Children's Court New South Wales Medium Neutral Citation: Department of Communities and Justice (DCJ) and the McAlister Children [2020] NSWChC 4 Hearing dates: 17, 18 and 19 March 2020 Date of orders: 17 April 2020 Decision date: 17 April 2020 Jurisdiction: Care and protection Before: Judge Peter Johnstone, President of the Children's Court of NSW Decision: The father's application under s 90 of the Care Act is dismissed. Catchwords: CHILDREN - Care and Protection - Application for rescission of previous Care orders - realistic possibility of restoration Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 Cases Cited: Blinko and Blinko [2015] Fam CAFC 146 Briginshaw v Briginshaw [1938] HCA 34 DFaCS re Day [2012] NSWChC 14 DFaCS and the Steward Children [2019] NSWChC 1 DFaCS Re Nicole [2018] NSWChC 3 Department of Human Services & K Siblings [2013] VChC 1 Director General of Department of Community Services; Re "Sophie" [2008] NSWCA 250 Director-General, Department of Community Services; Re Thomas [2009] NSWSC 217 G v Family and Community Services [2019] NSWSC 229 G v Medical Council of NSW [2018] NSWCATOD 186 GR v Secretary, Department of Family and Community Services [2019] NSWSC 1073 GR v Secretary, Department of Families, Disabilities and Community Services [2019] NSWCA 177 GR v Secretary, Department of Families, Disabilities and Community Services [2019] NSWCA 277 GR v The Secretary of Family and Community Services [2019] NSWSC 1146 GR v Secretary of Family and Community Services and Justice (No 2) [2019] NSWSC 1725 In the matter of Campbell [2011] NSWSC 761 Johnson v Page [2007] Fam CA 1235 M v M [1988] HCA 68 Nu v NSW Secretary of Family and Community Services [2017] NSWCA 221 Re Alistair [2006] NSWSC 411 Re Henry; JL v Secretary Department of Family and Community Services [2015] NSWCA 89 Re Mary [2014] NSWChC 7 Re Jayden [2007] NSWCCA 35 Re Timothy [2010] NSWSC 524 Re Tanya [2016} NSWSC 794 Re Saunders and Morgan [2008] CLN Re AB [2019] NSWSC 316 Re AB (N0 2) [2019] NSWSC 566 Re Bailey and Blake [2011] NSWSC 1390 Secretary of Department of Health and Community Services v JWB and SMB [1992] HCA 15; (1992) 175 CLR 218 Sudath v Health Care Commission [2012] NSWCA 171 The Secretary of the Department of Community and Justice (DCJ) and Fiona Farmer [2019] NSWChC 5 VV v District Court of New South Wales [2013] NSWCA 469 Category: Principal judgment Parties: The Secretary The mother The father The children Representation: Ms K Stanford, solicitor, for the Secretary The mother, a self-represented litigant in person Mr Hill of counsel, instructed by Mr Fleming, solicitor for the father Ms L Dillon-Smith, solicitor, for the children as their Independent Legal Representative File Number(s): 2019/00183592 Publication restriction: Pseudonyms have been used in order to anonymise the children and parties Judgment Introduction 1. These Care proceedings concern the McAlister children, Raymond (10), Hannah (7) and Leo (6) who were removed from the care of their parents, Brett and Jane McAlister on 8 September 2015 pursuant to the Children and Young Persons (Care and Protection) Act 1998 (the Care Act) amid concerns for their safety welfare and well-being due to reports of neglect, domestic violence and mental health issues in the family. 2. Following the removal of the children, the Secretary of the Department of Communities and Justice (DCJ) filed an Application in the Children's Court of NSW, which made an interim order allocating parental responsibility to the Minister. The Court subsequently found that the children were in need of care and protection and the matter was established. 3. An independent assessment was carried out by a children's psychologist, Ms Linda Pfeiffer, on behalf of the Children's Court Clinic. She recommended against restoration in a detailed report dated 15 February 2016. 4. Care Plans for the children were prepared and filed, in which the Secretary made the assessment that there was no realistic possibility of restoration of the children to their parents, and proposed, by way of permanency planning, that they be placed into long-term foster care until the age of 18. 5. The parents disputed the Care Plans and sought restoration of the children to their care. 6. The proceedings therefore went to a hearing on 20 October 2016. The parents were legally represented. Ms Pfeiffer gave evidence, following which the parents conceded that there was at that time no realistic possibility of restoration of the children to them. 7. The Children's Court then approved the permanency planning and made final Care orders on 20 June 2016 allocating parental responsibility to the Minister until the children turned 18. The children were then placed in foster care. 8. Ultimately the children came into the out-of-home care of the present carers, who have cared for them for some 3 years until the present time. According to everyone but the parents, the foster parents have done a very good job of caring for the children, in difficult circumstances, having regard to their history of trauma and their particular individual needs. 9. Then, on 4 June 2019 the father filed an Application under s 90 of the Care Act seeking rescission of the final Care orders of 20 June 2016, with a view to the children being restored to him. 10. The Secretary opposed a restoration of the children and maintained that the children should remain with their foster carers until they turn 18. Leave to proceed under s 90(2) of the Care Act was not opposed for the father's Application, the Secretary conceding that the father had an arguable case. The Court therefore formally granted leave on 22 August 2019. 11. The parents, who had previously separated, now resided together as a couple, and proposed that they would care for the children jointly. Unusually, however, the father asked that parental responsibility be allocated to him to the exclusion of the mother. His application has been supported by the mother, but she does not seek an allocation to her of parental responsibility, but proposed that she play a role in the future care and upbringing of the children in conjunction with her husband. 12. The father conceded that if necessary, a supervision order might be put in place for the first 12 months of the restoration. 13. The Secretary contended that there should be no change to the final Care orders made on 20 June 2016, and sought dismissal of the father's Application. 14. The principal issue in dispute, therefore, has been whether there is a realistic possibility of restoration of the children to their parents. 15. To assist in the resolution of the dispute, the Children's Court ordered another assessment under s 53 and s 54 of the Care Act pursuant to which a Report was prepared by Ms Susan Wilson, a clinician appointed for the purpose by the Children's Court Clinic. 16. The Children's Court Clinic was strongly opposed to a restoration of the children to the parents, who nevertheless pressed the Application. A hearing date was therefore allocated for the hearing of the dispute in the week commencing 16 March 2020. The hearing of the rescission application 1. The hearing of the father's rescission application in these proceedings commenced before me, sitting as President of the Children's Court, on Tuesday 17 March 2020. It then proceeded into Wednesday 18 and Thursday 19 March 2020 when I formally reserved judgment. 2. Ms K Stanford, solicitor, appeared for the Secretary. The father was represented by Mr Hill of counsel, instructed by Mr Fleming, solicitor. The mother appeared in person as a self-represented litigant. The children were represented by Ms Dillon-Smith, solicitor, appointed by the Court as their Independent Legal Representative (ILR). 3. Before the Court was an amount of documentary evidence that was filed prior to the hearing or tendered during the hearing. A number of witnesses were called to provide additional oral evidence, and were cross-examined, including the Children's Court Clinician, Ms Susan Wilson, DCJ caseworkers, Ms Stacey Goode and Ms Robyn Scott, and each of the parents. At the conclusion of the evidence, I heard oral submissions from the legal representatives of the parties. The removal of the children from the parents in 2015 1. It is important for there to be a clear understanding as to why, objectively viewed, these children were removed from the parents and not restored to them at the hearing in 2016. 2. The mother, who is now aged 31, had a tragic childhood in which her relationship with her mother was extremely difficult due to her mother's abuse of illicit drugs. 3. The mother was removed from her mother (the maternal grandmother) at the age of 9, following which she experienced a horrifying period in out-of-home care. She described one carer as having treated her like an animal, making her sleep in a shed and forcing her to defecate and urinate outside. Eventually, she absconded from this placement which was followed by multiple other placements, none of which was stable. 4. She told the first Clinician, Ms Linda Pfeiffer, that she was sexually abused between the ages of 14 and 16. She also reported having suffered from epilepsy and other disorders, including schizophrenia, bipolar disorder and Aspergers. 5. At age 16 she ran away to Sydney with a boyfriend, where they lived together. She fell pregnant, but that baby was lost at 5 months. 6. The mother met the father in 2007 and they commenced a relationship when she was 18 and he was 24, subsequently moving in to live together. The relationship seems to have been volatile. 7. The mother reported an incident to the Police which she alleged occurred on 11 June 2008, in which the father was physically violent towards her, pushing her up against a door and demanding "sexual favours". An ADVO was taken out against the father. The mother was supported by a worker from the House With No Steps organisation (HWNS). 8. This worker complained that the father subsequently stalked her and threatened her, blaming her for the breakdown of his relationship with the mother, at one point telling her, "I'm going to hunt you down." 9. The mother fell pregnant but the child tragically died at 37 weeks in 2009. Reports were received by Community Services in which she was described as having a "psychiatric disability" and was suffering from "Oppositional Defiance Disorder". She was offered grief counselling, but this did not occur, reportedly because the father discouraged her. 10. The mother fell pregnant with Raymond. Two pre-natal reports were received in 2009 by DCJ recording the mother's poor emotional state, domestic violence, and lack of personal hygiene. 11. Raymond was in 2010 and then Hannah was born a year later in 2011. 12. During this period, the family did not come to the attention of DCJ, but in November 2011 the mother reportedly left the home due to ongoing domestic violence, and did not take the children with her. There were reports of an extremely unhygienic home environment, including a filthy house with insects and rodents, of the father consuming alcohol, and exhibiting controlling behaviour. The father denied any violence towards the mother and denied any alcohol abuse. He complained that the mother had little regard for the children's needs and frequently disappeared for "social reasons." 13. By March 2012, the parents had "reconciled" and the mother returned to the house. They were offered counselling, but declined. There were no further adverse reports until December 2012, when one morning the children were discovered playing alone on the road by a passing motorist and taken home. 14. A subsequent Safety Assessment conducted on 3 January 2013 revealed that the family home was in a squalid condition: "…with mess all over the floors, powdered milk and dirty dishes over all kitchen benches… full ashtrays throughout the home and animal faeces on the floor of the children's bedroom…" 1. During this Safety Assessment the mother disclosed that she was again pregnant, but that physical domestic violence episodes involving the father continued to occur. The father was referred for counselling for anger management, but the father did not engage with the counsellor. 2. Leo was born in 2013. The following day the father verbally abused the mother in the Hospital, and the mother was fearful about going home. 3. She did, however, go home and the family did not come to the attention of DCJ for the next 18 months. However, in February 2015, the mother requested emergency assistance from the Police for domestic violence, and was placed with the children in a refuge. The mother reported that the father had been engaging in controlling behaviour, physical violence, verbal abuse and an episode of sexual assault over preceding months. A ROSH report on 23 February 2013 disclosed that the children were often being left unattended and inadequately supervised, and their physical needs were being neglected. 4. A second ADVO was made against the father. The Application contains a long history of controlling behaviour on the father's part, including "mind games", "guilt trips", and refusing to let the mother leave the house; of threats, hitting, pushing, grabbing her arms, and name-calling ("slut", "bitch", "hypocrite"). The Application records a specific episode of non-consensual sex some two weeks previously. The mother told Police she was too afraid to report these incidents, or to seek medical attention for injuries, including bruising and broken ribs. 5. The mother moved out of the refuge into a caravan park on 24 February 2015 but returned home on 4 March 2015. 6. DCJ continued to monitor the family. Caseworkers were, however, refused access to the home on 1 April 2015. A Safety assessment the next day discovered a dirty cot mattress and disclosures of violence by the father towards the children, especially Raymond, who was frightened of his father. 7. Another Safety Assessment conducted on 16 April 2015 discovered further instances of neglect, with Leo being left in his cot for excessive periods, minimal interaction between the parents and the children, who were untidy and unclean. The house was unclean and smelt badly, was littered with cigarette butts and pervaded by flies. 8. Further Safety Assessments took place on 20 April 2015, 28 April 2015 and 8 May 2015. On these occasions the house had been cleaned up, and the children were considered "safe". But the mother then left the home on 13 May 2015 "and was living with another man". A ROSH report on 11 June 2015 stated that the mother had sustained a black eye caused by the father, who was preventing the children from speaking to their mother by phone. 9. A Case Plan was developed by DCJ on 15 June 2015 for the father and the children, with the mother still absent. In the meantime, the mother attempted to self-harm on 1 July 2015, by scratching her wrists with broken glass, and had to be taken by ambulance to Hospital. 10. The mother then returned home in July 2015. But by September 2015 the home situation had again deteriorated. Visits by caseworkers on 4 September and 8 September 2015 revealed a house smelling strongly of urine and animal faeces. The house was untidy, dirty and unhygienic. It was littered with food scraps, animal food and dirty clothes. The situation was graphically described by the caseworker as one of the 5 worst, unhygienic houses she had visited in her career. She observed "so much clutter" and "dog poo which had gone white". 11. The parents showed no insight into the situation. DCJ decided to remove the children from the parents that day. The Clinical Report of Susan Wilson of 17 February 2020 1. As recorded, following removal of the children and subsequent proceedings in the Children's Court, the children were placed into foster care pursuant to final Care orders made on 20 June 2016. Then, on 4 June 2019 the father filed an Application under s 90 of the Care Act seeking rescission of those orders, with a view to the children being restored. 2. Prior to the father's Application, the NGO managing the children's placement (Life Without Barriers) had prepared a Restoration Report. This report, prepared by Ms Lascelles-Smith, Area manager, noted some of the background, and some of the positive progress and steps made by the parents: * The mother has engaged with her psychologist as "they work through her own childhood trauma". * The mother and father have completed the Triple P parenting course. * The mother and father attend all family time visits. * The visits by LWB to the home have shown it to be in a tidy state. They appear to be quite stable residing with the paternal grandmother. 1. The report, however, went on to record "Current Concerns", some of which were as follows: * The parents do not acknowledge the reasons for the children coming into care and do not appear to be aware of the specific reasons for this. Instead the parents blame DCJ for the removal of their children (aimed particularly at Jeannie, previous DCJ worker) stating that the previous issues were all false. This narrative has been also conveyed to the children with Hannah claiming the reasons for being in OOHC were due to Jeannie. * Jane appears to have no external informal supports aside from the father and his mother. * There are concerns that the parents have limited insight into how their children's behaviour might be impacted by returning home. Raymond and Hannah have been diagnosed with ADHD and require ongoing behaviour support and trauma counselling. Raymond and Hannah currently take medication to assist with the symptoms associated with ADHD. Both parents have verbalised their disapproval of the children taking medication and want this to be ceased. There are concerns that the parents will not continue to engage in strategies that are supporting the children behavioural including medical intervention and therapeutic supports through CPCS. * CPCS counsellor, Charlotte Manning, has been working with Raymond for a while to help address his emotional dysregulation and skill development to allow him to self-regulate during periods of dysregulation. * Charlotte has also provided support to the carers, regarding the children's sexualised behaviours. She noted that the children will need to be referred to CPCS (completed) and has raised concerns about the layout of the home. Due to the children's sexualised behaviours, she has recommended that Raymond and Leo not share a room and that each of the children require their own room. * The children are at different stages of acceptance about returning home; Raymond is eager to get back home, Hannah alternates between wanting to return home and wanting to stay with the carers, Leo was experiencing some anxiety based symptoms upon talk about returning home – to the point he refuses to eat and was physically ill before/during a visit – but has been enjoying spending time with mum and dad. He is eager to get home to his carers post visits. * There has been little Life Story Work for the children, and they are uncertain of the reasons behind their entry into care. Hannah noted that Jeannie (referring to the previous DCJ worker) is to blame and has "lied" about their family. This is concerning as this is the same as the parents narrative as to the reasons for the children entering care. * The father is the primary caregiver for the children and is also full-time carer for his mother. The grandmother resides in the home and it is her name on the lease with Housing NSW on a long term contract. * The previous Clinic assessment noted that the parents "did not have the capacity to parent at the time of this report". In contact sessions, the youth worker has noted that the father is required to direct the mother in attending to the children's needs and remaining present and available for the children at visits. There are concerns that the father is also providing a high level of care to the mother given her mental health issues and this could put an extra layer of stress on his caring ability. * The parents have been extremely resistant to recommendations by LWB including engaging in Circle of Security parenting where they challenged the validity of the program and made claims that the mother's psychologist stated it would interfere in her therapy. However, later the psychologist wrote to LWB about the positive steps that the mother is taking in doing the program. This raises more concerns about the parent's motivation for change. * The parents are reluctant to engage with services in the local area due to their belief that the local services hold bias against them due to DCJ fabricating information. 1. The report was guarded about whether restoration was recommended, and concluded that more time was needed to assess the parents. The Clinical Report of Susan Wilson of 17 February 2020 1. The Children's Court made orders under s 53 and s 54 of the Care Act for an updated assessment report by the Children's Court Clinic. A report dated 17 February 2020 was duly prepared and provided to the Court by Ms Susan Wilson, an experienced clinician. She recommended against restoration. It is important to examine her reasons. 2. As part of her assessment of the parents, Ms Wilson examined a large volume of historical material. She interviewed both of the parents and each of the children. She carried out a variety of observations. 3. The clinician set out the child protection concerns at [19]: "Inadequate supervision 19.1 In 2012 Raymond and Hannah (aged 2 years and 10 months and 1 and 10 months respectively) were returned home by a passer-by when they were found playing on the road by themselves. Inadequate supervision was regularly raised during home visits in 2015. The parents were observed to sit outside smoking with the doors closed and the blinds down while the children were alone inside. Inadequate clothing and bedding 19.2 On the occasion of the children being found unsupervised on the road they were reported to be dressed only in singlets. A home visit in January 2013 noted there was no bedding in the children's cots. Raymond's teachers reported he was often smelly and dirty when he attended school, had holes in his shoes and blistered feet. Inadequate hygiene 19.3 The family home was reported to be foul smelling with food scraps, dirty dishes, cigarette butts and general rubbish littering the home. Additionally, faeces were seen in the house and the home smelt strongly of urine. The parents were reported to minimise or deny the unhygienic state of the home. The couple had dogs variously reported as being between 2 and 3… Educational neglect 19.4 Prior to his assumption into care in September 2015 Raymond had missed 40 days of school and had an attendance rate of 72%. In 2015 Brett took Hannah and Leo to play group on one occasion. In 2015 Hannah attended pre-school 62% of the time. Domestic Violence 19.5 Over an 8-year period Jane has claimed she has been the victim of domestic violence with 2 AVOs being granted to protect her from Brett. Brett denied or minimised these allegations. In November 2015 Jane left the family home for the Women's Refuge when Brett allegedly hit her with the TV remote resulting in a "lump and a split on her lip". Mental Health 19.6 At the time of the children's removal Jane had no diagnosis of a mental illness. However, her behaviour, in particular, her difficulties in self-regulation and responses to stress suggested she would have had difficulty offering a secure and predicable home for her children. There are later reports that Jane has now been diagnosed with Borderline Personality Disorder. Exposure to sexual acts 19.7 Raymond and Hannah are reported to have provided explicit detail of sexual acts they have witnessed. They are reported to have acted out some of these behaviours in their placement. In October 2015 Hannah is reported to have stated to a caseworker "you can't tell anyone. If Daddy does sexy he gets taken away". The carers reported Hannah had been observed "fondling" Leo's genitals while he was in the bath and she asked the carer while watching TV "will I take my undies off now?" Raymond is reported by the carers to have tried to feel their 2-year-old child's genitals." 1. As part of her formulation, the clinician made the following observations: These 3 children have experienced very troubled early years. They have become more settled with the support, consistency and care offered during the 3 years of their present placement. There have been setbacks in that progress most notably at the end of May 2019 when Raymond tried to self-harm. This action was possibly associated with the time the s 90 application was being considered. Brett made the s 90 application in June 2019. Progress is most noticeable in Hannah and Leo; Raymond being reported as angry, violent and displaying some sexually abusing behaviour outside the home… There is no doubt the parents in this matter have made changes and overcome difficulties accessing services. For example, a 2-hour drive each way for group courses. However, they do not accept the reasons for the removal of the children. The father identified "a list of concerns too big to be ignored – domestic violence, sexualised behaviour, home unhygienic – better safe than sorry and court made decision" in listing these concerns he included his own risk analysis. He disputes the house being unhygienic and claims he photographed the home at the time of the children's removal. He has not offered these photographs to any relevant agency or offered them for inspection during this assessment despite being asked for them. Likewise, the father indicated he had not read the February 2016 assessment report. He backtracked a little suggesting he had read some of it… The parents reported benefit from contact with psychologists and the service providers confirm these benefits. However, the goal of therapy is restoration of the children and the couple doing what is expected of them. They have attended parenting courses but neither was able to identify what benefit they gained from their involvement and how the information would change their approach to parenting. The mother commented that the course was mainly "about babies" and helped her to "update stuff – it's difficult when you see the children every 3 months – just be a Mum like I've always been, there are no communication or attachment issues [between me and my children]"… The children's exposure to sexual acts appears to have been less fully addressed. The parents deny these complaints. The father stated he would have been charged or investigated by police if these complaints could be substantiated. He has neither been charged nor investigated. However, the carers report the sexualized behaviour continues and the behaviour is more evident after parental contact. 1. The clinician went on to express the view, based on the work of Wilkins and Farmer (E Farmer, S Pollock (1998) Sexually Abused and Abusing Children in Substitute Care, Wiley p 26) that there are several risk factors in this matter that suggest future harm is more likely, including: "NB Items in italics most strongly associated with maltreatment occurring * Neglect * Multiple types of maltreatment * More than one affected child in the household * Personality disorder of parent * Parental learning disability plus mental illness * Parental denial of problems. Likewise, Donald and Jureidini comment: "thus the primary thrust of therapy where there are significant concerns about parenting capacity will centre around parental acceptance of responsibility for past acts and any damage done" (T Donald & J Jureidini (2004) Parenting Capacity Child abuse Review Vol 13: 5-17). This 'parental acceptance' has not occurred in this matter." 1. The clinician concluded: "Consideration of this material would suggest the 3 children Raymond, Hannah and Leo McAlister should not be restored to the care of their biological parents…" 1. As to the children, the clinician observed: "For the last 3 years these carers have offered difficult and troubled children routine, consistency and care. There have been comments about lack of warmth and emotional engagement with the children directed at these carers. The female carer presented as an organised, calm, no-nonsense individual, who described herself as "not a cuddly sort of person". This ability to be organised is needed to care for 4 foster children (there is a fourth older child in this placement), work full-time and help run a farm. Likewise, the children's sexualised behaviour may result in the carers keeping very distinct personal boundaries around the way they provide care. Care of these 3 children should not be underestimated it would be demanding and challenging work." 1. The clinician concluded, relevantly: "The 3 children Raymond, Hannah and Leo McAlister remain in the care of the Minister to age 18. It is hoped the children are able to remain with their present carers who have looked after them for the last 3 years. The children have supervised contact with their parents at the rate of 4-6 times a year for 2.5 hours; this is the contact time they had prior to the s 90 application." 1. The clinician was extensively cross-examined. Her opinion was unchanged, and she did not resile in any way from the opinions expressed in her report. 2. She was an impressive witness whose report was comprehensive, objective, reasoned, and observant. Similarly in the witness box, she was persuasive, fair and unwavering in her views. 3. I have no hesitation in accepting the evidence of the clinician as reliable, objective and persuasive. The applicable legal context for the determination of the matter 1. Proceedings relating to the care and protection of children and young persons in NSW, including first instance matters before the Children's Court, and appeals from its decisions, are public law proceedings, governed, both substantively and procedurally, by the Care Act. 2. Care proceedings involve discrete, distinct and specialised principles, practices and procedures which have regard to their fundamental purpose, namely the safety, welfare and well-being of children in need of care and protection: s 60 of the Care Act. 3. The rules of evidence do not apply, the proceedings are non-adversarial and they are required to be conducted with as little formality and legal technicality and form as the circumstances permit. 4. Decisions in Care proceedings are to be made consistently with the objects, provisions and principles provided for in the Care Act, and where appropriate, the United Nations Convention on the Rights of the Child 1989 (CROC). 5. The Care Act contains an inextricable mixture and combination of both judicial and administrative powers, duties and responsibilities. It is often difficult to precisely discern where the Department's powers and responsibilities begin and end as opposed to those of the Court. 6. In summary, however, the Act establishes a regime under which the primary, and ultimate, decision-making as to children rests with the Court: Report of the Special Commission of Inquiry into Child Protection Services in NSW, November 2008 (the "Wood Report") at 11.2. 7. The objects of the Care Act are set out in s 8. 8. The objects of the Act are to provide: 1. that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and 2. that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and 3. 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. 1. The Care Act sets out a series of principles governing its administration. These principles are largely contained in s 9, but also appear elsewhere. 2. First and foremost is what is sometimes referred to as the paramountcy principle: s 9(1). This principle requires that in any action or decision concerning a child or young person, the safety, welfare and well-being of the child or young person are paramount. 3. This principle, therefore, is the underpinning philosophy by which all relevant decisions are to be made. It operates, expressly, to the exclusion of the parents, the safety, welfare and well-being of a child or young person removed from the parents being paramount over the rights of those parents. 4. It is now well settled law that the proper test to be applied in care proceedings in respect of final orders is that of "unacceptable risk to the child": M v M [1988] HCA 68 at [25]: Nu v NSW Secretary of Family and Community Services [2017] NSWCA 221 at [45]. 5. M v M dealt with past sexual abuse of a child but the principles there set out apply equally to other forms of harm, such as physical and emotional harm. 6. A positive finding of an allegation of harm having been caused to a child should only be made where the Court is so satisfied according to the relevant standard of proof, with due regard to the matters set out in Briginshaw. Nevertheless, an unexcluded possibility of past harm to a child is capable of supporting a conclusion that the child will be exposed to unacceptable risk in the future from the person concerned: M v M at [26]. 7. The Secretary, will not fail to satisfy the burden of proof on the balance of probabilities simply because hypotheses cannot be excluded which, although consistent with innocence, are highly improbable: Secretary of Department of Community Services; Re "Sophie" [2008] NSWCA 250 at [67] - [68], per Sackville AJA. 8. Whether there is an "unacceptable risk" of harm to the child is to be assessed from the accumulation of factors proved: see Johnson v Page [2007] Fam CA 1235. This is an exercise in foresight. 9. The Court must examine what the future might hold for the child, and if a risk exists, assess the seriousness of the risk and consider whether that risk might be satisfactorily managed or otherwise ameliorated, for example, the nature and extent of parental contact, including any need for supervision: from a paper by Justice Stewart Austin delivered at the 2015 Hunter Valley Family Law Conference. 10. Thus, one needs to examine the likelihood of the feared outcome occurring, and secondly, the severity of any possible consequences. The risk of detriment must be balanced against the possibility of benefit to the child. 11. Secondary to the paramount concern, the Care Act sets out other, particular principles to be applied in the administration of the Act. 12. These are set out in sections 9(2) and 10 and include the following: * Wherever a child is able to form their own view, they are to be given an opportunity to express that view freely. Those views are to be given due weight in accordance with the child's developmental capacity, and the circumstances: s 9(2)(a). See also s 10. * Account must be taken of the culture, disability, language, religion and sexuality of the child and, if relevant, those with parental responsibility for the child or young person: s 9(2)(b). * Any action to be taken to protect the children from harm must be the least intrusive intervention in the life of the children and their family that is consistent with the paramount concern to protect them from harm and promote their development: s 9(2)(c). * If children are temporarily or permanently deprived of their family environment, or cannot be allowed to remain in that environment in their own best interests, they are entitled to special protection and assistance from the State, and their name, identity, language, cultural and religious ties should, as far as possible, be preserved. * Any out-of-home care arrangements are to be made in a timely manner, to ensure the provision of a safe, nurturing, stable, and secure environment, recognising the children's circumstances and, the younger the age of the child, the greater the need for early decisions to be made s 9(2)(e). * If placed in out-of-home care, a child is entitled to a safe, nurturing, stable, and secure environment. * Unless contrary to the child's best interests, and taking into account the wishes of the child, this will include the retention of relationships with people significant to the children: s 9(2)(f). 1. There are also special principles of self-determination and participation to be applied in connection with the care and protection of Aboriginal and Torres Strait Islander children: ss 11, 12 and 13. Aboriginal and Torres Strait Islander people are to participate in the care and protection of their children and young persons with as much self-determination as is possible: s 11(1). * Aboriginal and Torres Strait Islander families, kinship groups, representative organisations and communities are to be given the opportunity, by means approved by the Minister, to participate in decisions made concerning the placement of their children and young persons and in other significant decisions made under this Act that concern their children and young persons: s 12. * Where possible, any out-of-home placement of an Aboriginal or Torres Strait Islander child is to be with a member of the extended family or kinship group. * If that is not possible, the Act provides for a descending process of placement with an appropriate Aboriginal and Torres Straits Islander carer before, as a last resort, placement with a non-Aboriginal and Torres Straits Islander carer, after consultation: s 13(1). * In determining where a child is to be placed, account is to be taken of whether the child identifies as an Aboriginal or Torres Strait Islander and the expressed wishes of the child: s 13(2). * A permanency plan must address how the plan has complied with the Aboriginal and Torres Strait Islander Child and Young Person Placement Principles in s 13: s 78A(3). 1. If the Secretary forms the opinion that a child is in need of care and protection, he or she may take whatever action is necessary to safeguard or promote the safety, welfare and well-being of the child: s 34(1). 2. Removal of a child into state care may be sought by seeking orders from the Court: s 34(2)(d), by the obtaining of a warrant: s 233, or, where appropriate, by effecting an emergency removal: s 34(2)(c); see also s 43 and s 44. 3. Where a child is removed, or the care responsibility of a child is assumed, by the Secretary, he or she is then required to make a Care application to the Children's Court within 3 working days and explain why the child was removed: s 45. 4. The Court may then make interim Care orders: s 69. An 'interim order' is an order of a temporary or provisional nature pending the final resolution of the proceedings in which an applicant "generally speaking, does not have to satisfy the Court of the merits of its claim". It may be made if it is not in the best interests of the safety, welfare and well-being of the child that he or she remain with the parent or parents, or that it is appropriate for the safety welfare and well-being of the child (s 69(2) and s 70), or that an interim order is necessary, and is preferable to an order dismissing the proceedings (s 70A): Re Jayden [2007] NSWCA 35 per Ipp J at [70]. 5. The usual interim order is for the allocation of parental responsibility to the Minister until further order: Re Mary [2014] NSWChC 7. 6. Such an order enables appropriate investigation and planning to be undertaken by Departmental caseworkers while the child is in a protected environment. The making of an interim order in effect puts the position of the parties in a holding pattern, without prejudice, and without any admissions. 7. The Care Act, as recently amended, makes it clear that parties may apply to vary an interim order without the need to follow the formal process that applies to the rescission or variation of final Care orders. This overcomes a problem thought to be posed by the Supreme Court decision in Re Timothy, to the effect that an application to vary an interim order needed to be brought under s 90 of the Care Act: Re Timothy [2010] NSWSC 524 at [59] - [60]. 8. It was thought that a formal application was required seeking leave to apply, and evidence adduced to satisfy the Court that there had been a significant change in circumstances, even for interim orders. The Children's Court may now vary interim orders at any time if considered appropriate, including on oral application in matters currently before the Court. 9. After removal or assumption of a child into care, and the making of an interim order allocating parental responsibility to the Minister, the proceedings then focus on the past and current circumstances of the child. This first phase of care proceedings is generally referred to as the establishment phase. 10. Thus, before the Court moves to the second phase of the proceedings, in which the focus is on the child's future, the proceedings are required to be "established": Re Alistair [2006] NSWSC 411 at [69]. 11. The establishment precondition is satisfied if there has been a finding that there is an existing need of care and protection pursuant to s 71 of the Care Act: VV v District Court of New South Wales [2013] NSWCA 469 at [20]. It does not matter whether the conduct constituting a reason or part thereof for the purposes of s 71 occurred wholly or partly outside New South Wales: s 71A. 12. The rationale for the requirement that protective proceedings be established has been described as a safeguard against arbitrary intervention by the State into the lives of children and their families: Re Alistair [2006] NSWSC 411 at [64]-[65] per Kirby J. 13. The establishment issue is a threshold issue. It is a statutory precondition to the making of final Care orders in the second, welfare phase of protective proceedings. Establishment, or a finding, is not concerned with the issue of restoration, nor is it concerned with considerations of unacceptable risk of harm, nor with the amelioration of risk. These are properly matters for the second, welfare stage of protection proceedings: Re Nicole [2018] NSWChC 3. 14. For care proceedings to be "established" a finding is required that the child is in need of care and protection for any reason or was in need of care and protection at the time the Application was made. 15. Section 71(1) of the Care Act relevantly provides: "Grounds for Care orders: 1. The Children's Court may make a Care order in relation to a child or young person if it is satisfied that the child or young person is in need of care and protection for any reason including without limitation any of the following: (a) there is no parent available to care for the child or young person as a result of death or incapacity or for any other reason, (b) the parents acknowledge that they have serious difficulties in caring for the child or young person and, as a consequence, the child or young person is in need of care and protection, (c) the child or young person has been, or is likely to be, physically or sexually abused or ill-treated, (d) subject to subsection (2), the child's or young person's basic physical, psychological or educational needs are not being met, or are likely not to be met, by his or her parents, (e) the child or young person is suffering or is likely to suffer serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which he or she is living, (f) in the case of a child who is under the age of 14 years, the child has exhibited sexually abusive behaviours and an order of the Children's Court is necessary to ensure his or her access to, or attendance at, an appropriate therapeutic service, (g) the child or young person is subject to a care and protection order of another State or Territory that is not being complied with, (h) section 171(1) applies in respect of the child or young person." (Section 171(1) deals with a child or young person residing in unauthorised statutory or supported out-of-home care.) 1. Thus, the need for "care and protection" is not conclusively defined, and the concept is at large; a finding may be made for "any reason". The Care Act does, however, specify a range of circumstances that, without limitation, are included in the definition, or to which the definition extends: s 71. 2. The Court is not bound by the rules of evidence unless it so determines: s 93(3). Nevertheless, the Court must draw its conclusions from material that is satisfactory in a probative sense so as to avoid decision-making that might appear capricious, arbitrary or without foundational material: JL v Secretary Department of Family and Community Services [2015] NSWCA 88 at [148]. 3. The significance of a finding that a child is in need of care and protection is that it forms the basis for the making of final Care orders under the Care Act:s 71(1) and s 72(1). 4. Once proceedings are established, they enter the so-called second phase, sometimes referred to as the "welfare phase" during which planning for the child is undertaken, and following which final Care orders may be made. Establishment is a statutory precondition to the making of final Care orders in the welfare phase: Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89 at [36] - [37]. 5. My preference is to describe this second phase as the "placement" phase given the important threshold construct that the Secretary must first address after establishment as to whether there is a realistic possibility of restoration. 6. Only if there is no realistic possibility of restoration will alternative placements be required to be considered as part of the permanency planning, in the welfare or placement of proceedings, in a Care Plan that the Secretary is required to prepare pursuant to s 78 of the Care Act. 7. Once a child has been found to be in need of care and protection under s 71 of the Care Act the Secretary is required to undertake planning for the child's future. In most cases the Secretary will prepare a formal Care Plan. 8. The Secretary is required to consider what permanent placement is required to provide a safe, nurturing, stable and secure environment for the child: s 10A of the Care Act. 9. Permanent placement is to be made in accordance with the permanent placement principles prescribed: s 10A(3) of the Care Act. The 'placement hierarchy' established might be summarised as follows: * If it is practicable and in the best interests of the child, the first preference for permanent placement is for the child to be restored to the parent(s). * The second preference for permanent placement is guardianship of a relative, kin or other suitable person. * The next preference (except in the case of an Aboriginal or Torres Strait Islander child) is for the child to be adopted. * The last preference is for the child to be placed under the parental responsibility of the Minister. 1. Thus the Secretary must first assess whether there is a realistic possibility of restoration of the child to the parent(s) within a reasonable period. 2. The Court must have regard firstly to the circumstances of the child; and secondly, to the evidence, if any, that the parents are likely to be able to satisfactorily address the issues that have led to the removal of the child: s 83(1). 3. The Court must then decide whether to accept the assessment of the Secretary: s 83(5). 4. If the Court does not accept the assessment of the Secretary, it may direct the Secretary to prepare a different permanency plan: s 83(6). 5. The phrase "realistic possibility of restoration", therefore, involves an important threshold construct, which informs the planning that is to be undertaken in respect of any child that has been removed from parents or assumed into care and found to be in need of care and protection. 6. There is no definition of the phrase "realistic possibility of restoration" in the Care Act. However, the principles concerning the interpretation and application of the phrase were comprehensively considered in the Supreme Court by Justice Slattery in 2011: In the matter of Campbell [2011] NSWSC 761. 7. This decision was cited with approval by the Court of Appeal: Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89 at [44], and was most recently applied by Justice Rein in the Supreme Court: Re Tanya [2016] NSWSC 794 at [50] - [51]. 8. Importantly, Justice Slattery held that it is at the time of the determination that the Court must make the assessment. It must be a realistic possibility at that time, not merely a future possibility. This restriction has been removed by recent amendments to the Care Act. The amendments inserted the additional words "within a reasonable time" into the relevant sub-sections of s 83. It is necessary, therefore, to look more closely at the significance of the addition of those words. In my view, the effect of those words has been to remove the restriction formulated by Justice Slattery in Re Campbell, when he said: "It is going too far to read into the expression a requirement that a parent must always at the time of hearing have demonstrated participation in a program with some significant "runs on the board": at [56]. 1. Instead, now, the Court may take into account the progress of parents in relation to their rehabilitation, their progress in respect of gaining insight into their parenting deficiencies, and their ability to satisfactorily address the issues that have led to the removal of the child. 2. The Court may also have regard to any plan that prepares, educates or assists parents in moving towards a restoration, which involves for example, supports, scaffolding, treatment, training and education, provided it is viable and practicable. 3. The principles relating to the phrase "a realistic possibility of restoration" may now be summarised therefore, by reference to Re Campbell and Re Tanya, to which may now be added the requirements for the restoration to be realistically possible within a reasonable time, as follows: * A possibility is something less than a probability; that is, something that is likely to happen. A possibility is something that may or may not happen. That said, it must be something that is not impossible. * The concept of realistic possibility of restoration is not to be confused with the mere hope that a parent's situation may improve. * The possibility must be 'realistic', that is, it must be real or practical. The possibility must not be fanciful, sentimental or idealistic, or based upon 'unlikely hopes for the future'. It needs to be 'sensible' and 'commonsensical'. * A realistic possibility may be evidenced at the time of hearing by a coherent program already commenced and with some significant 'runs on the board', or by the development of and commitment to a cohesive and viable plan that is sensible, practicable and viable within a reasonable time. * There are two limbs to the requirements for assessing whether there is a realistic possibility of restoration. The first requires a consideration of the circumstances of the child or young person. The second requires a consideration of the evidence, if any, that the parent(s) are likely to be able to satisfactorily address the issues that have led to the * The determination must be undertaken in the context of the totality of the Care Act, in particular the objects set out in s 8 and other principles to be applied in its administration, including the notion of unacceptable risk of harm. 1. Where the Secretary assesses that there is a realistic possibility of restoration to a parent, and the Court accepts that assessment, the Secretary is to prepare a permanency plan that includes a description of the minimum outcomes that need to be achieved before the child is returned to the parent, the services to be provided to facilitate restoration, and a statement of the length of time during which restoration should be actively pursued: s 83(2) and s 84. 2. If the Secretary assesses that there is no realistic possibility of restoration to a parent, the Secretary is to prepare a permanency plan for another suitable long term placement in accordance with the permanent placement principles discussed above, as set out in s 10A of the Care Act. 3. Permanency planning means the making of a plan that aims to provide a child with a stable, preferably permanent, placement that offers long-term security and meets their needs: s 78A(1). 4. The Court must not make a final Care order unless it expressly finds that permanency planning has been appropriately and adequately addressed: s 83(7). 5. The permanency plan must have regard to the principle of the need for timely arrangements, the younger the child, the greater the need for early decisions, and must avoid the instability and uncertainty that can occur through a succession of different placements or temporary care arrangements. 6. The planning must also make provision for the allocation of parental responsibility, the kind of placement proposed, the arrangements for contact, and the services that need to be provided: s 78. 7. A permanency plan does not need to provide details as to the exact placement in the long-term, but must be sufficiently clear and particularised so as to provide the Court with a reasonably clear picture as to the way in which the child's needs, welfare and well-being will be met in the foreseeable future: s 78A(2A). 8. If the child is an Aboriginal or Torres Straits Islander there are particular additional requirements to be addressed. The permanency planning must address how the plan has complied with the principles of participation and self-determination set out in s 13 of the Care Act: s 78A(3). It should also address the principle set out in s 9(2)(d) which requires that the child's identity, language and cultural ties be, as far as possible, preserved. 9. Proper implementation requires an acknowledgement that the cultural identity of an Aboriginal child or young person is 'intrinsic' to any assessment of what is in the child's best interests: Department of Human Services and K Siblings [2013] VChC 1 per Magistrate B Wallington at page 5. 10. It follows that the need to consider Aboriginality and ensure the participation of families and communities must be applied across all aspects of child protection decision making. 11. If the Children's Court finds that a child is in need of care and protection, it may make a variety of orders allocating parental responsibility, or specific aspects of parental responsibility: s 79(1). 12. Parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children: s 3. The primary care-giver is the person primarily responsible for the care and control of a child, including day-to-day care and responsibility. For example, the Court can allocate complete responsibility to the Minister, or allocate only some aspects to the Minister and other aspects to the parents, or some other person. Or it might make orders for shared responsibility between the Minister and others: s 81. 13. The specific aspects of parental responsibility that might be separately or jointly allocated are unlimited, but include residence, contact, education, religious upbringing and medical treatment: s 79(2). 14. When allocating parental responsibility, the Court is required to give particular consideration to the principle of the least intrusive intervention, and be satisfied that any other order would be insufficient to meet the needs of the child: s 79(3). 15. Where a person is allocated all aspects of parental responsibility, the Court may make a guardianship order: see s 79A - s 79C. 16. The maximum period for which an order may be made allocating all aspects of parental responsibility to the Minister, following approval of a permanency plan involving restoration, guardianship or adoption, is 24 months: s 79(9), unless there are special circumstances that warrant a longer period: s 79(10). 17. This restriction marks an upper limit for the reasonable period within which there might be a realistic possibility of restoration. 18. It also places the onus on the Secretary to bring an application for rescission under s 90 of the Care Act if a staged restoration breaks down within that two year period. 19. Where the Secretary assesses that there is no realistic possibility of restoration, a permanency plan for another suitable long-term placement is submitted to the Court: s 83(3). 20. The Secretary may consider whether adoption is the preferred option: s 83(4). 21. Importantly, where there is not to be a restoration, the permanency planning must also include provision for appropriate and adequate arrangements for contact: s 9(2)(f), s 78(2). 22. There are a series of important statutory provisions by which the practice and procedure of care proceedings are substantially differentiated from other civil proceedings. 23. Care proceedings are to be conducted in closed court: s 104B, and the name of any child or young person involved, or reasonably likely to be involved, whether as a party or as a witness, must not be published: s 105(1). 24. Care and protection proceedings are not to be conducted in an adversarial manner: s 93(1). The proceedings are to be conducted with as little formality and legal technicality and form as the circumstances permit: s 93(2). 25. The Court is not bound by the rules of evidence, unless it so determines: s 93(3). 26. Nevertheless, the Court must draw its conclusions from material that is satisfactory, in the probative sense, so as to avoid decision-making that might appear capricious, arbitrary or without foundational material: JL v Secretary, Department of family and Community Services [2015] NSWCA 88 at [148]; Sudath v Health Care Complaints Commission [2012] NSWCA 171. 27. The standard of proof in Care proceedings is on the balance of probabilities: s 93(4) of the Care Act. 28. The High Court decision in Briginshaw v Briginshaw [1938] HCA 34 is relevant in determining whether the burden of proof, on the balance of probabilities, has been achieved: Secretary of Department of Community Services; Re "Sophie" [2008] NSWCA 250. 29. The Care Act provides that all care matters are to proceed as expeditiously as possible: s 94(1). The Court is required to avoid adjournments, which should only be granted where it is in the best interests of the child or there is some other cogent or substantial reason: s 94(4). S 90 considerations 1. These proceedings are governed by s 90 of the Care Act, a provision which is peculiar to Care proceedings in the Children's Court, that empowers it to rescind or vary final Care orders, at a later date. This statutory power enables a review of orders without the need for an appeal, where there has been a "significant change in any relevant circumstances" since the original order. 2. Applications for rescission or variation of Care orders require the Applicant to obtain leave. 3. The section provides: 90 Rescission and variation of care orders (1) An application for the rescission or variation of a care order may be made with the leave of the Children's Court. (1AA) An application may be made by— (a) the Secretary, or (b) (Repealed) (b1) the child or young person, or (c) a person having parental responsibility for the child or young person, or (d) a person from whom parental responsibility for the child or young person has been removed, or (e) any person who considers himself or herself to have a sufficient interest in the welfare of the child or young person. (1A) Subject to any order the Children's Court may make, a person who makes an application under this section must give notice of the application to the persons who were parties to the proceedings in which the care order was made. Note: Section 256A sets out the circumstances in which the Children's Court may dispense with the requirement to give notice. (2) The Children's Court may grant leave if it appears that there has been a significant change in any relevant circumstances since the care order was made or last varied. (2A) Before granting leave to make an application to vary or rescind the care order, the Children's Court must consider the matters set out in subsections (2B) and (2C). (2B) The primary considerations are as follows— (a) the views of the child or young person and the weight to be given to those views, having regard to the maturity of the child or young person and his or her capacity to express his or her views, (b) the length of time for which the child or young person has been in the care of the present carer and the stability of present care arrangements, (c) if the Children's Court considers that the present care arrangements are stable and secure, the course that would result in the least intrusive intervention into the life of the child or young person and whether that course would be in the best interests of the child or young person. (2C) Additional considerations are as follows— (a) the age of the child or young person, (b) the nature of the application, (c) the plans for the child or young person, (d) whether the applicant has an arguable case, (e) matters concerning the care and protection of the child or young person that are identified in— (i) a report under section 82, or (ii) a report that has been prepared in relation to a review directed by the Children's Guardian under section 85A or in accordance with section 150. (2D) The Children's Court may dismiss an application for leave under this section if it is satisfied that the application is frivolous, vexatious or an abuse of process. (2E) Without limiting subsection (2D), the Children's Court may dismiss an application for leave under this section if it is satisfied that— (a) the application has no reasonable prospect of success, and (b) the applicant has previously made a series of applications for leave under this section that the Court has dismissed. (3A) If— (a) an application is made to the Children's Court by a person or persons (other than the Secretary) for the rescission or variation of a care order (other than a contact order) in relation to a child or young person, and (b) the application seeks to change the parental responsibility for the child or young person, or those aspects of parental responsibility involved in having care responsibility for the child or young person, and (c) the Secretary is not a party to the proceedings, the applicant must notify the Secretary of the application, and the Secretary is entitled to be a party to the application. (4) The Children's Court is not required to hear or determine an application made to it with respect to a child or young person by a person referred to in subsection (1AA) (e) unless it considers the person to have a sufficient interest in the welfare of the child or young person. (5) If— (a) an application for variation of a care order is made or opposed by the Secretary, and (b) a ground on which the application is made or opposed is a ground that has not previously been considered by the Children's Court, the ground must be proved as if it were a ground of a fresh application, or of opposition to a fresh application, for a care order. (6) Before making an order to rescind or vary a care order that places a child or young person under the parental responsibility of the Minister, or that allocates specific aspects of parental responsibility from the Minister to another person, the Children's Court must take the following matters into consideration— (a) the age of the child or young person, (b) the views of the child or young person and the weight to be given to those views, (c) the length of time the child or young person has been in the care of the present caregivers and the stability of present care arrangements, (d) the strength of the child's or young person's attachments to the birth parents and the present caregivers, (e) the capacity of the birth parents to provide an adequate standard of care for the child or young person, (f) the risk to the child or young person of psychological harm if present care arrangements are varied or rescinded. (7) If the Children's Court is satisfied, on an application made to it with respect to a child or young person, that it is appropriate to do so— (a) it may, by order, vary or rescind an order for the care and protection of the child or young person, and (b) if it rescinds such an order—it may, in accordance with this Chapter, make any one of the orders that it could have made in relation to the child or young person had an application been made to it with respect to the child or young person. (8) On the making of an order under subsection (7), the Children's Court must cause notice of the order to be served on the Secretary. (9) This section does not apply to an application to vary an interim care order. Note. Section 90AA provides for applications to vary interim care orders. 1. If the Court determines that the the previous final Care orders should be varied or rescinded, it may go on to make new Care orders. In practical terms that may require a re-opening of the whole case, with a new Care Plan, fresh evidence, and a reconsideration of whether there is a realistic possibility of restoration within a reasonable time. The Secretary's case 1. The Secretary's case is that there is no realistic possibility of restoration of these children to the care of their parents. The issues which led to their removal and placement into care have not been acknowledged or accepted by either parent. 2. It was submitted that there is an unacceptable risk of harm posed to the children in the care of their parents based on the whole of the evidence in the proceedings, which risk cannot be sufficiently ameliorated or mitigated. 3. The Independent Legal Representative (ILR) for the children supported the Secretary's position and submitted that the father's Application should be dismissed. The submissions of the parents 1. The parents' case was that the children should now be returned to their care, albeit with parental responsibility allocated to the father to the exclusion of the mother, and with a short term supervision order if the Court were to consider such an order desirable. The parents submitted that they had done everything asked of them and have fulfilled all the requirements of DCJ for a safe return of the children to them. 2. The parents pointed to a plan for restoration formulated by the NGO which, they submitted, was in the process of being implemented. 3. They submitted that there is no longer any risk associated with poor hygiene in the house, a circumstance that is unlikely to occur in the future. The risk of further domestic violence has been debunked, because it had never occurred, and was only ever an issue due to concocted allegations generated by the mother by reason of her mental instability, which has abated due to the psychological counselling in which she is now engaging. The Court should accept the father's evidence that there was never any domestic violence. 4. The parents suggest they have strong family and social supports; that they have acknowledged and have insight into the circumstances that led to the children's removal; and that the accommodation available for the children's return is adequate and appropriate. The parents have undertaken parenting courses that will better equip them to safely care for the children. And they have engaged positively with services. They believed they were on the path to restoration, and the children were enjoying unsupervised and overnight contact with them. The children are unhappy with their present carers and want to return home to their parents. The children's ongoing needs and services can equally be provided under their care as it has been with the carers. 5. The parents submit they are now equipped to provide a safe, caring and supportive environment, and the children now deserve to be placed into their parental care. To the extent that there might be thought to be any residual risk, this can be dealt with and adequately reduced by a supervision order in the short term. Findings and conclusions 1. This is an Application under section 90 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) ("the Care Act") brought by the father in the Children's Court on 4 June 2019 for rescission of the prior Care orders and seeking instead a finding that there is a realistic possibility of restoration within a reasonable time, such that an order should now be made allocating sole parental responsibility to the father of the children. 2. I turn first to the evidence of domestic violence on the father's part and the various allegations made by the mother in this regard. 3. It was submitted that I should reject the mother's allegations of physical and emotional abuse perpetrated by the father, in their entirety. That proposition is in my view tendentious and disingenuous. 4. The protracted period over which the allegations endured, and the specificity and detail involved make them entirely credible. The explanation for her lying in the past, but telling the truth now, is not supported by any expert evidence and is implausible. Her original allegations, on the other hand, are consistent and believable, and in some instances corroborated: by Police records and independent witnesses, including hospital staff and caseworkers. 5. To my mind, the mother's purported refutation of her historical allegations is part of a dishonest attempt to deceive the Court, in which the father was complicit. 6. I am satisfied, to the requisite standard of proof, that the father was guilty of the matters involving emotional abuse and physical violence alleged against him by the mother. 7. The effect of that finding is to render the father an unreliable witness, and a perpetrator with a propensity to conceal the truth. This makes him someone who poses an unacceptable risk of harm so far as the future stability, security and safety of this family is concerned, were these children to be restored to his care. It also makes the mother an unreliable witness, and someone who lacks the protective capacity required to safely care for these children. 8. That of itself would in my view be decisive of this Application. But there is more. 9. The integrity of the parents was also damaged by their refusal to acknowledge the filthy and unhygienic state of their home prior to the removal of the children. 10. The true state of the house was in my view conclusively proved by the contemporaneous accounts of caseworkers. The parents' denial of the true position not only further damaged their credibility, but it also belies the suggestion that it is a circumstance that is not likely to occur again in the future. 11. It is also apparent in this case that the parents have actively undermined the children's placement by denigrating the carers and improperly suggesting to the children that they would be returning home. 12. Furthermore, the mother's emotional state poses an ongoing unacceptable risk. Her psychological state is entirely uncertain. The evidence presented on her behalf was technically inadmissible, but more importantly, misleading. I refer in particular to the report Dr Rana Manning, her psychologist, dated 10 December 2019. 13. It is to be noted that this report and any opinions therein expressed have not been tested by way of cross-examination, and if I was in any other Court than the Children's Court there would be no cross-examination, because I would not admit it into evidence, as it so clearly fails the Makita test as to have no probative value. It was extraordinary that this doctor allowed the father to participate in her counselling sessions, particularly in light of her historical allegations against him of violent and controlling conduct, about which the doctor says nothing. 14. The mother's conspiracy theory about DCJ, and the idea that the removal of the children is a product of a vendetta against her by a particular DCJ caseworker is also of concern. It indicates an ongoing lack of insight into her own shortcomings as a mother, and a tendency to shift responsibility from herself to others for her predicament. 15. Also troubling is the sexualised behaviour that the children have exhibited. 16. The Court may be unable to make any particular findings of inappropriate conduct on the part of the parents which has led to this behaviour, but the evidence is sufficient for the conclusion to be drawn that things have happened in the household to drive the behaviour, and it is a matter to be included in the mix of considerations when assessing whether and to what extent restoration to the parents would give rise to an unacceptable risk of harm. 17. Turning now to the carers, the objective evidence, as articulated by Ms Wilson in her Clinic report, is that they are committed, responsible, safe and considerate carers, who have done an excellent job in looking after these children and helping them work through their past experiences. It is clear that each of the children has their own special issues and individual need for specialised care. These carers have the capacity to do that sensitively and understandingly. 18. I have serious concerns about disrupting that environment by interfering with the current arrangements for the care of the children, and even deeper concerns as to the capacity of the parents to bring to that task the necessary level of skill and understanding. 19. I have noted the evidence as to the wishes of the children, including the Wishes Report prepared by the Independent Legal Representative (Exhibit 2). There is, in my assessment, confusion and a lack of clarity as to the children's true wishes about where they would like to live. In any event, whilst their wishes might be important, this is not a case where their views would outweigh the dangers presented by a restoration. 20. My overall conclusion is that restoration of the children to the parents would involve an unacceptable risk of harm which is not capable of mitigation to a level that safeguards their safety, welfare and well-being. 21. I am satisfied, therefore, having regard to the circumstances of the children and a consideration of the evidence that the parents are not likely to be able to satisfactorily address the issues that led to the removal of the children from their care, that there is no realistic possibility of restoration of them being restored to the parents in a reasonable time. 22. The Children's Court therefore accepts the assessment of the Secretary that there is no realistic possibility of restoration of the children being restored to the parents within a reasonable time: s 83(5) of the Care Act. Rescission of the previous final care orders 1. Leave under s 90(2) of the Care Act having been granted, the issue for the Court now is therefore, whether the previous Care orders should be varied or rescinded: s 90(6). In making this determination the Court is required have regard to the matters set out in s 90(6). I have given consideration to each: 1. The age of each child: this is often a relevant and persuasive factor, particularly with older children or young persons, but I do not consider it significant in the circumstances of the present case. 2. The wishes of the child and the weight to be given to those wishes: I have dealt with this issue above. 3. The length of time the children have been in the care of the present caregivers: this is a factor of some weight in this case. 4. The strength of the child's attachments to the birth parents and the present caregivers: the question of attachment weighs against a restoration, in favour of maintaining the current placement, in accordance with the clinician's view. 5. The capacity of the birth parents to provide an adequate standard of care for the children: I have dealt with this issue above. 6. The risk to the children of psychological harm if the present care arrangements are varied or rescinded: I am satisfied that for the reasons given that more probably than not, restoration poses an unacceptable risk of psychological harm to these children. 1. For all the reasons articulated, I am satisfied that the previous Care orders should not be rescinded: s 90(6). Disposition 1. In reaching my decision I have taken account of the provisions of the United Nations Convention on the Rights of the Child 1989 (CROC) see Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89 at 264] - [268]. There was no suggestion that this Court needed to take into account any provision in CROC in the present case such that there was some different requirement, some additional principle, or some gloss that required the Court to have particular regard to in determining this case, such that I was required to go beyond the Care Act and the case law interpreting that Act and the relevant provisions, or in the consideration of the issue to be decided. 2. In making my findings and drawing my conclusions, I have drawn from material that is in my assessment satisfactory in the probative sense, so as to avoid decision-making that might appear capricious, arbitrary or without foundational material: JL v Secretary, Department of family and Community Services [2015] NSWCA 88 at [148], and I have had regard to the requirement that the Secretary prove his case on the balance of probabilities: s 93(4) of the Care Act. In that regard I have also taken into account the principles set out in the High Court decision in Briginshaw v Briginshaw [1938] HCA 34 in determining whether the burden of proof, on the balance of probabilities, has been achieved: Director-General of Department of Community Services; Re "Sophie" [2008] NSWCA 250. 3. I have also had regard to the provisions of s 9(2)(b) and s 9(2)(a) of the Care Act, and have taken into account the culture, disability, language, religion and sexuality of the children. 4. I have had regard to the provisions of s 9(2)(c) of the Care Act which requires that action to be taken to protect the children from harm must be the least intrusive intervention in the life of the children and their family that is consistent with the paramount concern to protect them from harm and promote their development. 5. For all these reasons, I dismiss the father's Application for rescission or variation of the previous final Care 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 April 2020