District Court New South Wales Medium Neutral Citation: DHK & Anor v Secretary, Department of Family and Community Services & Ors [2018] NSWDC 221 Hearing dates: 15 – 18, 28 July; 22 September; 9 – 12, 16 – 17 October 2017; 9 February; 19 – 23, 26 – 27 March; 5, 17, 19 – 20 April; 1, 10 – 11, 21 – 22 May; 1 June; 27 July 2018 Date of orders: 10 August 2018 Decision date: 10 August 2018 Jurisdiction: Civil Before: Montgomery DCJ Decision: See [566] Catchwords: CHILD WELFARE – care and protection of children – care and protection orders – appeal from Children's Court to District Court – challenge to Children's Court order placing child under parental responsibility of Minister until aged 18 years of age Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW) Evidence Act 1995 (NSW) Cases Cited: In the Matter of Campbell [2011] NSWSC 761 Re Henry; JL v Secretary Department of Family and Community Services [2015] NSWCA 89 Saunders and Morgan and Anor v Department of Community Services [2008] CLN 1 VV v District Court of New South Wales [2013] NSWCA 469 Category: Principal judgment Parties: DHK (First plaintiff) RS (second plaintiff) Secretary, Department of Family and Community Services (first defendant) Independent Legal Representative for SHK (second defendant) UL (third defendant) Representation: Counsel: DHK (in person) RS (in person) Mr C. McGorey of counsel (first defendant) Mr P. Braine of counsel (second defendant) UL (in person) File Number(s): 2016/299201 Publication restriction: Pursuant to s 7 Court Suppression and Non-Publication Orders Act 2010 (NSW) information tending to reveal the identity of or otherwise concerning any party in the proceedings or any person who is related to or otherwise associated with any party in the proceedings is supressed. Decision under appeal Court or tribunal: NSW Children's Court Jurisdiction: Care and Protection Date of Decision: 21 April 2015 Before: Haskett CCM Judgment Statutory Framework 1. Section 69 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) ('Care Act') confers on the Children's Court after a care application is made, a discretionary power to make an interim order allocating parental responsibility for a child or young person before the application is finally determined (s 69 (1)). The Court can make an interim order prior to determining whether the child or young person is in need of care and protection, if the court is satisfied that it is appropriate to do so (s 69(1A)). When seeking an interim order the secretary has the onus of satisfying the Court that it is not in the best interests of the safety, welfare and well-being of the child or young person that he or she should remain with his or her parents or other persons having parental responsibility: s 69 (2). The order so made is a "Care Order" as defined by s 60. The Children's Court should not make an Interim Care Order unless it has satisfied itself that the making of the order is necessary, in the interests of the child or young person, and is preferable to the making of a Final Order or an order dismissing the proceeding: s 70A. 2. Section 79 of the Care Act confers on the Children's Court a discretionary power to make an order allocating parental responsibility for a child or young person to persons specified in that section, including the Minister. The Children's Court made Final Orders on 9 September 2016 in respect of SHK. That order was a "Care Order" as defined by s 60 and a "Final" order as referred to in s 62. 3. A Care Order may be made on the alternative bases of: 1. The child or young person is in need of care and protection (s 71 and 72); or 2. Even though the child or young person is not then in need of care and protection; the child or young person was in need of care and protection when the circumstances that gave rise to the care Application occurred or existed, and the child or young person would be in need of care and protection but for the existence of arrangements for care and protection of the child or young person made under s 49 (care of child or young person pending care proceedings), s 69 (Interim Care Orders) or s 70 (other interim orders): s72; VV v District Court of New South Wales [2013] NSWCA 469 at [20]. 1. Once satisfied of either of those two conditions enabling the making of a final Care Order, the court must consider a Care Plan (the contents of which are prescribed by s 78) presented to it by the Director-General: s 80. The Director-General is required to submit a "Permanency Plan": s 83. Whether that Permanency Plan involves restoration of the child or young person to the parents or not depends on the Director-General assessing, pursuant to s 83(1), whether there is a "realistic possibility" of restoration to the parent or parents, having regard to the matters in s 83(1)(a) and (b). 2. The court must decide whether or not to accept the assessment of the Director-General regarding restoration: s 83(5). In doing so, the court considers for itself the matters in s 83 (1) (a) and (b) employing what is meant by "realistic possibility" as explained by Slattery J, in In the Matter of Campbell [2011] NSWSC 761. If the court does not accept the Director-General's assessment, then it may direct the Director-General to prepare a different Permanency Plan: s 83(6). The court must also consider the potential inhibition created by s 83(7) which precludes the making of a Final Order unless the court has made express findings on the Permanency Plan provided to it by the Director-General in accordance with the legislation. The findings which the court must expressly make are set out in s 83(7), as follows: (a) that Permanency Planning for the child or young person has been appropriately and adequately addressed, and (b) that prior to approving a Permanency Plan involving restoration there is a realistic possibility of restoration having regard to: (i) the circumstances of the child or young person, and (ii) the evidence, if any, that the child or young person's parents are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care. 1. The court must not make an order allocating parental responsibility under s 79(1) unless it has given particular consideration to the permanent placement principles and is satisfied that the order is in the best interests of the child or young person: s 79 (3): see VV case supra. 2. The permanent placement principles are set out in s 10A and are to be applied, relevantly, as follows: In this Act: (1) "permanent placement" means a long-term placement following the removal of the child or young person from the care of a parent or parents pursuant to this Act that provides a safe, nurturing, stable and secure environment for the child or young person. (2) Subject to the objects in section 8 and the principles in section 9, a child or young person who needs permanent placement is to be placed in accordance with the permanent placement principles. (3) The "permanent placement principles" are as follows: (a) if it is practicable and in the best interests of a child or young person, the first preference for permanent placement of the child or young person is for the child or young person to be restored to the care of his or her parent (within the meaning of section 83) or parents so as to preserve the family relationship, (b) if it is not practicable or in the best interests of the child or young person to be placed in compliance with paragraph (a), the second preference for permanent placement of the child or young person is guardianship of a relative, kin or other suitable person, (c) if it is not practicable or in the best interests of the child or young person to be placed in accordance with paragraph (a) or (b), the next preference is (except in the case of an Aboriginal or Torres Strait Islander child or young person) for the child or young person to be adopted, (d) if it is not practicable or in the best interests of the child or young person to be placed in accordance with paragraph (a), (b) or (c), the last preference is for the child or young person to be placed under the parental responsibility of the Minister under this Act or any other law, 1. In this case SHK was discharged from hospital into placement with long-term foster carers and remained in that placement under the parental responsibility of the Minister at the time of hearing. The long-term foster parents did not seek adoption of SHK. 2. In so far as "realistic prospects of restoration" under s 83(7) may result in an order approving a Permanency Plan, the whole of the child's situation, including any aspects of the situation in which the child is placed, the setting in which he or she is living and the influences bearing upon his or her well-being and potential harm must be considered: Re Henry; JL v Secretary Department of Family and Community Services [2015] NSWCA 89, per McColl JA at [43]; "The court must assess at the time the application is before it whether there is a "realistic possibility of restoration", that is to say, whether 'the possibility of restoration is real or practical [and not] … fanciful, sentimental or idealistic, or based upon "unlikely hopes for the future'": at [44]. 3. The evidence must establish, in order for DHK to succeed in achieving a restoration order, that the test of "realistic possibility" explained by Johnstone DCJ (now Chief Judge of the Children's Court) in Saunders and Morgan and Anor v Department of Community Services [2008] CLN 10, further developed by Slattery J in In the Matter of Campbell [2011] NSWSC 761 and approved in Re Henry and VV Cases supra, is satisfied. Johnstone DCJ said: [13] There are aspects of a "possibility" that might be confidently stated as "trite". Firstly a possibility is something less than a probability; that is, something that it is likely to happen. Secondly, a possibility is something that may or may not happen. That said, it must be something that is not impossible. [14] The section requires, however, that the possibility be "realistic". That word is less easy to define, but clearly it was inserted to require that the possibility of restoration is real or practical. It must not be fanciful, sentimental or idealistic, or based upon "unlikely hopes for the future. 1. In In the matter of Campbell supra, Slattery J reasoned (at [56]): … What Johnstone DCJ says in paragraphs [13] and [14] is, in my view, with respect to his Honour, correct and is about all that can usefully be said about the expression "realistic possibility". It is going too far to read into the expression a requirement that an applicant must always at the time of hearing of the application for rescission or variation have demonstrated participation in a program with some significant "runs on the board". That in my view is to put a gloss on the words which are not in the legislation. 1. What Slattery J at [56] was referring to as "runs on the board" is a reference to an earlier part of the passage in the reasons of Johnstone DCJ where His Honour commented upon the then Senior Children's Magistrate Mitchell's reasons at first instance, that "realistic possibility" required the court to be able to see that "the parent has already commenced a process of improving his or her parenting, that there has already been significant success and that the continuing success can confidently be predicted." 2. In this case, it is helpful to refer to the Objects and Principles set out in ss 8 and 9, respectively, of the Care Act. Pursuant to s 8(a) the court is to have primary regard for the receipt by children and young persons of such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them. Section 8(a) requires the court to recognise that the primary means of providing for the safety, welfare and well-being of children and young persons is providing them with long-term, safe, nurturing, stable and secure environment through permanent placement in accordance with the permanent placement principles (s 10A(3) above). Section 8(b) demands that an environment free of violence and exploitation is prioritised and that services fostering their health, developmental needs, spirituality, self-respect and dignity is provided by all institutions, services and facilities responsible for the care. Section 8(c) requires that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment. 3. To put it beyond doubt, s 9(1) provides: "this Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount". Relevantly, s 9(2)(c) provides that in deciding what action it is necessary to take in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child's or young person's development. Procedural History Preceding Appeal 1. SHK, a daughter, was born to DHK on 28 December 2014 at St George Hospital. The biological father was UL. The birth was by unplanned caesarean section. Whilst mother and child remained in hospital, on 30 December 2014 the parents entered into a Temporary Care Arrangement ("TCA") with the Secretary. The Secretary's child protection concerns were of domestic violence and parental illicit drug use. SHK was born with a blood and faecal chemistry describing exposure to parental cannabis consumption. Following a short continuance of the arrangement SHK was placed with foster carers, according to further TCA's. 2. On 18 February 2015 the Department received emails from the parents notifying it of their withdrawal from the TCA. Both of the parents emails attached a letter signed by them and RS and GL. The letter was drawn by RS. The content of the letter which purported to state the position of the parents is considered later in these reasons. The letter included a Proposal for Voluntary Care Agreement to which the parents and RS and GL, by their signatures, offered to commit. The viability of that alternative arrangement must be considered in the context of the evidence of circumstances at that time. 3. On 19 February 2015 the Secretary deemed that SHK would be at risk of harm as the child protection concerns had not been addressed by the parents and the Secretary's delegate held concerns for placement of the child with RS. RS was then and remains a influential figure in the lives of DHK and UL. The Secretary assumed care of SHK. The "Reasons for the assumption of care responsibility of child" set out in the Order dated 19 February 2015 reads as follows: - concerns for parents drug use and no demonstration of engagement with D & A services. Parents continue to have positive urinalysis for cannabis admitted daily use. - concerns for parental domestic violence and no demonstration of engagement with domestic violence services. - concerns that parents want to make arrangements with a person which appears to represent an illegal adoption [that person was RS]. 1. The Secretary proceeded by Application Initiating Care Proceeding filed 24 February 2014 (Exhibit 1). The Application sought an interim order allocating parental responsibility of SHK to the Minister and Final Orders allocating parental responsibility of SHK to the Minister until she attained the age of 18 years. On 26 February 2015 the Children's Court at Parramatta made interim orders allocating parental responsibility for SHK to the Minister. 2. Exhibit 2 is the Departments Summary of the Proposed Plan for the Child or Young Person filed in the Children's Court. It is dated 19 March 2015 ("March 2015 Plan"). The March 2015 Plan provisions described the status of the Departments consideration of Restoration in the following terms: at present Community Services would not be recommending restoration to the parents. Whilst the parents have expressed a willingness to work with Community Services and engage in support services to address the identified concern, they have not made progress towards engaging with support services and therefore, there is no significant change demonstrated by the parents. [bold added]. 1. The passage in bold above is centrally important in the determination of all issues in these proceedings for two reasons: 1. Until assumption of SHK on 19 February 2015 the Department had been endeavouring to assist DHK and UL to achieve restoration and for that purpose the Department directed them to services whilst SHK, pursuant to the TCA, remained in the care of foster carers through Life Without Barriers; and 2. The department's opposition to Restoration remained, fundamentally, during this Appeal, that DHK had not demonstrated progress of engagement in services required to redress the risk factors observed by the Department, including: consumption of cannabis; domestic violence in the domestic environment of a child; mental health issues and parenting skills. 1. The March 2015 Plan listed the following performances required of DHK by the Department for there to be viability of restoration: 1. DHK to undertake a Drug and Alcohol Assessment, and follow any treatment plans and recommendations. 2. DHK to attend random urinalysis screenings as directed by Community Services, and maintain abstinence from illicit drug use. 3. DHK to engage with a Family Preservation and/or Restoration Service. 4. DHK to actively engage with domestic violence counselling/program as deemed appropriate by the Secretary, and demonstrate an understanding of the impact of domestic violence on children. 5. DHK to demonstrate protective action by immediately informing NSW Police and officers of the Secretary if UL assaults, molests, harasses, threatens, intimidates or otherwise interferes with DHK or SHK. 6. DHK to participate in a parenting course such as Triple P and/or a residential facility such as Tresillian/Karitane. 7. DHK to attend contact consistently, and feedback from contact reports is positive and demonstrates DHK's ability to meet SHK's physical and emotional needs. 1. The March 2015 Plan also listed performances required of UL by the Department for there to be viability of restoration to him. 2. The Secretary's requirement of this list of performances by DHK remains at the heart of the consideration of her application for Restoration. In particular, on 17 October 2017 the appeal was adjourned part heard until 19 March 2018 in order to permit DHK to demonstrate her commitment to what were essentially those same performances. 3. Contact was reduced on 26 March 2015 from twice per week to once per week because of the parents inconsistent compliance with contact appointments. 4. On 21 April 2015 the Children's Court found that SHK was in need of care and protection. DHK conceded the finding on a without admissions basis. At that hearing, UL conceded that when born SHK was in need of care and protection: Transcript, 21/4/2015 page 7, line 26. 5. He informed Her Honour that the parents sought placement with RS. He referred to RS as "my next of kin in spades": transcript, 21/4/2015, page 8, line 50. UL pressed a private Care Agreement which he described as providing for DHK to reside with RS where DHK would care for SHK with stability, a roof over her head and not have to worry about financial stress. In the meantime DHK and UL would engage in all services that they need to in order to fulfil the Department's recommendations and requirements for restoration and would have time to do so without UL being pressured to take time off work. In that way those commitments could be completed in a manageable timeframe rather than within one or three months as proposed by the Department. He explained the private Care Agreement would run for up to 12 months whilst the parents "get our lives back together". 6. UL answered affirmatively to Her Honours enquiry whether he and DHK wanted restoration of SHK to their care within 12 months: transcript, 21/4/2015, page 9, line 10 – 27. UL informed Her Honour: "ultimately, I think that the mother wants to raise our daughter more than me and if it comes down to it I would support her taking [SHK] over me". If they were not able to restore their relationship and jointly care for SHK, UL would support restoration to DHK: transcript, 21/4/2015, page 9, line 44. UL and DHK were not legally represented. I accept that they did not intend to concede establishment. 7. DHK sought restoration to herself only. RS was not permitted to appear. Whilst expressly not making any findings or criticisms of the parents but in order for there to be investigation of the question and realistic possibility of restoration to DHK, Her Honour adjourned the matter to permit the opportunity to obtain a report from psychiatrist Dr Bowes. The matter was adjourned to 5 May 2015 for the Secretary and DHK to obtain, if possible, a psychiatric assessment of her and for consideration of the need for a clinical report. A report of Dr Bowers was never obtained. 8. It was a significant step when on 2 June 2015 the Department filed a revised Care Plan (Exhibit 3). At that time DHK and UL had contact once per week for two hours. Their attendance had been less than consistent. Their contact with SHK was appropriate. The revised Care Plan significantly proposed "Long term care with the view to adoption." It proposed adoption by the foster carers. The Department's view was that "such a placement will provide [SHK] with consistency, stability and permanency." The Department's denial of 'realistic possibility' of restoration was based on DHK and UL having not engaged with domestic violence services or services to support them to reduce their drug use and develop their parenting capacity. 9. On 14 July 2015 the Children's Court heard an application by RS and his wife, GL, that they be joined as parties to the proceedings on the basis that they were persons with a genuine concern for the safety, welfare and well-being of SHK: s 98(3) Care Act. 10. In that hearing the parents' legal representatives confirmed that they sought restoration to them. RS and GL confirmed that they supported the parents' application for restoration. The Department's opposition to the joinder included a statement by its solicitor with reference to RS seeking adoption. The Department for present purposes succinctly described its concern for the impediment caused by RS to restoration of SHK to her parents or either of them. 11. The influence of RS was not a side wind to the investigation of direction of services toward restoration during January and February 2015. It was a tempest. The evidence plainly shows that RS was beyond abrasive; he was intimidating and obstructive in his dealings with the Department. Whilst his motivation included – as he saw it – concern for the welfare of SHK, the evidence shows, when the issue of establishment is investigated in these reasons that, he effectively (if unwittingly) sabotaged what prospect there might have been of achieving restoration without resort to court process. 12. Having considered all of the evidence, including the new evidence, I find the solicitor's summary before the court on 14 July 2015 of the Department's position to remain accurate of its position throughout and for that reason I quote substantially: Secondly the genuine concern arises from us, we understand from the beginning of this matter from [RS] wish to have the child placed with him or be adopted. This genuine concern does not arise from any other issue in respect of the child.... More importantly though if [RS] has a genuine concern for the safety and welfare and well-being of the child [RS] should have [at the] time when the parents have signed a temporary care agreement and [when] the Department's decision at the time was to restore the child to the parents care without commencement of any court proceedings he should have actively supported the parents in the best interest of the child for the child to be restored to the parents.... at that stage your honour the view of the Department was that without the commencement of the proceedings there were certain steps that the parents needed to take and the Department was willing to support the restoration or placement back of the child into the parents care... So, it is a bit ironical to come to this Court when the proceedings are already pending, when they didn't… have the parents engage with the Department and actively [seek] restoration of the child, to come today to this court and say, "I want""," I am supporting the parents for the restoration [transcript, 14/07/15, page 14, lines 18 – 46] …. If [RS] is joined [RS] would then run the issue of having the interim orders on the guardianship, presumably guardianship if he still wants the child. If the parental responsibility orders that he is going to seek there is going to be an issue clearly about the irretrievable breakdown in the relationship between the Department and [RS] and the capacity of [RS] to work with the Department for the best interests of the child. [transcript, 14/07/15, page 15, lines 9 – 14]. 1. The solicitor for UL sought that in the event of a finding of restoration, SHK be placed with RS and GL: transcript, 14/07/15, page 5, line 20. The solicitor for UL supported the joinder of RS and GL on the basis that relations between the Department and RS were so poor that it would disadvantage UL if the evidence of RS was in UL's case as opposed to being separately in the case brought by RS: transcript, 14/07/15, page 7, line 20. The solicitor for DHK supported the joinder of RS and GL on the basis that whilst the factual matters promoted by RS and GL were aligned with the case of DHK, there was potential that if things did not necessarily align in the future, that would create an irretrievable breakdown in relations to the mothers opportunity to confer with the Department: transcript, 14/07/15, page 10, lines 40 – 50. UL's solicitor indicated that he would not advise his client to file material from RS because of this rift and its potential for impacting negatively on the relationship between UL and the Department. 2. Her Honour found that RS and GL did have genuine concern for the safety, welfare and well-being of SHK. RS and GL were refused joinder to the proceedings; Her Honour rejected the application in the exercise of her discretion that it was not necessary for the joinder against the balance of convenience and cost in the conduct of the litigation. She decided that the information from RS and GL could be submitted through their being witnesses in the parents' case as they were reportedly supporting Restoration to the parents. 3. During 2015 the relationship between UL and DHK was unsettled. To the extent that it is necessary to do so, these reasons will go to detail. 4. On 1 September 2016 the Department filed an Addendum to Care Plan. At that time DHK and UL had separate contact with SHK once per month on alternating fortnights for two hours. The Addendum stated "this is due to a breakdown in [DHK] and [UL]'s relationship since January 2016." 5. The hearing of the Application for Final Orders was heard in the Children's Court over eight days between 18 November 2015 and 15 April 2016. RS was not a party. RS was a witness whose evidence was introduced in the cases of the parents, although, technically, it was read in UL's case: transcript, 15/10/16, pages 1 – 2. 6. At the commencement of the hearing the learned Magistrate understood that DHK supported that parental responsibility for SHK remain with the Minister and that UL proposed that SHK be placed in the care of RS and GL. During evidence in this appeal UL and DHK independently gave evidence explaining that they were not, at the commencement of the Children's Court hearing, conceding that there would not be a realistic possibility of restoration to DHK. Their evidence is that in the original hearing and in this appeal, it would be unsafe for SHK to come into the care of UL. They say otherwise that there was some failure of instructions or legal representation of the position of DHK in regard to Restoration: UL: transcript, 17/04/18, page 900, lines 23 - 46; DHK: transcript, 21/03/18, page 510, line 50 – page 511, line 19. 7. On the seventh day of the original hearing DHK and UL changed their positions. From that point UL changed from seeking placement with RS and GL to seeking parental responsibility be allocated to the Minister. At the same time, DHK changed her position from supporting that parental responsibility continue with the Minister to advocating for parental responsibility to be allocated to RS and GL. 8. On 15 April 2016 the evidence was completed and the parties were directed to deliver written submissions by 24 June 2016 and any written submissions in reply by 3 August 2016. Her Honour reserved judgement to 10am, 9 September 2016. 9. On 9 September 2016 UL was late to court before Her Honour, just as he was habitually late during the course of these appeal proceedings. DHK attended when the matter was called. Typical of his performance through these appeal proceedings, UL telephoned the Children's Court at 10:15 AM to advise that he would be 10 minutes late. He was eventually half an hour late. Again, in accordance with his typical performance during these appeal proceedings, on his arrival for Her Honour to deliver final judgement, he sought to file fresh written submissions claiming that he had been unable to do so because his computer "was broken": transcript. 9/09/16, page 3, line 31. It should be borne in mind that UL is a computer technician and that approximately five weeks had passed since the due date for the written submission. Typical of the difficulty experienced during this appeal when dealing with UL's non-compliances, interjections and really with almost any point in regard to which he was not to get his way; he persisted over Her Honour's refusal to accept the late submissions for what occupies five pages of transcript: transcript, 9/09/16, pages 3 – 8. 10. Her Honours reasons for Final Orders on 9 September 2016 show that these appeal proceedings are not a rehearing of the contest at first instance but rather a different case. The proceedings below concerned an application by the Department for parental responsibility to the Minister and the competing application for placement of SHK with RS and GL. Her Honour delivered judgement on the basis of her understanding that UL and DHK had conceded that there was no realistic possibility of restoration to either of them: transcript, 9/09/16, page 8, lines 5 – 7 and Judgment page 8, line 49 and page 19, line 14. 11. Her Honour identified the single issue before her for determination to be: "whether it would be more appropriate to place [SHK] in the parental responsibility of [RS] and [GL] until [SHK] attains the age of 18 years.": judgment, page 19, lines 21 – 23. 12. Whilst there is doubt as to whether Her Honour was adequately and accurately informed in those proceedings that DHK did not concede that there was no realistic possibility of restoration to her; the learned Magistrate did not have the opportunity to consider in substance that result. In these proceedings it is restoration to DHK which she seeks and which is supported by RS and formally supported by UL. 13. GL has since been removed as a party, she no longer wishing to participate. 14. For completeness, Her Honour did note on 9 September 2016, that UL wanted a "sort of restoration" over a two-year period in order for himself and his mother ("MT") to address issues of concern for the Department in regard to the safety of SHK in their care. UL clarified his final position to be that he sought a short-term order for two years to allow himself and DHK to address their issues and then have restoration transitioned over a period: transcript, 9/09/16, page 3, line 38 - 46. But Her Honour's realisation in that regard came from the late submission which UL attempted to hand-up at the listing for judgment. It was not a result contemplated by her during the running of the hearing or in her judgment. 15. Because of the application for placement with RS, Her Honour's reasons for judgement focus largely upon the behaviour of RS. Her Honour found: "it is clear that the behaviour of [RS] throughout these proceedings and in his interaction with the Department indicates that he regards himself to be entitled to assume care responsibility for [SHK] and ultimately to adopt her.": judgement, page 10, line 48. Her Honour considered the failure of the kinship applications made by RS and GL during 2015: judgement, page 12 – 14. 16. For the purposes of s 79(3) of the Care Act, Her Honour found that [RS] "did not come across as a suitable person to care for [SHK]": judgment, page 18, line 40. 17. Her Honour did not have the benefit of a specialist clinician report. In these appeal proceedings the evidence of clinical psychologist Ms Starkey dated 19 September 2017 (updated without change of opinion) as well as her oral evidence is important. 18. In short, the proceedings in the Children's Court did not assess the suitability of DHK for parental responsibility or the realistic possibility of restoration of SHK to her parental care. 19. The learned Magistrate delivered reasons and Final Orders allocating parental responsibility for SHK to the Minister until she attains the age of 18 years. The Nature of this Appeal 1. DHK as plaintiff appeals pursuant to s 91, Care Act from the Final Orders of the Children's Court made on 9 September 2016. 2. By prior order of the District Court of New South Wales, RS had been joined as a party. He is the Second Plaintiff. UL is the Third Defendant. 3. The hearing was conducted in a 'closed court' pursuant to s 104 B, Care Act. 4. Parties are identified in these reasons by initial for anonymity as provided for by s 7 Court Suppression and Non-publication Orders Act 2010 (NSW) and s 105, Care Act. 5. Mindful of the practices and procedures set out in SL v Sec Department of Family and Community Services [2016] NSWCA 124, the Independent Legal Representative for SHK was joined as Second Defendant pursuant to ss 99, 99A, 99B and 99D, Care Act. In addition, this procedural step provided continuity given the joinder of the Independent Legal Representative in the Children's Court proceedings. 6. In this appeal the court has all the functions and discretions of the Children's Court and the decision of this Court in respect of the appeal is taken to be a decision of the Children's Court and has effect accordingly: ss 91 (4) and (6), Care Act. 7. The significance of RS, in the dynamics interpersonally between the parents and interpersonally between the parents and Caseworkers of the Department, should not be underestimated. During the course of the proceedings I commented that his involvement was like a "fence" over which I had to reach, in order for the court to have the best opportunity of observing DHK in what in this Court was her application for restoration. 8. A further dynamic of substance in the consideration of the issues in this appeal is the hard driven animosity between the imposing and relentless RS and UL. I do not propose to distract these reasons by engaging in an in-depth exposition of that. It is an interpersonal dynamic observed and assessed by Ms Diane Starkey, clinical psychologist in her report dated 19 September 2017 annexed to her affidavit made 19 September 2017. 9. During the course of the proceedings it was necessary to contain the approaches and interjections, as well as the in court conduct of RS and UL so as not to permit distraction and so as to conduct the proceedings as efficiently and cost effectively as possible in circumstances where each of RS, UL and DHK were not legally represented. This Appeal 1. By Summons Seeking Leave to Appeal filed 7 October 2017 DHK as plaintiff appeals against the Interim Orders and the finding of the Children's Court on 21 April 2015 that SHK was at risk and against the Final Orders made 9 September 2016 allocating parental control to the Minister. DHK seeks restoration of parental responsibility of SHK to herself and that the court accept Undertakings pursuant to s 73 Care Act from RS, GL and DHK. 2. In the Interim Orders (establishment) appeal, the Summons particularises several claims of error of fact in the determination of the Interim Orders. The substance being: 1. That DHK planned to take SHK to reside with her at the home of RS and GL, to which she had moved prior to the birth; whereas the "establishment was made based on the assumption that [UL] was going to take the child back to Arncliffe [where UL and DHK had cohabitated] but records show this is not correct": ground 1; and 2. The Department failed to check the usual residential setting of SHK before taking action pursuant to s 36(1)(a) Care Act placing SHK in foster care; in that the Department did not check to find that the correct usual residential setting would be the home of RS and GL: ground 7. Then, following assessment finding that it was suitable for SHK to be placed with DHK at the home of RS and GL, the Department refused to return SHK: Ground 8. 1. Ground 5 states that DHK had come "to the conclusion I couldn't provide stability for a child by myself, [d]ue to lack of financial stability, housing support and the issues I was having with [UL]." 2. Grounds 9, 10, 11 and 12 allege that DHK's interests were not represented in the final hearing due to her lawyers quitting her in the course of the hearing. Otherwise, the complaint is that the final hearing below "was mostly about [RS]". 3. It is fundamentally important in order to understand the relief sought by DHK, that one grasp the dynamic of the powerfully distracting imposition of the presence of RS. On the whole of the factual evidence and consideration of the procedural history, that imposition and distraction is apparent. RS does not see it or acknowledge it. 4. The conduct of RS toward the Department since 11 February 2015 has been intimidatory and on occasion threatening. In the course of the proceedings he was issued a Certificate pursuant to s 128 Evidence Act in regard to his evidence of communications made by him directed to Caseworker, Ms Eisenhower, in 2017 in particular. 5. An objective review of the evidence of those communications identifies that RS inserted himself wherever and whenever he could into the dealing of the Department with UL and DHK. His involvement was plainly obstructive and perhaps destructive of the opportunity which UL and DHK (or, upon UL's reluctance to accept the responsibilities of fatherhood, then DHK alone), had to receive the benefit of services through the Department toward maintaining parental care of SHK. 6. From 16 February 2015, the date on which RS was informed that the Department refused placement of SHK with he and GL, he relentlessly pressed the contest for that placement in a course of litigation over three years which in my opinion was unnecessarily aggressive and maintained the focus of all parties away from consideration of restoration to DHK. 7. A significant consideration of Caseworkers and of the court must be directed to the effect of RS on the environment of SHK were she to be restored to the parental care of DHK. Exhibit 14 is the kinship assessment reports. The learned Magistrate's reasoning for Final Orders referred to RS' applications to be joined to the proceedings and as to rights of kinship. Her Honour determined that he did not qualify under the Care Act as kin. 8. The Department did not value RS' claim to be kin to SHK highly on account of him having only known UL for approximately two years and DHK for approximately eight months. 9. It is also important to understand that the influence of this dynamic was added to by the claims of UL. In January and February 2015, his reluctant support of receipt by himself and DHK of services offered by the Department following the birth of SHK, his discomfort with affording the financial obligations of fatherhood as well as his opposition to DHK in the proceedings add another blind to the subject of present consideration being assessment of whether restoration to DHK is a realistic possibility. 10. In this appeal, albeit his position is to support DHK's application for restoration, his approach to the evidence has in my assessment been not short of maliciously against DHK. To select four examples of this approach in the litigation which expose his manipulative and controlling focus upon DHK, I refer to: 1. His attempts to get into evidence gossip value allegations of hard drug use by DHK in 2016, connected to his jealousy of her being with a different male partner; 2. His domestic violence directed toward DHK, in particular, his fracturing bones in her face by head-butting her on 14 October 2015; 3. His unfounded allegations made to Ms Starkey of DHK prostituting herself with male partners including himself in order to secure accommodation and financial support; and 4. His personal contest with RS including an unhealthy focus on their competition for influence over DHK (recognised by Ms Starkey in oral evidence). 1. These distracting dynamics of over play of RS and UL pervade the factual and procedural history considered in this appeal. A portion of these reasons will address those dynamics. For present purposes I agree with the following observation of Ms Starkey made at [343] of her report, she then having reviewed all of the evidence and the transcript in the Children's Court proceedings and the evidence in this appeal up to 19 September 2017: The primary issue to be addressed…is the capacity of the mother…to provide appropriate, protective care for her daughter. This should perhaps have been the focus all along, including their baby. Unfortunately the focus of the child protection intervention and court proceedings shifted from this primary issue as a result of RS' insertion of himself into the forefront of any interactions between the parents and Community Services. 1. Of the eight days of the Children's Court hearing for Final Orders, RS was in evidence for five. 2. DHK is ambivalent about pressing the establishment issue. It is pressed by UL and RS: transcript page 789. 3. This appeal hearing occupied 24 days, including 17 days of oral evidence and documentary evidence tendered by selection from within a court bundle and affidavits composing approximately 11 lever arch folders. 4. When this appeal first came before me on 18 May 2017 I made a list of orders including directing restoration of fortnightly contact between SHK and DHK, monthly contact between SHK and UL, for uranalysis of the parents, for the obtaining of a specialist paediatrician report as to the health of SHK and a specialist clinicians report (ultimately written by Ms Starkey, clinical psychologist). 5. The matter was listed for hearing to commence 9 October 2017. 6. On 25 September 2017 I directed DHK and UL to attend for uranalysis on 24 hours' notice from the Department and discontinued the involvement of GL as the third plaintiff. 7. At the commencement of the hearing on 9 October 2017 each of DHK, UL and RS were, as they have been throughout the hearing, not legally represented. Counsel for the Department delivered to the court approximately six lever arch folders of evidence, not including affidavits of RS and DHK or documents obtained on subpoena. I informed the parties that the hearing would proceed on the understanding that the folders would be MFI 1 and that I would not be reading evidence or going to evidence unless a party directed me to what I was to read in order to consider their case. This included identification of the material to be considered amongst the exhibits to affidavits read: transcript page 4, lines 28 – 34. Each of the parties delivered short written submissions commenting on Ms Starkey's report. Attached to documents filed by UL was a letter by his mother, SHK's paternal grandmother, MT. 8. From that very first day the transcript will show repeatedly UL and RS were directed to restrain their interjections from the bar table. Transcript, day 5, pages 12 – 13 show the commencement of an approach adopted for the hearing in order to make the best opportunity of assessing the application for restoration. That approach was for the court to protect the opportunity for DHK to participate unhampered by the interjections of UL and RS. At transcript page 12, line 50 UL interjected over DHK responding to my enquiry (put at transcript page 12, line 35) of whether in the proceedings she sought only orders for restoration or also contested the establishment point. The interjection by UL when DHK was speaking well for herself was rejected. He was reminded of the direction that only one person stands and speaks from the bar table at a time. In those pages DHK succinctly explained in regard to establishment that SHK should not have been taken into care because as she was residing with RS and GL and not with UL, the risk of significant harm through domestic violence was "off the table" and not established as the Department claimed: transcript page 12, lines 45 – 49. 9. As to the remaining "two underlying issues" of DHK's mental health and drug use, DHK submitted that as she was not residing with UL she would not have the need to smoke cannabis because she would not have been stressed: transcript page 13, line 45. In regard to her mental health she would have consulted David Howell (an unqualified counsellor, friend of and used by RS) on a regular basis because he practiced close to RS' residence and DHK would have continued to address everything that the Department required her to address: transcript page 14, lines 5 – 11. 10. In addition to opposing establishment, UL seeks that SHK's placement with DHK is supervised and that DHK is sufficiently supported by resources so that she may alleviate any concerns: transcript page 37, lines 27 – 30. 11. UL did not seek restoration to himself as he conceded that SHK would be at risk of harm in his care. UL maintained that the Department be directed to prescribe a Care Plan for his compliance such that he and MT have unsupervised contact. His proposal for such plan is contained in his seven page document delivered in the course of the appeal in April 2018. 12. Over the first few days of the hearing the parties, and in particular the unrepresented parties, DHK, RS and UL, were given the opportunity to speak to their written submissions and affidavit evidence and to their consideration of and responses to the expert report of Ms Starkey obtained in the previous month. 13. Stability of housing, on a practical view of this case is of particular importance. Soon after the birth of SHK, UL and DHK applied for but were unsuccessful in the grant of publically assisted housing. This was at a time when UL was struggling with the notion of the financial burden of SHK and the knowledge that the Arncliffe unit which he and DHK cohabited was an unsuitable placement for the inclusion of SHK. Throughout 2015 to 2017 DHK changed residential address for a variety of reasons. Many times she was not able to afford stable accommodation of her own. 14. The evidence of 2015 to 2017 is examined to the extent that it is required to do so below. In my opinion, an element of caution is required against assuming that DHK would have lived her life in that period as she did, had she the parental responsibility of her daughter SHK. There is no contest in this matter that DHK loves her daughter and that she wanted the active mothering role from the time of the birth of her child, never having agreed to forsake that role at any time even before that birth despite the pressures upon her from RS and UL challenging the capacity of UL and DHK to be parents. 15. On day 1 of the hearing counsel for SHK (the ILR) agreed that DHK's ability to provide stability of suitable residence fell "broadly under the ambit of poverty": transcript, page 46, line 33. Section 71(2) provides that the court cannot conclude that the basic needs of a child or young person are likely not to be met only because of poverty. 16. Unfortunately, the Department of Housing by letter addressed to a residence in Arncliffe (which was UL's residence in 2014 and early 2015) dated 14 March 2017 (unhelpfully stamped as processed on 3 August 2017) requested further information from DHK about her need for housing. DHK did not live at the Arncliffe residence in 2017. 17. The Orders made 17 October 2017 resulted in the Department's officers assisting DHK in obtaining long-term, stable, public housing with financial assistance pursuant to a lease, into which she entered residence on 25 November 2017. The practical significance of the change that this event brings to consideration of the possibility of restoration is truly significant. Whist I do not necessarily accept fully the proposition of poverty counsel for the ILR put, his following quoted passage describes the substance of the practical effect of housing: The question though is what flows from that which impacts directly on parenting capacity and the issue about housing in this particular case, I would be inviting your Honour to reflect upon and it will obviously be the subject of cross-examination, the capacity of the mother to maintain suitable housing, particularly in light of the fact that the matter's been before the Court for three years. 1. The Department's Further Addendum to Care Plan was dated 6 October 2017. Near the commencement of the appeal hearing on 9 October 2017, it was shared among the parties. It is relevant to the significant procedural step (shift of positions) in this matter achieved in the agreement reached between the parties leading to the Orders made 17 October 2017. 2. The Further Addendum Care Plan dated 6 October 2017 described the Department's position at the commencement of the appeal. The Department maintained, as it had in Care Plans 1 June 2015 and 9 September 2016 (referred to above), that restoration was not considered to be a realistic possibility and that Final Orders allocating parental responsibility for SHK to the Minister until the age of 18 years be maintained. 3. The Permanency Planning – Placement Considerations firstly considered consistency and stability of household for SHK. It was noted that the long-term foster carers did not wish to proceed to adoption and adoption was not being considered. The safety, security and nurturing of the foster care placement were described and particular attention given to the secure psychological attachment SHK enjoyed with her carers and the positive sibling attachment with her older foster sibling. Fundamentally, the Department assessed there to be no realistic possibility of restoration to DHK because "there is no evidence that [DHK] had been able to address the child protection issues that led to [SHK] being removed from her care." Specifically, the Department was concerned that it did not have adequate information to assess how DHK's illicit substance use and mental health issues would impact on her ability to parent SHK. The Department understood from uranalysis obtained in May 2017 that DHK used cannabis, benzodiazepines and amphetamines despite DHK denying that she had used amphetamines. DHK had failed to attend 13 scheduled uranalysis appointments and the Department had limited information of where DHK was residing "at any given time and the type of people she is spending time [with]." DHK had informed the Department that she was living at her sister's residence and with friends in Ashfield and Bankstown. The Department had "been unable to assess whether the safety of the environment where [SHK] would be living if placed in the care of" DHK. 4. Whilst there is no contest that DHK consumed cannabis to some extent; the benzodiazepine and amphetamine detected in May 2017 has been explained by her consuming Dexedrine which was then prescribed to RS to treat his ADHD and given by him to her, prior to DHK being diagnosed as suffering ADHD. Dexedrine has been prescribed for DHK by psychiatrist Dr Newlyn since December 2017. Accordingly, risk of only cannabis use is for present consideration. 5. The Further Addendum Care Plan dated 6 October 2017 listed identical minimum outcomes to be achieved for restoration to those listed in 19 March 2015 Plan (referred to above). On 6 October 2017 the Department concluded: assuming that the minimum outcomes were met; Community Services would still need to consider the length of time [SHK] has lived with his [her] carers, [SHK]'s age and the extent of her attachment to her carers and possible psychological harm that might result from disrupting the placement at the time of assessing whether restoration is a realistic possibility. 1. The 6 October 2017 Further Addendum to Care Plan included the Department expressing concern that contact between SHK and her parents needed to continue to be supervised because both parents continued to use illicit substances, had unstable mental health conditions, were inconsistent with attending contact and still required, at times, prompts from the supervisor to check and change SHK's nappy, as well as dress her in clothes appropriate to the weather, such need for supervision to be reviewed from time to time and to depend on either or both parents being able to demonstrate they had addressed those concerns. 2. In short, the obvious tragedy is that little changed between 19 March 2015, when SHK was less than 3 months of age, and October 2017 when SHK was approximately 2 years and 9 months of age. In the interim SHK was in long-term foster care, with foster carers who did not want to adopt her. This is not to say the history concerning UL, DHK and RS and in particular DHK's unreliable attendance on contact, unstable lifestyle, consumption of drugs and attempts to re-engage with UL until early 2017 with risk of violence, are to be put aside without consideration. She and the Department were effectively disassociated. Evidence of Caseworker Eisenhauer to Mediation and 17 October 2017 1. Ms Eisenhauer was the only Caseworker required for cross-examination. She had day to day responsibility for casework in relation to SHK between 5 January 2015 and 6 September 2015. SHK was discharged from St George Hospital on 9 January 2015 into the care of the long-term foster carers. 2. Because of the passionate objection to assumption of care pressed by UL and RS, these reasons will examine the contemporaneous documents of the history of the period leading up to practical assumption on 19 February 2019. At risk of repetition, it is useful to record Principal Caseworker Eisenhauer's evidence overviewing what occurred. 3. For present purposes, in her affidavit dated 19 March 2015, Ms Eisenhauer explained that before she was assigned casework responsibility the Department had already become concerned for the welfare of the unborn SHK following receipt of anonymous risk of harm reports that: * on 15 September 2014 that DHK and UL smoked cannabis daily; * DHK had not booked into hospital or made preparations for the birth of SHK; * on 14 October 2014, when six months pregnant, DHK attended St. George Hospital disclosing that earlier that evening UL had hit her with a broom all over her body except on her stomach, kicked and punched her and bitten her on the right arm, held his hands around her throat until she had found it difficult to breathe, and that during the argument she had fallen down the stairs of their home. The couple continued to argue whilst in the hospital. DHK informed that the domestic violence was the first such incident. DHK informed the hospital that she had self-harmed by cutting her arms two weeks previously. DHK informed the hospital that she did not want the baby and planned to adopt the baby out; * on 18 November 2014, the hospital received a report that UL and DHK were physically violent to each other especially when they could not access marijuana. The Department was informed that UL and DHK were considering adopting the baby to RS in exchange for money; and * on presenting for the birth of her baby on 28 December 2014, DHK's body showed flea bite marks on her arm, she was not wearing shoes and she had very bad body odour. She informed the staff, again, that her intention was to adopt the baby out. 1. On 30 December 2014 (the second day after birth of SHK), Ms Rajaretnam, Caseworker, performed a safety assessment in the interests of SHK. Ms Rajaretnam performed a further assessment on 27 February 2015. Those assessments are contained in the SDM Safety Assessment Decision Report (Exhibit H to Ms Eisenhauer's affidavit). The report lists as dangers the following further information: * urinalysis and meconium analysis at hospital detected marijuana in SHK's system. SHK scored a Neonatal Abstinence Syndrome (NAS) 8 for withdrawal; * SHK was placed in the Special Care Nursery for monitoring of her withdrawal; and * the parents' substance abuse seriously impaired the ability of each to supervise, protect and care for SHK. 1. The written and signed consent of DHK to SHK being taken into temporary care of the Department between 30 December 2014 and 6 January 2015 confirms that the Temporary Care Arrangement was both temporary and voluntary. The Department or the parent could terminate it before the agreed date. The arrangement would be reviewed on 2 January 2015. 2. On 5 January 2015, DHK and UL entered into a second Temporary Care Arrangement for one month between 6 January 2015 and 6 February 2015. According to [21] of Ms Eisenhauer's affidavit, the Department recommended the following plan toward restoration: * drug and alcohol assessment and compliance with all recommendations; * random urine analysis screenings; * mental health assessment for DHK and compliance with all recommendations including counselling and/or medication; * domestic violence counselling for DHK; * Domestic Violence Perpetrator Program for UL; * a parenting program (such as Triple P); * the Department to make a referral to a residential placement for DHK and SHK; and * the Department to conduct home visits and provide financial support for SHK's needs, if required. 1. The Department confirmed the services for the parents' attendance by letter dated 6 January 2015 addressed to the Arncliffe residence of UL. 2. On 14 January 2015, at the request of UL and DHK, Caseworkers attended the home of RS and GL to assess them as authorised carers for SHK. The placement was found to be suitable. 3. According to [31] of Ms Eisenhauer's affidavit, Dr Bowes, psychiatry registrar at St George Hospital concluded a mental health assessment of DHK on 12 January 2015. Dr Bowes concluded that DHK (according to Ms Eisenhauer) "showed no signs of depression and has had no suicidal thoughts in the last few months. … [DHK] has a Borderline Personality Structure and would benefit from further psychological intervention to teach her coping strategies, stress tolerance and problem solving". Dr Bowes did not recommend medication. 4. On 28 January 2015, RS contacted Ms Eisenhauer to query whether he might provide more support, he having already provided support by way of rental assistance to DHK and UL. 5. On 29 January 2015, as reported at [38] of Ms Eisenhauer's affidavit: The parents were informed that FACS would not be placing [SHK with RS and GL] due to the motivation the parents were showing towards engaging in services and the case plan that [SHK] would be restored to them. FACS was of the view that changing [SHK's] placement was unnecessary and would only create an additional disruptive attachment for [SHK] before she returned to her parents. The parents agreed to the rationale behind this decision. 1. DHK and UL signed another Temporary Care Agreement ending 2 March 2015. Ms Eisenhauer explained to them that they needed more time to demonstrate engagement with services and a reduction in drug use. 2. On 16 February 2015, DHK and UL informed Ms Eisenhauer that they wanted to undertake the Department's offered services at a slower pace, have weekly contact with SHK reduced from two hours to one hour, and SHK to be placed with RS and GL in the interim. In a meeting involving the Manager Client Services, Manager Caseworker Ms Ingham and Caseworkers Ms Nelson and Ms Eisenhauer it was resolved that SHK would not be placed with RS and GL. Ms Eisenhauer informed them that due to the lack of parenting experience of RS and GL, their age and the history of childhood trauma of RS, SHK would not be placed in RS' household. 3. Following the mid-February 2015 position (above), Ms Eisenhauer received assertive communications from RS, refusing the Department's decision, as well as communications from UL, DHK and RS's partner GL pursuing placement of SHK with RS and GL pending DHK and UL completing the Department-offered programs. 4. By emails dated 17 February 2015 the parents forwarded a letter drawn by RS and signed by him, GL, DHK and UL. In that correspondence, the parents terminated the Temporary Care Arrangement. 5. During January 2015, DHK and UL had attended random urinalysis more frequently than weekly. The results tested positive for marijuana for each of them. At [63], Ms Eisenhauer reports that the results do not give an accurate correlation of how much marijuana was being consumed, or how it would affect the parents in their parenting capacity. Urinalysis ceased from 11 February 2015 at the direction of the Department. The Department stopped it pending the parents engaging with drug and alcohol services. 6. Paragraph [52] of Ms Eisenhauer's affidavit dated 19 March 2015 significantly states that on 19 February 2015, the Department in discussion of its officers Ms Ingram, Ms Nelson and herself, decided that SHK "was deemed to be at a serious risk of harm" and was assumed into care at Ingleburn CSC because "the child protection concerns had not been addressed by the parents, and that concerns that [SHK] would be placed with [RS]". 7. The reasons for assumption contained in the Order dated 19 February 2015 were: Concerns for parental drug use and no demonstration of engagement with the Department's services. Parents continue to have positive urinalysis for cannabis admitted daily use. Concerns for parental domestic violence and no demonstration of engagement with domestic violence services. Concerns that the parents want to make arrangements with a person which appears to represent an illegal adoption. 1. Exhibit V to Ms Eisenhauer's affidavit dated 19 March 2015 is an Incident Report timed at about 1.30 p.m. to 1.40 p.m. on 19 February 2015 to the effect that during contact of UL with SHK, UL informed the Caseworker that the Department had not fulfilled various terms of the Temporary Care Agreement, and that RS was standing outside the building and UL proposed taking SHK to RS. UL stated that DHK had sent an email to the Caseworker detailing her wishes that SHK be placed in RS's care. UL expressed that SHK should be placed in RS's care. 2. Plainly the effect of the Incident Report (Exhibit V) and the affidavit of Ms Eisenhauer dated 19 March 2015 up to [53] is that, UL and DHK terminated the Temporary Care Agreement on 19 February 2015, and intended SHK to reside with RS. Those facts are not disputed. 3. Paragraph [59] of Ms Eisenhauer's affidavit dated 19 March 2015 says that the parents had attended only 10 out of 18 contact visits, their reasons for failure to attend including sleeping through their alarm clock, being late and not enough money to travel to the contact, and on one occasion believing that they had been told that they were not required to attend contact. 4. The contact reports indicated that UL and DHK during contact attended to SHK's needs, including feeding her, changing her nappy, burping and settling her. 5. Through March 2015, DHK and UL continued to fail to attend drug and alcohol and domestic violence services. 6. It is significant that at the end of January 2015, the common plan of the Department and of UL and DHK had been restoration of SHK to UL and DHK. 7. Paragraph [80] of Ms Eisenhauer's affidavit dated 19 March 2015 described the determination against placement with RS and GL in the following terms: FACS would not authorise [RS] and [GL] as carers for [SHK] due to a number of factors, including [RS] not being a member of [SHK's] family, his age not ideal for long term care, his lack of parenting experience and his own history of trauma. In addition to these concerns, [RS] demonstrated influence over the parents and his own intention of adopting [SHK], as evident in his correspondence, was seen as placing unnecessary pressure on the parents' decision to adopt [SHK]. 1. Essentially two driving elements were in play on 19 February 2015. The first element was, as the Department saw it, the failure of DHK and UL to participate in achieving the minimum outcomes which the Department required for its intended achievement of restoration of SHK to DHK and UL from the temporary placement with foster carers pursuant to the Temporary Care Arrangement. The second element was the breakdown of the cooperative relationship between the Department on the one hand and DHK and UL on the other toward achieving restoration, this second element resulting from: * the parents lack of trust with the Department caused by, as the parents saw it, the Department's breach of its agreement to assess the suitability of placement with RS and GL before SHK was discharged from St George Hospital; * the Department's determination to maintain placement with the foster carers even after assessment at the home of RS and GL on 14 January 2015 determined their residence to be a suitable placement; and * the Case Work Manager opposing placement of SHK with RS and GL after Ms Eisenhauer (on the basis of the 14 January assessment) indicated to the parents that SHK would be restored to them for placement with RS and GL whilst the parents achieved the minimum outcomes over a period of, not the three months insisted upon by the Department but the longer period of 12 months. 1. It is conceded by RS that the Department's refusal of SHK's placement with him, including upon grounds of his age and that he had suffered a traumatic upbringing including sexual abuse, infuriated him. There can be no doubt that from that point in mid-February 2015 and definitely from 16 February 2015 when he was informed that SHK would not be placed with he and GL, that he strongly influenced DHK and UL against trusting the Department. At the same time, his aggressive conduct directed toward Caseworkers and the Department fractured what relationship might otherwise had been continued with the parents. This caused the Department to be concerned that the controlling influence of RS in the environment of SHK should SHK have been restored to DHK, presented a risk of harm because the Department would not be able to provide oversight of the wellbeing of SHK and provide assistance to DHK unless it was assured of visibility of SHK's environment and unfettered access as required. 2. As will be seen from detailed analysis of contemporary records of the Department and of St George Hospital, when assessing the risk of domestic violence Ms Eisenhauer and the Department overlooked information which would have altered the Department to the fact that DHK was not full-time cohabitating with UL from some weeks before the birth of SHK and throughout January and February 2015. 3. This appeal hearing was interrupted in October 2017 after reading of the affidavits of Ms Eisenhauer and taking her oral evidence. Following that evidence, and they having had the opportunity to voice their respective openings in the appeal as well as provide their written responses to Ms Starkey's report, the parties agreed to mediation. 4. Section 93 of the Act requires informality of proceedings. The Court will ask questions eliciting information relevant to the Court's determination of issues: s 107. In order to assist him with preliminary views based upon his own affidavit evidence and submissions, I addressed with UL the observation that evidence in his own case revealed the rationalisation and normalisation of domestic violence such that he did not exhibit an awareness of the true risk of harm to SHK which his violent behaviours presented: see transcript 16 October 2017, page 219, line 31 to page 221, line 12. 5. In the same way I addressed RS as to his appalling conduct directed towards Caseworkers in the hope that it would encourage UL and DHK to work with the Department in the mediation and encourage RS to participate positively: see transcript 16 October 2017, line 34 to line 20 [no page number given]. 6. I encouraged DHK to have faith in the plan proposed by the mediation on the basis that the Department would "bend over backwards" to get her some sort of priority in the obtaining of services: for example transcript, page 301. 17 October 2017 – Mediation Result 1. On 17 October 2017 I made the following orders after the successful mediation: 1. The appeal hearing which commenced on 9 October 2017 be adjourned part heard to recommence before me on 19 March 2018 for an estimate of 5 days. 2. The matter was listed for direction's mention before me for an update on the progress of DHK and the matter generally on 9 February 2018. 3. The Second Defendant had liberty to restore with two days' notice. 4. These proceedings being an appeal from Final Orders of the Children's Court and without determination of this appeal on the question of the need for care and protection of SHK and for the purpose only of interim arrangements, pursuant to section 73 of the Children and Young Persons (Care and Protection) Act 1998, the Court accepted the Undertakings specified in annexure "A" from DHK, pending further order. 5. In the event that the First Defendant in its assistance to DHK in regard to obtaining public housing found it helpful, the Second Defendant had liberty to restore the matter before me on 3 days notice for consideration of the making of an order under the Children and Young Persons (Care and Protection) Act 1998. 6. In the event of an application be made pursuant to order 5 above, the relevant officer for the purposes of the provision of public housing was to have reasonable notice and an opportunity to respond. 1. I formally noted the purpose of the adjournment was as outlined in the Case Plan dated 17 October 2017, which had been agreed to by the first and second plaintiffs, and first, second and third defendants (all parties). 2. The First Defendant was given leave of the Court to provide a copy of the psychological report of Dianne Starkey dated 19 September 2017 to any mental health professional who carried out a mental health assessment of DHK (as agreed to by the First Plaintiff and First Defendant) and any mental health professional who provided counselling, therapy, educational programs and any other treatment to DHK (as agreed to by the First Plaintiff and First Defendant). 3. The purposes of the adjournment were formally noted to be for: i. DHK to secure stable accommodation, appropriate supports (mental health counselling, drug and alcohol assessment). DHK to participate in urinalysis and engage with the Department of Family and Community Services (FaCS) generally. ii. DHK to achieve, and to demonstrate, a sustained period of stability that would permit her to provide appropriate care to SHK. iii. FaCS to review progress every 90 days. iv. If DHK continued to make progress, FaCS would continue its assessment process. v. If DHK did not make appropriate progress, FaCS might discontinue its assessment and engagement with DHK (with notice given to the Independent Legal Representative in advance). 1. The proposal was subject to the following formal stipulations: i. FaCS' consent to the proposal did not constitute a concession that establishment was not made out or that FaCS had changed its view (as detailed in the addendum to the Care Plan dated 6 October 2017) that restoration remained not a realistic possibility at that time. ii. The consent to the adjournment by the first and second plaintiffs and third defendant did not constitute an admission to establishment. iii. The ultimate position FaCS would take at final hearing (when it resumed) would depend on progress and the circumstances as existed then. No guarantees were given that FaCS would necessarily support restoration on the next occasion. iv. If DHK met the minimum outcomes and demonstrated real progress in establishing stability in her life at the end of the adjournment period, FaCS would give serious consideration to the possibility of restoration. 1. The Casework Plan identified areas DHK would address during the 6-month adjournment. They included: 1. Accommodation i. DHK was to secure stable and safe housing. DHK agreed to allow Caseworkers to complete home visits, both planned and unannounced for the purpose of assessing and informing the viability of restoration. DHK was expected to demonstrate the ability to maintain her property in a clean and hygienic state and to maintain consistent residence in her own right rather than transience. ii. FaCS Caseworkers would attend Housing NSW with DHK at a mutually convenient time to assist progressing DHK's application for accommodation. iii. DHK's residence had to be kept free from people who may be intoxicated and or using illicit substances as well as people who were behaving violently or aggressively or were involved in any violent or criminal activity that may impact on the safety of SHK. iv. In the event of restoration to DHK, should she thereafter be unable to secure safe and secure housing on her own, DHK would inform Community Services and seek assistance. v. DHK was to inform FaCS in regards to any partners who would have regular access to SHK in the event of a restoration so that an assessment of their role in the parenting of SHK could take place. 2. Drug and alcohol use i. DHK was to engage in a drug and alcohol assessment by a health professional, agreed to by DHK and FaCS, to address any ongoing drug and alcohol issues. DHK was to comply with any treatment plan recommended by the health professional. DHK was to give permission for FaCS to exchange information with the program/service. ii. DHK was to attend scheduled chain of custody urinalysis appointments as directed by FaCS. FaCS will consult with their Clinical Issues Unit in regards to the results obtained and likely impact on parenting capacity. 3. Mental health i. DHK was to undertake a comprehensive mental health assessment by a registered mental health professional, agreed to by DHK and FaCS, to address any ongoing mental health issues in line with the recommendations of Dianne Starkey in report dated 19 September 2017. DHK was to comply with any mental health treatment plan recommended by the mental health professional. DHK would give permission for Community Services to exchange information with the program/service. 4. Domestic violence i. DHK was to attend a program or service, agreed to by DHK and FaCS, to address her experiences of domestic violence (for instance the Women's Choice and Change program through Relationship Australia or the Break Free from Domestic Violence for Women through CatholicCare). DHK needed to demonstrate insight into the risk of exposing SHK to a violent environment. She also needed to demonstrate an ability to protect SHK if she were restored to her care. SHK to give permission for FaCS to exchange information with the program/service. 5. Contact i. DHK was to attend scheduled contact with SHK consistently at the agreed time and location, and demonstrate an ability to meet SHK's needs during those times (feeding, nappy changes, activities etc). ii. DHK was to confirm, no less than 24 hours before scheduled contact, that she would attend scheduled contact. Confirmation was to be with the supervising Caseworker (FaCS or LWB) by text message. iii. If contact was cancelled on the basis of illness, a make up contact would not be rescheduled without a medical certificate being presented to FaCS. If a medical certificate was presented FaCS would make reasonable attempts to reschedule contact taking into account SHK's circumstances. Restoration program If DHK started engaging in the above areas and the restoration assessment indicated that restoration of SHK to DHK was a viable option, FaCS would make a referral to a restoration service such as Newpin and/or a supported accommodation service. For instance, a referral to the Newpin 18 month program which worked with parents to facilitate and support the restoration process. It was understood that involved 9 months engagement prior to restoration taking place, and 9 months post restoration. Positive assessment re realistic possibility of restoration In the event that restoration was assessed as a realistic possibility at the end of that 6-months (by FaCS), the Department would complete a consultation with FaCS psychologist to develop a restoration plan, including timeframes that would support SHK in the restoration with minimal disruption. FaCS would also complete consultation around maintaining a connection between SHK and her current carers and foster sibling, who were considered her psychological family. UL FaCS notes the minimum outcomes for restoration in the addendum to the Care Plan dated 6 October 2017 for UL. FaCS undertook to meet and discuss with UL and the ILR to set minimum outcomes for the possibility of restoration (including possibility of shared or split restoration) and the possibility of unsupervised contact (including as to restrictions concerning location and duration and paternal grandmother's contact). Status Post-mediation 1. On the recommencement of the proceedings on 19 March 2018, unfortunately, the Department maintained its assessment of no realistic possibility of restoration to DHK. Whereas six months had been contemplated, in fact only five months had passed. 2. On the recommencement of the hearing DHK insisted the Court maintain anonymity of her address so as to avoid UL learning of her place of residence. On all of the evidence DHK had no personal contact with UL since early 2017. Basic Facts 1. The basic facts of the matter are as follows: 1. DHK was born in Sydney as the middle of three children. Her old sister, THK is about one year older and her younger brother BHK is about one year younger than DHK. DHK's father died of cancer when she was nine years old. He had been ill for about three years. Her father was violent toward her and her mother but not toward her siblings. She denied to treating psychiatric registrar Dr Bowes (St George Clinical Notes 7 January 2015) ever feeling upset about his death however she told clinical psychologist Ms Starkey on 19 September 2017 that she was too young to really understand what was going on. 2. THK ran away from home when DHK was 11 years old. They reunited some weeks before the birth of SHK on 28 December 2014. THK gave birth to her first child in about October 2017. DHK supported THK with what was apparently a not uncomplicated late gestation period. DHK is now close to her sister and thrilled with and very caring of her niece. 3. DHK's mother remarried when DHK was 14 years of age. DHK has two younger half siblings from that union. 4. In years 7 and 8 DHK really liked school because it enabled her to get away from her parents. DHK focused on her school behaviour because she wanted to be school captain and wanted to gain a dance scholarship, both of which she achieved. 5. DHK was subjected to sexual abuse by members of her step family. 6. The victim of a dysfunctional upbringing including violence, sexual abuse and in particular a lack of maternal protection from her step father led to DHK receiving counselling for anxiety and depression including self-harming behaviour by cutting during her school years. 7. Two months before her HSC and before she was due to go overseas, having attained the dance scholarship, her stepfather forced her out of the home because she wanted to follow the dance scholarship rather than a career in the military as chosen by him. 8. DHK was forced to find accommodation with other young persons. 9. DHK moved in with her boyfriend in St Peters. She had commenced smoking cannabis socially at age 13 or 14 but was not then a regular user. Her boyfriend smoked cannabis regularly and this introduced DHK to smoking cannabis with him every weekend. After moving in with her boyfriend, she and her mother no longer spoke. 10. DHK stopped attending school regularly, got into trouble and decided there was no use continuing. DHK broke up with her boyfriend and continued to smoke cannabis sporadically to prevent her from getting more depressed. It was at about this time that she met UL and moved in with him. Her relationship with her boyfriend in St Peters had lasted almost three years. She had worked at Kmart and as a babysitter. 11. DHK commenced living with UL at his Arncliffe two bedroom apartment in about March 2014, fell pregnant in about April 2014 when she was 18 years of age and gave birth to SHK on 28 December 2014 when she had just passed her 19th birthday (DOB: 14 November 1995). 12. From DHK informing UL of her pregnancy in about July or August 2014 UL did not want parental responsibility, and preferred relief from parental responsibility be achieved by a placement of the child with RS and GL. 13. From about August 2014 the following circumstances arrived: 1. DHK proceeded with her pregnancy without anyone to turn to for support except UL and RS. 2. Both UL and RS recommended DHK place SHK with RS and his partner GL at their residence at Leumeah. The recommendation was passionately made by RS in circumstances of he and GL having been unable to conceive. UL and RS were firmly committed to a belief in RS' kinship as if he was a godfather of UL which kinship RS sensed deeply connecting himself with the unborn child. 3. UL is a daily cannabis user and a believer in the therapeutic benefits of cannabis consumption. He submits that he suffers neurogenic pain from ocular stress in regard to which he has found relief though cannabis since age 13 as well as relief from anxiety. 4. UL is assessed by expert evidence of clinical psychologist Ms Starkey (report 19 September 2017; oral evidence 19 April 2018) to suffer bipolar disorder and his behavioural reaction to disputes with DHK concerning the stressor of parental responsibility, was domestic violence directed toward DHK. DHK and UL at least from learning of the pregnancy engaged in occasions of heated argument and DHK suffered physical violence at his hand. 5. When dealing with the influence of UL and RS toward placement of the child with RS and GL, DHK was seriously concerned as to whether she possessed the financial and accommodation facilities suitable for parenting. 6. DHK suffered severe morning sickness. When living with UL she used cannabis regularly to deal with her anxiety, depression and morning sickness. 7. During her pregnancy the situational crisis in which she found herself caused DHK to be so depressed as to remain in bed for periods of 24 hours and on an occasion for most of a week. 8. Some weeks before the birth DHK moved away from the domestic violence of her cohabitation with UL to reside with RS and GL. 9. From the moment of giving birth to SHK and seeing her child DHK has wanted parental responsibility for her child. 10. Following birth DHK hoped to make a family with UL and SHK. UL accepted to the extent that he saw it as his moral obligation that he would participate in that relationship "to do the right thing" albeit his preferred lifestyle was not to have parental responsibility. 11. RS has maintained his pursuit of a significant role in the life of SHK including with inconsistent support from UL and DHK, seeking placement of SHK with himself and GL. RS and GL in the intervening three and a half years have produced their own child. RS says that in the event of restoration he would be willing to be less intrusive. 12. SHK was assumed into care by the Department and placed with foster carers who became long term foster carers from the time of SHK's release from hospital on 9 January 2015. 13. The long term foster carers of SHK seek her long term care but do not seek adoption. Establishment – facts up to Birth of SHK 1. UL put it during closing oral submissions, that when he first met DHK he decided to provide a roof over her head and support, having just broken up with a girlfriend. Sometime later he had the opportunity of getting back together with that girlfriend but felt unable to do so because DHK was pregnant with SHK. 2. During 2012, RS had met UL when RS commenced a relationship with UL's mother MT. UL lived with RS and MT for a few months between 2012 and 2013. After that relationship ended, UL lived with RS for about one month. RS provided advice and support to UL including encouraging him to complete his HSC, which UL did not achieve. MT suffers bipolar disorder for which she has been hospitalised. Police records dated 24 March 2013 (Exhibit 7) and police record 7 October 2012 record verbal abuse and the throwing of things in that relationship. On 24 March 2013, during day leave for MT from Norton Unit, Concorde Hospital, an argument escalated to an allegation admitted to police by RS of his spitting at MT. An AVO was served on RS but he was not charged with a criminal offence. 3. On 11 July 2013, police were called to a domestic incident between UL and his mother, MT. Police recorded that she threw his computer game console to ground and let his cat outside, threating its life. He threw cold soup over her, pushed and struggled with her and smashed her phone. UL was served with an AVO and charged with assault. At first instance he was convicted. On appeal he received a s 10(1)(a) bond to be of good behaviour for 12 months. 4. When in about July 2014 DHK informed UL that she was pregnant, MT was living in the second bedroom at UL's Arncliffe apartment. An argument occurred over the making of a rent payment. UL and DHK retreated to their bedroom but MT pushed the door open and took DHK's phone. After initial contact with police by UL the situation appeared diffused until about 3am. At that time MT pushed the door open to the bedroom of UL and DHK again, this time when a large television had been placed behind the door in an attempt to stop MT entering the bedroom. Earlier, MT had threatened to kill by strangulation UL's cat. UL and DHK discovered that MT had caused large amounts of water to flood the apartment into their bedroom such that they had to unplug electrical equipment and were in fear of electrocution. MT was admitted by police to a mental health facility. 5. Following discovery of her pregnancy, RS commenced discussing an arrangement whereby SHK would be placed with RS and GL. A great deal is said in these proceedings about plans for adoption by RS and GL of SHK. The Department does not submit that at any point illegal adoption, in the real sense of those words, was intended. It is relevant nevertheless that the Department, at the time of birth of SHK, had received reports from persons of their concern and understanding that RS had spoken to them of an arrangement for adoption of SHK. That the history as it is available from the evidence must be considered in relation to the Department's Risk of Harm Assessments. 6. RS says that he discussed the concept of adoption or at least taking a primary role in the responsibility for financial and residential support of SHK in order to calm UL's concern for the prospect of the responsibilities of fatherhood. What is material, given that there is only one real adoption, being legal adoption which is not in play here; is the measure of control of parental responsibility for SHK RS pursued. Police on attendance on 15 September 2014 to a dispute between RS and MT recorded RS having said that UL and DHK were expecting a baby which "he is going to attempt to adopt…". On 18 November 2014 the Department received an anonymous report that the parents were considering adopting SHK to RS for money. 7. On 15 and 29 September 2014 the Department received anonymous risk of harm reports alleging that the parents smoked cannabis throughout every day and were growing hydroponic cannabis and selling it. It was alleged that DHK had not booked in for hospital or made preparations for the birth and that she was considering giving the child away following birth: affidavit Ms Eisenhauer 19 March 2015 [6]-[7]. 8. On 16 October 2014 the Department received an anonymous risk of serious harm report alleging that the parents had presented at St George Hospital on 14 October 2014 in consequence of a domestic violence incident. That DHK informed a social worker at the hospital that UL had hit her with a broom all over her body except on the stomach, had kicked and punched her on the legs and bitten her on the right shoulder as well held his hands around her throat until she found it difficult to breath. A bite mark was seen by hospital staff. DHK fell down stairs but there is no allegation that UL pushed her. The report continued to allege that DHK had two weeks earlier self-harmed by cutting her arms and stated that she did not want the baby and planned to adopt. 9. DHK denies and it is contrary to other evidence that she self-harmed by cutting her arms in about October 2014. Again, the evidence supports self-harming whilst an adolescent at school and on occasion prior to pregnancy only. When cross-examined on the clinical records of Dr Bowes (Exhibit 7, page 61) DHK explained that since about the time she was in about year 12 at high school, she had learned, through counselling, distraction mechanism by which she has been able to avoid self-harm. 10. UL denies the allegation of hitting DHK with a broom and does not concede violence except vaguely described physical action against DHK. The common ground is that there was a fierce argument at the premises and that police were called. 11. In closing submissions UL said (transcript page 1309, lines 1 – 23): I, I understand that in normally every sense of the regard, that putting hands over someone's mouth or that hugging them is considered domestic violence and it's not appropriate. But in that incident, and in those instances I did it to protect us, so we didn't end up on the street, homeless with our child when she was born. I also did it when I saw paramedics - I, I did what I saw paramedics do and what I saw - what I thought was right at the time when paramedics try and calm down a neurotic person by restraining them or by putting their hands over their mouths. The potential for me and DHK and our future child to be on the street was very realistic if DHK continued to behave like she, like she was. In hindsight I understand that I should've called Mental Health Services on her, but I didn't think it was the right decision at the time and considering that I'd tried to walk away and that wasn't working - that resulted in police reports happening. Considering even my friends were advising me against living with her, but she was pregnant. I put a hypothetical question to the Court. What is, what is the prospective father meant to do in that situation when they have a pregnant girlfriend and the police continue to attend because of verbal arguments of infidelity or pregnancy and walking away doesn't work? And you can't necessarily move out because you don't want to abandon your pregnant girlfriend. 1. The evidence supports that UL left the premises and was outside when police arrived. Having considered the evidence in the police notes and the clinical notes of physical examination of DHK, the account given to the social worker is not borne out by evidence of injury. A bite mark was found but UL attributed that to prior rough sex. During cross-examination by UL DHK claimed not to have a clear recollection of those traumatic events. 2. The significant point is the common ground that DHK and UL from the time of her informing him of her pregnancy in July 2014 engaged in domestic argument in the form of shouting and violent expression. Other evidence includes that UL pleaded guilty to assaulting DHK by head-butting her in the nose in October 2015. 3. On 18 November 2014 and on 17 December 2014 the Department received further anonymous risk of harm reports further alleging the parents smoking cannabis, being physically violent, considering adopting the child to RS and that DHK had not attended the hospital for antenatal care or appointments. DHK had attended for ultrasound. 4. DHK remained unshaken in her evidence that from about July 2014 when she informed UL that she was pregnant and he informed her that he did not want parental responsibility of a child; because she was only 18 years of age, she and UL considered that RS could contribute a parental type role for SHK. Her evidence was (transcript page 353, lines 3 – 16): Q. Did you, in your discussions with UL, after you leant of the pregnancy, did you discuss with UL the possibility of adoption? A. We talked about the fact that UL didn't want a kid because he was only 18 and I found out that I was four months pregnant but I was willing to work around that because I didn't want him to get completely sucked in to being a dad, and I won't think the term we used was "adoption", I'm pretty sure were kind of considering the fact that RS would be like the parental-type of aspect that-- HIS HONOUR Q. RS would be? A. Like, the parental figure, so therefore both UL and I could be involved in her life still. [transcript page 354, line 1 – 23]: Q. --what do you mean by that? What role did you see him having? A. Okay, so obviously both UL and myself didn't believe that we had the financial responsibility to look after a newborn, nor did we have any suitability when it came to the place that we lived in in Arncliffe. Yet when RS got brought up as a choice, he has his own house, and he has no problem with financial problems, he's got a wife, everything like that, so it'd probably, like, kind of cancelled out what we were originally worried about, and RS didn't bring up anything like, "Oh, I'm going to adopt your baby." That's not what we agreed to. We both still wanted to be involved in her life because we both knew that we couldn't provide for a child at the time. Q. So did you envisage, and I mean back then, that SHK would live with RS at his house? A. I don't think that was really established properly. Q. Did you speak with RS back then about this possibility, about him-- A. I spoke to RS about the fact that UL didn't want to be a dad and that we were kind of catering to that aspect. Q. What did RS say to you about that, what was discussed? A. And I quote, I've heard him say this about a billion times, no offence RS, "It'll take him a couple of years but he will eventually step up to the plate," and I'm sure even you have heard him say that. 1. Counsel for the Department put to DHK passages of Caseworker and hospital records referring to placement with RS and GL and the role of RS. At no point did DHK concede that she had been willing to forfeit the opportunity of parental responsibility for SHK, rather than accept the short-term financial, stable residential and worldly guidance of RS. 2. DHK's circumstances were that she was without parental support, financial security, suitable accommodation and she was in a domestically violent relationship with SHK's father. Given those circumstances, she giving birth to SHK about one month after her 19th birthday, her acceptance of RS' offers of support and his influence are to be seen in that context. She had been in a relationship with UL for little more than the term of the pregnancy. DHK frankly conceded the circumstances she was in and her consideration of RS' offers. 3. She was cross-examined by counsel for the Department on the content of the anonymous risk of harm report of 15 September 2014 referred to at [6] of Ms Eisenhauer's affidavit of 19 March 2015. Her frank answers included: 1. To the allegation that "the parents" were smoking cannabis everyday (meaning both or one of them) DHK responded that she honestly did not know because she was "quite depressed" during September and sleeping almost days at a time. When asked specifically of herself she answered that she did not think it was possible because on occasion she was asleep for up to 24 hours plus. When asked whether she used cannabis at that time she volunteered: "I was using regularly, yes": transcript page 356, lines 33 – 41. She denied that she and UL were growing and selling hydroponic cannabis. The police attended the Arncliffe unit on occasion and did not find growing cannabis. The anonymous reporter was conveying concerns which are not otherwise described in the reliable evidence. I accept DHK's denial. 2. DHK agreed that she had not been preparing for the birth of SHK but she had undergone the important medical step toward SHK's health of ultrasound at Campbelltown Hospital. 3. When it was put that in 2014 discussions with UL there might have been mention "giving the child away", even though DHK could not recall the discussions (acceptable given the state of her depression at the time and that her recollection was "a very big blur") she said that she did not know but did not frankly deny that the topic was raised. It was not put to DHK that it was her idea or that she suggested giving the child away. Her evidence was: [Transcript page 358, lines 5 – 17]: Q. What was noted in there finally was that you were considering, and they use the term "giving away" the child at birth. A. Okay. Q. Does that sound about right at that time, that that was being discussed by you and UL about-- A. I, I can't really give you that information, I don't know. HIS HONOUR Q. You don't know if you were then talking about giving the child away? A. I - yeah, no, I really can't recall. There's a very big blur of time that year, unfortunately. [Transcript page 378, lines 28 – 49]: Q. What I'd suggest to you or ask you to accept but I can tell you the record is that the police recorded an encounter with RS where he made a complaint? A. Mm-hmm. Q. And RS, what they've recorded is that he's reported to them to the effect that he was going to attempt to adopt your child? A. Okay. Q. That was 11 September 2014 and does that refresh your memory as to whether RS was using the term adoption with you around that time when he was talking to you? A. Not in the slightest, sorry. Q. You never heard him speak to other people about-- A. No because me and RS didn't talk about it like that. Me and UL were there one that were debating it. UL is SHK's dad. Not RS. Q. You did speak to RS before the birth? A. Yes I know but we didn't-- Q. About him-- A. --go into detail about it because I still didn't know what I wanted to do. 1. In relation to the 14 October 2014 risk of harm report, there can be no real dispute that an event of domestic violence occurred. Whilst UL, as stated above, did not admit any specific act of domestic violence the unreliability of his evidence was shown by his insistence that he conveyed DHK to hospital whereas Exhibit 7 included the records of ambulance making that conveyance. 2. DHK, consistent with her manner of giving reliable evidence without malice or vindictiveness, conceded that her memory of the occasion was foggy. The unchallenged evidence was that from September she suffered significantly from anxiety and depression. On her attendance at hospital she received medication because she was anxious and panicking. In the circumstances of her depression at the time, she may have given an exaggerated report of the violence and I accept that in this hearing her recollection was foggy. 3. 14 October 2014 was the first time DHK had ever been medicated for anxiety and she believes the medication had a substantial effect on her functioning at the time of her interview with the social worker: transcript 20 March 2018, page 381, line 24. In order to gain a better understanding of her state of mind in those circumstances of a violent domestic relationship, being 18 years of age and without external support except of that already described from RS, my questions obtained her following answers (transcript 20 March 2018, page 388 lines 35 – 45): A. During that whole time when UL and I were together, it, it got really bad so I kind of like just pushed it to the back of my mind and let it get forgotten so it wouldn't be a problem. Q. What got really bad, what's "It"? A. Like, our relationship, our fighting, what we both wanted, because I wanted SHK and he really, really didn't want responsibility of a child like ever. UL's version of the basis of their union was consistent with DHK's evidence. Indeed, in final submissions he explained (transcript 11 May 2018, page 1307, line 49 – page 1308, line 14): THIRD DEFENDANT: At the time she told me that she didn't have anyone to rely on and that she was scared of being sexually assaulted by her room mates and that she was being taken advantage of with all her money for rent. She couldn't afford to move. I asked her why she didn't move back with her parents and she told me that you know, her dad had died when she was really young, and her mum didn't see her anymore because of her step father. So, I took it within the decency of my heart to offer her a place to stay so she could get her stuff together and it wasn't by any means an advance by my behalf at the time to pursue a relationship with her. I was genuinely concerned for her wellbeing. I had met this other girl before I had ran into DHK, but that girl had went on holidays and when she came back to Sydney and she asked me to see her, me and DHK weren't firmly in a relationship - we had slept together. But then during that time I'd found out that DHK was - had fallen pregnant. 1. Whereas the St George Hospital social worker note on 14 October 2014 recorded that three years previously (15 years of age) DHK frequently used ecstasy, in evidence DHK said that the record was inaccurate because whilst at that age she used cannabis, she had taken ecstasy on one occasion only. Taking the evidence as a whole, including the uranalysis obtained from DHK in 2017 and 2018, the evidence does not support a finding of regular use of any illicit substance except cannabis, at any time in her life. 2. DHK conceded that on occasion of the many domestically out of control experiences when cohabiting with UL she, during one such instance, punched him when he pushed her up against a door and on another instance swung a guitar at him. DHK's evidence showed that she concedes and appreciates that the Department considers domestic violence to be a risk of harm in relation to the safety and wellbeing of SHK. 1. Some weeks (precise date not in the evidence) prior to giving birth to SHK, because of the unhealthy environment of her relationship with UL, DHK commenced living with RS. The bulk of her belongings including clothes remained at UL's Arncliffe unit. She hoped to continue her relationship with UL, they together parenting SHK. She forthrightly conceded that she visited and stayed overnight about once per week with UL. Her evidence was that those visits typically resulted in them arguing and she would have to leave. She also gave evidence of staying with her best friend, JL, at Rockdale. She took clothes with her when staying with RS and GL or JL. 2. The joint evidence of DHK and UL was that albeit she was staying with RS and GL but visiting UL in that way, DHK broke off their romantic relationship on Valentine's Day 2015. 3. DHK gave birth by unplanned caesarean section to SHK at St George Hospital on 28 December 2014. When it was put to her that a risk of harm report recorded her speaking of "adopting legally" SHK to RS, she referred to her "freaking out" about having a baby and being on painkillers. She again denied that she over time participated in a course of discussion with RS about adoption of SHK and again maintained that she spoke with UL, the father of SHK, about their future plans rather than directly with RS. DHK frankly, and in my opinion believably, disputed the anonymous reporters account of her referring to "legally" adopting SHK to RS: transcript 20 March 2018, page 423, line 20. 4. There is no issue in the case that DHK loves her daughter SHK. DHK was adamant that from the time she saw SHK she was sure of her want for parental responsibility. This is consistent with the case notes of Caseworkers Rajaretnam and of Ms Eisenhauer. 5. DHK's conceded she asked Caseworkers for information on adoption services. She also responded that it was offered to her. 6. On the whole of the evidence, I accept DHK's oral evidence to the effect that in the tumultuous circumstances of her youth and inexperience, and the situational crisis defined by lack of normal support such as from family, the influences of RS, her lack of appropriate housing and financial provision, and UL's reluctance toward fatherhood; she was not disinterested in the option of adoption because she selflessly wanted information on all opportunities to achieve the best for SHK. DHK's evidence was (transcript 20 March 2018, page 430, lines 5 – 9): Q. Yes, but as at that time, did you have in your mind, "Well, the plan is that RS is going to adopt SHK," or you weren't sure? A. No, 'cause when I had SHK, I wanted her the second I saw her, so therefore, adoption was off the straight away. 1. Caseworker Rajaretnam's interview note 30 December 2014 records that at the commencement of the interview DHK was told by UL via phone that she did not deserve the baby: affidavit Eisenhauer 19 March 2015 at [12] and Annexure G. 2. On 5 January 2015 Caseworker Eisenhauer asked for a reduction in cannabis use but not for abstinence. Caseworker Eisenhauer was advised by DHK that adoption was off the table. DHK understood that the Department was concerned with her cannabis consumption in regard to her capacity as a parent. 3. In partial compliance with Ms Eisenhauer's directions, DHK did attend recommended services and attended uranalysis appointments. 4. In oral evidence DHK denied that RS pressured her to agree to his adoption of SHK. She said that he encouraged her by telling her that she would be a good mother. Establishment September to December 2014 – The UL and RS Submissions 1. The submission advanced by UL and by RS is that: 1. The Department falsely represents that there was not an assigned Caseworker for SHK prior to 5 January 2015 and in fact Caseworker Fiona Eisenhauer was that assigned Caseworker; 2. At the time of birth of SHK the Department planned to take SHK into care and caused her to be placed in the Special Care Nursery to permit it to achieve out of home placement with foster carers; and 3. The Department, if it were truly concerned that SHK was at serious risk of harm, would have taken steps to intervene and ameliorate the risks the subject of its concerns including domestic violence and cannabis use between September 2014 and the birth of SHK on 28 December 2014. 1. The fractured history of the failure of the parents or of DHK alone to have achieved restoration in cooperation with the Department and without court proceedings and subsequently the unsatisfactorily prolonged and fractured course of the proceedings is in great part contributed to the inability of UL and of RS to accept the veracity of an alternative point of view. Each of them in the facts of the case and in their performance during this appeal hearing displays mistrust and resentment of the alternative point of view. 2. The above allegations against the Department including the belief that the Department tricked or failed the parents by refusing to place SHK with RS and GL during the planned steps toward restoration, are so heartfelt by RS and UL that in these reasons I examine the contemporaneous documents in detail. The process is prolix and inefficient. I do so for the purpose of exposing the best and most objective evidence. It is hoped that going forward from this judgment UL and RS might contain their resentments and have more faith in the process by my doing so. The future of SHK will be less hampered by fractured process of cooperation between participants in matters effecting her. 3. Examination of contemporaneous records of the events which occurred between September and December 2014 requires consideration of Exhibit 16 and Exhibit 16 Additional Documents. 4. Exhibit 16 in the Department's case was originally composed of 177 pages. In closing submissions UL tendered and the parties agreed to be added to Exhibit 16 a composition of documents referred to as "Exhibit 16 Additional Documents". The Department did not paginate the original Exhibit 16. In order that UL's and RS' submissions referring to documents within Exhibit 16 Additional Documents could be dealt with efficiently, I paginated them. Unfortunately this means that the two portions of documents within Exhibit 16 (the Department's original bundle) and Exhibit 16 Additional Documents (tendered by UL from the Department's papers) has resulted in the bundles being separately paginated. In order to understand these reasons, references are made to Exhibit 16 documents pages 1 – 177 and Exhibit 16 Additional Documents pages 1 – 55. The five page index at the commencement of Exhibit 16 is not included in this pagination. This analysis also makes reference to the contemporaneous St George Hospital clinical notes contained in Exhibit 7. 5. On 15 September 2014, the above referred to anonymous risk of significant harm report was received and recorded by Helpline Clerk/Clerical Ms Simone Edwards and the script was approved by Peter Garland: Exhibit 16, pages 174 – 176; Exhibit 16 Additional Documents, pages 53 - 55. That no reference in the Contact Record is made to Caseworker Fiona Eisenhauer is evidence positively contrary to the submission of UL and RS that she was the assigned Caseworker at that time. 6. The social worker entry at 9.30pm on 14 October 2014, made following DHK's admission concerning her having fallen down stairs whilst between six and seven months pregnant during a domestic violence incident with UL records that DHK was "noticeably distressed and began crying and sobbing loudly". It was in that time of DHK's emotional turmoil the social worker recorded: "Pregnancy was unplanned and [DHK] states she does not want to keep baby – she is considering adoption.". 7. On 17 December 2014 the Department was informed by an anonymous caller reporting on DHK's attendance for antenatal care at St George Hospital that DHK had on an unspecified date prior to 17 December 2014 "moved house". The Contact Record for the Department's receipt of that information has not been identified to me in Exhibit 16 or otherwise in the evidence. The fact of its receipt is recorded in the continuing history portion of the Contact Record made at about 7.20pm, 20 minutes following the birth of SHK at 7pm on 28 December 2014: Exhibit 16, pages 149 – 152. 8. The Contact Record of the Department gives the address for DHK and UL as the Arncliffe apartment. The documents plainly show that the Department having been informed of DHK's change of residence did not ask DHK for her new address. Nor did the Department receive that information from the anonymous caller with whom contact on 28 December 2014 was received. At Exhibit 16 page 149 the Contact Record is: I asked the caller if the mother still has the same address and phone number. Caller said as far as is known. I told the caller I would copy this information from the previous report rather than taking it from her again. I did not read the previous report thoroughly during the phone call and only scanned it. Later it was discovered that in that report the mother had said she had moved house but the caller did not get the updated address. 1. The Caseworker at 10.23pm called St George Hospital seeking "an updated address for the family". She was informed that the earlier caller, who assumedly had spoken with DHK, had gone home and was advised that "the address the hospital currently has is the [Arncliffe unit] address from the previous report". The file note reads that someone, whose name is redacted, "will ask staff to check with [DHK] what her address is." At 10.43pm the Caseworker received a call from someone who said DHK had said she lived at the Arncliffe address. 2. In the circumstances of reported domestic violence and of UL and DHK as a couple sharing cannabis use, it was obviously important for the Department to know whether or not she had moved out and ceased living with UL at Arncliffe. 3. It was put to DHK that she had informed the anonymous caller at hospital that she was living at Arncliffe. She was challenged as to whether she had moved from that address to RS' address in Leumeah. The Department contested DHK that aware of the risks of domestic violence, had removed herself from the residence of UL at Arncliffe to reside with RS and GL at their residence in Leumeah in order to provide safety and wellbeing for SHK in the better provisioned and safer environment of their home. 4. As will be discussed, Caseworker notes of the 30 December 2014 interview of DHK and the Department's Secondary Assessment State 2 report dated 30 December 2014 plainly recorded that DHK was regularly residing with RS and GL and not with UL. She told the Department that she had moved out. 5. The Department's challenge was, in my opinion, unfair. It was based on patent oversight of what was in fact recorded in its records. 6. The Department did not have the address of RS. Having overlooked that entry the Caseworker chose not to speak to DHK or to the caller, who from the Contact Record was a person caring for DHK immediately after her birth, but asked someone at the hospital for the address "for the family". It was the wrong question. The Department was aware of the history of domestic violence of UL. The inquiry not surprisingly, was answered with what was either the "family" address being the Arncliffe unit or DHK's mail address. 7. I accept DHK's answer in cross-examination that she would have given her mail address if asked by the hospital for her address. The fact of that Department record of address is in those circumstances is not inconsistent with her case that she was residing with RS and GL. 8. In cross-examination DHK was challenged that she told hospital staff at her admission for birth of SHK that she intended "to adopt this baby out to a family friend" meaning RS. The Contact Record reads "the mother has said she intends to adopt the baby out to a family friend." The entry appears in part of a summary of history by the Caseworker making the note. It is not recorded in the first person as something stated to nursing staff on 28 December 2014. The registered nurse's clinical notes entered 9pm 28 December 2014 record that she raised with DHK an entry in antenatal social work notes concerning adoption. Accordingly, the record from notes put to DHK as made by the nurse after the birth of SHK was in fact made by a social worker two months beforehand. DHK is recorded as having confirmed to the nurse that RS and GL planned legal adoption, they not being able to conceive and "would really love the experience of raising a baby". 9. Earlier I referred to the Department's cross-examination of DHK putting that at about the time of birth she spoke of "adopting legally" her new born daughter to RS. DHK denied the proposition whilst frankly conceding that she cannot be sure what she said whilst "freaking out" about giving birth. 10. There is nothing in the entry of the nurse consistent with DHK saying on her admission for birth of SHK that she intended to adopt SHK out. Indeed the Contact Record records that within a few hours of undergoing caesarean section "[DHK] still wanted to try to breast feed." Worldly experience is that task would have likely been associated with significant discomfort. I accept DHK's evidence that from the moment she saw SHK she wanted to care for her as her mother. 11. The Contact Record made after birth on 28 December 2014 records the following matters which were put to DHK in cross-examination in the context of the Department's case of the risk of her being engaged in some informal adoption arrangement with RS. That she arrived with flea bites on her legs, not wearing shoes, with bad body odour, no change of clothes for herself except a pair of socks, no maternity pads, no nappies and only one outfit for the baby. The Contact Record then records "By contrast" UL attended smartly dressed from work, asked staff what the baby needed and went to get same. 12. As the Caseworker was aware at the time of making that entry, the birth was pre-term and by emergency caesarean section. It was not a planned date or time of delivery. DHK's evidence is that she had stayed overnight with UL (27 December 2014) at his Arncliffe unit. UL's pet was a cat with a flea problem and DHK is allergic to cat fleas (medically confirmed). Whilst UL was at work her waters broke and she called RS to assist her to hospital for the birth. After her waters unexpectedly broke, DHK had asked UL to bring to her in hospital the required provisions for SHK. 13. The Caseworker's expression "By contrast" is unfortunate. DHK was barely 19 years of age and without support. This passage of cross-examination was harsh or unfair given the written records of the above circumstances. 14. To the extent that the Contact Report of 28 December 2014 records that RS was overbearing, cynical and unpleasant during his being at the hospital, on the whole of the evidence of this case, I have no hesitation in accepting that description. To the extent that the anonymous caller is recorded as having reported that he was overheard to have spoken inappropriately, in uncouth terms when explaining to UL by telephone the state of dilation of DHK's cervix, in my view, it is nothing of significance. Exhibit UL1 and UL2 and text messages from RS show that, on occasion, he is the user of uncouth language. To the extent that it is recorded that the anonymous caller reported RS' behaviour as being odd or of a concern because of the level of his interest in DHK's medical progress; the callers poor judgement of RS was misconceived because she could not have been aware, as the Court is, that RS considers himself to be a self-educated medical expert providing healing advice and consultation to persons he considers to have "fallen through the cracks" of mainstream medical treatment. 15. What is apparent from the Contact Record of 28 December 2014 is that RS's overbearing approach offsided persons including, on occasion, from viewing DHK with unaffected perception. 16. It is not surprising, nor is criticism of the anonymous callers to be found in the observation that they called to report concerns. Their information is not verified or checked. They may not in some circumstances have enjoyed the opportunity to do so. The provision to the Department of information by anonymous calls from concerned members of the community and workers in hospitals of risk of harm is obviously important for the purposes of the Care Act. It is important that the Department is able to react, as and when required, in order to protect the safety, welfare and wellbeing of children. 17. The Department's document Plan Details records an approval on 30 December 2014 by Approving Manager Ms Adele Murdoch. Ms Eisenhauer's name appears as allocated caseworker. The start date is identified as 15 September 2014. RS and UL submitted that this document and Exhibit 16 Additional Documents, are proof that Ms Eisenhauer had been allocated caseworker since 15 September 2014. 18. As RS and UL were informed during oral closing submissions, the Plan Details cannot have been completed before 30 December 2014, the date it bears, and therefore the document is not of itself positive evidence of the fact that Caseworker Eisenhauer was assigned Caseworker with responsibility for SHK on 15 September 2014. 19. That proposition was a fundamental plank of the allegation of UL and RS that the Department dishonestly presented its case that Ms Eisenhauer did not commence her role as continuing Caseworker with authority for SHK prior to 5 January 2015. 20. Likewise, the Assessment Record records the same particulars of Caseworker, Approving Manager and approval date: Exhibit 16 Additional Documents, page 50. Additional information on that Assessment Record is the recording of the approval by Douglas Harrap of the Department on 29 December 2014. Indeed at Exhibit 16 Additional Documents, page 52 that Assessment Record refers to the 15 October 2014 domestic violence event and identifies the St George CSC office Caseworker at the start date of 15 October 2014 not to have been Ms Eisenhauer but a Mr Merrick McAulay. The recording of Mr McAulay as Caseworker on 15 October 2014 is evidence positively against the submission of fact made by RS and UL that Ms Eisenhauer was assigned Caseworker at that date. The submission as orally put by UL and RS overlooked that entry entirely. The documents continue to refer to Manager Caseworker Mr Harrap across events from September to 29 December 2014. 21. On 29 September 2014 a Unborn Child High Risk Birth Alert Form (Exhibit 16 Additional Documents, pages 47 – 49) concluded with a box entitled Community Services authorisation/follow up contact naming Caseworker Eisenhauer as the "Name of Community Services Officer at St George CSC" and also names Manager Caseworker Mr Doug Harrap. It is signed by each of them. The form described itself as intended only for addressees. The addressees are identified South East Sydney Area Health and Sydney Local Area Health (Exhibit 16 Additional Documents, page 47). The document is a notification of high risk indicators for DHK as a pregnant woman, the indicator being her illicit substance use. As I informed UL and RS during oral closing submissions, the document does not speak for more than the fact of Caseworker Eisenhauer with the authority of Caseworker Manager Mr Harrap performing the single activity of divulging by notification to the Area health Service, namely St George Hospital, the otherwise confidential information held by the Department. The Document does not of itself speak of Caseworker Eisenhauer at that time working under assignment as allocated and continuing Caseworker. 22. Contact Records of various dates between 15 September 2014 and 30 December 2014 record DOCS worker involvement including by Ms Margaret Filippello, Director, head office, start date 2 October 2014, Helpline Caseworker Fulya Akdogan 16 October 2014, script of helpline record approval by Kararae-Minshall 16 October 2014, Ming Chai Helpline Caseworker and script approval by Mr Ben Woodward, 18 November 2014, Claudine Innes Helpline Caseworker and script approval by Rajan Rejani 17 December 2014 and Janet Anderson Helpline Caseworker and script approval by Abigail Fogarty on 28 and 29 December 2014. Each of the Contact Records for those events identifies Allocated Worker as Ms Eisenhauer, Approving Manager as Ms Murdoch and the approval date of 30 December 2014: Exhibit 16 Additional Documents, pages 28 – 45. Those documents cannot have been created prior to 30 December 2014, that being the latest date entered on each document. 23. A Weekly Allocation Meeting Event Review Form contains a Summary of Details Regarding the Department's contact and concerns associated with DHK and SHK. It was created by Mr McAulay on 22 December 2014 for the meeting to take place on 23 or 30 December 2014. Attendees at the meeting were K. Small Acting Manager Community Services, Mr Douglas Harrap Managing Caseworker and Ms Adele Murdoch Acting Managing Caseworker. That the document was created by Mr McAulay and not by Ms Eisenhauer is evidence positively against finding as a fact that Ms Eisenhauer was the assigned Caseworker for SHK and or DHK at 22 December 2014: Exhibit 16 Additional Documents, pages 19 – 24. 24. At 2.55pm on 30 December 2014 Caseworker Anita Rajaretnam took notes in an interview with DHK conducted by Caseworker Rebecca McNamara. The handwritten and typed transcript notes of that conference are contained in Exhibit 16 behind File Note Record which identifies Ms Rajaretnam as "Primary" Department Caseworker: Exhibit 16 Additional Documents, pages 7 – 18. At 4.30pm on the same day, Caseworker Rajaretnam took notes of an interview conducted by Caseworker McNamara with RS for a duration of 40 minutes. The File Note Record for that activity again identifies Ms Rajaretnam as the Primary Caseworker: Exhibit 16 Additional Documents, pages 1 – 6. The typed transcripts of those interviews were completed the next day, 31 December 2014. The File Note Records (Exhibit 16 Additional Documents, pages 1 and 7) identify Ms Rajaretnam as the Primary Caseworker on that date also. 25. The 30 December 2014 interviews were the first detailed investigative contact with DHK and therefore a significant step in the Department's involvement. That Ms Rajaretnam was the Primary Caseworker is evidence positively against the proposition that Ms Eisenhauer was the assigned Caseworker at all prior to 31 December 2014. 26. The evidence is wholly against the proposition that Ms Fiona Eisenhauer was the assigned Caseworker for SHK and/or DHK in the period 31 December 2014. 27. During oral submissions, UL shifted his submission somewhat and proffered if not Caseworker Eisenhauer; then that a manager had been allocated to SHK's care from 14 September 2014. That fall-back position does not meet with the records which record manager oversight of Caseworker activities and changing managers such as Mr Harrap and Ms Murdoch. It also fails because those managers were not conducting those activities. The evidence is not more than that at St George CSC manager authority was required for authorisation of such important things such as the informing of St George Hospital of sensitive and unverified reports of risk of harm received from anonymous informants. 28. The report of DHK having self-harmed by cutting her arms in about October 2014 is likely not to be accurate. It does not sit well with plural other records of her ceasing self-harming behaviour years before. 29. The Department's Secondary Assessment Stage 2 report created on 30 December 2014 at 1.06pm by principle Caseworker Rajaretnam, Caseworker McNamara and acting manager Caseworkers Adele Murdoch, before interviewing DHK and RS summarised the anonymous risk of harm reports and assessed the risk of harm to SHK as high: Exhibit 16, pages 112 – 113. 30. Up to 30 December 2014, being the date of interviews performed by Ms Rajaretnam and Rebecca McNamara, it was appropriate of the Department in the exercise of its functions under the Care Act to have proceeded with cautious concern for the risks of harm alleged by the anonymous callings. 31. Ms Rajaretnam's notes of interview with DHK on 30 December 2014 read as though she was only able to record pieces of information and not text of things said. This incomplete reporting appears throughout the handwritten and typed notes. For example: R[ajaretram] how do you think it's going to work? [typed transcript omits reference to DHK speaking] Raising child? [typed transcript omits full handwritten note which read "Raising child with me?" [typed transcripts omits reference to DHK speaking] I want to at least. 1. The striking omission from the interview notes is any reference to the Caseworker's discussion with DHK of the entering into of a voluntary Temporary Care Arrangement. Entry into the TCA was a most significant event because it was the parent's agreement for SHK to be placed in foster care short-term. 2. The making of that arrangement was obviously a major commitment by the parents and in particular DHK. It was a voluntary agreement to surrender control of care for the short-term. 3. The interview occurred less than 48 hours after SHK's birth, at a time when UL was telling DHK that she and they were not equipped to care for the child and that he did not want fatherhood responsibility of the child. He had, to DHK's understanding, been unfaithful following her informing him that she was pregnant. DHK was unsure whether or not there was a future for her relationship with the father of her child, UL. DHK had moved on a temporary basis to stay with RS and GL to avoid the abuse of UL. She was aware that her new baby was in the Special Care Nursery having born pre-term at 37 weeks and underweight (7th centile at 2280 grams) and when seen by her was being fed by nasalgastro tube: Exhibit 7, pages 3 – 4 and 10 – 11. 4. Hospital clinical notes Exhibit 7 pages 14 – 15 are the hospital social worker, Ms Tierney's notes of the report to her from Anita Rajaretnam and Rebecca McNamara immediately following the interviews they conducted with DHK and RS. It is in those notes (at page 14 – 15) that the social worker recorded having been told by the Caseworkers that the Department had issued the TCA and that DHK was agreeable. Those notes confirm that from 5pm 30 December 2014 the hospital was aware of the TCA and that SHK was under the supervised care of the Department. 5. Social worker Ms Tierney's note at 5pm 30 December 2014 records that Caseworkers Rajaretnam and McNamara informed her that there would be an assessment of the "home situation". This is entirely consistent with DHK's evidence that she entered into the TCA on the Department's assurance of assessment of placement with RS and GL. There is no contest on the evidence that DHK held the view that placement with RS and GL was the best placement promising safety, welfare and wellbeing for SHK. 6. The notes of the hospital social worker Ms Tierney so far as Exhibit 7 goes which is up to 2 January 2015 show that the prospect of adoption was introduced by social worker Tierney to DHK, not sought by DHK from Ms Tierney and DHK rejected Ms Tierney's proffer of adoption as a plan for SHK. 7. These contemporaneous objective records fill the gaps in Caseworker notes. They corroborate DHK's version of events. 8. The hospital clinical notes Exhibit 7 confirm that DHK expressed love and displayed nurturing for SHK from birth including that she asked to hold and cradle her only hours after DHK underwent caesarean section and asked to breastfeed and attempted to breastfeed SHK who was displaying discoordinated sucking. DHK also asked if she could express her milk for bottle and nasalgastro feeding of SHK. She attended the nursery regularly and won the approval of the nursery nursing staff in every aspect of care for her baby. General nursing observed DHK to be "appropriate" with baby and with staff. The nursery notes record: "Holding baby for long periods, appears to be bonding well with baby.": Exhibit 7, page 10. 9. Doing the best I can with the hand written and typed notes at interview on 30 December 2014 the following important points were discussed: 1. DHK was upset during the interview because UL may have lost his job (there is no contest that the couple were in financial stress, flatmates of the second bedroom had left or failed to pay rent and DHK was not working). 2. After an upsetting phone call with UL, DHK told Caseworkers that he had said she did not deserve the baby. 3. Ms Rajaretnam apparently made reference to bits of information giving concern that DHK might not be able to look after SHK (assumedly the anonymous risk of harm reports). 4. DHK believed RS was going to help her and had been of great support. 5. DHK's plan was to stay with RS and GL. DHK did not know what her future with UL was. 6. UL was DHK's boyfriend of 11 months. 7. DHK disclosed slipping down and receiving a concussion resulting from fighting with UL. DHK denied the report that UL had hit her with a broom and choked her (contradicting the October 2014 Social Worker notes). 8. When Ms Rajaretnam informed DHK of the reports of cannabis use DHK conceded using cannabis and catnip for insomnia and said she last used cannabis two months before. 9. DHK wanted to raise SHK. 10. The only family support DHK had was her sister who was proud of her. DHK's sister resided with a male partner. 11. DHK conceded that RS had been overbearing. 12. When six months pregnant DHK went to visit her mother to whom she had not spoken in two and a half years but her step-father spat on her and she was unable to garner maternal support. 13. DHK spoke of her abused and dysfunctional upbringing and of her anxiety and depression. She had seen the school counsellor but never a psychologist at a medical centre. 14. UL's best friend, K, "uses drugs up all night" and DHK had to tell UL that would cause her to break up with him. 15. On being told RS came to hospital smelling of alcohol; DHK having referred to RS' "heart in the right place" responded that RS' office is downstairs where it smells, he wore unchanged shirts and that he was a computer genius. 16. UL had an AVO against his mother MT. RS had an AVO against UL's mother MT. 17. When asked if UL had ever hit her, DHK responded UL had held her mouth. When asked if UL had put his hands around her neck, DHK answered "not normally". DHK said UL feels guilty and cries and blacks out. She tries to separate from him then. If there are friends over she separates him. When asked if she was scared, DHK answered that she was used to it from the trauma of her childhood (recorded by the Caseworker as traumatic stress disorder) and she disconnects. 1. Immediately following completion of the Department's interview with DHK, Caseworker Rebecca McNamara and Primary Caseworker Anita Rajaretnam on 30 December 2014 commenced at 4.30pm an interview RS. Again the notes are disjointed and there is not an affidavit of Ms Rajaretnam to interpret them. Doing the best I can with the written evidence, the relevant, significant points are: 1. In response to being informed of risk of harm reports that DHK wanted to give SHK to RS, he maintained that in response to UL's not wanting the responsibility of fatherhood when informed of the pregnancy, having been adopted himself, he asked to adopt SHK so that UL could "work it out" but he was not successful because whilst DHK had been fantastic, UL had not "stepped up [to the] plate". 2. The parents were under financial stress including because UL's mother MT breached an AVO (she had been occupying the second bedroom of the Arncliffe apartment UL leased and left them to cover the rent). 3. When asked of the situation of his adopting SHK, RS responded that it was not going to happen, that UL was not up to parental responsibility, that DHK would have to work out her relationship with UL, and that RS and GL had offered DHK a room to live as DHK wants to "do it on her own". 4. RS considered counselling an excellent idea for the parents. RS maintained that he did not expect DHK and UL to work out their relationship problems. 5. The Caseworkers read the 30 December 2014 TCA to RS: Exhibit 16, pages 122 – 126. 1. UL was not interviewed on 30 December 2014. He was at work. 2. The Department's Secondary Assessment Stage 2 entries by principle Caseworker Rajaretnam, Caseworker McNamara and acting manager Caseworker Adele Murdoch at 6.09pm on 30 December 2014 following the above interviews noted the TCA entered into by DHK for a period of one week, recorded that DHK was planning to live with RS and GL and she would like to give GL "a sense of raising a child" but recorded that in interview RS "kept butting in" while Caseworkers were speaking with DHK. They recorded that RS was "very clear that he is looking at adopting" SHK with GL (Exhibit 16, pages 114 – 115). Plainly this entry of RS' intention to adopt is inconsistent with the notes of interview with RS recorded by Caseworkers Rajaretnam and McNamara. It recorded: [RS] presented to [Caseworkers] as very grandiose, painted himself as a 'knight in shining armour', rapid speech, denies any involvement with [mental health] and said was hyperactive but never medicated. [RS] was told that [the Department] is assessing [DHK]'s parenting. [RS] also requested contact with [SHK] while she is in [Special Care Nursery] – this was not approved by [Caseworkers] and [RS] was not happy about this. 1. Secondary Assessment Stage 2 as at 30 December 2014 recorded that DHK was appropriate with and affectionate towards SHK. 2. The TCA made between the Department and DHK (Exhibit 16, pages 102 – 104) identified Caseworkers as Ms Rajaretnam and Ms McNamara and RS as support person. It specified that the reasons for the TCA were for the Department to complete assessment and checks of possible care arrangements for SHK and to provide that information to DHK and to provide DHK with information on adoption while DHK continued unlimited access and attention to SHK in the Special Care Nursery. 3. Exhibit 16, pages 116 – 120 is the SDM Safety Assessment Decision Report dated 30 December 2014. It identifies Ms Rajaretnam as the relevant Caseworker and the Approval Status as "submitted". It is not signed by a Manager Caseworker, nor does it identify Department managers. Accordingly it speaks only as being the summary assessment document created by Ms Rajaretnam. The document provides the following: 1. The Dangers listed in s 1(A) are dangers described by the anonymous called in risk of harm reports and therefore the Department continued to operate with the caution that risks might have been accurately reported in those calls. Caseworker Rajaretnam recorded that DHK's account of the domestic violence (particularly 14 October 2014 her report to social worker Tierney of UL beating her with a broom) was different. I observe that the Caseworker was left with interpretation of an anonymous report of domestic violence in the home and with DHK's report (above described) to the social worker of significant physical violence whilst she was six and half months pregnant on the one hand and DHK's report earlier that day (30 December 2014) that UL put his hand on DHK's throat and covered her mouth but did not beat and kick her. As already observed, the social worker interviewed DHK at a time of peak duress and when she was medicated. 2. SHK was not a "Drug – exposed infant" which is a terminology of some definition in the Department's protocol and a matter which RS and UL in submissions considered to be important. 3. DHK "Actively" participated in entering a TCA whereby SHK will reside in the Special Care Nursery until 6 January 2015. I observe, from the interview on 30 December 2015, SHK's residence in SCN was by agreement between the Department and DHK. SHK's immediate pre-term healthcare including nasogastro tube feeding required her admission to Special Care Nursery from birth and beyond 30 December 2014. Safety Intervention of DHK agreeing to place SHK with the Department pursuant to the TCA so that the Department could complete a comprehensive assessment was an intervention of DHK in response to a safety decision that SHK might otherwise have been unsafe. 1. These contemporary notes necessarily defeat the conjectural submission of RS and UL that DHK has admitted to the Special Care Nursery and retained in the Special Care Nursery only because of her NAS score and because at birth the Department had planned with the hospital to exercise assumption of Care of SHK. 2. Caseworkers had observed "a power dynamic between [DHK] and [RS]" which in combination with DHK's vulnerability in the situation of her young age, limited family support, and being "in what appear to be" a domestic violent relationship, as relevant to DHK not having protective abilities. 3. DHK wanted to discuss the issues with UL before deciding what to do which concerned Caseworkers that DHK had not demonstrated insight into what Caseworkers perceived to be the impact of the domestic violence of that relationship in DHK and the impact of that on SHK. 4. The 30 December 2014 SDM Assessment provided that a comprehensive assessment by the Department "will assess whether proposed person RS is a safe resource for" SHK and DHK, the Department interpreting that DHK was still in a relationship with UL, "the alleged perpetrator". 5. At this point it is helpful to refer to some summary observations of St George Hospital treating psychiatry registrar Dr Bowes from her interview with DHK on 7 January 2015. Dr Bowes recorded: 1. DHK was upset with her mother for letting her step-father throw her out of the house prior to her Higher School Certificate because of an argument about her pursuing her career as a dancer whilst he wanted he to go into the Australian Army. 2. DHK was disappointed and angry that her mother had not contacted her since she had had the baby and they had not had contact for two years. 3. RS wanted to adopt SHK and DHK felt UL was putting pressure on her and making her feel guilty, he getting angry at DHK and telling her that she will be a bad mother. 4. DHK acknowledged "wanting to have [SHK] adopted earlier in the pregnancy as she was worried that she has only [now] been with [UL] now for 11 months and [then] did not want him to feel trapped in the relationship. States that once she had [SHK], there was a physical bond and so decided to keep the baby." 5. DHK's presentation was not of mental illness but "was consistent with an acute situational crisis." (emphasis added): Dr Bowes clinical notes 7 January 2015, page 13 of 16 in Exhibit 7: affidavit Neasbey 28 May 2015, Annexure A. 1. The evidence of DHK concerning the antenatal period through to the Department's assumption of SHK on 19 February 2015 but in particular, within that period, from the birth of SHK on 28 December 2014 is of particular importance because the assessment of realistic possibility of restoration requires consideration of whether evidence of present 2018 circumstances shows that DHK is likely to be able to satisfactorily address the issues that led to removal of SHK: s 83(1) and (7). For the purposes of assessment of realistic possibility for restoration, that period permits the Court to observe DHK with the immaturity of just past 19 years of age, facing the responsibility for parental care of the child she loved, in circumstances of wanting to make a family for SHK with UL when UL was not enthusiastic for parental responsibility, when UL's tension over parental responsibility led to him discouraging DHK, when RS was offering support and assistance but was set of the view that only placement with himself and GL was appropriate and when DHK, in the situation of the immaturity of decision making of her age and lack of worldly experience had no support or assistance external of UL and RS. 2. Her capacities, reactions and behaviours in the period leading up to assumption of SHK into care are to be viewed from the perspective identified by Dr Bowes and DHK's then acute situation crisis. 3. On 31 December 2014 Ms Rajaretnam interviewed UL, he having not been available for interview because of attending his work on 30 December 2014. Again, the File Note Record identifies Ms Rajaretnam as the Primary Caseworker on 31 December 2014 which is evidence positively against the submission of UL and RS that Ms Eisenhauer was assigned the responsibility for case work prior to 5 January 2015. 4. UL informed Caseworker Rajaretnam that he would not agree to adoption including "open adoption". He discussed with Ms Rajaretnam his history of domestic violence including court proceedings surrounding AVO's in relation to himself, RS and his mother MT. He described RS' support for him including encouragement and financial support toward obtaining his HSC and that he had lived with RS when RS was partnered to MT. He reported his mother's conviction for striking the head of a neighbour's child and of her bipolar mental health illness. He said that he did not support medication by antidepressant of the bipolar condition. UL said that he has to manage his own behavioural problem. Again, Ms Rajaretnam's notes of the interview are disjointed and hard to follow. 5. The Department's Secondary Assessment on 2 January 2015 (Assessment Record Exhibit 16, pages 145 – 147) noted that a St George Hospital social worker report recorded that RS was perceived to be "very possessive over the baby" but DHK "said that she has not made any promises to [RS] to give the baby to him and his wife who cannot have a baby, and that she is thinking of her options." 6. This note is consistent with DHK's oral evidence that she did not agree to adoption of SHK to RS and GL. In a phone call the St George Hospital social worker acknowledged that "the baby would not be discharged until [the Department] attends and assess the safety of the baby." This comment would be consistent with the evidence of DHK and UL that they entered the TCA on 30 December 2014 having been told that placement with RS and GL would be assessed prior to discharge of SHK. 7. The primary Caseworker is identified as Irene Strauss. The Secondary Assessment was approved by Caseworker manager Douglas Harrap. Again, the Secondary Assessment is evidence positively against the submission of RS and UL that Ms Eisenhauer was the assigned Caseworker prior to 5 January 2015. Birth of SHK – Did the Department Plan to Take SHK – Consideration 1. The Risk of Harm Reports received before the birth of SHK gave the Department good cause for concern for the safety, health and wellbeing of SHK. 2. UL and RS argue that the Department formed a plan prior to her birth, to take SHK into care. As a component of the plan the Department required SHK to be admitted to and retained in the Special Care Nursery. They argue that SHK was retained in the Special Care Nursery on the false basis that her NAS score was above 8. They say only NAS scores above 8 on three occasions and being a "drug exposed infant" according to the use of that term in the Department's protocols would validly justify retention of a baby in the Special Care Nursery. 3. The clinical notes of birth are not in evidence and there was no specialist obstetric expert opinion evidence. Nursing clinical notes a 9pm 28 December 2014 (Exhibit 7, page 16) record that DHK was prepared for emergency delivery birth, was very distressed and vomiting and birth commenced at 5.45pm. At 6.05pm SHK's heartrate reduced to 60 – 80 beats per minute and was not recovering. The decision for caesarean section birth was made. At 7pm SHK was born "in good condition". 4. On 29 December 2014 SHK uranalysis was positive for cannabinoids and for opiate screening. The comment in relation to positive cannabinoid screen result was that it be treated with caution as it had not been validated for the sample type: Exhibit 16, page 71. Parental opiate consumption is denied. The Department does not produce evidence or make a submission to the contrary. 5. SHK was born requiring management of the following problems: 1. Pre-term infant at 37 weeks; 2. Low birth weight (2,280 grams, 7th centile) requiring nasogastro tube feeding; and 3. Neonatal abstinence syndrome for cannabinoids. 1. SHK was admitted into the Special Care Nursery at 15 minutes of age. She did not score NAS above 8. 2. There are no clinical nursing notes in evidence of 29 December 2014. The nursing notes of 31 December 2014, as analysed elsewhere in these reasons, record DHK to have been a well attentive and nurturing mother supporting nursing direction for breastfeeding and pumped breast milk for nasogastro tube feeding according to the special needs of SHK. 3. On 30 December 2014 the TCA placing SHK in the temporary care of the Department for one week was agreed to by DHK and UL. Nursing clinical notes at 9.55pm 30 December 2014 describe SHK as a "new admission" to the Special Care Nursery at 6.30pm "for temporary assumption of care". Because SHK had been in the Special Care Nursery since about 7.15pm 28 December 2014, that entry is objective evidence of nursing recording, not at the time of birth but two days after birth and following the making of the TCA, that St George Hospital and the Special Care Nursery commenced to proceed (at that time) on the basis of assumption into care. It is inconsistent with the admission to the Special Care Nursery being on the basis of assumption into care prior to 6.30pm on 30 December 2014: Exhibit 12, page 12. 4. That the Discharge Referral Note at Exhibit 16, pages 68 – 70, printed on 19 January 2015 and at Exhibit 7, page 2 – 7 printed on 28 November 2016 state that SHK "was admitted into the Special Care Nursery at 15 minutes of age for Assumption of Care" is not more than an after the event summary statement. It is not contradictory of the more precise chronology of assumption into care available from the contemporaneous clinical notes. 5. The reliance of RS and UL on the Discharge Referral as evidence supporting a finding that SHK was admitted into the Special Care Nursery by the hospital at the compulsion of the Department immediately following birth is to be rejected. The evidence well establishes that SHK was admitted to the Special Care Nursery because of her medical needs, in particular her low birth weight for her pre-term age requiring monitoring and tube feeding whilst she acquired the requisite weight and until her ability to adequately suck for breast feeding improved. 6. For those same reasons, their argument that NAS scores caused SHK to be retained in the Special Care Nursery must be rejected. Was Ms Eisenhauer or another Caseworker or Manager assigned prior to 5 January 2015 – Consideration 1. I understand the above subheading to incorporate not just the allegation run throughout the hearing by UL and RS that Ms Eisenhauer was the assigned Caseworker to responsibility for SHK's care from September 2014 but also UL's final submissions fall-back position that if not Ms Eisenhauer then a manager was assigned to that responsibility. The above detailed analysis of the documentation plainly shows that the argument of RS and UL is untenable. The contemporaneous records plainly show that prior to the birth of SHK the Department fielded the events of reports of serious risk of harm which were called in by well-meaning persons and that from the birth of SHK Ms Rajaretnam initiated casework and a plan for caseworker involvement was approved at manager level on 30 December 2014. UL's proposition that the Department ought have but elected not to provide domestic violence intervention and other support services prior to the birth of SHK, is "perfect world" hindsight. There is no evidence of what action the Department might have taken, nor of what effect, if any, it might have had. Establishment – January 2015 to Assumption into Care 1. On 5 January 2015 Caseworker Eisenhauer joined Caseworker Rajaretnam in an interview with UL and DHK. 2. Prior to the arrival of DHK, UL informed the Caseworkers that: 1. DHK had informed him that she was "really attached" to the baby; 2. He wanted the best for SHK; 3. He and DHK, having discussed it, had decided they wanted SHK "to have her two parents"; and 4. That he had told DHK that he was not confident he would remain monogamous with her in five or six years but that he would not "necessarily move out to compromise" SHK. 1. On direct questioning he answered that he was in a relationship with DHK. 2. On DHK joining the interview the following relevant matters arise from that interview: 1. Only UL was working. He was working Monday, Wednesday and Friday and was struggling to pay the rent of the Arncliffe apartment. Two roommates had left without paying rent. The apartment had two bedrooms and one was free. 2. Caseworkers sought the parents' agreement to extending the TCA for three months. UL thought that was worth considering but DHK repeatedly said she did not agree to three months because she really wanted to be with her daughter. 3. UL and DHK were agreed that adoption was off the table. 4. The parents agreed to uranalysis three times per week for a month and were told by Caseworkers that low level cannabis use was "not an issue". 5. The parents agreed to cooperate with the Department in regard also to counselling but UL said he did not have time "to see 5 different ones". UL thought he did not require Domestic Violence counselling. He was willing to attend one on one counselling but was concerned not to do group counselling because he did not consider himself to be one of those people who really needed help. He had previously been convicted of domestic violence, which conviction was overturned on appeal and he had learnt to control his anger and walk away. 6. Caseworkers informed the parents that the Department viewed RS as a support person. 7. RS had purchased a bassinet which he would give the parents on condition that SHK was placed with he and GL. 1. On 5 January 2015 Caseworker Eisenhauer recorded discussing with her manager: 1. Reducing the TCA request to one month for review and that the parents could nominate the carer if they wanted. 2. Parents to show a reduction in drug use. 3. Individual Domestic Violence training for UL (this was approved). 4. Possible counselling provider identified, dependent on mental health assessment. 5. The manager was not comfortable with SHK going home with the parents. 6. There would be a need to reassess later for a change in SHK's foster placement. 1. On 5 January 2015 UL and DHK entered a new TCA with the Department for one month commencing 6 January 2015 and concluding 6 February 2015, to be reviewed on 2 February 2015 unless the arrangement was terminated by either party prior to that date. 2. As was the apparent practice of Caseworkers, the interview was recorded in hand written notes and subsequently a typed transcript was produced. The typed notes of the interview on 5 January 2015, contained in Exhibit 16, behind File Note Record made 6 January 2015, identifying Ms Eisenhauer as the Primary Caseworker, include the period between 12.34pm and 1.15pm before the interview was interrupted whilst Ms Eisenhauer sought her manager's authority to proceed. The typed notes of the post-intermission portion of the interviewer can be found in Exhibit J to Ms Eisenhauer's affidavit made 19 March 2015. The post-intermission notes record: 1. DHK's support person was her sister. 2. DHK's preparation for SHK to be returned to her on what was the second last day of the one week TCA made 30 December 2014. 3. RS' preparation for SHK at his Leumeah residence. 4. The parents signing the uranalysis agreement. 5. Caseworkers statement that the main reason they were not immediately supporting restoration of SHK to DHK was because of neonatal abstinence syndrome and information received of SHK's NAS score. 6. Discussion of the TCA for one month for the purpose of assessing the parental drug use. 7. That the parents could nominate a carer for SHK, options being DHK's older sister or RS which placement the Department would assess. 8. That the Department would investigate if there was any supported accommodation for the parent's on their detailed financial situation. 9. The parents saying that purchase of cannabis was their lowest priority financially in their tight financial situation. 10. The Department would "book in" uranalysis, drug and alcohol assessment for UL and mental health assessment for DHK. 11. The manager had agreed to fund 10 Domestic Violence therapy sessions for UL and UL agreed to attend uranalysis and Domestic Violence therapy. 1. The factual propositions put by DHK, RS and UL are corroborated in those written notes: 1. DHK's sister who lived in Mt Druitt was her one very good friend and a support person. 2. DHK had acquired a pram, clothes and nappies and was organising a change table. 3. RS had acquired a bassinet for SHK "if SHK comes back to our place". 4. After speaking to their Manager, Caseworkers informed UL and DHK that the "main reason why we're not supporting [SHK] going home is because of neonatal abstinence syndrome – we've got some info in regards to NAS". 5. After speaking to the Manager, the Department wanted SHK to remain in care for one month "so we can see [uranalysis results] and doing what you need to [for the Department] to assess drug use." 6. UL and DHK could nominate a carer and after mentioning her sister as an alternative, DHK said she and UL "could" nominate RS to which the Department responded that it would have to assess any nominated carer. 7. The parents provided details of their weekly income from Centrelink and from UL's work and of their outgoings. 8. UL and DHK directed their "tight" finances to first priority rent, then food and travel to get to and from work. On the Caseworker specific question concerning "dope" DHK and UL jointly answered "that's last" and RS had helped with food in the past. 9. DHK and UL sought assisted housing and asked for the Department's support in finding it so that they could provide a stable and appropriate home environment for SHK. 10. The Department agreed to organise services and DHK and UL agreed to co-operate in participating in those services referred to above. 1. The references in the 5 January 2015 notes to UL describing DHK not living with him during the discussion of rent and his specific reference to his not having helped her move are consistent with the case advanced by DHK and UL, that the Department was or ought to have been aware that DHK was not cohabitating with UL at his Arncliffe apartment. 2. DHK's evidence was that the bulk of her possessions and clothes remained at the Arncliffe apartment but that she temporarily moved to reside with RS and GL and other persons from some weeks before the birth of SHK, in order to avoid the domestic violence of her relationship with UL. She visited UL about once per week and stayed overnight on about half of those occasions with him as they tried to work on their relationship. 3. The Department's interview notes of 30 December 2014 and of 5 January 2015 are consistent with the evidence of DHK, UL and RS that DHK and UL were planning acceptance of assistance from RS and GL by placement of SHK with them whilst DHK and UL investigated and worked on their relationship, received education and therapy from services as required by the Department and sought to achieve supported housing suitable for the provision of stable accommodation for them with SHK. 4. That Caseworkers had to interrupt the interview to confer with their Manager, before returning with propositions of a TCA for one month and assessment of placement with RS and GL for consideration; must have alerted DHK and UL to the fact that placement of SHK was a Management level determination and not something within the authority of Caseworkers. In oral evidence Ms Eisenhauer confirmed that she could not approve placement and that it was a manager level decision. 5. According to the summary by Caseworker Eisenhauer in her affidavit 19 March 2015 at [21] the services to which DHK and UL agreed to participate from 5 January 2015 included: * Drug and alcohol assessment * Random uranalysis screenings * Mental health assessment for DHK and compliance with recommendations * Domestic violence counselling for DHK * Domestic violence perpetrator program for UL * A parenting program (such as Triple P) 1. DHK and UL did enquire of the Tripe P course. They found that it was a program which assumed that the parent or parents had a baby with them in order to participate. As they did not have SHK they did not consider it useful. In oral evidence Ms Starkey confirmed that the Triple P course was not suitable for parents without a baby. 2. At the commencement of her 19 March 2015 affidavit, Ms Eisenhauer who was the assigned Caseworker from 5 January 2105 and beyond 19 March 2015, stated that DHK "is currently residing" at the Arncliffe residence of UL. As observed above, the contemporaneous documents are consistent with DHK's evidence of her residing elsewhere but visiting UL and on occasion staying overnight. During the 5 January 2015 interview UL had told Ms Eisenhauer directly. Ms Eisenhauer said that the Department also relied on not observing storage of clothing and possessions of DHK at RS' residence during the assessment on 14 January 2015. In her oral evidence Ms Eisenhauer said that RS showed the Caseworkers a bedroom for SHK which contained a double bed but no belongings. There is no mention in the evidence of Ms Eisenhauer or otherwise in the notes that the Caseworkers considered the middle ground proposition which is DHK's evidence, of her belongings being at Arncliffe but that she was not living there. DHK had never claimed to be living permanently with RS and GL. Caseworkers did not ask RS or GL if DHK was sleeping over at their house. 3. On the whole of the evidence, I find that the Department overlooked the important fact that DHK had ceased regular cohabitation with UL. In fact DHK was not living at Arncliffe in the period from before SHK's birth. I accept that DHK did not receive the 6 January 2015 letter directed to Arncliffe which listed the Department's requirements. Nevertheless, on 6 January 2015, UL informed Caseworker Eisenhauer that he had contacted the provider for a Drug and Alcohol Assessment and that DHK had called St George Domestic Violence Service but had to leave a message. 4. On 8 January 2015 Ms Rajaretnam received a text message from RS stating: Believe it or not I am pleased docs are involved as these people need more help than I can give them. As I openly acknowledged things need fixing [DHK] doesn't have a pot problem. [UL] does as a symptom of avoidance behaviour. Still if you're up to date in child psychology, you know it's hard to imagine anyone causing [SHK] more harm than being isolated without affection in the hospital during this crucial time. If you are trying to protect this child from harm then you know getting her back to her mother is the most important issue. So when is my question? 1. DHK and UL were advised by Caseworker Eisenhauer by telephone on 9 January 2015 that SHK had been discharged from hospital to a short-term placement with Life Without Barriers (LWB) fosters carers. 2. The above detailed analysis of the evidence is consistent with DHK's case that she and UL entered the TCA's of 30 December 2014 and 5 January 2015 on the understanding that the Department was pursuing assessment of placement with RS and GL. I accept that the telephone notification on 9 January 2015 that SHK was being placed in foster care, prior to any assessment taking place by the Department of placement with RS and GL was a shock to DHK and UL. I accept that to them it appeared a change of course. I accept that it damaged their trust in dealings with the Department. 3. On 19 January 2015 Caseworker Eisenhauer attempted to refer DHK to Charmian Clift Cottages, a residential program but the referral was rejected. 4. On 28 January 2015 RS enquired of Caseworker Eisenhauer whether there had been any progress toward achieving supported residential placement for SHK with DHK and UL. He explained that they were behind in payment of rent for UL's Arncliffe apartment. He had informed the real estate agent to contact him. He wanted to know if he should assist DHK and UL with payment of rent. He referred to having previously provided assistance to them in regard to rent and food. On the same day, RS sent Caseworker Eisenhauer a text message stating: It seems I was unduly worried. They're paying 2 weeks rent today. To be clear The three times I did pay rent for them was to first secure the place, when their flatmates left them with a huge electricity bill and at Xmas. Once their flatmates left, they only had $120 each after rent so they could only afford crap food. This is why I started providing food. They are not hopeless just poor. 1. The text message is consistent with the evidence of RS that he assisted unconditionally of adoption. 2. To this point in the evidence, references to adoption in the context of all that was said and written are supportive of a finding that as at 28 January 2015 RS sought as close involvement in the care of SHK as he could get including placement of SHK in the home he shared with GL at Leumeah. At the same time, DHK wanted, as she had from birth, to care for SHK including, because it was the only stable and suitable accommodation available to her, at RS' home. She did not want placement of SHK away from her with foster carers she did not know. The context was that she had no source of stable support except for RS since before the birth having sought to physically remove herself from the risk of domestic violence of living with UL, without financial resources for alternative accommodation and whilst the couple pursued correction of the problems with their relationship and compliance with the Department's requirements. 3. Between 8 and 22 January 2015 each of DHK and UL complied with Department required uranalysis. All uranalysis tests indicated positive for cannabis. The levels fluctuated. There is no expert opinion evidence assessing the affects upon DHK and UL of their cannabis consumption, generally or specifically in regard to parenting. The submission of RS that the uranalysis showed the parents were reducing their use is not available on the evidence. 4. As a matter of common sense, a parent whose responses are affected by any drug including alcohol will to the extent of their diminished sobriety provide a diminished standard of care. This is particularly so in relation to events of emergency, circumstances requiring complex and executive decision making and in relation to maintenance of appropriate mood. 5. On 4 February 2015 Ms Eisenhauer emailed Clinical Consultant Ms Sharman at the Clinical Issues Unit of the Department toward receiving the above referred to advice in regard to the uranalysis results. In her enquiry of Ms Sharman, Caseworker Eisenhauer wrote: The parents are young and eager to do what [the Department] asks of them, restoration is the plan. The main concern is the parents (sic) marijuana use. [The January uranalysis results were attached] I plan to do another series of uranalysis once the parents have been to their Drug and Alcohol Assessment and let me know that they are actually reducing their use. When they have reduced we plan to have [SHK] go into a residential facility with her mother and then return home is (sic) no further issues are identified. What I would like to know is at what levels/results would be considered acceptable? If I have an idea of this I can advise the parents more clearly as to what we would accept… 1. The Department's Clinical Issues Unit, Clinical Consultant Ms Sharman, in response to Caseworker Eisenhauer's enquiry informed, relevantly as follows: There is no clear correlation between the amount of cannabis used and the amount of metabolite found in a urine sample. She expanded that "it is very difficult to make a judgement about how much cannabis use would be acceptable. even if we knew how much cannabis [DHK] is using, it doesn't tell us how that affects her,…": affidavit Eisenhauer 19 March 2015, Annexure Y. 1. In oral evidence Caseworker Eisenhauer agreed that the uranalysis did not describe how much cannabis DHK and UL were using or how much their use affected them. She said that because the issue was to assess their parenting capacity, the Department wanted them to undertake Drug and Alcohol Assessment to get through to them an understanding about their usage "and how much it was, what works for them to abstain. And once they'd done and if it was looking like their child was coming back to their care, we could have safety planned around the use of marijuana which, …you know, if it's every Friday night where is the baby going to go, or who is the babysitter.": transcript 11 October 2017, page 181, line 26. 2. There is nothing in the clinical notes to suggest that Caseworker Eisenhauer communicated a requirement of abstinence to UL or DHK. The above evidence did not describe a planned stipulation to abstain before restoration. Her contemporaneously made notes repeatedly record her informing the parents that reduction of cannabis was required. 3. Ms Sharman recommended as an alternative a "safety plan" around their use such as including other people to care for SHK if DHK and UL want to use cannabis sometimes. 4. Two practical observations, in fairness, to be made are: 1. Responsible parents who, for instance, may intend to drink alcohol at a social function, will have their child babysat; and 2. DHK did not have care of and was not breastfeeding SHK because SHK was in foster care. It was never put to DHK in the course of the hearing that had SHK been in her care, she would have continued to consume cannabis, have consumed cannabis when breastfeeding or would have permitted cannabis smoke in the breathing environment of SHK. 1. On 29 January 2015 DHK and UL were interviewed by Caseworkers Eisenhauer and Lindsay. The following points are relevant: 1. Caseworkers advised that because the uranalysis showed consistent use of cannabis at high readings, uranalysis would cease and the parties were to inform Caseworkers when they were ready to reduce use. 2. DHK explained that medication for her nausea during pregnancy gave her migraine headaches and her doctor suggested she mix cannabis with catnip. 3. DHK said that she did not need cannabis because her anxiety had not been bad. 4. On specific questioning as to how cannabis use could affect parenting DHK responded that if she had SHK she would have no need to smoke cannabis. That she had previously ceased smoking. That she did not smoke cannabis every day and did not smoke it when she was busy. 5. UL stated that he did not think that he could cease cannabis smoking because he used it for relaxation but wanted to provide the best upbringing for SHK and was willing to do what he had to. 6. UL informed Caseworkers that the domestic violence course provider had required prepayment by the Department. 7. DHK informed Caseworkers that she would ask a midwife named Kathy at St George Hospital to engage her with a domestic violence course. DHK had tried engaging the St George Domestic Violence Counselling Service but because she had been unsuccessful she asked Kathy to make the referral for her. 8. UL again questioned the necessity for him attending a perpetrator of domestic violence course and complained of difficultly with timing of courses given he was working five days per week. 9. DHK said that she would attend a domestic violence course alone. 10. DHK said she was willing to attend a (one week) parenting course at Tresillian. 11. Caseworkers asked for and DHK and UL agreed to enter a TCA for a further month for SHK placement with foster carers for the Department "to start seeing some action". 12. Caseworker Eisenhauer informed that it had been a difficult decision regarding SHK's placement because RS is "a good support for you guys. [SHK] will be coming back to you. Moving her now will be unsettling for her." It was following that assurance that DHK agreed to the TCA. Ms Eisenhauer continued that DHK and UL did not need to attend uranalysis and to "tell me when you're ready to start to reduce. If it's all good then you can go home with [SHK]." 13. Caseworker Eisenhauer invited DHK and UL to obtain quotes of what they needed for care of SHK. DHK responded that they had all the clothes but would need a bassinet, cot, pram and a "Dr Brown bottle": Exhibit 16, pages 60 – 62. 1. In her affidavit 10 July 2015 at [23] and Annexure 'G' Caseworker Eisenhauer confirmed that the parents up to 29 January 2015 displayed willingness to address the child protection concerns and had made appointments with recommended services. Following discussion on 29 January 2015, they had agreed to the Department's recommendation that SHK not be disrupted by movement from the placement with foster carers because of the short-term before planned restoration pursuant to the Case Plan goal indicated by their motivation toward engaging in services. Indeed on 15 January 2015, only about one week after receipt of Caseworker Eisenhauer's letter of 6 January 2015 listing the services and the contacts for those services, UL had telephoned her to confirm that he had contacted BaptistCare for Domestic Violence Counselling and she had agreed that he could do individual rather than group counselling. DHK and UL had telephoned for Drug and Alcohol Assessment and were hoping to make appointments for 16 January 2015 for UL and for February 2015 for DHK. Exhibit G records Ms Eisenhauer's note that she "praised their efforts for being so efficient and proactive." On 29 January 2015 UL had informed her by telephone that he was to attend Drug and Alcohol Assessment on 30 January 2015 and DHK was waiting for a call back from the service provider for her appointment. He informed that DHK had experienced difficulty obtaining engagement from the St George Domestic Violence Service and asked midwife Kathy for the referral. DHK was "very stressed" and Caseworker Eisenhauer said she would make a referral to Tresillian once DHK's urine results indicated she had not been using or were very low. 2. According to the File Note Record contained in Exhibit 'G' to her affidavit of 10 July 2015, Ms Eisenhauer recorded that she had informed UL that the Department 'had no objection to [RS] and [GL] being carer" and that the Department's concern was only not to disrupt by making an unnecessary change of placement from foster carers when the Care Plan was for SHK "to come home" in the next few months. 3. On 29 January 2015 Caseworker Eisenhauer said that she would organise payment of the domestic violence course for UL and investigate a suitable time. 4. The TCA signed 29 January 2015 listed the same case work and support services requirements as the TCA made 6 January 2015 (described above). 5. On 29 January 2015 Caseworker Eisenhauer informed RS by telephone that the Department had found "nothing wrong or had no concerns about a placement assessment" with RS and GL; however, the Department and the parents had agreed that it was in SHK's best interests to remain in foster care in order to avoid disrupting her attachments in line with the plan to restore SHK back to DHK and UL. Caseworker Eisenhauer's file note records that RS agreed with this reasoning. According to her note, RS enquired that if things did not go to plan would SHK be placed with him and GL to which Caseworker Eisenhauer responded that in that situation the Court would need to be involved and the determination would depend on the parents views and whether the current foster carers were interested in caring for SHK long-term: Exhibit 16, page 54. 6. On 2 February 2015 RS made a complaint to the Department "concerning decimation in the management of" SHK indicating the complaint was forwarded to the Minister and copied by email to Caseworker Eisenhauer: affidavit Eisenhauer 10 July 2015 at [24] and [25]. 7. On 2 February 2015 Caseworker Eisenhauer confirmed that midwife Kathy had contacted St George Domestic Violence Counselling Service on 23 January 2015 and that on 3 February 2015 it was expected DHK would be allocated a counsellor. In her affidavit 19 March 2015 at [36] Caseworker Eisenhauer recorded that UL had been speaking with BaptistCare regarding Domestic Violence Counselling. Caseworker Eisenhauer gave DHK and UL information on the Triple P parenting course starting the following week but UL stated that he was too stressed to start at that time. The record of the interview shows that UL was working five days per week from midday to early evening and was stressed at taking on all of the courses required by the Department in addition to his work. 8. The minutes of the Case Plan meeting on 2 February 2015 attended by DHK, UL, Caseworkers and case managers (Exhibit 16, pages 34 – 50) at page 6 of 16 included that the placement with RS and GL was "suitable" however the Department believed it was in SHK's best interests to remain in her foster carer placement where she was settled. The Case Plan confirmed the Department had given BaptistCare a guarantee of payment for five Domestic Violence Counselling Sessions for UL but that Caseworker allocation for DHK's Domestic Violence course was still pending. DHK had completed a Mental Health Assessment which confirmed she was not depressed and did not need medication but recommended psychological intervention, the Department to assist DHK access in treatment in future. The then current priority was toward Domestic Violence Counselling and reduction of cannabis intake. It noted that Tresillian would not accept referral of DHK and UL until SHK had been in their care for a minimum of eight weeks (page 8 of 16). The meeting acknowledged that DHK and UL contact with SHK had been appropriate and no concerns were identified. There were no current identified concerns for SHK. The Plan was for restoration "in the near future, TCA review on 27 February 2015 to determine whether it be ceased or extended." 9. As at 2 February 2015 DHK and UL had complied with the engagement of services on their part and were waiting on intakes to courses. The Department was to pay for UL's DV therapy. These steps were in accordance with the nine requirements listed on page two of the TCA 29 January 2015. Only three days prior to the Case Plan they had been told their level of cannabis consumption required reduction with the assistance of Drug and Alcohol Assessment and rehabilitative counselling. In her affidavit of 19 March 2015 Caseworker Eisenhauer does not refer to the Case Plan meeting attended by her on 2 February 2015. 10. The Department's contemporaneous records contained in Exhibit 16 do not reveal investigation with DHK and UL of where they were living and to what extent they were living together. Again, as confirmed by the affidavit of Caseworker Eisenhauer made 19 March 2015, her (wrong) assumption was that they were cohabitating. 11. During cross-examination taking her to Caseworker notes for each interview, DHK was frank in admitting she did not recall what was said at each interview. 12. The objective contemporaneous records are consistent with DHK's evidence that she did not support "adoption" by RS and GL. To the extent that she preferred RS and GL to have placement of SHK it was because she preferred placement of SHK with persons she knew and had confidence that they were able to provide financially, provide suitable accommodation and would provide affection and nurturing for SHK; over placement with foster carers whom she did not know. She sought that placement on a support basis according to her difficult circumstances at the time and until she had satisfied the Department's requirements. 13. From birth DHK wanted to mother her daughter SHK, whom she loved. The Department's Caseworkers were pressing for restoration. UL argues that he was supportive of DHK's "mothers choice" at the time but, as he described the limits of his support, only so far as it did not burden him with unwanted paternal responsibility [reference UL submission 17 April 2018]. 14. Even after breaking off the romantic relationship on Valentine's Day, 14 February 2015, DHK through 2015 and even into 2016 hoped to make a "little family" as she put it with UL and SHK. 15. On 11 February 2015 the Department conducted an interview attended by Caseworkers Eisenhauer and Clark, DHK and UL. The following relevant points arise from the contemporaneous notes of that meeting: 1. UL expressed his concerns about problems with foster care arising from the Royal Commission and having investigated Department protocols. UL said that RS' sister had horror stories from being a foster care child and Caseworker Eisenhauer conceded that "there are some bad" foster placements but that improvements had been made since the past. 2. Caseworker Eisenhauer encouraged DHK and UL that the TCA was an informal way of achieving restoration quickly and avoiding Court disputation. That TCA's could only go for three months and there could only be an extension for three months further than that already agreed. Caseworker Eisenhauer informed them that the Department needed to see reduction in cannabis levels for a few weeks and then SHK could be restored to their care without formality. 3. Caseworker Eisenhauer confirmed that the placement assessment for RS and GL revealed "no issues, as such" but GL who was experienced with children worked and RS who had no experience with children would be the main carer. Caseworker Eisenhauer said the Department would have to get someone to teach him. Again she stated that the out placement was expected to be for a short period not warranting disruption of SHK by moving her to a new placement. 4. DHK and UL expressed concerns regarding contacts including that foster carers engaged UL to the point that it interfered with his opportunity to be with SHK. DHK expressed concern that a different person brought SHK to contact on each occasion. They complained contact had been disorganised. They were not happy. 5. DHK complained that the arrangement of SHK being in foster care had caused her such stress that she felt "not mentally stable enough to answer". DHK said that her problem was that her baby was not with her. Each day that SHK was not with DHK, it became worse for DHK. UL and DHK informed Caseworker Eisenhauer that the above combination of concerns caused stress which would be relieved by placement of SHK with RS and GL which would permit them to focus on and deal with their issues to address the Department's concerns. 6. In response to UL saying that his research indicated that the Department would not restore SHK until cannabis use had "come straight down" [as recorded by Caseworker Eisenhauer], she responded that applied in court case circumstances but the TCA arrangement was "different". She advised that they not "panic about what you've read". She referred to all that they had talked about that reduction of drug use was "all we need, [SHK] comes back" [as recorded by Caseworker Eisenhauer]. And "once you've done that I have talked about, that's it, no more, hoops to jump through." DHK said people telling her [and reference was made to contact with foster carers] how SHK is doing, would not make her feel better. [Comment: It is apparent from Caseworker Eisenhauer's hand written notes that UL spoke of placement with RS for as long as DHK required to "get her stuff together". This, in accordance with the above referred to observation, is consistent with UL's approach in January and February 2015. On the other hand, DHK wanted SHK under her care and was attempting to also manage maintaining UL's paternal involvement hoping to acheive a "little family relationship"]. 7. Caseworker Eisenhauer said that she would speak to her manager who was not in on 11 February 2015 and let DHK and UL know if SHK could go to placement with RS by the end of the week. 8. The immediate response of DHK and UL to that statement by Caseworker Eisenhauer was that they would engage in counselling as required by the Department as "top priority" if SHK was placed with RS and GL but again, UL complained that because of his need for work he did not have enough time to do all the counselling the Department required. He said he would attend counselling on a weekend. He said that he could not attend domestic violence counselling because it needed to be prepaid by the Department [note: this is consistent with the failure of the Department's arrangement with CatholicCare – see Caseworker Eisenhauer File Note Record 29 January 2015, Exhibit 16, page 59]. Caseworker Eisenhauer promised to call the service provider that day. 9. With reference to Ms Eisenhauer discussing placement with RS and GL with her manager Caseworker, she told DHK and UL that the Department was concerned about RS' influence over them. That RS had been looking up the Department's policies and had caused DHK and UL to be concerned to the point that on 11 February 2015 they appeared to have "gone on a totally different tangent". [Comment: The notes show that UL was doing all of the talking. He spoke of placement with RS for 12 months whilst he and DHK decided what to do]. 10. In response to UL's statements of his need for time to achieve the Department's required compliances, Caseworker Eisenhauer suggested a reviewed Case Plan after next week with changed time frames and she would provide a copy for DHK and UL to go through. 11. Caseworker Eisenhauer said that she would book DHK and UL in for Drug and Alcohol Assessment and repeated that to see a reduction in cannabis use was the "Main thing, that's what I'd focus on, sooner the better". 12. Caseworker Eisenhauer recorded in her hand written notes that she said "I don't want to see [SHK] at [RS'] for a long time if you guys are getting your stuff together. Not good for [SHK]. Also [RS]." 13. DHK asked if contact with SHK could change from two hours to one hour because SHK was asleep during the majority of the contact time. Contact was twice per week. UL complained that the parents did not have much time and that they were running around like "headless chooks". [Comment: again, it is not recorded that DHK made such statements]. 14. Immediately upon informing Caseworker Eisenhauer of the extent of her mental distress of being without SHK and of SHK being with the foster carers, DHK asked to speak to a counsellor about adoption. 1. As already observed, during cross-examination, DHK explained that she enquired of adoption in February 2015 for the purpose of obtaining information of all avenues that were available to her and in the interests of SHK but not because she wanted to adopt SHK out. Her statement is consistent with a fair reading of the overall contemporaneous records contained in the hospital clinical notes and in the Department's contemporaneous records. Once again, her evidence was to my observation frank and reliable. She made appropriate concessions. I accept her denial that she was planning an adoption. 2. On 11 February 2015 RS emailed Caseworker Eisenhauer in offensive and intimidating terms. As the interview notes of 11 February 2015 show and as was the evidence of Ms Eisenhauer, DHK and UL changed direction on 11 February 2015 from willing compliance with Department supervision whilst SHK remained in foster care, with a view to achieve restoration after about one month of shown reduced cannabis use; to strong objection to foster care and pressing for placement of SHK with RS and GL combined with what has been identified above as UL's and to some lesser extent DHK's less willing compliance with the uptake of the services required under the TCA. 3. The Department in its internal contemporaneous notes for this period referred to its concern for the overbearing influence of RS on DHK and UL. RS' oral evidence was that he was strongly opposed to foster care placement. The content of his email of 11 February 2015 is pertinent to observation of the dynamic of the breakdown of the previously achieved cooperative relationship between the Department's Caseworkers Rajaretnam and subsequently Eisenhauer and DHK and UL. UL's commitment was not as strong as DHK's. 4. In RS's email, after claiming to be UL's stepfather pursuant to the provisions of the Family Law Act and that under child protection legislation, in default of the parents SHK would come to him; he wrote: Are you disapproving of my past, that you break the law and deny the parents their wishes, contravening your own guidelines in the process? If so, then how do you feel about your director? (you do know he served 3 years of a 9 gaol year sentence for heroin trafficking?) see redemption if possible. Or is it just that because you are so new to the job, that you actually think [SHK] is safer in a community home? My sister [L] is from (what we suspect is) the very home you have [SHK], and is the 'What if' to my story. Guess what? Her story is even worse than mine. Much worse! This is not old news The first case study on the royal commission (sic) website shows to steal a quote from your director 'sweeping failures in duty of care to children' by DOCS just a few years ago. [website link to Case – Study – No 1 provided] The royal commission (sic) into child abuse starts on 'out of home care' next month. So if you think I am willing to stand by and have [SHK] subjected to even the possibility of such harm you are sadly mistaken. Any (sic) why are you punishing [UL] for DOCS failures? He is not the DV perpetrator type. He is a victim of over 10 year's physical, emotional and financial abuse, who finally snapped after his mother breached her AVO in September last year and abused him again. Since then he has been angry at everyone, not just [DHK]. Despite numerous police reports spanning a decade DOCS never intervened. Yet another failure wouldn't you say? He needs DV victim counselling to get over the angry (sic) he feels at such injustice. Not DV perpetrator counselling. And from what little I know of [DHK]'s story, I suspect it's very similar. These kids are family to me, so I will be there with them in the morning to do my best to protect them from what can only be described as a broken system. Seriously [RS] (emphasis as written) 1. It is common ground between DHK, UL and RS on the one hand and the Department on the other, that commencing on 11 February 2015 there was a major shift from the prior environment of cooperation. From the point of view of DHK, UL and RS, on 16 February 2015 the Department changed course by refusing placement with RS and GL which had been forecast by Caseworker Eisenhauer when the parents had been compliant by attending assessments and therapy (but were yet to display reduced cannabis use); and on the Department's case, DHK and UL on the basis of newly and strongly based opposition to foster care withdrew from a plan of establishing sufficient compliance over about one to three months and sought a much longer period whilst insisting SHK be placed with RS and GL. 2. Consistent with the frankness with which she gave her evidence, DHK in oral evidence took significant responsibility for what the Department described as the parents change of course. Her evidence was that whereas she had understood from Caseworker Eisenhauer that it would be a matter of weeks under the TCA for her and UL to get SHK back, Caseworker Eisenhauer then said that it would be months. DHK said that she was not influenced directly by RS, that she did not talk with him about foster care but was talking with UL about her child in foster care. She directly stated that she was the one who wanted to withdraw from the TCA because Caseworker Eisenhauer indicated that the foster care placement would be for months and not for weeks. She said that it was over a matter of a few days that the Department made that change of plan. 3. In neither the question of establishment nor the question of restoration is the face of aggravation or contest between the Department and the parents of primary focus. The principles of the Act, s 9(1), make it plain that the safety, welfare and well-being of the child are paramount and therefore they must be the focus. For that reason, the real significance of the shift in the relationship is that it substantially eroded the Department's approach toward achieving satisfaction for SHK to be placed with DHK and UL in the short-term. 4. DHK had indicated that she would cease cannabis use if SHK was returned to her or placed with RS and GL but neither parent had displayed reduced cannabis use. 5. Whilst DHK, UL and RS were strongly of the view that placement with RS and GL would provide protection for SHK including against domestic violence, the Department was entitled to be concerned for its ability to supervise in that placement given RS' aggressive conduct. His email of 11 February 2015 provided a strong confirmation of the reality of the complaints of his over bearing manner and possessiveness of SHK described in the risk of harm reports from the hospital at the time of birth. 6. Caseworker Eisenhauer (affidavit 19 March 2015 at [41]) perceived that both DHK and UL "expressed ambivalence" toward compliance with the requirements of the Department outlined in the Care Plan. It is not difficult to understand that she might have gained that impression of DHK's commitment to compliance because, to some extent, she remained silent whilst UL made the comments recorded in the notes. UL's comments would have conveyed ambivalence. Caseworker Eisenhauer in oral evidence said that DHK was so mentally distressed that her child was not with her that she "couldn't answer". Ms Eisenhauer relied on "impression" that DHK was "on the same page" as UL: transcript 11 October 2017, page 171. 7. Ms Eisenhauer's oral evidence confirms the observation made in this analysis of the contemporaneous notes that DHK did not speak the "ambivalence" attributed to her. Further, the extreme distress observed by Ms Eisenhauer is consistent with Dr Bowes January 2015 assessment that DHK psychiatrically, whilst not mentally ill, was suffering the effects of "acute situational distress". 8. Caseworker Eisenhauer wrongly assumed DHK and UL to be living together. She assumed DHK was of like mind to UL. She did not interview them separately despite the dynamic of domestic violence. 9. On 11 February 2015 a counsellor from BaptistCare informed Caseworker Eisenhauer that she had reduced UL's weekly Domestic Violence Counselling sessions to fortnightly sessions because he was under considerable stress with work and meeting compliance with counselling services: affidavit Eisenhauer 19 March 2015 at [43]. 10. On 16 February 2015, only five days after the 11 February 2015 interview at which Caseworker Eisenhauer had said that there were no issues with placement of SHK with RS and GL, that the main thing was for the parents to reduce their cannabis use to get restoration of SHK and that she would speak to her manager of the plan requested by DHK and UL for placement of SHK with RS and GL, to relieve the parents of their concerns with Foster Care and on their, particularly DHK's, promise to place counselling in top priority in that event; Caseworker Eisenhauer advised DHK, UL and (separately) RS that placement with RS "has not been approved in the short-term – as outlined in the Placement Assessment". The Department also determined to take a long-term view for restoration on account of "the parents ambivalence towards getting [SHK] back in their care". [as recorded in Department File Note Record, Exhibit 16, page 19. 11. In oral evidence DHK conceded that up to assumption into Care of SHK on 19 February 2015 she was smoking cannabis by bong each afternoon for relaxation because she was suffering depression and anxiety. Dr Bowes, psychiatry registrar, St George Hospital on assessment made at consultations on 7 and 12 January 2015 diagnosed depression and anxiety without mental illness triggered by the "acute situational crisis" in which DHK was placed. The circumstances of her youthful age, lack of familial support, relative poverty, unstable accommodation and the stressful dynamics of attempting to maintain what she described as "a little family" with UL, her fear for SHK's welfare in foster care through exposure to the opinions of UL and RS and her want for SHK to be within her parental care, are all confirmed on the evidence. 12. For the purposes of present consideration of the establishment issue, it must obviously be accepted that the Department was in January and February 2015 rightly concerned for the risk of exposure of SHK to cannabis smoke and to parents whose performance might be affected by cannabis use should SHK have been placed with UL and DHK prior to their satisfying the Department of substantially reduced use. 13. For the purposes of present consideration of the restoration issue, the objective evidence is that DHK's cannabis use is to be considered in the context of acute situational crisis and not whilst she was undergoing treatment according to a mental health plan supervised by her treating psychiatrist as she now is. Contemporaneous records from January and February 2015 include DHK statements that she did not need daily cannabis consumption as did UL and that she would reduce or abstain if SHK was in her care, prioritising the well-being of SHK. Evidence obtained this year indicates abstinence. 14. Indeed, in January and February 2015, her behavioural traits were not the subject of a mental health diagnosis and treatment, as they now are. 15. The common specialist psychiatric, medicolegal clinical psychologist and psychologist opinion recently received is that through treatment of the personality behavioural traits, DHK's cannabis use ought to be more controllable by her, her anxiety and depression being lessened by her improved coping skills. 16. Practically speaking, the opposed positions of the Department pursuing foster care until the parents satisfied it of reduction of cannabis use and participation in services addressing the issues; and on the other hand the insistence of DHK and UL, with the wind of RS behind, them opposing foster care placement and insisting on placement with RS and GL; defined the moment of the tragedy in this case. At that time, the Department had no option but to give paramountcy to the then needs of safety, welfare and wellbeing of SHK. Its obligation was to maintain a position of protection so long as the risk to the welfare of SHK required it. The tragedy is that the opportunity for the Department and DHK to work cooperatively toward restoration whilst SHK was still a newborn child was lost. 17. When introducing the case to the Court on 15 May 2017, the Department described the dynamic of that moment as "in essence disengagement [from working under a plan toward restoration]…that since February 2015 there doesn't appear to have been any real engagement with the parents": transcript 15 May 2017, page 45, lines 48 – 50. 18. At the commencement of this appeal there had been no updated mental health assessment of DHK since the St George Hospital clinical note entries of psychiatric registrar Dr Bowes on 7 and 12 January 2015. Privately DHK had received informal counselling from a Mr Howard who had some background study in psychology, a diploma in Community Services and had worked as a Department Carer: transcript 15 May 2017, page 46, lines 6 – 26. 19. The Care Act requires that subject to the paramountcy of the safety, welfare and well-being of SHK, she having been placed in out of home care, the Department was required to include the retention by her of personal relationships with DHK and UL (s 9(2)(f)) and was to be guided by the permanent placement principles (whether by legal or by administrative process) regarding SHK's permanent placement (s 9(2)(g)). From the embarkation upon long-term placement of SHK (definition permanent placement, s 10A(1)) the Act required the Department to focus on the permanent placement principles (s 10A(2)), the cascading order of preferences for which commence with the highest preference being for restoration of SHK to the care of DHK and or DHK and UL (s 10A(3)(a)). 20. As the summary of the procedural history in these reasons shows, during the intervening history between the practical assumption on 19 February 2015 and the accord reached on 17 October 2017 in the course of this hearing the disengagement upon which counsel for the Department opened continued. 21. RS maintains that his position was in mid-February 2015 and has remained that placement with himself and GL was as a "backstop" in the event that DHK and UL were unable to provide an appropriate environment for DHK. His submission is that he is "kin" to UL, that DHK and UL are like family, that placement with he and GL would permit frequent contact for SHK with her biological parents and that SHK would grow with the understanding that placement with himself and GL was an act of love by the parents recognising their difficulties with raising the child. He referred expressly to Permanency Placement Principles s 10A(3)(b) being the "second preference" if it is not practicable or in the best interests of SHK for her to be placed with her parents. Reference to the word "adoption" appears to have found a lax meaning to RS. The Department does not submit that RS intended formal adoption: transcript 15 May 2017, page 50, lines 6 to page 51, line 44. 22. As the above analysis of interview notes between 30 December 2014 and 11 February 2015 shows, UL was supportive of that style of placement with RS because it would provide him with contact with his daughter as and when he sought it whilst her care and well-being was being provided for by someone other than himself and who he held in high regard. He has maintained that position. His reservation is that in the presence of a past of mutually turbulent relationship including an AVO between RS and UL's mother MT, RS may restrict UL's contact with SHK or his mother, if placement was with RS and GL: transcript 15 May 2017, page 52, lines 9 – 29. 23. Up to 19 February 2015 the Department continued to proceed on the wrong basis that DHK resided with UL at UL's Arncliffe unit. Once they had satisfied the Department's concerns in the child protection context if SHK were restored to their care and placement that would be at the Arncliffe unit. Ms Eisenhauer, transcript 11 October 2017, page 154, line 45; page 155, line 10. 24. Given the obvious importance of the risk of domestic violence, DHK and UL rightfully complain that in February 2015 the Department proceeded with a heightened view of that risk. As Ms Eisenhauer explained, Care Plan determination at manager level was made on the basis of the information entered into the Standardised Decision Making document (SDM) by Caseworkers. 25. In cross-examination by RS, Caseworker Eisenhauer conceded that she recalled the risk of harm report 16 December 2014 from the hospital reported that DHK was busy moving house: transcript 11 October 2017, page 168, lines 6 – 8. Caseworker Eisenhauer could not explain why the Department was unable to assess the RS and GL placement before discharge from hospital of SHK and conceded that the Department would have taken some days to organise an appropriate foster placement. Her oral evidence was that she believed the Department did try to assess RS and GL's Leumeah home for placement within the initial TCA (ending 6 January 2015) but, she not being involved in that period, speculated a delay occurred due to low staffing numbers in that period of public holidays: transcript 11 October 2017, page 169, lines 39 – 44. 26. Consideration of the question of Establishment is to be based upon restoration to UL and DHK jointly, not DHK alone. The Act recognises the importance of avoidance of unnecessary intrusion: s 9(2)(c). This course was appropriate and available to the Department. Later, after mid-February 2015, RS's conduct provided additional reasons for management not to transfer SHK from foster care to placement with RS and GL. 27. There was no proposal by DHK or UL for restoration to one of them only at that time. DHK did not inform Caseworker Eisenhauer that she was considering caring for SHK by herself: transcript 11 October 2017, page 170, line 25. That the contemporaneous documentary evidence shows that Caseworkers including Ms Eisenhauer overlooked that DHK was not living with UL, whilst significant, was only one factor in assessment of the risk of domestic violence which they presented as a couple. DHK had not given up on her want for a "little family" inclusive or herself, SHK and UL. She still engaged with him and planned to continue to do so. 28. An important fact is that the the Department did not ever agree that SHK would be placed with RS and GL unless they were assessed as unsuitable. 29. Whilst Caseworker Eisenhauer spoke in terms which the emotionally involved parents understood indicated there was no impediment for SHK not to be placed with RS and GL, they were aware that it was not Caseworker Eisenhauer's decision but required determination at manager level. Management assessed the placement with RS and GL to be unsuitable; initially because transfer of SHK from foster care to RS and GL's home for the then expected short term of some weeks would be disruptive for SHK. There was no breach by the Department of the conditions of the TCA arrangements. 30. On 12 February 2015, RS emailed Caseworker Eisenhauer. The subject was "Sorry and thanks". The document is Annexure 'L' to the affidavit of Caseworker Eisenhauer made 10 July 2015. The tone of expression of the email is grandiose and overbearing. It is not warranted to quote it at length here. RS expressed his apology for causing trouble for Caseworker Eisenhauer resulting from his complaint forwarded to the Minister on 2 February 2015. His apology was in the tone of his assumption that he had in fact caused trouble. 31. RS would, according to his demeanour in Court and as commonly commentated upon by hospital staff, Caseworkers and Ms Starkey, have believed in the force of his complaint. There is no evidence that the complaint was acted upon at all. At one point the document read I'm glad…came to an agreement otherwise you would'[v]e have been infuriated and surprised by my next move. 1. He referred to Caseworkers being over worked and foster care being "in crisis". He described his sister L's foster care placement 40 years beforehand including "the usual abuses, emotional, sexual, forced abortions etc" and to "over 90% of the children died of medical experiments" (emphasis as written). He said that his sisters mouth was scarred by the experiments conducted upon her and that she continues to suffer major health problems caused by the radiation she was exposed to during those experiments. He referred to the benefits of cannabis consumption for "hyper" people like himself and UL who develop a substance tolerance quickly but also to the risk of it causing psychosis, being the reason that he worried about UL "smoking too much". He informed Caseworker Eisenhauer that UL "is about to bail", that he could not tell whether DHK would decide to parent SHK alone but that if she did UL would return in two or three years unless he "sorted his demons" beforehand. RS wrote that he would encourage UL to "stay in the program as long as I can". He concluded with: And please don't stop disapproving of me once [SHK] is safe with us, because while you disapprove, you will fight harder than anyone to get [DHK] up to speed. And she deserves all the help she can get. Again let me apologise for the trouble I have caused and if I can make it up to you somehow, you only have to ask. 1. Caseworker Eisenhauer's affidavit 10 July 2015 at [36] provided: On 16 February 2015, a decision was made not to authorise [RS] and [GL] as carers for [SHK]. Correspondence with [RS] had informed the decision and [the Department] decided that [RS]' influence over the parents and his own intention to adopt and/or care for [SHK] was placing pressure on the parents' decision to adopt [SHK]. [The Department] was also concerned that [RS]' relationship with the parents was distracting the parents away from addressing child protection concerns and would enable [SHK] to return to their care. 1. To the extent that these reasons have observed Caseworker Eisenhauer to have spoken with DHK and UL in terms permitting them to interpret that within weeks or a month they could achieve restoration of SHK by reducing cannabis consumption and participating in courses and therapies to which they had been directed; it is only fair to observe that Caseworker Eisenhauer was in her role encouraging these young parents in the interests of achieving a restoration of SHK to their parental care in accordance with the objectives of the Act and the permanent placement principles in accordance with s 9 and s 10A. She did not promise results or outcomes but alerted the parents to the Care Plan and SHK's placement being a management discretion, not her own. 2. On 17 February 2015 Caseworker Eisenhauer informed UL that having spoken with the Manager Client Services and the Manager Case Work it had been decided that SHK's placement would not be changed due to concerns for RS' lack of parenting experience, age and history of his personal childhood trauma. DHK and UL were requested to attend a meeting on 19 February to discuss the Department's decision and to organise adoption counselling if needed. On the same day the parents were emailed contact details of an Adoption Counsellor and an information booklet called "Mandatory Written Information on Adoption, Information for Parents". 3. Caseworker Eisenhauer on the same day received a text from RS stating: "If you thought we would take this lying down, think again. Check your email. I look forward to seeing you in court.": affidavit Eisenhauer 19 March 2015 at [46]. 4. On 17 February 2015, RS attempted to attend contact organised only for the parents. From the contact, the Contact Worker informed the Department that RS said he was supposed to be taking SHK into his care and there was a chance that he would adopt her. Previously on 3 February 2015 RS had been informed that for him to attend any contact it was necessary that he make a request to the Department beforehand. 5. On 18 February 2015 Caseworker Eisenhauer received two separate and identical emails sent 17 February 2015 from DHK and UL's email accounts. The emails attached a letter dated 17 February 2015 which, on the common evidence, was drawn by RS and signed by each of the parents and GL. Each of the covering emails by the parents informed the Department that they were withdrawing from the TCA but were "still willing to work with [the Department] in a cooperative manner." 6. The content and style of the letter dated 17 February 2015 drawn by RS caused me in Court to direct to him that it was evidence in the character of his participation such that his overbearing involvement would have made it like stepping over a fence for caseworkers to get participation toward restoration from the parents. I observed that I had been required to control him from interrupting even when it was an enquiry from myself to DHK on occasion. 7. In DHK's Reply oral submission at the conclusion of the hearing she said that RS' readiness to speak for her on occasion had impinged her opportunity to speak for herself. I did not receive this as a submission opposite her general acknowledgment that RS supported her case. However, DHK's presentation as a reliable, attentive and intelligent witness during her extensive cross-examination was a more composed and confident presentation than she gave on her appearance in May 2017. At the commencement of the hearing in May 2017, she acknowledged that due to her anxiety and depression (then untreated by Dr Newlyn) she would be assisted by RS speaking in her interest. When the matter was before the Court in October 2017 she expressed her difficultly with concentration on documents. She said she was not able to read across all of the thousands of pages in the case and was assisted by RS in that regard. Specifically, Dr Newlyn's December 2017 clinical notes referred to her difficulties with reading at that stage according to her diagnosis of ADHD, then untreated. His treatment notes spanning December 2017 to March 2018 (discussed in detail in these reasons) record DHK's improvement of function. 8. During 2018 evidence DHK gave the following frank evidence specifically concerning issues at the heart of the Department's assumption of SHK into care after termination of the TCA's and with specific reference to the 17 February 2015 letter drafted by RS. She conceded that she could not correctly recall the content of communications three and a half years beforehand. She did not challenge the Department's documentary evidence of interviews and other communications in that regard: transcript 21 March 2018, page 480, lines 1 – 5. 9. DHK readily accepted that her compliance as at early February 2015 was not sufficient for the Department to restore SHK to her company. She gave the following evidence (transcript page 480, lines 7 – 14): Q. Did you have an expectation that as at early February you'd done enough to have SHK-- A. No, I never said once I'd done enough. I had been convinced and like somehow actually believed that I'd get her back if I did everything that the department wanted me to do including fill out forms for a, put your, what do you call it, it's like Charmian Clift or something, even though you actually have to have your kid with you in order to be eligible for these type of places, but I never got told anything like that. 1. In the following evidence during cross-examination, she frankly refused the opportunity to deflect blame to RS for the 17 February 2015 letter (transcript page 480, line 20 – page 484, line 46): Q. Did you ever even see it properly-- A. Yes, I had it in front of me. Q. --did you read it before it was sent? Sorry? A. I had it in front of me before it was sent. Q. Whose idea was it to write that letter? A. All of our ideas I'm pretty sure, I don't know. Q. Can I suggest you didn't all three of you suddenly at the same time have the same idea, I'd suggest-- A. No, I don't think so. Q. --to write a letter like that. So it's likely that someone came up with that idea. A. I'm not sure who came up with the idea but maybe it was to do with my lack of confidence and the department's like ability to help me and provide me with assistance when it comes to maintaining SHK being with me. Q. It was RS's idea to write that letter for you to withdraw, wasn't it? A. Honestly, I don't know and I'm not going to agree to something like that 'cause that's just a bit left field. Q. I need to put this to you because it's a submission I'll be making-- A. Yes. Q. --so you understand the context, but with respect, you appear to be very protective of RS in your answers that you've given-- A. I'm not protecting-- Q. --do you agree or disagree with that? A. I disagree. Q. You're attempting to say that he wasn't talking to you about adoption or he was encouraging-- A. From my knowledge, right, because I didn't talk to RS about these things because I was talking to UL about his child in regards to her being in foster care, okay? Q. UL is involved in information technology, that's his work? A. Yes. Q. He works with computers. A. Yes, he did. Q. Why wasn't he capable of writing this letter? A. I don't know, 'cause he's lazy. Q. Well, do you know exactly why it was that RS decided to type it? A. No, I don't know. Q. Did you even have any say in the fact that this letter was going to be written or were you consulted at the-- A. Yes, because I was the one that wanted to withdraw from the temporary care arrangement as I just explained to you why. Q. In that letter it says this, along it: "Especially considering FACS knows we were planning to adopt her, knowing how desperate GL and I were for a child and our window had passed was the primary reason for not terminating her in the first place." I can show that to you to read but that is the passage in that letter. A. Okay. Q. That's written by RS talking about himself. A. Okay. Q. Did you read that part of that letter before you signed? A. Yes. Q. This is what I'm trying to clarify with you, RS is making plain in that letter and the word used is "desperate"-- A. Okay. Q. --for himself and GL for a child and he suggests that the primary reason for SHK not being terminated was because of him and GL, do you accept that's a fair reading of what I've just read to you? A. Sure, I accept that that's a fair reading but it's kind of obvious that I couldn't get a termination whether I wanted one or not because I was 16 and a half weeks pregnant. Q. But that was something RS was making clear to you-- A. Yes, but it's clear now and adamantly clear that I wanted my baby. Q. But I'm asking you about what RS was telling you before SHK's birth and I'm suggesting that he was making clear to you a degree of desperation to care for SHK to you. A. Okay, yes, sure, he was desperate to care for SHK. HIS HONOUR Q. You're agreeing that he was? A. Yes, that's what it says in the letter. I don't know if that's what he wanted to do, I'm not sure if that's what he wanted to do because I'm not RS. MCGOREY Q. No, but that was something that was said to you before SHK's birth. A. And I can't actually guarantee that's what was said. Q. You can't rule that out? A. No, I can't, but I can't agree to it either because there's, I, yeah, no. Q. This is another passage in there: "The father definitely still wants us to adopt SHK as he knows he is not up to it yet but still wants to be part of SHK's life. The mother was pretty sure she wasn't up to it either but she too still wants to be part of SHK's life, too." HIS HONOUR Q. That, by the way, is you being written about in the third person. MCGOREY Q. Is that something, and I'm asking you about that description, that what RS put in this letter is if this is accurate or not at this time, that you considered you weren't, you were pretty sure you weren't up to it either. A. I don't know, I'm not sure. Q. Was RS saying things like that to you? A. As in like was he telling me that I wasn't up to being a parent? No. Q. How can you be sure about that if can't you remember-- A. Because as I've stated once before, RS has only ever given me confidence in myself to be a mother. Q. You don't recall being surprised when you read that letter to see something like that written by RS about you? A. I don't-- HIS HONOUR: I withdraw that, I reject that. Q. Did you read it? A. Yes. Q. Before you signed it? A. Yes. Q. Thank you, now you're being asked a question, were you surprised to see that contained in it when you read it at the time when these matters were fresher in your memory than they are now? A. I'm not sure, I don't think so. MCGOREY Q. It's also stated there that, it goes on to say, "That was until FACS workers put pressure on her not to adopt it and have declined to make the counselling services available to consider it." A. I don't know. Q. Is that how you felt as at 17 February? A. As I said before, Fiona requested, I requested from Fiona that I see an adoption counsellor but she never organised it. Q. Well, when you say you requested-- A. Because I didn't know whether or not I wanted SHK or not because obviously with the aspect of financial accommodation, everything in regards to actually parenting a child didn't really think I had all the necessary possibilities or like what if to that. HIS HONOUR Q. That was right at the start in early January just after birth, wasn't it? A. Yes, even though I was still a hundred percent-- Q. Was your child still in hospital then? A. On the 7th? No, no, yes, she was-- Q. Yes she was. A. Yeah, she was discharged on the 9th. MCGOREY Q. I'm just trying to understand, I thought your evidence was that, you know, after SHK's birth-- A. Yes. Q. --adoption was off the table for you-- A. It was. Q. --so why were you, and I understood you to say you never used that term "adoption"-- A. Because I wanted to keep all of my options open, I've only ever wanted the best for SHK since I've seen her, since I saw her on me when she was born, didn't matter that I wanted her or not, as long as she has the best life, that's all that matters. Q. So it was something that you were considering, you hadn't decided but you were considering that possibility? A. Yes. Q. The idea of having adoption counselling, was that something RS was talking to you about, do you-- A. No. Q. Well, how did he know to write in the letter that FACS had-- A. Because I had told him. Q. You remember that? A. Yes, I do, because I asked Fiona why I hadn't been provided with an adoption counsellor number so I could discuss the possibilities of what might happen. Q. Because up until early February you had indicated that you wanted to get SHK back in your care to the department, yes? A. Yes, I'm getting so confused. Q. So the department was working with you to achieve that and I'm just trying to understand how it is that as at 17 February there appears to be quite a firm view being expressed in the letter about SHK being adopted or considered for adoption by RS, I'm just trying to understand how you understand that came about. A. Again, with the having all option open, I, I can't even answer this, I'm not RS, I can't give you an answer. Q. Well, this is a letter you signed-- A. Yes, I know I signed it-- Q. --and it's purportedly on your behalf, did it really represent what you felt at that time? A. Yes, because, oh my gosh. Because the department changed what they were going to do within like a day from three weeks to three months, that's why I wanted to withdraw. 1. UL's evidence was that the content of the letter drawn by RS had been discussed between the four signatories. In his presentation of the case he focused upon the statement of the parents' willingness to continue to cooperate with the Department's requirements for them to attend services and in that endeavour, the proposed Care Plan then put forward by himself, DHK and RS to the Department. 2. The letter of 17 February 2015 was inaccurate in its complaints, expressed opposition to the Department's governance of care and wellbeing for SHK and promoted placement of SHK with RS and GL as follows: 1. It falsely alleges a breach of the TCA agreements to provide access to services for the parents, as follows: 1. Wrongly alleges that the Department failed to introduce DHK and UL to providers of the nine services set out in the TCA's in that the evidence shows DHK and UL contacted Domestic Violence course providers, DHK was introduced to Triple Parenting and subsequently recommended to Tresillian albeit the parents' contact with the providers might have been complicated by course availability outside of work hours for UL and there is even a suggestion, not denied by Caseworker Eisenhauer during cross-examination, of courses being unavailable in the post-Christmas and New Year period for some weeks. In particular, as had been plainly expressed to the parents, they needed to evidence reduced cannabis use and only satisfactory engagement in those services, not completion of therapies and courses, before restoration could be assessed. 1. Wrongly alleges the Department had prior to the birth of SHK and from September 2014 failed to provide domestic violence counselling and assistance, which for the reasons given is a unrealistic point of view exercised with the benefit of hindsight, displacing blame particularly in circumstances of UL repeatedly stating to Caseworkers that he did not feel that he required Domestic Violence Perpetrator Counselling. The submissions making reference to ss 151, 10A, 34 and 25 are without factual basis on my above analysis. 2. Declares plainly that RS and GL were planning to adopt SHK because they were "desperate…for a child and our window had passed [which] was the primary reason for not terminating her [SHK] in the first place." Throughout this appeal hearing RS denied intention to adopt SHK. DHK's being 16 weeks pregnant at the time, as is her evidence, makes the "primary reason" submission to be without evidentiary foundation. 3. That UL wanted RS and GL to adopt SHK, knowing "he [UL] is not up to it yet, but still wants to be part of [SHK]'s life." 4. Wrongly alleges that Caseworker Eisenhauer tried to "get around" placing SHK with RS and GL by "pressuring" DHK and UL to enter another TCA. The interview notes of 29 January 2015 record that DHK wanted return of SHK to her and was concerned about foster care but the parents agreed to the logistics of maintaining the foster care placement in circumstances of the intended short-term expected for their compliance before restoration. 5. Falsely alleges that Caseworker Eisenhauer had agreed that SHK would be placed with RS and GL when she had made plain to the parents that placement was a matter not within her own, but within her manager's discretion. 6. Wrongly alleges trickery by stating that whereas DHK and UL had been advised that reduction of cannabis use was required before restoration, the Department's 2009 Parent Drug Testing Policy required that after a child was taken into care and before restoration abstinence shown in uranalysis of not less than three months was required. There is no evidence that following proof of substantial cannabis use reduction and satisfactory participation in the services, the Department would not have restored SHK to her parents. Indeed all of the contemporaneous evidence is against the proposition that such a protocol would have been an impediment to restoration. 1. The tenor of the 17 February 2015 letter plainly proposed the role of RS as the person in control of the welfare of SHK. This is particularly apparent in the following quoted passage coming immediately after expressing the parties withdrawal from the TCA and acknowledging "concerns that still need to be addressed" Which is why the parents have agreed to have [SHK] stay with [GL] and I at Leumeah, and have no unsupervised contact with her, until they decide what they want to do and can work out there (sic) issues to [the Department]'s satisfaction, therefore removing their child from risk of 'significant harm' as per the principle of your act. If [the Department] disagree with that they will have to prove it in court. Still as I said before, I was glad for your involvement as I want these kids to get all the help they can get, so they can get past their rough beginning and have a normal life. So in that spirit, We propose a new voluntarily (sic) care agreement that will protect [SHK] while upholding the principles of the act, and in accordance with your guidelines and policies in an honest attempt to actually fix the problems. 1. Further, whereas the proposal by RS, UL and DHK for Voluntary Care Agreement of duration three months with possible renewal upon review set out in the letter of 17 February 2015 provides for supervision by the Department including of contact with SHK by DHK and UL and for the parents participation in weekly counselling services; it does so by providing restrictions on the Department's exercise of authority. It stipulates uranalysis three times per week and every second week if goals and time frames to achieve compliance are clearly defined in writing, "provision of a new Caseworker as we have lost faith in this one" and that "the Department restrain its care plan direction toward restoration in terms of putting no more pressure on DHK to not consider" adoption. The Department was asked to give 10 to 15 minutes notice before arrival to assess the provision of care for SHK in the placement with RS and GL. 2. An obvious difficulty with the proposal is that it required the Department to delegate to RS the supervision of SHK on those conditions. Whilst negotiation of the terms of the agreement was expressly offered, that fundamental premise pivoted upon the Department placing trust in RS when after 29 January 2015 his pressing for placement with himself and GL and allegations of the Department's lack of good faith, "deliberately setting them up to fail" (letter 17 February 2015, page 4) provided a poor foundation for there to be an assumption of trust. Trust required acceptance of the Department's authority and responsibility for the care of SHK. For instance, the Department would not be able to police that the parents contact with SHK was only at the three weekly contacts it supervised. As Caseworker Eisenhauer put it, in part: well the department at the time wouldn't have been confident that the - RS would have protected the child from the dangers of and access to the parents. [transcript 11 October 2017, page 160, lines 5 – 8]. 1. Most obviously, the letter is entirely in the expression of RS and promotes his involvement. It refers to DHK and UL in the third person. The letter is of an antagonistic and overbearing style. A fair reading of the letter by a Caseworker entitled them to be concerned that RS had influenced DHK and UL against acceptance of compliance with the Department's requirements for them to complete services unless SHK was on RS's terms, placed with he and GL. 2. As the above quoted passage of her evidence during cross-examination by counsel for the Department showed, albeit DHK frankly accepted her intended participation in withdrawing from the TCA and her signing of the letter, its internal allegations were not significantly in accord with her views. 3. On 19 February 2015 DHK telephoned Caseworker Eisenhauer upset. She initially asked that UL not have contact with SHK because she was very disappointed with UL's commitment to SHK, he not really wanting to see SHK. DHK had then told UL that he could prove her wrong by attending contact with SHK alone. DHK expressed to Ms Eisenhauer her fear of UL such that she did not want to attend contact and asked if contact could be organised separately for herself and for UL. This was denied by case work manager Nelson because the Department needed to speak to both parents in interview concerning their withdrawal from the TCA. 4. On 19 February 2015 at 1.50pm, the Life Without Barriers Contact Worker telephoned Caseworker Eisenhauer reporting that UL was alone at the contact insisting that the parents had withdrawn from the TCA and he was to take SHK to RS and would call the Police for assistance if required. 5. At the end of the contact time, UL asked the Contact Worker to leave with him and SHK to meet RS. The Contact Worker refused. The Contact Worker reported that RS and UL were waiting outside. 6. At 2.02pm DHK sent a text messaged to Caseworker Eisenhauer asking that SHK go to RS and GL for care "so at least I won't worry about her, while I work out what I'm going to do". 7. At 2.06pm Caseworker Eisenhauer received a telephone call from UL sating that he wanted SHK to be transferred to RS' care as proposed in the above referred to 17 February 2015 letter and 18 February 2015 emails. He informed that he was happy to discuss a plan going forward but insisted that the Department had no legal right to keep SHK since the parents had withdrawn from the TCA. 8. Caseworker Eisenhauer then received a text message from RS stating: [UL] has asked the Caseworker at Ingleburn (sic) to hand over to me. So has [DHK]. As she is no longer under your care can you please instruct the worker to hand over now? Or do I need to get the police involved. [affidavit of Eisenhauer 10 July 2015 at [42] and [43] and Annexure P]. 1. In consultation between Caseworker Eisenhauer, Manager Client Services, Ingra and Manager Caseworker Nelson the decision was taken, given the child protection concerns had not been addressed by DHK and UL and concerns that SHK would be placed with RS; that SHK be deemed to be at serious risk of harm. SHK was assumed into care at Ingleburn CSC: affidavit Caseworker Eisenhauer 10 July 2015 at [44]. 2. In oral evidence Caseworker Eisenhauer conceded that she had never interviewed DHK separately from UL. She recalled DHK's expression of fear of UL on 19 February 2015. 3. Whilst DHK as a 19 year old was responsible for her actions and gave frank evidence in that regard (above) concerning her withdrawal from the TCA and signing the 17 February 2015 letter; on the whole of the evidence including Caseworker Eisenhauer's recollection of her distress, tears and expression of fearfulness on occasions, DHK's decision making at the time is properly viewed in the context of her relative immaturity combined with her "acute situational crisis" identified by Dr Bowes psychiatric registrar, St George Hospital at that time. 4. This is relevant for consideration of the likelihood of DHK satisfactorily addressing the issues which caused assumption of SHK into care, in the present assessment of realistic possibility of restoration. 5. In February 2015, focus upon the paramount consideration of safety, welfare and well-being of SHK required the Department, as it did do, to take a protective and precautionary approach. In the Department's Assessment Record created 19 February 2015 (Exhibit 16, page 4) recorded under "Assessment Element: Assume Care Responsibility s 44", the reasons for SHK being assumed into care were stated as: Parents have admitted to using marijuana on a daily basis, the (sic) has (sic) been incidents of DV in the past between parents. Parents have not demonstrated sufficient engagement with services in timeframes expected in the Temporary Care arrangement. Parents are also suggesting that their child is adopted to a family friend and this appears to be an informal adoption arrangement. 1. That the parents signed the 17 February 2015 letter, confirms that those observations of concern were reasonably held by the Department on the basis of the whole of the evidence to that point. 2. It is immediately relevant to the above observation of concern for trusting RS with the control of safety, welfare and well-being of SHK if placed with him and GL at their Leumeah home that a factor influencing SHK's vulnerability identified commonly at the commencement of the SDM document of 30 December 2014 and the SDM document of 27 February 2015 was the potential for limited "visibility" of SHK if discharged into care without the Department's involvement. Visibility is fundamental to the Department's ability to meet its statutory responsibilities. I accept that RS's oppositional conduct and grandiose assumption of his role justified the Department's concern for loss of visibility if SHK were placed with RS and GL. 3. On 24 February 2015 the Secretary filed the Care Application. Establishment Conclusion 1. The above detailed analysis has preferred the evidence of documents contemporaneous with events in circumstances where there is conflict between the positions taken by UL, RS and/or DHK on the one hand and the Department on the other during the course of this appeal hearing. Overall I have found the oral evidence of DHK to be generally corroborated by those contemporaneous records and I have accepted her on that basis and on the basis of my observation of her during extended cross-examination, to be a witness of truth and reliability. 2. My analysis of events spanning the history up to the making of the Interim Care Order on 21 April 2015 has found the evidence to be overwhelmingly in support of the correctness of the Department's exercise of its power of assumption. It follows that I dismiss the appeal challenging establishment. I repeat that in the course of the hearing it was UL and RS who passionately pressed those grounds of appeal, not the plaintiff and appellant DHK. She expressed her understanding that UL and RS did not fully understand the law and legal process. 3. For completeness and because UL referred to certain provisions of the Act, I add as follows: 1. For the purposes of s 23, the Department was entitled to, as it did, take action firstly by reaching the Temporary Care Arrangements with the parents and subsequently by Assumption to protect SHK from living in a household where there had been incidence of domestic violence and where SHK would be at risk of serious physical or psychological harm (s 23(1)(d)). Without confidence in "visibility" the Department was required to be concerned that it could not protect SHK from risk of domestic violence of UL and DHK in the home of RS and GL. 2. The reports of heavy cannabis use by UL and DHK and of their domestic violence received by the Department, prior to the birth of SHK, were reports pursuant to s 25 and by the time of practical assumption on 19 February 2015, DHK had not engaged successfully with support services to eliminate, or minimise to the lowest level reasonably practicable, those risk factors: s 23(1)(f). In my opinion, SHK was a child at risk of significant harm within the definition provided by s 23(1); 3. The action taken by the Department in the environment already analysed in detail but which included principally ongoing cannabis use of the parents at an unacceptable level, ongoing risk of domestic violence (accepting DHK was not cohabitating with UL at the Arncliffe unit) and inadequate participation through the services required by the Department, it was reasonable for the Department to determine that SHK was in need of care and protection in order to safeguard and promote her safety, welfare and well-being pursuant s 34; and 4. In my opinion, the placement of SHK in foster care firstly pursuant to the Temporary Care Arrangements and continuing from Practical Assumption on 19 February 2015 was a reasonable course for the Department to have taken after having regard for SHK's immediate safety, welfare and well-being pursuant to s 36(1)(a). UL and RS misconceived the construction of s 36(1)(a) when submitting that placement with RS and GL would have been the "usual residential setting" of SHK and the Department failed either before or after 9 January 2015 to assess SHK's immediate safety, welfare and well-being in that placement within the terms of that provision. That reference to "usual residential setting" is contained within the broader passage between the commas which reads "and of other children or young persons in the usual residential setting of the child or young person". Section 36(1)(a) by that passage requires the Department to consider the immediate safety, welfare and well-being of other children in the child's usual residential setting because of the obvious relevance of the welfare of children at that setting to the welfare of the subject child. That was not a relevant consideration here. There were no other children. The plain purpose of s 36(1)(a) was to impose the mandatory regard for the paramount consideration of the immediate safety, welfare and well-being of SHK in the forefront of the Department's exercise of discretion when taking action. I have found that the Department acted appropriately. Establishment – Interim Care Order – Consideration 1. My conclusion on the question of establishment is that on 19 February 2015 and at the time of the making of the Interim Care Order on 21 April 2015 the Secretary properly suspected on reasonable grounds that SHK was at risk of serious harm and that the Secretary properly exercised the statutory discretion under s 44 of the Act to assume the care responsibility of SHK. The risks for safety, welfare and well-being of SHK had she been in the care of her parents or either of them or in the care of the Secretary whilst placed with RS and GL remained unabated. The evidence overwhelmingly supports the Secretary's onus of satisfying the Court that it was not in the best interests of the safety, welfare and well-being of SHK for her to have been removed from placement with the fosters carers: s 69 of the Act. The parents had acknowledged their own serious difficulties in caring for SHK. SHK's basic physical and psychological needs were unlikely to have been met but for the intervention of the Department. In particular, the risk of domestic violence would not have otherwise been removed: s 71 of the Act. Dynamic/establishment – UL and RS 1. In her final written submissions DHK, no doubt with the benefit of what she learned during this appeal hearing, stated that the positions taken by UL and RS on the question of establishment, were advanced on an incomplete understanding of the law and legal process. 2. That DHK did not "really" press the ground of establishment in this appeal stands in stark contrast to the positions taken by RS and UL. This showed a substantial independence on the part of DHK from RS. 3. RS and UL passionately pressed that the Department not only unlawfully assumed SHK into care but did so with deliberate subterfuge including by withholding records from both the s 44 hearing on 21 April 2015 and this appeal and by untruthfully presenting evidence of the course of events. This included UL's allegation that Caseworker Ms Eisenhauer gave false evidence in relation to and that the Department's case falsely presented, that it was not until 5 January 2015 that Ms Eisenhauer commenced her role of Caseworker responsible on an ongoing basis for SHK. 4. When in the course of the hearing argument was made or evidence contrary to their storyline was referred to, each of UL and RS visibly struggled. In this way, whilst their evidence and submissions were heartfelt and each of them pressed that their presentation to the Court was creditworthy, the objective evidence contained in the contemporary documents exposed the misconceptions upon which their storyline was based. Each of UL and RS pressed a fundamentally similar storyline commencing from learning of DHK's pregnancy in about July 2014, to birth of SHK on 28 December 2014 and dealings with the Department until the formal assumption on 19 February 2015. Each of them submitted that the Department presented the facts of that period dishonestly. 5. As transcript of 1 May 2018 shows, RS emailed the Department concerning participation between counsel for the Department and the Court alleging a perversion of justice. In Court his primary submission was that the email was not intended to be seen by the Court. He had actually emailed it to my Associate. On analysis in the forum of the Court, he identified the substance of his complainant to be that near the commencement of the hearing counsel for the Department painted him in a bad light when he took the Court to evidence on affidavit attaching text messages by RS directed to the Department's mobile telephone for Caseworker Ms Eisenhauer at a time when he knew she was pregnant. Those messages were available for interpretation by the reader as containing serious threats to the wellbeing of Ms Eisenhauer and indeed of her then unborn child. His oral evidence in relation to those messages was made the subject of a s 128 Evidence Act certificate. His complaint was that he had expected that evidence to be read later in the hearing rather than at the commencement of the hearing. This was obviously a nonsense point the making of which exposed his quite disproportionate thinking and lack of judgement. Having reviewed the substance of the complaint made in his email, in Court he withdrew the allegations contained in it. 6. Throughout the hearing UL persisted in pressing points in regard to which adverse rulings had been made. The simplest way to explain his conduct would be to say that he displayed an inability to restrain himself from repeatedly pressing a position until the Court was forced to directly tell him to sit down and that he could not make the point again. 7. In order to service the Court's opportunity of achieving the desirous end whereby UL and RS might achieve some level of satisfaction that they had received a hearing without bias, actual or apprehended, they were permitted so far as efficiency of the conduct of the hearing permitted, the opportunity to be heard and to hear the Court's responses to their points of complaint concerning the Department's assumption of SHK into care. In particular, each of them was given extensive time to make oral opening submissions over the days from the commencement of the hearing on 9 October 2017. At the start of the hearing, following their openings, they had the opportunity of cross-examining Ms Eisenhauer, the Caseworker responsible for SHK in the important period for consideration of the establishment issue. 8. According to clinical psychologist Ms Starkey each of UL and RS suffer behavioural abnormalities and no doubt those matters made it difficult for them to consider in a clearly objective way the whole of the evidence including to take into their consideration objective evidence plainly contrary to their storyline. A Historical Sketch Commencing After Assumption 2015 1. During the appeal hearing a large volume of evidence was tendered appropriately of events involving DHK, RS and UL. That historical evidence, satisfies me that the Department justifiably according to its obligations under the Act, maintained assumption of care of SHK. That evidence was specifically relevant because it was considered by the expert clinician Ms Starkey in the development of her opinion. Again, Ms Hawkins was briefed only with the report of Ms Starkey and accepted Ms Starkey's assumptions of fact in the development of her opinion. Having considered that evidence I am satisfied that Dr Newlyn's clinical notes record that he was given adequate information of DHK's behavioural issues for his opinion to be persuasive in consideration of the issues involving satisfactory address of DHK's problematic behaviours for the purposes of restoration. 2. I will avoid distraction to the dynamic of UL and RS so far as it is not required for consideration of the issues of restoration. 3. Throughout 2015 and 2016 DHK and UL intermittently cohabitated. DHK persisted with her want to make a family for SHK with her parents. The periods of cohabitation were not for present purposes significant. It is significant that the attempts at cohabitation were unsuccessful and ended in argument and with allegations of domestic violence. UL's jealously and want of influence in the life of DHK is a constant theme. I have found his evidence describing behaviours of DHK to be unreliable. 4. Prior to the present, neither parent achieved satisfactory compliance with the Department's Care Plan requirements including in regard to reliable attendance at contact with SHK, reduction of cannabis use and participation in counselling to address drug use, domestic violence and parenting. 5. I address in point form some historical events: * Following filing of the Care Application in Parramatta Children's Court on 24 February 2015, the Court made interim orders vesting parental responsibility in the Minister on 26 February 2015. * On 18 March 2015 Community Services assessed RS and GL as not suitable for authorisation as carers. * On 15 April 2015 DHK advised the Department of her obtaining an AVO against UL due to him "abusing" her. Following assumption of SHK on 19 February 2015 there had been an attempt at cohabitation. DHK informed the Department that she had left her relationship with UL. DHK informed the Department that she wanted to parent SHK alone. * On 21 April 2015 Interim Care Orders were made in the Children's Court. * On 30 April 2015 DHK informed the Department that she was staying with friends and was not of long-term residence. She confirmed that the AVO against UL remained in place. She advised RS was transporting her to contact. * UL resided with RS and GL from about April to about June 2015. * In May 2015 DHK informed the Department that she was willing to engage in counselling, drug and alcohol assessment, random uranalysis and parenting programs. * On 25 May 2015 DHK informed the Department that she had booked to have a mental health assessment at Marrickville Medical Centre on 26 May 2015 and would be contacting Relationships Australia to seek assistance with courses. * On 21 July 2015 the Department wrote to the parents outlining "tasks we would require you to undertake for us to consider restoration as a viable option" and providing contact details for support services in their local area including in regard to: psychological counselling, drug and alcohol assessment, domestic violence counselling and Triple P parenting program [Comment: the evidence including the opinion evidence of Ms Starkey confirms that Triple P was not an appropriate program for parents who did not have custody of their child]. * On 27 July 2015 RS requested the Department to review its decision not to authorise him and GL as carers. * On 24 August 2015 the Department affirmed its original decision not to authorise RS and GL as carers. RS emailed the Department stating: The IVF program – we have timed the next child so it will arrive just before [SHK] turns 2. The time we believe the parents will need to achieve restoration. So we have guarded ourselves against the feeling of loss when [SHK] returns…if restoration is not possible, then we always wanted 2 children and the age gap is ideal * On 26 August 2015 UL advised the Department that he was to lease a property identified as Eden Street and was trying to reengage with DHK, realising that he could not parent SHK alone. * On 27 August 2015 DHK advised the Department that she was leaving her Bardwell Park residence in a week and needed to find alternative accommodation. DHK advised the Department that she was not in a relationship with UL. * On 8 September 2015 the Department was advised by WEAVE, the provider of Staying Home Leaving Violence that DHK had presented requesting support to access accommodation and support services. * On 24 September 2015 the Department attended the Arncliffe unit leased by UL in 2014 until early 2015 seeking to find DHK but she was not there. [Comment: this is further evidence of Caseworker Eisenhauer's unfortunate error of believing DHK resided at Arncliffe with UL despite the Department's own records establishing that she had moved out before the birth of SHK and other records showing that neither UL or DHK resided at that address.] * On 14 October 2015 RS withdrew his application seeking a review of the Department's decision rejecting authorisation for himself and GL and carers. * On 14 October 2015 UL head-butted DHK in a public street causing her significant facial injuries. He pleaded guilty on the basis of agreed facts and was sentenced to an eight month good behaviour bond in the course of which period of sentence he underwent some form of domestic violence group education. * On 5 November 2015 DHK obtained a provisional AVO against UL. * On 18 November 2015 the hearing for final orders commenced before Her Honour Haskett CCM. * On 17 January 2016 DHK commenced a period of residing with RS and GL. * On 2 February 2016 DHK obtained a final AVO against UL in mandatory terms that he no longer have contact with her, which term was subsequently varied in order for the parents to participate in the then current proceedings below. * On 11 February 2016 the parents were interviewed by Caseworker Tyler. These reasons have dealt with that interview. * On 12 May 2016 Dr Zhang, GP, recorded DHK to be suffering severe depression and anxiety since the birth of SHK. * On 9 September 2016 the Final Orders appealed from were made by Her Honour Haskett CCM including that contact was reduced in accordance with the Care Plan to once every two months and then to four times per year. * On 7 October 2016 DHK commenced this appeal. * On 22 November 2016 RS and GL after several prior unsuccessful applications to be joined in the original proceedings, were joined in these appeal proceedings. * On 22 December 2016 the parents were scheduled for joint contact with SHK (after the Department confirmed that the conditions of the AVO against UL permitted same) but DHK requested to see SHK on her own due to her fear of UL. * On 23 December 2016 RS emailed Caseworker Tyler referring to "my darling daughter" and attaching a Facebook link to ultrasound image obtained by GL showing her unborn child. RS stated "she is Due (sic) in June". * The affidavits of Caseworker Ellis made 27 July 2017, 8 August 2017 and 11 September 2017 report that DHK attended only one uranalysis on 18 July 2017 which gave a positive result for amphetamine, oxazemam and cannabis. At the time DHK volunteered that she consumed "a bit" of cannabis but was surprised by the other results. I am satisfied on the evidence that the amphetamine was the result of her consuming one Dexedrine given to her by RS. Dexedrine had been prescribed for RS by his treating psychiatrist Dr Newlyn. RS, who considers himself to hold some medical expertise, considered that the tablet would assist DHK to relax. I have found on consideration of the whole of the evidence that DHK was a regular consumer of cannabis only. * During 2017, according to the affidavits of Caseworker Ellis, DHK's attendances at contacts with SHK were positive; however, her organisation to attend was at best sporadic. The communications between Caseworker Lawson who filled in for Caseworker Ellis during his absence in the middle of 2017 do indicate significant difficulty for DHK attending contacts caused by a breakdown in the procedure. On occasions DHK was plainly communicating her complaint that contact was difficult to achieve. There were several occasions when contact was cancelled because SHK was unwell. DHK protested that she would not attend uranalysis because she was not having ready access to contact with SHK. [Comment: Taking all of that evidence into account; the only available conclusion is that DHK's reliability of attendance at contact and for uranalysis was unsatisfactory in the sense observed by Ms Starkey, that given DHK was aware that she was in the course of these proceedings in which she sought restoration and aware of the Department's concern for her cannabis consumption; her performance indicated a young person of poor self-regulation, organisation and of inadequate commitment for the purposes of restoration.] * Of the period September to 29 December 2017 Mr Ellis' affidavit filed 5 January 2018, Mr Ellis confirms DHK's good attendance and performance at contact, failure to attend all four uranalysis appointments, the signing of the lease establishing DHK's permanent suitable accommodation, and DHK placing herself on the waiting list for domestic violence with the Benevolent Women's Centre. * In November 2017 DHK's mother suicided. They had been estranged for several years and DHK had been left with the emotional abandonment of her belief that her mother failed to protect her from her step-father. I accept that those tragic circumstances caused DHK severe distress which contributed to her failure between 17 October 2017 and into the early part of January 2018 attendance at uranalysis. On referral from Dr Zhang in that period, he being the GP who had referred DHK in May 2016 for psychiatric care according to her severe depression, under the care of Dr Newlyn from December 2017 including with the benefit of psychopharmacology (Dexedrine) treating her for her ADHD, the progressive improvement of DHK in her behaviour, self-regulation and ability to cope can be found in the clinical notes of Dr Newlyn. I have observed that improvement to be evidenced by my observation of her in the courtroom. * I have considered the affidavit of Caseworker Thompson made 8 March 2018. My observation of DHK is that during 2018 she had acheived substantial and significant success in improvement of her problematic behaviours including improved compliance with the Department's requirements of greatly reduced cannabis use, drug and alcohol assessment, attendance at counselling and therapies including those which addressed domestic violence. * Her reliability and performance at contact has been overall satisfactory for an inexperienced young mother. To the extent that Ms Starkey in oral evidence on 19 April 2018 opined that DHK's reaction to her mother's suicide indicated dysregulation and inability to cope because another person might have regained their composure in a shorter period; I find that her opinion is to be discounted by Ms Starkey having been denied the opportunity of considering whether or not DHK would be presently unable to cope given that she has experience months of coping skills improvement resulting from the successful treatment provided by Dr Newlyn. 2018 Present circumstances 1. The Further Addendum to Care Plan dated 16 March 2018 listed reasons for the Department's maintenance of opposition to restoration of SHK to DHK, which I summarise as follows: 1. That DHK had not acknowledged that SHK was at risk of harm when removed from her care. 2. In her affidavit of 19 October 2017 DHK expressed concerns that SHK's needs were not being met by foster carers "and that [SHK] would be cared for properly if placed in the care of [DHK]." 3. Removal of SHK from foster carers after so long in foster care would harm SHK because of her strong attachment to the foster care family. 4. DHK had completed an intake assessment with a domestic violence service, however due to the service's incapacity she had not yet been allocated a Caseworker. 5. During contact DHK provided SHK with snacks and juice from SHK's bag provided by foster carers and not brought to the contact by DHK. 6. DHK on occasion required prompting from supervisors to check or change SHK's nappy and to provide her with a hat when playing in the sun however after these matters were brought to DHK's attention her performance noticeably improved. 7. DHK had improved play engagement with SHK including activities such as playing on the slippery slide, playing with and collecting different materials such as sticks and flowers and engaging in imaginative play by brining puppets and speaking in a funny voice that SHK "really enjoy[s]". 8. DHK "had not yet adequately demonstrated" that she "had empathy for [SHK]'s experience in foster care" and what removal from foster care would mean to SHK. 9. DHK "has not shown any ongoing commitment to attending scheduled uranalysis appointments" (emphasis added). 10. The Department was unable to ascertain the frequency and quantity of DHK's cannabis use. Results from attended uranalysis were positive for cannabis and amphetamine (as a result of medically prescribed dexamphetamine). 11. DHK had not shown a commitment to abstaining from illicit drug use. At drug and alcohol assessment DHK stated that her cannabis use is not a problem and did not need to be addressed resulting in no further appointments being made. 12. DHK's attendance at uranalysis showed a lack of commitment and capacity to prioritise those appointments meaning the Department held concerns about DHK's ability to manage appointments and engage in recommended services, particularly in relation to attendeding future appointments for SHK. 1. I disagree with the Department's assessment of DHK's performance since October 2017. 2. A fair and accurate assessment of the performance of DHK in each of the categories of concern identified in the Department's 16 March 2018 Further Addendum to Care Plan consistent as those minimum outcomes were with the Care Plans since the original dated 19 March 2015, will provide the best answer to the question of whether there is a realistic possibility of restoration. 3. Restoration is to be considered in the present circumstances. The relevance of the history leading to assumption (already analysed) and the intervening period of 2015 – 2017 is to be assessed with caution exercised on account of the real and practical observation, that during that period DHK did not have parental responsibility for SHK. Very significant changes in DHK's circumstances relevant to assessment of her parental capacity and the likelihood of her being able to satisfactorily address the issues which led to the removal of SHK from her care have occurred. Most significantly: 1. The only relationship of domestic violence being her relationship with UL has been removed since early 2017, DHK refusing engagement with him including socially, insisting on separate contact times with SHK, recognising with fear the risk that he represents to her and supressing from UL information of her permanent residence which she obtained on 25 November 2017. Observations of UL expressions of tension, visible unease and obvious contest and DHK in the courtroom were consistent with their separation; 2. On 25 November 2017 DHK acquired stable, leased subsidised housing being a two bedroom unit which she has maintained to the satisfaction of the Department as suitable for placement of SHK; 3. DHK's recently acquired stable accommodation removes the risk of flatmates and transient and unstable flatmate relationships previously a concern for placement of SHK with DHK; 4. Since December 2017 DHK has achieved significant improvement of function and self-regulation whilst complying with a mental health treatment plan under the care of specialist psychiatrist Dr Newlyn including pharmacological. This treatment addresses the behavioural traits which on the common expert medical evidence are identified as the underlying cause of the issues which led to the removal of SHK including all of lack of insight and tolerance of domestic violence, inappropriate attachment to and reliance upon authoritative persons, compensatory use of cannabis and difficulty with responsibility and coping skills including in times of stress. 1. DHK commenced cross-examination on 19 March 2018. Each of counsel for the Department, counsel for the ILR, RS and UL cross-examined her. In total she was cross-examined for eight days. 2. That course of cross-examination provided the Court with a valuable opportunity to observe her sobriety, intelligence and commitment to the process of her application for restoration. She was at length challenged in cross-examination focused on subject matter most personal to her, including on events some three and a half years ago. The importance of her capacities for parental responsibility of her child properly enliven cross-examination testing of her mental health, her recognition of personal issues, her commitment to parenting responsibility for SHK including investigation of her dysfunctional childhood, cannabis use, intimate personal relations, subjection to domestic violence and commitment to the Care Plan made 17 October 2017. Issues Leading to Removal – Specialist Clinician Opinion 1. As to the capacity of DHK for parental responsibly for SHK, Ms Starkey's central point on assessment in September 2017 was that DHK has not worked consistently on developing stability in her life in order to take on the care of SHK, showing a lack of commitment and a lack of empathy for SHK's emotional state. In her report (dated 19 September 2017), Ms Starkey put it at [348]: DHK is currently seeking the care of SHK and restoration to her in the court proceedings, yet even during this time she has not been able to hold her child in mind in such a way as to commit herself to making SHK her number one priority. The impressive statement she did make at interview, though, was her assertion that she wants what is best for SHK, even if this means that SHK remains with foster carers with whom she has resided since she was discharged from hospital at 12 days of age. This shows a maternal concern for SHK and a desire to do what is best for her, regardless of RS's view of the situation. 1. At [162] Ms Starkey recorded that DHK's answer to the question of what she wanted out of this appeal included: She has considered the fact that SHK has been in the same placement from the beginning and she said she would like to have what is best for SHK. If it is best for SHK to be with her, that is what she wants, but if it is best for her to remain with the carers then she wants that for SHK, as long as DHK gets to she her more often. DHK feels that her daughter recognises her and she squeals a lot and is excited to see DHK at contact. DHK believes that SHK 'Knows I am mummy'. She said she wants to remain in SHK's life. 1. It is important to observe that these quoted passages from Ms Starkey's report are not supportive of the Department's reasoning against restoration in its Further Addendum to Care Plan of 16 March 2018, referred to above but for convenience as stated: Whilst it is considered that [DHK] has improved in demonstrating her role as [SHK]'s parent by tending to her needs, showing some knowledge of [SHK]'s development and responding [SHK]'s ques, [DHK] has not yet adequately demonstrated that she places [SHK]'s needs above her own or has empathy for [SHK]'s experience in foster care and what this would mean if she was removed from that situation. (emphasis added). 1. In oral evidence DHK maintained her selfless commitment to the welfare of SHK, seeking only what was best for her daughter. She conceded that on assumption of SHK into care she had not achieved enough compliance with addressing the rules. The evidence does not support the Department's concerns at (1), (2), (3) and (8) above. Otherwise, it does seem harsh to expect a mother in the course of seeking restoration of her child to express more positive support of foster care placement than did DHK. 2. It is, indeed, difficult to understand why the Department maintains the concern (1). DHK on 30 December 2014, the third day following the birth of SHK, acknowledged that SHK was at risk of harm by entering into the Temporary Care Arrangement and on two subsequent occasions entering into TCA's whilst attempting to address and encourage UL to address the issues identified by the Department as concerns by engaging with services. She did this whilst only 19 years of age, without support except that provided by UL and RS, such as it was, whilst struggling to make "a little family" for SHK with both of her parents. 3. Ms Starkey reported that DHK lacked the level of maturity recommending motherhood, because of her dysfunctional upbringing, lacking positive childhood experiences. Nevertheless, Ms Starkey recognised that her assessment in September 2017 did not mean that DHK would not be able to achieve the desired level of maturity and stability under appropriate conditions: paragraph [358]. 4. In both her report (see for instance [358]) and in her oral evidence, Ms Starkey's opinion was also based on the assumption that DHK experienced insecure and unstable male partnerships. The evidence in the case is to the contrary. Being of the relatively young adult age of between 19 and 22 years and having been forced to live out of home since before her Higher School Certificate, there is no persuasive evidence of DHK being in a relationship with insecure or violent partners except for her relationship with UL. In fact, the evidence includes her having enjoyed a partnership with a male named Zac for about one year in about 2016. 5. In the two and a half years until 25 November 2017 when aged about 19 to 21 years of age DHK resided at numerous locations and with numerous flatmates. In that period she had a few boyfriends. 6. The allegations of her associating with drug users and "prostituting herself for a roof over her head" are made only by UL. His evidence in this regard is entirely unreliable and unsupported by any objective evidence. When the Court enquired whether he had personally observed her using hard drugs his answer was in the negative and that his allegation that she did was based only on his suspicion that the flatmates of DHK used drugs. The evidence of UL was typical of his evidence directed to sabotaging DHK's case for restoration despite his formally put position of supporting her application for restoration. 7. Accordingly, Ms Starkey's assessment of the maturity and reliability of DHK must be discounted by the affectation upon her impression of DHK based upon assumptions not proved by the evidence in the case. Ms Starkey's wrongful assumption of generous promiscuity and unstable relationships, as will be seen, also affected her assessment of the seriousness of DHK's borderline behavioural traits. 8. Ms Starkey is concerned that because of suffering Borderline Personality Disorder DHK relies upon strong individuals in achieving what requires to be done in her life and would need to be done for SHK, rather than achieve those things of her own volition. 9. The manipulative force of RS is a proper focus of concern of Ms Starkey and the Department in this regard. It is not however uncontained. As acknowledged by Ms Starkey in the above quoted paragraph [348], when it comes to the welfare of SHK, DHK is focused on maternal concern for SHK and the desire to do what is best for her, regardless of the view of RS. In terms of maturity, DHK was only 18 years of age during her pregnancy with SHK, being a young woman with no financial or family support, in a relationship of manipulation and domestic violence with UL such that she was in fear of addressing antenatal care, preparation for birth and parental responsibility. The forces of influence in her life were UL and RS telling her that it would be best for the child to be placed with RS and GL and UL telling her that she did not have the resources to adequately care for SHK. 10. Since early 2017 DHK has remained free of engagement with UL, even social engagement. Such a period of freedom from UL had not previously been achieved. She has independent residence which she on the assessment of the Department maintains suitably for accommodation of SHK. She does not now change residence with a variety of flatmates. She now has control over who is present in the environment of her residence which control she did not previously have at all. Since achieving the independent accommodation on 25 November 2017 she has required that her address remain suppressed from UL. In my opinion, those changes provide appropriate conditions toward her achieving the opportunity of a mature and stable environment as required by Ms Starkey in her report paragraph [358]. 11. Ms Starkey's report was prepared on the assumption that DHK had a long history of substance abuse and despite SHK's long period in out of home care, DHK had not been able to achieve abstinence and cease the use of mind altering drugs. Ms Starkey described the significance of this in the following terms (at paragraph [361]): It demonstrates an inability to forego the substances in order to achieve restoration of her child to her care. She has not been able to put SHK's needs before her own in order to gain such restoration. 1. I have observed that there is no evidence of DHK using "mind altering drugs" other than her use of cannabis. Ms Starkey's observation of a failure to fully achieve "abstinence" must be understood as in accordance with the Department's protocol (Exhibit 13) that it is recommenced where drug use affecting parental capacity is a risk founding resumption of care of the child, that a period of abstinence be required of the parent before a restoration will be supported by the Department. 2. The common evidence is that when Caseworker Eisenhauer in January and February 2015 was encouraging the parents to reduce cannabis use and to attend drug and alcohol counselling but she did not advise them to abstain from cannabis use. 3. DHK in oral evidence explained reduction to be her understanding of what the Department required (transcript page 839, lines 42 – 44; page 842, lines 30 – 34). That reduction and not abstinence was required is plainly corroborated by the Department's contemporaneous documents. The Undertakings entered into in the 17 October 2017 Plan did not require DHK to achieve abstinence but to participate in uranalysis, attend drug and alcohol assessment and comply with any treatment plan recommended. 4. On 1 May 2018 I enquired of counsel for the Department whether there was any evidence that DHK had been informed of the requirement that she achieve abstinence from cannabis use for the purposes of restoration. Counsel for the Department properly acknowledged that there was no evidence of that being directly required of her but that the 19 March 2015 Care Plan stated abstinence. 5. The evidence is that by the end of January 2018 DHK reduced cannabis use to one bong per week or per fortnight socially. Dr Newlyn reports that since advising her that cannabis counteracts her Dexedrine medication in February 2018 DHK has remained abstinent. In my opinion, that reduction shows compliance with DHK's understanding of what was required of her. 6. DHK's non-compliance with uranalysis attendance was disappointing. DHK said in cross-examination that if it be required of her, she would abstain from cannabis use. She said that she can cease use (transcript page 843, lines 10 – 28): Q. Can I ask you, as you sit in the witness box today, is it your intention to cease using cannabis? A. Yes. Q. Why? A. I'm not sure. Just because I don't really want to do it anymore, I haven't really had a need to do it. Q. When did you decide that you should cease using cannabis? A. I don't know. I haven't really decided because I don't really have a serious use, so, and I've just been, like, I don't really need it, so I don't really need it. Q. Well, you just gave evidence to the Court that you said you intended to cease using cannabis. A. Yes. Q. I asked you when and you're not sure. Why would you cease using cannabis? A. Because I want to. 1. Taking the evidence as a whole, in my opinion it does not support Ms Starkey's assumption that DHK is unable to abstain from cannabis use if it be a necessary condition of her achieving restoration of parental care for SHK. 2. These reasons will come to evidence of treating specialist psychiatrist Dr Newlyn, and of Ms Lorraine Buckner-Pitts Drug and Alcohol Assessor which corroborate DHK's evidence that she does not now have a cannabis use problem. My observation of DHK as she gave evidence over several days was of a sober and alert presentation. All of that evidence is supportive of DHK's claims that it is likely she is satisfactorily addressing her parenting capacity issue of cannabis use. 3. On the evidence I am satisfied that the Department's 16 March 2018 Plan points (10), (11) and (12) above do not accurately describe problematic cannabis use in the present circumstances. 4. On the evidence I am satisfied that Ms Starkey's opinion is to be discounted to the extent that she assumed ongoing, uncontrolled and excessive cannabis use. 5. Ms Starkey was briefed with updated transcript and affidavit evidence. In her affidavit evidence of 16 March 2018 she claimed to maintain the opinions expressed in her report of 17 September 2017. Her oral evidence was given on 19 April 2018. 6. In the courtroom circumstance of DHK being not legally represented, I indicated on 19 April 2018, my observation that the evidence showed that DHK had significantly improved compliance with the requirements of Family and Community Services since entering into the Plan agreed on 17 October 2017. Counsel for SHK agreed with my observation: transcript 19 April 2018, page 1084, line 1 – 14. 7. Before Ms Starkey commenced her oral evidence I provided to her my following observations, for her consideration: 1. The communications by RS with Caseworkers of the Department and in particular with Ms Eisenhauer (to which Ms Starkey referred in her report) when addressed in court did not cause RS to express concern nor display that he possessed an appropriate empathetic assessment of the harm which he did. That it appeared to this lay observer that his raging abuse of others had become normalised: transcript page 1031, line 14 to page 1032, line 21; page 1036, line 46. 2. Both RS and UL showed intelligence and courtesy to a point but repeatedly refused to accept directions, interjected, displayed expressions and body language showing that each of them lacked the capacity of self-restraint in accordance with normally expected boundaries, even in a courtroom: transcript page 1032, lines 23 – 29; page 1037, lines 6 – 29. 3. During the 8 days of cross-examination concerning the most sensitive information regarding herself I observed DHK to be intelligent, responsive, truthful and composed: transcript page 1034, line 30. 4. DHK presented and the content of her evidence was consistent with her having achieved a maturity of person, in my view according to her age and that she was a reliable witness: transcript page 1034, line 34. 5. The presentation of RS in court was, in accordance with Ms Starkey's reported assessment of him, that "he thinks in a grandiose plan, rationalising objective accuracy of events to meet his view" (with which Ms Starkey agreed): transcript page 1034, line 38 to page 1035, line 8. 6. The recording of a telephone discussion between an inebriated RS and UL obtained during the course of the proceedings – Exhibit UL 1; and the collection of text messages between RS and UL – Exhibit UL 2 were: 1. Obtained by UL seeking forensic advantage by setting up RS in an attempt to get into evidence unreliable ranting of hearsay being otherwise entirely unproved assertions damaging of DHK; such that the evidence of Exhibits UL 1 and UL 2 were limited to use as evidence of the dynamic between RS and UL only and not of the truth of the facts spoken: transcript page 1035, line 20. 2. The behaviour of UL and RS found in the evidence, displayed by their behaviour in the courtroom and reported upon by Ms Starkey was intensely personal between themselves, aggressive and manipulative as well as each vying for attention of and influence over DHK. Exhibits UL 1 and UL 2 displayed that dynamic between them (Ms Starkey agreed). 1. There is no evidence of DHK having a liaison with a partner which would present a danger to the environment for SHK except for her relationship with UL in regard to which physical engagement ceased 12 months beforehand: particularly at transcript page 1035, line 25. 2. In January 2015 the Department did not willingly cease assistance of the young couple DHK and UL toward achieving restoration of SHK to their parental care but rather RS and UL sabotaged the course to restoration by RS aggressively pressing for placement of SHK with himself and GL and UL participating in the course to restoration but not really wanting it: transcript page 1036, lines 21 – 41. 3. Around the time of birth and of the taking of SHK into care, DHK as a 19 year old had no support to turn to other than RS and this left her in "no woman's land": transcript page 1036, line 40. 4. Attempts by Caseworkers to support DHK toward restoration in January 2015 exposed them to attack from RS: transcript page 1036, line 46. 5. UL's violence toward DHK was rationalised and normalised by him (with which Ms Starkey agreed confirming that "he [UL] has a mental illness" and he sees events through the distorted reasoning of that mental illness, believing his view to be reasonable): transcript page 1037, line 40 to page 1038, line 14. 6. There is no evidence of DHK using any illicit drug except cannabis save for uranalysis showing amphetamine resulting from her taking medication for ADHD, a condition which she was ultimately diagnosed to suffer by her treating psychiatrist Dr Newlyn: transcript page 1038, line 41 to page 1039, line 2. 7. DHK's explanation of her failing to attend uranalysis in late 2017 is that she was coping with the suicide death of her estranged mother with whom she had experienced an emotionally dysfunctional upbringing and in circumstances where she had not spoken to her mother for seven years: transcript page 1039, lines 16 – 24. 8. Ms Starkey was not aware that DHK had attended uranalysis during 2018 and she was informed of DHK's 2018 uranalysis attendances: transcript page 1039, line 29. 9. 2018 uranalysis attendance showed appointments missed but attendances on 17, 19, 20 and 29 January and 5 and 9 February which recorded cannabis use consistent with one use per week or once per fortnight: transcript page 1040, lines 30 – 40; page 1042, lines 10 – 25. 10. There was no document in evidence assessing the effect on DHK's parenting capacity of her cannabis use (despite my having drawn that to the Department's attention during the hearing): transcript page 1040, lines 41 – 46. 11. Evidence of Ingleburn Community Centre, drug and alcohol counsellor Ms Lorraine Buckner-Pitts confirmed DHK's attendance on 28 February 2018, that she had smoked cannabis once per week or once per fortnight, and did not record any observation of Ms Buckner-Pitts that DHK had a cannabis use problem. Ms Buckner-Pitts recorded that DHK did not consider herself to have a problem. The record was not supportive of a finding that Ms Buckner-Pitts found a problem but failed to recommend to DHK that she attend drug and alcohol counselling. 12. That on 9 February 2018 and during the whole of the course of the proceedings from 19 March to 19 April 2018 including the eight days during which DHK gave oral evidence, DHK appeared sober and alert in the courtroom: transcript page 1042, lines 10 – 25. 13. DHK had taken action in compliance with the Department's requirement for her to undergo dialectic behavioural therapy in accordance with Ms Starkey's suggested health plan in that she had consulted her treating psychiatrist Dr Newlyn who had promised to investigate the benefits of Dialectic Behavioural Therapy for her and advise her in relation to that therapy at the next consultation in late April 2018. 14. The evidence, including compliance with the 17 October Plan showed DHK to be not someone who has with energy and stoicism proceeded as fast as some others might toward achieving the steps in the agreed Plan designed by the 17 October 2017 accord but whilst relevant, her performance in that regard was not the whole test: transcript page 1039, lines 21 – 26; page 1042, lines 40 – 45. 15. DHK had been enrolled for months in the uptake for a domestic violence course but the course had not yet offered her a commencement because of the waiting list: transcript page 1042, line 36. 16. In relation to DHK's third Undertaking pursuant to the 17 October 2017 Plan, in relation to Mental Health, her obligation was to undertake an assessment by a medical health professional agreed to by herself and the Department and to comply with any mental health treatment plan recommended by the professional; but, the assessment appointed by the Department with psychologist Ms Hawkins, with which appointment DHK complied, did not occur until 8 February 2018, the day before the readiness hearing: transcript page 1043, lines 1 – 8. 17. There is no evidence of heavy cannabis use by DHK during 2018: transcript page 1044, line 11. 18. UL's view is that most people in the community consume cannabis. 19. DHK's compliance with the October 2017 Undertakings included improved attendance on uranalysis, particularly accepting the distraction of her coping with the death of her mother in late 2017, her participation in achieving stability of accommodation through public housing, her compliance with maintaining her accommodation to the satisfaction of the Department, her seeking mental health treatment and pursuing a mental health plan including by attending four consultations with psychiatrist Dr Newlyn, her significant reduction in cannabis use to once weekly or fortnightly: transcript page 1045, lines 2 – 14. 20. On the basis of her demeanour at the time the evidence was given, I had accepted that DHK's evidence regarding apparent lack of commitment to giving up cannabis was because before 17 October 2017 she "kept using cannabis because [she] gave up all hope of any result for [herself] out of the proceedings": transcript page 1045, lines 20 – 25. 1. Campbelltown Hospital clinical notes record counsellor Buckner-Pitts' reference to records of four weeks of DHK's use and to information provided to her in consultation by DHK. Ms Buckner-Pitts summary recorded no detection of drug use other than cannabinoids. There was no evidence that DHK had ever injected drugs. Ms Buckner-Pitts notes record her reason for termination of services to DHK as "service completed". Ms Buckner-Pitts did not make any referral for drug and alcohol counselling. There is nothing in Ms Buckner-Pitts clinical notes nor in the Caseworker record of her discussions with Ms Buckner-Pitts supporting a suggestion that Ms Buckner-Pitts did not record an opinion or recommendation given to DHK that she required treatment for a drug use problem. On the contrary, the social use of once per week or once per fortnight of cannabis was consistent with Ms Buckner-Pitts advising DHK, as the clinical notes do record, that cannabis use was illegal. 2. In response to my bringing that evidence and my observation of the sobriety of DHK during the extensive cross-examination in the courtroom to the attention of Ms Starkey and upon my stating that there "was nothing to speak to me of 2018 heavy cannabis use" Ms Starkey volunteered the following response (transcript page 1044, lines 13 – 16): A. No, your Honour. She could still have obviously on the weekends or after Court to calm her down afterwards. That certainly could happen without it being noticeable the next day but we don't have the actual tests to show either way, no. 1. Ms Starkey also volunteered that drug and alcohol assessors such as Ms Buckner-Pitts would consider their service at the point of assessment completed if the user did not accept that they have a problem. 2. Ms Starkey has not worked in the field of drug and alcohol assessment, albeit it she has been a supervising psychologist at St Mary's Drug and Alcohol Unit: transcript page 1048, line 35. It was mere speculation on her part that drug and alcohol counsellor Ms Buckner-Pitts would not have recommended DHK undertake an ongoing course of drug and alcohol counselling if in her professional opinion that was the appropriate course for DHK to take. One would expect that such advice would be given so that a patient had the benefit of it in order to elect whether or not to accept that professional recommendation. That Ms Buckner-Pitts clinical notes record the service as "completed" is evidence strongly against inferring that she gave such advice to DHK but did not record it or DHK's response. That Ms Buckner-Pitts bothered to record that she advised DHK that cannabis use was illegal is consistent with her having recorded more than just silently conceding completion of assessment in response to something said by DHK. 3. Alternatively, the speculated proposition is that although Ms Buckner-Pitts was of the professional view that DHK might benefit from advice that she undertake a course of drug and alcohol testing, she elected not to give that advice purely because of a suspicion that if given it would not be taken up on account of DHK not thinking that she had a problem. The clinical notes combined with the evidence of one bong per week or per fortnight use during the period of the enquiry of four weeks is evidence against the inference of the fact which Ms Starkey assumed. 4. Accordingly, I find that Ms Starkey's assessment of DHK's reliability and commitment toward compliance with the Undertakings established in the 17 October 2017 Plan underestimated her commitment in regard to cannabis use. Ms Starkey's speculation based assumption of drug use is important also to her assessment of the severity of DHK's borderline personality traits. 5. Ms Starkey's opinion expressed in oral evidence is that before any step toward restoration including any step of transition toward restoration of SHK to DHK be commenced, DHK must satisfactorily complete Dialectic Behavioural Therapy, a course which takes a minimum of 12 months and after completion of the DBT must satisfy a review by a clinical psychologist. Ms Starkey's opinion is based upon her diagnosis of Borderline Personality Disorder, which diagnosis she reached assuming that she was confirming the diagnosis of psychiatric registrar, St George Hospital, Dr Bowes on 12 January 2015. Ms Starkey has not diagnosed Attention Deficient Hyperactivity Disorder but said it is possible for a patient to have both diagnoses. 6. Having observed that the preferred developmental age window for transition of an infant between primary carers is six months to three years and that SHK was three years and 4 months of age and on the assumption of DHK satisfactorily completing DBT, that SHK would be four and a half years of age; Ms Starkey assessed that restoration to DHK would cause attachment trauma likely to result in SHK's depression: transcript pages 1068 – 1069. In the event of such depression, courses with an organisation described in the evidence as Panoc, would be available: transcript page 1069, lines 25 – 50. 7. In her written report, Ms Starkey observed at [363] that the …ability to self-regulate is an important characteristic of successful parenting. Parents who become depressed easily may not be able to provide a child with appropriate emotional nurturance (sic). Parents who are impulsive or who become angry easily can be unpredictable and sometimes even scary for young children. The child needs to learn self-regulation from a parent who can initially co-regulate…although I believe DHK would be able to do this for the period of the contact visit when her focus is on the child, I am of the opinion she would find this difficult on a full-time basis and that a child in her care at this time would be exposed to chaotic emotional states. This would not be conducive to the development of self-regulatory mechanisms in the child and may lead to a more chaotic emotional state in the child as well. At [364]: In summary, it is my opinion that at this time DHK did not demonstrate sufficient parenting capacity to have a child restored to her care owing to mental health instability, unstable accommodation and relationships, a lack of capacity to place the child's needs above her own, lack of commitment to abstinence from drugs, lack of commitment to regular attendance at contact visits and lack of capacity to provide for the child's emotional and physical needs. 1. It is common evidence that since entering into the Undertakings on 17 October 2017, contact visits records show full compliance and, in the view of the Caseworkers, satisfactory, loving and nurturing mother and daughter experiences. SHK is DHK's only child. DHK has never had care of SHK. DHK is 22 years of age. The evidence, including Ms Starkey's observation of DHK's inexperience of parenting would suggest these concerns can be addressed by attendance at an appropriate parenting course. This leaves "mental health instability". 2. As she explained in her oral evidence, Ms Starkey places DHK's untreated Borderline Personality Disorder as the primary issue requiring treatment as a priority before transition to restoration should commence. She does not say DHK's BPD is untreatable. She explains that the "adult dysfunction" of BPD could cause SHK attachment trauma because of DHK's compromised self-regulation. She explained that Dialectic Behavioural Therapy would teach DHK skills about emotional regulation and distress tolerance. 3. Ms Starkey was also concerned that BPD renders DHK at risk of self-harm behaviours including drug abuse, serial sexual relationships of a negative kind, self-ham and self-sabotage: transcript page 1072, lines 18 – 25. Ms Starkey put it in oral evidence (transcript page 1079, lines 31 – 33): Q. So is it more likely then that she will follow through with all these other things if she's able to deal with the emotional and mental health issues? A. Yes. 1. As already observed, on the whole of the evidence, the only allegations of serial sexual relationships arise from the unreliable evidence of the jealous and manipulative UL. Whilst DHK has not self-harmed for years, Ms Starkey referred to not something observed by herself but that psychologist Ms Hawkins, who saw DHK once on 28 February 2018, recorded, as Ms Starkey stated, "she still sometimes pulls her hair out": transcript page 1072, line 3. DHK responded that what she reported to Ms Hawkins was a single event of a previous happening of pulling her hair out. Indeed, Ms Hawkins at paragraph [47] referred to pulling hair out "on occasion" which is not inconsistent with DHK's evidence. There is no significant evidence of self-harm since DHK was a school pupil in a violent and sexually abusive home environment. 2. Despite the Court doing all that it could to encourage the obtaining by the Department of a report from DHK's treating psychiatrist Dr Newlyn (DHK could not afford such a report), all that was before the Court when Ms Starkey gave evidence on 19 April 2018, was Dr Newlyn's letter to DHK's treating GP Dr Zhang dated 20 March 2018 in which Dr Newlyn diagnosed, not Borderline Personality Disorder but Attention Deficit Hyperactivity Disorder for which DHK was being trailed on dexamphetamine (Dexedrine). 3. Dr Newlyn's treatment commenced on 18 December 2017 and continues. DHK at the time of the hearing had attended Dr Newlyn four times in three months (Exhibit 15). Included in Exhibit 15 is Dr Newlyn's 5 April 2018 short email to the Caseworker Ms Thompson. Dr Newlyn had been briefed with the 28 February 2018 assessment of Ms Hawkins recording her support for the diagnosis of BPD. In his email Dr Newlyn was specific in stating that he had not made a diagnosis of Borderline Personality Disorder in the course of his agreement that Dialectic Behavioural Therapy "would be useful". 4. Ms Starkey's concern for DHK's mental health, as explained in her report and made plain in her oral evidence was based upon "Dr Emma Bowes [referring to] DHK as having Borderline Personality Disorder." To that report of a diagnosis of Dr Bowes Ms Starkey at [360] identified behaviours of DHK as problematic and concluded against commencement of transition to restoration. She continued: She has low self-esteem; she is suspicious and untrusting and has unstable relationships; she becomes irritable easily and is reportedly quite moody; she is dependent on others for her sense of self and she tends to use mind altering substances to cope with everyday life. 1. Ms Starkey was not provided the opportunity of considering Dr Newlyn's clinical notes of treatment. 2. My observations of the evidence in the case do not support the extent of abnormality of those behavioural issues assumed by Ms Starkey. Indeed, between paragraphs [165] and [169] she found the results of mental health testing of DHK conducted by herself showed that DHK saw herself as having depressive symptoms in the normal range, stress symptoms in the normal range and anxiety symptoms in the mild range for anxiety. No mood disorder was found on screening. 3. I have reported my own observation of the composure of DHK whilst giving evidence in cross-examination. My observation of her in the stressful situation of giving evidence in these court proceedings matches that assessed in the test screening by Ms Starkey. What is more, my observation included the eight days of her behaviour and composure through cross-examination by counsel for the Department and the ILR as well as by the perpetrator of domestic violence upon her, UL. With respect for Ms Starkey's expertise, mine was a substantial opportunity for observation of DHK's composure. 4. Ms Starkey erred in her understanding that Dr Bowes diagnosis. In fact, Dr Bowes found that DHK did not suffer mental illness. When assessed on 7 January 2015, Dr Bowes' (five page typed clinical Progress Note appears at Exhibit 7, pages 30 – 34) impression was: No current concerns over level of judgement. Impression: 19. Y/O female assessed after delivering baby 10 days ago due to concerns expressed by the team regarding her expressing ideas of killing herself if the baby were to be removed from her care. The presentation at the time of this was consistent with an acute situational crisis. [bold added]. Currently no features of mental illness and she does not present mentally disordered but there is evidence of borderline personality traits from childhood maladjustment and manifesting as poor coping strategies and distress tolerance, affect dysregulation and past DSH. This is also complicated by her current DV relationship and lack of meaningful relationships/supports at present as she is estranged from her family. (DSH was defined by Dr Bowes on page 32 of Exhibit 16 as meaning: cutting since early teens, nil since beginning of pregnancy; meaning it is a reference to self-harm. DV means domestic violence). 1. On 7 January 2015 Dr Bowes did not recommend DHK undergo DBT. At that time her plan was to recommend that DHK "would benefit from DBT type of intervention so as to improve coping strategies and emotional instability." (bold added). 2. In consultation with Dr Phillips, Dr Dhansay and social workers Michelle Batten and Raquel Singh, Dr Bowes resolved to review DHK one more time and refer her to the Acute Care Team or to her GP. Dr Bowes made a second appointment for DHK to attend on 12 January 2015 at 10.30am. 3. At 10.00am DHK telephoned to report her inability to make the 10.30am appointment because she had been delayed by "Laverty". Dr Bowes' clinical Progress Notes at that time records "Associated Diagnosis: None" (bold in original). Dr Bowes organised a second appointment for DHK on 12 January 2015 for 1.00pm. Dr Bowes typed clinical note of 12 January 2015 refers to DHK being unable to attend an appointment at 10.15am that day because she was attending "Laverty" pathology services (assumedly in compliance with the Department's drug uranalysis testing requirements) and that service was running late. An appointment for later that day was arranged. Dr Bowes clinical note at Exhibit 7, page 29 confirms that she had not diagnosed mental illness in DHK. The note reads: "Associated Diagnosis: None." (bold in original). 4. Dr Bowes typed clinical Progress Note reporting her consultation with DHK on 12 January 2015 appears at Exhibit 7, pages 26 – 29. DHK arrived on time. SHK had been placed in foster care the preceding Friday, in regard to which, Dr Bowes recorded that DHK was currently unhappy but comforted by the fact that it was only temporary. DHK felt "kept out of the communication loop" and frustrated because, whereas there had been a plan to assess RS for suitably to foster SHK, the Department had not attended RS' residence as planned for assessment of that placement. Dr Bowes recorded DHK reporting that she: Currently feels confident that she will be able to take [SHK] back into her care at the next review on 6 February [and DHK] Feels that she has been trying to do everything [the Department] have required of her and that they have no reason to not allow [SHK] back into her care. 1. Precisely material to the question of DHK's capacity for exercise of judgement, self-regulation and concern for the safety of SHK is the following record made by Dr Bowes, in circumstances where UL was less than enthusiastically participating in the course to responsibility of fatherhood: Denied speaking in detail to [UL] about ongoing plans to look after [SHK] and where they will be living but feels 100% in herself that she wants to raise [SHK]. 1. Dr Bowes recorded DHK's mood as overwhelmed and appropriate to the stressors of having been unable to take SHK home with her from hospital. DHK felt guilt associated with a feeling that she had trapped UL into becoming a father and missing out on his life. She did not feel hopeless or worthless and felt she was a good mother. DHK felt she would benefit from ongoing perinatal mental health team involvement for support and was unsure how she would respond if SHK was permanently removed from her. 2. DHK was agreeable to finding a GP and seek referral to a psychologist. Dr Bowes recorded: euthymic, reactive and incongruent affect with logical thought form, nil delusional content, nil perceptual disturbance and not distracted nor responding to internal stimuli. 1. She recorded as her impression that there was nil current evidence of Major Depressive Episode or anxiety disorder but that DHK was at risk of developing adjustment disorder in the context of those current stressors. Her impression of borderline personality traits with impulsivity, emotional instability, unstable interpersonal relationships and poor distress tolerance complicated by marijuana use continued. 2. She recorded that she recommended to DHK that she attend a GP to arrange a Mental Health Care Plan and recommended referral to a psychologist for "DBT type therapy so as to improve problem solving, distress and tolerance and regulation of emotions" (bold added) just as she had done on 7 January. Dr Bowes did not make a follow up appointment but provided DHK with details for the Acute Care Therapy and Perinatal Mental Health Team, if needed. 3. Dr Bowes was not called in evidence. No updated report by her was in evidence. 4. If reliance were to be placed on the Discharge Referral only, the entry of "Impression" from Dr Bowes clinical Progress Note of 12 January 2015 referring to "Borderline personality disorder with impulsivity,…" is found. That said, on 7 January and at the time of rearranging the 12 January appointment with DHK by telephone that day, Dr Bowes recorded no mental illness diagnosis. The Discharge Referral is not a document of Dr Bowes. 5. Taking the several entries by Dr Bowes together, her clear words "Currently no features of mental illness" show that she did not diagnose DHK to be suffering Borderline Personality Disorder. The documents are consistent with her finding of behavioural traits within the Borderline Personality Spectrum. 6. In her affidavit of 19 March 2015 Caseworker Eisenhauer at [31] records that in her discussion with Dr Bowes on 16 January 2015 Dr Bowes referred to Borderline Disorder Structure and that DHK would benefit from further psychological intervention to teach her coping strategies, stress tolerance and problem solving. Ms Eisenhauer's evidence includes nothing of a diagnosis of BPD or of being told that the appropriate therapy was DBT. 7. DHK does not recall having been advised to undergo DBT to Dr Bowes. 8. On the whole of the evidence, I do not find that Dr Bowes, if she did mention DBT to DHK, did so in a way expressing the imperative or impressing that it was important. It would be unlikely that, if that had been the case, Dr Bowes would not have spoken in those terms to Caseworker Eisenhauer only four days later. 9. As advised by Dr Bowes DHK attended GP Dr Graham on 23 January 2015 at Enmore Medical Practice and obtained a mental health Care Plan. There is no referral letter from psychiatrist Dr Bowes for DBT therapy. In the absence of oral evidence from medical practitioners, the Discharge Referral is not inconsistent with DHK's evidence of her understanding that she did comply with the St George Hospital mental health team advice. 10. Dr Graham recorded DHK's presentation on 23 January 2015 as of normal appearance and general behaviour but not of normal mood, affect, sleep, appetite, attention and concentration, motivation and energy, memory and judgement. He recorded that whilst DHK's thinking, perception, cognition and insight were normal, DHK was suffering depression and anxiety and had suicidal intent without ideation or plan. 11. During consideration of the evidence on the issue of establishment and consideration of historical evidence relevant to assessment of realistic possibility of restoration, these reasons in several places refer to Dr Bowes observation of the acute situational crisis in which DHK functioned. Dr Graham's mental health plan patient assessment notes confirm the continuance of that stressful environment in which DHK was functioning: Exhibit 8. 12. DHK's increased maturity at the time of hearing, the removal of the influence of UL both as to his domestic violence and as to his reticence to making a family with SHK as pursued by DHK, her greatly reduced cannabis use or abstinence from cannabis use and her stable residential environment are all key factors in the changed circumstances of DHK at the time of hearing. Most importantly, she has the benefit of pharmacological and therapeutic treatment for her problematic personality traits under the guidance of specialist psychiatrist Dr Newlyn. 13. Ms Starkey explained that clinical psychologists are allowed to provide diagnosis of people that they see and "generally what I would do would be to do that and then refer to a psychiatrist for confirmation and also treatment if medication is required.": transcript page 1049, lines 3 – 14. 14. The Department relies on the report of Ms Amelia Hawkins, psychologist, dated 8 February 2018, pages 50 – 67 of Exhibit BT1 to the affidavit of Brooke Thompson, Caseworker, dated 8 March 2018. 15. Ms Hawkins is a Masters Psych (Clinical) candidate but has not achieved her Masters. She is not a clinical psychologist: Psychology Board of Australia Guidelines on Areas of Practice Endorsement effective 29 July 2011. 16. Ms Hawkins was not briefed with documents other than the report of Ms Starkey dated 19 September 2017. She consulted with DHK on 18 January 2018. 17. A reading of the report indicates that Ms Hawkins and DHK did not strike a rapport. At [11] Ms Hawkins recorded that DHK understood the assessment to be her opportunity to highlight to the court the "big steps" she had taken since her relationship with UL ended, but Ms Hawkins "reclarified that the assessment was not a parenting capacity assessment, however, the assessment may be used in the court process regarding her contact with SHK." She repeatedly reported as a matter of concern or worthy of note that DHK presented as positive in her manner and over familiar and talking quickly as well as being defensive when challenged: see for example paragraphs [8] and [42]. 18. Without the opportunity of oral evidence of Ms Hawkins, I am restricted to persuasion on the basis of impression arising from the reading of her report. The lack of rapport achieved and that the clinicians assessment of expression and impression did not match with the real purpose of the assessment as known and important to DHK (her parenting capacity to make an impression of her improvement toward achieving restoration), in my opinion, diminishes the persuasive value of the report. 19. Ms Hawkins was aware of Dr Newlyn's diagnosis of ADHD but was not briefed with his records. She attempted one time by telephone to contact him. The Department did not, as I have previously said, obtain a report from Dr Newlyn. Dr Newlyn is a consultant in family and child psychiatry at St John of God Medical Centre. 20. At paragraph [42] – [44] whilst acknowledging that features of disorganisation, social intrusiveness and emotional and cognitive dysregulation are shared between ADHD and BPD, Ms Hawkins disagreed with Dr Newlyn's diagnosis of ADHD without finding BPD. 21. At paragraph [50] Ms Hawkins, relying upon Ms Starkey's report, recorded that psychiatrist Dr Emma Bowes had diagnosed BPD. As stated above, Dr Bowes did not make that diagnosis. Ms Hawkins then recorded: "DHK reported she was not aware of this diagnosis, nor what it meant in regard to her health." Like with several other places in her report, Ms Hawkins then recorded that DHK's report to her was inconsistent with the facts because of that which was recorded in Ms Starkey's report. She continued: "I noted Ms Starkey's affidavit (19/9/2017), the document review indicates that on 11 February 2016, DHK advised Community Services she had been diagnosed with Borderline Personality Disorder." 22. That entry of history in Ms Starkey's report is wrong. The records of the Department in the period of Dr Bowes treatment of DHK and up to assumption of the child on 19 February 2016 do not record DHK having advised Community Services that she had been diagnosed with BPD by Dr Bowes. 23. The evidence of casework Eisenhauer is consistent with Dr Bowes having observed behavioural traits within the BPD spectrum such that she identified a Borderline Personality Structure. It is not evidence that Dr Bowes came to the diagnosis of BPD. Affidavit evidence of Caseworker Ms Tyler, recording in summary form description of a meeting on 11 February 2016 does not assist in taking the matter further (see below). 24. At paragraph [51] Ms Hawkins lists from DSM-V, behaviours classically of Personality Disorder "applicable to DHK." It is necessary to deal with them in the context of the facts of this case and I adopt her numeration for that purpose: 1. Frantic efforts to avoid real or imagined abandonment, which are related to intolerance of being alone and a need to have other people with them, can lead to impulsive actions such as self-mutilating or suicidal behaviours: The treating medical literature consistently records that DHK's self-harm behaviour including in the form of cutting was generally attributed to her school age years during the environment of her dysfunctional violent and sexually abusive home life. The remainder of the paragraph recorded generalisations otherwise not specifically identified with the facts of this case. 1. A pattern of unstable and intense relationships, often starting relationships with an intense and fast idealisation of the other, then switching quickly to devaluing them. Individuals are prone to sudden and dramatic shifts in their view of others: The allegation of a pattern of unstable and intense relationships comes from Ms Starkey's report. Ms Starkey referred to the unreliable assertions by UL. The allegation is without factual basis. It is contrary to the fact that only the relationship with UL was unstable and intense, on the evidence. It is inconsistent with DHK having maintained long term relationships such as that of the one year with a young man named Zac. The remainder of the paragraph recorded generalisations otherwise not specifically identified with the facts of this case. 1. Impulsivity in areas that are potentially self-damaging, such as substance abuse and risk taking behaviours; I have dealt with substance abuse. During her pregnancy DHK smoked cannabis for relief from severe morning sickness and in the intense relationship with UL who then and now promotes use of cannabis in his own life including for relaxation and self-determined medical treatment. Uranalysis completed in January 2018, drug and alcohol assessment in February 2018, Dr Newlyn's observations and my observation of her sobriety during this long court case, including the extensive cross-examination, showed DHK has an ability to reduce and maintain reduction of or even abstain from cannabis consumption. According to the notes of Ms Eisenhauer from consultation with UL and DHK in January and February 2014 (Exhibit 9) DHK ceased cannabis consumption shortly before the birth of her child. During the meeting on 29 January 2015 DHK informed Caseworker Eisenhauer that if SHK were returned to her she would have no need to smoke cannabis. All of that discussion of cannabis use was in the context of Ms Eisenhauer not asking UL and or DHK to abstain from cannabis use but only to reduce that use. None of the entries by Ms Eisenhauer or by Dr Bowes, psychiatrist, record an association between DHK's cannabis use and self-harm. 1. Recurrent suicidal or para-suicidal behaviours, such as self-harm of threats to harm themselves, or self-mutilating behaviours (discussed previously); Dealt with above. 1. Affective instability due to marked mood instability, whereby a basic dysphoric mood is disrupted by periods of anger, panic, irritability or anxiety that tends to last only a few hours. These episodes of mood instability tend to reflect the individuals extreme reactivity to interpersonal stressors, such as that shown by DHK in the context of being challenged within this assessment: Ms Hawkins conceded that she did not achieve rapport with DHK. For the reasons given, in my opinion, she was not assessing DHK's reaction to challenges as to her accuracy. The context was of DHK's natural anxiety to show her capacity for parenting when by having considered Ms Starkey's earlier report, DHK was aware of the criticisms and was sensitive to challenges of her description of the "big steps" she had taken since ending her relationship with UL. She was aware that the consultation took place in the context of the 17 October 2017 Plan and Undertakings toward restoration of her daughter. 1. Inappropriate, intense anger or difficulty controlling anger, as evidenced by DHK's displays of bitterness and verbal outbursts, and flashes of extreme sarcasm and ingratiating presentation. Such displays are often followed by extreme shame or guilt. In my opinion, this observation requires the same context as the above response to (5). 1. The present significance of DHK's mental health is in relation to assessment of the realistic possibility of restoration of parental care. The common thread through the opinions of Dr Bowes, Ms Starkey, Ms Hawkins and Dr Newlyn is that DHK's behaviours including disorganisation displayed by her many excuses for missing appointments including uranalysis and emotional dysregulation, be addressed by appropriate treatment. That common thread is that DHK would benefit from participation in a program of DBT. This much is confirmed by the following passage in paragraph [52] of Ms Hawkins report which is consistent with the oral evidence of Ms Starkey: …there is some difficulty in distinguishing a diagnosis of ADHD from borderline (or other) personality disorder/s, as they all tend to share features of disorganisation, social intrusiveness, emotional dysregulation and cognitive dysregulation. It may be useful for these differential diagnoses to be revaluated after sustained intervention (ideally within a DBT program) 1. In his email to Caseworker Thompson of 5 April 2018 Dr Newlyn effectively stated that he was not aware of evidence that should DHK undertake such a treatment program aimed at restoration of SHK to her, SHK would be at risk of neglect or abuse. 2. It is also important to bear in mind that Ms Hawkins assessment of DHK's disorganisation and dysregulation was based on ancient material and not present performance. In paragraph [53] she identified the disorganisation and dysregulation from Ms Starkey's report in relation to being late for and missing contact visits and scheduled drug and alcohol counselling appointments between January and March 2015, missing 13 out of 20 contact visits between March and August 2015 and reports of contact in that period. DHK's environment during that period in 2015 was very different to her present circumstances. It included several failed attempts to make, as she put it, "a little family" with UL, having no stability of residence and experiencing the contested establishment proceedings which resulted in an Interim Care Order being made on 21 April 2015. 3. Whilst those events are relevant in the historical sense of assessment of DHK's behaviour, it is not a fair measure of her current circumstances and presentation. In particular it omits her independence and stability achieved through acquiring stable residence on 25 November 201,7 her having removed UL from her life and her improvement from her receipt of ongoing treatment from Dr Newlyn for the risk behavioural traits which Ms Hawkins and Ms Starkey regard as weighting against restoration. 4. In paragraph [54], Ms Hawkins suggests that the diagnosis of ADHD be reviewed by DHK's treating professional, psychiatrist Dr Newlyn "in light of the information contained in this report". Indeed that has occurred and Dr Newlyn maintains his diagnosis of ADHD. Dr Newlyn's engagement over a period of a little less than one year, including more recently four consultations over approximately three months prior to his email (Exhibit 15) and his present direction of DHK's ongoing mental health plan are bases properly inviting preference for his assessment as a professional psychiatrist over that of the psychologist Ms Hawkins. 5. At [63], Ms Hawkins reported that psychometric testing conducted by herself showed that DHK's scores fell into a normal range, indicating that her self-report showed no clinically significant executive functional deficits or problems in maintaining emotional or behavioural control. 6. In oral evidence, Ms Starkey disclosed that she had not, including for her 16 March 2018 affidavit, been instructed of treating psychiatrist Dr Newlyn diagnosis contained in his letter dated 20 March 2018 to DHK's treating GP or his email to Caseworker Thompson dated 5 April 2018 (both documents contained in Exhibit 15). She was provided with those documents during the luncheon adjournment on 19 April 2018. I repeat, unfortunately Ms Starkey was not briefed with Dr Newlyn's clinical treatment notes. She understood, from Caseworker Thompson's affidavit, that DHK "often" failed to attend consultations with Dr Newlyn: transcript page 1074, line 46 – page 1075, line 6. That information was incorrect. 7. Counsel for the Department on 19 April 2018 conceded Dr Newlyn's subpoenaed records showed that DHK had attended four monthly consultations between December and the return of the subpoena in about March 2018. Ms Starkey then persisted that it was an email from Dr Newlyn, him personally reporting DHK's failures to attend. It was necessary to take Ms Starkey to Ms Thompson's affidavit to show her that in fact she was relying only on Caseworker Thompson's record of an offhand spoken comment by Dr Newlyn in relation to a consultation. DHK clarified that she was late on only one occasion when she understood Dr Newlyn to be running late himself: transcript 19 April 2018, page 1076, lines 3 – 36. 8. It is, in my opinion, important to observe that the caution expressed by Ms Starkey in her evidence included the worst case scenarios possible generically for persons who are diagnosed with BPD. Because of the importance of DHK's mental illness based behavioural issues to assessment of realistic possibility of restoration and also the importance of consideration of Ms Starkey's opinion. Ms Starkey's assumption that DHK had known of Dr Bowes diagnosis of BPD and not having pursued treatment was wrong. : 9. Ms Starkey wrongly assumed that DHK is either misrepresenting herself or in denial of her diagnosis of BPD. She relied on a single affidavit entry of Caseworker Tyler made 1 April 2016 concerning what was said at a meeting on 11 February 2016. Ms Starkey did not consider the stressful environment of that meeting or other evidence. The entry in Casework Tyler's 1 April 2016 affidavit at [21] is inconsistent with her hand written note made at the conference seven weeks before the affidavit (see below). 10. Dr Bowes did not diagnose BPD, so she would not have told DHK of it. 11. Caseworker Tyler's affidavit recounts the effect of a meeting which occurred during the currency of the Children's Court proceedings. It was attended also by UL. It may have been a highly charged emotional meeting because at paragraph [20] Caseworker Tyler recorded that there was discussion of SHK's case plan including amendment of the AVO restraining UL from contact with DHK because of the past history of domestic violence. Specifically he had head-butted her four months previously, for which criminal assault he had been convicted and sentenced to be of good behaviour for eight months. At paragraph [21] Caseworker Tyler recorded that DHK chose not to remain at the meeting and left to wait in the reception area. 12. The Children's Court proceedings ran from 18 – 21 January 2016 when they were adjourned to await the outcome of the criminal proceedings in which UL pleaded guilty to the head-butt assault: transcript 22 March 2018, page 523, lines 8 – 10. In the days preceding the 11 February 2016 meeting UL had approached DHK in the street screaming at her on more than one occasion and she required assistance: transcript 22 March 2018, page 523, line 19. The AVO ordered against UL originally on 5 November 2015 was on 2 February 2016 varied to permit contact between DHK and UL for the purposes of the Children's Court proceedings. The standard orders that UL not assault, molest, harass, threaten, intimidation, stalk or otherwise interfere with DHK were maintained. 13. In cross-examination on 22 March 2018 (transcript page 523 – 524) counsel for the Department after indicating that he was cross-examining from the annexure to Ms Tyler affidavit of 1 April 2016 put to DHK the positive proposition of a record of her saying that she had BPD in the Caseworkers note: Q. What was noted in that was that you had said that you had a borderline personality disorder and were meant to be meeting with mental health or something to that effect, do you recall that? A. Possibly, I'm not sure. 1. In fact, whereas Ms Tyler's affidavit dated 1 April 2016 at paragraph [21](a) puts in the definite that DHK made that statement and the typed summary of the meeting attendance made nearly five weeks after the meeting included that positive assertion with the qualification to see the attached hand notes, in the hand notes DHK is not recorded as having made the positive statement that she had BPD. What is recorded is a statement by DHK in the negative: not many parents have personality borderline disorder, this is hard for me to deal with and I'm leaving. (left the room) [Caseworker Tyler to UL]: She's not travelling well, is she? It cannot be ascertained from that record on a balance of probabilities, whether or not DHK was responding to a statement by casework Tyler that DHK had "personality borderline disorder". 1. On 26 March 2018, DHK gave the following responses to questions suggesting that she was in denial of her BPD in the course of the treatment she was receiving from Dr Newlyn (transcript page 658, line 33 – page 659, line 27): Q. One of the - something else that was noted by Dr Newlyn was in relation to attitudes to this effect in - "I do not believe I have borderline personality disorder"? A. Yes, because we were talking about the criteria basis for BPD. Q. So, is that another reason why you were unsure about DBT at this point in time, is that you didn't accept that diagnosis of borderline personality disorder? A. No, that's not why, it's not, not accepting the diagnosis, that's just accepting that you're put into a box, just because I have traits of one thing doesn't mean I don't have another thing. Because I see it as a problem as well as other things, I'd like to address that and actually see if I can solutionise(as said) from that point onwards. Just because I don't have it doesn't mean I can't be involved in it, I've already looked into that, you don't have to be diagnosed as borderline personality. Q. Okay, but just getting, if I didn't express my question clearly enough, firstly, did you say to him, "I do not believe I have that disorder"? A. Possibly, I'm not sure of my words but because it's been said that I got a diagnosis of BPD when it was a suggestion not a diagnosis. Q. Yes, so you may have said to him "I don't believe I have this borderline personality"-- A. I'm not exactly sure but I'm pretty sure I've told him I'm not DPT(as said) so yes. Q. Yes, sorry just to be clear-- A. I mean BPD, sorry. Q . --what I'm asking about is borderline personality-- A. Yes, I just, BPD, I just cleared that up, I just made a mistake-- Q. Sorry, you said-- A. Yes, sorry. Q. You said BPD not DBT, okay. A. Yes, I know, because of all the abbreviations. Q. So is that the case as you sit there today that you don't accept that you have borderline personality disorder? A. No, I don't believe I have borderline personality disorder, I've got a diagnosis of ADHD. As, I mean, not exactly sure what I should say to that, is, it's from a professional, don't you think if a professional thought I had BPD they'd suggest me being, like, going and seeing a psychiatrist based along the specialist for BPD? Dr Newlyn's extremely professional and if he didn't think I had ADHD he'd say that. In cross-examination by counsel for Independent Legal Representative it was affirmatively put to DHK from page 27 of Exhibit 7, Hospital Clinical Notes, that Dr Bowes "concluded view" was BPD: transcript page 887, lines 25 – 50. My interpretation, arrived at following detailed discussion above including of the whole of Dr Bowes notes commencing on 2 January 2015 is that she found no features of mental illness but evidence of borderline personality traits. The entry to which counsel referred to as the "concluded view" was in fact not that but rather a purposeful clerical entry made 12 January 2015 directed toward the type of therapy to be pursued on referral. Dr Bowes had consulted with the mental health team preceding her consultation with DHK and that note on 12 January 2015. The outcome of that team meeting was that Dr Bowes presented DHK as suffering "some psychosocial stressors, DV and cannabis use history" without mention of a diagnosis of BPD. I do not accept that primary diagnosis as Dr Bowes concluded view. 1. Taking the evidence discussed above in detail as a whole, I am of the view that the expert evidence does not establish a mental illness beyond that which DHK understands from Dr Newlyn, herself to suffer. DHK is neither in denial or her experiencing behaviour consistent with borderline personality traits, nor has she been false when denying that she understands she suffers Borderline Personality Disorder. This is relevant to DHK's therapeutic opportunity of correction of her problematic behaviours so far as they are a component of her parenting capacity. To the extent that Ms Starkey and Ms Hawkins assumed otherwise, the persuasion of their opinions is to be discounted. 2. I directed parties to create schedules of agreed references to evidence respectively dealing with: 1. DHK's "Borderline Personality Disorder" and any resulting impairment in her capacity at contact to deal with SHK's complaints and needs; and 2. SHK's developmental history, including but not restricted to, speech. 1. I did this because consideration of the question of whether or not there is a realistic possibility of restoration involves the marriage of DHK's parenting capacity with SHK's needs. 2. During 2015 several contacts of the 19 year old, inexperienced mother, DHK, being joint contacts with the domestically violent UL in a period of intense emotional stress between them, were timed so that the contact unfortunately was when SHK was due for a nap. In that imperfect setting between April and June 2015 DHK on occasion became upset when she could not calm SHK from screaming. It was noted by a Caseworker on 26 July 2016 that SHK returned from contact more settled since DHK and UL had separated. 3. DHK's attendance record was unsatisfactory. Contact case notes include evidence of DHK contributing well to assistance of development of SHK's speech at contacts on 7 and 26 July 2016, 26 May and 23 June 2017. 4. In her oral evidence given eight months after observing the contact between DHK and SHK on 21 July 2017, Ms Starkey was critical of her observation of DHK's parenting performance in that DHK followed SHK around. These value type observations based on her professional experience are important in the Court's consideration of Ms Starkey's concern, as to DHK's self-regulation and sense of responsibility in regard to care of SHK. 5. In her written report, Ms Starkey observed at paragraph [176] that SHK (then two years and seven months of age) "moved from place to place followed by her mother". That observation is to be understood in the context of a play area in a park with swings and other children and parents about as well as Caseworker Mr Ellis, DHK's sister and Ms Starkey as distractions. Ms Starkey described the wandering as "almost aimless and the mother did not take any control of this in order to engage in meaningful play interaction. DHK was very observant of safety issues and gave her full attention to SHK." As to the observation of aimless wandering of the two year and eight month old SHK, it is also relevant that the observation was made between 11.06am and 11.15am when SHK's usual sleep time was 11.30am: paragraph [177]. Some minutes later, DHK invited SHK to "go see aunty" but SHK ran off in a different direction to that of SHK's sister. At paragraph [180] Ms Starkey described the mother's following of SHK, in that instance as follows: [DHK] followed her (as she tended to do for most of the contact visit). [DHK] lead SHK on an "adventure" in a grassed area which had hilly parts and they went up and down in order to lead SHK to [DHK's] sister… 1. Given Ms Starkey's acknowledgment of the inexperience of DHK (then 21 years of age and never having had care of SHK) and in the context that DHK was aware that she was being assessed as to her motherly and nurturing performance, in my opinion worldly experience would cause a lay observer to acknowledge that in that instance the mother managed a tired toddler in a park where the child was surrounded by distractions to lead the child to where she wanted the child to go whilst avoiding demanding the child go there. This evidence was not explored orally with DHK. Ms Starkey did not express contemplation of whether DHK took a gentle approach in order to avoid the tired young child becoming upset during the contact. 2. Particularly because or her opinion that DHK suffers BPD, Ms Starkey in oral evidence expressed concern as to DHK's capacity to regularly turn up on time and not miss appointments according to SHK's needs such as medical appointments: transcript 19 April 2018, page 1054, lines 19 – 35; page 1067, lines 1 – 8; for example. 3. In this regard, at paragraph [172] of her 19 September 2017 report Ms Starkey must have considered it significant that DHK, having informed Caseworker Ellis that she expected to be 20 minutes late for the contact, arrived almost 30 minutes late. At paragraph [183] Ms Starkey recorded that DHK "appeared slightly annoyed" when Ms Starkey asked her not to involve her sister in the play. In relation to each of those observations, nothing in Ms Starkey's evidence investigated the value of DHK's attempt to provide SHK with her birth family identification and the pleasure of sharing SHK with her sister at contact or the effort required of DHK and her sister to have attended the contact on that day. 4. Ms Starkey has expressed the observation that DHK would provide lunch from that brought to the contact with SHK (provided by foster carers) rather than provide it herself. It will be recalled that the Department's 16 March 2018 reasons for not recommending restoration included a similar criticism. That observation was not further investigated such as by enquiry of SHK. DHK was not cross-examined on it. Whilst Ms Starkey did not observe it when she attended with DHK, the practical circumstance was that half an hour after DHK's contact had concluded, in the middle of the day, UL's contact commenced and he did bring food. Doing the best I can with Ms Starkey's observation, there is nothing to indicate that DHK did not think that in SHK's best interest, food provided for the contact by her long-term foster carers was appropriate for her to give or that she understood the routine to include UL having the opportunity of feeding his daughter. 5. At [178] Ms Starkey observed that DHK "was enchanted by anything that SHK did (as would be expected)." 6. When, in the context of giving evidence of these observations, I directly asked Ms Starkey whether the parenting performance of DHK observed at contact was normal in the context of DHK's attachment to SHK being contact only and not as the primary secure attachment which SHK has with the long-term foster carers, Ms Starkey confirmed that it was normal: transcript 19 April 2018, page 1064, lines 18 – 47. 7. For the purposes of present consideration of realistic possibility of restoration, those circumstances whilst relevant are not of equal weight of persuasion as more recent contact performance by DHK free of UL and particularly contact since the 17 October 2017 Agreement. DHK's contact with SHK since October 2017 has been satisfactory. There are no references to DHK performing at less than appropriate parenting care standard at contact visits. 8. Dr Scott Dunlop, Consultant General Paediatrician, by his affidavit of 18 September 2017, recorded his assessment of SHK and is the most recent assessment by a relevant specialist medical practitioner for the purposes of consideration of SHK's needs. Dr Dunlop was briefed with the medical records of St George Hospital, the place of SHK's birth and from which she was assumed into care, of Eaglevale Medical Centre, Campbelltown Hospital, the records of SHK's regular paediatrician Dr Richard Dunstan and the report of Dr Dunstan dated 28 July 2017. Dr Dunlop was also briefed with emails from UL in which UL expressed particular concerns which he held as to the medical wellbeing and developmental trajectory of SHK. At the time of the assessment, SHK was two years, eight and a half months of age. 9. Dr Dunstan assessed SHK to have achieved between his 13 September 2016 and 11 March 2017 consultations "a developmental jump." He assessed her as "developing within the normal range." 10. SHK was delivered to the appointment for assessment 25 minutes late and not accompanied by either of her foster carers in order for Dr Dunlop to enquire of them as to their observations for consideration in his assessment of her achievement developmental miliestones. 11. In her very early life SHK had presented with a plagiocephaly, which Dr Dunstan had described as a flattening of the shape of the head not uncommonly suffered by children, the consequence of the modern practice for avoidance of SIDS of the carers placing the child on her back. Dr Dunlop assessed SHK's plagiocephaly to have resolved and that she continued to present with a mild-moderate brachycephaly, being a flattening over the occipital region. Dr Dunlop commented that plagiocephaly and brachycephaly are "very common" and that usually natural improvement transpires up to three to four years of age. SHK's positional plagiocephaly "may have contributed to her current developmental delays" however Dr Dunlop said it was not possible to state to what extent. 12. Dr Dunlop reported that SHK presented with delayed/abnormal development in the key areas of language and social skills. He said "SHK [had] only mild expressive language delay." He found SHK very keen to use language, however predominately with single words with occasional two word phrases. Her receptive language appeared age appropriate. SHK had a reasonably good vocabulary. 13. Dr Dunlop described SHK's social interactions as abnormal, not delayed. He noticed that SHK demonstrated no stranger weariness and was overly compliant with requests by him to engage in a physical examination. From enquiry of the person who brought SHK to the assessment, he recorded that SHK demonstrated no difficulty separating from her foster carer. 14. Dr Dunlop provided as a "possibility" that SHK's abnormal social development may indicate Reactive Attachment Disorder. Ms Starkey, being a clinical psychologist with extensive experience in the area has assessed SHK not to suffer Reactive Attachment Disorder. 15. Dr Dunlop recommended that SHK receive weekly to fortnightly speech therapy for as long as the therapist deems appropriate and "first and foremost" be placed in permanent care as soon as is practicable. 16. Caseworker notes record on 14 December 2017 that foster carers reported SHK to be "going well at preschool" and talking a lot and using bigger sentences. 17. Ms Starkey, in her report dated 19 September 2017, observed that treating paediatrician Dr Dunstan assessed SHK's speech by 11 March 2017 to have improved and to be in the normal range. In regard to Dr Dunlop's assessment of SHK's language and social skills development, reported above in these reasons, Ms Starkey observed that Dr Dunlop's assessment was made not in the company of persons familiar to SHK; SHK was being assessed whilst in the presence of two strangers, they being Dr Dunlop and the unfamiliar Department operative who brought her to the appointment (paragraph [123] – [125]). At paragraph [125] Ms Starkey concurred with Dr Dunlop's observation that SHK's social interactions were abnormal but not delayed. 18. Subsequent to Dr Dunlop's assessment, SHK's regular treating paediatrician Dr Dunstan wrote to Caseworker Ellis advising that the Craniofacial Clinic had assessed SHK's plagiocephaly to be of no concern and that SHK's delay of speech was not inconsistent with her father UL's who did not walk until two years of age and did not speak until three years of age. 19. The above analysis of the expert clinician, Ms Starkey's opinion incorporating consideration of Ms Hawkins report, in the context of the whole of the evidence of the case, causes me to conclude that Ms Starkey's cautious approach was based substantially on an assumption of diagnosis for DHK of borderline personality disorder which I have not found and factual assumptions of DHK's problematic behaviours. Those assumptions I have found to be more extreme than generally found in the evidence. Significantly, Ms Starkey's assessment of DHK's parental capacity to deal with the needs of SHK, I have found to require discounting on account of DHK's significant address of her problematic issues achieved since 17 October 2017 with the assistance of the medical treatment provided by Dr Newlyn for her attention hyperactivity disorder (ADHD). The result is that I do not accept Ms Starkey's assessment that DHK is not, on the evidence of present circumstances, likely to satisfactorily address the issues which previously justified the assumption of SHK into the care of the Secretary. Obtaining Dr Newlyn's Clinical Notes 1. At the readiness hearing on 9 February 2018 I referred to the likely importance of the opinion of Dr Newlyn and that he be briefed with Ms Hawkins February 2018 report. The Department said obtaining his report would be pursued: Transcript 9 February 2018, page 256, line 3 to page 300 line 5. 2. Mid-morning 13 February 2018 Caseworker Thompson left a telephone message with the reception of Dr Newlyn's clinic asking that Dr Newlyn call her. He returned to her later that day. In her affidavit made 8 March 2018 Caseworker Thompson at [30] says that by telephone that day Dr Newlyn said that he had "seen" DHK only once and that was when she was with RS. The common evidence is that Dr Newlyn was RS' treating psychiatrist. Ms Thompson's affidavit is inconsistent with Dr Newlyn's clinical notes. As at 13 February 2018 he had consulted with DHK as a patient on two occasions and, it appears to me from his clinical notes, that he did so at some length. 3. Dr Newlyn informed Ms Thompson that he diagnosed ADHD and prescribed dexamphetamine. Ms Thompson asked Dr Newlyn during the phone call on 13 February 2018 whether he was aware DHK was smoking cannabis, informed him that psychologist Ms Hawkins had assessed DHK as not presenting with ADHD and requested that he review his diagnosis after consideration of her report. 4. In the early afternoon of 13 February 2018 Dr Newlyn emailed Ms Thompson requesting a copy of Ms Hawkins report. Obviously it had not been provided to him. Ms Thompson, shortly thereafter, emailed Ms Hawkins report to Dr Newlyn. Ms Thompson enquired of information which might check DHK's responses to Ms Hawkins such as cannabis use, dosage of and whether DHK had accessed RS's prescribed dexamphetamine, which would check whether evidence of amphetamine shown in May 2017 uranalysis was truthfully explained by DHK. Disappointingly Ms Thompson did not seek for the purposes of the Departments consideration or for the purposes of this hearing a report of Dr Newlyn's assessment of DHK's mental health and in particular her improvement, if any, in the course of his treatment which was then in excess of two months duration. 5. A matter which the Department and ILR did not concede until the reply submission of RS on the last day of the hearing required the tender of Dr Newlyn's clinical notes earlier produced on subpoena; was that DHK was referred to Dr Newlyn for treatment by her GP Dr Zhang on 6 November 2017 in accordance with his Mental Health Plan of that date. Indeed, these documents tendered at the close of the hearing show that DHK was first referred by Dr Zhang to Dr Newlyn on 12 May 2016. Dr Zhang's letter of that date described DHK's mental condition at that time as follows: a 20-year-old girl,….suffering from severe depressive (sic) and anxiety since her child was taken to of foster care 16 months ago. She has been seen psychologist (sic) without obvious improvement. 1. These documents corroborate DHK's evidence that she felt hopeless and consumed cannabis because she thought her prospects of achieving restoration to her of parental care for SHK were hopeless. These documents confirm her dysfunctional mental health state in the context of the extraordinarily distressing and the destabilising influences upon her surrounding these proceedings and the influences of UL and RS during 2015 to 2017. 2. In my opinion, that evidence is to be weighed in the consideration of the Departments case and Ms Starkey's opinion of DHK's dysfunctional behaviours including cannabis consumption, lack of punctuality and disorganisation during the period prior to coming to treatment of Dr Newlyn. In particular I note that in his initial consultation notes of 18 December 2017, Dr Newlyn recorded DHK's inability to cope with demanding situations and a diminished ability to concentrate including in regard to reading. 3. Dr Newlyn's clinical note entries are consistent with DHK's evidence that she was not aware until early 2018 that the Department considered it important for her to attend DBT. Her evidence is that she did not receive the assistance of Caseworkers toward organising the location of a suitable DBT course or admission to the intake for such a course. The cross-examination of her on this point put to her that she was provided with that information at page 66 of the report of Ms Hawkins dated 8 February 2018. I accept that the significance of attending DBT was not apparent to DHK in February 2018 and it was not until Ms Starkey gave oral evidence to the effect on 19 April 2018 that, in her opinion, completion of DBT was necessary before DHK should be permitted to commence any step toward transition for restoration and that the course required a 12 month undertaking of one day per week. 4. In any event, Ms Starkey's evidence was that DBT courses are so in demand that it was unlikely that DHK would be able to successfully self-enrol. Ms Starkey said that DHK's entry into a course would require the Department's assistance. 5. In these circumstances, given, on the Department's case, the central importance of DHK engaging with DBT, its criticism of DHK not achieving organising her own entry into the course was unfair because she was following the mental health plan of her psychiatrist and responsibly introduced to that treatment consideration DBT. Secondly because to enter such a course she would have needed the assistance of the Department, which assistance the Department did not provide. 6. Two weeks before the oral expert clinician evidence of Ms Starkey I again asked the Department about obtaining a report from Dr Newlyn. The Department informed me wrongly that Dr Newlyn had failed to provide a report in response to its request. The following exchange occurred on 5 April 2018 (page 892, line 47- page 894, line 4): HIS HONOUR: Correct me if I'm wrong, there would be nothing in a case like this preventing the department from having obtained a report of expert opinion on the issues in the case from Dr Newlyn? MCGOREY: Your Honour, we sent Ms Hawkins' report to him, we asked him to prepare a report and he did not respond to that request. HIS HONOUR: Do you mean there have been numerous phone calls and contacts with a medical professional and he's refused response to those contacts? MCGOREY: I have emails, your Honour, that I can provide you, but that the report of Ms Hawkins was forwarded to him and he was asked to provide a report in response to what Ms Hawkins said and we have not been provided that. HIS HONOUR: I'd like to see those emails. MCGOREY: Yes, your Honour. … MCGOREY: Could I just get access to the subpoenaed material returned by Dr Newlyn, your Honour? HIS HONOUR: Yes. The thing is, as much as it might excite parties greatly in court cases to go to credit, I'm not really sure that there's a big credit issue involved in this part of the evidence. That might not bring happiness to those who sit behind you, Mr McGorey, but so far as seeing Dr Newlyn is concerned, my biggest concern is if he has been required to respond on numerous occasions and has refused or failed to do so. I'm not sure what the enquiry was of him, I'm not sure if it has to do with the fact that he wants to be paid before he provides a report or whether he thought it was outside of his professional obligations to do so, whether he was reminded of the access of the department through statute, I don't know, but that's why I want to see that correspondence, because I would have thought as a general rule of thumb, it was professional for a doctor to assist in any way they can. Yes, go ahead. And further at page 902, line 39 – page 905, line 6: MCGOREY: Certainly, your Honour. I just wanted to correct something I said earlier and I apologise. I was-- HIS HONOUR: You got something wrong? MCGOREY: Yes I have. HIS HONOUR: Well, shame. MCGOREY: It's with respect to Dr Newlyn. My recollection was that the department had asked him an email to prepare a report. HIS HONOUR: Yes. MCGOREY: From what I can tell and I will give your Honour some of the correspondence. Brooke Thompson and this is in her affidavit at page 32, a note, that she spoke to him and explained the - Ms Hawkins' assessment raised whether DHK did in fact have a diagnosis of ADHD and recommended a review of the diagnosis and that they would like to provide a copy of that report to Dr Newlyn and that copy was then emailed to Dr Newlyn by Ms Thompson on 13 February 2018 but there was not an express request in there that he prepare a report 1. On 5 April 2018 Caseworker Thompson emailed Dr Newlyn at 12.07pm stating: Hi Dr Newlyn, I was just looking to get in touch with you about your thoughts on the LSC Psychology report for Dawn? I know you commented prior that ADHD and Borderline can sometimes look similar but I was just looking to have a further conversation with you about your thoughts. Are you able to call me tomorrow or send me an email with your thoughts? Thanks, Brooke [Note: LSC is Ms Hawkins] Dr Newlyn replied at 6.08pm: Good evening Brooke As there is or was a court hearing in this case my response is to say that an independent psychiatric review is needed for FACS. I am her treating psychiatrist and I am treating her for ADHD. I have told her that it would be useful to apply to a DBT programmed but have not made a PBD diagnosis. My professional bias is for children to be placed with their biological parents unless there is evidence of substantive neglect or abuse that has not been resolved by a treatment programme aimed at reunification of child and parent. Tom Newlyn 1. The email tendered on 20 April 2018 became part of Exhibit 15. Consideration of Restoration and Conclusions 1. I am of the view that applying the test explained by Slattery J in Campbell's case, there is a realistic possibility of restoration. In coming to this view, I have weighed heavily Ms Starkey's concern that SHK is a child of higher than normal needs in particular Ms Starkey's view that SHK's receptive and expressive speech delay may cause her carer extra stress on occasion and require parenting which is empathetic and focused on the priority of SHK's needs. 2. Weighing treating specialist paediatrician Dr Dunstan's assessment that in March 2017 SHK had achieved her developmental milestones including as to speech, Dr Dunlop's September 2017 assessment on a lesser opportunity (as explained by Ms Starkey and set out above) of SHK's receptive speech and vocabulary to have reach the normal milestone whilst expressive speech to display some delay, and taking into account that Caseworkers have observed improvement in SHK's expressive speech since September 2017; I am of the opinion, on the whole of the expert and factual evidence that DHK is likely to satisfactorily address the issues that have led to removal of SHK. DHK's self-regulation and alert conduct displayed during evidence in the courtroom and the evidence of her empathetic focus on SHK, assist me to accept that DHK will prioritise SHK's interests. 3. Following detailed analysis of the expert psychiatric, clinical psychologist and psychologist evidence; I prefer the view of DHK's treating psychiatrist Dr Newlyn that the personality behavioural issues in regard to which Ms Starkey advises great caution be directed, are properly observed as behaviour traits of a person with some behaviours within the spectrum of borderline personality disorder but that DHK in fact suffers ADHD for which she is receiving treatment and is on a mental health care plan. The common thread of all of the expert evidence is positive for DHK's behavioural issues being adequately resolved for the purposes of her parenting capacity through DBT and, if required, services provided by an organisation such as Panoc. 4. The common medical opinion is that DHK is likely to adjust her dysregulation and achieve responsibility as required of parenting through therapy dealing with her emotional and mental health issues: Ms Starkey, transcript 19 April 2018, page 1079, lines 30 – 34; Dr Newlyn clinical notes Exhibit 15. 5. Observation of DHK since February 2018 through the course of this long appeal hearing, from readiness hearing to submissions spanning a calendar period of more than three months, combined with DHK's vastly improved compliance with the Department's requirements since 17 October 2017, her greatly reduced cannabis use combined with her readiness to give it up in order to have parental responsibly of SHK, the change in her opportunity to control her life and separate from the influences of RS and in particular UL provided by her having stable and independent accommodation since 25 November 2017, the stability in her life and relationships which she has achieved and her addressing her mental health and behavioural issues through attendance upon Dr Newlyn and newly prescribed medication and very significantly her deliberate and committed rejection of relationship with UL including by her requiring suppression of her address from him; in my opinion, even in the face of Ms Starkey's opinion and the Department's opposition, support a finding of reasonable possibility of restoration. 6. These conclusions lead me not to accept Ms Starkey's opinion at full value. I find there to be a realistic possibility of restoration warranting a Care Plan directed at that achievement over 12 months with transition to commence after six months. DHK should have contact with SHK weekly from the date of these Orders and the Care Plan should incorporate her attendance at a DBT program organised with the assistance of the Department in consultation with DHK's treating psychiatrist Dr Newlyn. 7. It follows that I am not persuaded, on the whole of the evidence, to accept Ms Starkey's opinion that no step toward restoration commence until DHK has completed DBT over a minimum period of 12 months and thereafter dependent on a further psychological assessment. 8. DHK no longer has, at moments of such stress, UL pressing her as to her own inadequacy and pressing her emotionally with the suggestion that SHK would have a better life with RS or in foster care. It is to be remembered that UL did inflict significant domestic violence upon DHK during 2015, ultimately leading to the fracturing of her nose with a head butt on 14 October 2015, for which UL pleaded guilty and was convicted of assault. 9. DHK submits that her reading of Ms Starkey's report dated 19 September 2017 assisted her to understand and address the Department's concerns. The 17 October 2017 Orders, Plan and Undertakings following as they did from Ms Starkey's report and the achieving of independent and stable accommodation suitable for making a home for herself and SHK from 25 November 2017, provided DHK with understanding and with opportunity to address the Department's concerns. 10. DHK correctly states in her submission dated 7 May 2018 that since October 2017 her contacts with SHK have been extremely positive, that she has arrived more prepared at each contact visit, bearing in mind what she learned from Ms Starkey's assessment. She takes healthy snacks and brings pencils and a colouring book. 11. For the reasons stated above, I accept as reasonable DHK's written submission of 7 May 2018 that she does want to undergo mental health therapy because she sees a benefit whether or not she has a diagnosis of borderline personality disorder. In regard to diagnosis, I consider it reasonable that she prefers the opinion of her treating specialist psychiatrist Dr Newlyn of diagnosis of ADHD, over the medico-legal opinions of Clinical Psychologist Ms Starkey and Ms Hawkins. 12. DHK submits that she has "zero" intention of involving UL in her future life and that she has entirely surrendered her 2015 hope that they together might make "a little family". She no longer considers that a possibility nor does she want it. This submission is consistent with the history of the degrading of their relationship through 2015, more so in 2016, of her disassociation with UL since early 2017, her insistence of suppression from him of her residential address (since 25 November 2017) and from my observation of them in the courtroom over the length of the hearing. At no point in the hearing was any cooperation or affinity between them perceived. There was no affection. To the contrary, UL appeared tense and aggressive frequently toward DHK and proffered evidence such as Exhibits UL1 and UL2 with the intention of sabotaging her case for restoration which formally he supported. I understand These observations are not inconsistent with Ms Starkey's opinion of UL. 13. Specifically in relation to the important concern that DHK in the past minimised the significance of domestic violence, in her written submission of 7 May 2018 she conceded that she did minimise it during the period when she believed UL to be working on their relationship toward, as she put it, making "a little family". Presently she accepts that she herself contributed to that unhealthy engagement. The evidence is consistent with her having been psychically violent, on occasion, with UL. In the words of her submission, she conceded: [I]t got to the point where I felt that no one wanted me to be around my daughter, that there was good reason that I wasn't allowed to see her or that she wasn't going to come home with me anytime soon. 1. DHK submits that her appreciation of the importance of domestic violence and the way she sees that issue is "extremely different" now. She submitted: Although I'm sure I could do a better job at responding to SHK…[I] think that the amount of time that has gone into this case and these proceedings it's amazing that I am able to still have the hope [I] do in regards to being in her life. I am determined to be involved in SHK's life whether or not restoration is a possibility…, the same goes with doing DBT…I intend on doing DBT whether or not restoration is likely or it doesn't happen. I see these things as a benefactor [sic] not as a problem. 1. DHK is complementary in her submission of 7 May 2018 of the assistance she received from Caseworker Ellis, particularly in assisting her in her successful application for public housing. Since December 2017 she has been satisfactorily compliant: 1. With contacts in both categories of earlier concern of reliability of her attendance including notification of inability to attend and of displayed care for SHK; 2. She has investigated attending DBT and discussed it with her treating psychiatrist Dr Newlyn, whose recommendation in favour of her attending DBT, she intends to follow; 3. She is medicated under the care of Dr Newlyn for her diagnosed ADHD, being a diagnosis on the common medical opinion of Dr Newlyn, clinical psychologist Starkey and psychologist Hawkins is directed to treatment of personality behavioural traits common to BPD; 4. She has engaged with the Benevolent Society and is on the waiting list to commence a Domestic Violence Course as soon as that organisation can allocate a Caseworker; 5. She has enquired of the Benevolent Society on the impacts of domestic violence on children and how it can affect them, their behaviour and level of interaction with other children including how they socialise; and 6. Through her engagement with the court support person from the Salvation Army she is engaging with a service directed to assist persons with maintaining their safety and keeping their house safe after leaving domestically violent relationships. 1. In her written submission of 7 May 2018 DHK makes plain that she does not seek immediate restoration of SHK but rather that she seeks a Care Plan by which she might work toward restoration. She concedes that there are still concerns as identified by the Department and that they need to be addressed "as SHK comes into my care, but I also think I shouldn't be denied any chance of being her mum." She expressed her willingness to work with the Department, addressing its concerns, towards achieving restoration. The favourable impression she gave during oral evidence assists me in accepting her expression of commitment. 2. Obviously evidence that DHK is now likely to be able to satisfactorily address the issues that led to the removal of SHK from her care is important to the determination of the making of a Final Care Order: s 83(1) and (7)(b)(ii). In cross-examination DHK acknowledged the importance of her correcting behavioural traits identified in the reports of the clinical psychologist Ms Starkey and psychologist Ms Hawkins retained by the Department and by her treating psychiatrist Dr Newlyn. She expressed her want to address correction of her problematic behavioural traits going forward. Correction of those behavioural traits is, practically speaking, a matter which is most important to the Court. 3. The approach taken by the Department in cross-examination pressed DHK for an admission that she had been diagnosed with BPD. I have found that she was not diagnosed with BPD by Dr Bowes in January 2015 and that Ms Starkey's assumption of Dr Bowes making that diagnosis influenced her arriving at that diagnosis. Further, that Ms Hawkins only having been briefed with Ms Starkey's report, concurred with her diagnosis. On the other hand, the treating psychiatrist Dr Newlyn having had the opportunity to read Ms Hawkins report, did not arrive at that diagnosis. Dr Newlyn diagnosed ADHD. 4. The important matter is not DHK's acceptance of BPD but her acknowledgment that she has problematic traits and is willing to address them. In this way, the Department's approach to the very important question was unnecessarily combative. 5. DHK was quite entitled to prefer the view of her treating psychiatrist whom she had to that time consulted on four occasions between December 2017 and March 2018, who she correctly understood to have attributed her behavioural traits to the diagnosis of ADHD. She is entitled to have confidence in his prescribing Dexedrine to her for treatment of that condition. The evidence supports DHK to be successfully addressing those problematic behavioural traits by following Dr Newlyn's treatment and mental health plan. 6. Ms Starkey's opinion, particularly as given in her oral evidence, is that those features of disorganisation and dysregulation are central to her assessment that DHK is presently unfit for parental control of SHK, in that she would not be able to prioritise and be sufficiently organised so as to reliably meet SHK's needs. 7. At the first opportunity of this issue being revealed in the hearing, the Court did what it could to encourage the Department to obtain a report from Dr Newlyn. On several occasions the Department informed the Court that Dr Newlyn had been requested to provide a report but had failed to do so: see transcript 9 February 2018, page 299, lines 7 – 47; 5 April 2018, page 892, line 47 to page 899, line 15, page 902, line 48 to page 903, line 12. 8. Ultimately, the Department conceded that it had not requested Dr Newlyn to provide a report. On 17th day of oral evidence in the hearing, when it was too late for the obtaining of further specialist psychiatric evidence, the Department tendered Dr Newlyn's five line email dated 5 April 2018 responding to a telephone inquiry from Caseworker Thompson. At that date Dr Newlyn was not even aware of what assistance he could provide, which is shown by the commencing words of his email "As there is or was a court hearing in this case". 9. Ms Hawkins report would have revealed to him Ms Starkey's formulation of opinion. Dr Newlyn recommended that the Department needed an independent psychiatric review. He maintains his diagnosis of ADHD and confirmed that he did not diagnose BPD: Exhibit 15. 10. Had I been aware at the time of the tender of Dr Newlyn's 5 April 2018 email, that this appeal hearing was to continue until 22 May 2018, I would have encouraged the Department to obtain an expert psychiatric opinion of the benefit of DBT for DHK going forward on the basis of her clinical treatment history with Dr Newlyn. That the Department did not provide the Court with the benefit of that evidence has left the Court with less than the body of expert opinion which ought have been available in the assessment of the likely course of progress of DHK dealing with her problematic behaviours, commonly observed to be the underlying cause of her conduct which led to the removal of SHK and of the Department's maintenance that there is no realistic possibility of restoration. 11. But for tender of Dr Newlyn's clinical notes made at the instigation of RS during closing submissions the Court would have been left only with Dr Newlyn's 5 April 2018 email to consider with the opinions of Ms Starkey and Ms Hawkins. Ms Starkey's opinion is expressed in uncompromising terms that only after DHK has successfully completed a one year DBT course and then subsequently been independently assessed, would it be appropriate for any step be taken toward transition. Further, that by which time the attachment trauma to SHK might be far worse than from transition commencing now. 12. I have found that Ms Starkey wrongly assumed psychiatrist Dr Bowes had earlier diagnosed BPD. Ms Starkey's treatment practice is that if she diagnoses BPD in a patient, she will seek confirmation of diagnosis from a psychiatrist. She said a psychologist is not certified to diagnose. Ms Hawkins is a psychologist. I have found that DHK has not been diagnosed with BPD except by clinical psychologist Ms Starkey. Dr Newlyn does not confirm that diagnosis. 13. DHK is presently under Dr Newlyn's mental health plan treatment including pharmacological treatment of prescription of Dexedrine. DBT is therapeutic treatment being considered in that mental health plan. That combined course of psychopharmacology and therapy is not a course of treatment assessed by Ms Starkey or by Ms Hawkins. 14. Ms Starkey interviewed DHK only the one time on 14 September 2017. Her further, updated expert report dated 16 March 2018 shows that she was not briefed with the clinical notes of Dr Newlyn's treatment of DHK, nor was she briefed with the affidavit of Caseworker Thompson dated 8 March 2018 which, at [30], referred to Ms Thompson having contacted Dr Newlyn on 13 February 2018. 15. It is important to return to the requirements of s 83(7) Care Act. Pursuant to that subsection, the court must not make a final care order unless it expressly finds: (a) that permanency planning for the child or young person has been appropriately and adequately addressed, and (b) that prior to approving a permanency plan involving restoration there is a realistic possibility of restoration having regard to: (i) the circumstances of the child or young person, and (ii) the evidence, if any, that the child or young person's parents are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care. 1. Whether or not DHK is likely to be able to satisfactorily address her behavioural traits of disorganisation and personal dysregulation is very important to the findings which the court is required to make under s 83, particularly s 83(7)(b). 2. I repeat that Ms Starkey's opinion is that satisfactory address of those behaviours takes precedence because the lifestyle issues of unstable relationships including with persons of authority such as domestically violent partners, ability to abstain from cannabis use, responsible attendance at appointments, DHK's ability to tolerate and manage her responses to SHK's needs are all remediable following satisfactory correction of those underlying personality traits. In consequence, satisfactory address of those issues would likely lead to DHK satisfying the underlying causes of all of the Department's concerns. 3. It is important for the court to do the best that it can, in the circumstances, employing the information contained in Dr Newlyn's clinical notes in the assessment of whether or not DHK's four months of treatment to date satisfy me that she is likely to be able to satisfactorily address the issues of her behaviour which led to the removal of SHK from her care and have caused the Department in its Addendum Care Plan dated 16 March 2018 (Exhibit 17) to assess that there is not a realistic possibility of restoration. 4. Relevantly Dr Newlyn's clinical notes provide as follows: 1. On the first consultation on 18 December 2017: 1. Dr Newlyn obtained a history including all of the material elements considered by Ms Starkey to be relevant to assessment of DHK's problematic behavioural traits when coming to her diagnosis of BPD including DHK's dysfunctional and abusive upbringing, her developmental history, relationship history and illicit substance use. 2. DHK disclosed to Dr Newlyn her problematic behavioural traits, being the same traits which Ms Starkey identified as requiring correction before there be any possibility of restoration, including: low mood, self-regulation including taking too much on and not sticking with it, failure to maintain long-term work and relationships, starting and not finishing projects, inability to long-term meet the normal demands of a job, marijuana consumption starting at 13 years of age, poor impulse control "outbursts about little things" [Note: identified by psychologist Ms Hawkins as inconsistent with ADHD], no recurrent self-injurious behaviour present. 3. On initial presentation DHK had the insight to state "I am really down because I'm not progressing. I fail in work and relationships." 4. Dr Newlyn assessed DHK as "motivated to change", having good interpersonal skills, family support of her sister, capacity for insight and good job skills. 5. Dr Newlyn determined DSM-5 Psychiatric Diagnosis of: Attention-Deficit/Hyperactivity Disorder Combined Presentation Tobacco Use Disorder Mild Disruption of Family by Estrangement High Expressed Emotion in Family 1. Dr Newlyn advised DHK that she required treatment in the form of psychiatric care - psychopharmacology of dexamphetamine and "Outpatient" behavioural treatment in the form of individual and family therapy. 1. On 17 January 2018 DHK reported that both her concentration and her behaviour had greatly improved however her difficulty with maintaining behavioural regulation continued and the medication was "wearing off" in the afternoon. 2. On 14 February 2018 : 1. DHK reported further improvement in concentration and behaviour. Her behavioural dysregulation had lessened. 2. DHK and Dr Newlyn discussed his receipt of Ms Hawkins report from the Department. DHK talked about DBT. DHK informed Dr Newlyn that she did not believe that she had BPD. DHK asked Dr Newlyn to look up MacArthur Clinic and Dr Newlyn told DHK about St John of God Hospital, Burwood services. [Note: this corroborates DHK's evidence that once informed of the Departments interest in her undertaking DBT, she asked Dr Newlyn as her treating psychiatrist to enquire of providers and advise her of her health plan and his view on DBT at her April 2018 consultation]. Dr Newlyn advised abstention from cannabis because it counteracts the effect effects of dexamphetamine 1. On 14 March 2018 1. DHK reported that she had abstained from cannabis use since 14 February 2018 and that her attention "is fine". [Note: this is consistent with my lay observation of her in Court between 19 March 2018 and 23 May 2018 when she was apparently sober, attentive, held concentration well, maintained appropriate behavioural regulation including through extremely long and very personally invasive cross-examination. It is also consistent with drug and alcohol assessor Ms Buckner-Pitts in February 2018, not advising that therapy was required.] 2. DHK gave her consent for Dr Newlyn to communicate with the Department of her progress. . 3. DHK reported further behavioural improvement and further improvement of functional level with maintenance of behavioural regulation. DHK had not contacted MacArthur Clinic. DHK reported that but for a painful tooth she would be "doing really well". 1. When in oral closing submissions counsel for the Department submitted that it would be extraordinary to expect the parent to be objective in her assessment of the Department's actions and plan, in response to my referring to mistrust in both directions between the Department and the parents; I referred to the following passage of its Further Addendum to Care Plan 16 March 2018 as contrary to his submission of the Department's expectation of a parent: Whilst it is considered that [DHK] has improved in demonstrating her role as [SHK's] parent by tending to her needs, showing some knowledge of [SHK's] development and responding to [SHK's] cues. [DHK] has not yet adequately demonstrated that she places [SHK's] needs of (sic) above her own or has empathy for [SHK's] experience in foster care and what this would mean if she was removed from that situation. (bold added). 1. In my opinion, it was being optimistic if not unreal but most likely unfair for the Department to criticise DHK, she having been without her daughter for three and a half years, for not speaking of her empathy in that regard. I referred to the harshness of the paragraph proceeding the passage quoted which was critical of DHK for bringing snacks and juice but relying on substantial foods as provided by the carers in SHK's bag, rather than bringing her own substantial food for SHK at contacts. As I said, on one view, DHK may have considered that she would be intruding or overstepping the mark by bringing food. It may have been food which did not suit SHK's routine. She may have assumed that as the carer had provided SHK's food in her satchel that it was appropriately respectful of her for the prime carers role to feed SHK that food rather than other food without regard for what the foster carers might think: transcript 21 May 2018, page 1389, line 29 to page 1390, line 9. Cross-examination did not provide DHK the opportunity to respond to that criticism. 2. I addressed to the Department that the Addendum Care Plan was a document filed immediately before recommencement of this hearing on 19 March 2018. That Addendum Care Plan contained the Department's reasons for the Secretary's assessment that there was no realistic possibility of restoration. The purpose of care plans is both to provide a summary of the situation in relation to safety, welfare and wellbeing of the child as well as to provide a roadmap for care of the child including acceptance or rejection of restoration to the parent. 3. I addressed the severity of the criticism that a mother did not have empathy for the trauma which her daughter would suffer in consequence of the mother seeking restoration and moving the daughter from the situation of foster carers. This was particularly so in this case where the clinical psychologist Ms Starkey, retained by the Department, reported on 19 September 2017 that DHK had selflessly said that she wanted whichever outcome was best for her daughter: transcript 21 May 2018, page 1390, lines 10 – 45. 4. After the luncheon adjournment on 21 May 2018 the Department sought not to press the above quoted passage in its Further Addendum to Care Plan of 16 March 2018 describing DHK's lack of empathy for SHK: transcript 21 May 2018, page 1426, line 40. That course I considered startling and embarrassing for the Department. The series of Care Plans in a case are the guideposts of the course of care taken and to be taken. Those matters are at the heart of this case. That document of Care Plan represents the Department's reasons for the course it has taken and for its position that there is no realistic possibility of restoration. 5. On the third day of the resumed hearing on 21 March 2018 I addressed what I considered to be harsh assessments of DHK in the Further Addendum Care Plan dated 16 March 2018. Ms Starkey had read that transcript before giving evidence on 19 April 2018. The Department's course of first including those important reasons in that centrally important document and then at the close of the hearing after conclusion of the evidence of the expert clinician Ms Starkey, conceding its error and seeking to not press it was, in my opinion, an unfortunate display of a combatant approach. 6. The assessment of DHK's empathy for SHK is in these proceedings one element essential to the Department's determination of no realistic possibility of restoration and of the Department's opposition to DHK's case for restoration in this appeal hearing. 7. On 19 April 2018, having relied on the Department's documentation and not having viewed DHK's contact with SHK since 21 July 2017, Ms Starkey described DHK's capacity for empathy for SHK's needs as fundamental to her opinion that DHK had not displayed the capacity for insight for the needs of SHK. Ms Starkey would have relied on the Further Addendum Care Plan 16 March 2018. DHK's capacity for empathy was a foundation basis for Ms Starkey opining that DHK would not have achieved the capacity of insight through empathy for SHK's needs such that any step of transition toward restoration could commence until she has completed the one year DBT course. Ms Starkey's evidence in answer to questions asked by counsel for the ILR was (transcript 19 April 2018, page 1065, line 47 – page 1067, line 50): Q. So I think in your report, though, you've spoken about some special needs for SHK, and how that perhaps complicates this issue of attachment. A. Yes. Q. Do I understand that correctly A. Yeah. She seems to have had an unusual developmental trajectory. She doesn't seem to have the language that she should have, at the age that she now is - or was when I saw her. I'm not sure if that's improved very much in the last six months. But certainly when I saw her, I would have said her development was problematic, and everybody in the Court knows that there have been developmental difficulties along the way as well, the plagiocephaly and also I think she had torticollis and she had to have - was it physiotherapy or occupational therapy? One of those. And she seems to have had quite a lot of input about that, and she'll probably need speech therapy as well. Some of those things may be related to drugs in utero or other kinds of impacts that may have occurred during her development. Q. So how does that or those challenges for SHK impact upon the issue of her attachments? Does that complicate any process of, for example, if there's a restoration, a move for SHK from her current placement to DHK? A. Well, one of the difficulties is, is that she doesn't - if she doesn't have sufficient receptive language to understand what's happening to her, that's going to cause her more trauma than if she is able to have things explained to her. If she doesn't have the expressive language to be able to explain how she feels and to talk about the loss that she's experiencing, then that will make it much harder for her. If - it will be hard enough if she's separated at all, but those extra complications I think make it more difficult. Q. You make a comment in your report about "good enough parenting" versus "high level of parenting". A. Yes. Q. As it might impact on a proposed restoration. A. Yes. Q. What do you mean by that? A. Well, in the jurisdiction of Children's Court matters, parents are imperfect. Well, we're all imperfect actually. But sometimes those going through aren't quite what we would want them to be but they can probably make - you know, feed the child, look after the child, you know, play with the child. Maybe the child would be a bit dirty or might not have everything that they need, but it'll be enough to get - so we call that "good enough parenting", so something that will get the child through but not necessarily give them the, you know, the, the kind of parenting we'd like them to have if - in ideals. In terms of extra needs for children, good enough parenting is not really good enough. What we would normally think of as good enough parenting is not good enough. You need someone who has the capacity to manage all the difficulties that that child will have. You know, a child who's got some kind of difficulty about speech may have learning difficulties, may have, you know, all kinds of difficulties that could occur as a result of that. There may be cognitive difficulties which would give her difficulties when she starts school. As I said, I suspect she would need speech therapy, she may need other treatments. You need someone who's willing to take her to the paediatrician regularly and take her to the speech therapist for her sessions, and make sure they turn up on time and regularly and not miss appointments without someone actually sending them a text to say that "the appointment is on today". They need to be able to, you know, say take control of that and be managing that pretty much on their own, and to be able to assess when the child needs a particular kind of help, going to the doctor or whatever. Q. So just coming back to SHK again, having regard to her current circumstances and what you know about her assessed challenges in her development at the present time, and there may be more that - I'll come to whether you're making some other recommendations about that area, of what might be described as special needs. But in terms of - well, do you say that in the event of a restoration to a parent, that this is a child who will need a high level of parenting? A. Yes. Q. And why do you say that? A. Well, as I said, I think you need someone who can in fact have the insight to - and the empathy with a child, to know what their needs are, to actually be able to see the, the child's emotional distress. The child can't speak but is experiencing the loss - it's probably equivalent to the death of both parents - is, is something that you need a, a good capacity to deal with, and you need to be able to manage those emotional needs. That means putting the child first, and making sure that her needs are met. And we all have to do that as parents, but we can sometimes, you know, mix that up and have some needs ourself. But for, for a child who's going to be in this difficult situation, you need someone who's able to in a sense have what, what the neuropsychiatrists call mindsight. That means being able to visualise, you know, what the needs of that child are, what's going on in that child's brain or in that child's body, so that you can assist them with those issues. Q. You use the expression in your report "the management of the emotional fallout" A. Yes. Q. "of the disruption of her current attachments". What do you anticipate would be the emotional fallout? What would one be likely to see, given the grief reaction that you've spoken about? A. Yes, well, I think, as I've said, that you know, it is seriously a grief reaction, because it's basically the loss of your family, not only your psychological mother and your psychological father but your psychological sister, your child care centre. All of those things that have been the mainstays of your earlier life would be taken away from you. So it's a, a very big trauma for a young child, to lose all of those things, and it's something that will affect them. The kind of effects that occur - well, it can go either way really. One - some children become depressed, even very young children can come depressed. I've certainly seen a six year old who attempted suicide. So it can be quite young when they can get that serious level of mood disorder. (emphasis added) 1. Dr Newlyn's course of treatment of DHK spanned four consultations between 18 December 2017 and 14 March 2018. Plainly evidence of his notes of history obtained, his diagnosis and the therapeutic course of improvement, were material and valuable in the consideration of the foundation point of the Departments opposition to restoration that DHK is not likely to be able to satisfactorily address her problematic behaviours which have necessitated the removal of SHK and placement of her in foster care: section 83(1) and (7). 2. Cumulatively, that evidence supports a finding that DHK is likely to be satisfactorily address her cannabis use issue and indeed has done so. Again, that evidence was available to the Department prior to its recording of reasons assessing realistic possibility of restoration recorded in the Further Addendum to Care Plan 16 March 2018. 3. Ultimately the court has to assess the risk of harm to SHK having regard to the capacity of DHK whilst recognising the primary means of providing for the safety, welfare and wellbeing of SHK is providing her with a long-term, safe, nurturing, stable and secure environment through permanent placement in accordance with the permanent placement principles. SHK's safety, welfare and wellbeing are paramount. Subject to that account must be taken of the intrusion of intervention in SHK's life by the making of an order for restoration. It is not irrelevant that SHK's long-term carers do not seek adoption. Restoration will include for SHK a relationship with her birth parent. Subject to the objects and principles set out in ss 8 and 9 the Act favours permanent placement in a cascading list of "principles" the first of which favours, if it is practicable and in the bests interests of SHK, restoration to DHK in order to preserve her family relationship: s 10A. 4. For the reasons stated I do not accept the Secretary's assessment that there is not presently a realistic possibility of restoration: s 83(5A). I am satisfied on the evidence that there is a realistic possibility of restoration of parental care of SHK to her mother DHK in satisfaction of the objects, paramount principle and permanent placement principles of the Act pursuant to s 83. I am satisfied that on the whole of the evidence permanency planning for SHK has been appropriately and adequately addressed: s 83(7). Addendum 1. Whilst UL did not appeal from the Final Orders made 9 September 2016, he has voiced in these proceedings the request that the court direct the Department to prescribe a Care Plan toward he and his mother MT having unsupervised contact with SHK. UL concedes that SHK would be at risk of harm in his care presently. Clinical psychologist and expert clinician reporting in these proceedings, Ms Starkey, assessed UL as mentally ill, suffering bipolar disease. She had read the whole of the evidence and had the benefit of interviewing UL when coming to that opinion. During oral evidence UL cross-examined Ms Starkey about it. There is no expert medical evidence to the contrary. His rationalisation of information and his obvious difficulty at accepting a contrary point of view without displaying agitation was apparent in court and is the subject of comment in these reasons. The level of his potential for domestic violence is indicated throughout the evidence but in particular attention is appropriately given to his violent head-butt assault to the nasal region of DHK's face on 14 October 2015, in relation to which he was convicted and sentenced to a Section 9 Bond to be of good behaviour. I have observed him by his own evidence including his affidavit evidence to display a concerning normalised view of domestic violence and of his behaviour. He presents as a person who is not capable of reasonably and calmly accepting a contrary point of view. He has a history of daily, significant cannabis use. The evidence in this appeal does not support directing the Department to prescribe a Care Plan. It has been explained to UL that he is free to make an application such as an application under s 90 of the Act and that he is free to deal with the Department toward engaging its expert services and meeting the Department's satisfaction that he has addressed the obvious risk factors he presents. 2. MT has been the subject of AVO's including for the protection of RS and of UL on occasion. Historically she was convicted of assault of a seven year old child whom she was babysitting. That assault occurred when she felt that the child displayed a lack of respect for her during the playing of a game. In 2014 following a disagreement, she flooded the bedroom of UL and DHK whilst they were within, in what might have been an attempt to electrocute them. There is no expert medical evidence before me nor otherwise an assessment of the risk which she may present as would be required for contemplation of any order effecting supervision at contact. The court has been informed however that MT suffers from bipolar disorder. I decline to make any order effecting supervision at contact of SHK with UL and/or MT. Orders 1. The appeal is allowed. 2. The Interim Care Order of the Children's Court made 21 April 2015 is affirmed. 3. Final Order of the Children's Court made 9 September 2016 be set aside. 4. SHK to remain in the parental care solely of the Minister for 12 months pursuant to section 79 (1) (b) Care Act. 5. All aspects of parental responsibility of SHK after 12 months to be restored to DHK pursuant to section 79 (1)(a) Care Act. 6. The Secretary to prepare a permanency plan for restoration of SHK to DHK pursuant to the provisions of sections 84 and 85 Care Act. 7. The Secretary to prepare a plan for transition of SHK into the care of DHK over the period of six months commencing after six months from 8 June 2018. 8. The parties to attempt to agree orders providing for the requirements of the permanency plan involving restoration of SHK and provision of services facilitating that restoration. 9. The parties to attempt to agree undertakings to be given by UL toward protecting DHK from engagement with UL including maintaining suppression from UL of contact details for and residential address for DHK. 10. The parties to attempt to agree undertakings to be given by RS protecting DHK from engagement with RS save for as and when initiated by her. 11. The parties to attempt to agree undertakings to be given by DHK that she maintain compliance with a mental health plan as prescribed by Dr Newlyn or by another medical practitioner agreed to by the Department and DHK for the term of the orders. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 August 2018