“A” v The Secretary, Family and Community Services

[2015] NSWDC 307

District Court

New South Wales

Medium Neutral Citation:

“A” v The Secretary, Family & Community Services [2015] NSWDC 307

Hearing dates:

26, 27, 28, 29, 30 October & 2 November 2015; Last submissions received on 3 December 2015

Date of orders:

18 December 2015

Decision date:

18 December 2015

Jurisdiction:

Civil

Before:

Levy SC DCJ

Decision:

1. Appeal allowed;

2. The Secretary of the Department of Family and Community Services is to prepare a new permanency plan consistent with these reasons;

3. The proceedings are to be listed on 29 January 2016, for the specific purpose of the parties bringing short minutes that set out the required draft orders to reflect these reasons, and which also fulfil any formal requirements of the Children and Young Persons (Care and Protection) Act 1998;

4. If required, liberty is granted to the parties to apply to the Court to relist the matter on such abridged notice as may be necessary, for the purposes of implementing these interim orders, and to identify the required final orders;

5. The exhibits are to be retained in the Court file pending further and final orders.

Catchwords:

CHILD CARE APPEAL – rejection of proposed permanency care plan providing for the permanent placement of two children into foster care – evaluation of flawed expert evidence that resulted in maternal grandmother being excluded from consideration for the placement of her two granddaughters into her care – orders for new permanency plan to be prepared to include transition provisions for transfer of placement and care

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998; s 8, s 9, s 10A, s79, s 83, s 86, s 90A, s 91, s 98, s 105
National Disability Insurance Scheme Act 2013 (Cwth)

Cases Cited:

BQZ v Challenge Community Services [2015] NSWCATAD 92
Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Mason v Demasi [2009] NSWCA 227
Re Tracey [2011] NSWCA 43
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442

Category:

Principal judgment

Parties:

Randall Legal (Appellant)
Ms S Nanlohy, Legal Aid NSW (The children)
“D” In person (Father of second child)
Byron Legal (Solicitor for foster carers)
Crown Solicitor (First respondent)

Representation:

Counsel:
Mr B Cochrane (Appellant)
Ms C Smith (The children “B” and “C”)
“D” In person (Father of second child)
Mr I McKay (Solicitor for foster carers)
Ms M Neville (First respondent)

  Solicitors:
Randall Legal (Appellant)
Ms S Nanlohy, Legal Aid NSW (The children)
“D” In person (Father of second child)
Byron Legal (Solicitor for foster carers)
Crown Solicitor (First respondent)

File Number(s):

2014/353026

Publication restriction:

Orders made pursuant to s 105 of the Children and Young Persons (Care and Protection) Act 1998

Judgment

Table of Contents

Preface	[1]
Suppression orders	[2]
Appeal	[3] – [6]
Evidence in the appeal	[7] – [8]
Overview of witness testimony	[9] – [18]
Issues on appeal	[19] – [21]
Representation	[22] – [23]
Positions taken by the parties	[24] – [29]
Litigation pseudonyms	[30]
Principles to be applied	[31] – [32]
Relevant risks of harm	[33] – [34]
Legislative changes since Children’s Court hearing	[35] – [37]
Questions for consideration and determination	[38]
Factual background	[39] – [121]
Time bands for factual analysis	[45] – [50]
First period – 2008 to 11 March 2013	[51] – [66]
Second period – 11 March 2013 – 28 November 2013	[67] – [88]
Third period – 28 November 2013 – 21 October 2014	[89] – [111]
Fourth period – 21 October 2014 to date	[112] – [121]
Review and evaluation of the oral evidence	[122] – [277]
Ms Breitkreutz – FaCS caseworker/manager	[123] – [172]
Foster carer “F1”	[173] – [201]
Foster carer “F2”	[202] – [208]
Appellant “A”	[209] – [277]
Affidavit evidence	[213] – [216]
First affidavit	[217]
Second affidavit	[218] – [222]
Third affidavit	[223] – [224]
Fourth affidavit	[225] – [239]
Fifth affidavit	[240] – [243]
Sixth affidavit	[244] – [251]
Oral evidence of the appellant	[252] – [277]
Expert evidence	[278] – [398]
Dr Koehler	[280] – [302]
Ms Lyons	[303] – [395]
Conclusions on expert evidence	[396] – [398]
Consideration of questions posed	[399] – [442]
Insight and responsibility for historical neglect	[401] – [406]
Appellant’s capacity to provide care	[407] – [429]
Child protection issues	[430] – [442]
Other practical issues	[443] – [460]
Financial considerations	[444] – [448]
Therapies, treatment and education	[449]
Assistance from agencies	[450] – [451]
Attachment issues	[452] – [457]
Possible placement breakdown	[458] – [460]
Statutory provisions	[461] – [477]
s 9(1) – paramount principle	[462]
s 9(2) – other relevant administrative principles	[463] – [465]
s 10A – permanent placement principles	[466] – [477]
Consideration of best interests of the children	[478] – [495]
Flexibility and safeguards	[496] – [513]
Proposed care plan	[514]
Transition and support issues	[515] – [522]
Dispositive conclusions	[523] – [527]
Interim orders	[528]

Preface

1. I have concluded that this child care appeal should succeed, with the result that the previous permanent placement orders should be set aside and replaced with other orders that are more appropriate to the circumstances. This is not because of any claim of error on the part of the Children’s Court Magistrate. Instead, the appeal succeeds because the more detailed, focussed and educated evidence that was adduced in the fresh hearing on the appeal has exposed flaws and unfounded assumptions that were not readily apparent within the expert evidence which based the decision of the Children’s Court. The re-consideration on appeal must also reflect the relevant changes in the legislative provisions regarding permanent placement that post-dated the hearing in the Children’s Court.

Suppression Orders

2. On 26 October 2015, at the commencement of the hearing of these proceedings, orders were made pursuant to s 105 of the Children and Young Persons (Care and Protection) Act 1998, (“the Act”) prohibiting the publication of the names of the two female children the subject of these proceedings, or the publication of any information or details of any other parties, witnesses or persons named in evidence, that would tend to identify those children, who have been in the care of the Department of Family and Community Services (“FaCS”) and its delegated foster carers, since 28 November 2013.

Appeal

3. This appeal is from the decision of the Children’s Court at Lismore on 21 October 2014, which at that time determined there was no reasonable prospect of two young half-sisters, who are from the same mother but from different fathers, being restored to their respective parents. There is no challenge to that aspect of the determination.

4. In that determination, the Children’s Court decided that parental responsibility for those children should be allocated to the Minister for Family and Community Services: s 79(1)(b) of the Act. In those events, it was determined that permanency planning for the care of those children had been adequately addressed: s 83(7) of the Act.

5. In anticipation of those orders being made, a care plan had been prepared proposing the permanent placement of the children with the present foster carers. The Children’s Court made orders in accordance with that plan. In arriving at those decisions, the Children’s Court also made provision for the maternal grandmother of the children to have only limited supervised contact with those children for one hour per month.

6. The maternal grandmother, being dissatisfied with those latter orders of the Children’s Court, and being dissatisfied with the proposed plan for the permanent placement of the children, has brought this appeal to the District Court as of right. This appeal therefore proceeded as a fresh hearing, having regard to both the past events that were considered by the Children’s Court, and the subsequent and more current circumstances that have evolved since the appealed decision of the Children’s Court: s 91(2) of the Act.

Evidence in the Appeal

7. The parties sensibly co-operated with the assembly of an array of relevant documents comprising departmental records, procedural documents, orders, medical, allied and care reports and a transcript of the earlier proceedings under appeal. These were helpfully collated by the Crown Solicitor on the Minister’s behalf, and made available to all parties: Exhibit “1”, Volumes 1 – 3, pp 1 – 1207. The other exhibits, in the series Exhibit “2” to Exhibit “17”, will be referred to in the course of these reasons where it becomes relevant to do so.

8. Oral evidence was given by Ms Grace Breitkreutz, the caseworker manager of the Ballina office of FaCS, the present foster carers, the appellant and two clinical psychologists, Ms Roslyn Lyons, the nominated Children’s Court clinician, and Dr Terry Koehler, who has assessed and treated the appellant.

Overview of witness testimony

9. No adverse credit issues arose from the testimony of any of the witnesses. It was plain from the evidence they each gave, that they had the best interests of the children at the forefront of their thinking, although they approached that question from their very different perspectives. In those circumstances, it became necessary to evaluate the reliability of the respective testimonies.

10. Ms Breitkreutz steadfastly maintained her view that the children were best cared for in their present placement with the foster carers. That view was the subject of significant challenge.

11. Over the course of the last two years, the children have formed a strong attachment to their foster family, and the foster carers have also started to form a strong attachment to the children, whom they had initially accepted into their emergency care as a temporary measure.

12. The foster carers have provided a stable loving environment that has been attentive to the needs of the children, who have been diagnosed with emergent indications of global developmental delays. The children, who were severely neglected before being taken into care, have thrived in the care of the foster parents, who are keen to continue their care of the children in the long-term. The foster carers’ efforts in caring for the children have been impressive.

13. The appellant is a loving and doting grandmother whose efforts in pursuing this appeal showed considerable determination and resourcefulness in seeking to have the parental responsibility and care of the children allocated to her in circumstances where the parents of the children were plainly unsuited for that role. The appellant remained calm and dignified in her denials in cross-examination, in the face of repeated assertions that she bore some responsibility for the prior neglect of the children that had resulted in them being taken into care. She gave similar dignified responses in denying the repeated assertions that she lacked insight into those matters. I considered her to be an impressive witness.

14. Both the carers and the appellant expressed genuine emotional reactions when their evidence was tested. No adverse comment arises from those expressions of emotion.

15. The evidence of the expert witnesses was polarised, which therefore requires a close analysis, including as to the factual basis of that evidence.

16. On the one hand, Dr Koehler considered that the appellant had the requisite insight into the prior history of neglect of the children, and in respect of their current needs, and that she is suitable to be allocated parental care and responsibility for her grandchildren. He had arrived at those conclusions in the context of having assessed the appellant after having provided her with counselling in respect of the shock and distress she had experienced as a consequence of the decision of the Children’s Court on 21 October 2014.

17. On the other hand, in her reports, Ms Lyons, the appointed Children’s Court clinician, considered that the appellant lacked relevant insight into the circumstances of the neglect of the children, and she therefore considered that the appellant was not in a suitable position to receive the children into her care.

18. The evidence of the respective experts must therefore be evaluated according to the validity of the assumptions upon which that evidence was based.

Issues on Appeal

19. The appellant argued that the expert evidence upon which the care plan proposed by FaCS was based was factually flawed and was therefore unreliable: Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705.

20. The central factual matters in contest in the proceedings comprised certain foundation assumptions made by FaCS about the appellant, which, it appears, were not the subject of periodic review or appropriate modification over the course of time as more detailed facts and diagnoses emerged concerning the children.

21. The contested assumptions were firstly, that the appellant maternal grandmother had to a material degree been relevantly responsible for the neglect of the children before they were removed from parental care, and secondly, there was a related claim that she lacked relevant insight into those circumstances. Those matters were disputed by the appellant. The resolution of that dispute will be influential in the determination of the outcome of the appeal.

Representation

22. In the appeal, the appellant maternal grandmother was represented by Mr B Cochrane of counsel. The two children who were the subject of the appeal were independently represented by Ms C Smith of counsel. Ms M Neville of counsel appeared for FaCS, the respondent to the appeal. The foster carers, represented by their solicitor, Mr IA McKay, took an active and adversarial part in the appeal in seeking to resist the orders sought by the appellant.

23. Neither the father of the oldest child, nor the mother of the children, sought to be represented in the appeal. The mother of the children, and the father of the eldest child, were not present at the hearing. The father of the youngest child was self-represented. The appeal was heard as a priority in a circuit list in Lismore over 6 consecutive hearing days on 26, 27, 28, 29, 30 October and 2 November 2015. Last submissions were received on 4 December 2015.

Positions taken by the parties

24. The primary position of the appellant was that she sought to have the orders made by the Children’s Court on 21 October 2015 set aside in favour of an order that the care and parental responsibility for both children be permanently allocated to her until the children reach the age of 18 years.

25. In the alternative to that primary position, as provided by s 86 of the Act, the appellant sought a greater degree of contact with the children than the very limited terms in which contact was permitted as ordered by the Children’s Court.

26. The first of those positions was resisted by FaCS, and it was also actively resisted by the foster parents. However, in the days leading up to the hearing of the appeal, FaCS ultimately conceded that the appellant’s level of contact with the children should properly be significantly expanded over a relatively short period of time: T158.4. In the course of those events, the foster parents abandoned the application they had filed on 18 May 2015, seeking guardianship of the children: T8.44; T12.17; T201.25; Exhibit “1”, Tab 10, pp 348 – 350; s 79(1)(f) and s 79A of the Act. Nevertheless, they continued to remain represented in the proceedings and, by their solicitor, cross-examined witnesses, including the appellant: s 98(3) of the Act.

27. At the hearing of the appeal, the father of the youngest child initially opposed all orders sought by the appellant, arguing that the maternal grandmother was an unsuitable person to look after the children in any circumstances. His position in that regard was apparently due to the historically poor relationship between that father and the appellant. Initially, he also opposed any suggested changes to the present contact arrangements in favour of the maternal grandmother, for the same reasons.

28. During the course of the hearing of the appeal, that father’s attitude to the appellant underwent significant change. Ultimately, he made no further submissions, and he was instead content to rely on the submissions made by counsel appearing on behalf of FaCS: T430.17 – T430.20.

29. At the conclusion of the evidence, the independent legal representative of the children supported the appellant’s position which sought that parental responsibility for the children be allocated to her.

Litigation pseudonyms

30. In accordance with the suppression order made at the commencement of the hearing, litigation pseudonyms have been assigned as follows:

“A”   The appellant, being the maternal grandmother of the children;

“B”   The youngest child the subject of the proceedings who is presently aged 4 years;

“C”   The older sibling of “B”, who is presently aged 7 years;

“D”   The father of “B”;

“E”   The mother of “B” and “C”;

“F1”   The foster mother of “B” and “C”;

“F2”   The foster father of “B” and “C”.

Principles to be applied

31. Any decision required to be made pursuant to the Act concerning the children who are the subject of this appeal must be made according to the paramount principle of the safety, welfare and wellbeing of the children: s 9(1) of the Act. Any such decision must have due regard to the wide ranging objects of the Act: s 8 of the Act, and the applicable permanent placement principles: s 10A of the Act.

32. A primary focus of the legislation is the paramount need to protect at risk children from harm by identifying interventions that are the least intrusive in the lives of the children, whilst also acknowledging the need to promote the development of the children: s 9(2)(c) of the Act. In order to fulfil that requirement, the relevant risk must be identified.

Relevant risks of harm

33. On the evidence in this case, the relevant areas of risk of harm to be considered in determining the paramount best interests of the children are, in combination:

1. The potential for neglect to recur in the care of the children;

2. Potential exposure of the children to witnessing domestic violence;

3. Potential exposure of the children to direct physical abuse;

4. Potential exposure of the children to direct or indirect psychological or emotional abuse;

5. Potential exposure of the children to the effects of abuse from drugs and alcohol;

6. Environmental insufficiency in the care, treatment and tuition arrangements for the children, that might hinder the promotion of their physical, emotional, developmental, and educational wellbeing;

7. The potential risk of placement breakdown.

34. Those considerations will be addressed in the course of these reasons.

Legislative changes since Children’s Court hearing

35. On 29 October 2014, the Act which governs the proceedings was amended by the insertion of a new s 10A, which sets out principles for the consideration of the permanent placement of children who have been removed from parental care.

36. The effect of the insertion of that amendment was to establish a ranked statutory hierarchy or code that must be considered by the court when determining the permanent placement of children who are the subject of care orders. On 18 November 2014, the appellant filed her summons which constituted the appeal. On 24 February 2015, the appellant filed her amended summons.

37. The determination of the appeal must therefore encompass a consideration of the s 10A amendment of the Act which was not previously available to be considered by the Children’s Court. As this appeal is by way of a fresh hearing, the required consideration must also have regard to any relevant changed circumstances of the appellant that have arisen since the Children’s Court made the appealed orders on 21 October 2014.

Questions for consideration and determination

38. On a review of the evidence and arguments, I consider that this appeal requires the consideration and determination of the following questions:

1. Whether the appellant has relevant insight into the cause or causes of the children having been neglected;

2. Whether, in any relevant causative sense, the appellant bears any responsibility for the described neglect of the children;

3. Whether the appellant has the capacity to care for the children having due regard to their developmental, physical, psychological, emotional and educational needs;

4. Whether the appellant has an adequate understanding and ability to deal with child protection and risk of harm issues;

5. Whether the placement and care plan proposed by FaCS should be approved.

Factual background

39. In the appeal, the underlying factual and legal justifications for the children being removed and taken into care were not disputed by the appellant, unlike the appellant’s position with regard to the placement orders under appeal. The broad outline of the factual circumstances is as follows.

40. The mother of the children, who is now aged 29 years, had a troubled and unstable history, including ongoing mental health issues involving anxiety. Those matters can be traced back to multiple traumas that occurred in her childhood and teenage years, and the lasting consequences of those events, which occurred without fault on her part. In her adult life she had two problematic relationships from which she had borne the two children who are the subject of the proceedings.

41. None of those difficulties of the daughter can be attributed to parenting faults or any other claim of shortcomings on the part of her mother, the appellant.

42. The first child, “C”, was born in 2008, and is now aged 7 years. The present level of contact between that child and her father was not fully explored in the evidence. It appears that he is permitted some access contact with that child but his health has not allowed him to fully take up that opportunity.

43. The second child, “B”, fathered by “D”, was born in 2011, and is now aged 4 years. The relationship between the mother of “B” and the father, “D”, was, without dispute, characterised by a history of domestic violence against the mother. In more recent times, it appears that “D” has obtained some professional assistance with regard to his own mental health issues, and as a result of improvements in his situation, previous contact restrictions that had applied to him are now being relaxed, and he is now permitted to have some limited access and contact with “B”.

44. Since being taken into care, both of the children have been diagnosed as having global developmental delay and, it appears, other psychological and behavioural problems, including attachment disorders. The diagnoses and the full extent and impact of those problems were not fully apparent at the time the children were removed and taken into care. Those diagnoses have slowly and more accurately emerged as a result of various investigations and tests that have been undertaken over time.

Time bands for factual analysis

45. At this point it becomes necessary to review some relevant matters of history, which may be conveniently identified within four broad time bands during which the family has had contact with FaCS.

46. The first period spans the time between 2008 and 11 March 2013. In that time the family continued to have contact with the Wyong office of FaCS until that office closed its case file. That file closure occurred because the care plan in place at that time was considered to have been achieved and maintained, and the mother of the children had successfully engaged with the appropriate assistive services to the satisfaction of FaCS.

47. The second period relates to the time when the family moved to the Lismore area, and spans the time from 6 August 2013, until 28 November 2013, when the Ballina office of FaCS took the step of removing the children and taking them into care. That removal occurred as a result of escalating reports to, and concerns by, FaCS caseworkers, regarding the safety, welfare and wellbeing of the children.

48. The third period spans the time from when the children were taken into care, and continues until 21 October 2014, which was when the orders under present appeal, were made by the Children’s Court.

49. The fourth period involves the period from when the Children’s Court made its orders on 21 October 2014, and continues until the present time.

50. The summary that follows conveniently draws upon the helpful chronology prepared by Ms Smith: MFI “3”. That chronology was source referenced to the voluminous documentary evidence.

First period – 2008 to 11 March 2013

51. In 2008, the mother became pregnant with “C” whilst living on the Central Coast of NSW. At that time she had experienced mental health and drug-related issues which led to her situation coming to the notice of FaCS. In late 2008, after a brief period living on the South Coast of NSW following the birth of “C”, she separated from the father of “C”. She then moved to live with the appellant on the Central Coast. At that time, difficulties arose between the appellant and her daughter relating to the daughter’s behaviour. Those difficulties arose from the daughter’s mental health issues which were having an impact at the time.

52. In 2009, in the absence of the father of the first child “C”, the problems experienced by the mother had receded to a more manageable degree, and as a result, the appellant was able to have regular contact with her daughter, and with her first grandchild.

53. However, those more manageable circumstances changed in 2010, when the appellant became aware that her daughter had commenced a relationship with “D”. That relationship led to the birth of “B” in September 2011. The birth was by emergency caesarean section. In those events, FaCS became involved in contact with the appellant’s daughter both before and after the birth of the daughter’s second child. This occurred following various reports received by FaCS regarding concerns as to her wellbeing.

54. During that period, the appellant had been substantially excluded from access to the family. She therefore had little opportunity to influence the care of the children. This was because of the excluding behaviour of “D”, who had at that time displayed considerable antipathy towards the appellant.

55. “D” had left the relationship with the mother between about February 2011 and April 2011. In that time, the appellant was again able to resume more frequent contact with her daughter and the children, and in those circumstances, she was able to provide some support to them. However, that position changed and became significantly reversed whenever “D” re-entered the relationship with the mother for various short periods between April 2011 and September 2011. During those periods, the appellant was again excluded by the dysfunctional and manipulative behaviour of “D”. In that time, objective evidence of the evolving developmental delays in the eldest child remained obscured from view, and this was therefore also obscured from the appellant’s understanding.

56. In that period, FaCS had received a number of reports about the welfare of the family. One such report had been received from a mandatory reporter at a time when “B” was less than a week old. That mandatory reporter was concerned about that child’s weight loss and jaundice, conditions which subsequently required a hospital admission. From the events leading up to those circumstances, co-extensively, it appears that the mother had been assaulted, and had abdominal bruises to the site of her caesarean section surgery. The compelling inference is that the assault was as a result of the violent and damaging behaviour of “D”.

57. In addition to a number of other reports from several mandatory reporters to the Wyong office of FaCS regarding the welfare of the children, the appellant herself made numerous reports to the Wyong office of FaCS to express her own concerns over such matters. Between July 2011 and April 2012, the dysfunctional relationship between the mother and “D” continued.

58. This resulted in the continued substantial exclusion of the appellant from any significant opportunity she might otherwise have had to influence the welfare and the situation of her grandchildren. In that time, the FaCS records show that there had been some 15 reports to, or contacts with FaCS, regarding the welfare of the children. The majority of those reports were initiated by the appellant.

59. In late 2011, FaCS became aware of a risk of serious harm to the child “C”, who was then aged 3 years. At around that time, the appellant had made a series of contacts with FaCS to express her concerns about the relationship between her daughter, and “D”, which raised questions concerning domestic violence issues, as well as questions concerning the wellbeing of her daughter and her grandchildren.

60. The relationship between the father, “D”, and the mother of the children, had not been continuous. However, during the times that relationship continued to subsist, the appellant maternal grandmother was again effectively excluded from contact with the mother and the children. It was not disputed that this was as a result of the dysfunctional and threatening actions of the father “D”.

61. At one point, the vindictive behaviour of “D” appears to have been due in part to the unfortunate circumstances where FaCS had inadvertently identified the appellant maternal grandmother to the father, “D”, as having reported to FaCS her legitimate concerns regarding the safety and the welfare of the subject children.

62. At the time, that disclosure engendered some further animosity on the part of the father “D” towards the appellant, which had the effect of further excluding her from contact with her daughter and her grandchildren for significant periods. Those unfortunate circumstances were not conducive to either the maintenance or the development of the appellant’s relationship with FaCS. Thereafter, the appellant maintained an understandable attitude of reserve and reticence towards FaCS, but not at the expense of the welfare of the children.

63. During the periods when the father “D” was absent from the mother’s domestic situation, the appellant maternal grandmother sought to assist her daughter with the children. Throughout that period, the appellant maternal grandmother nevertheless made periodic contact with FaCS to register and to continue to express her concerns about the welfare of her daughter and the children, and her concerns over the apparent inability of her daughter to cope with the needs of the children. At times, those communications to FaCS extended to the appellant’s expression of her concerns over the untoward influence, behaviour and activities of the father “D”.

64. Over the period between 2011 and February 2013, FaCS had supportive and supervisory contact with the mother and her children. During that time there were emerging signs that the two children were both showing indications of developmental and global delays. Those problems required professional assessment and the provision of ongoing assistance and services to both the mother and the children. In that time, the mother was in touch with appropriate services for the children and for herself. Co-extensively, the appellant continued to maintain her interest in, and her concern for the family, including to the extent of having periodic discussions with the assigned FaCS caseworker.

65. In those events, on 13 February 2013, the Wyong office of FaCS had closed its case file in relation to the mother and the children as the mother was at that time considered by FaCS to have been successfully and sufficiently engaging with Northcott, the nominated family assistance service provider.

66. Nevertheless, in that period, the appellant had several contacts with the service provider, Northcott, to discuss issues concerning the mother’s ability to cope with her anxiety, and regarding the mother’s ability to get the eldest child to and from school. Those expressions of concern by the appellant were lodged on 16 and 17 May 2013. In that period, the FaCS caseworker at Wyong had determined that the care plan that was then current had been achieved. That conclusion was also recorded in the FaCS file on 11 March 2013. The appellant reasonably concluded from those circumstances that FaCS were satisfied with those arrangements, and the appellant’s role in assisting the mother of the children whenever she was able to do so.

Second period – 11 March 2013 to 28 November 2013

67. In about June 2013, significantly, there was a resumption of the relationship between the mother and “D”, the father of the youngest child. Until then, the appellant had been helping her daughter in her efforts at coping with her own needs and those of her children, to the apparent satisfaction of FaCS. The resumption of that relationship resulted in the exclusion of the appellant from influence on the family.

68. By 6 August 2013, what then followed can be fairly described as a material and declining change in the mother’s coping abilities. This was characterised by the mother failing to maintain compliant contact with the services with which she had hitherto been satisfactorily engaged. This was associated with her failure to maintain follow-up of the needs of both children, the non-attendance of the eldest child at day care for a significant period, and the unavailability of the mother to be contacted by concerned callers to the premises where she was known to have been residing. A mandatory caller had contacted the Wyong office of FaCS to express the concern that the father “D” had taken the family away to live in an isolated location. That concern proved to be justified. At that time, the family had moved to an isolated property at Armidale.

69. Significantly, in the course of those events, the appellant was not able to intervene in the interests of the children. The exclusion of the appellant from contact with the children in this period, and for that matter earlier periods, turned out to be an important factor of determinative significance to the appeal.

70. On 8 August 2013, the Wyong office of FaCS received a report expressing concern over the mental health of the father “D”. That reporter expressed to FaCS the concern that the father “D” appeared to have been physically and emotionally abusing the mother and both children. At that time, concern was also expressed for the welfare of the eldest child, who was at that time in need of intensive intervention for her signs of global developmental delay.

71. On 8 August 2013, the FaCS Helpline also received two calls from the appellant to advise that she had been contacted by the mother to indicate that the family was coming back to the appellant’s home in Wyong to pack their belongings and to then move to the Armidale area.

72. In the course of those events, after the mother and the father “D” had moved their belongings out of the appellant’s premises a few days later, the appellant remained unable to contact them or the children.

73. On 16 August 2013, the appellant made a distraught telephone call to the service provider Northcott because she had been unable to contact her daughter or the children. Some short time later, the family had moved to an isolated location in the Lismore area.

74. On 20 August 2013, FaCS received a report that the children were living in circumstances where they were being locked in their rooms for 23 hours per day, and that the eldest child was not receiving her required interventions to address her needs due to her global developmental delay. By 30 August 2013, FaCS had located the current address for the family. It later transpired that the father “D” had only been allowing the children out of their room for 1 hour per day to eat and, it appears, to occasionally shower. He was reported to have sought to spuriously justify that course of conduct with a claim that doctors had told him the children needed to be locked away due to their disabilities.

75. By the end of August 2013, the Ballina office of FaCS had become involved in dealing with the escalating concerns over the safety and wellbeing of the children: T106.36. From that time, Ms Breitkreutz, the caseworker manager at the Ballina office of FaCS, had assumed the conduct of the relevant FaCS files, at which time she began pursuing her ongoing consideration of the safety and the welfare of the children: T43.49.

76. On 15 October 2013, FaCS visited the home where the family was located. At that time the oldest child appeared dirty, underweight, pale and with a limited vocabulary. When questioned as to why that child was not attending school, the father advised, unsatisfactorily, that she was having a break from school.

77. On 18 October 2013, FaCS again visited the home and noted the eldest child appeared dirty and was malodorous. FaCS informed the mother that the children needed to be cleaned up and that they needed to be respectively enrolled into school and childcare. At that time it was noted that the family were facing an impending eviction from their home in a further 3 weeks’ time.

78. On 25 November 2013, FaCS again visited the family at home, at which time it was noted the home was malodorous. It was also noted that the eldest child, whilst clean, did not have appropriate bedding, was malnourished, and was extremely pale. The eldest child was observed to withdraw or flinch in the near presence of “D”. At that time it was also noted that the scheduled medical appointments that had been arranged for the children had not been attended, and it appeared that no enquiries had been made by the parents about child care or support organisations.

79. In view of the aggregated circumstances outlined in the foregoing paragraphs, on 25 November 2013, FaCS determined that the children were in urgent need of care and protection. That view was a compelling one in the circumstances. By that time, the situation of the children had become perilous, and was of the utmost concern. Ms Breitkreutz described the living conditions of the children as having been very troubling: T87.30. Accordingly, a warrant was sought and obtained from the Children’s Court to enable the children to be removed from parental care.

80. In making that decision, Ms Breitkreutz also reviewed the FaCS file relating to the family as was kept by the Wyong office of FaCS. On considering the whole history, she appropriately formed the view that the children were in need of protection. Accordingly, she decided that they should be taken into care: T44.20; T46.13.

81. In those events, significantly, Ms Breitkreutz had also formed the foundation or initial view that the appellant maternal grandmother lacked insight into “the severe neglect that had led to the children’s delays”: T49.5. Thereafter, she has consistently maintained that view, including when challenged on such views during the course of the hearing: T49.5; T49.49; T91.27. She was reluctant to make any concessions in that regard, where if made, such concessions might have shown the appellant in a less critical light than was being portrayed: T58.1 – T58.28; T61.36; T73.1 – T74.15; T96.48 – T97.25; T140.49 – T141.7.

82. Ms Breitkreutz based her initial views on her reading of the FaCS contact reports: T152.3 – T152.11. In June 2014, Ms Breitkreutz appears to have later had those views reinforced to her in a circular manner by what was a crucial conversation she had with the clinical psychologist, Ms Lyons, who had been engaged as the Children’s Court clinician to evaluate the situation of the children: T88.25 – T88.45; T84.20 – T84.25; T85.20. That contact with Ms Breitkreutz had been initiated by Ms Lyons: T162.42. This is a matter to which I shall return in the course of a more detailed consideration of the significance of that event.

83. The claimed role, if any, of the appellant, in the neglect of the children and the cause of their developmental delays, was a matter of great contention in this appeal. The basis for Ms Breitkreutz’s views as to the appellant’s alleged role in the neglect of the children therefore requires close examination in the consideration of the issues raised in this appeal.

67. On behalf of the appellant, it was contended that in respect of the appellant’s alleged role in the neglect, Ms Breitkreutz had mis-read the effect of the earlier FaCS records: T71.22. That contention was a cornerstone of the appellant’s case.

68. On 25 November 2013, in anticipation of the children being removed and taken into care, the appellant made distraught contact with the Central Coast service provider Northcott, to explore the possibility of that organisation becoming re-involved in assisting the family if the family were to return to live on the Central Coast. At that time the appellant was desperately seeking to have the children placed into her care. That contact by the appellant turned out to be of no avail, as it did not change the course of subsequent events.

69. On 28 November 2013, FaCS removed the children from the care of the parents and placed them into the care of the current foster carers. At that time, that arrangement was of an emergency nature, and it was not intended to be permanent.

70. On 29 November 2013, which was the day after the children were taken into care, the appellant contacted FaCS at Wyong to advise that Wyong FaCS caseworker that the children had been removed by the caseworker at the Ballina office of FaCS and placed in emergency foster care. At that time, the appellant indicated her preparedness to take custody of the children. The Wyong office of FaCS contacted the Northcott organisation at Ballina to review the situation. At that time, the Northcott organisation indicated it would be prepared to support the family in the transition period: Exhibit “9”.

71. The telephone contact summary record kept by the Wyong office of FaCS shows that between 4 December 2012 and 29 November 2013, there had been a series of about 32 notations, varying between telephone contacts and home visits, concerning the welfare of the children. Although some of those events comprised internal communications within FaCS, in that period, there were notes of 8 separate contact calls having been made to the Wyong office of FaCS by the appellant: Exhibit “9”. Notwithstanding those matters, Ms Breitkreutz maintained her view the appellant lacked relevant insight.

Third period – 28 November 2013 to 21 October 2014

89. Once the children were removed from their mother and taken into emergency out-of-home care, events moved relatively quickly, as would have been expected in the context of an organisational response where the welfare of children was at stake against a prior history of neglect.

90. It appears that in the course of those events, in their deliberations, the FaCS caseworkers did not seem to have considered the possibility that the appellant might be an appropriate alternative carer for the children. Although Ms Breitkreutz stated that she had not herself observed the appellant and had relied on the contact reports (T41.10), and telephone conversations which both she and her staff had with the appellant (T70.29), she had not formed a concluded view on that matter until she reviewed the clinician’s report from Ms Lyons: T81.5. That report was not obtained from Ms Lyons until some seven months after the children had been taken into care by FaCS.

91. Whilst the children continued to remain in emergency foster care, FaCS built its case for the Children’s Court proceedings the subject of the present appeal. That emergency care commenced with the present foster carers, “F1” and “F2”, later became extended, pending orders of the Children’s Court. It is undisputed that those carers have continued to provide very good care for the children until the present time.

92. On 3 December 2013, FaCS filed an application in the Children’s Court at Lismore. The mother participated in that process and initially sought restoration of the children to her. Ultimately, at the hearing, the mother only sought contact with the children. In those proceedings, the father of the eldest child sought that the children be placed with him. Ultimately, he too also only sought contact.

93. The appellant maternal grandmother also sought to be joined to those proceedings. Initially she sought that parental responsibility be allocated to her, if not to the mother. The appellant ultimately acknowledged that in the lead-up to the hearing in the Children’s Court, the mother was not in a suitable position to care for the children. In those circumstances, the appellant pressed for the children to be placed into her care.

94. On 5 December 2013, interim orders were made by the Children’s Court at Lismore to the effect that parental responsibility for the children would be vested in the Minister for Family and Community Services.

95. By that time, a series of medical and allied assessments of the children had been set in train. Arrangements had also been made for appropriate school and pre-school enrolments for the children.

96. At that time, consideration was being given to the long-term foster care placement of the children with “F1” and “F2”. It appears that at that time FaCS continued to hold the view that the appellant was still an unsuitable placement for the children.

97. Beforehand, by way of background, in September 2013, which was two months before the children had been placed into their emergency care, the foster carers had decided on a lifestyle change, and to do so, they had moved to a 160 acre farm some distance out of town. However, after the subject children came into their care, they found they were spending significant amounts of time travelling between Casino, Lismore and Ballina to meet all the necessary and growing number of appointments for the various interventions that were required to meet the evolving needs of the children. In those circumstances, they found they could not maintain that regime due to the emerging high needs of the children.

98. In early 2014, the emergency foster carers made contact with FaCS to express their concerns to FaCS to the effect that they felt they were unable to provide long-term care to the children because of the special needs of those children. It appears that at that time, the appellant was still not considered by FaCS as a viable alternative placement for the children in light of the stated inability of the foster carers at that time to provide long-term care.

99. However, by April 2014, the foster carers had changed their position in that regard. At that time, they advised FaCS that they were then in a position to provide long-term care for the children because they had changed their residential arrangements, and they had moved back into town: T188.20 – T189.6. The foster carers then indicated that they could therefore more easily attend the appointments the children were being increasingly required to attend.

100. Before the subject children were placed into their care, the foster carers had existing arrangements in which they had 3 other foster children on permanent placement in their home: T202.40. Those children also had special needs. With a total of 5 special needs children of varying ages in their care, the foster carers took the view that they did not intend to take any further emergency placements because at that time, they considered that their “cups [were] overflowing”: T203.18. I took that expression to mean the resources and coping abilities of the foster carers were being utilised at a level that was close to, if not at, their reasonable limits.

101. On 3 April 2014, following some internal administrative changes, FaCS outsourced or delegated to an accredited agency its day-to-day responsibility for the care of the children, including matters of assessment, case planning, monitoring, financial responsibility for placement costs and supports. That agency was and still remains, as the Youth Care United Protestant Association [“UPA”]: T27.34 – T27.46. Since that time, that organisation had been the contact point between FaCS and the foster carers.

102. The foster carer “F1” is in a relatively unique position. She holds a permanent part-time employment position with FaCS as a senior caseworker, working a flexible 7 day fortnight. She has a long history of professional experience in dealing with the demands of children with special needs: T131.17; T187.30; T203.7. Coincidentally, the foster carer “F1” and Ms Breitkreutz, who made the decision to remove the children and place them into care, have had an 8 – 9 year acquaintanceship as professional colleagues: T131.20.

103. Ms Breitkreutz observed that once the children went into care, there has been a radical improvement in their condition and situation. She therefore believed that the observed improvement demonstrated that there must have been a chronic history of neglect and abuse: T107.18; T114.10 – T114.20. Having regard to later emerging expert evidence, including from Ms Lyons, to the effect that the delays in the children were not entirely due to neglect but environmental factors could also be influential (T356.24 – T356.44), that initial view held by Ms Breitkreutz turned out to be overly simplistic.

104. In June 2014, FaCS appointed the Children’s Court clinician and psychologist, Ms R Lyons, to undertake an assessment of the children. On 23 June 2014, in undertaking her professional assessment, Ms Lyons sought out some initial input from Ms Breitkreutz through a telephone call that Ms Lyons had initiated: T84.20 – T84.25; T85.20. Those events, and their significance to the issues in the appeal, will be examined in closer detail in the consideration of those issues.

105. In the lead-up to the final hearing in the Children’s Court there were a significant number of other medical and allied appointments directed at ascertaining the condition of health and development of each of the children. It is not necessary to here review all of those matters as they are adequately summarised in the chronology prepared by Ms Smith: MFI “3”.

106. The effect of the passage of time during which the children have been in the care of “F1” and “F2”, and also as a result of both medical and allied investigations, as well as the good care that has been afforded to the children by the foster carers, an increasing awareness has emerged of the extent of the developmental problems and delays that have affected each child.

107. On 1 August 2014, FaCS prepared a care plan for the children that envisaged that the Minister would have parental responsibility for the children until they reached the age of 18 years. That plan envisaged that the children would remain with the current foster carers.

108. On 25 September 2014, the Children’s Court clinician, Ms Lyons, undertook her second assessment and prepared her second report, which was based on the same assumptions upon which her first report was based: T349.14 – T349.20. The appellant was not interviewed by Ms Lyons for the purpose of that second report.

109. On 20 October 2014, in the context of the Children’s Court proceedings listed on that date, FaCS prepared and filed an amended care plan in which it was concluded that there was no realistic possibility of restoration of the children to the mother. In that context, a number of contact proposals were identified for the children to have contact with their birth family.

110. At that time, the appellant grandmother was inadequately prepared with evidence to meet the case brought by FaCS which she was seeking to resist. She was naive as to the legal process, and the case prepared on her behalf (by different legal representation to that which the appellant had in this appeal) was unpersuasive. At that time she was therefore unsuccessful in her endeavours to seek parental responsibility for the children.

111. Therefore, on 21 October 2014, the Children’s Court made the orders which are the subject of the present appeal, by which parental responsibility for the children was allocated to the Minister until they reached their respective ages of majority.

Fourth period – 21 October 2014 to date

112. Following the appellant’s distress at the outcome of the Children’s Court proceedings, she filed the present appeal by which she sought to have parental responsibility for the children allocated to her in lieu of the orders made by the Children’s Court on 21 October 2014.

113. In conformity with the orders and care plan currently in place since 21 October 2014, the appellant’s contact with the children has been significantly restricted to a monthly one hour supervised visit. As the appellant lived on the Central Coast until January 2015, she was not able to fully exercise her contact rights due to geographic problems. Some of the contacts therefore had to proceed through limited telephone calls.

114. At the limited number of contact visits that the appellant was able to attend, she had been under the close scrutiny of FaCS or UPA support workers, whose notes were used in these proceedings to seek to disentitle her, and to seek to undermine the viability of her standing as a potential alternative placement for the children. In my view, the criticisms of the appellant based on the content of those notes were themselves aptly summarised by counsel representing the children, as being petty in their nature, and of little probative weight, and not truly indicative of the appellant’s parenting capacities.

115. In the lead-up to the present appeal, the appellant sought the professional assistance of her treating clinical psychologist, Dr Koehler, whose first report, dated 16 January 2015, had been preceded by a series of about seven professional consultations he had with the appellant. In the lead-up to the appeal, Dr Koehler provided his second report, dated 28 July 2015.

116. In the meantime, in May 2015, the foster carers filed an application for parental responsibility for the children to be allocated to them along with guardianship of the children: Exhibit “1”, Tab 28, p 1101. By that event, the foster parents took an adversarial position to that of the appellant maternal grandmother. They sought guardianship at that time in order to place themselves in a position to better control the arrangements without restraints being imposed by FaCS and UPA: T201.22 – T201.29.

117. Although the guardianship application by the foster parents was later abandoned in the lead-up to the hearing of the appeal, the foster parents nevertheless continued to instruct their solicitor to actively resist the orders sought by the appellant. In that regard, the solicitor for the foster parents took an adversarial role in challenging the suitability of the appellant to assume the care and parental responsibility of the children.

118. It is sufficient to here state my finding that those challenges made on behalf of the foster carers were non-substantive, ineffectual, and drew upon irrelevant matters, including the appellant’s remotely distant health issues that had long since passed.

119. Also in the lead-up to the hearing of the appeal, on 31 July 2015, FaCS obtained a third report from Ms Lyons. It is clear that Ms Lyons intended for all of her reports be read together: Exhibit “1”, Tab 24, p 1091. Her third report had its factual foundations in her two earlier reports. Her latest assessment was also aided by observations she had made of the appellant with the children at an interview on 20 July 2015, followed by observations that were made at a scrutinised contact visit at a ten pin bowling centre for 1 hour on the same day: Exhibit “1”, Ta 24, p 1091.

120. In her third report, which followed her second assessment of the appellant, the recommendation of Ms Lyons was for confirmation of the previous orders for the children to remain under the parental care of the Minister until the age of 18 years, and for the children to remain in the current placement with the present foster carers.

121. Those reports, and the supplementary oral evidence given by those experts, will be analysed shortly.

Review and evaluation of the oral evidence

122. In the paragraphs that follow, before considering the questions for determination, I set out my review and commentary upon the oral evidence that was given by the respective witnesses in the order in which they gave their evidence. Where those witnesses had provided affidavit evidence, those affidavits will be identified. The review of the oral evidence conveniently commences with the evidence of Ms Breitkreutz.

Evidence of Ms Grace Breitkreutz – FaCS caseworker / manager

123. Ms Grace Breitkreutz was the chief witness called by FaCS. Her evidence was extensive: T27 – T164. She is the manager of the Ballina office of FaCS. Ms Breitkreutz has had personal management of the involvement of FaCS in the care of the children: T44.15. Her involvement commenced in about August 2013: T106.36.

124. Ms Breitkreutz was the FaCS officer who was instrumental in removing the children and in placing them in the emergency care with the present foster carers. At that time, her working hypothesis was that the children had been subjected to chronic neglect going back to their days on the Central Coast: T82.36; T116.44.

125. That working hypothesis assumed that there had been an uninterrupted continuum of neglect. Insofar as Ms Breitkreutz sought to inculpate the appellant as having responsibility for that neglect, that working hypothesis was later shown to be incorrect.

126. In her managerial capacity, Ms Breitkreutz has overseen and supervised the casework in relation to the children “B” and “C” since they were taken into care on 28 November 2013: T27.8 – T27.10. Her interventions drew upon the contents of the earlier files and reports from the Wyong office of FaCS before her own involvement in the case, which had been since August 2013: T43.38.

127. The initial evidence of Ms Breitkreutz was contained in her successive affidavits which were respectively affirmed on 18 December 2013, 30 April 2015 and 30 September 2015: Exhibit “1”, Tab 17, pp 531 – 820; Tab 9, pp 143 – 212; and Tab 9, pp 213 – 347.

128. Ms Breitkreutz’s affidavits annexed the principal FaCS records, health and development assessments and other documentation relating to the children. Her affidavits also annexed voluminous documentation concerning contact arrangements and supervision notes, including in relation to the appellant. The salient features of that documentation were exposed to scrutiny in the course of the oral evidence.

129. In the course of Ms Breitkreutz’s evidence it transpired that she is a longstanding professional colleague of the foster carer “F1”, who is also a senior FaCS case worker in permanent part-time employment 7 days per fortnight with the Lismore office of FaCS.

130. Ms Breitkreutz confirmed that the placement of the children with “F1”, and “F2”, has resulted in the appellant’s contact with her maternal grandchildren had been limited to a maximum of 1 hour per month until the present time: T28.46 – T29.1. Those arrangements also resulted in “D”, the father of “B”, having 4 contact visits per year with his daughter: T31.49.

131. At the outset of the care arrangements, it was Ms Breitkreutz who decided that the care of the children was not to be placed with the appellant: T33.3. Her decision in that regard was informed by her consideration of the historical FaCS records and reports that were then available to her. That decision has to be viewed in light of the appellant’s contention that Ms Breitkreutz had misread the records: T71.18 – T71.34; T58.27.

132. It is plain that at a very early stage after the children had been taken into care, Ms Breitkreutz had formed the view that the appellant lacked insight into the consequences of the neglect on the children: T33.7. It appears that view was based on the assumption that the appellant had an historical causative role in the neglect of the children.

133. Ms Breitkreutz explained that initially, and before she obtained a clinician’s assessment, she had not formed any firm views about the suitability of the appellant to care for the children: T83.32. However, she said she ultimately formed the view that the appellant was unsuited to that role, and until she formed that view, she had not considered the appellant as an appropriate placement to care for her grandchildren.

123. As has already been observed, during the hearing of the appeal, Ms Breitkreutz adamantly maintained that view throughout: T33.10. In expressing that view, Ms Breitkreutz considered that the children’s problems when they were taken into care were due to severe neglect, although she later conceded that other factors also played a part in the aetiology of those problems: T33.26; T83.6.

124. Whilst neglect undoubtedly played a large part, as had become apparent following specialist investigations and testing of the children, those problems seem to have also been due to an admixture of the neglect that was evident when the children had been taken into care, and the effects of the later emergent developmental delays that could not all be attributed to neglect alone.

125. However, Ms Breitkreutz justified her views concerning the claimed role of the appellant on the basis of her opinion that the cause of the deficits in the children were due to chronic neglect rather than being due to organic causes: T47.35 – T48.45. In stating that view, she sought to blame the appellant’s claimed lack of insight into the “severe neglect that led to the children’s delays”: T49.5.

126. In my assessment, that view did not reflect the fact that the relevant periods of neglect took place at times when the appellant did not have access to her daughter and to the children because of the conduct of “D”, by which the appellant had been excluded from contact with the children.

127. Therefore, in that context, Ms Breitkreutz’s evidence of her concerns that the appellant “doesn’t fully appreciate or understand all of the things that led to the children being as delayed as they are” must be tempered with the fact that the appellant had been substantially excluded from contact with the children, and had little opportunity to obtain relevant information in those early days: T49.6; T49.47 – T49.50. The appellant was not in a position to know “all” such things, as was assumed by Ms Breitkreutz. It follows that Ms Breitkreutz’s views in that regard, were not adequately informed by the facts.

128. In that context, and as a result of her views, which had become solidified over time, Ms Breitkreutz continued to consider the appellant to be an inappropriate alternative carer to the natural mother: T33.39 – T34.50. That view was based on her stated and consistently held concerns and beliefs as to the appellant’s role in the history of neglect of the children. She also based her views on the expert opinion of the clinician, Ms Lyons and the departmental contact reports: T35.4, T41.10 and following.

129. In my view, the position of Ms Breitkreutz in that regard was problematic as Ms Lyons appears to have accepted Ms Breitkreutz’s views as a basis for her analysis, and in turn revalidated those views back to Ms Breitkreutz in a circular fashion.

130. When Ms Lyons contacted Ms Breitkreutz at the outset of her assessment, she provided Ms Lyons with examples of her own concerns, such as an incident involving the child “C” having dislocated or pulled an elbow. As became apparent, in cross-examination on exposure of the true circumstances of that matter, Ms Breitkreutz, later recanted her concerns regarding the pulled elbow incident. However, those earlier views continued to influence those of Ms Lyons.

131. The opinions of Ms Lyons will be the subject of a separate analysis. For present purposes, it is sufficient to state that in my analysis, the assessments and opinions of Ms Lyons were, in this case, relevantly flawed due to the assumptions she had made about the appellant’s role in the neglect.

132. Ms Breitkreutz’s preliminary concerns over the appellant’s understanding of the effects of neglect on the children was said to be a tentative view she held pending the receipt of the clinician’s report, and she said she only concluded the appellant was in her opinion unsuitable, after she had received the report from Ms Lyons: T86.40; T88.40. However, that process had become circular, and it was therefore problematic.

133. Ms Breitkreutz’s opinion to the effect that the appellant lacked relevant insight came from the concerns she held regarding the appellant: T91.27. The justification for those concerns is a question of fact to be determined.

134. A key disputed factual matter in that regard was Ms Breitkreutz’s concern, which she expressed to Ms Lyons prior to her assessment, as to the appropriateness of the appellant’s decision not to take the eldest child “C” to hospital following the dislocation of her elbow: T84.28; T93.46. When Ms Breitkreutz was cross-examined on that matter, it became plain that her concern in that regard was overstated and ill-founded, as the appellant had in fact sought medical assistance from an ambulance officer, who reduced the pulled elbow without the need for further medical attention.

135. When those matters were pointed out, Ms Breitkreutz ultimately conceded that on a consideration of a more accurate rendition of the factual circumstances, the appellant had acted correctly in that instance, and that the prior criticism she had made of the appellant in connection with the elbow injury should be withdrawn: T93.41 – T97.24. However, the earlier non-withdrawn view had already been exposed to Ms Lyons, and it had an influence on the assumptions made by Ms Lyons when she formed her opinions on that matter.

136. When her evidence was tested, Ms Breitkreutz agreed that the appellant had consistently exhibited concern over not only her daughter, but also her granddaughters, and that this demonstrated a measure of insight on the part of the appellant: T129.41 – T130.6. Ms Breitkreutz also conceded that FaCS did not have concerns that the appellant would herself physically abuse the children: T138.26. Furthermore, Ms Breitkreutz agreed that the appellant was to be regarded as “safe hands” from the viewpoint of ensuring that the children would not be exposed to domestic violence, or to household drug and alcohol abuse: T143.19 – T143.42.

137. Nevertheless, Ms Breitkreutz remained concerned that, without support, the appellant “wouldn’t necessarily be able to meet [the children’s] needs”: T141.2. In my view, that evidence must be recognised as not rising above speculation as Ms Breitkreutz was not able to identify any evidence to suggest that the appellant would neglect the children’s needs: T140.49 – T141.7. In that regard, Ms Breitkreutz indicated that if necessary, FaCS would provide the appellant with some support to ensure that there was appropriate access to services, including therapeutic services if required: T141.10 – T141.15; T142.6.

138. The concerns and opinions outlined by Ms Breitkreutz were also said to have been based on her review of the historical case reports within the FaCS files. In my assessment, her views were based on conflated perspectives, and a misreading of the factual matters in the files which has led her to the view the appellant was unable to cope with the needs of the children.

139. In my view, Ms Breitkreutz’s views also took into account extraneous matters. It is not necessary to cite all the examples of that position when a few such examples will suffice: T35.1 – T35.14 (repeated unsupported claims of lack of insight); T35.24 – T35.39 (conflation of the mother of the children being stressed with the claim of the appellant being stressed); T37.14 – T37.17 (reliance on concerns exposed as being unsupported in a contact report over the appellant’s ability to cope with two children in her care).

140. Significantly, on a number of occasions during her evidence in answer to questions asked in cross-examination, Ms Breitkreutz acknowledged and conceded that her evidence in which she stated the appellant demonstrated a lack of insight into the neglect and abuse that was causing problems to the children, was based on a misreading of the records, and that her earlier stated reading of the records was not open to her on the available documents: T71.18 – T71.34; T58.27.

141. On the issue of the appellant’s insight into the plight of the children before they were taken into care, when Ms Breitkreutz’s attention was drawn to the pattern of the appellant’s reports to FaCS over the welfare of the children, Ms Breitkreutz ultimately conceded that a proper reading of the records shows the appellant had been a consistent reporter to FaCS regarding the concerning circumstances of the children: T57.10 – T57.21. Furthermore, she conceded that the appellant’s reports to FaCS concerning her suspicions over the “very bad” circumstances of the children turned out to be “dead right”: T57.26. In my view, those matters suggest that Ms Breitkreutz’s assessments of the appellant’s insight were incorrect.

142. Some of Ms Breitkreutz’s cited concessions in that regard were made with some reluctance: T58.14 – T58.28.

143. Given the concessions made by Ms Breitkreutz, and the significance of those to the question of how the appellant should be viewed in terms of her fitness to take on the tasks of parental responsibility for the children, I consider that the position taken by FaCS in the proceedings generally should be viewed with considerable caution before acceptance.

144. I accept the submission of the children’s independent representative that when the factual basis of Ms Breitkreutz’s concerns over the appellant’s present fitness to assume parental responsibility for the children are examined, they should be seen to have been largely based on relatively petty, or minor non-substantive descriptions of concerns raised by contact support workers at contact visits, which were artificial and not fairly illustrative or definitive of the appellant’s capacities as a carer.

145. In my view, that analysis is confirmed by Ms Breitkreutz’s concession that her concerns in that regard on differences of opinion that were reasonably open as to how the children should be cared for, were of a relatively low and comparatively insignificant order, and were compounded by the circumstances of a lack of adequate communication with the appellant: T51.6 – T51.35.

146. It also became evident that Ms Breitkreutz’s assumption to the effect that the appellant struggled and had a lack of insight to the needs of the children was based on an incomplete analysis. In that regard, Ms Breitkreutz relied upon the observation of a contact support worker at a contact visit to the effect that the appellant struggled and became tense when the youngest child experienced distress: T51.50. When that matter was more closely examined in the evidence, it became evident that such observations needed to be tempered by the reality that the appellant knew she was being scrutinised in circumstances that were artificial, and this could have been a contributing factor that did not appear to have been taken into account in the contact report: T52.10.

147. It is also important to recognise that the observations of the contact support worker in that setting took place in the circumstances of a limited one hour session with the children in a fenced play area in a park, in poor weather conditions, where the appellant had picked up on the fact that the youngest child was unwell, and where the appellant had thought that child should not have been there. Those circumstances apparently resulted in an unexpected change to an indoor venue, which undoubtedly caused some disruption to the visit and to the assessment. The contact observer had remarked that when the child had become distressed, the appellant tried to soothe her, which resulted in the child responding by arching her back: T51.45 – T52.41. The appellant provided a different and credible explanatory description of that event.

148. In my view that criticism of the appellant’s insights and coping abilities in the setting described were one-sided and lacked an appropriate balance in the sense that only a subjective narrow interpretation was initially proffered, and the comments were unreasonably hypercritical of the appellant, and involved no input or explanation from the appellant. In that sense, the comments were unfair as a basis of judgment of her capacities.

149. Ms Breitkreutz agreed that the appellant was without question, resourceful and committed to her grandchildren: T150.42. However, Ms Breitkreutz still maintained her doubt over the appellant’s capacity to care for the children: T151.32. She based that view on the FaCS contact reports as her sole source of information: T152.11. In my view, that position taken by Ms Breitkreutz was based on meagre and unsound evidence insofar as it related to the appellant, to say the least. This raised significant doubts over the reliability of Ms Breitkreutz’s evidence insofar as she made criticisms of the appellant.

150. The assumptions made by Ms Breitkreutz made little allowance for the undoubtedly stressful circumstances that applied to the appellant at the times when contact support workers made their judgments on the appellant’s coping skills in circumstances of artificiality when she was being scrutinised: T52.8. Furthermore, as already observed, the petty and unreasonable adverse judgments were made of the appellant’s coping skills at a time when one of the children was unwell at a supervised contact visit at which the appellant was being judged: T53.31. In the circumstances, I consider that the critical comments relied upon by FaCS were unfair.

151. On the question of the appellant’s insight into the earlier plight of the children, I consider that the critical content of Ms Breitkreutz’s evidence had the effect of understating the significance, force and the effect, of the appellant’s serial historical reports to FaCS regarding her concerns over the safety and wellbeing of the children: T55.35 – T57.21. This was in circumstances where the appellant’s concerns as communicated to FaCS turned out to be entirely justified: T57.27.

152. I consider that the general tenor of the evidence of Ms Breitkreutz did not include due acknowledgment of the appellant’s motivations behind her communicated concerns to FaCS over the domestic situation of the children: T68.45 – T70.14. In that regard, the concessions Ms Breitkreutz ultimately made were reluctant, were not fully reflective of the historical records, and were based on questionable judgments she had made about the appellant: T70.26.

153. After making due allowance for the fact that the primary duty of Ms Breitkreutz was to assiduously consider the safety and welfare of the children, and to be an advocate in that cause (T81.21) it was nevertheless of concern that she was reluctant to make due concessions on relevant matters: T58.1 – T58.28. In that regard, I considered that the concessions she did make were unreasonably guarded: T61.36; T91.49; T96.48 – T97.24.

154. In one instance, Ms Breitkreutz’s evidence appeared to be contradictory. She was of the view that the developmental delay exhibited by the children was due to neglect: T33.26. In contrast, she also acknowledged that the cause of developmental delay is not always known: T72.7. She believed that at the time the children were taken into care, they were not getting the stimulation they needed: T72.19. She also acknowledged that the criticisms being directed at the appellant on such environmental factors, such as the need for the children to have stimulation, could equally apply to FaCS, where the appellant was seeking guidance from the department on such matters, and that the requirements of FaCS had been fulfilled at the time. In the circumstances, where Ms Breitkreutz considered that the children were not getting the stimulation they needed (T72.19) this was hardly the fault of the appellant, where she had been denied contact with the children by “D”. For the reasons I have stated, I consider that the appellant has been unfairly criticised in that regard: T72.19 – T72.50.

155. On the subject of neglecting the needs of the children, in this case, FaCS itself is not immune from criticism. Whilst the position of the department was in loco parentis, a medical issue concerning genetic testing of the child “B” emerged when that child was aged 3 years.

156. It remains unexplained as to why it took the department some 4 months to arrange for the appropriate genetic screening to be undertaken: T136.1 – T136.30. In that regard Ms Breitkreutz, the FaCS case manager in charge, said she could not exclude neglect as having occurred on the department’s watch: T136.28. A delay of testing for 4 months in the case of a 3 year old child is a long time for unresolved diagnostic questions and doubts to remain outstanding on matters relating to developmental delay where treatment and management plans for early intervention to address such matters hinge on the results of such testing.

157. Significantly, Ms Breitkreutz acknowledged that on the question of the causes of the developmental delay of the children, FaCS had made wrong judgments: T78.48. In those circumstances, she ultimately acknowledged that it was difficult to criticise the appellant on matters of insight: T79.4 – T80.2. In my view this required a fundamental reconsideration of the forensic position adopted by FaCS as one of the essential planks in the position that FaCS was seeking to maintain was destroyed.

158. With some considerable reluctance and hesitation, Ms Breitkreutz ultimately agreed that she could not point to any evidence that the appellant had in any material way been resistant to the requirements of FaCS: T73.1 – T74.15. In fact, at the outset of the concerns that had been expressed by FaCS, the appellant had expressed her desire to care for the children at the time when they were removed from parental care: T77.47.

159. Significantly, at the time the children were removed from their parents, Ms Breitkreutz had not formed a clear view on the question of whether the appellant as a suitable alternative carer. Instead, Ms Breitkreutz ultimately relied upon the circularity of the assessment by the Children’s Court clinician as to the issue of the appellant’s suitability to care for the children: T81.1 – T81.17. FaCS seems to have based its position on the opinions of that clinician, Ms Lyons, which were given some 7 months after the children were taken into care. That period of 7 months seems to have been an inordinately long time to leave unclarified, the appellant’s suitability as a carer for her grandchildren. As already foreshadowed, the validity of the views of Ms Lyons will be considered in a separate analysis.

160. In the overall circumstances of the case, no-one in authority at FaCS seems to have picked up on the circularity of the claimed view that the appellant was unsuitable for the role of carer. In my view, in the context of considering the human rights of those affected, where the placement and care of children are contentiously at stake, in the best interests of children, and in the context of the known delays involved before an appeal can be heard, such matters should not proceed on a set and forget basis of decision-making without appropriate and periodical analytical review by FaCS.

161. This is because inevitable delays occur before an appeal can be heard, and where errors can be identified and corrected. The effect of such delays can be damaging to the children involved. It would seem that the FaCS review policy and related supervisory oversight procedures on such matters could be usefully reviewed.

Evidence of foster carer “F1”

173. The foster carer “F1” swore affidavits on 4 May 2015 and 1 October 2015: Exhibit “1”, Tab 11, pp 351 – 360 and Tab 13, pp 363 – 383. She also gave oral evidence: T169 – T205.

174. In the first of her affidavits, “F1” emphasised her own suitability as a carer of the children. The structure and the content of that affidavit was plainly adverse to the claim by the appellant, and was directed at the issue of the foster carers seeking to retain the long-term care of the children, and at that time, also seeking guardianship of the children.

175. In the second of her affidavits, “F1” commented critically on the content of the appellant’s affidavit evidence. Those comments will be considered in the evaluation of the evidence of the appellant.

Assistance from agencies

450. The objects of the Act are framed to ensure that persons other than parents who carry out child rearing responsibilities are rendered appropriate assistance in order to promote a safe and nurturing environment for the children: s 8(c) of the Act. That provision is non-discriminatory in its terms. The objects of the legislation specifically address the capacity of the responsible person to provide necessary care and protection.

451. As observed in paragraph [277] above, any assistance that might be expected to come from the National Disability Insurance Scheme will not accrue in the North Coast region until at least July 2017. Whatever assistance might be forthcoming from that scheme should be seen as being a neutral factor in this evaluation as such benefits would be available irrespective of the legal status of the case arrangements as decided by those proceedings: MFI “3”.

Attachment issues

452. Given the entrenched position of foster care over the past 2 years, the existing attachments, and the presence of attachment disorder, for the appellant to be allocated parental responsibility for the children, she would need to effect changes in her residential situation. This involves setting herself up with appropriate accommodation, and ancillary matters. In that regard a transition and transfer of the placement of the children would have to be managed with great care by all concerned, and this would have to be arranged as soon as is reasonably practicable, and with the assistance of FaCS, given what has occurred to date.

453. The issue of attachment is an important consideration in this case. There is no doubt that it is important to ensure that the children continue to develop stable attachments in their lives, including to persons providing them with care.

454. At present this is occurring with the foster carers. To the extent that the attachment of the children to the appellant is not as strong as the attachment that has developed with the foster carers over the past two years, this is not the fault of the appellant. This has arisen by force of the circumstances in which the appellant has had only very limited access to the children. Ms Lyons conceded this made it difficult for the appellant “to get to know the children well”: T361.50. I infer that with greater and appropriately structured contact in the very short term, properly managed, the attachment of the children to the appellant will appropriately increase.

455. Ms Lyons contended that in respect of the youngest child, the attachment to the appellant was not yet strong enough for the appellant to take over as the primary carer from the attachment to the current carer: T364.37. Both Dr Koehler and Ms Lyons agreed that reduced contact with the appellant has disrupted the earlier attachment that existed. However, they both agreed that in the event of a change of placement, although a degree of rupture to existing attachments might be expected, if positive support is given by all concerned, a strengthened positive contact with the appellant would increase an attachment to the appellant: T364.5 – T364.42.

456. Ms Lyons confirmed that a stable or secure attachment to a primary carer can be transferred to someone else relatively easily: T377.37 – T378.45. In their joint discussion in the evidence on that subject, Dr Koehler cautioned against the use of the term “broken attachment” as was raised by Ms Lyons at T377.38. Instead, Dr Koehler agreed that attachments could be ruptured or damaged, but only become broken in very rare and extreme cases. Ms Lyons offered no disagreement to that formulation: T378.45.

457. I infer from that discussion in the evidence, that the situation of the children would not preclude the development of a stable attachment between the children and the appellant, if the appellant were to be allocated parental responsibility for the children. I interpret Ms Lyon’s discussion about the possibility of the eldest child’s attachment disorder posing a vulnerability to breaking the present attachment to be only a theoretical discussion in light of Dr Koehler’s remarks, to which Ms Lyons ultimately offered no disagreement: T377.37 – T378.16; T378.45.

Possible placement breakdown

458. It is indisputable that if parental responsibility for the children were to be allocated to the appellant, and for whatever reason, that placement were to break down, such an event would unfortunately be damaging to the wellbeing of the children.

459. Whilst that factor must be recognised as a possibility in every case, here, the evidence tends to suggest this factor should be seen to be a theoretical one, which may therefore be characterised as one of the potential imponderables or vicissitudes of life. There is nothing in the evidence to suggest that such an occurrence is likely to arise in this case.

460. To the extent that the theoretical possibility arises for consideration, it must also be seen in the context of the objects of s 8 of the Act, and in light of the evidence that there are FaCS services that would be brought to bear, as described by Ms Breitkreutz, if such a prospect seemed likely or imminent: T141.11 – T141.15; T142.6. I therefore do not consider that the possibility of placement breakdown to be a substantive consideration in this case.

Statutory provisions

461. All of the foregoing considerations must be evaluated in light of the statutory provisions that apply to the issue of placement allocation in this case. The relevant sections of the Act that require consideration before final orders can be made are s 9, s10A and s 79.

Section 9(1) – paramount principle

462. In any decision concerning the children, consideration of the safety, welfare and wellbeing of the children is paramount: s 9(1) of the Act.

Section 9(2) – other relevant administrative principles

463. Although s 9(2)(c) of the Act provides that any decisions made pursuant to the Act that involve protective interventions must be the least intrusive, that provision has been interpreted as being limited in its application to decisions made at the time the children are removed and taken into care, and not to the time when later decisions are to be made following the removal of the children, where the issue is whether or not the existing care arrangements should be displaced: Re Tracey [2011] NSWCA 43, at [79].

464. Where children are to be deprived of their family environment, in their own best interests, the children are entitled to any special protection and assistance from the State: s 9(2)(d) of the Act. The aim of orders for permanent placement in out-of-home care is to ensure the provision of a safe, nurturing, stable and secure environment: s 9(2)(e) of the Act. Unless contraindicated, the interests of the children are considered to be best served by the retention of significant relationships, including in this case, extended family: s 9(2)(f) of the Act.

465. According to s 9(2)(g) of the Act, all decisions on such matters must also be guided by the statutory permanent placement principles embodied in s 10A of the Act.

Section 10A – permanent placement principles

466. In argument on behalf of the appellant, supported by the independent legal representative of the children, it was contended that since this appeal was filed after 29 October 2014, it is necessary to consider the permanent placement principles embodied in s 10A of the Act, as that section is engaged by the circumstances of this appeal. The section provides as follows:

10A Permanent placement principles

(1) In this Act:

"permanent placement" means a long-term placement following the removal of a 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 accordance 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,

(e) if it is not practicable or in the best interests of an Aboriginal or Torres Strait Islander child or young person to be placed in accordance with paragraph (a), (b) or (d), the last preference is for the child or young person to be adopted.

467. The appellant further contends that section becomes engaged in this case because the children have been removed from parental care: s 10A(1) of the Act. As a consequence, the objects of the Act embodied in s 8 of the Act, are also engaged, as are the paramount and placement principles respectively embodied in s 9(1) and s 10A(2) of the Act. The appellant further contended that those circumstances give rise to the need to apply the statutory hierarchy of permanent placement principles embodied in s 10A(3) of the Act.

468. The counter argument made on behalf of FaCS was that the provisions of s 10A of the Act are subservient to the paramount principle embodied in s 9(1) of the Act, and relate not to physical placement, but rather, to the allocation of parental responsibility, and only placement through that allocation. On behalf of FaCS it was further argued that s 10A of the Act is an irrelevant consideration in the present case because of the reference to guardianship in s 10A(b) of the Act, which engages s 79A of the Act concerning guardianship orders, whereas the present application concerns s 79, which relates to orders other than guardianship orders where parental responsibility is allocated.

469. The researches of the parties have not revealed any previous decisions which construe s 10A of the Act. There is one decision which makes only passing reference to s 10A without construing that provision: BQZ v Challenge Community Services [2015] NSWCATAD 92, at [82].

470. It is common ground that in this case, it is not practicable or in the best interests of the children for them to be placed with a parent or the parents. Therefore, on behalf of the appellant, it was argued that the second preference is for permanent placement of the children with a relative, namely the appellant maternal grandmother in accordance with the statutory hierarchy: s 10A(3)(b) of the Act.

471. The decision on where the children should be placed does not involve a competition between the foster carers and the appellant, but rather, involves the interpretation of the statutory provisions for permanent placement and a consideration of the best interests of the children.

472. The appellant's argument construing the effect of s 10A of the Act invoked the Minister's Second Reading Speech introduced into the NSW Legislative Assembly on 1 November 2013 to interpret that section: Exhibit "17". The relevant portion of that speech as relied upon by the appellant to indicate the intention of the legislature, is as follows:

“The principles of this bill reflect this Government's belief that ideally, a child will live safely at home with his or her parents and community services will work alongside the families to help them change. If children cannot live at safely home then the next best place for them is with family or kin – or in some circumstances with a non-relative carer – in a long-term, safe, nurturing, stable and secure placement. Where family or kin are unwilling and/or unable to assist then open adoption of the child should be considered and pursued. Open adoption offers a permanent home for life, with all the benefits this bestows on a child, including lifelong security and that precious sense of belonging.”

[Emphasis added]

473. Consequently, on behalf of the appellant, and supported by the independent legal representative of the children, it was argued that the intention of the legislation was to establish a statutory hierarchy to prioritise the placement of the children with family, without linking such a placement to circumstances involving guardianship.

474. There is no controversy that the maternal grandmother, is both a relative and the kin of the children within the meaning of sub-section (b) of s 10A(3) of the Act. The appellant contends that on a proper construction of the legislative intention of the statute, the permanent placement of the children should therefore be allocated to the appellant if the other required considerations, including the paramount considerations, are satisfied, namely whether the appellant is otherwise considered to be a suitable carer for the children, and that such a placement is in the best interests of the children.

475. The view that s 10A of the Act sets out a hierarchy for the placement of children in the defined circumstances is a compelling one. That view is supported by the extract of the Minister's Second Reading Speech as emphasised in paragraph [472] above.

476. Guided by the Minister’s Second Reading Speech, I find that the clear intention of the legislation as found in s 10A of the Act is that the first preference is for children to be returned to their parents, and where that is not possible, as is the case here, the next preference is for the children to be placed with family or kin, in accordance with the stated hierarchy, in this case being the appellant maternal grandmother, as provided by s 10A(3)(b) of the Act.

477. As there was no challenge to the order of the Children's Court to the effect that there is no reasonable prospect of restoration of the children to their parents, and as I am satisfied that an order to that effect was properly made on the evidence, the application of s 10A(3)(b) of the Act mandates that the children be placed with the appellant, subject of course to a consideration of the best interests of the children. The proposed final orders will therefore reflect that finding. I now turn to the consideration of those best interests.

Consideration of best interests of the children

478. Ultimately, the focus for analysis of the factors that determine which orders should be made in the appeal is the paramount consideration of the safety, welfare and wellbeing of the children: s 9(1) of the Act. That process embodies the concepts of necessity for the purposes of protection of the children, and the best interests of the children.

479. Whilst the children remain in the care of the present foster carers, they remain in a stable, caring and loving environment that has promoted the evolution of mutual attachments, not only between the children and the foster carers, but also the other children in the foster household. In that environment, they have access to all necessary health and educational interventions, and they are nurtured, both physically and emotionally.

480. One of the least disruptive of the placement options available to the Court in these proceedings is to make an order having the effect of simply leaving the present placement unaltered in the long-term, but to provide for expanded contact with the appellant maternal grandmother. In that way, the children would continue to thrive and grow up in a familiar household in which their needs, including their emotional and developmental needs, would continue to be met, they would continue to receive good care, and they would retain contact with and awareness of family.

481. Whilst that proposition appears on the surface to be a compelling argument, other counter-veiling considerations must also be accommodated, foremost amongst them being the mandatory requirements of s 10A(3)(b) of the Act.

482. The appellant maternal grandmother is the person of focus for the family identity of the children. Preservation of family is recognised as being an important consideration: T164.5. The appellant is a stable person, and subject to other factors already considered being adequately accommodated, she would be a stabilising influence in the lives of the children. The appellant has the appropriate attitude towards placing herself in a position to providing the children with appropriate care, attention and assistance. It seems highly likely this will most probably be achieved once her accommodation situation has been resolved following this appeal.

483. Obviously, the appellant is not as experienced or as established as the foster carers in meeting the needs of children with special needs because of the very limited contact she has had with the children since they were taken into care. However, the required evaluative exercise should not necessarily be seen as a competition between the foster carers and the appellant. The matter must be determined justly, and with the statutory considerations firmly in mind. The foster carers are not the children’s biological family within the meaning of s 10A(3)(b) of the Act.

484. Furthermore, it is plain that in their hectic household, the foster carers must divide their time, attention and resources, to the three other children in their house, including the demands of the special needs of those children. Whilst the efforts of the foster carers in meeting those needs have to date been exceptional and commendable, it must also be recognised that such needs are likely to continue to expand as the children grow older.

485. In contrast, the appellant is a family member who shows genuine concern for the children. This gives her some considerable grounding and traction in the analysis. Furthermore, it is unlikely that the appellant will have a household that is “hectic” (T205.20), “busy” (Exhibit “1”, Tab 28, p 1098, par 61) and where her “cups are overflowing” (T203.18), with the care needs of 5 (although soon to become 4) children, as is the case with the foster carers. In those circumstances, the appellant is likely to have more available time to attend to the needs of the children, as would be expected from a loving grandmother providing parental care and responsibility in loco parentis.

486. In my view, those considerations, including s 10A(3)(b) of the Act, serve to tip the scales heavily in favour of placement of the children with the maternal grandmother. However, before reaching a concluded view on the matter of placement, as appears in the paragraphs that follow, another important consideration has arisen in the evidence given in the appeal.

487. If the present placement position were to remain, it would appear that a significant disadvantage to the children arises from the difficulty the foster carers have identified and expressed concerning the poor prospects of them maintaining a respectful relationship with the maternal grandmother.

488. That position has become entrenched due to communication difficulties, and, it appears, some hypersensitivity on the part of “F1” to concerns or suggestions made by the appellant. The agency UPA, and by inference, FaCS, has allowed this difficulty to worsen by facilitating the erection of buffers and communication barriers against the maternal grandmother to limit her attempts to be involved with the children. This has had the effect of stemming the flow of ordinarily expected information to the appellant about the children, including about their special needs and required therapies.

478. That position is unacceptable, and should not have been allowed to continue, and to worsen to the point that has been reached, as described in the evidence.

479. In that regard, the failure to consider mediation of that problem until now tellingly indicates that there is little likelihood the problem will resolve in the short term. Ms Breitkreutz’s optimistic expectation for the communication difficulties that have arisen between the foster carers and the appellant to recede (T159.19 – T159.25) should be seen as just that, namely optimistic expectation, without realistic foundations.

480. The evidence does not suggest confidence that there will be a material change because of the nature of the opposing interests in that regard. I gained that impression from the general tenor and outburst of emotion expressed in the evidence of “F1”, for example, at T201.24, when she referred to her earlier motivation for seeking guardianship of the children. It is plain that the communication problem between the foster carers and the appellant is laden with emotion on the part of the foster carers.

481. In my assessment, an ongoing lack of respectful relations as described seems to be a one way problem, namely, from the foster carers towards the appellant. I am satisfied that is based on hypersensitivity on the part of “F1” (T197.22 – T197.23), and because of miscommunication or misunderstanding over the appellant’s motivation concerning her need, and indeed her right, to have input and feedback concerning her grandchildren: T275.8 – T275.10. The result has been a mischaracterisation of the appellant’s expressed concerns, labelling them as complaints, as observed at paragraphs [191] and [192] above, and which has resulted in the erection of barriers to communication aimed at limiting the involvement of the appellant in the lives of the children.

482. That attitude should not be allowed to permeate into the placement and care arrangements of the children. It has the unfortunate effect of tending to undermine the relationship of the children with their grandmother, either directly or indirectly. This is so particularly where “F1” has ultimately conceded that the appellant had a right to the information and involvement she was seeking, and that right had to be respected: T198.13 – T198.25.

483. In my view, in the best interests of the children, the most appropriate way of managing that communication problem seems to be to neutralise it by placing the children with the appellant pursuant to s 10A(3)(b) of the Act, subject to other factors being satisfied. That approach would remove the present layers of difficulty comprising the entrenched positions adopted by FaCS, UPA, and the foster carers, on the communication and respect issues affecting the foster carers’ relations with the appellant.

484. I therefore consider that the best interests of the children would be most appropriately served by preserving the family relationship with the appellant maternal grandmother and allocating parental responsibility to her, subject to some necessary safeguards in the best interests of the children: s 10A(3)(b) and s 79 of the Act.

Flexibility and safeguards

496. The legislative provisions that enable the allocation of parental responsibility permit a wide range of options aimed at providing for the best interests of the children: s 79(1) of the Act. The legislation also permits flexibility in the allocation of different aspects of parental responsibility: s 79(2) of the Act.

497. In my view, in this case, given what has transpired during the placement of the children with the foster carers in the previous two years, where the appellant has been significantly limited in terms of her involvement with the children as they have grown and developed, there should be some short term flexibility and safeguards incorporated into the arrangements for the care of the children.

498. In arriving at that view I do not intend any criticism of the excellent care the foster carers have otherwise provided to the children. Nor do I intend to express doubts over the motivations or the capacity of the appellant.

499. I consider that the provision of flexibility and safeguards in the arrangements is best achieved by an arrangement whereby the Minister continues to have sole parental responsibility for a relatively short period of transition, and then for the appellant maternal grandmother and the Minister to have different aspects of parental responsibility for the children allocated to them for a reasonable period, followed by sole allocation of parental responsibility to the appellant as is permitted by s 79(1)(e) of the Act.

500. I consider that an arrangement of that kind, would be fair, just and in the paramount best interests of the children, and would be best achieved by the appellant being allocated all aspects of parental responsibility for the children until they reach the respective ages of 18 years, except that the medical, dental and allied treatment needs of the children should be allocated to the Minister for a limited period of 3 years.

501. In my view, that course is justified on the facts of this case because:

1. The children have been diagnosed with global developmental delays which, to differing degrees, will continue to need structured medical and allied therapies, and interventions, especially in the short term, and the appellant will need assistance with the gradual and effective hand-over of responsibility for those matters;

2. Those therapies and interventions will require co-ordinated and skilled monitoring over time, including with regard to interactions with therapy providers and educational institutions;

3. As the appellant has to date been erroneously excluded from involvement in such matters, due to absence of fault on her part, it will be important to ensure appropriate continuity of care for the children, especially as the appellant will need time to catch-up on such matters. This will be best achieved with a limited degree of departmental involvement and oversight on matters involving medical, dental and allied therapies. I consider a period of 3 years to be reasonable in that regard;

4. The above requirements will involve the allocation and co-ordination of resources that are, in the short-term, likely to be beyond the immediate organisational abilities of the appellant. She will need to establish suitable accommodation and to consolidate a stable domestic regime. This may be difficult for her without the provision of outside assistance from the resources available to the Minister. In the circumstances of this case, where a misreading of the FaCS files has caused the appellant to be marginalised in the extent of her contact with the children, in the interests of the children, in order to counteract the effects of those circumstances, it is appropriate that such assistance be given to the appellant;

5. If left only to her own means, the appellant will most likely take some time to become fully adept at ensuring the therapy needs of the children are adequately met. That period of time is difficult to predict. In those circumstances, the present needs of the children should not be held back by delays due to the consequences of the appellant having to pursue a learning curve to catch-up on such matters;

6. It will be necessary to maintain periodic skilled independent medical and allied therapeutic contact between the children and the already appointed practitioners. Maintaining ready access for all concerned to FaCS, if needed for a time, will in the circumstances serve to provide a significant measure to safeguard the best interests of the children, especially given that the effects and impact of global developmental delays are likely to change whilst the new regime is implemented;

7. Monitored maintenance of the health of the children will be a key factor in ensuring their paramount interests will continue to be best served.

502. The course proposed in these reasons, as set out in paragraph [500] above, is one that is anticipated and permitted by the legislation: s 79(1)(e) and s 79(2)(e) of the Act.

503. In proposing that course, I consider that it is consistent with the permanent placement principles embodied in s 10A of the Act. This course would be far more preferable than making a guardianship order in respect of the children pursuant to s 79A of the Act: s 79(3) and (4) of the Act.

504. I consider that the contemplated regime ought to be co-operatively workable in the best interests of the children: s 79(8) of the Act. I take that view because I accept the appellant’s evidence that her priority is the best interests of the children. That reassurance, taken together with the coincidental statutory obligation on the delegate of the Minister to observe the same interests, is a significant safeguard. There ought to be no conflict on that matter.

505. Furthermore, I consider that the proposal I have identified, has within it an inherent safeguard mechanism for the children because, in the event of a relevant disagreement between the appellant and the Minister on any matter of treatment over the course of the next 3 years, in the absence of agreement, any such dispute may be resolved by invoking the supervisory jurisdiction of the Children’s Court, if that is required: s 79(7) of the Act.

506. As the specific notion of a 3 year period of allocation of joint parental responsibility in the divided aspects, as outlined in paragraph [500] above has not been directly canvassed in the submissions of the appellant, the department or on behalf of the children, before final orders are made, those parties should have the opportunity of considering that proposal, and responding with such submissions as they may wish to make on that topic, before final orders are made.

507. There appears to be an array of other options.

508. One such option would seem to be for the duration of the envisaged joint arrangement to be restricted to a relatively short settling-in or transition period, but to also allow for a sufficient additional period to provide confidence that stability of hand-over and continuity of assessment, therapies, interventions, and for adequate oversight on those matters, until a stable regime has been satisfactorily established.

509. Another option would be to allocate to the Minister the responsibility for the medical and allied issues until the children reach the respective ages of 18 years, but for the appellant to be allocated all other aspects of parental responsibility.

510. These are matters the parties need to consider, consult upon and to possibly seek expert guidance, before making submissions in respect of final orders.

511. The arrangement I have proposed should not disadvantage the appellant or the children in the meantime. This is because in the anticipated transition arrangements, until final orders are made, the present responsibility vesting in the Minister will continue in the best interests of the children, although it is expected that in the coming days the appellant will be given significantly increased contact and care opportunities in preparation for her to ultimately assume the day-to-day charge of the children.

512. In the meantime, during the transition of the children to the appellant’s care, in the background, the identified issue involving the duration of the Minister’s involvement should be capable of being resolved by consent. If there is a dispute, the matter may be relisted on short notice for further evidence and argument on that limited matter, should that course become necessary.

513. In the meantime, transition planning and a new permanency plan should now proceed forthwith, consistent with these reasons, and subject to the further submissions of the parties.

Proposed care plan

514. As foreshadowed at sub-paragraph (5) of paragraph [38] above, the central question is whether the proposed placement and care plan proposed by FaCS should be approved. It is plain from the foregoing reasons, that plan is not approved. A fresh permanency plan is therefore required.

Transition and support issues

515. The expert evidence in this case, and the lay evidence which identifies the communication difficulties that have arisen between the foster carers and the appellant maternal grandmother in the context of their respective competing interests, indicates that in the best interests of the children, careful expert attention and assistance needs to be applied to the transition arrangements that have become necessary as a result of my findings and the proposed consequential orders. The expectation is that the parties will fully co-operate on those matters so that effective final orders may be made as soon as practicable.

516. The starting point is for the appellant to have more liberal contact with the children as soon as can be practically arranged whilst she seeks to secure suitable accommodation. If it is at all possible, to speed the process of the appellant securing suitable accommodation, it would be helpful if, at a high level of inter-departmental co-operation, FaCS could liaise with the Department of Housing to assist the appellant to promptly secure suitable housing in the interests of facilitating an early transition and transfer of care of the children, especially before the new school year.

517. Whilst it is well understood these remarks cannot bind the public officials whose function it is to deal with the high demand in the community for priority allocation of public housing, it is plain that there is a high moral imperative and burden on FaCS to assist with whatever can reasonably be done in that regard, given that the initial misreading of the FaCS file has compounded the problem of the appellant’s present situation, and which has led to this appeal. If FaCS were able to secure such an intervention in the best interests of the children, this may go some way towards redressing the consequential difficulties that have arisen from those initial mis-readings and assessment errors.

518. It would also be in the best interests of the children if the transition to placement with the appellant were to occur as quickly as reasonably possible. Whilst appreciating some of the administrative difficulties that may arise at this time of the year, it would be helpful if, at a high level, FaCS could promptly arrange whatever is required to achieve a fresh permanency plan, or if needed, an interim care plan, that reflects these reasons, to submit to the court for approval.

519. In that regard, in the paramount best interests of the children, all the parties, including the foster carers, should use their best endeavours to co-operate, either with, or without outside professional assistance, to achieve the above objectives without avoidable difficulty, including inter-personal difficulties of the kind that have been ventilated in the course of the evidence in these proceedings.

520. Should there be a need for the court to intervene in order to resolve any such issue, I propose to grant liberty for any affected party to apply for directions on short notice as and when required.

521. With regard to the set-up practicalities which face the appellant, it appears that there may be some areas with which the appellant may require material or practical assistance. As already indicated on the housing issue, given the pathway of error that has led to the present position, without fault on the part of the appellant or the children, there is a high moral call for FaCS to provide the appellant with more than just minimal practical and advisory assistance in that regard.

522. Finally, in the best interests of the children, if and when FaCS seeks advice from a Children’s Court clinician concerning transition and related hand-over issues, it hardly needs saying, but nevertheless, it is recorded here for more abundant caution, that assessment should be by fresh eyes, without reliance on the flawed positions and opinions that have in the past caused difficulty in this case. Similarly, given what has occurred with the early misreading of the historical FaCS file, it would also be in the best interests of the children, and for all concerned, if FaCS were to assign a new caseworker to oversee the necessary arrangements.

Dispositive conclusions

523. The appellant has succeeded in showing that the decision of the Children's Court should be set aside regarding the allocation of parental responsibility solely to the Minister which had resulted in the placement of the two children “C” and “B” with the foster carers. As a consequence, the proposed permanency plan is not approved.

524. This is because the original decision under appeal has been shown to have been made on the basis of erroneous evidence that was not exposed as being wrong when the Children’s Court decision was made.

525. Furthermore, the evidence generally, and the requirements of s 10A of the Act in particular, in my view mandates that the aspects of parental responsibility for the subject children relating to their medical, dental and allied care needs, should be allocated to the Minister in accordance with s 79(2)(e) of the Act. Subject to hearing from the parties on this point I consider this should be for the next 3 years, but jointly with the appellant maternal grandmother for all other aspects of parental responsibility until the children reach the respective ages of 18 years.

526. In the circumstances, final orders must be delayed pending a consideration of those proposals by the affected parties, and pending the preparation of a fresh permanency plan providing for transition and transfer of long-term placement and care arrangements for the children to the appellant consistent with these reasons.

527. In the paramount best interests of the children, it is important that finalisation of that plan proceed to completion with due care, and as soon as is practicable.

Interim Orders

528. Pending the making of final orders I make the following interim orders subject to the further order of the Court:

1. Appeal allowed;

2. The Secretary of the Department of Family and Community Services is to prepare a new permanency plan consistent with these reasons;

3. The proceedings are to be listed on 29 January 2016, for the specific purpose of the parties bringing short minutes that set out the required draft orders to reflect these reasons, and which also fulfil any formal requirements of the Children and Young Persons (Care and Protection) Act 1998;

4. If required, liberty is granted to the parties to apply to the Court to relist the matter on such abridged notice as may be necessary, for the purposes of implementing these interim orders, and to identify the required final orders;

5. The exhibits are to be retained in the Court file pending further and final orders.

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Decision last updated: 18 December 2015