Children's Court New South Wales Medium Neutral Citation: Department of Family and Community Services and Nathan [2018] NSWChC 1 Hearing dates: 30 October 2017, 19 & 20 March 2018 Date of orders: 20 March 2018 Decision date: 20 March 2018 Jurisdiction: Care and protection Before: Judge Peter Johnstone, President of the Children's Court of NSW Decision: There is no realistic possibility of restoration to the mother Catchwords: CHILDREN – Care and Protection – whether there is a realistic possibility of restoration Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 Cases Cited: Briginshaw v Briginshaw [1938] HCA 34 In the matter of Campbell [2011] NSWSC 761 Re Tanya [2016] NSWSC 794 at [70] Category: Principal judgment Parties: The Secretary of the Department of Family and Community Services (DFaCS) The mother The child Representation: Mr R Clarke, solicitor, for the Secretary Ms K Reynolds of counsel, instructed by Mr B Samuel, solicitor, for the mother Ms L Wells, solicitor, Independent Legal Representative for the child (ILR) File Number(s): 2017/00198942 Publication restriction: Pseudonyms have been used in order to anonymise the child and parties Judgment 1. These care proceedings were commenced by the Secretary of the Department of Family and Community Services (DFaCS) under the Children and Young Persons (Care and Protection) Act 1998 following the removal of Nathan from the care of his mother on 4 June 2017 when he was assumed into care at the Royal Prince Alfred Hospital, Camperdown following a critical incident when the baby, then aged three months, was at serious risk of death, as a result of which the mother has been charged with various criminal offences. 2. Nathan is an Aboriginal child now aged one. His father died of a drug overdose on 5 January 2017. 3. The Children's Court placed Nathan under the parental responsibility of the Minister, then on 6 July 2017 made a finding that he was in need of care and protection pursuant to s 71 of the Care Act. A Care Plan for Nathan was prepared on behalf of the Secretary and filed on 28 September 2017. 4. The Secretary assessed that there is no realistic possibility of restoration of Nathan to his mother and proposed a permanency plan for Nathan involving him living permanently under the care of his paternal grandparents, and that they be allocated parental responsibility other than for contact, which aspect was to be allocated to the Minister. 5. Those grandparents are already caring for two of Nathan's older siblings. A boy almost 9 years of age and a girl 8 years of age. 6. The mother opposed the permanency planning proposed and sought restoration of Nathan to her care. Accordingly the dispute came on for hearing before me, commencing on Monday 30 October 2017 (Day 1). 7. Mr R Clarke, solicitor, appeared for the Secretary. The mother was represented by Ms K Reynolds of counsel, instructed by Mr B Samuel, solicitor. The child was represented by Ms L Wells, solicitor, as the Independent Legal Representative (ILR). 8. The hearing was scheduled to continue on Wednesday 20 December 2017 (Day 2) and Thursday, 21 December 2017 but due to Mr Clarke being ill those hearing dates were vacated. The hearing resumed on Monday 19 March 2018 (Day 3) and continued into today, Tuesday, 20 March 2018 (Day 4) when the evidence was concluded and the legal representatives made their submissions. 9. The evidence consisted of the various affidavits filed on behalf of the parties, cross-examination of some of the witnesses by way of oral evidence, and a number of Exhibits. 10. My reasons for judgment follow. BACKGROUND 1. Nathan was born against a background of the mother having had her two older children removed from her care due to a history of drug abuse, neglect, poor parenting, and domestic violence in the household. Nathan, however, remained in the mother's care following his birth due to considerable efforts on her part made to address her issues. 2. I quote from the Application initiating care proceedings at [19] to [22]: "On 6 March 2017 a safety assessment was completed by caseworker Larina Luksic-Gawne using the Structured Decision Making Tool. It was assessed to be 'safe' due to the fact that there was no evidence that the mother was using illicit substances and she was engaging with mental health services." 1. As a result, a safety plan was implemented with the mother as follows: * The mother will continue to contact family and friends for support. * The mother will contact FaCS for support. * The mother will maintain appointments and engage with services, including CUPS, social workers, Malabar Midwives and Peri-Natal Infant Mental Health Service. 1. On 15 March 2017 a risk assessment was completed by the caseworker using the Structured Decision Making Tool with the outcome of 'high'. This tool considers the current situation as well as the history of the family given the mother has two children previously in care. 2. Family and Community Services referred the case to Brighter Futures on 16 March 2017 to continue work with the mother and Nathan. Family and Community Services closed the case on 12 April 2017 as Brighter Futures accepted the referral and the mother was willing to work with them. 3. Brighter Futures accepted the referral on 16 March 2017. The mother's case plan with Brighter Futures includes working on the following: * Understanding of domestic violence by attending domestic violence groups at the Deli in May 2017. * Developing understanding of attachment and Nathan's needs by attending Circle of Security Group. * Support for exposure to trauma and domestic violence and recent bereavements by applying for Victim's Services counselling. * Increasing contact with the older two children by working with their local Community Service Centre. * Increasing contact with young mothers and children by attending playgroups. * Continuing to manage drug use by attending appointments with the Chemical Use in Pregnancy Team (CUPS)" 1. The mother appeared to be making a determined effort to ensure that this, her third child, remained in her care. In summary, the mother had detoxed of her own accord and had successfully abstained from drug abuse for a considerable period of time, probably since late 2016 when she undertook the detox program. She had engaged in a number of courses and programs to assist with her issues and to improve her parenting skills and her capacity to safely care for Nathan. Some of the detail in relation to her considerable efforts to rehabilitate herself are set out in her affidavits, the detail of which is referred to. See in particular in her affidavit of June 2017 at [26], [28] to [29], [30] to [33], [37] to [38] which are set out below: I have also read and taken into account all the annexures. "26. I have a number of support groups whom I am working with. I have been involved with Brighter Futures for the past 2 years. 28. I received support from Deli Women's and Children's Centre. I recently completed a six (6) week domestic violence group course run by the Deli Women's and Children's Centre. I completed the course. 29. I have just completed a circle of security course run by the Deli Women's and Children's Centre. I completed the course. I also enrolled in the following courses organised through the Deli which I am yet to commence namely Magic 1 2 3 and Bringing up safe Kids. 30. I was previously receiving assistance from FACS. They closed their file I believe because Nathan and I were doing very well. 31. I have recently commenced seeing a domestic violence counsellor. She is employed by Victims Services. I am presently attending once each Thursday. 32. I have been complying with all drug test requests made of me by Community Services. The test results have all been clear but it has been suggested that they have been diluted. I deny diluting the test results but acknowledge that I drink a lot of water. I explained this to my case worker. 33. I am presently a client of the Langton Centre. 37. In addition to my professional support I received support from my uncle, aunt, mother, brother and others. 38. Prior to Nathans birth I was employed by Insight which is a charity fundraising since 10 September 2013. The work that I was doing was for the RSPCA. I have been on maternity leave and will shortly be returning to work. I will ensure that my work hours fit in with Nathan's needs." 1. I refer also to paragraphs [6] to [17], [20] to [21], and [23] to [38] of her affidavit of August 2017; "My employment 6. My current work schedule is 5 days a week Tuesday 12-8pm, Wednesday 12-8pm, Thursday from 4.30-8pm and Friday 4.30 to 8pm and on Saturday from 9am to 5pm. 7. On Thursdays I attend a parenting skills course from 10 – 12 pm and a mindfulness course from 1 to 2pm. 8. My working hours are subject to change. In the event that Nathan is restored to my care I have been offered to work from home. I will then be able to work more hours but also care for my son without the need of child care. 9. I continue to attend the Langton Centre through the CUPS program. 10. I continue to see my psychologist. I was referred to her through Victims Services. 11. I continue to receive support from The Deli woman's and children centre. 12. My Mother, Uncle, and his wife and my brother provide me with family support as well as practical assistance. My mother will support me and assist me were Nathan to be restored to my care as will my other family members. 13. I believe that I have learnt a lot from the various parenting programs which I have attended. For example when a child has an outburst it is called toggling in the brain. I am learning strategies on how to deal with children when they have outbursts. 14. For example reflection supports security. By practicing reflection I am taking the first step in having a more secure relationship with my children so basically reflecting on my struggles create choices that leads to security. 15. I have learned that a child's behaviour is a form of communication. I believe that I have learnt how to respond to and recognize my children's needs better. My children need me to balance being bigger, stronger, wiser and kinder. I further believe that I have more insight now as to how to manage stressful situations. Sometimes less talk is more. 16. There are two types of parenting, outside parenting and inside parenting. Outside parenting is rewarding your children for behaving in desirable ways. Inside parenting is helping your children to focus their attention to their feelings and to manage their feelings. Both parenting techniques are needed. I now understand that children have to be shown or taught "wanted" behaviour to begin with. "Start" behaviours takes time to establish as a habit. A big part with helping my children with "start" behaviour is to simply [sic] the process into parts and showing behaviour links together for example tying shoelaces. In order to help maintain behaviour we encourage, coach and always notice when children are doing well. 17. I have learned that when you suddenly feel uncomfortable for example lonely, unsafe, rejected, abandoned, angry or controlled etc I firstly need to recognise the discomfort. This referred to as "here's my shark music" I have learned to Honour the discomfort ("I hurt now because this particular need triggers my shark music") then to respond to my child's need. My past mistakes 20. I acknowledge that I made a lot of mistakes in my past. However I believe that it is not who I am today. My previous relationships were characterized by domestic violence. They have all ended. I have no plans to enter into a new relationship. My focus is on being the best mother I can for my children and they are now the centre of my life. 21. I have completed a Domestic violence (D/V) course on moving forward from DV and it has opened my eyes and taught me a lot. I moved back to the Central coast in 2016 as I had finally found myself at peace with my past and was working towards having more contact with my children such as them being able to come over when they would like on weekends, to be able to attend their assemblies at school and sporting events, my daughters dance concerts. 23. I now have a stable long term job that I have worked up to being a senior agent. I have been there for 4 years now having started in September 2013. I have financially been able to support myself. 24. I fell pregnant in 2016 with Nathan although he wasn't planned. I acknowledge that I had doubts due to how was I going to work and how working towards more contact with my children would be put on hold. I had to focus on my youngest child. The further my term of pregnancy became I found it harder to commute back and forth from Sydney 5 days a week. 25. Following the passing of my father in late 2016 and my lease coming to an end I decided to move back to Sydney to be closer to my family and focus on my pregnancy. 26. Just before my father's passing I began to smoke marijuana, I was pregnant and needed to stop. I requested a hospital for help and they did so. I was admitted into the Maternal ward where I detoxed for a week and had Nathan monitored. This was really reassuring that through my withdrawals Nathan was monitored and was doing okay. I have since ceased marijuana use and it has been 9 months since I last smoked marijuana. 27. When I moved back to Sydney, FACS became involved due to my already having two children removed from my care. I was aware that this may happen. 28. I worked well with my caseworker and I began to do urines all of which were clean. I stayed in regular contact with her and maintained a good relationship with her. 29. In January 2017 Nathan's father passed away. I was just starting to get back to work after the passing of my father. Although we were not in a relationship at the time of his passing I acknowledge that his death had an impact on my life. 30. FACS asked me to have a mental health assessment as I believe that somewhere on my file from the hospital it stated that I was a schizophrenic which I am not. The children's father was, so I had to have this clarified. 31. I completed the mental health assessment. I believe that no mental health issues were identified. My Seroquel dosage was to be lowered and then eventually to cease. Whilst in hospital after Nathan was born it was noted that I take my Seroquel every night but had to have that clarified by the perinatal team that I was to have it only if I asked for it. I requested not to take Seroquel as it made me drowsy and I needed to be awake to breast feed my son and meet his needs. So I stopped taking it and haven't touched it since. 32. I continued to work with FACS. My caseworker said she wished to close my case and asked if I would work with Brighter Futures which I have agreed to do. They were really supportive. They would come over regularly to see how Nathan and myself were doing. I attended a first aid class through them and had a lovely high tea. 33. I took Nathan to the paediatrician every two weeks through CUPS. They were also really supportive and reassuring that Nathan's growth and health and his overall development was good. 34. After Nathan's removal I had another mental health assessment done. It was requested by FACS. The psychiatrist told me that it appeared I had suffered a panic attack and he showed me an online course which I could complete. On the website it had a course based around panic attacks one on depression and trauma and one that was a mindfulness course that covered everything. He advised me to do the panic attack course and if I wished to do so also the mindfulness course. I decided to do both courses. 35. I have begun to see a psychologist. I now find her to be very helpful. I acknowledge that it took me a while to feel a connection and to feel that she was helping me. Due to having a few little issues with her at first I sought another counsellor that I was referred to. She advised me to stick it out with my current psychologist and if it didn't work out to go back to her. I have stayed with the psychologist and feel much more comfortable with her. 36. About 1 month later I was sent a text about a practical mindfulness course being run and if I wished to attend I could do so. I did in order to get some more insight on breathing techniques and coping mechanisms with trauma etc. 37. From the time of having my two children removed to who I am today I believe that I have grown as a mother and that I am now aware of how terrible my past was. I believe that I have gained insight into the mistakes and bad decisions that I have made in my past and am wiser and more mature than I was 7 years ago. I believe that I am a lot more selfless and am a stronger person. My strength comes from my children. My attitude to life has become more peaceful and calmer and I do everything to the best of my ability. I want nothing more than for my children to grow up in a safe and secure and happy environment. I want to be the person that gives this to Nathan and for my two older children to know that I am always there as a safe and secure haven for them as well. I am forever researching parenting skills. 38. I have ceased drug use and have maintained a stable job. I am no longer in a domestic violence relationship and I have stable accommodation. I have great support from my immediate family and networks overall. I am now in a more happy place and miss my son dearly. I would love for him to be returned to my care so that I can be the mother that he deserves." THE CRITICAL INCIDENT ON 3 - 4 JUNE 2017 1. The events of 3 to 4 June 2017 are the subject of some dispute. What is clear, however, is that on Saturday 3 June 2017 the mother took her baby, Nathan, to premises at Marrickville occupied by her cousin, a Maori man. It appears she arrived around 2pm having travelled there on public transport. She stayed at the premises until around 11.30pm. During the time she was there it appears there were a number of other people present in addition to her cousin, and there was what she described as a "jam session with chilling and chatting". 2. One of the persons present, however, was a man who was a known drug user. There is no evidence that the mother used drugs that day. Indeed, hair follicle testing seems to suggest otherwise. There is, however, evidence from which I can infer that drugs were being used (ingested and injected) by others present, not the least being the admissions made by the mother to ambulance officers and police officers. Indeed, the mother told authorities that she was fearful Nathan had been injected with a drug. For example, she was overheard at the hospital by one of the ambulance officers on a phone call in which she asked, "Did you give my baby anything?" And, subsequently, text messages to her mother to a similar effect. 3. At the end of that evening, in the early hours of Sunday 4 June 2017, Nathan was taken by ambulance and admitted to hospital in a condition which involved hypothermia and cyanosis; and he nearly died. In fact the evidence is that if he had not been treated at the hospital he probably would have died. I do not think I will need to document in any more detail the findings of the hospital on Nathan's admission; they are well set out in some of the material before me. The reality is Nathan was close to death. 4. The area of uncertainty in relation to that evening and morning is as to when Nathan began to develop the symptoms and when they became obvious, that is symptoms of his hypothermia and cyanose condition. The mother contends it was not until she was on the bus travelling home at around 12.15am that he took a serious turn for the worse, at which time she became sufficiently concerned to call an ambulance. The Secretary contends, however, that the baby started to demonstrate clear symptoms of distress much earlier in the evening and that these signs were sufficiently clear to require more urgent action, much sooner, to attend to Nathan and his condition. 5. The evidence clearly suggests that Nathan was showing clear signs of serious illness much earlier in the evening. Indeed, in her own evidence, the mother observed Nathan to have a red rash and lips turning blue at, or around as early as 11pm. 6. This followed, or was in the course of the mother having been on the phone for some 81 minutes that is from 9.39pm, to a girlfriend. There followed a frantic period during which the mother, in what appears to have been a confused and panicked state, tried to secure transport to go home. She tried taxis and Ubers, and rang a girlfriend, all to no avail. In the end it appears she jumped on a bus, a bus which was in fact going in the wrong direction. 7. It was only after she had been on the bus that she finally decided to ring an ambulance. The bus driver himself also observed the baby turning blue and he stopped the bus and called an ambulance. Although, the mother disputes that evidence, I accept it. There are varying accounts of what occurred during that crucial period of the night of 3 to 4 June 2017, some of which I propose to refer to. The Application initiating the care proceedings provides a summary of the evidence then available in relation to that time. There is a similar summary in the Care Plan. The mother in her affidavits, however, takes issue with a number of aspects of those summaries. 8. The evidence that I find to be particularly compelling, however, comes from the independent observers of events in the early morning of 4 June 2017, coming from the bus driver, the ambulance officers, the police officers who attended, and the social worker at the hospital as set out in their statements and records; Exhibits A, B, and C. 9. I will quote some of that material. 10. Senior Constable JG records in her statement as follows: "I went to the bus driver… He told me the accused, had been acting strangely. His bus route started in Tempe and ended in Dulwich Hill. The accused got on his bus at the stop on Marrickville Road before Illawarra Road, Marrickville. He noted that when she got on-board she did not tap on. The accused was distant and was not making sense. She did not know where she was and she thought she was in Bondi. He heard the accused say, "He's turning blue." He watched as the accused shook the baby. He told me the accused was not acting 'motherly'. She did not believe the baby was hers and when the baby cried she did not cuddle him." 1. In her statement the female ambulance officer states as follows: "We arrived at the location at 12.33am. There was a bus on the corner. I could see a woman holding a baby above her with arms outstretched. I now know the baby to be Nathan. I was told the woman's details but did not record them in my notes. The baby appeared to be floppy in the woman's arms. The baby was wearing a Bonds onesie. I was surprised as it was a particularly cold night and had been raining. I was wearing a heavy jacket to keep warm. I approached the woman and baby… as I approached I could see that the baby was cyanotic and not moving but alert. The cyanosis indicated that the baby was extremely cold and had decreased oxygen intake. The mother appeared extremely distressed. She said, 'The baby has a rash.' She repeated this a number of times. She was pacing in a circle. I took the baby from her arms to the back of the ambulance. I removed the onesie which was wet from the lower half down from a very full nappy. I quickly assessed the child looking for a rash. There was some slight spotting over his chest and right temple however it was mild and I was not concerned by it. I performed a full set of observations. I measured the baby's temperature at 33 degrees Celsius which is very cold. He had a heart rate of 170 beats per minute which is extremely fast. He also had a respiration rate of 28 with oxygen saturation of 81%. This is a high rate of respiration and a very low oxygen saturation. All of these indicated that the baby was extremely unwell. The baby was very large for its age, he was wet and extremely cold to touch. His breathing was noticeably rapid. He was alert but his movements were slow and he made no noise. The woman followed me into the ambulance… she was carrying a plastic bag containing rubbish including a takeaway container half full of food. She said, 'Can you get this tested?' I said, 'Why?' She said, 'There was a man at my cousin's house, he was very close to the baby. I think he's poisoned the baby. This is his food. If you test it you can find out what he poisoned the baby with.' I became concerned about her mental state and started to ask more in‑depth questions. She said, 'The baby only had one wet nappy since I got to my cousin's house.' I said, 'When was that?' She said, 'I took a bus from Maroubra to my cousin's house at about 7.30 in the morning.' I said, 'Have you had any drugs or alcohol today?' She said, 'No, people were taking drugs at my cousin's house.' I said, 'What were they taking?' She said, 'They were smoking and injecting.' I said, 'Was it in the same room as the baby?' She said, 'Yes.' She got very upset at this point continually saying, 'Someone has injected my baby.' Many of her responses were scattered and it took multiple prompts to get an answer. I thought she was showing signs of paranoia. She kept trying to take the baby off the stretcher during treatment and I had to ask her to stop it. The baby's condition stabilised with warming and we were about to leave. I was approached by a female police officer. She told me, 'Can I speak to you at the hospital?' On the way to the hospital I asked, 'When did you first notice the rash?' She said, 'He had a blue face just before dinner. I thought he was hot so I took his clothes off.' I went through her belongings in an attempt to find baby care items and noticed she had no bottles, formula, blankets, change of clothes, nappies. I said, 'Where have you been today?' She refused to tell me but said, 'I got on a bus to Dulwich Hill where I called 000.' I said, 'Why did you get on the bus to Dulwich Hill when you live in Maroubra?' She said, 'I don't know.' She started to cry on route. She said, 'The baby's father died of an overdose.' She started sobbing, 'He's dead. He's dead…'" 1. There is the COPS record, Exhibit B, from which I quote as follows: "Police spoke with the bus driver who informed police the PN (i.e. the mother) boarded the bus with the CAR (Nathan) on Marrickville Road, Dulwich Hill. The bus driver became immediately concerned after seeing the CAR turn blue. He stopped the bus and rang for an ambulance. Police attended Royal Prince Alfred Hospital and they spoke with paramedics who attended the scene. They disclosed when they arrived on the scene the PN was holding the CAR in the air and was starting to remove the CAR's clothing as she had concerns the CAR was suffering from a heat rash. According to their observations the CAR was extremely cold to touch, his clothing was damp from a full nappy and suffering from hypothermia and tachycardic. At the time of their arrival the CAR's temperature was 33 degrees. (A normal temperature for a baby is generally considered to be about 37 degrees and at the time, the temperature was about 10 degrees in Dulwich Hill). Paramedics also raised concerns in regard to the PN who allegedly told them she had been at a house where prohibited drugs were being administered in close proximity of the CAR. They also stated the CAR was without warm clothes/ nappies/blankets. As stated by medical staff the CAR required immediate medical intervention or else it could have been fatal. Police spoke with the PN who at times became confused and was unable to stay focused…The PN provided the following version of events to police: 'I live at Maroubra. I went to Newtown Oporto then I found out it was Oporto Marrickville I was meant to be at. When I got to my cousin's place he met me downstairs. He kept saying how beautiful Nathan was. A few people came and went; they kept going into a room. They were probably doing drugs. When I went to the toilet I came back to the lounge room and I saw a man I know was near the pram and had turned Nathan towards him. He was holding a pin with white liquid in it. I think he drugged Nathan. Maybe he put it on his tummy or put drugs in his bottle. Then Nathan's eyebrows started turning blue. He got really cold. I'm sure the man I know drugged him. When I left I was going to get an Uber, then the Uber didn't have a capsule so I jumped on a bus. When I got on the bus I saw Nathan's lips were turning blue. I told the bus driver. Then he said he would stop the bus and call an ambulance. When I got off the bus I saw a strange man across the road so I asked the bus driver to wait with me.'" 1. The statement of the male ambulance officer confirms much of this material. I only wish to quote from [20] to [21] of his statement, after he arrived at Royal Prince Alfred Hospital. He says: "20. When we arrived at Royal Prince Alfred Hospital I spoke to the woman. She said to me, 'The baby was at a place where people were taking drugs. I wonder if somebody had given the baby something.' I said, 'What sort of drugs?' I don't recall what she said afterwards. The woman's demeanour was still vague just from her manner. She did not have much expression in her face." "21. During this time the woman called someone on her phone. She said, 'Did you give my baby anything?' She sounded a little bit angry. I heard her say, 'There is something wrong with my baby. We are at the hospital.' I heard her refer to the person with a name. I don't remember the name now but I gave the name to police at the hospital." 1. The statement of Senior Constable JG, has other paragraphs I wish to cite. She says: "The accused went on to tell Leading Senior Constable D that there had been drug use at the location. She spoke of a person who she thought had drugged the victim with a pin. She saw the pin had something white on it and she was convinced he had attempted to drug the victim. She knew he had drugged the victim as he was turning blue. The rash was as a result of an allergic reaction the victim had with the drug." (At [14]) "Whilst the accused was giving her version of the events she would keep changing topic and appeared to be having difficulties following instructions. The accused would stand and pace around the room bouncing the victim up and down or she would sit holding the victim in front of her making faces. I believe the victim was under the influence of an illicit substance." (At [18]) 1. And, finally, in Exhibit C, being the material in the police brief, the ED social worker at the hospital, makes the following notes: "I/V w/Pt mother. Mother disclosed drug use on scene at house tonight in Marrickville/Dulwich Hill. Mother denies using drugs or alcohol tonight. Mother disclosed concern that a male somehow affected Pt w/drugs and mother appears paranoid about this drug use and has asked ED staff, including SW to discard Pt formula and bottle." 1. She went on to say: "It is unclear as to whether Mother was drug-affected, if so, it was not obvious to SW…Welfare concerns for Pt and exposure to unsafe and inappropriate environment as well as consequential health implications. FACS notification made by police and SW…Mother is anxious and has been a poor historian this evening..." THE LAW 1. I think for the purposes of this hearing I need only refer to the decision in Re Tanya [2016] NSWSC 794 at [70]. 2. What I do wish to emphasise in this judgment is the requirement in the decision of Slattery J in Re Campbell that the finding in relation to restoration has to be made as at the day of the hearing, that is today. What may or may not eventuate in the next year or two years is not the point, and that is in the realm of s 90 of the Care Act. THE SECRETARY'S CASE 1. The Secretary's case, as articulated in the submissions of Mr Clarke, is to the effect that there is no realistic possibility of restoration of the child to the mother at the present time as a result of there being an unacceptable risk of harm. 2. He submitted that at the time of removal the mother was involved with a number of services supporting her to care safely for the child, and she had even, only the day before, undergone a first aid test. Nevertheless, her care, her perceptions, and her conduct, and her actions and omissions in relation to the critical incident I have referred to were extremely concerning. She took the baby to a place known to be inhabited by drug users, and there was in fact a known drug user at the premises, and she failed to remove the child from those premises in those circumstances. 3. The risk of that was made apparent by the subsequent events of the mother's fear of the child having been injected or infected in some way by drugs. 4. The second matter of concern was the rapid change in Nathan's appearance when he started to turn red and blue, and her irrational conduct from at least 11pm, which have been described as being disoriented and paranoid, and accounts given to ambulance officers and police officers, which she now in the witness box says were false. 5. And there is the damage to her credibility from the conflicting evidence she gave, that she did not genuinely take ownership for what occurred on that night, and that she failed to take appropriate steps to address what turned out to be tachycardia, coldness, high respiration and cyanosis. 6. Mr Clarke's point in particular was that all of this occurred at a time when the mother was in fact supposed to have been supported by numerous services. He submitted that although no drug use on that night by the mother herself was proved, what is clear is that her conduct was reckless, and involved a lack of proper care for the child. Although the mother conceded making a mistake in not calling the ambulance, what is concerning to the Secretary is there were in fact a series of mistakes. 7. The concessions of the mother were only reluctantly forthcoming, indicative of a failure on her part to take true ownership of her conduct on that night, and such that the Court could not be satisfied that the risks to the child from the mother in the future have been satisfactorily ameliorated at the present time. THE MOTHER'S SUBMISSIONS 1. On behalf of the mother Ms Reynolds submitted that the mother had, since the removal of her older children as a result of a domestically violent relationship and drug abuse, made massive changes in her life. She had ended that relationship, she had detoxed from her own dependency, she had secured suitable accommodation, and had undertaken a series of courses and programs. She has basically been drug free since late 2016, and notwithstanding the death of her father and of her ex-partner, did not relapse. What she achieved right up to the date of removal was a massive turnaround in her lifestyle. 2. The removal of Nathan was a devastating event for her, particularly having regards to the efforts she had made, and the competence that she had demonstrated as a mother. Indeed, it was submitted, the baby was thriving in the mother's care. The contact reports were positive, and she said: "The mother's affection, her attunement to his needs, and her caring and aware interaction between them is asserted to by all the people involved in her support". 1. As to the critical incident it was submitted that the mother was totally remiss on that day, placing the child at clear risk of dying. The mother, however, acknowledges that what she did was wrong, and has accepted that she made mistakes. I was referred to various examples of an early acceptance of those mistakes, in particular in the affidavit of the mother of July 17 at pages 75 to 76: "I've got to deal with that", and also in the clinical notes of the psychiatrist of August 2017: "Cannot believe she did this". It was submitted that these were examples of an early acceptance by the mother of her poor conduct on the night of the critical incident. 2. Ms Reynolds then referred to conflicting evidence between police and other authorities, including what the baby was wearing, and whether there were in effect other blankets and heavier clothing available for the child. She referred to the notes of the social worker that I have referred to, suggesting that the social worker did not appear to accept that the mother was drug affected on the day. Nevertheless she did concede that the social worker regarded the mother as acting in a frantic and panicky way. 3. It was submitted that the mother concedes there are things she could and should have done better, including attending to the signs of distress and illness Nathan was demonstrating that night, and that her judgment was poor, and that indeed she did make poor decisions. But to think that what occurred on that night could occur again is unrealistic given the adverse consequences to the mother and Nathan in respect of his removal. 4. The mother is willing to engage with any service that would assist with restoration of Nathan to her. Even though the child has been removed from her she has continued to engage with services. 5. Ms Reynolds then went on to address the issue of potential mental health issues, and submitted that the evidence in relation to them seems to suggest that they are not of sufficient gravity to militate against restoration. She submitted that a new Care Plan for restoration should be prepared within four weeks; alternatively a short term order for parental responsibility to the Minister should be made only for a period of two years. THE SUBMISSIONS OF THE INDEPENDENT LEGAL REPRESENTATIVE 1. I turn then to the submissions of Ms Wells, the Independent Legal Representative for the child, who supported the Department's position in relation to the issue of restoration. 2. She submitted that it was not just the attendance by the mother at courses and programs, the issue is about ensuring that the learnings from those courses and programs are manifested in practice. A lot of work has been done with the mother, but nevertheless she still made the poor decisions she did make on 3 to 4 June 2017. 3. It was submitted that there may indeed be some unresolved mental health issues, as evidenced by the mother's conduct on the evening in question, which was disoriented, confused, and irrational. 4. There is no satisfactory medical evidence about this issue, and the Court would benefit from further and better evidence in relation to this issue to enable it to be satisfied that the risks that might arise from the mother's mental health condition have indeed been appropriately and adequately addressed. 5. Ms Wells went on to submit that the housing arrangements proposed for the baby were uncertain. It is also uncertain whether or not her mother, that is the maternal grandmother, would or would not move in with the daughter, and no evidence had been presented by the grandmother on affidavit or otherwise, notwithstanding the mother was aware of the Department's concerns about her mother, the maternal grandmother, who has never been fully assessed as a carer, in particular given her own past issues with drug abuse. 6. Finally, Ms Wells submitted that there are ongoing criminal proceedings with charges that have more recently been upgraded, which will come to trial soon. The mother is at risk of incarceration as a result of those proceedings, which would involve Nathan being removed a second time if that were to occur. 7. Finally Ms Wells submitted that the mother needs time, (a) to deal with her criminal charges, (b) to address her potential mental health issues more comprehensively and convincingly, and (c) to demonstrate a more sustained period of stability and security. FINDINGS AND CONCLUSIONS 1. There are a number of factors in this case that contraindicate a realistic possibility of restoration at the present time. First there is the mother's conduct on the night of 3 to 4 June 2017. It is not just her reckless conduct that is of concern, but also her disoriented and irrational conduct later that Saturday night and Sunday morning. There is also what I regarded as her reluctance to take ownership of what occurred on that evening. I accept the submissions of the ILR that her conduct is indicative of possible unresolved mental health issues, and that the evidence in relation to that is incomprehensive and unhelpful in terms of being able to assess whether or not it does give rise to a risk of harm if Nathan were to be restored. 2. In my view the Secretary has established that further work in this area is required to satisfactorily address potential risk factors, or at least to ameliorate them to an appropriate degree. 3. Secondly, it is my view that 18 months from a detox for someone who has been a drug addict, or drug dependant, for as long as the mother had been, is an insufficient period of time to be absolutely certain that there will be no relapse that would be deleterious in terms of the issue of safety. In other words, having detoxed only in November 2016, it is now March 2018, that is an insufficient period in my view to be absolutely sure that there is no continuing unacceptable risk of harm, particularly in this case when it is coupled with potential unresolved mental health issues. 4. Thirdly, there are the serious criminal charges which could result in a period of incarceration for the mother. The risk of harm to Nathan by changing his present care arrangements, then potentially having to change them again in a few months' time is, in my view, unacceptable. 5. I also agree with the submissions that the proposal to live with the maternal grandmother, who has her own history of drug use, but did not put on any evidence and has not been assessed by the Secretary, is unsatisfactory. 6. Fifthly, there are issues of lack of insight: what I have already referred to as the mother's reluctance to take full responsibility for the incidents on the night in question. As I suggested at one point, the closest she seemed to get to was an acknowledgement that she made a mistake about taking Nathan out and keeping him out so late. She never once conceded, however, without pushing, that the deterioration in Nathan's condition should have been addressed much earlier in the night, and I still do not know how someone can spend 81 minutes on the phone to her girlfriend, with a baby nearby turning blue. 7. Finally, there was the lack of credit on the mother's part; I found her evidence totally unsatisfactory, particularly in relation to her story that she made up all of the things she said to the police officers and the ambulance officers. As I observed at one stage of the proceedings those accounts were quite elaborate which belies the suggestion that she was making them up at the time. 8. Her evidence was, by and large, evasive and given in a way that attempted to minimise her conduct rather than to take responsibility in a full way for what she did. 9. I accept and adopt the submissions of the ILR: The combination of these factors is such that, when taken together cumulatively, they satisfy me to the requisite legal standard, including the Briginshaw principle, that a restoration to the mother at the present time poses unacceptable risk of harm to Nathan, and therefore is not realistic. The mother needs to demonstrate a further longer, sustained period of drug abstinence and parental insight, and to address the issue of mental health concerns, before this baby could be restored to her. 10. During the course of the hearing, I did express some concern that the casework team had not satisfactorily addressed the potential for working with the mother to address her issues, short of removal, and for the mother to participate in the "evidence based intervention programs" proposed by the Department in the form of, "Multisystemic Therapy for Child Abuse and Neglect (known as MST-CAN), and Functional Family Therapy - Child Welfare (known as FFT-CW)", which the Department states will help 900 families in New South Wales per annum in the future. 11. To their credit, during the adjournment from December to March, the caseworkers investigated the availability of such therapy for this mother. In her affidavit of 16 March 2018, the caseworker stated the outcome of the inquiries at [12] to [18] which I refer to. "12. On 28 December 2017 I received an email from FFT Central Referral Unit advising that the mother had made contact with them to enquire about the program. The mother was advised that referrals needed to be made through FaCS. 13. On 7 February 2018 I emailed FFT Central Referral Unit to enquire if they service a particular area. 14. On 8 February 2018 it was advised that FFT in Edgeworth is within a 60 minute driving radius and they are contracted to the particular area in question. 15. On 12 March 2018 I sent an email to the Central Referral Unit confirming Edgeworth would be able to work with the mother at her current address. 16. On 14 March 2018 I called Central Referral Unit and spoke with Ms D. Ms D confirmed that she had spoken to the Edgeworth FFT program and they advised they were happy to work with the family even with the distance. Ms D said that there needed to be a plan of restoration to occur within 4 weeks for the referral to be accepted. Ms D advised she would look at the referral to see if it meets the criteria however would not send it for allocation until a restoration finding was made as funding starts as soon as the case is allocated. 17. On 14 March 2018 I sent a referral to the Central Referral Unit for Ms D to review. 18. On 15 March 2018 I received the following email from Ms D on behalf of the Central Referral Unit: "Hello. Thank you for the referral. I have reviewed the documents and the referral appears suitable for FFT-CW. Let us know what happens at court next week so we know whether or not to forward this referral to OzChild for their consideration. Please note, when you decide to proceed with the referral there must be a plan for the child to return home within 4 weeks. OzChild currently have vacancies to accept the matter."" 1. Whilst that evidence does not necessarily conform with my understanding of the Department's policy concerning FFT-CW and MST-CAN, the evidence of the caseworker was uncontradicted and it is clear that this mother would only be accepted into a program if this Court ordered a restoration within four weeks. For the reasons I have given, I do not propose to order a restoration at the present time. 2. I do, however, direct that my concerns in this regard be brought to the attention of Ms Rachael Ward and Ms Catherine Samuels, the Director of Child Protection at Family and Community Services. I also contemplated the possibility of making short term parental responsibility orders of up to a period of two years only. This would have had the effect of putting the onus on the Department to work with the mother towards a restoration in the short term and requiring the Secretary to bring a s 90 Application in due course if that proved to be unviable, as opposed to the more traditional process of requiring the parent to demonstrate a significant change of circumstances and bring her own application under s 90. 3. I was persuaded, primarily by Ms Wells, that there remain too many ongoing uncertainties in relation to this mother for that to be an appropriate course of action for the Court to take. CONTACT 1. It was submitted for the mother that in the event that I find that restoration is not realistic at the present time, the mother would like to continue to enjoy the current level of contact of twice a week. I observe firstly that there is nothing to prevent more contact than the Care Plan provides, which is only a minimum regime. 2. Unfortunately, the evidence before me failed to address this issue in any focused or detailed way. 3. What is apparent, however, is that there is ongoing friction between the mother and the paternal grandparents who are caring for the older children and who will care for Nathan. In an ideal world this friction might be addressed such as to enable the mother to have frequent contact with Nathan and her other, older children. Given the issues to which I have referred above, I do not propose to make any specific contact orders today. I note that the Care Plan sets out a minimum regime and carves out parental responsibility for contact in favour of the Minister to the exclusion of the paternal grandparents, the carers. 4. I note also that the mother has indicated a willingness to fund supervision of contact to the tune of $400 a visit, that is $800 a month, and I hope that that will be taken into account in the medium term, in terms of the contact that the Department arranges for Nathan with his mother. The Department should also be cognisant of the submission made on behalf of the mother, with which I agree, that if there is to be a restoration it is in the child's interests to continue to have a close relationship with his mother and to enable attachment to develop to the fullest extent the circumstances permit. 5. The question of contact is an issue that can be addressed in the fullness of time, and if necessary with an application for specific contact orders, pursuant to s 86 of the Care Act. Otherwise, having regard to this Court's Contact to Guidelines and other judgments I have given on this issue in relation to contact, that decisions around contact should remain the remit of the person with parental responsibility, in this case the Minister, unless circumstances are clearly demonstrated that require the Court to make a different decision. DISPOSITION 1. For all the reasons given, I find that there is at the present time no realistic possibility of restoration to the mother. I note that the father is deceased. I have considered the permanency planning proposed which includes the allocation of parental responsibility and placement, contact, and, in this case, the Aboriginality of the child in compliance with the principles in ss 11 - 13 of the Care Act. I am satisfied the permanency planning has been appropriately and adequately addressed. 2. I will, therefore, make the final Care orders sought by the Secretary. ********** 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: 16 May 2018