretary's submissions 1. The essential thrust of the Secretary's case is that restoration of Walter to his parents would pose an unacceptable risk of harm. That risk is said to derive from alcohol abuse, drug use and poor parenting skills on the part of the parents and their limited insight into these risks. 2. There is no sufficient form of intervention which could, to the necessary extent, mitigate those risks, and that even if there were, the parents are unlikely to fully accept and engage with any required intervention to the extent necessary. 3. The Secretary submits further that the mother's history of alcohol consumption is relevant to the assessment of the risk she poses to Walter. Not least because of the role played in the first removal of Walter following the death of Joshua, but also her excessive consumption of alcohol at a time when she was pregnant with Noel, and its general capacity to interfere with her capacity to provide an adequate level of care at all times. The Secretary relies on a series of factors: (a) the longstanding nature of the parents drinking (b) the quantity typically consumed and the level of intoxication (c) their attitude, particularly that of the mother to drinking (d) the mother's lack of insight into her drinking problem and its negative impacts upon her parenting capacity (e) the parents' refusal to engage positively and constructively with Community Services and with other services put in place to assist them. 1. The Secretary next points to the father's use of cannabis as productive of risk of harm. More particularly the Secretary points to the father's lack of candour about his drug use, and I quote (from paras 40 and 41): "This raises a conundrum for the Court: if it accepts that the weight of evidence suggests that one or both or the parents had been smoking at a time when they must have understood that they would be under intense scrutiny; what does that say about their insight into the issues, their willingness to engage and their propensity in any future restoration to say one thing and do another? It is reminiscent of the behaviour of the mother in relation to alcohol: on 9 November 2015 she is visited by IFBS caseworker and manager and warned that the risk of reports to the helpline if she is seen drinking. But on 21 November 2015 she is seen by that IFBS caseworker and reported as being, 'really intoxicated'; yet instead of disappearing in the opposite direction as quickly as she could to avoid detection or censure, she goes onto tell the caseworker that she is 'stressed and having a few drinks at home with the father': (paras 15 and 19 of the affidavit of Donna Newman, 25 May 2016). This raises a separate issue, the extent to which the mother may smoke cannabis. The Secretary has no other specific evidence that suggests that she does and both parents assert that she has never smoked it, yet the fifth page of the intake assessment by Kempsey Community Health (Exhibit E), completed on 1 February 2016, presumably on information given by the mother, clearly reports past cannabis use. It is noted that the mother in cross-examination could not explain this nor certain other aspects of the information contained in that documentation, although she conceded the truth of some of the observations made by the counsellor." 1. The Secretary next submits that the mother struggled with the management of Walter's behaviours. Her capacity was described as frequently poor and lacking consistent discipline and routine. In this regard her lack of insight into the inadequacy of her skills is demonstrated when she says things like, "I know how to look after kids, I don't need them" - meaning IFBS. 2. There was also an episode on 24 November 2015 when the mother called Walter a "fucking little cunt" and smacked him, and continued swearing at him. This is not consistent with good parenting. 3. The Secretary is also critical of the mother's engagement with services, and I quote (from paras 46 to 48): "The parents have had the opportunity of demonstrating both, first through involvement of IFBS and second, through their participation in their own chosen service, Kempsey HomeStart. As to the first, the records produced speak for themselves. There was a basic engagement but it is clear that the mother did not go out of her way to engage. Sherene Elford at para 9, notes the mother's reluctance to agree to meet other than once a week, on a Wednesday at 3.30 and then missed appointments when the parents were not there at the appointed time. The mother's engagement with Kempsey Community Health on 1 February 2016 was as previously noted, both reluctant and limited. It was put to the mother in cross-examination that generally she had not engaged; a proposition she did not dispute. Even the service chosen by the parents or their solicitor, Kempsey Home Start, was not sufficiently attractive to entice the parents there on a regular basis. There was a file note dated 18 May 2016 of a conversation between caseworker, Robyn Passmore, and Sherri Foster of HomeStart, (part of exhibit B), which confirms a history in Mr Shorter's affidavit of 25 May 2015 (at paras 35 to 43), that the parents missed appointments to the point where Ms Foster and the parents' solicitor had to, "chase the parents to attend." Interestingly that file note records that the parents were offered grief counselling on several occasions but refused. Which is consistent with the evidence given by the father to the effect that he thought it was a good idea and was waiting for someone to organise it for him." 1. It was submitted that this lack of engagement and disdain for authority is indicative of their likely failure in the future to engage: "This is significant were the Court to consider a restoration, not least because there would be a clear need for the parents to co-operate with services around a relapse prevention, grief counselling, parenting skills and the like, and a clear issue in relation to their willingness in the past to do those things. Both parents evinced a clear dislike of service intervention. The father said he could work with IFBS, although not Ms Newman, as he blamed her for what had happened. The mother went further and said that she would not work with Burrun Dalai IFBS at all." 1. It is also indicative of the parents' lack of insight: "...both parents showed a lack of insight into the purpose of intervention and the role of a supportive organisation such as IFBS, which was introduced to help rather than to hinder. As the Court will know from these submissions both parents also show lack of insight into other issues such as alcohol use and parenting issues. This may be a consequence of their still not really understanding why it was that Walter was removed in June 2015..." 1. The Secretary's final submission is therefore, "The Court should find the Secretary has discharged the burden of proof in satisfying the Court that, having regard to the capacity of the parents, there would be an unacceptable risk to the child if restored to their care, principally because of the uncertainty of the safety of the home environment, the possibility of exposure to injury arising out of drug or alcohol use by the parents and the limited insight of the parents into those risks. The Court should also find that there is no realistic possibility of restoration because on the evidence presented to the Court, it could not be satisfied in the circumstances that there is any form of intervention which would, to the necessary extent, mitigate those risks; or that even if there were, the parents would fully accept and engage with that intervention to the extent necessary." The submissions of the parents 1. Written submissions were prepared and filed by Mr Hetherington, the solicitor for the parents. 2. The parents concede that they did consume alcohol and, on occasions, to excess, but they maintain that their practice was always to engage a carer for Walter on those occasions on which they planned to go out drinking. 3. The mother's evidence that she had not consumed alcohol and has remained sober since 21 November 2015 appears to be uncontradicted. The mother is prepared to provide hair samples and undergo such testing as the Secretary considers appropriate. 4. It was further submitted that there is no credible evidence of the mother consuming drugs and her evidence that she never has should be accepted. 5. The father, it is conceded, did consume drugs and also consumed alcohol. It also emerged that he has taken drugs recently. Although he was less than candid to the Court about this issue, it was submitted (at para 32) that the father "should be commended for his concession to the one person that absolute honesty is paramount - his counsellor". "Further, there is an expectation that such information should remain confidential. The alternative stands to undermine the integrity of the counsellor to client relationship and defeats the notion of open and honest communication between the two parties." 1. The written submissions then turn to address the criticisms of the mother's parenting capacity. In this regard the written submissions are less than helpful. Paragraphs 36 and 37 read as follows: "It is somewhat noteworthy that the father does not feature during the Secretary's diatribe denouncing the mothers' parenting. It is submitted a more prudent attitude towards the mother is required. It must be remembered that on or about 7 June 2015 the parents were confronted by the loss of baby Joshua, aged approximately three weeks, a loss mercilessly attributed to the mother during cross-examination whereby the mother was forced to declare her regret for deciding to co-sleep with Joshua while intoxicated. The Secretary then compounded this loss by removing Joshua's sibling, Walter, on or about 11 June 2015. However Walter was returned to the parents' care on or about 7 October 2015, only to be administratively removed again on or about 26 November 2015." 1. I had expected better of Mr Hetherington. Unfortunately he has placed himself into that category of legal representative of which I was critical in DFaCS re Day [2012] NSWChC 14 at [62] to [63]. 2. The parents' submissions also miss the point, unfortunately, of the significance of the circumstances surrounding the death of the baby, Joshua. Whether this indicates a continuing lack of insight on their part or is a product of their solicitor's penchant for the adversarial approach, is unclear. 3. I give the parents the benefit of the doubt, given the mother's acknowledgement in her oral evidence about that issue. The possibility surrounding the death of Joshua was exactly that. 4. The scenario postulated was viable. It was something that the Secretary was compelled to consider in the execution of his duties under the Care Act consistent with the decision in M v M to which I have referred already. The risk associated with co-sleeping and smothering a baby, particularly if drunk, is one of the factors to be accumulated in assessing whether acceptable risk of harm or unacceptable risk of harm exists. Similarly, risks such as foetal alcohol syndrome must be considered. The submissions of the Independent Legal Representative 1. Fortunately for these parents I received a far less inflammatory submission, in their favour, from the Independent Legal Representative, who supports restoration of the child to them. Ms Healey's submissions are objective, reasoned and balanced. I do not propose to attempt to summarise them; they are succinct and precise and I adopt them in their entirety and incorporate them into these reasons. 2. Her submissions read as follows (I have omitted the footnotes): "Written submissions prepared on behalf of the independent legal representative. Background 1. Walter is now 5 years old. 2. Walter is Aboriginal. 3. On 7 June 2015 Walter's younger sibling, Joshua died at 3 weeks of age. 4. On 11 June 2015 Walter was removed from the care of his parents. At the time of Walter's removal, no details were known regarding the cause of Joshua's death and there was an allegation that the mother had been co-sleeping with Joshua while under the influence of alcohol. 5. The autopsy report for Joshua states he was "found dead in bed whilst bed sharing/co-sleeping with an intoxicated adult". There was no evidence of injury identified and the direct cause of death is listed as "undetermined". The report noted risk factors which predisposed Joshua to die suddenly, including being born preterm (37 weeks), co-sleeping with an intoxicated adult on a double bed with adult sized pillows and adult beddings, and being 0-12 months. 6. On 9 September 2015 final orders were made in the Children's Court at Kempsey, summarised as follows: 6.1 Parental responsibility to the Minister for a period of 12 months; 6.2 Thereafter parental responsibility to revert to both parents; 6.3 Undertakings from both parents for a period of 18 months; 6.4 Supervision for 6 months upon the parents having parental responsibility; and 6.5 Section 82 report at 10 months. 7. Walter was restored to his parents care on 7 October 2015. 8. On 7 October 2015 the Secretary made a referral for the family to Burrun Dalai's Intensive Family Based Service ("IFBS"). 9. On 27 November 2015 the Secretary moved Walter from his parent's care to the care of his paternal aunt. The Minister still retained parental responsibility at this time. 10. On 14 March 2016 the Secretary filed a s 90 application, notably over 3 months after Walter was administratively moved from his parents care. The caseworker Mr Shorter conceded in cross-examination that the delay in the Secretary filing a s 90 application was "partially" because they were trying to work with the parents to see whether Walter could be restored to their care. 11. Leave was granted under s 90(2) on 6 April 2016. Section 90(6) factors (a) The age of the child. 12. At the date of the hearing, Walter was 4 years and 10 months old. (b) The wishes of the child and the weight to be given to those wishes. 13. The care plan states that Walter "has stated to Community Services he wishes to remain with his paternal aunt…Walter appeared very happy with the decision to permanently reside with her". This is in contrast to the oral evidence given by the paternal aunt in which she described Walter as "waiting for his parents to do what they need to do" and that Walter is under the impression that he will be returning to live with his parents. 14. The ILR formed a similar view upon meeting with Walter on 6 June 2016, being that Walter is clearly under the impression that he will be returning to live with his parents. 15. It is submitted that due to Walter's young age, limited weight should be given to his wishes and rather the greater weight should be placed on those factors relevant to s 90(6)(d) regarding observations of the attachment between Walter and his parents. (c) The length of time the child has been in the care of the present caregivers. 16. From birth until removal on 11 June 2015 Walter was in the care of his birth parents. 17. From 11 June 2015 until 7 October 2015, Walter was placed with authorised Aboriginal carers through Burrun Dalai. 18. Walter has been in the care of the paternal aunt since 26 November 2015, around 6 months. (d) The strength of the child's attachments to the birth parents and the present caregivers. 19. Whilst there is no expert evidence before the court regarding Walter's attachment to his parents or the paternal aunt, the ILR submits that all parties agree there is evidence of a strong attachment between Walter and his parents. 20. The care plan from the initial Children's Court proceedings regarding Walter describes "a positive healthy bond with his parents with affection and appropriate play". 21. The paternal aunt's oral evidence described positive interactions between the parents and Walter during contact visits. 22. The Secretary's evidence is that Walter "seems to enjoy the time he spends with his mum and dad, shows them affection, and there are positive interactions during these times". (e) The capacity of the birth parents to provide an adequate standard of care for the child. Alcohol and drug use by the parents 23. It is evident both parents drink alcohol, including occasions where the mother consumed alcohol to excess during her pregnancy with baby Noel. 24. However, the ILR submits that there is no evidence to suggest that the mother's alcohol use has impacted on her capacity to provide adequately for the safety, welfare and wellbeing of Walter. Rather, the evidence of both the parents and the caseworker Mr Shorter was that there is a well-established pattern whereby the parents ensure that Walter is cared for in another family member's home if they were planning to consume alcohol to excess. Indeed, Mr Shorter conceded in cross-examination that this was a protective factor. There is no evidence to suggest the parents chose an inappropriate person to care for the children. 25. The ILR submits that it is common parenting practice within many communities for parents to arrange for their children to be cared for by another person if they are planning to consume alcohol to excess. 26. The Secretary's evidence focuses heavily on the mother's alcohol use, yet the mother had only been asked on one occasion in July 2015 to undergo CDT testing. It is noted that the mother complied with this request on 22 July 2015 and the results stated "does not support excessive alcohol intake". 27. On 17 May 2016 the mother told the Secretary that she has not had any alcohol since 21 November 2015, and she agreed to participate in hair follicle testing to determine her level of alcohol use. 28. The mother gave evidence that she would be happy to comply with any further requests for CDT testing or hair follicle testing, but confirmed she had received no requests from the Secretary. This was confirmed via the evidence of the caseworker. 29. The father conceded in cross-examination that he had used cannabis sometime during March 2016. 30. On 17 May 2016 the father told the Secretary that he agreed to participate in hair follicle testing and urinalysis. 31. The father gave evidence that he would be happy to comply with any further requests for drug and alcohol testing. This was confirmed via the evidence of the caseworker. 32. On 25 May 2016 the father undertook a random urinalysis drug screen at the request of the Secretary, and the results indicated negative for any substance use. 33. Both Donna Newman and Sherene Elford from Burrun Dalai gave evidence that during their home visits, they had never witnessed any evidence of the parents being intoxicated by alcohol or drugs, nor had they observed any signs of alcohol or drug abuse within the home. 34. The parents' alcohol and drug use must be considered in line with the principles in Re Georgia and Luke (No 2) [2008] NSWSC 1387 whereby Palmer J stated at 33: "A question posed by this case is whether DOCS takes the view that any parent who uses cannabis, no matter how infrequently, is for that reason alone unfit to care for a child". 35. In Re Georgia and Luke, Palmer J accepted the Secretary's suggestion that "the use of cannabis should not affect DOCS' assessment of parental responsibility unless it actually impaired the parent's ability to care properly for the child". 36. It is submitted that there is no evidence that the parents use of alcohol or cannabis impairs their ability to care properly for Walter. Parenting skills 37. The Secretary asserts that another reason they have assessed restoration as not being a realistic possibility is due to the parents' lack of capacity to adequately manage Walter's behaviours. 38. The Secretary relies heavily on observations made by IFBS workers during the period that service was engaged with the family, however the Secretary concedes that this "period of observation was short – from 7 October 2015 to 24 November 2015". 39. Further, under cross-examination IFBS caseworker Donna Newman conceded that her 7 week involvement with the family was very brief and that if she had the opportunity to work for a longer period with the family it is likely there would have been an increase in their parenting capacity. Ms Newman's evidence was that the IFBS "didn't get the chance" to assist the parents to demonstrate any significant change due to their service having to cease working with the family when Walter was moved from the parent's care on 26 November 2015 by the Secretary. 40. Ms Newman also conceded during cross-examination that the challenging behaviours Walter displayed during those early stages of being restored to his parents care were "common" behaviours of children who have been through the experience of the death of a sibling, removal from parents and then restored to their parents care. 41. Burrun Dalai drug and alcohol worker Ms Elford also conceded during cross-examination that if she had have had more time to work with the parents, it is possible she would have noticed some improvements. (f) The risk to the child of psychological harm if present care arrangements are varied or rescinded 42. The ILR submits that if Walter were moved from the home of his paternal aunt and restored back to his parents care, there would be no risk of psychological harm for the following reasons: 42.1 The evidence suggests a strong attachment between Walter and his parents; 42.2 Walter currently enjoys frequent and positive contact with his parents, 3 times per week for around 10 hours total; 42.3 There is no evidence that Walter suffers from any form of developmental delay. Rather, Walter presents as meeting his developmental milestones, is progressing well at pre-school and is due to commence kindergarten in 2017; 42.4 The paternal aunt is supportive of Walter being restored to the care of his parents; 42.5 There appears to be a close and positive relationship between the paternal aunt and the parents, and it is therefore likely that Walter will continue to enjoy the benefit of his strong relationship with his aunt and is likely to have regular ongoing contact with her; and 42.6 In the event that a further restoration was not successful, it is likely Walter will be placed back with the paternal aunt. 43. Whilst there is a risk of psychological harm regarding the parents experiencing difficulties managing Walter's behaviours in the future and possibly resorting to inappropriate methods of discipline, it is submitted that this is not an unacceptable risk of harm and is a risk that can be mitigated if the parents are provided with an opportunity to demonstrate their success towards achieving restoration goals over a longer period than the 7 weeks which was previously provided. 44. Similarly, there is a strong risk that the parents will continue to use alcohol, and that the father may occasionally use cannabis. However, as stated throughout these submissions there is no evidence to indicate this has impaired the parents' ability to adequately care for Walter in the past and therefore this should not be deemed as a risk for the future. Realistic possibility of restoration 45. It is now well settled law within this jurisdiction that the principles regarding "realistic possibility of restoration" are that the possibility must not be fanciful, sentimental or idealistic. It needs to be sensible and commonsensical. 46. It is submitted that restoration of Walter to his parents is realistic, for the following reasons: 46.1 The parents were only given a 7 week period during which to demonstrate their progress toward a successful restoration. Whilst it is clear the original care plan always intended for restoration to be fast tracked, the evidence from the IFBS service working with the family was that their very short period of intervention was not enough to notice enough progress but that with more time to work with the family, there would likely be positive progress; 46.2 There is a strong and positive attachment between Walter and his parents; 46.3 Whilst there is evidence of drug and alcohol use by the parents, and of some concerns regarding their parenting skills, the magnitude of any risk posed by those factors is not sufficient to meet the threshold for unacceptable risk of harm; 46.4 As distinct from many cases within this jurisdiction, this is a matter where there are no allegations of domestic violence between the parents. Similarly, apart from the understandable ongoing grief regarding the death of Joshua, there are no allegations that either parent suffers from a mental health issue which impacts on their parenting capacity. Conclusion This is an Aboriginal family who have experienced significant loss with the death of Joshua, the removal of Walter shortly after Joshua's death, another removal of Walter after restoration, and the removal of their new baby Noel in May 2016. The ILR submits that the Secretary has not discharged the onus of proof in establishing unacceptable risk. In accordance with s 9(2)(c) it is submitted that the least intrusive intervention in the life of Walter is for the Court to reject the Secretary's assessment that there is no realistic possibility of restoration and direct the Secretary to prepare a permanency plan that provides for restoration. It is submitted this would be consistent with the requirement in s 9(2)(c) that the paramount concern is to protect Walter from harm and promote his development, as the care plan can provide for any necessary safeguards including ensuring Walter is not exposed to alcohol or drug use, and supports aimed at increasing the parent's ability to cope with Walter's sometimes challenging behaviours". Findings and conclusions 1. It follows that I am not satisfied to the requisite legal standard that there is not a realistic possibility of restoration to the parents of their son, Walter. In my assessment there is a possibility of restoration which is realistic, in the sense identified in Re Tanya at para 70. That possibility is not fanciful, sentimental or idealistic, but is the result of careful consideration and analysis. 2. A Judicial Officer never likes refusing to restore a child to parents but I have done so in this Court on many occasions. It is always a joy therefore when I can on the evidence take steps to facilitate a restoration on a proper basis. I believe that this is such a case. 3. It must always be remembered that a possibility is just that; it is not a probability and is definitely not a certainty. These parents have to understand, however, that there are risks associated with restoration. But in my assessment those risks can be sufficiently ameliorated to an acceptable level in the ways outlined in these reasons and in Ms Healey's submissions. 4. In my view there should therefore be a restoration albeit on a carefully planned, staged basis. 5. In reaching my view I have had careful regard to the circumstances of the children and to the evidence that the parents are likely to be able to satisfactorily address the issues which led to the removal of Walter on the two occasions he was removed. 6. For all those reasons I am comfortably satisfied that there is a realistic possibility of restoration to the parents, assessed as at today, and I therefore do not accept the Secretary's assessment: s 83(5) of the Care Act. 7. I direct the Secretary to prepare a different permanency plan: s 83(6) of the Care Act. 8. Given the history of these proceedings and the need for a carefully considered and orderly restoration of Walter over an appropriate period of time, I propose to order a Dispute Resolution Conference (DRC). 9. I think a DRC is desirable so that the parties can, in an atmosphere of calm, reason and cooperation formulate a staged restoration that takes account of the matters of concern to the Secretary. 10. In that regard the parents need to understand that in the future they will need to work cooperatively with Community Services and other services provided. 11. Finally, I wish to record that the caseworker, Mr Shorter, who was criticised, I thought, inappropriately by Mr Hetherington, is a person who in my assessment has always acted professionally and caringly with the safety, welfare and wellbeing of the children, of Walter in particular, being his paramount concern. He gave his evidence objectively and thoughtfully and he has been meticulous in his attention to the matter. As I say, the criticism of him by Mr Hetherington, the parents' solicitor, has been inappropriate and unfair. The fact that I have disagreed with him on this occasion in relation to the possibility of restoration should in no way be seen as any criticism of the work he has done in looking after this family. 12. If a restoration, with a DRC to establish the best way forward, is to have any chance of success, the parents need to move along the spectrum of insight. They need a legal adviser who will give them calm, reasoned, rational advice, and not encourage or pay lip service to their resentment, anger and frustration. 13. I make the following orders: 1. The Interim Order allocating Parental Responsibility to the Minister is to continue until further order. 2. A DRC is to be arranged for the parties and the paternal aunt should be involved. 3. The Secretary is directed to then prepare a different Permanency Plan pursuant to s 83(6), one which involves restoration to the parents. NOTE: File Number 16/11 concerning the new baby is consolidated with this file, and that matter is to be included in the DRC. ********** 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: 23 August 2016