District Court New South Wales Medium Neutral Citation: Re: A Foster Carer v Department of Family & Community Services [2017] NSWDC 360 Hearing dates: 6, 7, 8 and 14 November 2017 Date of orders: 15 December 2017 Decision date: 15 December 2017 Jurisdiction: Civil Before: Judge Levy SC Decision: Appeal allowed. See paragraph [403] for ancillary orders Catchwords: CHILD CARE APPEAL – upholding of appeal by summons filed pursuant to s 90 of the Children and Young Persons (Care and Protection) Act 1998 seeking rescission, or alternatively, variations, of orders made by the Children's Court – previous orders rescinded – appellant foster carer allocated parental responsibility for the child Legislation Cited: Children and Young Persons (Care and Protection) Act 1998, s 8, s 9, s 10A, s 90, s 105 Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 Dean v Stockland Property Management Pty Limited & Anor [2010] NSWCA 66 HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 Hevi Lift (PNG) v Etherington [2005] NSWCA 42 Lindholdt v Hyer [2008] NSWCA 264 at [185] Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 Category: Principal judgment Parties: A Foster Carer (Appellant) The Secretary, Department of Family and Community Services (First defendant) Child's mother (Second defendant) Independent Children's Lawyer (Third defendant) Representation: Counsel: Ms C Smith (Appellant) Mr C McGorey (First defendant) Ms D Pickering (Second defendant) Mr B Saunders (Third defendant) Solicitors: James McConvill (Appellant) Crown Solicitor (First defendant) McVittie Legal (Second defendant) Barry Saunders (Third defendant) File Number(s): 2017/241988 Publication restriction: Non-publication order Judgment Table of Contents Introduction [1] – [4] Non-publication order [5] – [6] Nature of case [7] – [13] Overriding principle to be applied [14] – [16] Other relevant principles [17] – [22] Evidence in the appeal [23] – [25] Issues for determination and summary of findings [26] – [31] Factual background [32] – [68] The appealed decision [69] – [82] Analysis of FACS Secondary Assessment report [83] – [100] The process of the care agency investigation [101] – [124] Specific allegations against the appellant [125] – [131] Analytical process adopted by care agency investigators [132] – [134] Conclusions of care agency investigators [135] – [146] Review of evidence [147] – [301] Evidence of lead agency investigator [148] – [178] Affidavit from agency casework manager [179] – [182] Correspondence with Office of NSW Ombudsman [183] – [196] Affidavit from agency Investigations Manager [197] – [199] Evidence from care agency clinician [200] – [208] Evidence from agency Supporter of Carers [209] – [237] Evidence from current agency carer [238] – [246] Evidence of Mr de Laurence, psychologist [247] – [277] Evidence of current care agency Case Manager [278] – [284] Evidence from biological mother [285] – [286] Evidence of appellant [287] – [300] Submissions of the parties [301] – [321] First Issue – Reliability of care agency investigation report [322] – [350] Second Issue – Rescission of previous orders [351] Third Issue – Whether unacceptable risk of harm [352] – [388] Fourth Issue – Allocation of parental responsibility [389] – [401] Disposition [402] Orders [403] Introduction 1. At the outset of these reasons it is appropriate that I identify my ultimate finding that the appellant has suffered an injustice that occurred in the investigatory phase of the circumstances leading to this child care appeal. 2. That injustice stemmed from inherent deficiencies which concerned an investigation report relating to the removal of children in the appellant's care, and where the Children's Court later based its decision on an acceptance of the adverse findings that report. 3. The investigation was doubtless produced with the best of intentions by the lead investigator. It was nevertheless revealed to be a deeply flawed document that resulted from an unsatisfactory and incomplete investigation, which lacked fair balance insofar as it stated findings adverse to the appellant. This was in circumstances where, following management decisions made by the care agency responsible for the report, on considerations of investigation costs and the logistics of travel to various locations for the suggested purpose of obtaining statements from potential witnesses to clarify evidence, there was a failure to follow up further supervisory and pertinent investigative suggestions made by the Office of the Ombudsman. 4. Although the document in question had the appearance, title and form of an investigation report, its content lacked examinable evidence to show that, before adverse findings were made against the appellant, there had been a reasoned evaluation of the critical issues with which the report was concerned. This has unfairly operated against the appellant, with deleterious life changing consequences for her, and also, potentially, for the child the subject of this appeal, who was removed from the appellant's care. In those circumstances, for reasons that will become clear, the appeal must be allowed, along with a reconsideration of the orders made by the Children's Court. Non-publication order 1. On 6 November 2017, at the commencement of the hearing, pursuant to s 105 of the Children and Young Persons (Care and Protection) Act 1998 ("the Act"), an order was made prohibiting the publication of the name of the child who is the subject of these proceedings. That order extended to a prohibition on the publication of any information or details of any other parties, witnesses, persons or entities named in the evidence that if published, would tend to identify the child. 2. To ensure anonymity of the child the subject of the proceedings, these published reasons do not name her, or her siblings or her past or present carers. Similarly, the name of the care agency, the investigators and significant personnel of that agency have not been identified other than by reference to their functions in terms of relevance to this case. However, for record purposes, the court file has been annotated with the key identities of those persons and entities as referred to in the Appendix, the published version of which has been redacted, in accordance with the above order. The prohibition order does not extend to the name of a psychologist, as he is an expert witness. Nature of case 1. This appeal has been commenced by summons filed pursuant to s 90(1) of the Act seeking rescission of orders made by the Children's Court at Ballina on 28 July 2017, and also seeking a variation of earlier orders made by the Children's Court on 24 November 2009, with respect to the appropriate placement of the subject child in out of home care. 2. The appellant complains that she has been the subject of a flawed investigation by an authorised childcare agency concerning children in her care. She complains that investigation was conducted in a flawed manner, including to the extent that, in the final care agency investigation report, adverse findings were made against her, which were described, wrongfully, as having been "sustained", concerning the risk of harm to children in her care. 3. In summary, and for the reasons provided, I have accepted the validity of the appellant's complaints and criticisms regarding the final report of that investigation. 4. That said, this still leaves open the question of whether or not the rescission and allocation orders the appellant seeks in these proceedings should be made. That question has become complicated by the effluxion of time since the subject child was removed from her care, and the effect of that complication needs to be considered carefully. 5. Irrespective of the identified injustice to the appellant, and without fault on the part of the appellant, the effluxion of time between when the child in question was removed from the appellant's care and the time of the hearing of this appeal, a period totalling 26 months, has to a degree had an adverse impact on the appellant and possibly, also on the child. Those matters require careful consideration. 6. In those circumstances, especially since the appellant is not the biological parent of the child, the Court must take into account the child's present circumstances, her care situation, and her special needs. Regard must also be had to the paramount best interests of the child, notwithstanding such effluxion of time. That evaluation must take precedence over any notions of remedying any wrong suffered by the appellant in the events that led to the removal of the child from her care. 7. Ultimately, a number of described steps in the unfolding legal process, and the time taken for those steps to have effect, have operated against the appellant's interests. However, those interests must necessarily be seen to be different to those of the affected child. Overriding principle to be applied 1. In this case, the overriding principle to be applied is that any decision required to be made pursuant to the Act concerning the child who is the subject of this appeal, must be made according to the paramount principle of the safety, welfare and wellbeing of the child: 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 those requirements, in cases where there is a claim of risk to the child, the relevant risk must be identified. 3. Although, as was raised in submissions opposing the appellant's care, 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 specific 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. In that latter circumstance, the issue is whether or not the existing care arrangements should be displaced: Re Tracey [2011] NSWCA 43, at [79]. Other relevant principles 1. The evidence in this appeal was remarkably voluminous. It raised numerous contentious factual issues. However, the determination of many of these issues would not have necessarily determined the disposition of the appeal. 2. In those circumstances, in this case, being an appeal that follows a first instance hearing, if a determinative dispositive conclusion reasonably and justifiably arises on an analysis of the evidence on a pivotal issue, what the authorities refer to as the principle of parsimony may be applied in the interests of appropriately using the Court's resources, especially where, to analyse and determine all the emergent factual disputes, would lead to a needlessly lengthy judgment with a concomitant delay in the delivery of reasons, where the urgency and the justice of the case demands that a more practical and timely course be taken: Lindholdt v Hyer [2008] NSWCA 264 at [185]. 3. In this case, the key pivotal issue is whether the final investigation report prepared by the care agency, and which underpinned the Children's Court proceedings, should be seen as being a reliable document, insofar as that report made findings of fact that were adverse to the appellant. 4. Although the investigators were not making a judicial determination when preparing their report, nevertheless, where they had before them a complexity of arguably contradictory evidence, when it came to resolving those matters either in favour of the complaints being sustained, or not sustained, as in a trial setting, where there is necessity to resolve a critical issue, the fundamental duty or obligation of the investigators was to analyse, evaluate and carefully weigh up the evidence, before deciding the outcome of the issue in a reasoned manner in terms of whether an investigated complaint should be either sustained or not sustained: Dean v Stockland Property Management Pty Limited & Anor [2010] NSWCA 66, at [3]. That process required the laying out of cogent reasons, and not just stating a result either way, like a jury verdict. 5. I consider that the principle cited in the previous paragraph also applied to the task that was before the care agency investigators when they were preparing their final investigation report. 6. That must be particularly so in a case where a court was to be asked to accept the balance of probability findings of the investigation, and where at stake was the welfare of the subject child and the reputation of the carer for that child, where the allegations concerned matters of utmost gravity: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. Evidence in the appeal 1. In the appeal, it was necessary to consider the content of seven folders of voluminous documentary evidence comprising the main tender bundle: Exhibit "A". The first five of those folders, between Tabs 1 to 17, comprised 1414 pages of affidavits, reports and correspondence that had been placed before the Children's Court. The sixth folder, between Tabs 18 to 22, comprised 296 pages of transcript of the four days of hearing before the Children's Court on 31 October, 1, 2 and 3 November 2016 and 28 July 2017, and the 15 pages of the reasons for the decision, delivered by the Children's Court on 28 July 2017. The seventh folder of Exhibit "A", between Tabs 23 and 26, comprised the summons concerning this appeal, and it included supporting affidavits. 2. In the appeal, the material in the tender bundle comprising Exhibit "A" was further supplemented with supporting material in the marked series comprising Exhibits "B" to "P". That material consisted of a number of reports of medical reviews, contact reports, bundles of emails, interview transcripts, file notes, and a USB drive which contained an edited collage of some perspective video footage of the child in a domestic setting. These materials will be referred to where it becomes relevant to do so. 3. I have reviewed and considered the described exhibits and voluminous supporting materials which included affidavits, statements and file notes tendered in the Children's Court proceedings, as well as transcripts of the oral evidence of the investigator, a care agency clinician, the mother of the child, the present foster carer, and the transcript of the evidence of the appellant, as well as the transcript of the evidence given by the Family and Community Services ("FACS") case worker who gave evidence in the Children's Court. Issues for determination and summary of findings 1. The first issue for consideration in this appeal is the reliability of the investigation report which led to the removal of the child from the care of the appellant. In that regard, I have concluded that the investigation report in question is a deeply and materially flawed document that must be seen to be an unreliable basis for making the findings it purported to make which were adverse to the appellant. My reasons for those findings appear at paragraphs [322] to [350] of this judgment. 2. The second issue for consideration is whether the orders made by the Children's Court on 28 July 2017 should be rescinded. In that regard, I have concluded that in light of the flawed investigation report, those orders must be rescinded. My reasons for those findings appear at paragraph [351] of this judgment. 3. The third issue for consideration is whether, if the child were to be returned to the care of the appellant, there would be a consequential unacceptable risk of harm to the child. I have concluded that in such circumstances, and on the evidence presented, there is no reasonable basis for concluding that an unacceptable risk of harm would arise. My reasons for those findings appear at paragraphs [352] to [388] of this judgment. 4. The fourth issue for consideration is whether parental responsibility for the child the subject of the appeal should be allocated to the appellant. I have concluded this should occur. My reasons for those findings appear at paragraphs [389] to [401] of this judgment. 5. I have reached those conclusions notwithstanding the different approach taken by the Children's Court, which proceeded on the basis of an acceptance of the care agency's final investigation report comprising Exhibit "D", which was Exhibit "7" in the Children's Court proceedings. I have concluded that document should be afforded little, if any, weight in light of inherent flaws revealed in that document. 6. Before setting out my reasons for those conclusions, it is necessary to say something about the relevant factual background, the appealed decision, and the evidence given in the appeal. Factual background 1. The child the subject of the appeal, who is now aged 8 years, was removed from parental care of her mother on the child's discharge from hospital when she was 10 days old. On that day, 8 May 2009, she was placed into the foster care of the appellant. At that time, the appellant, who had for 9 years beforehand been an approved foster carer with the agency that had engaged her. Since 29 February 2008, the appellant had also been the agency assigned foster carer for that child's two older brothers, who are each affected by autism. On 3 February 2010, the care agency took over the care of the children from FACS. 2. Prior to the events that gave rise to the present proceedings, in 2009 and 2010, historical complaints were received by the agency concerning the appellant's alleged mistreatment of the subject child's two older brothers whilst they were in her care. 3. In each instance, on 4 December 2009 and 3 August 2010 respectively, the formal care agency investigations that were initiated into the factual circumstances of those historical complaints did not sustain the underlying allegations. At the conclusion of those investigations, the allegations made by the child's two older brothers were considered to be false, vexatious, and factually unreliable. Elsewhere in the materials, the unchallenged evidence is that those brothers had a proven record of adeptness for lying about such matters. This was known to the investigators when they carried out their investigation. 4. Throughout those 2009 and 2010 investigations, those two brothers, and the child the subject of this appeal, continued to remain in the care of the appellant. Those care arrangements then continued without interruption until 1 September 2015. 5. The child the subject of this appeal grew and developed whilst she was in the care of the appellant over a period of a little over 6 years. Over that course of time, it became recognised that the child had high needs due to a genetic condition or syndrome involving either deletion or duplication of Chromosome 6p, a genetic aberration which was unique to that family, as well as an absent brain structure known as the septum pellucidum, colpocephaly and subependymal heterotopic grey matter, focal seizures; autistic spectrum disorder (non-verbal) with consequentially associated developmental delays, and communication difficulties: Exhibit "B". 6. As a result, it became recognised that the child needed, and continued to need, multiple supportive services, including special schooling, speech therapy, specialist medical supervision, medication, and specific attention for the management of her at times challenging behaviours. The appellant was committed and involved in that process, and on occasion, she raised questions, which was her right as the designated carer. Her approach in that regard resulted in some tensions with some providers. 7. One of those providers, a care agency employed disability support worker, took an adverse view of the appellant's stance on some of those matters. That view was expressed after the removal of the child. As will become apparent, I consider the rational basis of that adverse view to have been flimsy and nebulous. 8. In 2009, the initial foster care arrangements which resulted in the child being placed with the appellant had been made by the Secretary, Department of Family and Community Services ("FACS"), who, as a result of an earlier order made by the Children's Court on 24 November 2009, retained parental responsibility for the child. The foster care arrangements with the appellant in respect of the child were later continued under the supervision of a FACS assigned out of home care agency until the child was removed from the appellant's care on 1 September 2015. 9. Over the course of time the appellant had provided continued foster care to the child, and a well-established and undisputed mutual attachment has occurred between the child and the appellant. That arrangement was terminated on 1 September 2015, against the wishes of the appellant. It is relevant to set out the immediate background to those precipitous circumstances. 10. In the lead-up to those events, on 6 August 2015, the appellant and the agency had agreed on a respite support plan for the children. That plan was for them to be left in the care of the appellant's father whilst she undertook a leave of absence for some overseas travel. On 9 August 2015, the appellant travelled overseas and returned on 4 September 2015. Whilst she was away, significant events occurred. 11. On 31 August 2015, whilst the appellant was still overseas on her pre-arranged leave of absence, a care agency caseworker received a telephone call from the appellant's father, who informed her that the two older brothers of the subject child were "roaming the streets" and were misbehaving, such that he felt obliged to call upon police for assistance. With the consent of the appellant's father, who in the absence of the appellant, was the assigned temporary carer in those circumstances, the police collected the two boys and took them to a care agency approved emergency respite carer whilst the child the subject of these proceedings remained in the care of the appellant's father. 12. Whilst the two boys were being transported to that temporary respite care, they made allegations of ill-treatment against the appellant, thus raising questions about whether or not they had been mistreated by the appellant whilst they were in her care. The care agency caseworker who received those allegations then made an appropriate mandatory report to the FACS helpline. 13. On 1 September 2015, FACS received that mandatory report. In the interests of child safety, that report was at the time properly characterised as involving a risk of significant harm to children. In essence, it was alleged that the two boys had been physically, emotionally and verbally abused by the appellant, and by her father. The claim of physical abuse was that the appellant had allegedly pushed a tea towel into the older boy's mouth, and that she had allegedly threatened him with a knife, and had pushed him into a wall. If true, those allegations were of a most serious character. Those allegations therefore justified the interim protective removal of the children at that time, in their best interests, pending a necessary investigation which then commenced and ensued. 14. Accordingly, and properly, pending that investigation, FACS directed that alternative care arrangements should be made. The two brothers were separated and placed into the care of separate carers rather than remain in the care of the appellant on her return from leave of absence. That decision was appropriate, because at that time, even if for no other reason, the boys had expressed the wish not to return to the appellant's care, and the boys, despite their disabilities, were of a sufficient age to express a view on that matter. In those events, the child the subject of these proceedings was also placed in temporary respite care which was separate from the care of her brothers. Those events occurred on 4 September 2015, which was the day the appellant returned from overseas. 15. When the above events were brought to the appellant's attention on her return, these revelations were something of a shock to her. 16. On 7 September 2015, the child the subject of this appeal was moved into the care of the present foster carer who, from that time, and until the present time, has, without problems, and at different residential locations, continued to provide her with appropriate foster care under the supervision of the care agency. 17. On 9 September 2015, the lead care agency investigator who gave evidence in these proceedings, commenced a reportable conduct investigation into 6 identified allegations arising from the risk of significant harm notification received by FACS on 1 September 2015. The final version of that report, which was dated 15 and 18 February 2016, was Exhibit "D". The report will shortly be examined in closer detail. 18. On 14 September 2015, co-extensive with that investigation process, FACS commenced a Secondary Assessment process, which also resulted in the preparation of a report: Exhibit "A", Tab 1, p 22. That report was different to the care agency's final investigation report comprising Exhibit "D". 19. On 18 December 2015, FACS officers completed the Secondary Assessment of the circumstances (Exhibit "A", Tab 1, pp 22 – 37) which resulted in the following conclusions being reached by FACS: 1. The Secondary Assessment report concluded that there had been substantiation that: the child the subject of the appeal was highly vulnerable to harm because of her dependency on her primary carer in light of her limited communication abilities; 2. It was also concluded that there was substantiation of the allegation that the child was not provided with an environment or opportunities to enable her to reach her developmental potential; 3. It was also concluded that there was substantiation of the allegation that the appellant had physically and psychologically abused the child's two brothers. 1. Accordingly, the appellant was then identified as a person causing alleged harm to the brothers, and causing an alleged risk of harm in relation to the child. 2. It appears that in those events and on the face of the Secondary Assessment report, that some important documentary material that was exculpatory of the appellant, and which was provided either by, or on behalf of the appellant (Exhibit "E"), had not been considered or followed-up for the purpose of evaluating whether or not there was substance in the allegations that had been made against the appellant. 3. Consequent upon the emergence of the Secondary Assessment report, FACS concluded that if the child in question was to be returned to the care of the appellant, the child would not be safe, and she would be highly vulnerable to harm. Significantly, the author of that Secondary Assessment report had available to him during the process of his assessment, 3 of the 6 exculpatory documentary items comprising the November 2015 emails within Exhibit "E". 4. The author of that Secondary Assessment report, a FACS officer, stated that those materials had been "considered" in the process: Exhibit "A", Tab 1, pp 26 – 28. However, the extent of any such consideration was not apparent from the reasoning within the Secondary Assessment report. 5. The following cascading series of related events then occurred: 1. On 4 January 2016, the care agency decided not to return the child to the appellant's care, and informed the appellant of that decision; 2. On 18 February 2016, the care agency completed what it described as its final investigation report. That report purported to make findings which were said to have sustained the 6 allegations that had been made against the appellant: Exhibit "D"; 3. On 19 February 2016, the care agency decided to cancel the appellant's authorisation as a foster carer, and it then notified the appellant of that decision; 4. On 1 March 2016, the NSW Office of the Children's Guardian wrote to the appellant informing her of a Notice of Interim Bar and Proposal to cancel her working with children clearance certificate; 5. On 20 April 2016, the appellant filed an application in the Children's Court, pursuant to s 90 of the Act, seeking that the child be restored to her care; 6. On 26 May 2016, the NSW Civil and Administrative Tribunal ("NCAT") dismissed the appellant's application concerning the cancellation of her status as an authorised carer. That decision is presently under appeal to NCAT. That appeal is listed to be heard in February 2018; 7. On 9 June 2016, the appellant obtained leave to file an application in the Children's Court pursuant to s 90 of the Act. The ensuing contested proceedings were heard in the Children's Court over the course of 4 days, between 31 October 2016 and 3 November 2016, following which, the judgment of the Children's Court was then reserved; 8. On 28 July 2017, after deliberating on the reserved judgment, for reasons given, the Children's Court determined, on the basis of the contested evidence and argument presented in that Court, that it was not in the best interest of the child to be placed in the care of the appellant. 1. The appellant is dissatisfied with those orders made by the Children's Court. In this appeal, which is in effect, a fresh hearing, she seeks to have those orders rescinded. It is common ground that in this fresh hearing, it is unnecessary to consider whether or not the reasons comprising the decision of the Children's Court involved appealable error. 2. In addition to the order for rescission, the appellant seeks an order that parental responsibility for the child be allocated to her until the child attains the age of 18 years. She acknowledges that if she is successful in obtaining the orders she seeks, her care of the child would require a period of supervision by FACS. The appellant is prepared to give appropriate undertakings in that regard. 3. The reason the appellant seeks parental responsibility for the child, as distinct from reinstatement of the former foster care arrangement, and the reason that such an arrangement would require supervision of the appellant by FACS, is that as a consequence of the contentious final investigation report prepared by the care agency investigators, the NSW Office of the Children's Guardian has denied the appellant a certificate of clearance enabling her to work with children. 4. Without such a certificate, the appellant cannot be a foster carer to a child in out of home care, although she may be allocated the responsibility for the parental care of such a child, with the proviso that there be appropriate supervision by FACS. 5. Whilst the refusal of a grant to the appellant of a working with children clearance certificate is the subject of a pending appeal by the appellant to NCAT, that matter and those proceedings, are separate to, and distinct from, the consideration required in this appeal. 6. It is clear from the evidence that the appellant is a strong and determined person who has at times found it necessary to be a robust advocate for the child's needs, and that approach may have led to some of the described interpersonal difficulties, which essentially relate to differences of opinion on discrete matters, which of themselves, or even taken as a whole, in my view, represent an insufficient, flimsy, and therefore unsafe basis, for denying the appellant the orders she seeks. 7. The appellant has been a successful parent who has raised four independent and accomplished adult children who have pursued tertiary studies. She has integrated the children in her care into that family. She presently works as an assistant in nursing at a retirement village, and she is also pursuing a degree course in nursing. She is articulate and clear in her oral communication. I considered her to be a credible witness whose testimony could be relied upon when evaluating critical matters in dispute. 8. The described events have exacted a significant emotional toll on the appellant. Although she presents as a strong and determined person, she has sought out and plans to continue to receive counselling in relation to the effect the events have had upon her. A part of that counselling has also been directed to considering the criticisms that the care agency's final investigation report has identified concerning alleged concerns over her interpersonal and communication skills, even though she rejects those criticisms as being misplaced and in part, factually incorrect. 9. During the course of the events described above, some other significant events have occurred. The present foster carer has moved her place of residence to a more remote and less accessible location on a rural property. This has provided the child with a stimulating environment but it has made contact visits more difficult to achieve. 10. Consequent upon that move, the child has changed schools. Along that timeline, a relevant attachment has developed between the present carer and the child. In that time the appellant has also moved house in order to maintain regular contact with the child pending the outcome of this appeal, and in the hope that her appeal will be successful. In the described circumstances, the attachment between the child and the appellant has indisputably remained intact. 11. The appellant does not seek any orders in relation to the two brothers of the child who were also removed from her care. It is common ground that they do not want to return to her care, and that other satisfactory arrangements have been made for their care in two separate placements. 12. The parties accept that there is no reasonable prospect of any of those children being returned to the care of their biological parents. 13. Before proceeding to analyse the key documents and evidence in the appeal, for context, it is useful to refer to the decision of the Children's Court as it was based on that evidence. The appealed decision 1. Essentially, the basis for the refusal of the Children's Court to allocate the parental responsibility of the child to the appellant was that the Children's Court was not satisfied, on the balance of probabilities, that the child's paramount best interests would be provided for if the child were to be placed into the care of the appellant. 2. In particular, the Children's Court made a finding that if the appellant's application was to be granted, there would be a consequential unacceptable risk of the child being subject to violence borne of anger or frustration on the part of the appellant. It is plain from the materials tendered in the Children's Court, and in these proceedings, that the decision in question was based on the care agency's investigation report, which is Exhibit "D" in these proceedings, and which was Exhibit "7" in the Children's Court. 3. In this appeal, the reasonableness of the conclusions of the care agency investigators as set out in that Exhibit were open to significant question and challenge in light of the nature of the material that underpinned the final investigation report comprising Exhibit "D". 4. The reasons for the decision of the Children's Court were essentially that: 1. The child in question required constant care and support in a safe environment to enable her to achieve her potential; 2. The child's primary attachment to the appellant had been disrupted when the appellant's foster care arrangement was terminated in September 2015, and that since then, the child has become attached to the new carer; 3. A removal of the child from the present carer would be a source of further disruption to the child's psychological wellbeing; 4. The child was developing as well as could be expected in her current long term placement, which indisputably, comprised a warm and caring environment. 1. The Children's Court's refusal of the appellant's application was in the face of an acknowledgment of the common ground that there still remains a mutual attachment between the child and the appellant, and that the appellant had made considerable efforts to maintain a continued commitment to the care and wellbeing of the subject child, notwithstanding that the child was no longer in her care. 2. Notwithstanding the matters outlined in the preceding paragraph, the Children's Court concluded, on the evidence which the Secretary had placed before that Court, and which has also been tendered in these appeal proceedings, that the appellant had a purported history of interpersonal difficulties with other persons who also had responsibility for aspects of the care of the child. This was said to relate to school staff and other service providers. The Children's Court found this factor militated against granting the appellant the orders that she sought. 3. In arriving at its decision, the Children's Court accepted the evidence comprising the final report prepared by the care agency investigators who examined the allegations made against the appellant in respect of the children in her care. Based on that report, and the related evidence from those persons, the Children's Court found those allegations to have been sustained. 4. The Children's Court found as a fact that the appellant had a history of difficult relations between herself and some professional staff over aspects of the care of the child. It was also found that she had difficulty in accepting advice from such professionals. The appellant disputed those characterisations, as was noted by the Children's Court. 5. However, the Children's Court nevertheless noted its view that such disputation left open the question of whether, in light of those matters, the appellant would be able or willing to comply with the required undertakings to follow advice, if her application to that Court was to be granted, and whether there was an unacceptable risk of harm to the child if she were to be returned into the appellant's care. 6. In arriving at its findings, the Children's Court had before it the report and the evidence of an expert psychologist, Mr de Laurence, whose views will be examined at a later point in these reasons. 7. As a consequence of those cited considerations, the Children's Court determined that the child, then aged 8 years, was a vulnerable person in need of care and protection. The Children's Court also decided that the subject child was in fact receiving the care, support and protection she needed, and it was further determined that such care would be likely to satisfactorily continue, if the orders sought by the appellant were refused. 8. In this appeal, counsel for the appellant pointed to serious flaws and deficiencies in the care agency's final investigation report which led to the findings by the Children's Court. Those deficiencies related to the materials which based the report, and in the methodology by which the report was produced. I shall return to evaluate those matters in the course of outlining the consideration that is required in relation to the issues calling for determination in this appeal. 9. The matters cited above provide a focus for the first question that arises in this appeal, namely whether the investigation report was a sound and reliable document which reasonably permitted the conclusions it purported to make. 10. Before evaluating the process which led to the care agency's final investigation report, and the report itself, it is relevant to consider the Secondary Assessment report prepared by FACS, as the subject matter is inter-related. Analysis of FACS Secondary Assessment report 1. The FACS Secondary Assessment report had a component within it that was described as a Risk of Harm Analysis. That analysis was undertaken insofar as it related to the child the subject of this appeal, and it included several commentary sections relating to vulnerability of the child to the risk of harm, an assessment of the severity of the contemplated harm, the likelihood of harm occurring, and the safety of the child in question: Exhibit "A", Tab 1, pp 27 – 28. 2. I find that the above analysis contained, what can only be described from an evidentiary viewpoint, spurious and nebulous statements that, for acceptance, relied on an acceptance of, or an assumed substantiation of, the allegations made against the appellant in relation to the two brothers of the subject child: Exhibit "A", Tab 1, p 27. 3. The particularly significant commentary in that regard included the following statement within the report: "Based on the evidence the physical and psychological harm of [the two brothers of the child] by [the appellant] has been substantiated. It is also substantiated that [the child] was not meeting her full developmental potential while she was in the care of [the appellant], as evidenced by the significant gains [the child] has made since leaving [the appellant]'s care. On this basis it is assessed that [the child] would be highly vulnerable to harm if she was to return to [the appellant]'s care." [Emphasis added] 1. It is self-evident that the emphasised text in the statement cited in the preceding paragraph involves a significant non-sequitur on the question of causality of harm in the sense it was suggested the appellant was responsible for the child not meeting her development potential, which demonstrates the inherent superficiality of the approach of that analysis. 2. There was no reliable evidence to support the conclusion that the child failed to make gains in her progress or development whilst in the care of the appellant, yet that was the basis on which the assessment was made that the child was highly vulnerable to the risk of harm. I consider that the stated conclusion in that assessment was illogical, and therefore spurious. 3. For such cited conclusion to carry persuasive weight it ought to have been at the least, supported by a sound and appropriately qualified opinion that evaluated the reasoning for the proposition that significant developmental gains had occurred since the child had left the care of the appellant, and that the earlier non-achievement of those gains was somehow caused by the appellant. 4. The specific baseline, and the relevant changes to that baseline, needed to be identified and evaluated before such a comment could reliably be made. For the cited comment to carry any probative weight or reliability in these proceedings, it should also have set out reasons for the view that it was the appellant's care which had previously held back the child's development. Such reasoning, in terms of cause and effect, was absent. 5. The cited emphasised statement involved unwarranted and prejudicial speculation. In terms of a cause and effect analysis, it was unreliable. It is not the kind of statement that a court could reasonably accept without the required reasoned and supporting evidence from a suitably qualified person: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705; Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588. 6. Unfortunately, that deficiency in the reasoning had the effect of contaminating the assessment process by investing the Secondary Assessment with an illusion or veneer of authoritativeness, when it was plainly not of that character. 7. In my view, the reliability of the Secondary Assessment was irredeemably tainted by the defective logic of the sweeping and unsupported statement cited in the text emphasised above. This is so especially where, in the very next section of the Secondary Assessment, paradoxically, the author went on to acknowledge that the child's significant developmental delays were as a result of a genetic chromosomal disorder, thus revealing the issues to require a far more rigorous and comprehensive analysis than the superficial analysis which was evident in the cited sweeping statement. Those two positions remained unreconciled in the report. 8. As foreshadowed at paragraphs [17] – [18] above, the sheer volume of the materials which were assembled over many months in the course of the investigation make it impossible to analyse every point in the context where a prompt decision is required in the paramount best interests of the child and in the interests of justice. 9. Therefore, I will refer to some salient examples which indicate the Secondary Assessment report by FACS overstated the position of the care of the appellant as being problematic, and involving a risk of harm to the child. 10. A ready and useful example is the matter of concern over the child's diet. In response to criticisms of the appellant concerning her choice of yoghurt for the child's lunch at school, the appellant defended the provision of yoghurt for the child's lunch at school because it was a simple to manage nutritious food, which was easy to feed to the child, and which was provided in the context of a concern about a choking risk when outside the home. 11. There was no reliable evidence to suggest that the child was malnourished, or that she did not have a proper varied diet outside of the school environment. There was no evidence from a dietician to that effect. If there was a dietician who held that view, in this case, the dietician would have been a compellable witness, irrespective of any reluctance to provide a report. The criticism and concern raised against the appellant on account of dietary matters was not only unsupported by qualified opinion, but in the context of the evidence on dietary matters read as a whole, petty. 12. There was a reasonable counter view which was articulated by the appellant. As the assigned carer, absent qualified advice to the contrary, and absent evidence of malnutrition in the child, the appellant had a legitimate voice on the matter, even if others disagreed with her views. This is a sufficiently illustrative example of the flimsy basis upon which criticisms were raised against the appellant concerning the care of the child as provided by the appellant. 13. The remainder of the Secondary Assessment document was also materially problematic in other respects in terms of its reliability, as is apparent from the following examples: 1. The appellant's alleged resistance to suggestions from other service providers was, contrary to the case sought to be made against her, also consistent with a questioning, interested and experienced parental attitude, and it was also consistent with at times robust advocacy for the child. In the absence of a consideration of that alternative explanation, the so-called "somewhat resistant" attitude attributed to the appellant by a FACS worker is an oversimplification, if not a mischaracterisation, which carries very little decisive weight. In my view, to say of that material, that it was a proper basis upon which to conclude it was a material factor that significantly increases a risk of harm to the child, as was suggested by FACS, defies credulity. 2. Similarly, the comment in the Secondary Assessment, made at Exhibit "A", Tab 1, p 27, to the effect that the appellant does not provide the child with activities which "may" assist her to improve her full potential and improve her quality of life fails to pay any regard to some well qualified statements to the contrary within Exhibit "E", which indicates by its absence from the analysis, that material was not properly considered by the Secondary Assessor. Why that Secondary Assessor did not have all of the November 2015 material comprising Exhibit "E" that was exculpatory of the appellant, has not been explained. 3. The Secondary Assessment stated that: "Due to the impact on [the child]'s development while in the care of [the appellant], and the allegations made in relation to [the child] being smacked by [the appellant] it is recommended that the child not to be (sic) returned to [the appellant]": Exhibit "A", Tab 1, p 28. Nowhere in that assessment is there evidence which shows that the past proven impaired credibility of the accusers on the smacking allegation was considered in terms of its due weight. That is a matter of some importance, given the proven history of the brothers lying, for whatever reason, in relation to their treatment by the appellant. This was a most flimsy and unbalanced basis upon which to make the stated conclusion and recommendation set out in the FACS Secondary Assessment report. 1. The Secondary Assessment material assembled to support aggregated criticisms of the appellant was of a very low calibre in terms of its reliability, yet it was placed before the Children's Court to base criticisms of the appellant as a carer. The impaired reliability of that document is self-evident. 2. I now turn to examine the process of the care agency investigation which led to the final investigation report comprising Exhibit "D". The process of the care agency investigation 1. The extensive investigation undertaken by the care agency involved the following sequence of events and methodology: 1. Referral of the communicated disclosures by the child's two brothers to the NSW Police for further investigation; 2. Requests by the care agency investigator to the NSW Police and to FACS for follow-up action; 3. Interviews conducted at FACS offices on 14 September 2015 with both the older and the younger brothers; 4. A telephone interview with a respite carer on 24 November 2015 who said she "observed" the appellant being derogatory about the birth mother of the children: Exhibit "D", pp 28 & 31; 5. Interviews were also conducted at FACS offices on 26 November 2015 with the appellant, for 1 hour and 13 minutes, the appellant's father, a care agency employed disability clinician, and a support worker for carers employed by the agency. A review was also undertaken of "all relevant [agency] file material" which was not further identified, in relation to the three children. 1. A number of documents which are listed on pages 2 and 3 of the care agency's final investigation report were then reviewed and considered in the investigation process. Those documents variously comprised FACS assessment records, a police criminal history check of the appellant, historical agency progress reports, a medical report from a treating doctor of the children, interview transcripts that followed the interviews referred to in sub-paragraph (5) of paragraph [101] above, police interview transcripts relating to the two older brothers of the child, a series of 10 statements listed at page 2 of the final investigation report, 4 file notes relating to discussions with the persons named on page 3 of the final investigation report, and a dietician's report relating to the child. 2. In their preparation of the final investigation report, the care agency investigators also reviewed a number of "school documents" provided by the appellant, and they also reviewed "statements provided to / by" the appellant. Those documents and statements were not further identified or described, nor were the contents of those documents further referred to or summarised in the body of the investigation report in an identifiable way. The evaluative weight placed on those documents was therefore opaque to analysis. 3. Any explanatory detail of the evaluation of those documents or particular parts of those documents was not laid out in the care agency investigation report so it is not clear from the report as to what particular documentary or other evidence was either accepted, discounted, or rejected by the care agency investigators along the pathway that led to the unanimously held view amongst the co-signatories to the final care agency investigation report, that the allegations against the appellant were considered to have been "sustained". 4. When the foundation documents for that final care agency investigation report are examined, they can be seen to represent flimsy and unstructured materials that cite matters that could not of themselves be reliably received into evidence in a court. Although the rules of evidence do not apply to these proceedings, the rules of fairness do apply, and they must be applied. 5. An example of the problem evident in the care agency final investigation report is seen in Exhibit "N", which comprises a transcript of an interview conducted on 26 November 2015 between the lead care agency investigator and a care agency disability support worker who had provided support to the appellant prior to the removal of the children. The following analytical points are salient: 1. That support worker's interview, which was for 21 minutes, touched upon her "supposed" concerns over the neglect of the child: Exhibit "N", p 2, line 28; 2. That interview also included an unqualified and unexplained opinion on whether the child had improved since her removal from the appellant's care: Exhibit "N", p 2, line 36; 3. The support worker's opinions were based on her assumed summary of conversations with the appellant, rather than citing more reliably direct speech: Exhibit "N", p 2, line 39; 4. The support worker cited her own disagreement with the appellant's approach to the child's dietary needs without a balanced consideration of the appellant's reasons for providing the child with yoghurt for lunch whilst at school: Exhibit "N", p 2, line 53; 5. The support worker was hard-pressed to give a cogent example to show why the appellant's negative view of the school the child was then attending should be seen as being a misplaced view: Exhibit "N", p 3, line 83; 6. When the interviewing care agency investigator asked the support worker leading questions about whether the support worker had "concerns" about the appellant, not only was that investigator at a loss to put the content of the question, but the support worker's answer was unrevealing and non-informative, in that all she said, relating to the appellant, was "Yeah, I have serious concerns. I think she is very inconsistent": Exhibit "N", p 3, lines 89 – 91. That expressed view was not supported with cogent reasons, as was required on such an important issue; 7. At the invitation of the interviewer, the support worker, without a skerrick of evidence, raised an innuendo as to the appellant's truthfulness. The support worker was unable to provide examples to support that opinion: Exhibit "N", p 3, lines 94 – 95; 8. The interview went on to vaguely deal with the support worker's opinion that the appellant's assumed attitude of "trying to stop [the child] from developing", and her speculative opinion on the appellant's motives: Exhibit "N", p 4, lines 101 – 104; 9. The support worker expressed an opinion, without evidence or an apparent cogent basis, that she was "in no doubt" that the appellant was restricting the children from access to the food cupboard by locking it: Exhibit "N", p 4, lines 136 – 139; 10. Without a cogent basis, the support worker was highly critical of the appellant's attitude by purporting to cite remarks by the appellant without adequate context for such remarks to be fairly evaluated: Exhibit "N", p 5, lines 144 – 156; 11. The interview descended into a discussion of how difficult the support worker's role was in supporting the appellant as carer for the children rather than dealing with specific matters relating to the care of the subject child as provided by the appellant: Exhibit "N", p 5, line 150. 1. An analysis along the above lines could continue, however, it is sufficient to say the material was very flimsy material upon which to base an adverse finding that the appellant had mistreated children in her care. However, if a further example were to be required for the flimsy foundations of the Secretary's case of alleged mistreatment of the children by the appellant, an analysis of Exhibit "F" is sufficiently illustrative. 2. The Secretary placed great reliance on Exhibit "F" claiming it provided the basis for sustainable criticisms of the appellant. That exhibit had 6 relevant components, as follows: 1. A transcript of a taped care agency interview with the child's older brother which was undated, but said to have been recorded on 14 September 2015; 2. A transcript of a taped care agency interview with the child's younger brother which was undated, but said to have been recorded on 14 September 2015; 3. A transcript of a taped police interview with the older brother which took place over 20 minutes on 27 September 2015; 4. A transcript of a taped police interview with the younger brother which took place over 20 minutes on 27 September 2015; 5. A transcript of a taped police interview with the appellant which took place over 5 minutes on 27 October 2015; 6. A 29 page transcript of a taped care agency investigation interview with the appellant which took place over 1 hour and 13 minutes on 26 November 2015. 1. As to the care agency interview with the older brother as described in sub-paragraph (1) of paragraph [108] above, this raised allegations of assaults and threats made by the older brother, then aged almost 13 years, against the appellant. That interview was interrupted by an off-record conversation between the interviewer and the interviewee. What then followed, on the resumed recording, was an allegation that the appellant "sometimes" smacked the child the subject of the appeal. That allegation, which was not specific as to dates, was not evaluated against the appellant's denials or against the material that she had provided in support of her denials: Exhibit "E". 2. As to the care agency interview with the younger brother as described in sub-paragraph (2) of paragraph [108] above, this raised suggestions that the younger brother had on one occasion, been threatened by the appellant with a knife, and also raised allegations that she had stuffed a tea towel in his mouth and started choking him, and had locked him in his room, that she had choked him "at other times", and that he had been pushed to the ground which resulted in a lump on his head. A matter of some significance arising from that statement is that some identified witnesses, members of the appellant's family, were said to have been present on that occasion, on that brother's own account, yet they were not interviewed. A decision was made by the care agency not to interview those persons. A similar comment applies to the assertion that the other brother had been punched in the face resulting in a nose bleed, where witnesses were said to have seen the aftermath of that event, namely an adult son of the appellant, who denied such an event had occurred: Exhibit "E". 3. There was a subjective assertion made against the appellant that she was selective in her provision of certain foods, some items of which were withheld from the foster children. One forensic problem with that material was that it was provided in the form of an affirmative answer to a leading question: p 13 of that interview at line 436. Another problem is the content of a letter cited by the appellant from one of the brothers, and which was read onto the record by the appellant, which tends to refute the assertion of selective food denial. 4. A difficulty with the statement by the younger brother on the topic of the appellant allegedly smacking the subject child was that it was recorded as "[unclear at 0:42:47] like a hard smack on the bottom, and, yeah": p 14 of that statement at line 460. The answer, as recorded was to a degree ambiguous. The questions that followed were leading. The further mention that the appellant "whacks her pretty much" at p 14 of Exhibit "F" at line 478 was non-specific and not followed up. The expression "pretty much" casts doubt on the accuracy or the reliability, and the consistency of the allegation. 5. This was material that needed to be viewed with caution in view of the past history of the brothers telling lies about the appellant. There were some allegations of the appellant's father getting "mad": p16 of that statement at line 542 forming part of Exhibit "F". There was no evidence of an evaluation that incorporated the required caution concerning the credibility of the brothers on those matters in contention. 6. As to the police interview described in sub-paragraph (3) of paragraph [108] above, the older brother claimed the appellant had choked both boys, and had thrown him against the wall, and this had left a mark on the wall, and "there's a lump where it is" He later referred to it as a dent: Interview transcript within Exhibit "F", p 2, lines 33 – 42. He also claimed to have been kicked in the head and had his nose bloodied in that event: Interview transcript within Exhibit "F", p 2, line 43. He also claimed the appellant had once tried choking him and had held a knife to his face. He referred to multiple choking incidents and he referred to the appellant having threatened to kill him: Interview transcript within Exhibit "F", p 2, lines 62 – 85. He claimed that the appellant's second oldest biological son was nearby when the alleged assault leading to a nose bleed occurred: Interview transcript within Exhibit "F", p 4, lines 99 – 110. He claimed the nose bleed incident occurred in June or July 2015: Interview transcript within Exhibit "F", p 4, line 126. He claimed he had told the appellant's second eldest son that the appellant had kicked him in the nose: Interview transcript within Exhibit "F", p 5, line 146. In answer to a leading question, he claimed to having seen an incident in which the appellant had held a knife to the face of the younger brother, and that this had been witnessed by a named friend: Interview transcript within Exhibit "F", p 6, lines 180 – 200. 7. No statement was obtained from the friend referred to in paragraph [114] above. In that interview, the older brother was observed by those present to have had shaking hands, and he appeared nervous: Interview transcript within Exhibit "F", p 5, line 154. 8. In that interview, the older brother stated that when he had visible marks from the alleged mistreatment by the appellant, when asked about this at school, he had lied about how he received those marks: Interview transcript within Exhibit "F", p 7, line 223. 9. As to the police interview described in sub-paragraph (4) of paragraph [108] above, the younger brother claimed that the appellant "sometimes chokes us and bangs us against the wall" whenever she is angry or when the brothers do something wrong: Interview transcript within Exhibit "F", p 3, lines 55 – 59. In answer to a leading question, he claimed that two years earlier, the appellant had put a tea towel in his mouth and had threatened him with a Stanley knife or a kitchen knife to his throat: Interview transcript within Exhibit "F", p 3, line 65 – p 5, line 124. He claimed this was witnessed by a named friend and by his older brother: Interview transcript within Exhibit "F", p 5, line 126. He said that some marks from the appellant's fingernails on his neck were photographed by his teacher: Interview transcript within Exhibit "F", p 5, lines 133 – 142. In answer to a leading question, he claimed to have been pushed around, choked, and banged against the wall: Interview transcript within Exhibit "F", p 6, lines 158 – 170. 10. Some of those statements were at the least, ambiguous, if not contradictory. For example, at p 6, lines 176 – 177, when speaking of the appellant's second oldest son, he said "Sometimes he smacks us, but not really". He claimed he had witnessed the appellant kick the older brother in the nose which caused a nose bleed: Interview transcript within Exhibit "F", p 6, lines 181 – 193. The appellant's second oldest son, who was said to have witnesses the aftermath of that event, was not interviewed for comparison, verification or refutation purposes. 11. The consistency of those matters, and the reliability of those accounts needed to be evaluated in the face of the appellant's denials, and the material advanced on her behalf comprising Exhibit "E". There was no evidence that a reconciliation of those matters had been attempted. 12. As to the police interview described in sub-paragraph (5) of paragraph [108] above, on this occasion police officers interviewed the appellant to seek comments on the allegations that arose from earlier police interviews. In that interview, the appellant denied the allegation that she had choked the older brother and had banged his head against a wall: Interview transcript within Exhibit "F", p 1, lines 9 – 15. She also denied that the historical photos showing marks or scratches on the older brother's neck were caused by her, and she invited a reference to her "books" or diary: Interview transcript within Exhibit "F", p 2, lines 18 – 20. She denied the tea towel in the mouth and the knife threat incidents as were alleged: Interview transcript within Exhibit "F", p 2, lines 21 – 48. She also denied throwing the younger brother against the bedroom wall which was then dented: Interview transcript within Exhibit "F", p 2, line 52 – p 3, line 56. She also denied kicking the younger brother in the nose in June/July 2015, causing the nose to bleed: Interview transcript within Exhibit "F", p 3, lines 57 – 76. 13. In that context, where the appellant had kept a diary concerning the behaviour of the children in her care, the care agency investigators did not avail themselves the access that was offered to that contemporaneous resource in order to assist with the evaluation that was required in the circumstances. 14. As to the care agency investigation interview with the appellant described in sub-paragraph (6) of paragraph [108] above, it produced a 29 page transcript. It is sufficient to say of it that the care agency investigators put a series of allegations to the appellant, which she refuted. 15. The essential point about the allegations that emerged from this material comprising complaints by the two brothers, is that the allegations remained untested against a proven history that they had told lies in the past. This raised the possibility they were also telling lies on this occasion. The appellant denied to the police the substance of the allegations raised against her by the two brothers. It is difficult to see how the past history of the boys lying could be excluded from the process of evaluating the credibility of their statements in this new context. 16. Some matters of significance that arose from the prolonged care agency interview of the appellant were, first, the reconciliation of the appellant's account of the availability of food in the house for herself and the children on the one hand, and the separate food her own children purchased for themselves: Interview transcript within Exhibit "F", p 5, lines 170 – 175. That claim needed to be reconciled against the possibility that the brothers may not have been aware of that arrangement. Instead, the account by the brothers seems to have been accepted at face value, without evidence of any critical evaluation. Secondly, the citation of a letter written by the older brother, which was in terms that suggested the appellant in fact made the brothers treats, as opposed to the suggestion she had kept "the good stuff" for her own family. That matter also needed to be evaluated and reconciled in a reasoned way for consistency or inconsistency, reliability or unreliability. Specific allegations against the appellant 1. The investigation report identified 6 specific allegations made against the appellant and the report "sustained" each one of those allegations. Allegation 1 – Claim of ill-treatment 1. Allegation 1, which related to alleged ill-treatment of the children in her care, comprised six particulars. These were: first, the appellant had displayed favouritism and preferential treatment with food items as between the foster children and her own children; secondly, that she had limited the subject child's dietary needs (sic); thirdly, that she had denigrated and spoke negatively about the children's birth family, especially the children's birth mother; fourthly, that she did not support or co-operate with birth family contact arrangements; fifthly, that she had refused supports, and had denied the subject child access to appropriate therapeutic activities to assist in her development; and sixthly, she had spoken of the foster children in a derogatory manner; Allegation 2 - Claim of physical assault 1. Allegation 2, which related to an alleged physical assault on the younger brother of the subject child, claimed that during mid-2015, at an identified address, the appellant kicked the younger brother of the subject child in the face whilst he was seated, causing him a nose bleed; Allegation 3 - Claim of physical assault 1. Allegation 3, which also related to an alleged physical assault on the younger brother of the subject child, claimed that during mid-2015, at an identified address, the appellant had threatened the younger brother of the subject child with a knife, causing him to leave the house for fear of his life; Allegation 4 - Claim of physical assault 1. Allegation 4, which related to an alleged physical assault on the older brother of the subject child, claimed that on an unstated date, at an identified address, the appellant held a knife to the throat of the older brother of the subject child whilst in the kitchen, and then allegedly forced a tea towel into his mouth, followed by an alleged incident of violence in which the brother was kicked into his room, which was then locked; Allegation 5 - Claim of physical assault 1. Allegation 5, which also related to an alleged assault on the older brother of the subject child, claimed that on an unspecified date at an identified address, the appellant allegedly choked the older brother of the subject child, and then allegedly banged the boy's head against his bedroom wall, following an earlier argument with the boy, after he had been involved in an apple throwing incident; Allegation 6 - Claim of ill-treatment 1. Allegation 6, which related to alleged ill-treatment of the subject child, claimed that on an unspecified number of dates and occasions, the appellant allegedly smacked the subject child on her bottom when in trouble, including on an unspecified and on an unidentified number of instances where the child had thrown her iPad. Analytical process adopted by care agency investigators 1. The final investigation report purported to set out an analysis of each of the allegations raised against the appellant. In relation to each allegation, this involved the naming of relevant witnesses from whom relevant information was said to have been obtained, setting out a series of dot points under the name of each witness, listing the comments attributed to, or distilled from those persons, followed by a discussion section, which was then followed by a stated finding which sustained each complaint. 2. The final investigation report contained a further section located at the foot of each such analysis in relation to each of the six allegations which required the agency's Investigations Manager to cross a box that was meant to signify whether or not the manager accepted the "recommended findings" in relation to each of the allegations. 3. In the final investigation report, in each instance of the 6 allegations cited, the Manager had marked the appropriate section with a cross in the "Yes" box to signify the Manager's view that the findings by the investigators were found to have been sustained by that Manager. Conclusions of care agency investigators 1. The final agency investigation report then concluded with the following remarks, the content of which has been de-identified: "I. [The appellant]'s children and other family members, friends and professional persons provided the investigation with statements of the quality of care [the appellant] had provided to the [three foster children in question] that had been in her care. All of these statements provided a very positive overview of the type and level of care that [the appellant] had provided. However, the majority of these statements attested to [the appellant]'s character and had limited evidentiary value when considered in relation to specific allegations. These statements were considered in this investigation where it was relevant to the allegation. II. The previous disclosure by [the older brother] in relation to being physically assaulted by [the appellant] was investigated in [the agency] report [number redacted]. During this investigation [the older brother] alleged that [the appellant]'s conduct occurred as alleged, however [the appellant] denied the allegations. [the younger brother] also stated that the incident did not occur. On the balance of probability the allegations were not sustained. During [the younger brother]'s recent Police interview [the younger brother] freely disclosed that same incident and provided a reason for denying that it happened at the time, stating he was told to do so by [the appellant]. [The appellant] also recently provided the investigation with a school report (Semester 1, 2011) that identifies that [the younger brother] is 'eager to please'. This was also confirmed to the Investigator by the school during the original investigation in 2013. Both [the younger brother] and [the older brother] recently disclosed the same incident that allegedly occurred in late 2013 which also adds further weight that, after two years, both [the older brother] and [the younger brother] could still recall it accurately. This suggests the incident did occur as originally alleged by [the older brother]. [Emphasis added] [Exhibit "D", pp 40-41] 1. The consideration given to the "statements" referred to in the emphasised text in Section "I" as cited above was not identified or explained. The question of what weight, if any, was given to the appellant's denials to the suggestion in the emphasised text in Section "II" of the remarks cited above, was not stated in the report. 2. The part of the report cited in the preceding paragraph reveals a significant deficiency in the investigation and evaluation process undertaken by the investigators. This is evident from those so-called "statements" which comprise Exhibit "E". That exhibit consists of 6 relevant documents. 3. The first such document comprised a copy of a 2 page email dated 27 November 2017 addressed to the care agency investigators. The email was from the eldest adult son of the appellant who worked in the community services sector. It commented on each of the above allegations. Those comments were exculpatory of the appellant. They were brief, but particularly relevant, not just as to the character of the appellant, but also identified the fact that as a son of the appellant he was familiar with the children and the appellant's care of them over a significant period of time, when he was present. He identified a state of shock on the part of "everyone that met our family" concerning the allegations. This clearly indicated a line of relevant inquiry that would have been exculpatory of the appellant, yet it was not followed up by the care agency investigator, not even to the minimalist extent of taking a more detailed statement from that son, whether signed or not. 4. In that statement, the appellant's adult son pointed to "the very long history of lying" on the part of the brothers of the child. He was in a reasonable position to refute Allegation 5 concerning an alleged physical assault on the younger brother. The son's email ended with the following plea on behalf of the appellant: "I hope you do not disregard my letter as 'pure bias'. As an educated individual that has worked in the community services sector in both Australia and Cambodia for many years, I hope that this letter will carry some weight and help you to understand that our family is the ONLY place where [the child] is safe." 1. It seems that evidence was either discounted or disregarded by the investigators. There is no evidence in the final care agency investigation report to suggest that any weight was given to that email. It was simply not the subject of follow-up by the investigators. It should have been followed up in the course of the investigation. 2. The second relevant document in Exhibit "E" consists of a copy of a 27 November 2015 email to the lead investigator from the appellant's other adult son who, in his profession is a teacher, and therefore, a mandatory reporter with post-graduate tertiary qualifications. His short but to the point email refuted the allegations made against his mother and invited the care agency investigator to address any questions to him. That invitation was not taken up by the agency. 3. The third relevant document in Exhibit "E" consists of a copy of a 27 November 2015 email from the appellant's adult daughter-in-law who was at home for most of the time to which the allegations relate. She was a student teacher specialising in early childhood. She was able to refute the allegations. She, like her brother-in-law, whose email was the second document within Exhibit "E", also invited the lead investigator to address any questions to her. As was the case with her brother-in-law's email, the invitation was not taken up by the care agency investigators. 4. The fourth relevant document in Exhibit "E" is a copy of a 26 November 2015 email from another adult son of the appellant. He was at home at most of the relevant times. He also refuted the allegations, and concluded his email with the following apt criticism of the care agency investigation: "Note: It was incredible (sic) unprofessional that I was not interviewed about these accusations as I was the only other person who (sic) there for nearly every single accusation and I could of (sic) cleared a lot up for [the care agency]. I am more then (sic) willing to answer further questions and tell the truth about what occurred and that everything in this email is the truth." The care agency investigators never took up the opportunity of informing themselves of the potentially exculpatory evidence that this potential witness could have provided to them for their deliberations. 1. The fifth relevant document within Exhibit "E" is a copy of a 27 November 2015 email from another of the appellant's daughters. She is a teacher and a mandatory reporter. She and her husband were in a position to provide exculpatory evidence to assist the appellant to refute the allegations. She invited the care agency investigators to contact her and they never did so. 2. The sixth relevant document within Exhibit "E" is a copy of a 29 November 2015 email from the appellant's son-in-law. He is a tertiary qualified primary school teacher and a mandatory reporter. His email contained relevant material that tended to refute or could lead to other inquiries that may have refuted, the allegations levelled at the appellant. He also identified the fact that the two brothers of the subject child were "misguided angry boys who have proven to be adept at lying". The care agency investigators did not attempt to obtain further evidence from this potential witness before proceeding to "complete" the investigation. 3. There were significant shortcomings in the process of the care agency investigation of serious allegations. Inadequate consideration was given to potentially exculpatory material. As a result, the investigation was not fairly balanced. It ended up being unfairly skewed against the appellant. Review of evidence 1. Before setting out my consideration of the matters calling for decision I set out my review of the evidence in the appeal. In that review, references to the Children's Court transcript (TCC) are differentiated from the appeal transcript (TA). Evidence of the lead care agency investigator 1. The lead care agency investigator who gave oral evidence in these proceedings, also gave evidence in the Children's Court: Exhibit "A", Vol 4, Tab 20, Day 3, TCC3 – TCC71. He had previously trained and worked as a police officer for some years. Beforehand, he had provided an affidavit sworn on 28 July 2016, which was read in the Children's Court: Exhibit "A", Vol 1, Tab 5. The evidence he gave in this appeal is to be found at TA85 – TA168. 2. The affidavit from the lead care agency investigator, filed in the Children's Court proceedings, was sworn on 28 July 2016. Paragraphs 1 – 15 of that affidavit set out some relevant details of that investigator's long experience as a police officer, both interstate and in NSW. His work included experience in child protection matters. He had also undergone training in relation to reportable conduct investigations pursuant to the reportable conduct scheme established in 1999 which was overseen by the NSW Ombudsman. His affidavit had voluminous annexures: Exhibit "A", Vol 1, Tab 5, pp 137 – 243. 3. By way of background to the appeal, one of those annexures was his 2013 care agency report concerning earlier allegations made against the appellant by the two brothers of the subject child. His report on that matter did not sustain those allegations against the appellant. In one instance, this was said to have been due to "Lack of Weight of Evidence", and in the other instance, "Insufficient Evidence". At that time, the risk assessment was identified as "Low to minimal risk" in relation to all of the three children in the care of the appellant: Exhibit "A", Vol 1, Tab 5, p 145. 4. In that 2013 report, the lead care agency investigator concluded that the exculpatory evidence provided by the appellant was credible, and she seemed honest in her explanatory answers, which touched upon the behavioural difficulties of the brothers, and the tendency of the older brother to tell lies when he was in trouble: Exhibit "A", Vol 1, Tab 5, pp 143 – 145. 5. Apart from some duplication in the annexures, the balance of the material annexed to the lead investigator's affidavit comprised the final care agency investigation report that related to the present appeal: Exhibit "A", Vol 1, Tab 5, Annexure "B", pp 202 – 243. 6. In the Children's Court, during cross-examination, the lead care agency investigator was questioned about the manner in which the final care agency investigation report had been constructed. It appears that in the process, another care agency investigator, who was located in Newcastle, had analysed the assembled materials to assist with a draft of Exhibit "D". That process involved setting out a series of the dot points that are evident in that Exhibit, separating the points into respective categories, being either in favour or against, findings sustaining the allegations against the appellant: Exhibit "A", Vol 4, Tab 20, Day 3, TCC63.18 – TCC63.34. 7. The lead care agency investigator who gave evidence, was based in Sydney, and the two investigators did not work together directly: Exhibit "A", Vol 4, Tab 20, Day 3, TCC70.35. In the course of the investigation he spoke to his supervisor, the care agency's NSW State Manager of Investigations and Operations, about some important questions the Ombudsman had raised concerning a version of the care agency's investigation report, where the Ombudsman indicated that there was a need to make some further inquiries before the report could be considered to be final: Exhibit "A", Vol 4, Tab 20, Day 3, TCC9.25 – TCC10.2. 8. In the lead investigator's subsequent discussions with his manager, it was decided not to pursue the bulk of those further suggestions and inquiries as had been suggested by the Ombudsman: Exhibit "A", Vol 4, Tab 20, Day 3, TCC10.14. That decision was taken because the lead investigator and his manager did not think it was necessary to undertake the suggested further inquiries on account of the cost and because of the logistics of the required resources. In that event, he was satisfied the matters in the final care agency investigation report had been investigated correctly, and following that position being taken by the care agency, the Ombudsman closed his file on the matter: Exhibit "A", Vol 4, Tab 20, Day 3, TCC10.27 – TCC10.36. The lead investigator rejected any criticism made of his investigation: Exhibit "A", Vol 4, Tab 20, Day 3, TCC51.20. 9. In the course of his investigations, the lead care agency investigator recognised that his investigation involved a different standard of proof to that of a police investigation: Exhibit "A", Vol 4, Tab 20, Day 3, TCC11.35. He agreed that the witness statements obtained from the two brothers of the child in question were somewhat vague as to detail: Exhibit "A", Vol 4, Tab 20, Day 3, TCC11.42 – TCC11.47. Earlier, the investigating police officers had taken the position that they were no longer interested in investigating the matter: Exhibit "A", Vol 4, Tab 20, Day 3, TCC12.34. 10. The lead care agency investigator was aware that despite the statements by the child's two brothers, the appellant denied the alleged assaults had taken place, and that the appellant had indicated to the investigators that she had kept a diary of events relating to the children in her care: Exhibit "A", Vol 4, Tab 20, Day 3, TCC13.19. That diary was not accessed as part of the investigation, despite the Ombudsman's suggestion that this step be undertaken. The lead investigator could not recall saying he did not want to look at the appellant's diary despite the invitation for him to do so: Exhibit "A", Vol 4, Tab 20, Day 3, TCC44.41. 11. The lead care agency investigator agreed that he had only made one or two unsuccessful attempts to speak to the care agency case manager who had longer experience of the family in order to speak to her about the events he was investigating: Exhibit "A", Vol 4, Tab 20, Day 3, TCC15.5 – TCC15.50. He said that although he knew that the case manager in question had known the appellant and her family for quite some time, he felt he had spoken to a sufficient range of people "by that stage and [he] was satisfied [he] had enough information to try and finalise the matter and get a resolution to it": Exhibit "A", Vol 4, Tab 20, Day 3, TCC16.5 – TCC16.19. It appears that particular response described his position as at August 2015, at a time when the appellant was overseas, and where he had spoken to another case manager who only had some 3 weeks of experience in working with the appellant's family: Exhibit "A", Vol 4, Tab 20, Day 3, TCC16.1. – TCC16.5. 12. The Manager of the care agency's lead investigator had noted and brought to his attention that he had not interviewed the case manager who had longer experience of the family: Exhibit "A", Vol 4, Tab 20, Day 3, TCC17.17. His explanation for not taking that course was that the agency had "over 5000 employees and sometimes … can be challenging, even finding a simple phone number": Exhibit "A", Vol 4, Tab 20, Day 3, TCC17.23. He sought to further explain the decision not to interview that case manager by saying "at any one time [he] had 10 to 15 matters on the go. I liaise with my manager and if she wants me to do something I'll do it": Exhibit "A", Vol 4, Tab 20, Day 3, TCC18.15 – TCC18.39. It is noteworthy that the lead investigator's manager, who was at Court for the hearing of the appeal, was not called to explain those matters: TA83.39. 13. The care agency's lead investigator acknowledged that he did not pursue a suggestion made by the Ombudsman to contact the investigating police officers about their views of the ability of the child's brothers to give evidence: Exhibit "A", Vol 4, Tab 20, Day 3, TCC19.10 – TCC19.26. He also acknowledged that the appellant's biological adult children were not approached as part of the investigation: Exhibit "A", Vol 4, Tab 20, Day 3, TCC19.44. He justified that position by saying those persons had already provided emails which had been considered in the investigation: Exhibit "A", Vol 4, Tab 20, Day 3, TCC19.44 – TCC19.47. This was a matter of some significance as those adults were identified by the two brothers as being present during some of the events and circumstances that gave rise to the allegations, and therefore, they were potential witnesses whose evidence would ordinarily be expected to be considered in an investigation: Exhibit "A", Vol 4, Tab 20, Day 3, TCC20.1 – TCC20.12. 14. In my view, the latter circumstances identify a serious deficiency in the investigation, which left open the suggestion that it involved a skewed approach that lacked fair balance and that it was left incomplete. I shall return to this topic in due course. 15. In the care agency lead investigator's evidence in the Children's Court, on a number of occasions, when his recollection about the details of the investigation and the methodology of it was tested by questioning, he retreated to the position of a lack of recall, and at times cited the fact that time had passed, and he had been involved in plenty of other matters since he had reported in this matter: Exhibit "A", Vol 4, Tab 20, Day 3, TCC14.30, TCC20.38, TCC33.29, TCC39.35, TCC44.41, TCC44.46, TCC50.40, TCC51.35, TCC53.15. 16. It seems that when the Ombudsman had raised questions about the extent of the investigation, it was the decision of the lead investigator's manager as to whether or not to make the suggested further inquiries: Exhibit "A", Vol 4, Tab 20, Day 3, TCC71.1 – TCC71.8. 17. Although the lead investigator believed he had investigated the matter correctly (Exhibit "A", Vol 4, Tab 20, Day 3, TCC10.31), I consider that his evidence indicates otherwise in several important respects about which he spoke about in his evidence. 18. This was in the context where, despite a request by the Office of the Ombudsman that the investigators speak to the police (Exhibit "A", Vol 4, Tab 20, Day 3, TCC18.40) and despite a request by his immediate manager to interview the agency case worker who had longer experience of the family (Exhibit "A", Vol 4, Tab 20, Day 3, TCC17.8), he did not pursue those lines of inquiry. It appears this was because of the volume of work he was managing at the time. In the result, the Ombudsman's file on the matter was eventually closed. 19. Although the lead investigator said that in his investigation, he had considered the content of the emails that had been provided by the appellant's biological children to support her position (Exhibit "A", Vol 4, Tab 20, Day 3, TCC19.47), and despite the past history of the complainant brothers having made false and vexatious complaints (Exhibit "A", Vol 4, Tab 20, Day 3, TCC33.44; TCC34.35 – TCC35.7), and despite the fact that those complainants had stated that those adult children of the appellant were present when the behaviour complained of took place (Exhibit "A", Vol 4, Tab 20, Day 3, TCC20.12), these lines of inquiry were not followed up on the basis that those persons had already provided their versions by email. He thought that by doing so he would only be going over matters already provided in those emails: Exhibit "A", Vol 4, Tab 20, Day 3, TCC25.45, TCC26.10. There was no attempt to explore the detail of the evidence of those persons, or to properly weigh their material evidence. 20. The care agency's lead investigator and his manager did not see fit to explore that evidence, either by taking formal statements from those persons, or by speaking with them for the purposes of clarification. 21. That position was taken in circumstances where the care agency's lead investigator had said that he had weighed up other evidence and he had said that he had considered those emails. He said that he had given them "appropriate weight", and had found the allegation in question sustained: Exhibit "A", Vol 4, Tab 20, Day 3, TCC27.11. In the evidence he gave in the Children's Court, he did not explain what he meant by the expression "appropriate weight" in that consideration. The final investigation report gave no clue as to how any such evaluation had been undertaken. 22. The care agency's lead investigator agreed that in his investigation, he was assessing the credibility of testimony to see whether the specific complaints made by the brothers could be corroborated: Exhibit "A", Vol 4, Tab 20, Day 3, TCC32.25. He said he sought to speak to as many witnesses as he could do reasonably, at the time, because of the seriousness of the allegations: Exhibit "A", Vol 4, Tab 20, Day 3, TCC32.31. In light of that evidence, it is difficult to understand why the respective authors of the bundle of emails had not been interviewed by him. 23. The care agency's lead investigator knew that some of the evidence he was considering had come from the appellant's ex-husband in the context of a particularly difficult divorce, where there had been allegations that the appellant had been physically and emotionally abused by her ex-husband (Exhibit "A", Vol 4, Tab 20, Day 3, TCC23.35 – TCC23.41), allegations which the ex-husband had denied: Exhibit "A", Vol 4, Tab 20, Day 3, TCC23.48. Although the lead investigator noted that the appellant's ex-husband had changed his earlier evidence which was exculpatory of the appellant, which was a matter of some significance, he said: "I gave weight … to him changing his evidence": Exhibit "A", Vol 4, Tab 20, Day 3, TCC46.50. He was unable to adequately explain that process of weighing and evaluation when this was sought to be explored in his evidence: Exhibit "A", Vol 4, Tab 20, Day 3, TCC47.1 – TCC47.11. 24. It transpired that the lead investigator had only a very short conversation with the appellant's ex-husband by telephone and found him to be credible: Exhibit "A", Vol 4, Tab 20, Day 3, TCC58.26 – TCC58.34. He explained that he considered the evidence of the appellant's ex-husband to be credible because he was no longer the appellant's partner, and in those circumstances, he rationalised that since the divorce, the ex-husband would not necessarily "tend to lean towards" supporting her version: Exhibit "A", Vol 4, Tab 20, Day 3, TCC59.11. I do not understand how he could reasonably come to that conclusion. This is because the ex-husband had changed his testimony, and in the context of a prior history of acrimony between the two, I do not see how those circumstances reasonably give rise to the stated conclusion that excludes possible malice or vindictiveness on the part of the ex-husband towards the appellant: Exhibit "A", Vol 4, Tab 20, Day 3, TCC59.16. 25. The care agency's lead investigator also stated that he had formed the view there would be "no value in travelling to re-interview (sic)" the appellant's biological children and his manager apparently also took that same view: Exhibit "A", Vol 4, Tab 20, Day 3, TCC41.50 – TCC42.20; TCC42.25 – TCC42.35. 26. The care agency's lead investigator said that he agreed that in assessing risk to the child, he had to work out what he should believe as having occurred when investigating the matter: Exhibit "A", Vol 4, Tab 20, Day 3, TCC49.28 – TCC49.32. He agreed this involved wanting to know who was present at the time of the alleged mistreatment (Exhibit "A", Vol 4, Tab 20, Day 3, TCC49.9), and if an adult was said to have been present. This was a matter of importance, where no other person had ever said they had seen the appellant smack the subject child, and where one of the allegations involved the appellant allegedly smacking the child: Exhibit "A", Vol 4, Tab 20, Day 3, TCC50.15. He said that he could not recall pursuing the detail of the allegation for more specificity: Exhibit "A", Vol 4, Tab 20, Day 3, TCC49.41 – TCC50.40. This was in circumstances where the appellant's father denied ever seeing the appellant hit the child: Exhibit "A", Vol 4, Tab 20, Day 3, TCC51.21 – TCC51.31. 27. This was against the background of the care agency's lead investigator's knowledge and understanding that in 2009, the allegations made against the appellant by the two brothers were found to have been false or vexatious: Exhibit "A", Vol 4, Tab 20, Day 3, TCC59.8. In those circumstances, where the younger brother identified 7 adult persons who were family members of the appellant, and who were nominated as being present at the relevant time (Exhibit "A", Vol 4, Tab 20, Day 3, TCC41.50 – TCC42.20), the care agency decision not to interview them was indeed remarkable. 28. The care agency lead investigator had relied on multiple telephone conversations he had with the appellant's mother: Exhibit "A", Vol 4, Tab 20, Day 3, TCC61.20. He said no formal statement was obtained from her because of a reported fear on the part of the appellant's mother, of possible repercussions from the appellant towards, her if she gave a statement: Exhibit "A", Vol 4, Tab 20, Day 3, TCC61.38. It was plain from those circumstances that there was a distinct possibility the appellant's mother was not well disposed to her, and this was a matter that needed to be taken into account in the evaluation. 29. The care agency's lead investigator stated that the process he had undertaken in his investigation was that of outlining the allegations, and then giving the appellant the opportunity to respond to them, before stating his findings in which he would either sustain or not sustain an allegation: Exhibit "A", Vol 4, Tab 20, Day 3, TCC52.50. On an objective reading of the care agency's final investigation report, the rational process by which he had arrived at his conclusions that sustained the allegations was not readily apparent to a reader of that report. 30. The care agency's lead investigator had curtailed an aspect of his investigation which was suggested by the Ombudsman, with the result that a potential witness was not interviewed: Exhibit "A", Vol 4, Tab 20, Day 3, TCC60.30 – TCC61.12. This was a deficiency that gives rise to considerable disquiet. 31. The matters outlined above will be taken up in the consideration of the issues calling for decision. Affidavit from agency casework manager 1. The casework manager for the care agency affirmed an affidavit in the Children's Court proceedings on 1 June 2016: Exhibit "A", Vol 1, Tab 1, pp 1 – 94. Her qualifications were in Welfare Studies. Her responsibility on behalf of the care agency was for the casework management of the children in the appellant's care. That arrangement, insofar as her involvement was concerned, had commenced on 27 January 2016, which was some 5 months after the subject complaints were made. 2. Her affidavit evidence consisted of historical and administrative background matters, and this also included aspects of the child's medical history, the family's child protection history, and the Secretary's position on the issues that have been raised in the proceedings. 3. Through her evidence the concern of the Secretary was expressed as being that the subject child was considered to be at a high risk of harm whilst in the appellant's care due to extreme vulnerability and inability to communicate any issues of concern. The FACS assessment was that the child needed protection whilst in the appellant's care. This was stated to be on account of the "substantiated" allegations to which reference has already been made, and because as a result, the appellant had been refused a current working with children check, and was therefore no longer an authorised carer: Exhibit "A", Vol 1, Tab 1, p 3. 4. Having considered the evidence tendered in the proceedings concerning those matters, including the annexures to that casework manager's affidavit, it is plain that the validity of the Secretary's stated position was dependent upon whether the evidence that had been gathered and adduced was capable of sustaining the earlier investigative findings which were purported to have "sustained" allegations of mistreatment of the child whilst in the care of the appellant. Correspondence with Office of NSW Ombudsman 1. The investigation undertaken by the care agency was subject to it being overseen by the Office of the NSW Ombudsman. On 18 May 2016, the Principal Investigator of the Office of the NSW Ombudsman wrote a letter of commentary on the state of the investigation. That letter was addressed to the National Executive of the care agency. That letter was also marked for the attention of the care agency's State Manager (Investigations and Complaints NSW & ACT): Exhibit "A", Vol 1, Tab 3, pp 102 – 105. 2. In that letter, a number of the Ombudsman's concerns about the care agency's investigation were drawn to the attention of the care agency in respect of what then appeared to be the care agency's final investigation report at the time it was provided to the Ombudsman. That letter raised a number of questions as to whether, having regard to the consequences of the care agency's final investigation report in relation to the appellant, certain additional lines of inquiry should have been pursued. The Ombudsman's letter made the following main suggestions: 1. A further interview was suggested to take place with the child's older brother to carefully explore some identified inconsistencies in his evidence concerning disclosures that had been made by his younger brother; 2. An interview was suggested to be undertaken with a named friend of the younger brother who was said to have witnessed an alleged assault on the child's younger brother by the appellant; 3. Some form of non-verbal interview was suggested to be attempted with the child the subject of the appeal to seek to explore some of the issues raised; 4. An interview was suggested to take place with an adult daughter of the appellant to clarify whether some earlier evidence she had provided in an investigation in 2009, which may have been thought to have been possibly affected by undue influence from another sibling; 5. An approach was suggested to be made to NSW Police investigators who had some historical connection with the matter, to ascertain some clearer indication as to the opinion of the investigating police officers concerning the ability of the brothers to give evidence; 6. An interview was suggested to take place with the care agency's previous long-term caseworker who was familiar with the appellant and the children who had been in her care. That suggestion was made in the context that it was noted that this particular caseworker had not been approached for an interview. The Ombudsman considered that her evidence could be useful for the evaluation of some of the allegations raised against the appellant; 7. Access to and examination of the care agency records was suggested in order to ascertain whether there was corroboration of the appellant's stated account of having reported relevant historical incidents to that agency; 8. It was suggested that reference should be made to the appellant's diaries in light of her statement that she had made records in her diaries of the occurrence of relevant events involving the children in her care, noting also that the appellant had stated in a recorded interview, that those diary entries had been reviewed and counter-signed by a care agency caseworker; 9. It was suggested that the appellant's adult biological children be approached as potential witnesses in light of the emails that had been provided in support of her position. 1. In addition to the 9 matters outlined in paragraph [184] above, the Ombudsman's letter raised a further 5 points of suggestion: Exhibit "A", Vol 1, Tab 3, p 104. These included the observation that the appellant had not been afforded a contemporaneous opportunity to comment on all of the critical elements of Allegation 1 that had been made against her concerning the claim that the child in question had been ill-treated by her. Within those 5 additional points, there was also a concern raised by the Ombudsman about the consistency and the veracity of the evidence raised against the appellant and which had been obtained from the appellant's ex-husband. 2. On 3 June 2016, the Ombudsman's letter dated 18 May 2016 was the subject of a response on behalf of the care agency. That letter of response was not from the addressee within the care agency who was responsible for managing and overseeing the investigation. 3. Instead, the response was from the care agency's Director of Operations, NSW & ACT: Exhibit "A", Vol 1, Tab 2, pp 95 – 101. It therefore appears that the response by the care agency was not written by anyone who had co-signed the care agency's final investigation report. It is not clear from the evidence as to the extent, if any, to which the author of the care agency's letter of reply to the Ombudsman had personal knowledge of the matters that had been investigated in relation to the appellant. 4. It is appropriate at this point to identify and analyse the letter of response from the care agency to the Ombudsman. Adopting the same enumeration as in paragraph [184] above, the cited response from the care agency to the Ombudsman gives rise to the following observations: 1. There was a long, non-responsive, defensive, and in my view, obfuscatory answer provided by the care agency in reply to the Ombudsman's suggestion that the older brother of the subject child should be re-interviewed. This was where there were past adverse assessments of the credibility of that brother. Ultimately, the suggested re-interview of the older brother did not take place; 2. The care agency expressed what I consider to have been the speculative view that to seek to interview either the suggested child witness, or the mother of that child, as was suggested by the Ombudsman, would constitute harassment of those persons. The suggested interview did not take place. It is true that an interview could have been declined by the child's mother, however, no approach had been made for a statement of any kind from those persons. The care agency's explanation therefore avoided the suggestion made by the Ombudsman. In my view this was a material deficiency in the investigation in circumstances where there were doubts about the veracity of the evidence of the complainant brothers, and where taking the step of seeking corroboration, if available, would have been a proper investigative course to take in the circumstances; 3. The care agency decided not to attempt to interview the child the subject of the appeal. This was on advice from the care agency clinician because, it was said, to do so, "would be very damaging" to the child, and it was believed that the information sought from such a course, if obtained, would not assist the investigation. Having read the affidavit from the care agency clinician, there is nothing in that evidence (at Exhibit "A", Vol 1, Tab 7, pp 260 – 262) which supports the view that an attempt at interviewing the subject child "would be very damaging" to the child, as was asserted by the care agency's Director of Operations. Skilled interviewing of intellectually disabled children by appropriately trained investigators is not an uncommon occurrence in such matters; 4. The care agency investigators declined to re-interview the plaintiff's adult daughter, assuming, speculatively, and without evidence, that the evidentiary value of such an interview would be limited; 5. The care agency's decision not to approach the NSW Police for a view on the ability of the brothers to give evidence was sought to be justified on the grounds that different standards of proof of facts apply in criminal investigations compared to the care agency investigation. Nevertheless, in the interests of fairness to all, it is difficult to understand why the care agency did not take that opportunity to clarify the facts, as well as to seek to clarify the reliability of key aspects of the facts, as was properly suggested by the Ombudsman; 6. The care agency's failure to interview that agency's former and more experienced caseworker, who was familiar with the appellant and her family, was sought to be justified on the ground that she no longer worked for the agency. That response from an agency charged with the responsibility of carrying out an investigation of the kind under present consideration is difficult to accept in terms of reasonableness. Reasonable enquiries could have been made to seek to locate that person; 7. The non-check of care agency records, as had been suggested by the Ombudsman, was sought to be justified on the basis that the agency's electronic files only went back to 2012, and nothing of assistance had emerged from the agency's files and records concerning communications from the appellant. From the terms of the care agency's explanation proffered (at Exhibit "A", Vol 1, Tab 2, p 98) I draw no adverse inferences against the appellant in regard to such matters as the thoroughness and the extent of the search was not a matter that was pursued in the evidence; 8. It was suggested that there were no care agency records of any agency staff having reviewed and signed the appellant's diaries. It is difficult to accept the completeness of that response from the care agency given that the former caseworker, who would have most likely been the one to have done so, was never approached to ascertain or to clarify that matter. In making that observation, I have not overlooked the possibility that the appellant's diaries may have been the only record of such a signature. If the diaries had been accessed as was suggested, that matter could have been readily clarified. The matter was not pursued in the evidence; 9. In the context of a care agency investigation involving serious allegations against a carer of children, the care agency's response to the Ombudsman's comment that identified members of the appellant's family who had provided supportive email material but who were not interviewed to explore those matters, was a significant omission in the investigation. The suggestion by the care agency which sought to defend that omission was that since there were similarities in the drafting of those emails, and they contained denials of the allegations, "… In those circumstances it was not considered necessary to re-interview (sic) the adult children [of the appellant] as their position in relation to the allegations was clear": Exhibit "A", Vol 1, Tab 2, p 98. That explanation was plainly wrong on its face and it was a misconceived view. A "re-interview" was not possible, as the providers of those emails had never before been interviewed by the care agency investigator about the subject allegations or the content of those emails. The emails were simply not the products of an interview. Furthermore, the portion of the answer which suggested the "position of those persons" was clear, was misplaced and misconceived. This is so because those versions were never tested by the investigators. 1. An investigative process that did not include an exploration of the above matters, especially the potentially exculpatory elements, was necessarily lop-sided and lacked balance, and would inevitably lead to a skewed investigative evaluation. That is what unfortunately occurred in this instance. 2. The care agency's response to the remaining 6 matters in the Ombudsman's correspondence (at Exhibit "A", Vol 1, Tab 2, pp 98 – 99) referred in part to matters that were not within the ambit of that agency's final investigation report. The care agency's Director of Operations, NSW & ACT, sought to defend the position taken by the care agency on some of the other points by stating: 1. The decision not to re-interview the eldest daughter of the appellant in view of 2015 changes to her 2009 statement was because the 2015 statement was taken at face value rather than being examined and critically evaluated. In my view, that approach demonstrates a failure to undertake a crucial step relevant to the necessary evaluation of the evidence either in favour of, or against, sustaining the allegations: Exhibit "A", Vol 1, Tab 2, p 99, point 10. It is difficult to see how the investigation in those circumstances could be seen to be complete or "final" without this suggested step being pursued; 2. The lead investigator's assessment of the credibility of the evidence of the appellant's former husband, on a comparison of his differing 2009 and 2015 account of events, was questioned. The response to the Ombudsman by the Director of Operations revealed a flawed element of the lead investigator's assessment of that evidence. This was because it had been assumed that the appellant's ex-husband would bear no malice to the appellant as he was no longer married to her, and he would therefore, it was argued, be less likely to be pressured to provide a version of events that was different, and non-corroborative of the appellant: Exhibit "A", Vol 1, Tab 2, p 99, at point 11. 1. There are at least three difficulties in the path of accepting the reasonableness of that articulated defensive position taken on behalf of the care agency. First, it does not give due consideration to the possibility that the contrary proposition was also a likelihood to be considered. Secondly, there was an internal inconsistency in the explanation because the Director of Operations also articulated a stated fear expressed by the ex-husband that he could be vulnerable to repercussions from the appellant if he criticised her and that point should have been considered as a possible counter-weight or counter-consideration to the lead investigator's assessment that the ex-husband did not appear to be actuated by malice. Thirdly, it was difficult to form an objective assessment of the evidence of the ex-husband because the Director of Operations disclosed that the ex-husband had "never actually provided the [care agency] investigator with a formal statement" because he was "very fearful of being identified", a matter which of itself inevitably raised questions to be pursued and considered concerning the reliability or otherwise of his comments, or his potential evidence, such as it was. 2. The delegate of the Acting Ombudsman took note of the responses by the care agency's Director of Operations. After clarifying a minor matter of misunderstanding, on 6 July 2016, the Acting Ombudsman decided not to require any further action in regard to the subject reportable conduct investigation: Exhibit "A", Vol 1, Tab 6, p 258. 3. It is uncertain as to from where, and from whom, the care agency's Director of Operations, NSW & ACT, obtained the information which formed the basis of his responses to the Ombudsman. It is significant that the person to whom the Ombudsman's letter was directed for attention, was not the person who responded to the correspondence. That person was at Court for the hearing of the appeal, but was not called to give evidence. 4. Whilst the decision of the delegate of the Acting Ombudsman doubtless gave the care agency some comfort to the view that its investigation of the matters at hand was adequate, that view does not bind a court when examining the content and the conclusions of the investigation with regard to matters such as the fairness, reasonableness and the completeness of the investigation. 5. In the context under present consideration, the duty of the investigators was to explore and to evaluate the facts relevant to the investigation. The investigation could not have been regarded as complete without interviewing the persons who provided emails supportive of the appellant's position. The investigation should have involved not only facts and evidence that supported the allegations being sustained, but also facts and evidence which was exculpatory of the appellant. 6. When the various points referred to and analysed at paragraphs [184] to [191] above are considered, it is plain that many of those matters ought to have been the subject of follow-up, and should have been weighed in the appellant's favour in the course of the investigation undertaken by the care agency. There is no evidence in the discussion portion of the care agency's final investigation report to transparently indicate that those matters were adequately weighed, either in part or at all. This resulted in a seriously flawed investigation process that sustained findings against the appellant. Affidavit from agency State Manager Investigations & Complaints 1. The care agency's State Manager, Operations and Complaints, NSW & ACT, provided an affidavit affirmed on 28 July 2016 for the Children's Court proceedings: Exhibit "A", Vol 1, Tab 6, pp 244 – 259. She was present at Court for at least part of the time when the appeal was heard but was not called to give evidence: TA108.28. 2. Her role with the care agency, since July 2015, was to oversee reportable conduct investigations undertaken by the agency. She was a co-signatory to the agency's final investigation report, and her signature indicated her approval of that report: Exhibit "A", Vol 1, Tab 6, p 245, par 7. It appears that she took no other active part in the formal investigation prior to co-signing the final investigation report. 3. That statement requires one significant qualification, which does not appear in her affidavit, but which came from the oral evidence of the care agency's lead investigator. This was the Manager's decision, on grounds of costs and convenience, not to pursue further lines of investigation, as already referred to at paragraphs [3], [155], [159], [163], [174], sub-paragraph (5) of [188], and sub-paragraph (1) of [190] above. Evidence from care agency clinician 1. The care agency's clinician, who held that position since March 2014, provided an affidavit affirmed on 4 August 2016 for the Children's Court proceedings: Exhibit "A", Vol 1, Tab 7, pp 260 – 262. That affidavit attached an unpaginated bundle of annexures. He also gave oral evidence in the Children's Court: Exhibit "A", Vol 4, Tab 21, Day 4, TCC4 – TCC32. 2. The clinician's academic qualifications were not identified in the evidence. His background experience was stated as being 25 years' experience in the mental health, disability, forensic and out of home care sectors both in the UK and in Australia. He confirmed that he was neither a psychologist nor a social worker: Exhibit "A", Vol 4, Tab 21, Day 4, p 7, lines 1 – 20. 3. The clinician's role was to provide support to clients of the agency, and to support agency case managers and workers, as well as developing a Positive Behaviour Support Plan for the child. It transpired that he and the appellant ended up having a difference of opinion on the best schooling option for the child who is the subject of the appeal: Exhibit "A", Vol 1, Tab 7, p 261, par 17 – par 20. However, on my reading of the matter, and in particular, having regard to the evidence of the psychologist to which I shall shortly refer, that difference of opinion provided no reliable evidence of either incompetence, misguidedness, or ill-treatment, on the part of the appellant, in relation to her care of the child the subject of this appeal. 4. It should be observed that at the time of that identified disagreement, the face to face familiarity of that witness with the appellant and the child was somewhat limited, in comparison to that of the experience of the previous clinician. 5. The clinician's first Behaviour Assessment Report relating to the child was dated April 2014. It revealed no untoward concerns about the care provided to the child by the appellant. This particular clinician started to work with the child in March 2014: Exhibit "A", Vol 4, Tab 21, Day 4, p 5, line 13. His revised plan, dated 9 June 2015, had expressly acknowledged the strength of the placement with the appellant, and it noted that there would be continued team efforts to support and develop that situation. 6. Although some of this clinician's unpaginated affidavit annexures referred to a caseworker's stated concern, on 12 June 2015, over the child's nutrition, and a concern over whether there was a food restriction issue, his own notes dated 6 August 2015, which he had entered into the care agency's record keeping system on 10 August 2015, stated there were no outstanding issues with regard to the subject child, that she was going well at school, and that plans were being discussed for respite care for the appellant's forthcoming holiday plans. That clinician's subsequent notes, dated 11 August 2015, were all positive with regard to the appellant. 7. This care agency clinician's subsequent notes, which commence on 15 October 2015, relate to events that followed the child's removal from the appellant's care, and related to the present foster care regime. There was nothing in those notes which supported the suggestion that whilst the child was in the care of the appellant, her development was being held back, although the clinician's note dated January 2016 indicated the child had developed at a "significant rate in many areas". 8. That evidence was not evaluated in terms of whether this was a natural age-related development, or whether there had been a release or a progression from a previously held back state of development. On the evidence, it is not possible to reasonably resolve that question. 9. In his oral evidence, the care agency clinician was careful not to assert that the changes in the child's development whilst in the new and current care environment were due solely to a change of placement, or due to a change in prescribed medications, or due to other factors: Exhibit "A", Vol 4, Tab 21, Day 4, p 8, line 20, p 10, line 31; p 14, line 25 – p 15, line 25. Evidence from the care agency's Supporter of Carers 1. The care agency employee whose role was to give one-on-one support and training for agency carers, provided an affidavit affirmed in the Children's Court proceedings on 16 August 2016: Exhibit "A", Vol 2.1, Tab 8, pp 264 – 287. The annexures to her affidavit were numbered in the series as pp 288 – 1084. The transcript of her evidence given in the Children's' Court was also tendered: Exhibit "A", Vol 4, Tab 19, Day 1, pp 83 – 100. 2. In the role of Supporter of Carers, her qualifications were stated as being Bachelor of Social Science, majoring in Counselling and Human Services. Her involvement in contact with the appellant and her foster children, had commenced in December 2014. The annexures to her affidavit did not purport to represent the complete agency file, but instead, consisted of an assembly of documents that she considered to be relevant to the Children's Court proceedings. 3. Her evidence was based on her own knowledge of the family, and from her reading of documents kept by the agency, which I infer to include the care agency's final investigation report: Exhibit "A", Vol 2.1, Tab 8, p 265, par 7. 4. This witness visited the subject child in the care of the appellant on 5 occasions between December 2014 and January 2015, and she also saw the child in her present placement on 11 occasions. Her general observation was that in her present placement the child had "made significant gains developmentally": Exhibit "A", Vol 2.1, Tab 8, p 265, par 16 – par 18. 5. I do not regard that evidence as being an empirical expert opinion as it is not demonstrated to have been suitably qualified or explained with adequately supporting reasons. I do not regard that evidence as supporting the proposition that the subject child had failed to make developmental gains whilst in the care of the appellant, whether as a criticism or otherwise. The medical evidence of the many matters that adversely affect the child prevent a simplistic temporal conclusion of that kind being drawn in this instance. 6. The bulk of the Support of Carers' affidavit provided the historical context for the proceedings. These matters appear to have been largely extracted or summarised from the care agency file. Her affidavit conveniently summarises and provides source reference for the many health issues which afflict the subject child: Exhibit "A", Vol 2.1, Tab 8, pp 268 – 276, par 53 – par 127. The child's educational issues were described in the same exhibit in the page series 275 – 279 between paragraphs 128 – 178. 7. The affidavit concerning the history and the detail of the clinical support the care agency had in the past provided to the appellant drew upon the work of her predecessors, who were responsible for the provision of those services between November 2010 and December 2014: Exhibit "A", Vol 2.1, Tab 8, pp 279 – 281, between par 179 – par 210. No evidence was called from those predecessors who had provided historical support to the appellant. 8. Within the materials that were attached to the Support for Carers' affidavit was a medical report dated 15 April 2015 from a staff specialist paediatrician who had noted the appellant's concern over the child's school, of which the appellant was appropriately critical, and where the appellant's plan to advocate for a change of school, which it was noted, was ultimately achieved: Exhibit "A", Vol 2.1, Tab 8, pp 424 – 425. 9. At the same bundle location, that same paediatrician noted the child's need to be fed small pieces at meal time, and being unable to bite from large pieces of food, and of having an ineffective chew. The child's diet was noted to include carbohydrate, protein and dairy elements, but there was a stated tendency to avoid fruit. It was also noted that the prescribed drug Ritalin had the effect of decreasing the child's appetite. It was noted that the plan was to encourage self-feeding with a spoon: Exhibit "A", Vol 2.1, Tab 8, pp 424 – 425. 10. Significantly, there was not even a hint of criticism of the appellant by the treating paediatrician with regard to the child's diet or state of nutrition, or with regard to her advocacy over the child's schooling. 11. I consider the paediatrician's evidence provides a mantle of reasonableness to the appellant's stance on those issues, and it throws into a different and more benign light, the criticism that the Secretary and others have directed at the appellant's attitude on those matters. I consider those criticisms to have been overstated as to their importance and effect, and I therefore do not accept them. 12. My view in that regard is reinforced by a further report dated 27 October 2015, by the same paediatrician: Exhibit "A", Vol 2.2, Tab 8, pp 428 – 429. 13. That further report, which had followed a request by the care agency case manager for a consultation, noted feeding improvements in the child since the previous assessment which had taken place 6 months earlier, as already referred to above. It is noteworthy to here observe that period was largely within the period of care provided by the appellant. 14. Significantly, this later review by the paediatrician focussed on a need to review and to reduce by weaning, some aspects of the child's medication regime. None of those matters involved any criticisms of the care that had been provided by the appellant. 15. Significantly, at Exhibit "A", Vol 2.2, Tab 8, p 424, that paediatrician went on to deal with the child's feeding issues in the following terms: "There has been an increase in [the child]'s self feeding skills and the range of foods that she eats. She is now having a large breakfast. She is given vegetables, tuna and beans at lunch as well as creamed rice, yoghurt, chips and banana. All this food at school does get eaten. She has an age appropriate dinner at 4pm and dessert at 6pm. She is fed first with a spoon then allowed to feed herself before the carer helps her finish. She is having some difficulties with managing a spoon and I would suggest that a modified spoon be offered. [The present carer] has not yet given any meat. I understand that she has concerns about [the child]'s ability to manage this orally. A speech pathology review is imminent." 1. Without more, the paediatrician's reference in that extract to the child's lunch diet at that time, which went beyond the diet of yoghurt at school does not represent a reasonable source of criticism of the appellant. 2. The reference in the above cited extract to the child not yet having been fed meat by that carer may have been due to the cited concerns over managing to eat meat, or it may have been related to the fact that, as appears elsewhere in the evidence, the appellant is of the Seventh Day Adventist faith, the tenets of which are widely known to exclude a diet containing meat. 3. A significant matter which emerged from the 27 October 2015 paediatric report was that the child's intake of the appetite suppressant drug, Ritalin, and another medication, were ceased, as was confirmed at the next assessment by that paediatrician on 22 January 2016: Exhibit "A", Vol 2.2, Tab 8, pp 430 – 431. In the context cited, the paediatrician made no remarks suggesting there had previously been an inadequate diet. The more extensive diet at that time may have been related to the cessation of the appetite suppressant drug Ritalin. 4. It is relevant to note that earlier, in June 2015, the appellant had been concerned to ensure the adequacy of the child's diet. She consulted a dietician on 3 June 2015 for that purpose. The dietician identified "textured and other issues with food", which indicated the whole of the diet provided by the appellant was appropriate, and there were no signs of malnutrition: Exhibit "G". 5. It appears from the care agency file note dated 2 November 2015, attached to Exhibit "G", that the dietician had provided the child's school with a letter dated 28 April 2015 regarding the nutritional value of the child's school lunches. The context of that note, which was after the child had been removed, was that the Principal had expressed "his concerns" about "the lack of variety of food" the child was given, apparently at school. Clearly, at that time, it is plain from the context that the care agency was seeking to bolster its case against the appellant. In any event, the child was no longer at that school. The papers contained a selective quote from the dietician in the form of a file note which, without more, cannot be reasonably read as being a criticism of the appellant. 6. Absent contemporaneous evidence of malnutrition in the child, and given the cited evidence of the paediatrician, the dietician, and the appellant on this topic, I consider the Secretary's criticisms of the appellant on matters of diet do not raise any matter of substance. On the evidence, when read as a whole and properly understood, there is no substance to those criticisms of the appellant. 7. The paediatrician's comment at her next examination of the child, on 29 June 2016, when she said the child's "diet is now normal for her age" cannot, without more, be reasonably construed as suggesting, whilst the child was in the appellant's previous care, the child's diet was abnormal or inadequate in any way: Exhibit "A", Vol 2.2, Tab 8, p 433. 8. In the absence of focussed expert evidence, I do not propose to further analyse in detail those materials of a medical or developmental nature regarding the child's progress in the care of the current carer from the comparative viewpoint of her health and development whilst in the care of the appellant. 9. This is because there is no sound basis to do so and such a course would be unfair to the appellant, who had no control or influence on those subsequent events. I will of course have regard to that material in determining whether or not it is in the child's paramount best interests to remain in her current care placement as opposed to her care being allocated to the appellant as claimed. 10. The focus of the oral evidence in chief from the agency carer supporter was the suitability of the child's present schooling and care situation, although it was noted that at the time she gave her evidence, there was a concerning revelation that there was a dam on the current carer's property that was not fenced: Exhibit "A", Vol 4, Tab 19, Day 2, pp 83 – 85. 11. In the period prior to the removal of the child, the agency carer supporter had only seen the child on two or possibly more occasions. On those occasions there were no concerns over the child or the appellant's care of her: Exhibit "A", Vol 4, Tab 19, Day 2, pp 83 – 85; TCC87.15 – TCC87.29. 12. This witness confirmed that in her review of the child's medical files as kept by the agency she has not seen any doctor's suggestion to the effect that the child was malnourished: Exhibit "A", Vol 4, Tab 19, Day 2, pp 83 – 85; TCC89.14 – TCC89.18. Nor were there any suggestions of any failure on the part of the appellant to ensure attendance at any required medical appointments or any failure to provide appropriate medications or other appropriate follow-up: Exhibit "A", Vol 4, Tab 19, Day 2, pp 83 – 85; TCC89.46 – TCC90.7. 13. The witness also referred to a conversation in which the appellant in effect considered that the child's care speech therapists were "useless" in that there had been no gains made from speech therapy. This was also in the context where the appellant also thought occupational therapy sessions were not helping the child: Exhibit "A", Vol 4, Tab 19, Day 2, TCC92.24 – TCC92.41. 14. I do not regard that evidence to be indicative of a lack of care on the part of the appellant. She was in a position to hold a relevant opinion and to advocate for that opinion. There was no evidence of a relevant refusal, either past or prospective, to pursue such therapies. Her comment may or may not be grounded in the child's state of development at the time. That evidence does not support the proposition that the appellant would refuse to co-operate to ensure the provision of appropriate therapies. Evidence of the current agency carer 1. The current agency carer gave evidence in the Children's Court by telephone: Exhibit "A", Vol 4, Tab 21, Day 4, TCC42 – TCC57. Her evidence in the appeal was also given by telephone: TA66 – TA80. In those circumstances, it was difficult to form an assessment of her presentation. Her oral evidence expanded upon her affidavit which was either affirmed or sworn on 6 July 2016: Exhibit "A", Vol 3, Tab 15, pp 1390 – 1394. 2. In her affidavit, the current carer described her 25 year background history of her experience in the UK and in Australia as a carer for children and for young people with disabilities. The affidavit was prepared before the current carer had moved into her present accommodation. In her affidavit she described her attendances with the child for medical reviews and therapies, as would be expected. She described the current contact visits by the appellant as having involved a 7 hour return journey for the appellant. She is subject to supervision by the care agency and she has a current working with children clearance. She said she is prepared to work collaboratively with FACS for as long as the child remains in her care: Exhibit "A", Vol 3, Tab 15, par 2 – par 24, pp 1390 – 1394. 3. At present, the current carer has a suitable place for the child to live. She now has a 3 bedroom house on a 20 acre rural property some 60kms from a township. The property has animals. The garden is fenced for the child's safety and she has a pony for the child. There is a suitable school nearby with a special class and a teacher's aide for the child, and speech therapy is available for the child: TA66.45 – TA69.13. 4. The current carer acknowledged that caring for the child presented challenges with her behaviours. She was of the opinion that the child's development has "side stepped" rather than having "gone backwards" whilst in her care: TA79.20 – TA79.27. She said that she loved the child very much and she felt she could communicate with her very well: TA79.30 – T79.45. 5. The current carer initially agreed to provide respite care for the child for 6 months from 4 September 2015: Exhibit "A", Vol 4, Tab 21, Day 4, TCC42.36. That was an emergency arrangement: TA73.35. 6. The current carer said that she has the practice of smoking 20 cigarettes per day, outside, but not indoors: Exhibit "A", Vol 4, Tab 21, Day 4, TCC47.34. She describes herself as being in good health apart from having had a recent health scare. 7. When the current carer gave her evidence in the Children's Court on 3 November 2016, she was living on a 400 acre rural property in a rented cabin the equivalent size to a bedsitter: Exhibit "A", Vol 4, Tab 21, Day 4, TCC44.40 – TCC44.48. The property had animals on it and an unfenced dam, although the cabin has a security gate: Exhibit "A", Vol 4, Tab 21, Day 4, TCC45.32 – TCC45.47. In the Children's Court proceedings the current carer said she was intending to buy a rural property: Exhibit "A", Vol 4, Tab 21, Day 4, TCC49.41. By the time the appeal was heard, as described above, she had already purchased that property: TA66.41 – TA66.46. 8. The current carer has had experience in looking after another intellectually disabled child for 9 years until a transition was arranged for that person to go into independent living in a group home setting at the age of 20 or 21 years. In cross-examination it emerged that the current carer had ceased caring for that other person, not of her own decision, but because an apparent conflict of interest emerged between those responsibilities and her other employment as an assistant manager of a care organisation that provided disability support services: Exhibit "A", Vol 4, Tab 21, Day 4, TCC52.1; TCC57.12 – TCC57.24; TA73.13, TA73.18 – TA73.25, TA77.20, TA77.44. 9. Relations between the current carer and the appellant have been cordial and polite: TCC48.37. The current carer said she was willing to look after the child long-term until the age of 18, if not beyond that age: TA72.35. Evidence of Mr de Laurence, an independent psychologist 1. A report dated 24 February 2016 from Mr John de Laurence, an experienced independent psychologist, was tendered: Exhibit "A", Vol 3, Tab 12, pp 1239 – 1273. 2. Mr De Laurence's report dated 24 February 2016 is located at Exhibit "A", Vol 3, Tab 11, pp 1133 – 1167, his evidence in the Children's Court was given on 31 October 2016, and that evidence is found at Tab 18. 3. Mr de Laurence was well qualified to express opinions on the matters upon which he was consulted. First, he was asked to comment on the attachment between the child the subject of the appeal and the appellant. Secondly, he was asked to comment on the appellant's parenting capacity. Thirdly, he was asked to comment on his recommendations in the event the child was to either return to the care of the appellant, or alternatively, to remain with the current carer: Exhibit "A", Vol 3, Tab 12, p 1240. 4. It appears Mr de Laurence was originally approached by the appellant's solicitor, but he was later instructed by the solicitor for the care agency, which was not a party to these proceedings. His assessment took place about 5 months after the child had been removed from the appellant's care: TCC16.26. 5. Mr de Laurence reviewed the background history of the child in the appellant's care. That review included the historical records of the care of the child and the history of a breakdown in the relationship between the appellant and an agency case manager. He noted (at paragraph 21) in his report, that the appellant was dedicated, and had the capacity to care for, and make significant gains with, the children who had been in her care. He also considered that she demonstrated considerable patience in the face of high difficulties with the boys, who had been hitting each other, and who were lying to avoid trouble: Exhibit "A", Vol 3, Tab 12, p 1244. 6. Mr de Laurence reviewed the concerns and the allegations raised against the appellant and the circumstances leading to the removal of the children from her care. He then carried out his comprehensive assessment, which he described in detail between paragraphs 31 to 123 of his report: Exhibit "A", Vol 3, Tab 12, pp 1246 – 1261. He then set out his evaluation on the subject matter of his report, between paragraphs 124 to 167 at pages 1261 to 1270, before setting out his conclusions and recommendations, which he stated at paragraphs 168 to 172, at pages 1271 to 1273. 7. I am satisfied from the points raised and covered in the report of Mr de Laurence, as evidenced by the matters he set out at paragraph 127(a) to (v) of his report, that he has considered all relevant matters in a comprehensive, fair, and helpful manner, with appropriate qualifying remarks where such annotations were due. I consider his report to form a reliable basis for making the required assessments. 8. In essence, he concluded that the appellant had a good and proven parenting capacity. He also concluded that the defensive conflicts that emerged between the appellant and the care agency were understandable given that the appellant saw herself as the child's mother, and was acting in the best interests of the child. He also identified a possible element of "carer burnout" as having occurred in changing circumstances, which was a matter that could be addressed through the provision of appropriate support. Mr de Laurence did not purport to resolve those and the related issues, but he simply pointed out the possibilities, for management of emergent issues. 9. Mr de Laurence concluded the appellant had an understanding of the needs of the child, and was motivated to do what was best for the child, but could perhaps be more open to other valid views that are appropriately informed and qualified. That is not to say the appellant's management was deficient. He was satisfied the appellant was committed to the child for life, that she loved the child, and regarded her as part of her own family. 10. Perceptively, in my view, Mr de Laurence identified the issue of conflict between carers and those who supervise them as being inevitable in such situation, and he identified this as an issue that needed to be managed, since it could not be totally eliminated. 11. The way I read that statement by Mr de Laurence, against the historical background documents, is that this is more of an issue for the agency to manage with tact, diplomacy and skill in light of the high needs of the child, rather than it being an adverse reflection on the appellant, who had shown herself to be well motivated and dedicated in her role as a foster carer of the child. 12. Importantly, and relevantly, Mr de Laurence agreed it was a good thing that the child had a strong advocate in the appellant: Exhibit "A", Vol 4, Tab 18, Day 1, TCC49.29 – TCC49.38. 13. In that regard, it is of some significance that the previous and more longstanding agency case managers and agency caseworkers did not give evidence. In those circumstances, I gained the impression that there were deficiencies in the care agency's management of the support offered to the appellant in challenging circumstances. 14. That was more of a problem for the agency than a problem for which the appellant was alone responsible. In his report, Mr de Laurence alluded to this by referring the "weakest link" in the care environment provided by the appellant was the "closed system", which included respite within the family: Exhibit "A", Tab 11, p 1166(ix). However, at this point, it is necessary to record that the circumstance alluded to by Mr de Laurence had been permitted to occur in the context of the supervision regime created by the care agency. In my view, this must be seen to be more of a criticism of the care agency rather than a criticism of the appellant as the foster carer. 15. On the question of the bond of attachment that had developed between the appellant and the subject child, Mr de Laurence concluded, based on his own observations, that the child has an attachment with the appellant, and to other members of the appellant's family. 16. Mr de Laurence raised an important note of caution for the analysis required in these proceedings, as follows: "170. In my view, the position that should be adopted regarding considering the termination of [the child]'s placement, needs to be one that considers [the child] as a member of the [appellant's] family as if she was [in effect] born into it, as she has been there since she was 10 days old. It is also important to treat an attachment relationship respectfully regardless of the presence or not of a biological link. Before disrupting or terminating a placement of whole of life to date, adequate consideration needs to be given first to how best to support the carer in her desire to be [the child]'s primary source of love, stability, nurturance and care. That [the appellant] may be difficult to work with is acknowledged, but that should not preclude attempts. 171. It is no doubt that the allegations about [the appellant]'s actions towards [the child]'s brothers are both serious and worrying. They have been substantiated by Community Services staff, although it is noted by the writer that substantiation is not the same as being proven, and the Police have expressed their own reservations. There are previous allegations which have been investigated and found to be false, and in one case, vexatious. The status of these matters in the current proceedings is not known to the writer, but it is apparent that the number of complaints made over the years since 2009, do suggest a pattern. Whether it is a pattern of malicious intent against [the appellant] or whether it is a pattern of poor parenting, is what will need to be discerned." [Exhibit "A", Vol 3, Tab 12, p 1271] 1. Because the evidence on these proceedings did not include testimony from the child's two brothers, it is not possible to arrive at a reasoned concluded view of the latter matter to which Mr de Laurence referred in the extract cited above. All that can be reasonably said is that the care agency investigators should have viewed the uncorroborated allegations made by the child's two brothers with considerable caution before making their "sustained" findings that were adverse to the appellant. This was so especially in view of the past history of false and vexatious complaints having been made against her, and a history of at least one of the boys lying to avoid trouble. 2. Mr de Laurence concluded his report by identifying his alternative recommendations for the care of the child, depending upon whether the child was to return to the appellant's foster care, or remain in the care of the current foster carer. 3. In his oral evidence given in the Children's Court, Mr de Laurence confirmed that since the removal of the child from the appellant's care, the appellant has attended regular supervised contact visits and there were no adverse matters noted: Exhibit "A", Vol 4, Tab 18, Day 1, TCC15.10 – TCC15.30. 4. Mr de Laurence stated that there was nothing that he saw which suggested the appellant would deliberately or otherwise place the subject child at any risk of harm: Exhibit "A", Vol 4, Tab 18, Day 1, TCC16.1 – TCC16.3. He confirmed there was a primary attachment which was expected to endure: Exhibit "A", Vol 4, Tab 18, Day 1, TCC16.21 – TCC17.7. 5. Mr de Laurence stated that in light of the child's autism and communication difficulties, it was very difficult to reach a conclusion as to what level of harm might occur to the child if the attachment were to be broken, but the child was highly vulnerable and the prospect of a broken attachment presents the Court "with a huge dilemma": Exhibit "A", Vol 4, Tab 18, Day 1, TCC17.24 – TCC17.39. 6. Mr de Laurence identified the need for there to be a good and effective relationship between the carer of the child and the agencies responsible for the care of the child: Exhibit "A", Vol 4, Tab 18, Day 1, TCC19.8. He also confirmed his impression that the appellant's commitment to the child was life-long: Exhibit "A", Vol 4, Tab 18, Day 1, TCC19.16. 7. Mr de Laurence's evidence was helpful to achieving a contextual understanding of the appellant's level of disagreement with teachers at a previous school where differences occurred on safety issues. 8. The impression I gained was that the appellant had a good and clear understanding of the child's needs and that she had in the past reacted robustly to contrary views where she considered those contrary views were inadequately informed by a lack of sufficient familiarity with the needs of the child, of which she had a very strong sense: Exhibit "A", Vol 4, Tab 18, Day 1, TCC23.39 – TCC25.45. 9. Mr de Laurence supported the notion that the appellant should be supported with counselling to deal with her own anxieties about the child in that regard: Exhibit "A", Vol 4, Tab 18, Day 1, TCC27.35 – T27.44. Insofar as that last comment implied a criticism of past events, I consider this to be more a criticism of the level and quality of the supervision provided to the appellant by the agency, rather than a criticism of the appellant's abilities as a carer. 10. Mr de Laurence was not critical of the appellant's views on which was the more appropriate school for the child to attend: Exhibit "A", Vol 4, Tab 18, Day 1, TCC29.6. The appellant was obviously in a position to have a strong and informed view on such matters. He also stated that if the appellant had the appropriate supports, there was nothing that suggested to him she would not cope with caring for the child in the future: Exhibit "A", Vol 4, Tab 18, Day 1, TCC30.27. 11. Mr de Laurence did not undertake a personality assessment of the appellant: Exhibit "A", Vol 4, Tab 18, Day 1, TCC31.46. He was therefore guarded in his responses where counsel for the Secretary sought to develop questioning about whether or not the appellant had aspects of anxiety in her personality, or whether some of her reactions to circumstances were influenced by such matters: Exhibit "A", Vol 4, Tab 18, Day 1, TCC31.28 – TCC32.13. 12. Mr de Laurence confirmed that over the time the child has been in the care of the current carer, he thought he "would expect [she] would've developed an attachment with … the current carer": Exhibit "A", Vol 4, Tab 18, Day 1, TCC37.12. This implies he did not personally assess that matter, and was dealing with the question in the abstract. At Exhibit "A", Vol 4, Tab 18, Day 1, TCC37.14 – TCC37.39, he considered the time taken by the legal process was a factor that affected attachment, as is evident in the following extract of his evidence: "Q. In terms of we talked about risks of harm from disrupting attachment, would you accept that that would also have application to separating [the child]'s attachment to [the present carer] as well? A. Yes, I mean the – the thing that's hard not to be oppressed in this matter is that there has been an extraordinary delay in how – I don't know whether delay is the right word – it's taken an extraordinary amount of time to actually get to a position where people can actually start to be examined on the nature of the decisions that have been made and I think the Court is faced with an extremely difficult position now because of that. … I can't think of the word he used but that's the word that registers for me, that it creates an insidious difficulty and insidious problems. So there's no easy – there's no easy out in this particular scenario." 1. When the Independent Children's Representative explored the issue of attachment with Mr de Laurence, at Exhibit "A", Vol 4, Tab 18, Day 1, TCC43.36 – TCC44.1, Mr de Laurence relevantly and helpfully expressed his view in the following terms: "Q. And that no harm would be done to [the child] in either placement, what would be the matter that would tip you one way or the other? A. My experience, which is over many, many years now, decades suggests to me that our responsibility wherever possible is to seek out the least detrimental alternative. My question would be was that adequately considered when these decisions were made in the first place. So I come to the view that the least detrimental alternative would be for the child to be returned or to be in the care of the person who she grew up with. So the tipping point for me would be whether there was an established – whether the Court was satisfied that an adequate risk analysis had been conducted and whether that risk analysis had identified that every other strategy had been employed that represented the decision that was made then to remove her. So in other words the decision to remove her at that time was the least detrimental alternative. So the tipping point would be the risk analysis." 1. There was no evidence of any soundly reasoned contradictory view to Mr de Laurence's cited analysis. 2. Mr de Laurence indicated his view that any transitioning of changes to the current care arrangements should carefully consider whether this should be done quickly, or more slowly over time, and any transition should be carried out constructively according to the unique circumstances of the child: Exhibit "A", Vol 4, Tab 18, Day 1, TCC44.10 – TCC44.34. Evidence of current care agency Case Manager 1. The current Case Manager employed by the care agency provided an affidavit that was affirmed on 2 November 2017 and which was read in the appeal: Exhibit "A", Vol 5, Tab 26. She also gave oral evidence in the appeal: TA24 – TA58. Between 2015 and 2017, she was a former FACS caseworker: TA24.21. She holds a Bachelor degree in Social Science in Welfare Studies, and has a Certificate IV in Disability: TA31.35. She is neither a welfare worker nor a social worker: TA32.5 – TA32.10. 2. Her affidavit covered the background to the proceedings, including on matters of the family history, the family relationships, contacts and the child's present circumstances. She also described the observations she made at a home and at a school visit she carried out on 18 September 2017, and regarding a visit to the school on 23 October 2017. 3. In essence, in her affidavit, she described the child's life needs as well as her developmental and educational needs as being met in the care of the current carer. She also noted there was a further plan to advance those circumstances, including with the provision of communication aids in view of the child's communication difficulties. 4. Significantly, on the subject of respite care, her affidavit included the following statements: "48. Research suggests that the benefits of respite care are numerous for caregivers. Taking time away from care giving demands leaves a caregiver refreshed and renewed, allowing them the opportunity to re-energise to be a more effective caregiver. It's also important for caregivers to maintain social relationships with friends and other family members to avoid isolation and depression. Respite care also allows the caregiver to maintain their own lives; to run errands, see their own doctors, and attend support groups with other caregivers, if they choose to." 1. It is also significant to interpolate here that, whilst the care agency has provided the current carer with respite care relief one weekend per fortnight, that arrangement appears not to have existed when the appellant was the child's carer. This is a matter to which I shall return in my consideration of the issues. 2. In her oral evidence, the current agency case manager: 1. Described the child's current domestic and schooling situation: TA25.45 – TA26.35. She also described the future plans for a special support unit or classroom to be built at the school: TA28.5; 2. Described the current respite care arrangements: TA28.30 – TA28.40; 3. Described the current contact arrangements: TA29.12 – TA30.14; 4. Offered an opinion on the reasons for improvements in the child's behaviour in her current care and schooling situation. In doing so, she could not differentiate the causal connections between the effects of maturation of the child as opposed to changes in the child's environment: TA34.33 – TA34.37; 5. Was unfamiliar with the schools the child had previously attended in comparison with the facilities at the school she presently attends: TA35.15 – TA35.22; 6. Was dependent upon the descriptions provided to her by the current carer concerning contact visits: TA36.10; 7. Acknowledged that the Department's instructions were to closely supervise the appellant on her contact visits with the child: TA48.43 – TA48.49; TA49.19 – TA50.25. She was not fully aware of the reason for that instruction: TA50.45; 8. Acknowledged there was a current concern over the implication of the child's habit of hitting or banging her head, and the cause or causes for this behaviour: TA49.1 – TA49.6. 1. Surprisingly, on being made aware that on one occasion, when the child had arrived at an arranged contact visit to meet the appellant, where the child was reported to have smelt of urine, and was observed to have had faeces on her body and on her clothes, this case manager had not made any enquiries of those circumstances: TA40.40 – TA41.3. Evidence from the biological mother 1. The biological mother of the child who had an intellectual disability herself, provided an affidavit in the Children's Court: Exhibit "A", Tab 16. She also gave evidence in that Court: Exhibit "A", Vol 4, Tab 20, Day 3, TCC72 – TCC83. 2. The evidence of the child's biological mother related principally to the arrangements for contact visits. Her evidence in the Children's Court was not determinative on any issues that have arisen in the appeal. She did not give any evidence in the appeal, although she was present in Court throughout the hearing. Evidence of the appellant 1. The appellant's affidavits in the Children's Court proceedings were respectively affirmed on 2 May 2016, 7 June 2016, and 1 August 2016: Exhibit "A", Vol 3, Tabs 11, 12, and 13. The transcript of the appellant's evidence in the Children's Court was given on 1 November 2016: Exhibit "A", Vol 4, Tab 19, Day 2; TCC3 – TCC79. The appellant's affidavit filed in the present appeal was affirmed on 1 November 2017: Exhibit "A", Vol 5, Tab 24. The transcript of the appellant's oral evidence in these proceedings appears at TA12 – TA16; TA19 – TA22. 2. The appellant's 2 May 2016 affidavit denied each of the allegations that have been made against her and which have been investigated by the care agency: Exhibit "A", Vol 3, Tab 11, pp 1096 – 1098, at par 35 – par 46. 3. In bringing her application seeking that the allocation of parental responsibility for the child be given to her, the appellant acknowledged that because she as the subject of a bar from working with children, she will be ineligible for departmental support and the foster carer's allowance. She is prepared to forego those benefits in the interests of seeing the child returned to the safety and serenity of the appellant's family: Exhibit "A", Vol 3, Tab 11, p 1098, at par 72. 4. The appellant's first affidavit annexed a copy of the report from Mr de Laurence dated 24 February 2016: Exhibit "A", Vol 3, Tab 11, pp 1133 – 1167. 5. The appellant's 7 June 2016 affidavit was in response to an affidavit from the FACS Manager of Casework dated 2 June 2016. Exhibit "A", Vol 3, Tab 12, pp 1220 – 1225, with related annexures in the series pp 1226 – 1327. In this affidavit, the appellant set out her responses which disputed the allegations that she had not engaged with, and maintained appropriate professional relationships with relevant health care providers and with other services: par 9. 6. In that affidavit, the appellant also disputed the care agency investigation findings and she also pointed to what she described as the incomplete investigation that had been undertaken by the care agency's lead investigator: par 37. In that affidavit, the appellant also disputed the suggestion that she had not been providing the child with sufficient opportunities to meet her developmental milestones: par 32. 7. In support of the contentions and denials as set out in that second affidavit, the appellant drew upon numerous references to the materials annexed to that affidavit. 8. The appellant's 1 August 2016 affidavit recounted the history of her care of the children, and she pointed to problems caused by the care agency when, in 2014, she moved home to a new area, and in an ensuing 9 month period, the care agency had assigned two caseworkers: par 44. 9. In that affidavit, the appellant pointed to deficiencies and concerns that arose from the care agency's responses to the Ombudsman's correspondence and she again refuted the allegations within the care agency final investigation report that had been levelled against her: par 46 to par 52. 10. The appellant's oral evidence given in the Children's Court (Exhibit "A", Vol 4, Tab 19, Day 2, pp 3 – 79), raised the following matters of relevance: 1. She had no difficulties with facilitating and maintaining the child's contact with her birth family and with her siblings, and she was prepared to give undertakings to that effect: Exhibit "A", Vol 4, Tab 19, Day 2, pp 3 – 7; 2. She took issue with the care agency clinician's report over the child's feeding and toilet training issues as described by him. This was because of his limited visits and contact with the family, namely, 3 times in a period of 6 months, which she believed gave him only limited insight into those matters, particularly since he never spent time with the child, or with her, talking about the child and observing her: Exhibit "A", Vol 4, Tab 19, Day 2, pp 7 – 9; 3. She took issue with the care agency clinician's view of the child's mobility, and she referred to video evidence to support her different view to that of the clinician: Exhibit "A", Vol 4, Tab 19, Day 2, pp 9 – 10; 4. She took issue with the care agency clinician's views on the child's schooling, noting that the school where she encountered difficulties with the teachers, had closed in about July 2015, and that the child had only attended the new school, which the appellant viewed as suitable, for about 7 weeks before the child was removed from her care: Exhibit "A", Vol 4, Tab 19, Day 2, pp 10 – 11 5. She defended her role in facilitating the child's skills development in the context of the child's disabilities: Exhibit "A", Vol 4, Tab 19, Day 2, pp 12 – 16; 6. After giving evidence on the above matters, the appellant adhered to her affidavit evidence: Exhibit "A", Vol 4, Tab 19, Day 2, p 18; 7. When the appellant was cross-examined at length in the Children's Court by counsel for the Secretary: 1. She denied the allegations of both physical or emotional abuse of the children in her care: Exhibit "A", Vol 4, Tab 19, Day 2, p 18; 2. She explained that, as at May 2015, when the child was 6 years old, the paediatrician's comment that there was no current engagement with a speech pathologist was on account of the relatively recent contact with that doctor. On reading the medical evidence as a whole, I do not read the suggestion in the question that was put to the appellant as being evidence that the appellant had failed to engage with appropriate service providers: Exhibit "A", Vol 4, Tab 19, Day 2, pp 21 – 22, TCC32; 3. She fielded and adequately explained matters of concern that related to the child's diet: Exhibit "A", Vol 4, Tab 19, Day 2, pp 22 – 24, TCC27 – TCC28; TCC34; 4. She explained the context of her past conflicts with the child's teachers in the former school that has since closed down: Exhibit "A", Vol 4, Tab 19, Day 2, pp 22 – 27; 5. She explained that some of the third party notes that had been made in the care agency file with regard to conversations some care agency staff had with her, were not accurate renditions of the conversations in question: Exhibit "A", Vol 4, Tab 19, Day 2, pp 27 – 28; 6. She defended her views that male teachers should not be called upon to change the child's nappies: Exhibit "A", Vol 4, Tab 19, Day 2, p 29; 7. She defended the child's level of physical and play activity as appropriate: Exhibit "A", Vol 4, Tab 19, Day 2, pp 38 – 41; 8. She explained her past reticence for respite arrangements that did not involve family members by citing the attachment issues that related to the child's brothers: Exhibit "A", Vol 4, Tab 19, Day 2, pp 42 – 43; 9. She denied the allegations that she had physically assaulted the child's brothers: Exhibit "A", Vol 4, Tab 19, Day 2, pp 46 – 50; 10. She explained how she has consulted a counsellor to assist her to deal with the stress caused by the allegations which had been made against her and which have led to the removal of the child from her care: Exhibit "A", Vol 4, Tab 19, Day 2, pp 66 – 67. 1. The salient features of the appellant's 1 November 2017 affidavit filed in support of the present appeal were as follows: Exhibit "A", Vol 5, Tab 24: 1. She expressed her concern over the length of time taken by the Children's Court to deliver its decision in which her application was unsuccessful: par 4 – par 5; 2. She explained the inter-relationship between the issues in the Children's Court proceedings and the presently outstanding NCAT proceedings: par 7 – par 8; 3. She described her considerable efforts and difficulties since the removal of the child in maintaining contact with the child: par 9 – par 14; 4. She referred to her history of advocacy for the child and her aim of providing the child with long-term care, not just until the age of 18 years: Affidavit affirmed 2 November 2017, at Exhibit "A", at 24, par 15; 5. She again refuted the suggestions that she had harmed the child and she re-affirmed her commitment to care for the child for the remainder of her life: Affidavit affirmed 2 November 2017, at Exhibit "A", at Tab 24, par 17 – par 23. 1. The appellant's oral evidence given in the appeal raised the following matters of relevance: 1. She confirmed and adhered to her earlier affidavit evidence: TA12.41; TA19.15; 2. She explained that pending the appeal, on account of financial pressures relating to legal costs, she has temporarily moved to live with her daughter to save money (TA12.50 – TA13.10) and she is working between 64 to 72 hours per week as an assistant in nursing at a retirement village: TA13.30; 3. She planned to move back into her previous area of residence in NSW if the child is returned to her care: TA15.40 – TA15.45; 4. She disagreed with the cross-examiner's suggestion that the child's communication and general development had not worsened since she had been removed from the appellant's care, and instead, the appellant believed that the child's skills had decreased since she was removed: TA19.25 – TA19.50; 5. She confirmed that in light of the alleged interpersonal difficulties that were said to have arisen in the appellant's circumstances, she has seen a psychologist for counselling sessions, and she said that she intended to continue doing so: TA20.10 – TA21.8; 6. She stated that in the geographic area where she intended to live if the proceedings were determined in her favour, there were plenty of suitable rental properties, and as she had excellent references, she did not see any difficulty in renting an appropriate property "within a week or so": TA21.16 – TA21.47; 7. She confirmed that if she were to have the care of the child, this would be under the supervision of FACS, and she would accept the reasonable directions of FACS caseworkers: TA22.10 – TA22.17; 8. The appellant stated, and I accept, that whereas in the past she may have got her "back up" in the course of some of her interactions with the care agency if she found that she did not agree with what was being said by those persons, or when dealing with stresses in situations where persons with a relevant interest may have questioned her decisions, with the assistance of the psychologist she has consulted, she is now more insightful on such matters and is more amenable to accepting such guidance: TA22.10 – TA22.36. 1. In making that concession, I do not consider that the appellant was conceding that there had been significant shortcomings in her past communications in the form of advocacy for the child's needs. 2. I now turn to a review of the submissions of the parties. Submissions of the parties 1. The Secretary opposed the making of the orders sought by the appellant. The mother of the child and the Independent Legal Representative of the child supported and adopted the position taken by the Secretary. The basis for those respective submissions will be analysed in my consideration of the matters calling for decision. The focal points of the respective submissions are outlined in the paragraphs that now follow. Submissions on behalf of the appellant 1. The appellant's written submissions were very comprehensive: MFI "4". In essence, the appellant submitted that since the numerous allegations taken into account by the lead care agency investigator could not be tested for accuracy, or as to the motives of those providing the information, the lead investigator did not view that material with a sufficiently critical eye, and therefore it would be unreasonable for the Court to accept that investigation report and the information that purported to support that report. This was so, particularly where, on a number of occasions during his evidence, the lead investigator could not recall the evaluative process that he went through in compiling the report in question, which had resulted in him finding that the allegations made against the appellant were in each instance, sustained: TA191.41 – TA192.5 2. The analysis of those matters will be set out in my consideration of the matters calling for decision in this case. Submissions on behalf of the Secretary 1. The Secretary provided written submissions which relied upon an acceptance of the investigation report comprising Exhibit "D": MFI "5". 2. During oral argument, counsel for the Secretary made concessions concerning deficiencies in that investigation report: TA176.3 – TA176.14; TA176.33; TA178.10. This included a concession that the report was problematic because the appellant was not afforded procedural fairness on an important point at issue in the investigation undertaken by the commissioning agency: TA182.34; TA181.42. It was acknowledged that the matters set out in the report required evaluation as to their appropriateness: TA177.3; TA184.29. I took this concession to be an acknowledgment that the care agency's final investigation report was flawed. That view was exposed to counsel during addresses: TA176.1. 3. It was nevertheless argued that the matters of criticism of the appellant, as gathered and set out in that flawed investigation report, should nevertheless still form part of the evaluation of what would in this case be the paramount best interests of the child, when considering whether the appellant has discharged the onus of demonstrating that the current foster care arrangements should be disturbed: TA183.28. 4. However, counsel for the Secretary ultimately acknowledged that the required consideration and matters at issue in this appeal did not involve a competition between carers for the child, but rather, a consideration of what was the paramount best interests of the child in the circumstances: TA186.20 – TA186.32. 5. Essentially, the position of the Secretary was that it would not be in the best interests of the child for there to be a rescission of the existing care order, and for there to be a parental responsibility order made in favour of the appellant. That submission was put forward irrespective of which conclusion the Court reaches concerning the allegations made by the brothers of the child as against the appellant. 6. The Secretary further argued that the appellant's capacity to care for the child has not been meaningfully addressed in the evidence adduced, having regard to the accumulated matters set out in the flawed investigation report, and that consequently, it was argued that if the child was returned to the care of the appellant, there would be unacceptable risks to the child in those circumstances, as was found to be the conclusion reached by the Children's Court. Submissions on behalf of the mother of the child 1. The solicitor representing the mother of the child prepared short written submissions: MFI "7". Those submissions advocated for the child to remain in her present foster care placement. 2. The mother further submitted, in my view without adequate foundation in the evidence, an expressed concern that the appellant had not adequately turned her mind to the issue of birth family contact. In making that submission, the mother referred to the appellant's present geographic location and the plan for the contact arrangements to take place at a contact centre. She further submitted, again without adequate foundation in the evidence, that if the child were to be in the care of the appellant, the child would lose her regular Skype calls with her brothers, speculating that the brothers would be unlikely to call the appellant for such contact to be facilitated. 3. That submission by the mother was apparently based on evidence given by the appellant in the Children's Court, where she acknowledged that the brothers of the child had told her that they had no wish to be restored to her care: Exhibit "A", Vol 4, Tab 19, Day 2, p 69.38 – 69.39. In my view, the cited submission was made somewhat selectively because in the same cited evidence in the Children's Court, the appellant stated that she still had plans to keep in contact with those boys, even if under supervision of the agency if that was required, including by Skype or by Facetime, and saw no problems in that regard: Exhibit "A", Vol 4, Tab 19, Day 2, pp 69.40 – 70.6. The appellant's evidence on that matter was not challenged. 4. I consider that the concern expressed on that matter by the mother, who has a significant intellectual disability, and who did not articulate that concern in any evidence, rises no higher than merely baseless and unwarranted speculation, which should not carry any persuasive weight: Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352. If the position were otherwise, a specific challenge would have been expected to have been made to the evidence of the appellant. 5. The mother further submitted that the Court could not be satisfied that if the child was to be placed in the care of the appellant, the child would not be at an unacceptable risk of harm. That submission was founded upon the content of the flawed care agency's final investigation report which had based the position of the Secretary, as adopted by the mother of the child. Submissions by Independent Children's Representative 1. In final submissions, the Independent Legal Representative took an adversarial role to the appellant, and made lengthy written submissions arguing against the orders sought by the appellant. This was to the effect that the child's present foster care arrangements should not be disturbed: MFI "6". 2. In making those submissions, the Independent Legal Representative drew attention to the matters of concern set out in the final investigation report comprising Exhibit "D" in these proceedings, and consequently argued that it would not be in the paramount best interests of the child, for the orders made by the Children's Court on 28 July 2017 to be rescinded, with the allocation of parental responsibility for the child to the appellant, even if that was conditional upon the undertakings proposed by the appellant, which included provision for the supervision of the appellant by the delegate of the Secretary. 3. In addition to those submissions being reliant on an acceptance of the flawed care agency investigation report comprising Exhibit "D", the Independent Legal Representative drew attention to the fact that the effect of the only psychological assessment ever undertaken prior to the hearing in the Children's Court is that the appellant is the primary attachment figure for the child. The nature of the attachment to the present foster carer has not been professionally assessed in that way. The Independent Legal Representative accepted that aspects of the investigation undertaken by the agency investigator were deficient. 4. The Independent Legal Representative nevertheless submitted that despite the absence of a psychological assessment of the nature of the attachment between the child and the present foster carer, the court should be comfortably satisfied that there would be such an attachment. That submission was difficult to assess where in this appeal, the present foster carer's evidence was given briefly, and only via a telephone link. 5. Ultimately, the Independent Legal Representative submitted that the appellant did not adduce any evidence to suggest that the care being provided by the present foster carer was in any way deficient, and it was further submitted that the evidence given by the agency caseworker was to the effect that the present arrangements were very satisfactory. 6. Essentially, the Independent Legal Representative submitted that despite any flaws apparent in the care agency investigation to report, and despite also the fact that the evaluation of the matters leading that report did not meet the required Briginshaw v Briginshaw standard for proof of serious allegations, after due weight is given to the accumulation of the matters of concern set out in that report, the paramount best interests of the child would be best served by not disturbing the existing arrangements. It was further submitted that insufficient evidence has been adduced to enable conclusions to be drawn to the contrary of that position. Accordingly, the Independent Legal Representative submitted that the appeal should be dismissed. 7. I now turn to a consideration of the identified issues calling for discussion. First issue – Reliability of the care agency investigation report 1. Underpinning the outcome of the proceedings in the Children's Court was the issue of the reliability of the care agency final investigation report, which is a 41 page document described as a Final Investigation Report that was prepared and co-signed by two agency Investigations Officers, and that agency's State Manager, Investigations and Complaints, NSW & ACT. 2. The appellant criticises the process by which the care agency's investigation proceeded. The appellant also criticises the report that followed, referring to it as being seriously flawed: MFI "4", par 7 – par 8. 3. In the face of criticisms of the care agency final investigation report as ventilated in the appeal, counsel for the Secretary sought to defend that report by submitting that it was not an expert report in the sense used in civil litigation where civil courts expect authors of expert reports to comply with UCPR r 31.27; Sch 7, cl 5(1)(c): TA176.14 – TA176.20. Accordingly, it was argued, that the report should not be viewed and analysed as critically as occurred during the course of the hearing. For the reasons that follow, I see difficulty in accepting that submission. 4. If the report in question had been described as a preliminary investigation report to be used in order to scope or to guide the development of a final investigation report, the Secretary's submission cited in the preceding paragraph may have been capable of some limited acceptance. 5. However, having regard to the limited reasoning within the report, and as the report was stated to be, and was proffered as being, a final investigation report, in which findings were made that were adverse to the appellant, I find myself unable to accept the submission made on behalf of the Secretary. 6. That position arises because of the seriousness or gravity of the matters set out in the report in the form of allegations against the appellant, and which stand to be assessed on the balance of probabilities to a standard commensurate with the relative seriousness or gravity of the allegations raised against the affected party: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. 7. The document put forward by the care agency investigators in effect stated opinions which sustained findings against a carer concerning the mistreatment of a child in care. The allegations were at a level of the utmost gravity where, as a consequence of such allegations being sustained, the inevitable consequences for the child, and the carer for that matter, could be devastating and life-changing. 8. This is apparent because inevitably, following the consequential removal of the child, the attachment of the child to the carer became either disturbed, disrupted or impaired. There was also a potential for the attachment to become damaged or broken. This had the potential to become an entrenched position as time passed. 9. Such consequences demand a process of reasoned rigour in the investigation process leading to the expression of rational opinions on whether or not the allegations in question should be regarded as having been sustained. This must be so because of the serious and life-changing nature of the consequential actions which inexorably follow findings of the kind stated in the care agency's final investigation report. 10. I consider that the criteria for reasons to be given for such findings or opinions should be according to the standard set out in the requirements of UCPR r 31.27 and Sch 7, cl 5(1)(c). That standard of reasoning is protective of the interests of justice generally, and of the affected parties in particular. 11. It has long been accepted that a court cannot be expected to, and should not, act upon an expert opinion the basis for which is not explained by the witness expressing that opinion: Hevi Lift (PNG) v Etherington [2005] NSWCA 42, at [84]. The effect of a failure to ensure that the opinion in question complies with those requirements has the effect of vitiating the decisions that have been based on a departure from that approach. 12. In this case, the flawed nature of the expressed opinions of the investigators purporting to sustain the allegations, as set out in the care agency final investigation report, emerged when that report was tested during the hearing of the appeal. 13. That report simply found, without reasoned analysis, that the allegations made against the appellant of ill-treatment and physical assault, were sustained. 14. When the lead care agency investigator who gave evidence in the appeal was questioned about the process by which he had reached his reported conclusions to the effect that the allegations made against the appellant were sustained, significantly, and in a significant number of instances, he could not explain the evaluative process by which he had arrived at the critical conclusions which were set out in his final investigation report: TA88.31, TA92.21 – TA92.24, TA94.31, TA95.46, TA107.40, TA112.6, TA114.4, TA118.4, TA119.11, TA129.14, TA133.11, TA137.29, TA146.29, TA148.2, TA149.25, TA150.21, TA153.37, TA153.46, TA156.48, TA158.45, TA159.18. 15. Significantly, neither of the two other co-signatories to that care agency final investigation report were called to give evidence to either identify or explain any such evaluative process, if it in fact occurred. 16. In the consideration that is required in these circumstances, the importance of distinguishing between matters of fact that are assumed to be correct, and the consequential formation of an opinion based on those facts, is a well established principle: HG v The Queen [1999] HCA 2; (1999) 197 CLR 414, at p 427; [39]. In that case, at page 429, Gleeson CJ pointed out: "… Experts who venture 'opinions' (sometimes merely their own inference of fact), … may invest those opinions with a spurious appearance of authority, and legitimate processes of fact-finding may be subverted. …" 1. In my view, the passage cited above is an apt description as to what has unfortunately occurred in this case, when the care agency investigation report was declared to be final, and was then introduced into evidence before the Children's Court. 2. For present purposes, in order to demonstrate the conclusion that the investigation report is a fundamentally flawed document from the viewpoint of procedural fairness, in my view, it is sufficient to analyse the material within it relating to the claims of alleged ill-treatment within Allegation 1. 3. The particularisation of the allegations of ill-treatment was as follows: "Ill Treatment It is alleged during the period that [the three children] have been in the care of [the appellant] they have been treated in an unreasonable and seriously inappropriate and improper manner. Some of these incidents include, but are not limited to: Displayed favouritism and preferential treatment with food items between the [the three children] and the carer's own children Limited [the child]'s dietary needs Denigrated and spoke negatively about the children's birth family especially the children's birth mother Did not support or co-operate with birth family contact arrangements Refused supports and denied [the child] access to appropriate and therapeutic activities to assist in her development Spoke of the foster children in a derogatory manner" [Exhibit "D", p 4, redacted] 1. The dot points of suggested evidence listed in support of Allegation 1 was extracted from 21 identified source documents. In that process, between pages 5 and 17 of Exhibit "D", the investigation report listed some 170 individual dot points of evidence which were said to be supportive of the allegation. Between pages 17 and 18 of Exhibit "D", some 11 dot points of evidence were said to be raised against the allegation and in favour of the appellant. 2. To say the least, the dot points raised against the appellant in that context were based on incompletely and inadequately investigated matters, and at best, was based on flimsy material. Furthermore, the "sustained" conclusion was arrived at without interviewing some material witnesses who could have offered evidence that was exculpatory of the appellant. In the result, the findings were left in an adversely skewed state, and they were not arrived at after a fairly balanced consideration of the evidence or potential evidence that could have been sought. 3. It appears those dot points were assembled in the course of work undertaken by a second investigator who was working with the lead investigator, and who was working in a location remote from the lead investigator: TCC70.35. Although that other investigator was a co-signatory to the final investigation report, his part of the evaluation, if any, was not identified or explained. 4. In the final investigation report, after outlining the material described above, what then followed was a "Discussion" section relating to Allegation 1. That discussion section was in the following terms: "Discussion There is considerable evidence from a number of witnesses which raise concerns about the quality of care that [the appellant] has provided to the [three children] siblings. This is evidenced in the points listed above. The witnesses include family, educational and medical professionals. Their evidence is similar in concerns, and common in their themes. The evidence these witnesses provided are corroborative and subsequently are given appropriate weight. The evidence supplied by [the appellant] is that she denies what has been alleged. [The appellant] denied any preferential treatment. [The appellant] further denied withholding food from any chid. [The appellant] indicated that a number of persons wish ill of her. [The appellant] stated that she had a great love of the [three] children. [The appellant]'s version of events was considered and given appropriate weight when making a finding. [The appellant] has also provided the investigation with a number of personal character references attesting to her excellent and loving care. The evidence supplied by [the appellant]'s family and friends as well as other professional persons whom she provided information from was also considered. All of these persons spoke very highly of [the appellant] as a carer, as well as a parent. The majority of this evidence that was provided related to [the appellant]'s good character, rather than direct evidence to the allegation being investigated and was of less weight given that a number of this (sic) persons could not provide any evidence relevant to the conduct or incidents that were being investigated. Having considered all the above mentioned evidence and on the balance of probabilities it is more probable than not that the conduct has occurred as alleged." [Exhibit "D", p 18, redacted] 1. The earlier draft or drafts of that final investigation report had been through some committee or consultative stages. That process had also been guided by input from both the NSW Ombudsman and from management personnel within the care agency. At the end of the process, on 15 and 18 February 2016, the three signatures were variously appended to it, thus completing the report. Two signatures were from the agency investigators, and the third signature was from the agency's NSW Manager, Complaints and Investigations. 2. It is plain from the discussion section of the report as cited above, that the non-pursuit of further evidence from potential witnesses had been glossed over, and the investigation was left in a state that did not pursue the reasonable suggestions made by the Ombudsman for such further investigations to be undertaken. 3. In their final investigation report, the care agency investigators recorded their finding which stated that the allegation of ill-treatment was sustained. That conclusion was then accepted as a recommendation by the State Manager, Investigations & Operations, NSW & ACT. 4. It is plain from a fair reading of the care agency's final investigation report that it left important matters opaque to analysis and unexplained. One of those matters was the extent to which further evidentiary material or inquiries of potentially favourable importance to the appellant had been either limited in the consideration given to the matter, or had been consciously excluded from that consideration. Another matter of significance was the absence of an exposition of the reasoning by which it was concluded that each of the allegations against the appellant had been found to have been sustained by the investigators. 5. In my view, in light of those matters, on the face of the report, it was plainly an unreliable and deeply flawed document to which little probative value should be attached insofar as it purported to make or "sustain" findings that were adverse to the appellant. The logic and process of its findings are opaque to a reviewable and reasoned analysis. That circumstance undermines its reliability. It is little more than a recitation of a list of concerns, without evidence of an adequate evaluation of the underlying evidence with regard to those concerns. 6. The care agency final investigation report which led the Children's Court to its decision adverse to the appellant was produced by a disturbing process of unreasonably limited and inadequate investigation. There was a failure to pursue and explore available material that, on its face, was both potentially credible and potentially exculpatory of the appellant. The resulting document was skewed and unbalanced. Consequently, the process of the investigation led to the appellant being denied natural justice, or procedural fairness. Second issue – Rescission of previous orders 1. Once it is recognised that the care agency final investigation report is a flawed and unreliable document, and since it formed the basis for the decision of the Children's Court to deny the appellant the orders she sought from that Court, the inevitable conclusion is that the related orders of the Children's Court should be rescinded. Consequently, the questions relating to the placement of the child the subject of the appeal must be re-evaluated. At the centre of the remaining consideration is the question of the risks to the child if she were to be returned to the care of the appellant. Third issue – Whether unacceptable risk of harm 1. The above findings still leave open for consideration the question of whether, if the appellant were to re-assume the responsibility for the future care of the child, an unacceptable risk of harm would nevertheless remain as a concern to be taken into account. Any conclusion to that latter effect is one that must be supportable by cogent reasons. 2. This aspect of the analysis is of some importance given that I accept the evidence of Mr de Laurence that in such situations, "context is everything": Exhibit "A", Vol 4, Tab 18, Day 1, TCC49.45. I also accept his evidence that in general terms, the material tipping point in the analysis is the question of whether an adequate risk analysis has been undertaken: Exhibit "A", Vol 4, Tab 18, Day 1, TCC43.46. 3. In the context, in addition to reviewing the underlying materials, Mr de Laurence reviewed the contact reports relating to the contact between the child and the appellant. He said that he saw no evidence that the child had been placed at risk insofar as her contact with the appellant was concerned: Exhibit "A", Vol 4, Tab 18, Day 1, TCC15.3. 4. The required standard of satisfaction for a finding that a risk of harm is unacceptable must necessarily involve something less than proof, and more along the lines of residual feelings of disquiet, suspicion or concern that unacceptable risk of harm may materialise, and that the child should be protected from such circumstances. 5. Although that standard of satisfaction is one that is less onerous when compared to the standard of proof of a fact on the balance of probabilities, any feelings of disquiet, suspicion or concern must nevertheless still have a reasonable basis. 6. No child care environment, whether parental or non-parental, can be regarded as being completely risk free. Inevitably, the care and the supervision of children is not an undertaking that can be fully protective of children from the materialisation of risks to their safety and wellbeing. 7. In that context, as was submitted on behalf of the appellant, the true question which emerges to be addressed at this point is whether the relevant level of risk of harm is one that is unacceptable: Appellant's written submissions, par 23. That question, raises physical, psychological and developmental considerations, which are addressed and evaluated in the paragraphs that follow. 8. As to the child's past physical wellbeing, there is no credible or reliable evidence to support the proposition that any aspect of the appellant's care of the child has exposed the child to actual or potential risk of harm that could have been avoided by better care. There is no credible evidence that the child was either physically assaulted, abused, neglected, not properly cared for, or otherwise harassed, by the appellant, or that such possibilities would be likely to occur, either by the appellant smacking the child, or otherwise. 9. The only relevant evidence that stood against a finding to the above effect were the suggestions that the appellant had previously smacked the child, that she had limited the child's diet, and that these were forms of alleged ill-treatment. This was in the context that such suggestions came from a source without corroboration and where the suggestor had known doubtful credibility. 10. Taking into account what I consider to be the already described flimsy and unqualified foundations for the reported concerns over the fulfilment of the child's dietary needs, the lack of evidence of malnutrition of the child in the context of periodic expert medical reviews, I consider that on the balance of probabilities, the issue of dietary concerns should be seen to be unfounded. On the evidence when read as a whole, those concerns cannot be reasonably sustained as allegations of mistreatment or ill-treatment of the child by the appellant. 11. The assertion that the appellant had physically abused the child has not been reasonably sustained by credible and reliable evidence. The allegations in question were advanced by the child's brothers in the context of a previously proven propensity for making false allegations against the appellant, and of lying to deflect attention when perceived to be in trouble. 12. Absent corroborative evidence in such circumstances, on the balance of probabilities, having due regard to the gravity of the matters suggested, those allegations of abuse cannot be regarded as having been reasonably sustained on the evidence proffered. No relevant feeling of disquiet, suspicion or concern emerges from those matters to reasonably suggest the appellant might physically abuse or harm the child. 13. In my opinion, the same conclusions arise with regard to the child's psychological wellbeing. The evidence of the care agency caseworkers and the carer support worker, the evidence of the agency case managers, the care agency clinician, and the evidence of Mr de Laurence, do not reveal any sound basis for reasonably concluding or suspecting that the child's psychological wellbeing would be at risk of identifiable harm if the child were to be returned to the care of the appellant. In that regard, I accept the appellant's evidence to the contrary. 14. The fact that the allegations in question were made in the first place cannot be a sufficient reason for finding there is an unacceptable risk of harm. The fact that the allegations were made suggests a concern which indicates the need for a proper investigation of those matters to be undertaken. That did not occur. 15. Once due weight is given to the lack of credibility of the source of the allegations, and when the allegations are taken together with the absence of any signs of physical or psychological indications that might have served to corroborate the allegations, I do not consider that the potential risks to the child could be reasonably characterised as being of an unacceptable nature. 16. The stated concerns of alleged ill-treatment of the child were not objectively substantiated by periodic specialist medical examinations. Questions of concerns raised by the school and later followed up by caseworkers over dietary questions were in my view adequately explained by the appellant at the time they were raised, and in her testimony in the proceedings. 17. The child in question has many physical and emotional issues which affected her development and her ability to fulfil her potential for development. In the first 6 years of her life, she was provided with loving and supportive care by the appellant, until she was removed from the appellant's care on 1 September 2015. 18. There is no reliable evidence upon which to base a relevant suspicion or feelings of disquiet or concern over the child's likely future developmental progress if she were to be returned to the care of the appellant. 19. For the contrary view to prevail, feelings of concern or disquiet over those matters would have to be founded upon either reliable evidence on factual matters, or cogently reasoned expert evidence. 20. In this case, the specialist paediatric medical evidence does not reasonably support concerns, suspicions or feelings of disquiet over the child's developmental progress having been held back whilst she was in the care of the appellant. As has already been analysed at paragraphs [216] to [231] above, given the child's particular genetic and developmental conditions, the suggestion that the child has made developmental gains after her removal from the care of the appellant does not represent a sound basis for inferring or concluding that there is an unacceptable risk the child would fail to achieve her developmental potential if she were to be returned to the care of the appellant. 21. Consideration of the possibility of future risk arising for the subject child if she were to be in the care of the appellant must necessarily remain as an imponderable matter that is approached by courts in the conventional way. This requires evidence to support examinable reasons, and not unsupported speculation. In the case of a child who is without a relevant voice, it is particularly important to nevertheless consider the possibility of future risk even if it involves some degree of speculation. 22. In my view, there is no credible or reliable evidence, or reasonable basis for suspicion or disquiet, from which to infer a reason-based concern that the appellant's previous level of care and nurturing that she provided to the child would not continue into the future if the child were to be returned to the care of the appellant. 23. However, in this case, the appellant nevertheless accepts, in light of the fact of the prior removal of the child from her care, that prudence and the child's paramount best interests necessarily dictate that in the event she is to again have care of the child, there should be an extended period of supervision of her care of the child. 24. In my view, the terms of the supervision that the appellant is prepared to accept in the form of her proposed undertaking, are sufficiently comprehensive and satisfactory to adequately safeguard the child against the notion that unacceptable risks to the child might arise in those circumstances: Annexure "B", paragraphs 4.1 to 4.6 of the appellant's written submissions. 25. On the evidence as evaluated in these proceedings, the preparedness of the appellant to give those undertakings, including to accept the reasonable directions of FACS, and the other conditions referred to, is in my view sufficient to allay any rational concerns that might arise over possible unacceptable risks arising for the child whilst in the appellant's care. 26. In arriving at that conclusion, I have not overlooked the allegation that in the past, interpersonal difficulties have arisen between the appellant and certain teachers, providers, and care agency case workers or support workers. 27. In my view, when those matters are viewed both individually and in aggregate, including in the context of scope in the described circumstances for reasonable disagreement and robust advocacy to occur on the part of a committed carer seeking to ensure the best interests of the child, the matters cited as being concerns for the child's wellbeing and safety do not form a persuasive basis for a finding of unacceptable risk in such circumstances. 28. In that regard, those difficulties obviously relate to relationship breakdown. In the case of the issues raised by the school, the context was the appellant's well-founded concern as to what was appropriate to the child's needs, a matter that seems to have been borne out by the child's subsequent satisfactory progress at the appellant's preferred school. In the case of the concerns raised by the school and the caseworkers as to the child's diet, those concerns were inadequately informed, unfounded, and were not supported by the medical evidence or the evidence of the dietician. 29. As to the breakdown in aspects of the appellant's relationship with the care agency and some of its staff, as Mr de Laurence has pointed out, this has to be viewed in the correct context. In that regard, Mr de Laurence explained that providing parenting services to children with autism is a stressful undertaking for foster carers, and persons working under such stresses typically feel confronted, threatened or challenged, so that "bite back" of the kind attributed to the appellant, was a foreseeable but nevertheless, a manageable response: Exhibit "A", Vol 4, Tab 18, Day 1, TCC25.12 – TCC25.47. 30. In that context, it was the duty of the agency to provide a supportive strategy for the appellant as the carer, and not to allow a foreseeable source of disagreement over legitimate but disparate viewpoints to continue to develop, including to a point that created entrenched problems and a relationship breakdown. In this case, that issue was not helped by relevant changes in the continuity of oversight by agency personnel. 31. Again, considering the context of the appellant being a committed and determined carer with a successful background of providing parenting, it is inevitable that conflicts or disagreements with others on matters of detail with regard to care will arise from time to time. Mr de Laurence said of such conflicts that they were inevitable, and they have to be managed: Exhibit "A", Vol 3, Tab 11, p 1162, par 155. 32. Mr de Laurence identified the obvious point, namely that it was a dual responsibility to manage the relationship, noting that the agency had the professional staff and services to work with the appellant: Exhibit "A", Vol 3, Tab 11, p 1161, par 153. 33. If the agency considered the appellant had taken an unduly defensive view of her mothering role as foster carer for the child, this was something the agency had to manage appropriately and professionally: Exhibit "A", Vol 3, Tab 11, p 1157, par 131. If the appellant had taken such a defensive role it was a foreseeable response to the approach taken by the agency, a matter that could have been managed in a better and more collaborative manner given that the agency had the resources to support carers such as the appellant. 34. As Mr de Laurence observed, the appellant is neither a psychologist nor a social worker. She does not have tertiary training in childcare and protection issues. However, she has shown herself to be a committed carer. It is therefore totally unsurprising that when she was criticised by the agency, or others with tertiary qualifications, that she would "bite back": Exhibit "A", Vol 4, Tab 18, Day 1, TCC25.44. This is the kind of scenario that the agency had the responsibility of managing appropriately: Exhibit "A", Vol 3, Tab 11, p 1162, par 155. It is plain that in this case the agency did not do so, and instead, pursued a lop-sided investigation of the appellant that was unfair, and which led to an injustice. 35. Accepting Mr de Laurence's view that interpersonal-based concerns might arise from time to time in foster care situations, if the appellant were to resume the care of the child, I consider that such a possibility is adequately addressed and met by the appellant's preparedness to accept relevant undertakings involving a range of supervisory layers that serve as protection for the child. The appellant impressed me as someone who could learn from, and appropriately adapt to, the unfortunate experience she has gone through in this matter. Those matters provide satisfactory comfort and reinforcement for the conclusion that there is no residual concern over unacceptable risks to the child if returned to the care of the appellant. 36. Consequently, I do not accept that if the child were to be returned to the care of the appellant, she would be vulnerable to unacceptable risk. 37. In my view, the evidence that is in favour of a contrary finding, as was pointed to in the respective submissions variously made on behalf of the Secretary, the child's mother and the child's Independent Legal Representative, does not reasonably support such a contention, whether based on the balance of probabilities concerning allegations of gravity, as explained in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, or on the lesser standard of satisfaction concerning matters of disquiet or suspicion. Fourth issue – Allocation of parental responsibility 1. The consequential question of whether parental responsibility for the child should be allocated to the appellant is a matter that must be considered in light of the evidence of the psychologist, Mr de Laurence. 2. Mr de Laurence pointed to the basic consideration of seeking to ensure, when dealing with attachment issues, that the preferred course to be adopted was that which was least detrimental to the child, especially where, in this case, the background was that the child's primary attachment to the appellant was still evident, and had not been broken: Exhibit "A", Vol 4, Tab 18, TCC17.14 – TCC17.15. 3. In that regard, Mr de Laurence considered that if the "tipping point" of the analysis was satisfied (or here, as I interpolate, it is shown that there was no justifiable case made out for the long-term removal of the child from the care of the appellant once the necessary and properly conducted investigation had concluded) the least detrimental alternative would be for the child to be returned to the care of the person with whom she grew up: Exhibit "A", Vol 4, Tab 18, p 43.43. 4. This question arises because of the stance taken by the NSW Officer of the Children's Guardian, with the result that the appellant is at present barred from caring for children for whom she does not have parental responsibility. She is therefore compelled to seek allocation of parental responsibility for the child. 5. As I have found that on the evidence, there are no reasonably sustainable allegations or suspicions against the appellant in respect of unacceptable risk of harm to the child if in her care, I consider that there is no reasonable impediment to making the parental responsibility order that the appellant now seeks. 6. The evidence of Mr de Laurence has been summarised at paragraphs [247] to [277] above. It is clear from his evidence that the child's attachment to the appellant remains unbroken, as would be expected in circumstances when the appellant provided the child with care and nurture for the first 6 years of her life. The evidence of Mr de Laurence does not raise any concerns over attachment issues should the child be returned to the care of the appellant. In that situation, his only concern was to ensure that the attachment issues would have to be appropriately managed. That is a commonplace circumstance that FACS and its delegated care agencies are expected to deal with in the ordinary course of their work with children and their carers. 7. It is also clear from the evidence of Mr de Laurence, and from the evidence of the current agency caseworker, that the child has for the past 2 years been developing a relevant attachment to the current carer. In those circumstances, with due application of the required planning and supervision by persons with appropriate skills and experience, there is no evidence to suggest that a transfer of the child's care back to the appellant would be unduly damaging to the child, or damaging to the extent that such a move is contra-indicated. 8. Whilst the transfer of the care of the child from the current carer to the appellant might well give rise to some feelings of disappointment on the part of the current carer, as a foster carer, such circumstances are, for a variety of reasons, an ever-present possibility, and such feelings must be seen to be a secondary consideration to the paramount best interests of the child. 9. The issue here is not one of the resolution of the competing interests of the respective foster carers, but instead, the child's paramount best interests. 10. In my view, the child's paramount best interests would be best served if she were to be returned to the care of the appellant, initially and for the suggested time of 2 years, on the basis of the supervision that has been proposed. 11. I have reached that consideration because I am satisfied the appellant has in the past provided the child with appropriate care, and that a resumption of that longstanding and unbroken relationship would ultimately be stabilising for the child, and in the child's long-term best interests. In the absence of concerns of unacceptable risk of harm, I am reinforced in that view by Mr de Laurence's opinion that the appellant has been and remains the child's "major attachment figure": Exhibit "A", Vol 3, Tab 11, p 1164, par 169. 12. In those circumstances, I consider that the interruption to, and phasing out, of the child's 26 month historical attachment to the current carer, would be less likely to be harmful and disrupting to the child than the alternative of progressively weakening the child's attachment to the appellant who has remained her "major attachment figure", and where that attachment has been strong and uninterrupted for the first 6 years of her life, and which attachment has still continued to a material degree, over the past 26 months despite the intermittent contact. 13. In reaching these conclusions, I have not overlooked the issues of concern raised by the child's biological mother as to the appropriate maintenance of birth family contact, including where the child's siblings have their own problems in dealing with the appellant. In my view, those matters should be capable of being professionally managed by appropriate planning and supervision with caseworkers, and of themselves, they do not outweigh what I consider to be the preferred arrangement in the child's paramount best interests. In the child's described circumstances, there can be no perfect arrangement in that regard. The best must be made of those imperfect circumstances. Disposition 1. It follows from my findings that the appeal must be allowed. The 28 July 2017 orders of the Children's Court should be rescinded. Parental responsibility is to be allocated to the appellant, upon the giving of undertakings and with supervisory conditions in place. Accordingly, it becomes necessary for FACS to prepare a fresh Care Plan for the child the subject of the appeal. Orders 1. I make the following interim orders: 1. The appeal is allowed; 2. Pursuant to s 90(1) of the Children and Young Persons (Care and Protection) Act 1998, the orders made by the Children's Court at Ballina on 28 July 2017 are rescinded; 3. The Secretary, Department of Family and Community Services is to prepare a fresh Care Plan consistent with and implementing these reasons; 4. Liberty to apply on short notice, including during the Court vacation, for further directions or orders. ********** Appendix - List of supressed names Significant persons referred to in Judgment Name (1) Carer / Appellant xxxx xxxx (2) The child xxxx xxxx (3) The mother xxxx xxxx (4) Older brother xxxx xxxx (5) Younger brother xxxx xxxx (6) Current carer xxxx xxxx (7) Appellant's father xxxx xxxx (8) Appellant's ex-husband xxxx xxxx (9) Lead investigator xxxx xxxx (10) Second investigator xxxx xxxx (11) Investigations Manager xxxx xxxx (12) Casework Manager xxxx xxxx (13) Current caseworker xxxx xxxx (14) Agency clinician xxxx xxxx (15) Agency supporter of carers xxxx xxxx 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: 15 December 2017